B-98221, OCTOBER 10, 1950, 30 COMP. GEN. 150

B-98221, OCTOBER 10, 1950, 30 COMP. GEN. 150

LUMP-SUM LEAVE PAYMENTS - SEPARATION FROM ONE TEMPORARY POSITION AND REEMPLOYMENT IN ANOTHER WHERE AN EMPLOYEE RECEIVED A LUMP-SUM PAYMENT FOR HIS ACCUMULATED ANNUAL LEAVE DUE TO A BREAK IN SERVICE OCCURRING BETWEEN TEMPORARY POSITIONS IN THE SAME AGENCY OR TO AN INTERVENING PERIOD OF EMPLOYMENT NOT SUBJECT TO LEAVE REGULATIONS, SUCH EMPLOYEE, NOT BEING ENTITLED UNDER THE CURRENT ANNUAL AND SICK LEAVE REGULATIONS TO TRANSFER HIS ANNUAL LEAVE UNDER SUCH CIRCUMSTANCES, IS NOT REQUIRED TO REFUND THE LUMP-SUM PAYMENT FOR UNEXPIRED ANNUAL LEAVE AT THE TIME OF ENTERING ON DUTY IN THE SECOND TEMPORARY POSITION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, OCTOBER 10, 1950:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 20, 1950, REQUESTING DECISION WHETHER THE CERTIFYING OFFICER WILL BE REQUIRED TO EFFECT A REFUND COVERING THE UNEXPIRED PORTION OF ANNUAL LEAVE FOR WHICH LUMP SUM PAYMENTS WERE MADE IN CASES SIMILAR TO THE FOLLOWING:

MARY M. ALSTON ENTERED ON DUTY AS A SUPERVISOR'S CLERK AT THE RATE OF $9.60 PER DIEM, WAE, ON APRIL 28, 1949, LIMITED TO SEPTEMBER 30, 1949. HER SERVICES WERE TERMINATED ON SEPTEMBER 30, 1949, AND SHE WAS PAID A LUMP SUM PAYMENT FOR 100 HOURS OF ACCUMULATED ANNUAL LEAVE. SHE WAS REEMPLOYED ON OCTOBER 5, 1949, AT THE SAME RATE, LIMITED TO NOVEMBER 30, 1949, AND RESIGNED ON OCTOBER 21, 1949.

MILDRED P. ARNESON ENTERED ON DUTY AS A SUPERVISOR'S CLERK AT THE RATE OF $9.60 PER DIEM, WAE, ON APRIL 17, 1949, LIMITED TO SEPTEMBER 30, 1949. OCTOBER 1, 1949, HER APPOINTMENT WAS CHANGED TO AN ENUMERATOR AT $1.30 PER HOUR, WAE, WHICH POSITION WAS NOT SUBJECT TO LEAVE REGULATIONS. THEREFORE, SHE WAS PAID A LUMP SUM PAYMENT FOR 100 HOURS OF ACCUMULATED ANNUAL LEAVE. ON OCTOBER 16, 1949, SHE WAS CHARGED TO AN ENUMERATOR AT $10.47 PER DIEM, WAE, LIMITED TO DECEMBER 31, 1949, WHICH POSITION WAS SUBJECT TO LEAVE REGULATIONS.

IT APPEARS FROM YOUR SUBMISSION THAT ALL OF THE APPOINTMENTS INVOLVED CONSTITUTED TEMPORARY APPOINTMENTS. IN 27 COMP. GEN. 126 IT WAS HELD BY THIS OFFICE, QUOTING FROM THE SYLLABUS:

WHERE AN EMPLOYEE TRANSFERS FROM ONE TEMPORARY POSITION TO ANOTHER UNDER CONDITIONS FOR WHICH THE LEAVE REGULATIONS MAKE NO PROVISION FOR THE TRANSFER OF ACCRUED ANNUAL LEAVE AND THERE WOULD RESULT A FORFEITURE OF THE LEAVE, THE EMPLOYEE MAY BE REGARDED AS "SEPARATED FROM THE SERVICE" WITHIN THE MEANING OF THE LUMP-SUM LEAVE PAYMENT STATUTE OF DECEMBER 21, 1944, EVEN THOUGH THERE BE NO ACTUAL BREAK IN SERVICE, SO THAT A LUMP-SUM PAYMENT MAY BE MADE FOR THE LEAVE.

WHILE THE EXAMPLES QUOTED ABOVE INVOLVE TEMPORARY APPOINTMENTS IN THE SAME AGENCY IT DOES NOT APPEAR THAT SUCH APPOINTMENTS WERE CONTINUOUS SO AS TO BE REGARDED AS ONE PERIOD OF TEMPORARY EMPLOYMENT FOR THE PURPOSE OF TRANSFER OF ANNUAL LEAVE. SEE 20 COMP. GEN. 661; 21 ID. 101. THAT IS TO SAY, A BREAK IN SERVICE ACTUALLY OCCURRED BETWEEN THE APPOINTMENTS REFERRED TO IN BOTH EXAMPLES, THE INTERVENING PERIOD OF EMPLOYMENT IN THE SECOND EXAMPLE NOT BEING MATERIAL SINCE THE LEAVE REGULATIONS WERE NOT APPLICABLE THERETO.

ACCORDINGLY, AS THE CURRENT LEAVE REGULATIONS MAKE NO PROVISION FOR THE TRANSFER OF ANNUAL LEAVE UNDER THE CIRCUMSTANCES RELATED, THE PRINCIPLE SET FORTH IN THE DECISION IN 27 COMP. GEN. 126 IS FOR APPLICATION AND NO REFUNDS OF LUMP-SUM LEAVE PAYMENTS SHOULD BE REQUIRED.