B-61591, NOVEMBER 20, 1946, 26 COMP. GEN. 347

B-61591, NOVEMBER 20, 1946, 26 COMP. GEN. 347

OFFICERS AND EMPLOYEES - GRANTING OF ONE-YEAR NOTICES BEFORE SEPARATION BY REDUCTION IN FORCE THERE IS NO OBJECTION TO THE PROMULGATION OF A REGULATION BY THE CIVIL SERVICE COMMISSION WHEREBY EMPLOYEES ELIGIBLE FOR REEMPLOYMENT OR TRANSFER WHO HAVE BEEN REACHED FOR REDUCTION IN FORCE MAY BE GRANTED ONE-YEAR NOTICES OF SEPARATION, SUCH NOTICE PERIODS TO BE COMPOSED OF 30 DAYS IN A DUTY AND PAY STATUS, WHENEVER POSSIBLE; A NON-DUTY PERIOD FOR THE DURATION OF ANY ACCUMULATED ANNUAL LEAVE; AND THE BALANCE OF THE YEAR IN A FURLOUGH STATUS. COMPARE 25 COMP. GEN. 82; 26 ID. 331.

ACTING COMPTROLLER GENERAL YATES TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, NOVEMBER 20, 1946:

I HAVE YOUR LETTER OF NOVEMBER 1, 1946, AS FOLLOWS:

ATTACHED IS A TENTATIVE DRAFT OF DEPARTMENTAL CIRCULAR, DATED OCTOBER 16, 1946, WHICH THE COMMISSION HAS BEEN DISCUSSING WITH THE COUNCIL OF PERSONNEL ADMINISTRATION AND VARIOUS DEPARTMENTS AND WHICH, WITH SOME MODIFICATIONS, IT WOULD LIKE TO ISSUE AT AN EARLY DATE. IN CONNECTION WITH THE DISCUSSION OF THIS PROGRAM FOR RETURN TO DUTY OR PLACEMENT IN OTHER AGENCIES OF CAREER EMPLOYEES WHO HAVE COMPETITIVE STATUS AND HAVE BEEN REACHED IN REDUCTION IN FORCE, A QUESTION HAS ARISEN ON WHICH YOUR VIEWS WOULD BE MOST HELPFUL.

THE QUESTION IS: IN VIEW OF YOUR DECISION, B-50806 OF JULY 20, 1945 (25 CG 82), MAY EMPLOYEES WHO HAVE BEEN REACHED IN A REDUCTION IN FORCE BE CARRIED ON THE ROLLS OF THEIR RESPECTIVE DEPARTMENTS AND AGENCIES ON A LEAVE-WITH-PAY BASIS FOR THE PERIOD OF THEIR APPROPRIATE ACCUMULATED LEAVE DURING THE ONE-YEAR-NOTICE PERIOD BEFORE FINAL SEPARATION THAT IS PROPOSED IN POINT NO. 1 OF THE TENTATIVE DRAFT OF THE DEPARTMENTAL CIRCULAR ATTACHED, AND FOLLOWING THE PERIOD OF 30 DAYS PAY AND DUTY STATUS WHICH WILL BE GRANTED WHEREVER POSSIBLE?

THE COUNCIL OF PERSONNEL ADMINISTRATION AND THE COMMISSION DESIRE THAT, TO THE MAXIMUM EXTENT POSSIBLE, AGENCIES SHALL RETAIN FULLY SATISFACTORY EMPLOYEES WHO HAVE ACHIEVED COMPETITIVE STATUS AND HAVE GIVEN LOYAL SERVICE TO THE FEDERAL GOVERNMENT. IT IS CONTEMPLATED THAT EACH AGENCY WILL RECALL SUCH CAREER EMPLOYEES REACHED IN REDUCTION IN FORCE TO DUTY DURING THEIR PERIOD OF LEAVE OR FURLOUGH IF VACANCIES DEVELOP OR PLACEMENT OPPORTUNITIES ARE FOUND FOR THEM IN OTHER PARTS OF THE AGENCY THROUGH THE DISPLACEMENT OF TEMPORARY OR WAR SERVICE EMPLOYEES. ALSO, THAT TO THE EXTENT THAT IT IS NOT POSSIBLE FOR SUCH EMPLOYEES TO BE RETAINED IN THEIR OWN AGENCIES, THEIR PLACEMENT IN OTHER AGENCIES IN THE SAME LOCATION WILL BE FURTHERED. FROM THE STANDPOINT OF THE EMPLOYEE AND OF THE GOVERNMENT, THESE EMPLOYEES WILL NOT BE SEPARATED FROM THE ROLLS UNTIL AFTER A ONE- YEAR PERIOD FROM THE DATE THEY ARE NOTIFIED OF THE FACT THEY HAVE BEEN REACHED IN A REDUCTION UNLESS THE EMPLOYEE HIMSELF REQUESTS EARLIER SEPARATION OR THE AGENCY ITSELF IS TERMINATED. ADMINISTRATIVELY, AND FROM THE STANDPOINT OF SOUND PERSONNEL ADMINISTRATION, IT WOULD BE ADVISABLE AFTER THE LAST DAY OF ACTIVE DUTY AND PAY STATUS FOR SUCH EMPLOYEES TO RECEIVE THEIR ACCUMULATED LEAVE CURRENTLY. IN YOUR ABOVE MENTIONED DECISION YOU STATE "IN ANY EVENT THIS OFFICE IS IN AGREEMENT WITH YOUR STATED VIEW THAT WHERE A LAW OR CIVIL SERVICE REGULATION HAVING THE FORCE AND EFFECT OF LAW REQUIRES AN ADVANCE NOTICE OF SEPARATION OF A SPECIFIC LENGTH OF TIME, 30 DAYS HAVING BEEN MENTIONED IN YOUR LETTER, ANNUAL LEAVE MAY BE GRANTED DURING THE PERIOD OF ADVANCE NOTICE OF SEPARATION WHERE IT IS IMPRACTICABLE TO RETAIN THE EMPLOYEE UPON ACTIVE DUTY DURING SUCH PERIOD.' ( ITALICS ADDED.) MANY AGENCIES HAVE ASKED THAT THE COMMISSION DETERMINE WHETHER THIS SAME DECISION WOULD APPLY WHERE A ONE-YEAR NOTICE PERIOD WAS PROVIDED IN THE REGULATIONS AS IS CONTEMPLATED BY THE PROPOSED DEPARTMENTAL CIRCULAR.

YOU WILL NOTE THAT IN OUR DEPARTMENTAL CIRCULAR WE ARE PROPOSING THAT THE AGENCIES DISCONTINUE THE POLICY MANY OF THEM HAVE HERETOFORE FOLLOWED OF GRANTING FURLOUGHS TO WAR-SERVICE AND TEMPORARY-INDEFINITE EMPLOYEES WHO ARE REACHED IN REDUCTION IN FORCE. SUCH FURLOUGHS WERE USED AS A METHOD OF EXTENDING THE PERIOD OF TIME DURING WHICH THESE PERSONS WOULD HAVE REEMPLOYMENT AND TRANSFER RIGHTS.

IF THE COMMISSION COULD HAVE A REPLY FROM YOU ON THIS POINT WHICH WE COULD ISSUE AS AN ATTACHMENT TO OUR DEPARTMENTAL CIRCULAR, IT WOULD FACILITATE THE FULL DEVELOPMENT OF THIS POLICY, AVOID UNNECESSARY QUESTIONS, AND CLARIFY A TROUBLESOME POINT. WE WOULD APPRECIATE YOUR GIVING US A LETTER IN ANSWER TO THE QUESTION MENTIONED ABOVE WHICH WE COULD USE IN THIS MANNER.

IN THE REFERRED TO DECISION, 25 COMP. GEN. 82, IT WAS STATED AT PAGE 84:

IN NONE OF THE DECISIONS OF THIS OFFICE--- CONSTRUING OR APPLYING THE LUMP-SUM PAYMENT LAW OF DECEMBER 21, 1944, 58 STAT. 845, PUBLIC LAW 525, AND HOLDING THAT TERMINAL ANNUAL LEAVE MAY NOT BE GRANTED WHERE IT IS KNOWN IN ADVANCE THAT THE EMPLOYEE IS TO BE SEPARATED FROM THE SERVICE--- HAS ANY CONSIDERATION BEEN GIVEN TO THE MATTERS COVERED BY THE QUESTIONS PRESENTED IN YOUR LETTER INVOLVING THE REQUIREMENT OF THE VETERANS' PREFERENCE LAWS AND CIVIL SERVICE REGULATIONS ISSUED PURSUANT TO STATUTE FOR AN ADVANCE NOTICE OF SEPARATION ON ACCOUNT OF REDUCTION OF FORCE OR OTHERWISE. SEE 24 COMP. GEN. 511, 526, 616, 617; DECISION OF MARCH 5, 1945, B-47946, 24 COMP. GEN. 650; DECISION OF MARCH 7, 1945, B-48039, 24 COMP. GEN. 651; DECISION OF MARCH 7, 1945, B-48070, 24 COMP. GEN. 659; DECISION OF APRIL 9, 1945, B-48611, 24 COMP. GEN. 735; AND DECISION OF APRIL 20, 1945, B-48972, 24 COMP. GEN. 768. OF COURSE, A DISTINCTION MAY BE DRAWN BETWEEN THE TERMINAL LEAVE CONSIDERED IN THOSE DECISIONS AND THE SO-CALLED TERMINAL LEAVE HERE INVOLVED IN THAT THE FORMER RELATES TO TRUE OR ABSOLUTE TERMINAL LEAVE WHEREAS THE LATTER--- BECAUSE OF THE RIGHT IN THE VETERAN TO APPEAL THE 30-DAY NOTICE OF DISCHARGE OR SEPARATION--- IS NOT NECESSARILY ABSOLUTE IN THAT THE RESULT OF AN APPEAL COULD VERY WELL LEAD TO THE WITHDRAWAL OR CANCELLATION OF THE NOTICE. IN ANY EVENT THIS OFFICE IS IN AGREEMENT WITH YOUR STATED VIEW THAT WHERE A LAW OR CIVIL SERVICE REGULATION HAVING THE FORCE AND EFFECT OF LAW REQUIRES AN ADVANCE NOTICE OF SEPARATION OF A SPECIFIC LENGTH OF TIME, 30 DAYS HAVING BEEN MENTIONED IN YOUR LETTER, ANNUAL LEAVE MAY BE GRANTED DURING THE PERIOD OF ADVANCE NOTICE OF SEPARATION WHERE IT IS IMPRACTICABLE TO RETAIN THE EMPLOYEE UPON ACTIVE DUTY DURING SUCH PERIOD.

PARAGRAPH 1 OF THE " SUMMARY OF THE PROGRAM" IN THE PROPOSED CIVIL SERVICE CIRCULAR READS AS FOLLOWS:

ANY CAREER EMPLOYEE HAVING COMPETITIVE STATUS WHO IS IN RETENTION GROUPS A-1 OR A-2 AND IS REACHED FOR REDUCTION SHALL BE GIVEN A ONE YEAR'S NOTICE BEFORE SEPARATION IN LIEU OF THE PRESENT 30 DAYS NOTICE. THIS NOTICE PERIOD WILL BE COMPOSED OF:

(A) WHENEVER POSSIBLE, AT LEAST 30 DAYS IN DUTY AND PAY STATUS;

(B) A NON-DUTY PERIOD WITH PAY FOR THE DURATION OF ANY ACCUMULATED ANNUAL LEAVE; AND

(C) THE BALANCE OF THE YEAR IN A FURLOUGH STATUS.

EXCEPTIONS TO THIS POLICY WILL BE AUTHORIZED WHEN THE EMPLOYEE REQUESTS SEPARATION IN LIEU OF FURLOUGH, OR WHEN THE AGENCY AS A WHOLE IS LIQUIDATING, IN WHICH CASE THE NOTICE PERIOD WILL TERMINATE AS OF THE DAY THE AGENCY IS TERMINATED. IN CARRYING OUT THIS PART OF THE PROGRAM, PRESENT PROVISIONS OF THE RETENTION REFERENCE REGULATIONS CONCERNING COMPETITIVE LEVELS AND COMPETITIVE AREAS WILL REMAIN UNCHANGED.

THE PROPOSED CIRCULAR FURTHER WOULD PROVIDE PROCEDURES FOR REEMPLOYING THE EMPLOYEES SO DISPLACED WITHIN THE PERIOD OF THE FURLOUGH SO GRANTED, THAT IS TO SAY, UNDER THE PROGRAM TO BE ESTABLISHED BY THAT CIRCULAR THE ONE-YEAR FURLOUGH IS NOT CONCLUSIVE OF THE FINAL SEPARATION OF THE EMPLOYEE AS EVERY EFFORT IS TO BE MADE TO PLACE THE EMPLOYEE RECEIVING SUCH A FURLOUGH IN ANOTHER POSITION, THE SEPARATION TO BE FINAL ONLY IN CASE NO POSITION CAN BE FOUND WITHIN SUCH FURLOUGH PERIOD.

IN DECISION OF NOVEMBER 18, 1946, B-61224, 26 COMP. GEN. 331, THERE WAS CONSIDERED THE CIVIL SERVICE REGULATION IN SECTION 2.3 OF THE ANNUAL AND SICK LEAVE REGULATIONS FOR GOVERNMENT EMPLOYEES, E.O. 9414 ( REVISED), EFFECTIVE JULY 1, 1946, WHICH AUTHORIZES THE GRANTING OF ANY ANNUAL LEAVE IMMEDIATELY PRIOR TO PLACING THE EMPLOYEE ON FURLOUGH IN CONTEMPLATION OF SEPARATION BY REDUCTION IN FORCE, AND IT WAS STATED IN THAT DECISION:

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.

IN LINE WITH THAT DECISION, AND IN VIEW OF THE PURPOSE TO BE SERVED BY THE CONTEMPLATED ONE-YEAR FURLOUGH TO BE GRANTED EMPLOYEES ELIGIBLE FOR REEMPLOYMENT OR TRANSFER, THIS OFFICE INTERPOSES NO OBJECTION TO THE PROMULGATION OF THE CONTEMPLATED REGULATION IN ITS PRESENT FORM.