B-74497, APRIL 16, 1948, 27 COMP. GEN. 638

B-74497, APRIL 16, 1948, 27 COMP. GEN. 638

LEAVES OF ABSENCE - EMPLOYMENT IN TEMPORARY POSITION DURING INVOLUNTARY FURLOUGH UNDER SECTION 30.408 OF THE ANNUAL AND SICK LEAVE REGULATIONS, PROVIDING FOR THE CERTIFICATION OF ACCRUED SICK LEAVE TO THE EMPLOYING AGENCY WHEN AN EMPLOYEE TRANSFERS BETWEEN POSITIONS WITHIN THE PURVIEW OF THE LEAVE ACTS OF MARCH 14, 1936, WITHOUT A BREAK IN SERVICE, THE ACCRUED SICK LEAVE OF AN EMPLOYEE APPOINTED TO A TEMPORARY POSITION WHILE ON INVOLUNTARY FURLOUGH DUE TO REDUCTION IN FORCE FROM A PERMANENT POSITION IN ANOTHER AGENCY IS FOR TRANSFER TO HIS SUCCESSIVE POSITIONS SUBJECT TO THOSE ACTS FOR CREDIT OR CHARGE AS THE CASE MAY BE, NO DISTINCTION BEING MADE IN THE REGULATIONS BETWEEN PERMANENT AND TEMPORARY POSITIONS INSOFAR AS THE TRANSFER OF SICK LEAVE IS CONCERNED. AN EMPLOYEE WHO, DURING A PERIOD OF INVOLUNTARY FURLOUGH FROM A PERMANENT POSITION DUE TO REDUCTION IN FORCE, ACCEPTS A TEMPORARY POSITION IN ANOTHER AGENCY IS NOT TO BE REGARDED AS ENTITLED TO A LUMP SUM PAYMENT FOR THE ANNUAL LEAVE ACCRUED IN HIS PERMANENT POSITION--- THERE BEING NO EFFECTIVE SEPARATION THEREFROM--- AND, UPON LATER APPOINTMENT TO A PERMANENT POSITION UNDER THE SAME LEAVE SYSTEM, SUCH EMPLOYEE MAY HAVE HIS ACCRUED ANNUAL LEAVE TRANSFERRED TO THE NEW POSITION. 26 COMP. GEN. 259, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, APRIL 16, 1948:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 16, 1948, AS FOLLOWS:

YOUR DECISIONS ARE RESPECTFULLY REQUESTED REGARDING THREE PROBLEMS WHICH HAVE ARISEN IN THIS DEPARTMENT IN CONNECTION WITH THE APPLICATION OF THE LEAVE REGULATIONS IN THE TRANSFERRING OF ANNUAL AND SICK LEAVE.

A FORMER EMPLOYEE OF THE OFFICE OF THE SECRETARY TRANSFERRED TO AND ENTERED ON DUTY WITH THE ATOMIC ENERGY COMMISSION ON NOVEMBER 14, 1947, AND THAT AGENCY HAS REQUESTED THE FORMAL TRANSFER OF HIS LEAVE. THIS EMPLOYEE ENTERED ON DUTY IN THE OFFICE OF SCIENTIFIC RESEARCH AND DEVELOPMENT, WASHINGTON, D.C., ON MAY 24, 1943. HE WAS PLACED ON FURLOUGH IN THAT AGENCY DUE TO REDUCTION IN FORCE AT THE CLOSE OF BUSINESS ON SEPTEMBER 7, 1947. EFFECTIVE SEPTEMBER 8, 1947, HE ACCEPTED AN INDEFINITE APPOINTMENT AND ENTERED ON DUTY WITH THE DISTRICT UNEMPLOYMENT COMPENSATION BOARD, HIS APPOINTMENT HAVING BEEN SUBSEQUENTLY CHANGED TO TEMPORARY NOT TO EXCEED NINETY DAYS, AND WITH WHICH AGENCY HE REMAINED UNTIL HE WAS APPOINTED IN THE OFFICE OF THE SECRETARY, DEPARTMENT OF COMMERCE, BY TRANSFER FROM THE OFFICE OF SCIENTIFIC RESEARCH AND DEVELOPMENT EFFECTIVE, SEPTEMBER 30, 1947.

ACCORDING TO THE REGULATIONS PUBLISHED IN THE FEDERAL PERSONNEL MANUAL S1 -6 UNDER THE HEADING ,EFFECT ON FURLOUGH OR LEAVE-WITHOUT-PAY STATUS," EXCERPT FROM WHICH IS QUOTED BELOW:

"ACCEPTANCE OF FEDERAL EMPLOYMENT.--- THE ACCEPTANCE OF APPOINTMENT TO A SECOND FEDERAL POSITION HAS THE FOLLOWING EFFECT UPON THE HOLDING ANOTHER POSITION IN A FURLOUGH OR LEAVE-WITHOUT-PAY STATUS:

"/A) ACCEPTANCE OF PERMANENT, INDEFINITE, OR PROBATIONAL APPOINTMENT TO THE SECOND POSITION AUTOMATICALLY TERMINATES THE FURLOUGH OR LEAVE-WITHOUT -PAY STATUS.

"/B) ACCEPTANCE OF APPOINTMENT TO A TEMPORARY OR SEASONAL POSITION, IN THE SAME OR A DIFFERENT GOVERNMENT AGENCY, DOES NOT AUTOMATICALLY TERMINATE A FURLOUGH STATUS.'

HAD THE APPOINTMENT OF THIS EMPLOYEE REMAINED AS ORIGINALLY WRITTEN, HIS ACCEPTANCE OF THE INDEFINITE APPOINTMENT WOULD HAVE AUTOMATICALLY TERMINATED HIS FURLOUGH STATUS AND HIS ANNUAL AND SICK LEAVE WOULD HAVE BEEN TRANSFERRED TO THE DISTRICT UNEMPLOYMENT COMPENSATION BOARD. HOWEVER, WITH THE CHANGING OF THE TYPE OF HIS APPOINTMENT TO TEMPORARY, HIS FURLOUGH STATUS IN THE OFFICE OF SCIENTIFIC RESEARCH AND DEVELOPMENT WAS NOT AUTOMATICALLY TERMINATED, THEREBY RAISING CERTAIN QUESTIONS WITH REFERENCE TO THE TRANSFER OF LEAVE CONCERNING WHICH THE PRESENT REGULATIONS ARE SILENT. THESE QUESTIONS ARE BRIEFLY AS FOLLOWS:

1. FROM WHAT AGENCY SHOULD THE SICK LEAVE BE ACCEPTED? THE QUESTION IS RAISED BY REASON OF THE FACT THAT THE EMPLOYEE TOOK SICK LEAVE WHILE IN THE DISTRICT UNEMPLOYMENT COMPENSATION BOARD, AND, IF THE LEAVE IS TRANSFERABLE TO THE OFFICE OF THE SECRETARY, DEPARTMENT OF COMMERCE, FROM THE OFFICE OF SCIENTIFIC RESEARCH AND DEVELOPMENT, A COLLECTION WILL HAVE TO BE MADE FOR LEAVE CHARGED IN THE DISTRICT UNEMPLOYMENT COMPENSATION BOARD, AND EMPLOYEE PLACED ON LEAVE-WITHOUT PAY FOR THAT PERIOD.

2.IT HAS BEEN DETERMINED FROM COMPTROLLER GENERAL'S DECISION NO. 60657, DATED OCTOBER 24, 1946, THAT ANNUAL LEAVE WAS NOT TRANSFERABLE TO THE DISTRICT UNEMPLOYMENT COMPENSATION BOARD. WITH THE ANNUAL LEAVE NOT TRANSFERABLE, WAS IT PROPER THAT A LUMP-SUM PAYMENT SHOULD HAVE BEEN MADE BY THE OFFICE OF SCIENTIFIC RESEARCH AND DEVELOPMENT? IF THE LUMP-SUM PAYMENT WAS NOT MADE, IS THE ANNUAL LEAVE TO BE NOW ACCEPTED BY THE OFFICE OF THE SECRETARY, DEPARTMENT OF COMMERCE?

3. IF IT BE CONCLUDED THAT THE ANNUAL LEAVE IS TRANSFERABLE TO THE OFFICE OF THE SECRETARY, DEPARTMENT OF COMMERCE, FROM THE OFFICE OF SCIENTIFIC RESEARCH AND DEVELOPMENT, THE LEAVE RECORD WOULD INDICATE LEAVE-WITHOUT- PAY FOR THE PERIOD OF EMPLOYMENT IN THE DISTRICT UNEMPLOYMENT COMPENSATION BOARD. WOULD THAT LEAVE-WITHOUT-PAY (ASSUMING THAT IT WAS OVER THE AGGREGATE OF TWENTY-TWO DAYS) AFFECT THE SUBSEQUENT PERIODIC PAY INCREASE OF THE EMPLOYEE INASMUCH AS HE HAD HAD CONTINUOUS SERVICE?

I WILL APPRECIATE YOUR ADVICE ON THESE MATTERS.

FOR THE PURPOSE OF THIS DECISION IT WILL BE ASSUMED--- BUT WITHOUT DECIDING THE POINT--- THAT THE CHANGE IN THE STATUS OF THIS EMPLOYEE FROM AN INDEFINITE APPOINTMENT TO A TEMPORARY ONE (A SUBSTITUTION, AS IT WERE) DURING HIS EMPLOYMENT WITH THE DISTRICT UNEMPLOYMENT COMPENSATION BOARD WAS PROPER AND COVERED THE ENTIRE PERIOD OF HIS SERVICE WITH THAT BOARD.

SECTION 30.408 OF THE REVISED CIVIL SERVICE REGULATIONS, WITH RESPECT TO LEAVE, 12 F.R. 7242, PROVIDES THAT WHEN AN EMPLOYEE IS TRANSFERRED TO ANOTHER POSITION WITHOUT A BREAK IN SERVICE OR WITH A BREAK OF LESS THAN 90 DAYS AND BOTH POSITIONS ARE WITHIN THE PURVIEW OF THE LEAVE ACTS OF MARCH 14, 1936, THE SICK LEAVE ACCOUNT SHALL BE CERTIFIED TO THE EMPLOYING AGENCY FOR A CREDIT OR CHARGE AS THE CASE MAY BE. NO DISTINCTION IS MADE IN SUCH REGULATIONS BETWEEN PERMANENT AND TEMPORARY POSITIONS SO FAR AS SICK LEAVE IS CONCERNED. ACCORDINGLY, THE SICK LEAVE USED BY THIS EMPLOYEE WHILE WITH THE DISTRICT UNEMPLOYMENT COMPENSATION BOARD WOULD BE FOR CHARGING TO THE SICK LEAVE ACCOUNT WHICH PROPERLY WAS FOR TRANSFERRING FROM THE OFFICE OF SCIENTIFIC RESEARCH AND DEVELOPMENT, AND ANY REMAINING UNUSED SICK LEAVE RETRANSFERRED FROM THE BOARD TO THE EMPLOYEE'S CREDIT WITH THE OFFICE OF THE SECRETARY OF COMMERCE AND, IN TURN, TO THE ATOMIC ENERGY COMMISSION. QUESTION 1 IS ANSWERED ACCORDINGLY.

IN DECISION OF OCTOBER 24, 1946, B-60657, 26 COMP. GEN. 259, REFERRED TO BY YOU, IT WAS HELD, QUOTING FROM THE SYLLABUS:

ON THE BASIS THAT ANNUAL LEAVE IS GRANTED TO PERMANENT AND TEMPORARY EMPLOYEES ACCORDING TO SEPARATE SYSTEMS, ALTHOUGH THE GRANT OF LEAVE TO BOTH CLASSES OF EMPLOYEES IS PROVIDED FOR BY THE SAME STATUTE, THE APPOINTMENT, REAPPOINTMENT OR TRANSFER OF AN EMPLOYEE FROM A PERMANENT TO A TEMPORARY POSITION WITHOUT BREAK IN SERVICE MAY BE REGARDED AS A TRANSFER TO A POSITION UNDER A ,DIFFERENT LEAVE SYSTEM" WITHIN THE MEANING OF SECTION 3 OF THE ACT OF DECEMBER 21, 1944, ENTITLING THE EMPLOYEE TO A LUMP-SUM PAYMENT FOR THE LEAVE TO HIS CREDIT IN THE PERMANENT POSITION, COMPUTED AS OF THE LAST DAY OF SERVICE IN SUCH POSITION. 24 COMP. GEN. 726, OVERRULED. (AMPLIFIED BY 26 COMP. GEN. 604.)

IN THAT CASE THE EMPLOYEE HAD BEEN SEPARATED EFFECTIVELY FROM A PERMANENT POSITION BEFORE ACCEPTING THE TEMPORARY POSITION. HOWEVER, IN THE CASE INVOLVED IN YOUR SUBMISSION IT WOULD APPEAR THAT THE EMPLOYEE WAS NOT SEPARATED FROM HIS PERMANENT POSITION BUT, RATHER, WAS GIVEN AN INVOLUNTARY FURLOUGH DUE TO REDUCTION IN FORCE. IN 13 COMP. GEN. 14, IT WAS HELD, QUOTING FROM THE SYLLABUS:

EMPLOYEES ADMINISTRATIVELY FURLOUGHED UNDER THE TERMS OF SECTION 9 (A) OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1934, APPROVED JUNE 16, 1933, 48 STAT. 306, MAY BE TEMPORARILY EMPLOYED EITHER IN THE SAME OR ANOTHER DEPARTMENT OR OFFICE OF THE GOVERNMENT, BUT THIS RULE IS LIMITED TO EMPLOYEES INVOLUNTARILY FURLOUGHED AND CANNOT BE EXTENDED TO APPLY TO EMPLOYEES ON VOLUNTARY LEAVE OF ABSENCE WITHOUT PAY. AN EMPLOYEE CANNOT BE GIVEN A PERMANENT OR INDEFINITE APPOINTMENT AND CONTINUE TO HOLD HIS STATUS AS AN ADMINISTRATIVELY FURLOUGHED EMPLOYEE FROM ANOTHER POSITION.

THE RULE ANNOUNCED IN THE LAST ABOVE-QUOTED DECISION WOULD APPEAR EQUALLY APPLICABLE TO AN EMPLOYEE GIVEN AN INVOLUNTARY FURLOUGH DUE TO REDUCTION IN FORCE. ACCORDINGLY, AS THE FURLOUGH WAS NOT TERMINATED BY HIS SUBSEQUENT TEMPORARY APPOINTMENT NO LUMP-SUM PAYMENT FOR THE ANNUAL LEAVE TO HIS CREDIT IN THE OFFICE OF SCIENTIFIC RESEARCH AND DEVELOPMENT WAS REQUIRED AND SUCH ANNUAL LEAVE MAY BE TRANSFERRED TO THE EMPLOYEE'S CREDIT UPON HIS REAPPOINTMENT TO THE OFFICE OF SECRETARY OF COMMERCE AND, IN TURN, TO HIS CREDIT WITH THE ATOMIC ENERGY COMMISSION, QUESTION 2 IS ANSWERED ACCORDINGLY.

QUESTION 3 RELATES TO THE EMPLOYEE'S RIGHT TO A WITHIN-GRADE SALARY ADVANCE IN THE OFFICE OF THE ATOMIC ENERGY COMMISSION AND, AS SUCH, IS A MATTER NOT PROPERLY FOR DECISION UPON YOUR REQUEST.