B-61224, NOVEMBER 18, 1946, 26 COMP. GEN. 331

B-61224, NOVEMBER 18, 1946, 26 COMP. GEN. 331

GRANTING OF ANNUAL LEAVE IMMEDIATELY PRIOR TO FURLOUGH PRECEDING SEPARATION BY REDUCTION IN FORCE AN EMPLOYEE WHO IS TO BE PLACED ON FURLOUGH PRIOR TO SEPARATION BY REDUCTION IN FORCE MAY, UPON REQUEST, BE GRANTED ALL ACCUMULATED AND ACCRUED ANNUAL LEAVE PRIOR TO BEING PLACED ON FURLOUGH, PURSUANT TO SECTION 2.3 OF THE ANNUAL LEAVE REGULATIONS EFFECTIVE JULY 1, 1946, NOTWITHSTANDING PRIOR DECISIONS OF THIS OFFICE (24 COMP. GEN. 511; ID. 617; ID. 659; 25 ID. 228; 26 ID. 119) TO THE EFFECT THAT, IN VIEW OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, ANNUAL LEAVE COULD NOT BE GRANTED FOR A PERIOD IMMEDIATELY PRIOR TO SEPARATION.

ACTING COMPTROLLER GENERAL YATES TO RALPH L. TEMPLE, CIVILIAN PRODUCTION ADMINISTRATION, NOVEMBER 18, 1946:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 10, 1946, YOUR FILE AA-1 RLT, AS FOLLOWS:

THERE HAS BEEN SUBMITTED TO ME FOR CERTIFICATION THE ATTACHED PAYROLL IN FAVOR OF MARION E. TYRRELL IN THE AMOUNT OF $354.44, COVERING PERIOD OF ANNUAL LEAVE AUGUST 2, 1946, THROUGH THREE HOURS SEPTEMBER 18, 1946.

MISS TYRRELL WAS GIVEN A THIRTY-DAY REDUCTION IN FORCE NOTICE EFFECTIVE JUNE 15, 1946, WHICH NOTICE WAS AMENDED ON JUNE 12, 1946, ADVANCING THE LAST DAY OF ACTIVE DUTY TO JULY 14, 1946. ON JULY 11, 1946, REDUCTION IN FORCE NOTICE WAS FURTHER AMENDED AND MISS TYRRELL WAS ACCORDINGLY NOTIFIED THAT LAST DAY OF WORK WOULD BE AUGUST 1, 1946, AFTER WHICH SHE WOULD BE PLACED ON FURLOUGH FOR NINETY DAYS AND THAT DATE OF SEPARATION WOULD BE NOVEMBER 1, 1946.

MISS TYRRELL HAS REQUESTED THAT PRIOR TO BEING PLACED ON FURLOUGH SHE BE GRANTED ANNUAL LEAVE BEGINNING AUGUST 2, FOR AS LONG AS HER ACCUMULATED AND ACCRUED LEAVE WILL PERMIT IN ACCORDANCE WITH SECTION 2.3 OF REGULATIONS RELATING TO " ANNUAL AND SICK LEAVE FOR GOVERNMENT EMPLOYEES" AS AMENDED JUNE 26, 1946, EFFECTIVE JULY 1, 1946; 11 FR 7257, QUOTE:

"ANNUAL LEAVE SHALL BE GRANTED TO AN EMPLOYEE AT SUCH TIMES AS THE HEADS OF THE DEPARTMENTS AND AGENCIES MAY PRESCRIBE: PROVIDED, THAT AN EMPLOYEE WHO IS TO BE PLACED ON FURLOUGH IN CONTEMPLATION OF SEPARATION BY REDUCTION IN FORCE SHALL BE GRANTED IMMEDIATELY PRIOR TO FURLOUGH, UPON HIS REQUEST, ANY ANNUAL LEAVE TO WHICH HE IS ENTITLED.'

THE ATTACHED VOUCHER REPRESENTS 259 HOURS ACCUMULATED AND ACCRUED LEAVE TO THE CREDIT OF MISS TYRRELL AT THE CLOSE OF BUSINESS AUGUST 1, 1946.

I DEFER CERTIFICATION BECAUSE TO RETAIN MISS TYRRELL ON THE PAYROLL FOR THE PURPOSE OF GRANTING ANNUAL LEAVE SUBSEQUENT TO LAST DAY OF WORK WOULD APPEAR TO BE A DIRECT VIOLATION OF THE INTENT AND PURPOSE OF PUBLIC LAW 525, COMMONLY KNOWN AS THE LANE ACT, ALSO CONTRARY TO NUMEROUS DECISIONS OF YOUR OFFICE.

I RESPECTFULLY REQUEST YOUR INTERPRETATION OF SECTION 2.3 OF THE LEAVE REGULATIONS AS ABOVE QUOTED, PARTICULARLY AS TO ITS APPLICATION, IF ANY, AFTER LAST DAY OF WORK HAS BEEN DETERMINED BY THE REQUIRED THIRTY-DAY NOTICE OF REDUCTION IN FORCE. HAS NOT THE CONDITION OF "CONTEMPLATION OF SEPARATION" CEASED TO EXIST WHEN LAST DAY OF WORK HAS BEEN DETERMINED BY A REDUCTION IN FORCE NOTICE?

MISS TYRRELL HAS NOT AT THIS TIME BEEN SEPARATED AND UNLESS A TRANSFER IS EFFECTED OR SHE RESIGNS PRIOR, SEPARATION WILL NOT TAKE PLACE UNTIL NOVEMBER 1, 1946, IN ACCORDANCE WITH CONDITIONS OF NOTICE AS OUTLINED IN PARAGRAPH TWO.

THE DECISIONS OF THIS OFFICE WITH RESPECT TO THE OPERATION OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, IN THE CASE OF EMPLOYEES PLACED ON FURLOUGH BECAUSE OF REDUCTION IN FORCE HAVE HELD GENERALLY THAT THE GRANTING OF ANNUAL LEAVE OF ABSENCE WITH PAY FOR A PERIOD IMMEDIATELY PRIOR TO SEPARATION FROM THE SERVICE IS PRECLUDED UNDER THE MANDATORY PROVISIONS OF THE SAID ACT WITH RESPECT TO PAYMENT FOR ACCRUED ANNUAL LEAVE IN A LUMP SUM. SEE 24 COMP. GEN. 511, 617, 659; 25 ID. 228; 26 ID. 119. HOWEVER, IN DECISION OF JULY 20, 1945, 25 COMP. GEN. 82, WITH RESPECT TO THE GRANTING OF LEAVE DURING A 30-DAY ADVANCE NOTICE OF SEPARATION REQUIRED BY LAW OR REGULATIONS HAVING THE FORCE AND EFFECT OF LAW, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

NOTWITHSTANDING THE MANDATORY PROVISIONS OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, IN CONNECTION WITH WHICH IT HAS BEEN HELD THAT ANNUAL LEAVE MAY NOT BE GRANTED IMMEDIATELY PRIOR TO SEPARATION, ANNUAL LEAVE MAY BE GRANTED TO EMPLOYEES DURING THE PERIOD OF ADVANCE NOTICE OF SEPARATION OF A SPECIFIC LENGTH OF TIME TO WHICH THEY ARE ENTITLED UNDER A LAW OR STATUTORY REGULATIONS (SUCH AS THE REGULATIONS OF THE CIVIL SERVICE COMMISSION WITH RESPECT TO EMPLOYEES' RETENTION PREFERENCE RIGHTS UNDER SECTIONS 12 AND 14 OF THE VETERANS' PREFERENCE ACT OF 1944), WHERE IT IS IMPRACTICABLE TO RETAIN THE EMPLOYEES UPON ACTIVE DUTY DURING SUCH PERIOD.

THE DECISION LAST REFERRED TO INVOLVED A SITUATION SOMEWHAT ANALOGOUS TO THAT HERE INVOLVED IN THAT THE CIVIL SERVICE COMMISSION, UNDER AUTHORITY OF THE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND EXECUTIVE ORDER 9414, DATED JANUARY 13, 1944, HAS ISSUED A REGULATION, HAVING THE FORCE AND EFFECT OF LAW, WHICH ENTITLES AN EMPLOYEE, UPON HIS REQUEST, TO BE CARRIED ON THE ROLLS OF AN AGENCY IN A LEAVE STATUS IMMEDIATELY PRIOR TO BEING PLACED ON FURLOUGH.

THERE IS SOME DOUBT WHETHER THE AMENDMENT TO THE LEAVE REGULATIONS ACCORDS WHOLLY WITH THE INTENT AND PURPOSE OF THE ACT OF DECEMBER 21, 1944, SUPRA, BUT HAVING IN MIND (A) THAT THE ABOVE REFERRED-TO DECISIONS OF THIS OFFICE WERE RENDERED IN RESPECT OF SITUATIONS ARISING PRIOR TO JULY 1, 1946, THE EFFECTIVE DATE OF THE REGULATION HERE INVOLVED, (B) THAT THE SAID REGULATION WAS ISSUED PURSUANT TO THE ACT OF MARCH 14, 1936, AND (C) THAT THE ACT OF DECEMBER 21, 1944, AUTHORIZES LUMP-SUM PAYMENTS FOR ACCUMULATED OR ACCRUED ANNUAL LEAVE DUE TO GOVERNMENT EMPLOYEES UPON THEIR SEPARATION FROM THE SERVICE, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE APPLICATION OF THE REGULATION IN THE MANNER INDICATED IN THE PRESENT CASE, PARTICULARLY WHEN IT IS UNDERSTOOD THAT THE PREVAILING PRACTICE BY ADMINISTRATIVE AGENCIES OF PLACING EMPLOYEES ON FURLOUGH BECAUSE OF REDUCTION OF FORCE WAS ADOPTED TO PERMIT EMPLOYEES TO RETAIN CERTAIN BENEFITS OF TRANSFER, ETC., THAT OTHERWISE MIGHT BE DENIED SHOULD A SEPARATION OCCUR PRIOR TO THE END OF THE FURLOUGH PERIOD.

ACCORDINGLY, THE DECISIONS REFERRED TO WILL NO LONGER BE CONTROLLING AS TO PERIODS SUBSEQUENT TO JULY 1, 1946, WITH THE UNDERSTANDING, OF COURSE, THAT IF AN EMPLOYEE FAILS TO REQUEST HIS LEAVE AS PROVIDED BY THE REGULATION, PAYMENT FOR SAME WILL BE MADE IN A LUMP SUM AT TIME OF SEPARATION FROM THE SERVICE UPON EXPIRATION OF THE FURLOUGH PERIOD.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.