B-80600, NOVEMBER 3, 1948, 28 COMP. GEN. 294

B-80600, NOVEMBER 3, 1948, 28 COMP. GEN. 294

LUMP-SUM LEAVE PAYMENTS - RETIRED EMPLOYEES - REEMPLOYMENT IN TEMPORARY OR INDEFINITE POSITIONS INASMUCH AS THE RETIREMENT OF A PERMANENT EMPLOYEE COMPLETELY SEVERED HIS PERMANENT STATUS, HIS IMMEDIATE REEMPLOYMENT FOR A PERIOD OF LESS THAN ONE YEAR CONSTITUTED HIM A "TEMPORARY EMPLOYEE" AS SUCH TERM IS DEFINED IN SECTON 30.101 (C) OF THE CURRENT LEAVE REGULATIONS, SO THAT SUCH EMPLOYEE, BEING UNDER A "DIFFERENT LEAVE SYSTEM" WITHIN THE MEANING OF SECTION 3 OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, IS ENTITLED UNDER THE PROVISIONS OF SUCH ACT TO A LUMP-SUM PAYMENT FOR THE ANNUAL LEAVE TO HIS CREDIT AT THE TIME OF RETIREMENT. AN EMPLOYEE WHO IS RETIRED FROM A PERMANENT POSITION AND IMMEDIATELY REEMPLOYED UNDER AN INDEFINITE APPOINTMENT IS TO BE REGARDED AS A "PERMANENT EMPLOYEE" FOR LEAVE PURPOSES AS SUCH TERM IS DEFINED IN SECTION 30.101 (B) OF THE CURRENT LEAVE REGULATIONS, SO THAT ANY LEAVE TO HIS CREDIT AT TIME OF RETIREMENT IS TRANSFERABLE TO HIS NEW APPOINTMENT UNDER THE PROVISIONS OF SECTION 30.409 OF SAID REGULATIONS, AND A LUMP-SUM PAYMENT FOR THE ANNUAL LEAVE TO HIS CREDIT ON THE DATE OF RETIREMENT IS NEITHER AUTHORIZED NOR REQUIRED. A RETIRED EMPLOYEE WHO IS SEPARATED FROM A TEMPORARY POSITION IN WHICH REEMPLOYED IS ENTITLED UNDER THE PROVISIONS OF THE ACT OF DECEMBER 21, 1944, TO A LUMP-SUM PAYMENT FOR ANY ANNUAL LEAVE TO HIS CREDIT AT THE TIME OF SEPARATION IN AN AMOUNT EQUAL TO THE COMPENSATION THAT HE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH LEAVE, THAT IS, THE GROSS COMPENSATION, LESS AN AMOUNT EQUAL TO HIS RETIREMENT ANNUITY ALLOCABLE TO THAT PERIOD WHICH IS REQUIRED BY SECTION 2 (B) OF THE ACT OF FEBRUARY 28, 1948, TO BE DEDUCTED FROM THE COMPENSATION OTHERWISE PAYABLE.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, NOVEMBER 3, 1948:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 28, 1948, REQUESTING DECISION UPON SEVERAL QUESTIONS BEARING UPON THE STATUS, FOR LEAVE PURPOSES, OF DR. R. R. ASHWORTH, FORMER DIRECTOR, BUREAU OF FOOD INSPECTION, HEALTH DEPARTMENT, DISTRICT OF COLUMBIA, WHO WAS RETIRED FOR AGE JULY 1, 1948, AND WHO WAS IMMEDIATELY REEMPLOYED IN THE SAME GRADE AND SALARY FOR NOT TO EXCEED SIX MONTHS--- THE QUESTIONS PRESENTED BEING STATED IN YOUR LETTER AS FOLLOWS:

1. IS HIS STATUS FOR LEAVE PURPOSES FOR THE PERIOD SUBSEQUENT TO JUNE 30, 1948, TO BE CONSIDERED TEMPORARY OR A CONTINUATION OF HIS PERMANENT STATUS PRIOR TO JULY 1, 1948?

2. SHOULD HE HAVE BEEN PAID IN A LUMP SUM FOR HIS ACCUMULATED AND ACCRUED LEAVE AS OF JUNE 30, 1948, SINCE HE REEMPLOYMENT WAS FOR A PERIOD NOT TO EXCEED 6 MONTHS?

3. IF THE ANSWER TO QUESTION 2 IS IN THE NEGATIVE, AT WHAT RATE SHOULD HIS ACCUMULATED AND ACCRUED LEAVE BE PAID WHEN HE IS FINALLY SEPARATED?

4. IF YOUR ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE, WOULD THE ANSWER BE DIFFERENT IF HIS REAPPOINTMENT WAS FOR AN INDEFINITE PERIOD?

5. IF YOUR ANSWER TO QUESTION 2 IS IN THE AFFIRMATIVE, AT WHAT RATE WILL HIS ACCRUED ANNUAL LEAVE BE PAID FOR THE PERIOD SUBSEQUENT TO JUNE 30, 1948?

DR. ASHWORTH'S RETIREMENT ON JULY 1, 1948, COMPLETELY SEVERED THE PERMANENT EMPLOYEE STATUS HE HAD PRIOR THERETO. THAT BEING SO, HIS REEMPLOYMENT FOR A PERIOD OF LESS THAN ONE YEAR CONSTITUTED HIM A TEMPORARY EMPLOYEE FOR LEAVE PURPOSES. SEE SECTION 30.101 (C) OF THE CURRENT LEAVE REGULATIONS. IT HAS BEEN HELD BY THIS OFFICE THAT EMPLOYEES OCCUPYING PERMANENT OR TEMPORARY POSITIONS ARE UNDER DIFFERENT LEAVE SYSTEMS; HENCE, DR. ASHWORTH SHOULD HAVE BEEN PAID A LUMP SUM FOR THE ANNUAL LEAVE TO HIS CREDIT JUNE 30, 1948. 26 COMP. GEN. 259.

HAD DR. ASHWORTH'S REEMPLOYMENT BEEN ACCOMPLISHED UNDER AN INDEFINITE APPOINTMENT--- THERE HAVING BEEN NO BREAK IN SERVICE--- HIS REEMPLOYMENT UPON THAT BASIS WOULD HAVE CONSTITUTED HIM A PERMANENT EMPLOYEE FOR LEAVE PURPOSES. SEE SECTON 30.101 (B) OF THE CURRENT LEAVE REGULATIONS. HENCE, ANY LEAVE TO HIS CREDIT WOULD HAVE BEEN TRANSFERABLE TO HIS NEW APPOINTMENT--- SEE SECTION 30.409 OF THE CURRENT LEAVE REGULATIONS--- AND NO LUMP SUM PAYMENT AS OF JUNE 30, 1948, WOULD HAVE BEEN AUTHORIZED OR REQUIRED. COMPARE SECTION 3 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, 846.

DR. ASHWORTH'S RIGHTS TO ANNUAL LEAVE DURING THE PERIOD OF REEMPLOYMENT WILL BE SUBJECT TO THE ANNUAL AND SICK LEAVE REGULATIONS APPLICABLE TO TEMPORARY EMPLOYEES. SECTION 1 OF THE LUMP-SUM PAYMENT SHALL EQUAL THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE. * * *" SECTION 2 OF THE ACT OF FEBRUARY 28, 1948, PUBLIC LAW 426, 62 STAT. 49, AMENDING SECTION 2 (B) OF THE ACT OF MAY 29, 1930, AS AMENDED, WITH RESPECT TO REEMPLOYMENT OF RETIRED EMPLOYEES, PROVIDES:

* * * THAT NO DEDUCTIONS FOR THE RETIREMENT FUND SHALL BE WITHHELD FROM THE SALARY, PAY, OR COMPENSATION OF SUCH PERSON, BUT THERE SHALL BE DEDUCTED FROM HIS SALARY, PAY, OR COMPENSATION OTHERWISE PAYABLE A SUM EQUAL TO THE RETIREMENT ANNUITY ALLOCABLE TO THE PERIOD OF ACTUAL EMPLOYMENT * * *.

IN VIEW OF THE ABOVE QUOTED STATUTORY PROVISIONS, UPON DR. ASHWORTH'S SEPARATION FROM HIS TEMPORARY POSITION THE LUMP-SUM PAYMENT FOR ANY ANNUAL LEAVE TO HIS CREDIT AT THAT TIME WOULD EQUAL THE COMPENSATION THAT HE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF HIS ANNUAL LEAVE, NAMELY THE GROSS COMPENSATION LESS THE AMOUNT OF HIS RETIREMENT ANNUITY ALLOCABLE TO THAT PERIOD.