B-74166, MARCH 29, 1948, 27 COMP. GEN. 554

B-74166, MARCH 29, 1948, 27 COMP. GEN. 554

COMPENSATION - DISTRICT OF COLUMBIA SCHOOL PHYSICIANS AND DENTISTS ON PART TIME BASIS - ADMINISTRATIVE CLOSING OF SCHOOLS ON WORKDAYS PHYSICIANS AND DENTISTS EMPLOYED IN THE DISTRICT OF COLUMBIA SCHOOLS WHO REGULARLY WORK FOUR HOURS A DAY, FOR WHICH THEY ARE PAID ONE-HALF OF THE ANNUAL SALARY RATE THAT WOULD BE APPLICABLE TO FULL-TIME PHYSICIANS OR DENTISTS, ARE ENTITLED TO THEIR REGULAR COMPENSATION FOR ANY DAY ON WHICH THEY ARE PREVENTED FROM WORKING BY THE ADMINISTRATIVE CLOSING OF THE SCHOOLS TO WHICH ASSIGNED REGARDLESS OF WHETHER ANY ADVANCE NOTICE BE GIVEN.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, MARCH 29, 1948:

I HAVE YOUR LETTER OF MARCH 2, 1948, AS FOLLOWS:

BY YOUR OPINION TO THE PRESIDENT OF THE BOARD OF COMMISSIONERS DATED JANUARY 7, 1942, (21 C.G. 644) YOU RULED THAT THE SCHOOL MEDICAL INSPECTORS AND DENTISTS, EMPLOYED BY THE HEALTH DEPARTMENT, WHO WORKED ON A HALF-TIME PERCENTAGE BASIS, ARE "PART-TIME" EMPLOYEES WHO ARE NOT ENTITLED TO EITHER ANNUAL OR SICK LEAVE UNDER THE ANNUAL LEAVE REGULATIONS AND THE SICK LEAVE REGULATIONS, BOTH DATED MARCH 29, 1940. IN VIEW OF THE FACT THAT NO CHANGE WAS MADE IN THIS FEATURE OF THE ANNUAL PERSONNEL MANUAL PAGE Z1-289, IT IS ASSUMED THAT THE SAME CONDITIONS PRESENTLY EXIST. IT THEREFORE FOLLOWS, THAT THESE EMPLOYEES ARE ENTITLED TO BE PAID ONLY FOR THE NUMBER OF HOURS ACTUALLY WORKED BY THEM.

HOWEVER, IT HAS COME TO THE ATTENTION OF THE COMMISSIONERS THAT ON MORE THAN A FEW OCCASIONS THESE PHYSICIANS AND DENTISTS HAVE REPORTED FOR THEIR REGULARLY SCHEDULED FOUR-HOUR TOUR OF DUTY TO DISCOVER THAT THE SCHOOLS WERE CLOSED AND THEY WERE UNABLE TO PERFORM ANY SERVICES. THESE CLOSINGS WERE DUE TO WEATHER CONDITIONS AND WERE NOT TO BE NOTIFIED OR OTHERWISE TO LEARN OF THE CLOSING. AT OTHER TIMES, THE SCHOOLS HAVE BEEN CLOSED TO PERMIT PUPILS AND TEACHERS TO VIEW PARADES OR HONOR VISITING DIGNITARIES, TO ENABLE TEACHERS TO ATTEND TEACHERS' MEETINGS OR BECAUSE OF LACK OF FUEL OR SOME OTHER EMERGENCY CONDITION. IN THOSE INSTANCES WHERE THE PHYSICIANS AND DENTISTS WERE NOTIFIED OF THE FACT OF THESE CLOSINGS AND THAT THEIR SERVICES WOULD NOT BE REQUIRED, SUCH NOTICES WERE SOMETIMES NOT GIVEN SUFFICIENTLY IN ADVANCE TO ENABLE THEM TO SCHEDULE APPOINTMENTS IN THEIR PRIVATE PRACTICES, AND THUS THEY WERE PRECLUDED FROM WORKING AT ALL AT THE TIMES WHEN THEY WERE READY AND WILLING TO RENDER THE SERVICES PREVIOUSLY SCHEDULED.

THE COMMISSIONERS BELIEVE THAT UNDER THE CIRCUMSTANCES ABOVE DESCRIBED THESE EMPLOYEES SHOULD NOT BE DEPRIVED OF COMPENSATION, AND CONSIDER THE SITUATION ANALOGOUS TO THAT RULED UPON IN 15 C.G. 911, THE HEADNOTE TO WHICH READS:

"PER ANNUM EMPLOYEES OF THE GOVERNMENT MAY BE CHARGED WITH ANNUAL LEAVE OF ABSENCE FOR DAYS ON WHICH NO SERVICES ARE REQUIRED TO BE PERFORMED BECAUSE OF THE CLOSING OF THE OFFICE, PLANT, OR ESTABLISHMENT FOR ADMINISTRATIVE REASONS, BUT COMPENSATION MAY NOT BE WITHHELD FOR SUCH DAYS REGARDLESS OF THE ADMINISTRATIVE REASONS FOR CLOSING AND THE FACT THAT THE EMPLOYEES HAVE NO ACCRUED LEAVE TO THEIR CREDIT. 13 COMP. GEN. 277 AMPLIFIED.' ( ITALICS SUPPLIED.)

THE COMMISSIONERS WOULD APPRECIATE YOUR VIEW AS TO THEIR AUTHORITY TO AUTHORIZE PAYMENT TO THESE EMPLOYEES FOR DAYS ON WHICH THEIR SERVICES IN THE SCHOOLS HAD BEEN SCHEDULED BUT ON WHICH THE SCHOOLS WERE LATER CLOSED BY ADMINISTRATIVE ORDER OF THE BOARD OF COMMISSIONERS OR OF THE BOARD OF EDUCATION AND NOTICE OF SUCH CLOSING WAS (A) NOT GIVEN TO SUCH EMPLOYEES, OR (B) NOTICE WAS GIVEN, BUT NOT SUFFICIENTLY IN ADVANCE TO ENABLE THEM TO SCHEDULE APPOINTMENTS IN THEIR PRIVATE PRACTICE. IN THE EVENT YOU AGREE THAT THE COMMISSIONERS MAY AUTHORIZE PAYMENT UNDER THE CIRCUMSTANCES SET FORTH IN PART (A) OF THE QUESTION, WITH RESPECT TO PART (B) YOUR OPINION IS FURTHER REQUESTED CONCERNING THE MINIMUM LENGTH OF ADVANCE NOTICE OF ADMINISTRATIVE CLOSING OF THE SCHOOLS WHICH WOULD PREVENT THEM FROM RECEIVING COMPENSATION.

IN ADDITION TO THE DECISIONS CITED IN YOUR SUBMISSION, YOUR ATTENTION MAY BE INVITED TO THE DECISION IN 25 COMP. GEN. 452, IN WHICH IT WAS HELD, QUOTING FROM THE THIRD PARAGRAPH OF THE SYLLABUS:

SINCE THE METHOD PRESCRIBED BY SECTION 604 (D) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 FOR CONVERTING AN ANNUAL SALARY RATE TO AN HOURLY RATE INCLUDES, IN EFFECT, AN ALLOWANCE FOR ANY HOLIDAY OCCURRING WITHIN A WORKWEEK, PART TIME EMPLOYEES PAID UPON THE BASIS OF THE NUMBER OF HOURS WORKED ARE ENTITLED TO PAY FOR ANY HOLIDAY OCCURRING WITH THE REGULARLY SCHEDULED WORKDAYS FOR THE INDIVIDUAL EMPLOYEE; HOWEVER, PART TIME EMPLOYEES WHO WORK A PRESCRIBED NUMBER OF HOURS PER WEEK, BUT NOT IN ACCORDANCE WITH A REGULAR TOUR OF DUTY, MAY NOT BE PAID FOR ANY HOLIDAYS ON WHICH THEY PERFORMED NO WORK.

SO FAR AS CONCERNS EMPLOYEES WHOSE SALARIES ARE FIXED ON A PER ANNUM BASIS, EITHER FULL OR PART TIME, NON-WORKDAYS ESTABLISHED BY ADMINISTRATIVE ACTION IN CLOSING THE OFFICE IN WHICH THE PARTICULAR EMPLOYEES RENDER THEIR NORMAL SERVICE, PARTAKE OF THE SAME CHARACTER AS HOLIDAYS. CF. ACT OF MARCH 2, 1940, 54 STAT. 38. ACCORDINGLY, THE PHYSICIANS AND DENTISTS WHO REGULARLY WORK FOUR HOURS A DAY, FOR WHICH THEY ARE PAID ONE-HALF OF THE ANNUAL SALARY RATE THAT WOULD BE APPLICABLE TO A FULL-TIME PHYSICIAN OR DENTIST, ARE ENTITLED TO THEIR REGULAR COMPENSATION FOR ANY DAY ON WHICH ASSIGNED, REGARDLESS OF WHETHER ANY ADVANCE NOTICE BE GIVEN, OR IF GIVEN, REGARDLESS OF THE TIME SUCH NOTICE BE GIVEN.

NOTHING STATED HEREIN IS TO BE CONSTRUED AS PASSING UPON THE CORRECTNESS OF THE ASSUMPTION STATED IN THE OPENING PARAGRAPH OF YOUR LETTER.