B-71949, JANUARY 6, 1948, 27 COMP. GEN. 369

B-71949, JANUARY 6, 1948, 27 COMP. GEN. 369

LEAVES OF ABSENCE - ANNUAL - LEAVE EARNINGS FOR FRACTIONAL PART OF CALENDAR YEAR A PERMANENT EMPLOYEE WHO HAS SERVED CONTINUOUSLY FROM THE BEGINNING OF A CALENDAR YEAR AND IS SEPARATED FROM THE SERVICE PRIOR TO THE END OF THAT CALENDAR YEAR IS NOT ENTITLED TO THE 26 DAYS' ANNUAL LEAVE WITH PAY IN A CALENDAR YEAR AUTHORIZED BY THE ANNUAL LEAVE STATUTE OF MARCH 14, 1936, AS AMENDED, IRRESPECTIVE OF THE METHOD ADMINISTRATIVELY ADOPTED FOR THE PURPOSE OF CREDITING ANNUAL LEAVE TO HIS ACCOUNT. 27 COMP. GEN. 336, AMPLIFIED. ANNUAL LEAVE BEING AUTHORIZED ON A CALENDAR YEAR BASIS, THE RIGHT TO EARN SUCH LEAVE ACCRUES AT THE BEGINNING OF A CALENDAR YEAR AND TERMINATES AT CLOSE OF THAT YEAR, SO THAT SERVICE RENDERED OUTSIDE A PARTICULAR CALENDAR YEAR MAY NOT BE COUNTED FOR THE PURPOSE OF ACCRUING LEAVE IN THAT CALENDAR YEAR. IN THE ABSENCE OF A CONTROLLING REGULATION TO THE CONTRARY, A PERMANENT EMPLOYEE WITHIN THE PURVIEW OF THE ANNUAL LEAVE STATUTE OF MARCH 14, 1936, AS AMENDED, WHO HAS SERVED FOR A FRACTIONAL PART OF A CALENDAR YEAR MAY BE REGARDED AS HAVING EARNED ONLY THAT PROPORTIONATE PART OF THE 26 DAYS' ANNUAL LEAVE AS THE TOTAL NUMBER OF BASIC WORKDAYS DURING THE PERIOD OF THE EMPLOYEE'S SERVICE BEARS TO 260--- THE NUMBER OF BASIC WORKDAYS REQUIRED IN ANY ONE CALENDAR YEAR TO EARN THE FULL ANNUAL LEAVE CREDIT OF 26 DAYS--- DISREGARDING LEAVE EARNINGS OF LESS THAN 15 MINUTES.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 6, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 9, 1947, AS FOLLOWS:

THE COMMISSION WOULD APPRECIATE A DECISION ON CERTAIN QUESTIONS WHICH HAVE ARISEN AS A RESULT OF THE PRESENT PROCEDURE OF CREDITING ANNUAL LEAVE AT THE RATE OF ONE DAY PER BI-WEEKLY PAY PERIOD, OR FOUR HOURS PER HALF PAY PERIOD.

WE UNDERSTAND FROM INFORMAL DISCUSSIONS WITH YOUR OFFICE THAT IT IS CONSIDERED THAT THIS PROCEDURE IS MERELY A METHOD OF PROPORTIONING OVER THE CALENDAR YEAR THE 26 DAYS WHICH ARE EARNED OVER A CALENDAR YEAR UNDER THE LAW; AND THAT IN ANY YEAR WHICH CONTAINS THE LAST DAY OF PAY PERIODS AGGREGATING MORE THAN 26, THE ENTRY WHICH BRINGS THE TOTAL FOR THE YEAR UP TO 26 DAYS MUST BE THE LAST ENTRY FOR THAT YEAR. IN 1947 THE LAST ENTRY, AT LEAST IN THE DEPARTMENTAL SERVICE, WILL BE MADE FRIDAY, DECEMBER 26.

(1) IF AN EMPLOYEE WHO WAS CREDITED WITH 26 DAYS DURING THE YEAR 1947, THE LAST ENTRY BEING MADE DECEMBER 26, RESIGNS AT THE CLOSE OF BUSINESS DECEMBER 26, OR ANY LATER DATE BEFORE DECEMBER 31, IS HE ENTITLED TO LUMP- SUM PAYMENT FOR THE AMOUNT CREDITED AND UNUSED, REGARDLESS OF THE FACT THAT HE DID NOT REMAIN ON THE ROLLS TO THE END OF THE CALENDAR YEAR?

(2) THE FIRST ENTRY OF THE MINIMUM FOUR-HOUR CREDIT IN 1948 WILL BE MADE FRIDAY, JANUARY 2, IF AN EMPLOYEE WHO WAS ON THE ROLLS SINCE DECEMBER 26, 1947, OR LONGER, RESIGNS AT THE CLOSE OF BUSINESS JANUARY 2, 1948, IS HE ENTITLED TO LUMP-SUM PAYMENT FOR THE FOUR HOURS ENTERED ON JANUARY 2, REGARDLESS OF THE FACT THAT HE IS ON THE ROLLS ONLY TWO DAYS IN 1948?

(3) ON DECEMBER 24, 1948, THE ENTRY WILL BE MADE WHICH WILL BRING THE TOTAL, INCLUDING THE FOUR-HOUR ENTRY ON JANUARY 2, UP TO 26 DAYS. EMPLOYEE WHO ENTERED ON DUTY DECEMBER 30 OR 31, 1947, WOULD NOT RECEIVE THE FOUR-HOUR CREDIT ON JANUARY 2, 1948, BECAUSE HE WOULD NOT HAVE BEEN ON THE ROLLS THE HALF PAY PERIOD WHICH IS NECESSARY TO ENTITLE HIM TO THE MINIMUM CREDIT OF FOUR HOURS. IS THE ENTRY ON DECEMBER 24 THE LAST WHICH WILL BE MADE IN 1948 FOR THIS EMPLOYEE ALSO; OR WILL HE BE GIVEN ANOTHER FOUR-HOUR CREDIT DECEMBER 31, 1948 (THE END OF A HALF PERIOD), IN ORDER TO BRING HIS INDIVIDUAL ACCOUNT UP TO 26 DAYS FOR THE CALENDAR YEAR 1948?

AN EARLY DECISION WOULD BE APPRECIATED, SINCE THE INFORMATION IS NEEDED FOR LEAVE ACCRUAL TABLES WHICH ARE TO BE SENT TO REGIONAL OFFICES FOR THE COMING YEAR.

IN DECISION OF DECEMBER 19, 1947, B-72049, 27 COMP. GEN. 336, TO THE FEDERAL SECURITY ADMINISTRATOR, AFTER QUOTING THE PERTINENT PORTION OF SECTION 1 OF THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, AS AMENDED, IT WAS STATED:

IT WILL BE SEEN FROM THE ITALICIZED PORTION OF THAT PART OF THE 1936 STATUTE QUOTED ABOVE THAT OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT, OTHER THAN TEMPORARY EMPLOYEES, WHO COME WITHIN THE PURVIEW OF THAT ACT ARE ENTITLED TO TWENTY-SIX DAYS' ANNUAL LEAVE WITH PAY "EACH CALENDAR YEAR.' THE PHRASE,"CALENDAR YEAR," CONSISTENTLY HAD BEEN INTERPRETED BOTH BY THE COURTS AND THE ACCOUNTING OFFICERS OF THE GOVERNMENT AS COMPRISING THE PERIOD JANUARY 1 TO DECEMBER 31, INCLUSIVE. SEE 26 COMP. GEN. 592, 594, AND DECISIONS CITED THEREIN. COMPARE 18 COMP. GEN. 162.

WHILE SECTION 7 OF THE ANNUAL LEAVE ACT OF 1936, AS AMENDED, SUPRA, AUTHORIZES THE PRESIDENT TO PRESCRIBE REGULATIONS FOR UNIFORM APPLICATION OF THAT ACT (AUTHORITY WHICH NOW HAS BEEN DELEGATED TO THE CIVIL SERVICE COMMISSION), IT IS CLEAR THAT SUCH REGULATIONS NEITHER MAY ENLARGE NOR DIMINISH THE RIGHTS GRANTED UNDER THE SPECIFIC PROVISIONS OF THE STATUTE. IN THAT CONNECTION, IT WILL BE NOTED THAT NEITHER THE CIVIL SERVICE COMMISSION LEAVE REGULATIONS NOR GENERAL REGULATION NO. 102 OF THIS OFFICE --- REFERRED TO IN YOUR LETTER--- IS DIRECTED TO THE MATTER OF THE RATE AT WHICH AN EMPLOYEE EARNS ANNUAL LEAVE UNDER THE 1936 STATUTE. RATHER, SECTION 30.201 OF THE CURRENT ANNUAL LEAVE REGULATIONS OF THE COMMISSION SPECIFICALLY PROVIDES THAT ANNUAL LEAVE SHALL BE "CREDITED" TO EMPLOYEES EITHER AT THE RATE OF ONE DAY PER BI-WEEKLY PAY PERIOD OR THAT THE TOTAL "CREDIT" MAY BE GIVEN AT THE BEGINNING OF THE CALENDAR YEAR IN WHICH IT ACCRUES. OBVIOUSLY, IF THE LATTER PROCEDURE BE FOLLOWED, AN EMPLOYEE PROPERLY MAY NOT BE CONSIDERED AS HAVING EARNED TWENTY-SIX DAYS' ANNUAL LEAVE AS OF JANUARY 1. AND, IN LIKE MATTER, IF THE BI-WEEKLY PAY PERIOD METHOD OF CREDITING LEAVE BE USED, THE FACT THAT THE FINAL LEAVE CREDIT IS POSTED AT SOME INTERMEDIATE DATE DURING THE CALENDAR YEAR WOULD NOT ESTABLISH THAT DATE AS THE DATE UPON WHICH THE EMPLOYEE EARNS THE FULL AMOUNT OF ANNUAL LEAVE AUTHORIZED UNDER THE STATUTE. CONSEQUENTLY, THE PROVISIONS OF THE SAID REGULATIONS RESPECTING THE MANNER OF CREDITING ANNUAL LEAVE--- WHILE THEY MAY PERFORM A DESIRED FUNCTION FOR ADMINISTRATIVE LEAVE CONTROL PURPOSES--- ARE, AT MOST, ACCOUNTING EXPEDIENTS AND IN NOWISE MAY BE VIEWED AS CONTROLLING IN DETERMINING THE AMOUNT OF ANNUAL LEAVE TO WHICH AN EMPLOYEE IS ENTITLED AT A GIVEN DATE DURING A CALENDAR YEAR.

IN THE LIGHT OF THE FOREGOING, IT IS CLEAR THAT A PERMANENT EMPLOYEE WHO HAS SERVED CONTINUOUSLY SINCE THE BEGINNING OF THE CALENDAR YEAR AND WHO IS SEPARATED FROM THE SERVICE PRIOR TO THE END OF THAT CALENDAR YEAR IS NOT ENTITLED TO THE 26 DAYS' ANNUAL LEAVE AUTHORIZED THEREUNDER, IRRESPECTIVE OF THE METHOD ADOPTED FOR THE PURPOSE OF CREDITING ANNUAL LEAVE TO HIS ACCOUNT. ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE NEGATIVE.

WITH RESPECT TO QUESTION (2), IT MAY BE STATED THAT, SINCE ANNUAL LEAVE IS AUTHORIZED UPON A CALENDAR YEAR BASIS, THE RIGHT TO EARN THE LEAVE AUTHORIZED FOR ANY CALENDAR YEAR ACCRUES AT THE BEGINNING OF THE PARTICULAR CALENDAR YEAR AND TERMINATES AT THE CLOSE OF THAT YEAR. THEREFORE, SERVICE RENDERED OUTSIDE A PARTICULAR YEAR MAY NOT BE COUNTED FOR THE PURPOSE OF ACCRUING LEAVE IN THAT CALENDAR YEAR. CONSEQUENTLY, SO FAR AS CONCERNS THE EARNING OF LEAVE DURING THE CALENDAR YEAR 1948, THERE MAY BE COUNTED ONLY SUCH SERVICE AS IS RENDERED IN THAT YEAR. ACCORDINGLY, QUESTION (2) IS ANSWERED IN THE NEGATIVE.

IN LINE WITH THE STATEMENTS MADE IN CONNECTION WITH QUESTION (2) ABOVE, QUESTION (3) IS ANSWERED BY SAYING THAT SINCE, IN THE EXAMPLE GIVEN, THE EMPLOYEE WILL HAVE BEEN ON THE ROLLS FOR THE FULL CALENDAR YEAR 1948--- APPARENTLY IN A STATUS SUCH AS WOULD ENTITLE HIM TO THE FULL AMOUNT OF ANNUAL LEAVE FOR THAT YEAR--- THERE WILL BE REQUIRED AN APPROPRIATE ADJUSTMENT IN HIS ANNUAL LEAVE ACCOUNT TO REFLECT THAT FACT AS OF DECEMBER 31, 1948.

WHILE NOT SPECIFICALLY PRESENTED IN YOUR LETTER, THE ANSWERS TO QUESTIONS (1) AND (2) ABOVE, NECESSARILY GIVE RISE TO A CONSIDERATION TO THE PROPORTIONATE PART OF THE 26 DAYS' ANNUAL LEAVE TO WHICH A PERMANENT EMPLOYEE IS ENTITLED FOR SERVICE COVERING A FRACTIONAL PART OF A CALENDAR YEAR. SINCE, FOR ALL PRACTICAL PURPOSES, PERMANENT PER ANNUM EMPLOYEES WITHIN THE PURVIEW OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296- -- WHICH ESTABLISHED A BASIC WORKWEEK OF 40 HOURS (USUALLY COVERING 5 WORKDAYS OF 8 HOURS EACH IN EVERY CALENDAR WEEK/--- EARN ANNUAL LEAVE UPON THE BASIS OF WORKDAYS (INCLUSIVE OF HOLIDAYS WITHIN A TOUR OF DUTY), RATHER THAN UPON A CALENDAR DAY BASIS, IT APPEARS THAT IN THE ABSENCE OF AN APPROPRIATE REGULATION BY YOUR COMMISSION GOVERNING THE MATTER, THE PURPOSE OF THE ANNUAL LEAVE STATUTE WOULD BE SERVED BY COMPUTING ANNUAL LEAVE EARNINGS FOR SUCH EMPLOYEES UPON A WORKDAY BASIS. RECOGNIZING THAT THE MAXIMUM NUMBER OF WORKDAYS (INCLUSIVE OF HOLIDAYS WITHIN A TOUR OF DUTY), IN A CALENDAR YEAR VARIES FROM 260 TO 262, AND HAVING REGARD FOR THE VAST AMOUNT OF PAPER WORK INVOLVED IN DEALING WITH COMPLEX FRACTIONAL COMPUTATIONS OF LEAVE EARNINGS, IT SEEMS THAT SUBSTANTIAL COMPLIANCE WOULD BE HAD WITH THE TERMS OF THE STATUTE, BOTH FROM AN ADMINISTRATIVE VIEWPOINT AS WELL AS THAT OF THE EMPLOYEE, BY CONSIDERING 260 BASIC WORKDAYS AS CONSTITUTING THE NUMBER OF BASIC WORKDAYS REQUIRED IN ANY ONE CALENDAR YEAR TO EARN THE FULL CREDIT OF 26 DAYS AUTHORIZED UNDER THE 1936 STATUTE.

APPLYING THE FORMULA SET OUT ABOVE, IT WILL BE SEEN THAT THE ANNUAL LEAVE EARNED FOR A FRACTIONAL YEAR'S SERVICE REPRESENTS THE SAME PROPORTIONATE PART OF THE 26 DAYS' ANNUAL LEAVE AS THE TOTAL NUMBER OF BASIC WORKDAYS DURING THE PERIOD OF SERVICE BEARS TO THE REQUIRED 260 BASIC WORKDAYS. FOR EXAMPLE, AN EMPLOYEE WHO IS ON THE ROLLS FROM JANUARY 1, 1948, THROUGH MARCH 31, 1948, AND ASSUMING HE WAS NOT IN A LEAVE-WITHOUT-PAY STATUS DURING THE PERIOD SUCH AS WOULD REQUIRE REDUCTION IN LEAVE EARNINGS UNDER THE CURRENT LEAVE REGULATIONS, WOULD BE CONSIDERED AS HAVING EARNED ANNUAL LEAVE UPON 65 BASIC WORKDAYS. SINCE, CONSIDERING 260 WORKDAYS AS CONSTITUTING THE REQUIRED NUMBER OF BASIC WORKDAYS IN A CALENDAR YEAR, AN EMPLOYEE EARNS, FOR EACH 10 BASIC WORKDAYS, 1 DAY OF ANNUAL LEAVE, IN THE ILLUSTRATION GIVEN, THE EMPLOYEE WOULD HAVE EARNED 6 1/2 DAYS' ANNUAL LEAVE. RESPECTING THE CIRCUMSTANCES MENTIONED IN QUESTION (1) ABOVE, THE EMPLOYEE PROPERLY MAY BE CONSIDERED AS HAVING EARNED 258/260 OF 26 DAYS' ANNUAL LEAVE, OR 25 DAYS, 6 HOURS, AND 24 MINUTES. LIKEWISE, RESPECTING THE EMPLOYEE MENTIONED IN QUESTION (2), FOR THE TWO BASIC WORKDAYS HE WILL HAVE BEEN ON THE ROLLS DURING THE CALENDAR YEAR 1948, HE WILL EARN 1/5 OF 1 DAY'S ANNUAL LEAVE, OR 1 HOUR, AND 36 MINUTES.

IN THE ABSENCE OF ANY CONTROLLING REGULATION TO THE CONTRARY, IT WOULD APPEAR PROPER, IN THE COMPUTATION OF ANNUAL LEAVE EARNED DURING A FRACTIONAL YEAR'S SERVICE, TO DISREGARD LEAVE EARNINGS OF LESS THAN 15 MINUTES. HENCE, UNDER THE CIRCUMSTANCES SET FORTH IN QUESTION (1) AND (2) ABOVE, THE EMPLOYEES WOULD BE CONSIDERED AS HAVING EARNED ANNUAL LEAVE OF 25 DAYS, 6 1/4 HOURS, AND 1 1/2 HOURS, RESPECTIVELY.