B-116314, B-117272, SEPTEMBER 22, 1969, 49 COMP. GEN. 189

B-116314, B-117272, SEPTEMBER 22, 1969, 49 COMP. GEN. 189

LEAVES OF ABSENCE -- ANNUAL -- TRANSFERS -- DIFFERENT LEAVE SYSTEM WHEN AN EMPLOYEE WHO CARRIED HIS LEAVE CREDIT WITH HIM UPON TRANSFER TO A POSITION UNDER ANOTHER LEAVE SYSTEM RETURNS TO A POSITION SUBJECT TO THE LEAVE SYSTEM IN WHICH THE TRANSFERRED LEAVE WAS EARNED, THE RETRANSFER MAY BE REGARDED AS A SEPARATION FOR LUMP-SUM LEAVE PAYMENT PURPOSES AND THE EMPLOYEE COMPENSATED FOR THE ANNUAL LEAVE, SUBJECT TO SUCH LIMITATIONS AS ARE APPLICABLE TO THE POSITION FROM WHICH HE TRANSFERS, WHICH IS THE RULE APPLICABLE TO TRANSFERS FROM A POSITION SUBJECT TO AN ANNUAL LEAVE SYSTEM TO A POSITION THAT HAS NO SYSTEM TO WHICH THE ANNUAL LEAVE CAN BE TRANSFERRED, AND SECTION 630.501(D) OF THE CIVIL SERVICE REGULATIONS MAY BE DISCONTINUED. LEAVES OF ABSENCE - ADJUSTMENTS -- TRANSFERS BETWEEN DIFFERENT LEAVE SYSTEMS AN EMPLOYEE WHO PRIOR TO THE RULING IN 48 COMP. GEN. 212, DATED OCTOBER 18, 1968, TRANSFERRED TO A DIFFERENT LEAVE SYSTEM TO WHICH HE WAS ALLOWED TO TRANSFER ONLY A PART OF HIS ANNUAL LEAVE IS ENTITLED TO THE TRANSFER OF ANY UNTRANSFERRED LEAVE WITH A CORRESPONDING ADJUSTMENT IN HIS LEAVE CEILING, WHICH IS TO BE DETERMINED IN ACCORDANCE WITH THE OCTOBER 18, 1968 DECISION, OR TO RECEIVE A LUMP-SUM PAYMENT FOR THE UNTRANSFERRED LEAVE AT THE TIME HE IS SEPARATED FROM THE SERVICE, SUBJECT TO APPLICABLE STATUTORY REGULATIONS. LEAVES OF ABSENCE -- LUMP SUM PAYMENTS -- ADDITIONAL AMOUNTS -- TRANSFERS BETWEEN DIFFERENT LEAVE SYSTEMS THE ENTITLEMENT OF FEDERAL EMPLOYEES TO AN ADDITIONAL LUMP-SUM PAYMENT FOR THE ANNUAL LEAVE THEY WERE NOT PERMITTED TO TRANSFER EITHER IN PART OR NOT AT ALL FROM ONE LEAVE SYSTEM TO ANOTHER UPON TRANSFERRING POSITIONS IS FOR DETERMINATION ON AN INDIVIDUAL CASE BASIS AND ANY CLAIM FOR PAYMENT MAY BE TRANSMITTED TO THE UNITED STATES GENERAL ACCOUNTING OFFICE FOR CONSIDERATION AND DIRECT SETTLEMENT.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 22, 1969:

WE REFER TO YOUR LETTER OF SEPTEMBER 4, 1969, WHEREIN YOU INDICATE THAT OUR ANSWERS TO FOUR QUESTIONS ARISING OUT OF OUR DECISION OF OCTOBER 18, 1968, 48 COMP. GEN. 212, ARE NECESSARY TO ENABLE THE COMMISSION TO DETERMINE WHAT CHANGES ARE APPROPRIATE IN THE COMMISSION'S LEAVE REGULATIONS.

IN OUR DECISION OF OCTOBER 18, 1968, WE HELD THAT AN EMPLOYEE TRANSFERRING FROM A POSITION SUBJECT TO A LEAVE SYSTEM TO A POSITION SUBJECT TO A DIFFERENT LEAVE SYSTEM MAY TRANSFER ALL OF THE ACCUMULATED AND CURRENTLY ACCRUED ANNUAL LEAVE TO HIS CREDIT AS OF THE DATE OF SUCH TRANSFER EVEN THOUGH THE AMOUNT THEREOF MAY BE IN EXCESS OF THE ANNUAL LEAVE CEILINGS APPLICABLE GENERALLY TO THE LEAVE SYSTEM TO WHICH HE TRANSFERS.

YOUR SPECIFIC QUESTIONS ARE AS FOLLOWS:

(1) UNDER SECTION 630.501(D) OF THE COMMISSION'S REGULATIONS, AN EMPLOYEE WHO TRANSFERS TO A POSITION NOT UNDER AN ANNUAL LEAVE SYSTEM IS ENTITLED TO A RECREDIT OF ANY UNTRANSFERRED LEAVE IF HE RETURNS TO THE LEAVE SYSTEM UNDER WHICH IT WAS EARNED. AT THE TIME THIS REGULATION WAS ORIGINALLY ISSUED IT APPEARED TO BE THE ONLY PROTECTION THE COMMISSION'S REGULATIONS COULD PROVIDE IN THAT SITUATION. IS THIS REGULATION STILL NECESSARY, OR MAY AN EMPLOYEE BE GIVEN A LUMP-SUM PAYMENT AT THE TIME OF TRANSFER? IT CANNOT BE GIVEN AT THAT TIME, IS HE ENTITLED TO LUMP-SUM PAYMENT FOR THE LEAVE IF HE IS FINALLY SEPARATED WITHOUT RETURNING TO THE LEAVE SYSTEM UNDER WHICH IT WAS EARNED?

(2) IF A LUMP-SUM PAYMENT IS ALLOWED BY YOUR DECISION REGARDING QUESTIONS (1), WOULD SUCH A DECISION BE RETROACTIVE TO PROTECT THOSE EMPLOYEES WHO HAVE ALREADY TRANSFERRED TO A POSITION NOT UNDER AN ANNUAL LEAVE SYSTEM?

(3) MAY AN EMPLOYEE WHO, PRIOR TO YOUR DECISION OF OCTOBER 18, 1968, B- 116314, B-117272, TRANSFERRED TO A DIFFERENT LEAVE SYSTEM TO WHICH HE WAS ALLOWED TO TRANSFER ONLY A PART OF HIS ANNUAL LEAVE

(A) TRANSFER ANY UNTRANSFERRED LEAVE WITH A CORRESPONDING ADJUSTMENT IN HIS LEAVE CEILING; OR

(B) RECEIVE A LUMP-SUM PAYMENT FOR THE UNTRANSFERRED LEAVE AT THE TIME HE SEPARATES FROM FEDERAL SERVICE?

(4) IF A FORMER FEDERAL EMPLOYEE TRANSFERRED FROM ONE LEAVE SYSTEM TO ANOTHER (EITHER TO A LEAVE SYSTEM TO WHICH HE WAS ALLOWED TO TRANSFER ONLY A PART OF HIS ANNUAL LEAVE OR TO A POSITION NOT UNDER AN ANNUAL LEAVE SYSTEM) AND WAS SUBSEQUENTLY SEPARATED FROM THE FEDERAL SERVICE, IS HE ENTITLED TO A LUMP-SUM PAYMENT FOR THE UNTRANSFERRED LEAVE?

CONCERNING YOUR FIRST QUESTION, THE CURRENT REGULATION OF THE COMMISSION- -630.501(D)--IS CONSISTENT WITH THE HOLDING IN OUR DECISION 33 COMP. GEN. 209 (1953)--QUESTION 3(B). HOWEVER, WITHOUT SPECIFICALLY MODIFYING 33 COMP. GEN. 209, SUBSEQUENT DECISIONS HELD THAT WHEN AN EMPLOYEE TRANSFERS FROM A POSITION SUBJECT TO AN ANNUAL LEAVE SYSTEM TO A POSITION THAT HAS NO SUCH SYSTEM TO WHICH HIS ANNUAL LEAVE MAY BE TRANSFERRED THEN SUCH TRANSFER MAY BE REGARDED AS A SEPARATION FOR LUMP SUM LEAVE PAYMENT PURPOSES AND THE EMPLOYEE MAY BE COMPENSATED FOR THE ANNUAL LEAVE TO HIS CREDIT AT THAT TIME, SUBJECT TO SUCH LIMITATIONS AS ARE APPLICABLE TO THE POSITION FROM WHICH HE TRANSFERS. SEE 33 COMP. GEN. 622 (1954) AND UNPUBLISHED DECISION DATED MAY 21, 1969, B-166640. CF. 33 COMP. GEN. 85 (1953). ACCORDINGLY, WE ARE AWARE OF NO NECESSITY FOR CONTINUATION IN THE COMMISSION'S REGULATIONS OF SECTION 630.501(D).

SINCE THE ANSWER TO QUESTION NO. 1 MERELY AFFIRMS THE PRINCIPLE ENUNCIATED IN CERTAIN PRIOR OFFICE DECISIONS WHICH REPRESENTED A DEPARTURE FROM THE HOLDING IN 33 COMP. GEN. 209, THE QUESTION OF RETROACTIVITY DOES NOT APPEAR MATERIAL. QUESTION NO. 2 IS ANSWERED ACCORDINGLY.

QUESTION NO. 3 (BOTH PARTS) ARE ANSWERED IN THE AFFIRMATIVE. WE NOTE THAT UPON THE EMPLOYEE'S SUBSEQUENT SEPARATION FROM THE POSITION TO WHICH HE TRANSFERS HE WOULD BE ENTITLED TO PAYMENT FOR THE ANNUAL LEAVE THEN TO HIS CREDIT SUBJECT TO APPLICABLE STATUTORY LIMITATIONS (HIS ANNUAL LEAVE CEILING BEING FOR DETERMINATION IN ACCORDANCE WITH THE OCTOBER 18, 1968 DECISION).

PURSUANT TO AN INFORMAL UNDERSTANDING WITH A REPRESENTATIVE OF YOUR STAFF, NO DECISION IS BEING RENDERED UPON THE FOURTH QUESTION BEING PRESENTED IN YOUR LETTER, IT BEING DEEMED APPROPRIATE TO CONSIDER CLAIMS OF FORMER EMPLOYEES FOR ADDITIONAL LUMP-SUM LEAVE PAYMENTS ON AN INDIVIDUAL CASE BASIS. ANY SUCH CLAIMS MAY BE TRANSMITTED HERE FOR CONSIDERATION AND DIRECT SETTLEMENT.