B-156104, MAR. 8, 1965

B-156104, MAR. 8, 1965

TO MR. STANLEY J. TREASURE, INTERNAL REVENUE SERVICE, U.S. TREASURY DEPARTMENT:

YOUR LETTER OF JANUARY 29, 1965, REFERENCE F, TRANSMITTED HERE THROUGH THE FISCAL MANAGEMENT OFFICER, INTERNAL REVENUE SERVICE, REQUESTS OUR DECISION ON QUESTIONS CONCERNING THE PROPRIETY OF CERTAIN LUMP-SUM PAYMENTS FOR ANNUAL LEAVE, WHICH WE UNDERSTAND ARISE FROM VOUCHERS NOW BEFORE YOU FOR CERTIFICATION.

THE CIRCUMSTANCES UNDER WHICH THE QUESTIONS ARISE ARE STATED IN YOUR LETTER AS FOLLOWS:

"THE FPM SUPPLEMENT 990-1, BOOK III, PART 630, SECTION 630.208, REDUCTION IN LEAVE CREDITS, STATES THE FOLLOWING:

" "WHEN THE NUMBER OF HOURS OF NON-PAY STATUS IN A FULL-TIME EMPLOYEE'S LEAVE YEAR EQUALS THE NUMBER OF BASE-PAY HOURS IN A PAY PERIOD, THE AGENCY SHALL REDUCE HIS CREDITS FOR LEAVE BY AN AMOUNT EQUAL TO THE AMOUNT OF LEAVE THE EMPLOYEE EARNS DURING A PAY PERIOD.'

"WE HAVE BEEN UNABLE TO FIND ANY REGULATION SPECIFYING HOW THIS APPLIES TO AN EMPLOYEE WHO HAS MORE THAN ONE APPOINTMENT WITHIN A LEAVE YEAR.

"MRS. MARIAN C. SAWYER ENTERED ON DUTY WITH THE INTERNAL REVENUE SERVICE FEBRUARY 17, 1964. HER APPOINTMENT WAS TERMINATED APRIL 24, 1964, BEFORE HER 90-DAY WAITING PERIOD HAD BEEN FULFILLED. DURING THIS PERIOD OF TIME SHE ACCUMULATED 42 HOURS LEAVE WITHOUT PAY.

"MRS. SAWYER WAS RE-EMPLOYED TO A TEMPORARY-FULL-TIME APPOINTMENT JULY 6, 1964. SHE HAD ACCUMULATED 55 HOURS OF ADDITIONAL LEAVE WITHOUT PAY DURING THIS SECOND APPOINTMENT WHICH TERMINATED OCTOBER 30, 1964.

"DURING THE TWO APPOINTMENTS THE EMPLOYEE ACCUMULATED 97 HOURS LEAVE WITHOUT PAY, ALL WITHIN THE SAME CALENDAR YEAR.

"SINCE MRS. SAWYER HAD A BREAK IN SERVICE BETWEEN APPOINTMENTS IN EXCESS OF TWO MONTHS, ARE THE HOURS OF LEAVE WITHOUT PAY ACCUMULATED IN HER FIRST APPOINTMENT OF THE CALENDAR YEAR ADDED TO THE LEAVE WITHOUT PAY ACCUMULATED IN HER SECOND APPOINTMENT FOR DETERMINING HER LEAVE ACCRUALS IN THE SECOND APPOINTMENT. IF THE HOURS FROM THE FIRST APPOINTMENT APPLY, MRS. SAWYER SHOULD HAVE A CUT BACK OF ANNUAL AND SICK LEAVE ACCRUALS FOR ONE PAY PERIOD IN THE SECOND PERIOD OF TIME EMPLOYED. IF THE LEAVE WITHOUT PAY FROM THE FIRST APPOINTMENT IS NOT APPLICABLE TO HER SECOND APPOINTMENT, THERE SHOULD BE NO CUT BACK OF ANNUAL OR SICK LEAVE ACCRUALS.

"A SECOND EMPLOYEE, MRS. CELESTINE SMITH, HAD A VERY SIMILAR WORK HISTORY, EXCEPT THAT DURING HER FIRST APPOINTMENT (FEBRUARY 10, 1964, THROUGH JUNE 26, 1964) SHE COMPLETED HER 90-DAY WAITING PERIOD AND WAS ACCRUING ANNUAL LEAVE IN ADDITION TO SICK LEAVE. DURING THIS PERIOD OF TIME SHE ACCUMULATED 39 HOURS LEAVE WITHOUT PAY.

"DURING HER SECOND APPOINTMENT (JULY 6, 1964, THROUGH NOVEMBER 3, 1964) SHE ACCUMULATED 78 HOURS ADDITIONAL LEAVE WITHOUT PAY.

"THE ONLY DIFFERENCE BETWEEN THE CASES OF THESE TWO EMPLOYEES IS THAT THE FIRST EMPLOYEE, MRS. SAWYER, DID NOT ACCRUE ANNUAL LEAVE DURING HER FIRST APPOINTMENT SINCE SHE DID NOT COMPLETE THE 90-DAY WAITING PERIOD.

"THE INTERPRETATION OF THIS REGULATION AFFECTS THE TERMINAL LEAVE PAYMENT DUE THESE EMPLOYEES AND UPON RECEIPT OF YOUR DECISION, THE TERMINAL LEAVE PAYMENTS WILL BE ADJUSTED ACCORDINGLY.'

THE ABOVE-QUOTED REGULATION DOES NOT CLEARLY COVER THE FACTUAL SITUATIONS PRESENTED BY YOUR LETTER AND IN THE ABSENCE OF A SPECIFICALLY APPLICABLE REGULATION BY THE CIVIL SERVICE COMMISSION WE WOULD NOT BE REQUIRED TO REGARD THE LEAVE WITHOUT PAY IN THE CASE OF EITHER EMPLOYEE AS ACCUMULATING BEYOND THE PARTICULAR TEMPORARY APPOINTMENT IN WHICH IT WAS GRANTED.

THEREFORE, THE VOUCHERS, WHICH WERE NOT TRANSMITTED HERE, MAY BE CERTIFIED FOR PAYMENT FOR SUCH ANNUAL LEAVE AS MAY BE DUE ON THE DATES OF SEPARATION OR TERMINATION OF THE SEVERAL APPOINTMENTS WITHOUT REGARD IN THESE CASES FOR THE LEAVE WITHOUT PAY TAKEN.

WE ARE, HOWEVER, BRINGING THE MATTER TO THE ATTENTION OF THE UNITED STATES CIVIL SERVICE COMMISSION FOR SUCH CONSIDERATION AND PROSPECTIVE ACTION UNDER ITS REGULATORY AUTHORITY AS IT MAY DEEM APPROPRIATE.