A-43732, AUGUST 5, 1932, 12 COMP. GEN. 187

A-43732, AUGUST 5, 1932, 12 COMP. GEN. 187

ECONOMY ACT - LEGISLATIVE AND ADMINISTRATIVE FURLOUGH - QUARTERS IN KIND WHETHER COMPENSATION IS FIXED ON A PER DIEM OR ON A PER ANNUM BASIS, DEDUCTIONS FOR LEGISLATIVE FURLOUGHS OR PERCENTAGE REDUCTIONS IN COMPENSATION REQUIRED BY THE ECONOMY ACT ARE TO BE BASED ON THE TOTAL SALARY RATE, INCLUDING THE CASH PAID PLUS THE DETERMINED VALUE OF ALLOWANCES FURNISHED IN KIND, WHICH VALUE IS REQUIRED TO BE CONSIDERED AS PART OF "COMPENSATION" UNDER THE TERMS OF THE ACT OF MARCH 5, 1928, 45 STAT. 193. AN EMPLOYEE ON ADMINISTRATIVE FURLOUGH WITHOUT PAY SHOULD BE CHARGED THE FULL DETERMINED VALUE OF GOVERNMENT QUARTERS OCCUPIED FOR THE PERIOD OF SUCH FURLOUGH. IF ADMINISTRATIVE REGULATIONS IN FORCE PRIOR TO JULY 1, 1932, REQUIRED THAT THE DETERMINED VALUE OF GOVERNMENT QUARTERS MAINTAINED FOR AN EMPLOYEE BE CHARGED AGAINST HIS SALARY, EVEN THOUGH HE DID NOT OCCUPY THE QUARTERS, AN EMPLOYEE ON LEGISLATIVE FURLOUGH, FROM WHOSE COMPENSATION THERE ALREADY WOULD BE DEDUCTED AND IMPOUNDED 8 1/3 PERCENT OF THE DETERMINED VALUE OF QUARTERS IN THE TOTAL DEDUCTION BASED ON THE TOTAL SALARY RATE FOR THE POSITION, SHOULD BE CHARGED THE REMAINDER OF THE DETERMINED VALUE OF THE QUARTERS OCCUPIED, OR 91 2/3 PERCENT THEREOF. A SYSTEM OF STAGGER EMPLOYMENT OF REGULAR EMPLOYEES ON A PART-TIME BASIS, DUE TO REDUCTION IN APPROPRIATIONS, FOLLOWS OUT THE PURPOSE AND INTENT OF SECTION 216 OF THE ECONOMY ACT, AND IF NO ADDITIONAL POSITIONS ARE CREATED OR ADDITIONAL EMPLOYEES PLACED ON THE ROLLS, THERE IS NO VIOLATION OF THE PROVISIONS OF SECTION 203 OF THE ECONOMY ACT RESTRICTING THE FILLING OF VACANCIES. AN EMPLOYEE WHO TAKES THE ENTIRE MONTH OF JULY ON LEGISLATIVE FURLOUGH, WHICH CONTAINS ONLY 22 1/2 WORKING DAYS, MAY NOT BE ALLOWED 1 1/2 ADDITIONAL FURLOUGH DAYS WITHOUT FURTHER DEDUCTIONS FROM COMPENSATION. (MODIFIED BY 12 COMP. GEN. 398.)

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, AUGUST 5, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 28, 1932, PRESENTING FOR DECISION A NUMBER OF QUESTIONS ARISING UNDER THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 399. THE QUESTIONS WILL BE STATED AND ANSWERED IN THE ORDER APPEARING IN YOUR LETTER.

(1) WHAT IS THE EFFECT ON THE COMPENSATION OF CIVILIAN EMPLOYEES OF THE ENGINEER DEPARTMENT AT LARGE WHO ARE FURNISHED ALLOWANCES UNDER THE PROVISIONS OF SECTION 3 OF THE ACT OF MARCH 2, 1926, AND FROM WHOSE TOTAL COMPENSATION DEDUCTIONS ARE MADE TO COVER THE VALUATION OF SUCH ALLOWANCES? ACCORDING TO DECISION OF THE COMPTROLLER GENERAL DATED JUNE 3, 1926, INTERPRETING THE SUBSISTENCE EXPENSE ACT, THE TOTAL SALARY RATE OF AN EMPLOYEE, INCLUDING BOTH THE CASH AND THE DETERMINED VALUE OF THE ALLOWANCES FURNISHED IN KIND, IS TO BE REGARDED AS THE COMPENSATION FOR THE POSITION FOR ALL PURPOSES, INCLUDING THE BASIS ON WHICH RETIREMENT DEDUCTIONS ARE TO BE MADE. SECTION 104 (B) OF THE ECONOMY ACT DEFINES THE TERM "COMPENSATION" AS USED IN THAT ACT AS "ANY SALARY, PAY, WAGE, ALLOWANCES (EXCEPT ALLOWANCES FOR SUBSISTENCE, QUARTERS, HEAT, LIGHT, AND TRAVEL) OR OTHER EMOLUMENT PAID FOR SERVICES RENDERED IN ANY CIVILIAN OR NONCIVILIAN OFFICE.' SHALL THE TOTAL COMPENSATION INCLUDING VALUATION OF ALLOWANCES BE REGARDED AS THE COMPENSATION OF CIVILIAN POSITIONS IN THE ENGINEER DEPARTMENT AT LARGE FOR THE PURPOSE OF APPLYING THE PROVISIONS OF THE ECONOMY ACT, OR IN VIEW OF SECTION 104 (B) SHALL THE NET CASH COMPENSATION PAID, AFTER DEDUCTION HAS BEEN MADE FOR SUBSISTENCE AND QUARTERS BE REGARDED AS THE COMPENSATION OF THE POSITION FOR THE PURPOSE OF APPLYING THE PROVISIONS OF THE ACT? FOR EXAMPLE, AN EMPLOYEE NOW RECEIVES A TOTAL COMPENSATION OF $2,700 PER ANNUM, FROM WHICH $500 PER ANNUM IS DEDUCTED TO COVER THE VALUATION OF SUBSISTENCE AND QUARTERS ($300 FOR SUBSISTENCE AND $200 FOR QUARTERS). SHALL THE DEDUCTION MADE IN CONNECTION WITH THE APPLICATION OF THE FURLOUGH PLAN BE MADE FROM THE RATE OF $2,700 PER ANNUM OR FROM THE CASH RATE OF $2,200 PER ANNUM?

(2) THE REGULATIONS OF THE ENGINEER DEPARTMENT PROVIDE THAT WHERE THE COMPENSATION OF THE EMPLOYEE IS FIXED AT A PER DIEM RATE, HIS CLASSIFICATION FOR THE DETERMINATION OF THE VALUATION OF ALLOWANCES FURNISHED HIM WILL BE ESTABLISHED BY ASSIGNING HIM AN ANNUAL RATE OBTAINED BY MULTIPLYING THE CASH PER DIEM RATE BY 313 IF EMPLOYED ON A 313-DAY YEAR BASIS, OR BY 365 IF EMPLOYED ON A 365-DAY YEAR BASIS. BY APPLICATION OF THESE REGULATIONS TO THE CASE OF AN EMPLOYEE WHOSE TOTAL COMPENSATION WAS AT THE RATE OF $3.80 PER DIEM PRIOR TO JULY 1, 1932, THE DEDUCTION TO BE MADE FOR VALUATION OF QUARTERS WOULD BE FOUND TO BE $120 PER ANNUM. ACCORDINGLY, AND IN ACCORDANCE WITH RULING OF THE COMPTROLLER GENERAL DATED DECEMBER 14, 1931 (A-39699), DEDUCTIONS WERE MADE EACH MONTH FROM THE COMPENSATION OF THIS PER DIEM EMPLOYEE OF $25 PER MONTH FOR SUBSISTENCE AND $10 PER MONTH FOR QUARTERS, IRRESPECTIVE OF THE NUMBER OF DAYS WORKED DURING THE PAST PERIOD.

SHALL THE TOTAL DAILY RATE PAID THIS EMPLOYEE PRIOR TO JULY 1, 1932, INCLUDING VALUATION OF ALLOWANCES, BE REGARDED AS HIS COMPENSATION FOR PURPOSES OF APPLYING THE PROVISIONS OF THE ECONOMY ACT, OR SHALL THE NET COMPENSATION PAID, AFTER DEDUCTION HAS BEEN MADE FOR SUBSISTENCE AND QUARTERS, BE REGARDED AS THE COMPENSATION OF THE POSITION FOR THE PURPOSE OF APPLYING THE PROVISIONS OF THE ACT?

IF NET COMPENSATION EXCLUSIVE OF SUBSISTENCE AND QUARTERS IS THE BASIS, SHALL THE TOTAL DAILY RATE IN EFFECT ON JUNE 30, 1932, MINUS 1/30 OF THE MONTHLY RATE OF VALUATION FOR SUBSISTENCE AND QUARTERS, BE TAKEN AS THE CASH RATE TO BE REGARDED AS COMPENSATION IN APPLYING THE PROVISIONS OF THE ECONOMY ACT?

WHETHER COMPENSATION IS FIXED ON A PER DIEM OR ON A PER ANNUM BASIS,DEDUCTIONS FOR LEGISLATIVE FURLOUGHS OR PERCENTAGE REDUCTIONS IN COMPENSATION, REQUIRED BY THE ECONOMY ACT, ARE TO BE BASED ON THE TOTAL SALARY RATE, INCLUDING THE CASH PAID PLUS THE DETERMINED VALUE OF ALLOWANCES FURNISHED IN KIND, WHICH VALUE IS REQUIRED TO BE CONSIDERED AS PART OF "COMPENSATION" UNDER THE TERMS OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, WHICH MADE PERMANENT THE PROVISIONS OF SECTION 3 OF THE ACT OF MARCH 2, 1926, 44 STAT. 161, EFFECTIVE ONLY DURING ONE FISCAL YEAR, TO WHICH YOU REFER. SEE DECISION OF JULY 23, 1932, TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, A-43425, 12 COMP. GEN. 105, AND DECISION OF JULY 30, 1932, A-43525, 12 COMP. GEN. 142, TO THE ATTORNEY GENERAL. HENCE, IN THE EXAMPLE STATED IN YOUR QUESTION (1), THE ECONOMY ACT DEDUCTION SHOULD BE BASED ON $27,000 PER ANNUM, AND IN THE EXAMPLE STATED IN QUESTION (2), ON THE RATE OF $3.80 PER DIEM, THE PER ANNUM EQUIVALENT RATE BEING IN EXCESS OF $1,000.

(3) IN THE EVENT THE TOTAL COMPENSATION, INCLUDING VALUATION OF SUBSISTENCE AND QUARTERS, IS TO BE REGARDED AS COMPENSATION FOR THE PURPOSE OF APPLYING THE PROVISIONS OF THE ECONOMY ACT, A RULING IS REQUESTED AS TO ACTION TO BE TAKEN IN THE SITUATION DESCRIBED BELOW:

UNDER EXISTING RULES AND PRACTICE AN EMPLOYEE ON ANNUAL LEAVE HAS BEEN CHARGED, PRIOR TO THE FISCAL YEAR 1933, WITH THE DETERMINED VALUE OF QUARTERS MAINTAINED FOR HIM ON GOVERNMENT PLANT EVEN THOUGH HE DID NOT OCCUPY THOSE QUARTERS. IF THIS SAME RULE IS NOW APPLIED TO CASES WHERE AN EMPLOYEE IS ON ADMINISTRATIVE FURLOUGH WITHOUT PAY FOR AN ENTIRE PAY PERIOD, THIS WILL RESULT IN THE EMPLOYEE ACTUALLY OWING THE GOVERNMENT THE VALUE OF THE QUARTERS FOR A PERIOD DURING WHICH HE RECEIVED NO COMPENSATION WHATEVER FROM THE GOVERNMENT. ANY EMPLOYEE, WHETHER HE TAKES HIS FURLOUGH WITHOUT PAY IN A ONE-MONTH PERIOD OR INTERMITTENTLY THROUGHOUT THE YEAR, WILL HAVE HAD MADE FROM HIS COMPENSATION DURING THE FISCAL YEAR NOT ONLY THE DEDUCTION OF ONE MONTH'S GROSS PAY, BUT AN ADDITIONAL AMOUNT EQUAL TO THE CHARGE NORMALLY MADE FOR QUARTERS FOR A PERIOD OF ONE MONTH. SHALL DEDUCTION BE MADE FOR THE VALUATION OF QUARTERS DURING THE PERIOD OF ABSENCE ON THE ECONOMY ACT LEGISLATIVE FURLOUGH WITHOUT PAY?

3. IF AN EMPLOYEE IS IN A NONPAY STATUS, WHETHER ON ADMINISTRATIVE OR LEGISLATIVE FURLOUGH, OR LEAVE OF ABSENCE WITHOUT PAY, HE WOULD NOT BE ENTITLED TO FREE GOVERNMENT QUARTERS, THE DETERMINED VALUE OF WHICH IS REQUIRED BY LAW, TO BE CONSIDERED AS PART OF "COMPENSATION.' YOU ARE ADVISED, THEREFORE, THAT AN EMPLOYEE ON ADMINISTRATIVE FURLOUGH WITHOUT PAY SHOULD BE CHARGED THE FULL DETERMINED VALUE OF THE GOVERNMENT QUARTERS OCCUPIED FOR A PERIOD OF SUCH FURLOUGH. IN VIEW OF THE PROVISIONS OF THE REGULATIONS REFERRED TO, AN EMPLOYEE ON LEGISLATIVE FURLOUGH, FROM WHOSE COMPENSATION THERE ALREADY WOULD BE DEDUCTED AND IMPOUNDED 8 1/3 PERCENT OF THE DETERMINED VALUE OF QUARTERS IN THE TOTAL DEDUCTION BASED ON THE TOTAL SALARY RATE FOR THE POSITION, SHOULD BE CHARGED THE REMAINDER OF THE DETERMINED VALUE OF THE QUARTERS OCCUPIED, OR 91 2/3 PERCENT THEREOF. HOWEVER, IF THE LEGISLATIVE FURLOUGH IS TAKEN IN ONE PERIOD, THAT IS, A FULL CALENDAR MONTH, NOT ONLY WOULD NO PAY ACCRUE FOR THAT MONTH, BUT THE FIXED VALUE OF THE QUARTERS, ETC., FURNISHED, TOGETHER WITH THE RETIREMENT DEDUCTION FOR THAT MONTH WOULD BE FOR DEDUCTING FROM PAY THEREAFTER ACCRUING.

(4) DURING THE FISCAL YEAR 1932, DUE TO REDUCED ACTIVITIES, THE DISTRICT ENGINEER, GALVESTON, TEXAS, WAS FACED WITH THE NECESSITY OF EFFECTING A REDUCTION IN FORCE AT THE REPAIR YARD UNDER HIS DIRECTION OF PLACING THE EMPLOYEES SERVING AT THE YARD ON A PART TIME EMPLOYMENT BASIS. IN ORDER TO CONTINUE AS MANY MEN IN EMPLOYMENT AS POSSIBLE, HE DIVIDED THE EMPLOYEES AFFECTED INTO TWO GROUPS AND ARRANGED FOR THE EMPLOYMENT OF ONE GROUP FOR THE FIRST HALF OF A GIVEN MONTH, AND FOR THE EMPLOYMENT OF THE SECOND GROUP FOR THE SECOND HALF OF THE MONTH, EACH GROUP BEING PLACED IN STATUS OF FURLOUGH OR LAYOFF WITHOUT PAY UNDER THE REGULATIONS GOVERNING THE ADMINISTRATION OF THE CIVIL SERVICE IN THE ENGINEER DEPARTMENT AT LARGE FOR THAT HALF OF THE MONTH FOR WHICH THEIR SERVICES COULD NOT BE USED. WHILE IN FURLOUGH OR LAYOFF STATUS THESE EMPLOYEES RETAINED THEIR STATUS AS EMPLOYEES OF THE ENGINEER DEPARTMENT AT LARGE AND UNDER THE REGULATIONS GOVERNING THE ENGINEER DEPARTMENT AT LARGE (ORDERS AND REGULATIONS 1032) ARE IN THE SAME STATUS AS EMPLOYEES ON LEAVE WITHOUT PAY. INFORMATION IS REQUESTED AS TO WHETHER THE PLAN OF STAGGERED EMPLOYMENT BY ADMINISTRATIVE FURLOUGHS OR LAYOFFS WITHOUT PAY IS CONSTRUED AS IN VIOLATION OF SECTION 203 OF THE ECONOMY ACT PROHIBITING THE FILLING OF VACANCIES, OR WHETHER THE PRACTICE MAY BE CONTINUED AS SUBSTANTIALLY IN ACCORDANCE WITH THE INTENTION OF THE ECONOMY ACT AS INDICATED BY SECTION 216 THEREOF.

4. THIS STAGGER EMPLOYMENT FOLLOWS OUT THE PURPOSE AND INTENT OF SECTION 216 OF THE ECONOMY ACT, AND IF NO ADDITIONAL POSITIONS ARE CREATED OR ADDITIONAL EMPLOYEES PLACED ON THE ROLLS, THERE IS NO VIOLATION OF THE PROVISIONS OF SECTION 203 OF THE ECONOMY ACT PROHIBITING THE FILLING OF VACANCIES. HOWEVER, THERE SHOULD NOT BE OVERLOOKED THE REQUIREMENT OF DEDUCTING AND IMPOUNDING 8 1/3 PERCENT OF ALL PAY EARNED AT RATES IN EXCESS OF $1,000 PER ANNUM, UNDER THE PROVISIONS OF SECTION 105 (D) (6); AND, OF COURSE, THE EMPLOYEES WOULD BE ENTITLED TO NO FURLOUGH OR TIME OFF DURING THEIR HALF-MONTH DUTY PERIOD WITHOUT ADDITIONAL LOSS OF PAY ON ACCOUNT THEREOF.

(5) YOUR DECISION ALSO IS REQUESTED IN THE FOLLOWING CASE. AN EMPLOYEE WHOSE SALARY IS ON AN ANNUAL BASIS WILL BE ON LEGISLATIVE FURLOUGH WITHOUT PAY DURING THE ENTIRE MONTH OF JULY. WILL HIS ENTIRE SALARY FOR THE MONTH BE IMPOUNDED TO THE SURPLUS FUND, RETIREMENT DEDUCTIONS FOR THE MONTH OF JULY TO BE DEDUCTED FROM THE COMPENSATION PAID ON THE PAY ROLL FOR AUGUST 1-15, TOGETHER WITH THE REGULAR RETIREMENT DEDUCTIONS FOR THAT PERIOD? IT HELD THAT SINCE THE EMPLOYEE HAS BEEN ON FURLOUGH WITHOUT PAY DURING THE ENTIRE MONTH OF JULY, HE HAS HAD THE FULL AMOUNT OF FURLOUGH WITHOUT PAY TO WHICH HE IS ENTITLED UNDER SECTION 101 (B) OF THE ECONOMY ACT, OR IS IT HELD THAT IN VIEW OF THE FACT THAT THE MONTH OF JULY CONTAINS A LEGAL HOLIDAY THE EMPLOYEE HAS RECEIVED ONLY 22 1/3 DAYS OF LEGISLATIVE FURLOUGH, AND MAY BE ALLOWED 1 1/2 DAYS OF SUCH FURLOUGH LATER IN THE FISCAL YEAR WITHOUT FURTHER DEDUCTIONS FROM THE COMPENSATION?

5. THE FIRST QUESTION CONTAINED IN THIS PARAGRAPH IS ANSWERED IN THE AFFIRMATIVE. SEE DECISION OF JULY 21, 1932, TO THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL, A-43420, 12 COMP. GEN. 97. IN ANSWER TO THE SECOND QUESTION CONTAINED IN THIS PARAGRAPH, YOU ARE ADVISED THAT IF AN EMPLOYEE TAKES "ONE CALENDAR MONTH," THAT IS, JULY, AUGUST, ETC., THE FURLOUGH TIME HAS BEEN EXHAUSTED REGARDLESS OF THE NUMBER OF WORKING DAYS THEREIN. IT IS ONLY WHERE AN EMPLOYEE TAKES HIS FURLOUGH IN SHORTER PERIODS OF A CALENDAR MONTH THAT 24 WORKING DAYS IS TO BE COUNTED AS THE EQUIVALENT OF "ONE CALENDAR MONTH," UNDER THE TERMS OF SECTION 101 (B) OF THE ECONOMY ACT. THEREFORE, EMPLOYEES WHO TAKE THE ENTIRE MONTH OF JULY AS LEGISLATIVE FURLOUGH, WHICH CONTAINS ONLY 22 1/2 WORKING DAYS, MAY NOT BE ALLOWED 1 1/2 ADDITIONAL LEGISLATIVE FURLOUGH DAYS WITHOUT FURTHER DEDUCTIONS FROM COMPENSATION.