B-57538, MAY 22, 1946, 25 COMP. GEN. 796

B-57538, MAY 22, 1946, 25 COMP. GEN. 796

PART TIME EMPLOYEES - LEAVES OF ABSENCE; INCREASE IN COMPENSATION LIMITATION AN EMPLOYEE APPOINTED TO AN EXCEPTED POSITION UNDER CIVIL SERVICE SCHEDULE A-1-6 FOR "NOT TO EXCEED 20 WORKING DAYS PER MONTH" AND COMPENSATED AT LESS THAN FULL TIME RATES, IS TO BE CONSIDERED AS A PART TIME OR INTERMITTENT EMPLOYEE WITHIN THE MEANING OF SECTION 6.1 (E) OF THE ANNUAL AND SICK LEAVE REGULATIONS AND AS SUCH IS NOT ENTITLED TO LEAVE UNDER THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, NOTWITHSTANDING THE FACT THAT THE 20 WORKING DAYS PERMITTED ACTUALLY CONSTITUTED EVERY WORKING DAY IN A PARTICULAR MONTH. WHERE A PART TIME EMPLOYEE'S SERVICES WERE TERMINATED WHEN HER COMPENSATION APPROACHED THE LIMITATION OF "$540 PER SERVICE YEAR" PRESCRIBED IN HER EXCEPTED APPOINTMENT UNDER CIVIL SERVICE SCHEDULE A-1 6, THE EMPLOYEE MAY NOT BE PAID ANY AMOUNT OVER AND ABOVE THE AMOUNT HERETOFORE PAID IN FULL FOR THE SERVICE PREVIOUSLY RENDERED UNDER HER APPOINTMENT, BY REASON OF THE FACT THAT THE MAXIMUM PER ANNUM RATE OF $540 FOR SUCH EMPLOYMENT WAS INCREASED TO $648 PER SERVICE YEAR BY EXECUTIVE ORDER NO. 9653 ISSUED SUBSEQUENT TO HER APPOINTMENT BUT PRIOR TO THE TERMINATION OF HER SERVICES.

COMPTROLLER GENERAL WARREN TO W. R. FRANCE, DEPARTMENT OF AGRICULTURE, MAY 22, 1946:

I HAVE YOUR LETTER OF APRIL 24, 1946, AS FOLLOWS:

THE ATTACHED PAYROLL NO. 22794, PURPORTING TO PAY GERTRUDE L. CLOANINGER, $16.38 FOR LUMP SUM LEAVE HAS BEEN SUBMITTED TO ME FOR CERTIFICATION. PLEASE ADVISE ME IF UNDER THE CONDITIONS STATED I MAY LEGALLY DO SO.

MRS. CLOANINGER WAS EMPLOYED, UNDER LETTER OF AUTHORIZATION APPOINTMENT OCTOBER 1, 1945 AS CLERK-TYPIST, CAF-2, $6.5538461 PER DAY WITH LIMITATIONS OF 20 WORKING DAYS PER MONTH OR $540.00 PER SERVICE YEAR. OF THE CLOSE OF BUSINESS FEBRUARY 14, 1946, THE EMPLOYEE HAD EARNED $537.46 AND AS OF THAT DATE HER APPOINTMENT WAS TERMINATED. THE ADMINISTRATIVE OFFICER NOW PROPOSES TO PAY MRS. CLOANINGER FOR 2 1/2 DAYS EARNED LEAVE (COPIES OF EMPLOYMENT AND SEPARATION NOTICES ARE ATTACHED).

ALTHOUGH EXECUTIVE ORDER 9653 DATED NOVEMBER 1, 1945 RAISES THE LIMITATION FROM $540 TO $648 PER SERVICE YEAR THERE IS SOME DOUBT AS TO WHETHER EMPLOYEES APPOINTED UNDER LETTER OF AUTHORITY UNDER SCHEDULE A-1-6 ARE ENTITLED TO SICK OR ANNUAL LEAVE AND THAT IN THE ABSENCE OF A CHANGE IN THE APPOINTMENT TO A MAXIMUM OF $648, WHETHER $540 AS SHOWN COULD BE EXCEEDED. PAGE 493 OF THE CIVIL SERVICE RULES AND REGULATIONS READS IN PART AS FOLLOWS:

"EMPLOYEES APPOINTED FOR SERVICE LIMITED TO DEFINITE PORTIONS OF EACH DAY, WEEK, OR MONTH, WHO PERFORM SERVICE IN ACCORDANCE WITH SUCH APPOINTMENTS, ARE TO BE CONSIDERED PART-TIME EMPLOYEES UNDER THE ANNUAL AND SICK LEAVE REGULATIONS, AND NOT ENTITLED TO LEAVE UNDER THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162, RESPECTIVELY (18 COMP. GEN. 457, NOVEMBER 17, 1938).

"EMPLOYEES WHOSE APPOINTMENTS DO NOT CALL FOR FULL-TIME SERVICE, AND WHO ARE NOT PAID FULL-TIME SALARY RATES, MUST BE CONSIDERED PART-TIME EMPLOYEES AND AS SUCH NOT ENTITLED TO ANNUAL LEAVE UNDER THE ACT OF MARCH 14, 1936, 49 STAT. 1161, AND APPLICABLE STANDARDIZED ANNUAL LEAVE REGULATIONS, NOTWITHSTANDING THEY MAY WORK OR BE AVAILABLE FOR WORK A GREATER AMOUNT OF TIME DURING A YEAR THAN A FULL-TIME EMPLOYEE WHEN THERE IS DEDUCTED THE STATUTORY LEAVE DURING WHICH FULL-TIME EMPLOYEES ARE AUTHORIZED TO BE ABSENT FROM DUTY OR THAT THEY MAY WORK THE FULL PERCENTAGE OF TIME FOR PERIOD OF 30 DAYS OR MORE (18 COMP. GEN. 1001, JUNE 29, 1939).'

IN CONSIDERING THIS CASE WE RESPECTIVELY REQUEST YOUR REPLY TO THE FOLLOWING QUESTIONS:

1. DOES AN EMPLOYEE APPOINTED UNDER LETTER OF AUTHORITY UNDER SCHEDULE A- 1-6 WITH A LIMITATION "NOT TO EXCEED 20 WORKING DAYS PER MONTH" EARN SICK OR ANNUAL LEAVE IF THE 20 WORKING DAYS PERMITTED ACTUALLY CONSTITUTE EVERY WORKING DAY IN A PARTICULAR MONTH? OUR QUESTION ON THIS POINT ARISES IN VIEW OF YOUR DECISIONS 18 COMP. GEN. 457, 1001.

2. IF SUCH EMPLOYEE DOES EARN ANNUAL LEAVE IS IT PERMISSIBLE TO MAKE A LUMP SUM PAYMENT FOR ANNUAL LEAVE IF SUCH PAYMENT CAUSES THE TOTAL COMPENSATION TO EXCEED THE LIMITATION OF "$540 PER SERVICE YEAR" AS SPECIFIED IN THE APPOINTMENT (COPY ATTACHED).

3. IF YOUR ANSWER TO QUESTION 2 IS IN THE NEGATIVE, MAY PAYMENT BE MADE UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 9653 OF NOVEMBER 1, 1945 WHICH INCREASED THE MAXIMUM AMOUNT ALLOWABLE FOR THIS TYPE OF EMPLOYMENT TO $648 ALTHOUGH NO CHANGE IN THE APPOINTMENT PAPERS WAS MADE TO INDICATE THIS NEW MAXIMUM. OF COURSE, THE ONLY REASON FOR THE INCLUSION OF THE $540 IN THIS APPOINTMENT AND IN ALL OTHER SIMILAR ONES WAS THAT $540 WAS MAXIMUM FORMERLY ALLOWED BY SCHEDULE A-1-6.

CIVIL SERVICE SCHEDULE A-1-6, LISTING POSITIONS EXCEPTED FROM EXAMINATION UNDER SECTION 3, CIVIL SERVICE RULE II, CITED AS AUTHORITY FOR THE APPOINTMENT IN THIS CASE PROVIDES, IN PERTINENT PART, AS FOLLOWS:

6. ANY PERSON RECEIVING FROM ONE DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT FOR HIS PERSONAL SALARY COMPENSATION AGGREGATING NOT MORE THAN $648 PER ANNUM WHOSE DUTIES REQUIRE ONLY A PORTION OF HIS TIME, OR WHOSE SERVICES ARE NEEDED FOR VERY BRIEF PERIODS AT INTERVALS, PROVIDED THAT EMPLOYMENT UNDER THIS PROVISION SHALL NOT BE FOR JOB WORK SUCH AS CONTEMPLATED IN SECTION 4 OF RULE VIII. * * *

SECTION 6.1 OF THE REVISION OF ANNUAL AND SICK LEAVE LAWS AND REGULATIONS EFFECTIVE JANUARY 1, 1945, PROVIDES:

THESE REGULATIONS SHALL NOT APPLY TO:

(E) EMPLOYEES NOT REQUIRED TO BE CONTINUOUSLY EMPLOYED DURING REGULAR TOUR OF DUTY, SUCH AS (1) PER DIEM OR PER HOUR EMPLOYEES ENGAGED IN AN EMERGENCY WHO MAY BE EMPLOYED FOR MORE THAN ONE 7- OR 8 HOUR SHIFT WITHIN 24 HOURS DURING THE EMERGENCY; (2) PART-TIME OR INTERMITTENT EMPLOYEES * *

AS INDICATED IN THE DECISIONS OF THIS OFFICE CITED IN YOUR SUBMISSION, 18 COMP. GEN. 457, AND 1001, EMPLOYEES APPOINTED TO POSITIONS WHICH DO NOT CALL FOR FULL-TIME SERVICE AND WHO ARE NOT PAID FULL-TIME RATES ARE CONSIDERED PART-TIME EMPLOYEES AND ARE NOT ENTITLED TO ANNUAL AND SICK LEAVE. SCHEDULE A-1-6 OF THE CIVIL SERVICE RULES AND REGULATIONS, SUPRA, PRESCRIBES THE CONDITIONS UNDER WHICH APPOINTMENTS UNDER THAT EXCEPTION TO THE CIVIL SERVICE RULES AND REGULATIONS MAY BE MADE. AS THIS EMPLOYEE WAS APPOINTED UNDER THAT SCHEDULE IT MUST BE PRESUMED THAT THE CONDITIONS UNDER WHICH EMPLOYED WERE IN ACCORDANCE WITH THE PROVISIONS OF SUCH SCHEDULE. ACCORDINGLY, THE INVOLVED EMPLOYEE MUST BE CONSIDERED AS A PART -TIME OR INTERMITTENT EMPLOYEE AND AS SUCH IS NOT ENTITLED TO LEAVE OR TO PAYMENT THEREFOR. QUESTION 1 IS ANSWERED IN THE NEGATIVE, THUS RENDERING UNNECESSARY ANY ANSWER TO QUESTION 2.

AS YOU STATE THAT THIS EMPLOYEE'S SERVICES HAVE BEEN TERMINATED THERE WOULD BE NO AUTHORITY FOR THE PAYMENT TO HER OF ANY ADDITIONAL AMOUNT OVER AND ABOVE THE AMOUNT HERETOFORE PAID IN FULL FOR THE SERVICES PREVIOUSLY RENDERED UNDER HER APPOINTMENT PAPERS. UPON THE PRESENT RECORD QUESTION 3 IS ANSWERED IN THE NEGATIVE.

THE PAY ROLL VOUCHER FORWARDED WITH YOUR SUBMISSION IS RETURNED HEREWITH.