A-5372, DECEMBER 20, 1924, 4 COMP. GEN. 552

A-5372, DECEMBER 20, 1924, 4 COMP. GEN. 552

LEAVE OF ABSENCE - TEMPORARY PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA TEMPORARILY EMPLOYED OR PAID FROM APPROPRIATIONS EXPRESSLY AND EXCLUSIVELY AVAILABLE FOR TEMPORARY PERSONAL SERVICES, ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE ACT OF FEBRUARY 22, 1921, 41 STAT. 1144, NOTWITHSTANDING THE FACT THAT THE PERIODS OF THEIR TEMPORARY EMPLOYMENT MAY HAVE BEEN CONTINUOUS. 4 COMP. GEN. 511, AFFIRMED. PAY ROLLS COVERING PERSONAL SERVICES PAYABLE FROM THE APPROPRIATIONS OF THE DISTRICT OF COLUMBIA EXPRESSLY AND EXCLUSIVELY AVAILABLE FOR TEMPORARY PERSONAL SERVICES MUST BE SUPPORTED, BEGINNING WITH THE QUARTER ENDING MARCH 31, 1925, BY A CERTIFICATE OF THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA THAT THE FUNDS IN QUESTION WERE USED EXCLUSIVELY FOR TEMPORARY PERSONAL SERVICES.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, DECEMBER 20, 1924:

I HAVE YOUR LETTER OF DECEMBER 17, 1924, REQUESTING RECONSIDERATION OF DECISION OF DECEMBER 3, 1924, HOLDING THAT A. C. OLIVER, A PER DIEM EMPLOYEE OF THE DISTRICT OF COLUMBIA, WHOSE SALARY IS PAID UNDER SECTION 4 OF THE ACT OF JUNE 7, 1924, 43 STAT. 577, WAS NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE ACT OF FEBRUARY 22, 1921, 41 STAT. 1144.

YOU HAVE SUBMITTED CERTAIN RECORDS AND COPIES OF HEARINGS HELD BEFORE THE SUBCOMMITTEE ON APPROPRIATIONS OF THE HOUSE AND SENATE HAVING CHARGE OF THE DISTRICT APPROPRIATION BILL FOR THE FISCAL YEAR 1922, IN WHICH APPEARED, AS ENACTED INTO LAW, THE PROVISION OF THE ACT OF FEBRUARY 22, 1921, SUPRA, AUTHORIZING 15 DAYS' LEAVE OF ABSENCE WITH PAY EACH YEAR TO CERTAIN PER DIEM EMPLOYEES. YOU URGE THAT BECAUSE THE DATA GATHERED FROM THE VARIOUS BRANCHES OF THE DISTRICT GOVERNMENT AND PLACED BEFORE THE SUBCOMMITTEE FOR CONSIDERATION CONTAINED STATEMENTS SHOWING THE TOTAL NUMBER OF PER DIEM EMPLOYEES WHO WOULD BE ENTITLED TO THE LEAVE PRIVILEGE, INCLUDING THOSE EMPLOYED UNDER SECTIONS 2 AND 4 PROVIDING FUNDS FOR TEMPORARY PERSONAL SERVICES, THAT THE STATUTE FINALLY ENACTED HAS REFERENCE TO ALL "PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA WHO HAVE BEEN EMPLOYED FOR 10 CONSECUTIVE MONTHS OR MORE.'

FUNDS APPROPRIATED BY CONGRESS FOR PERSONAL SERVICES ARE AVAILABLE ONLY FOR SERVICES ACTUALLY RENDERED, UNLESS CONGRESS ITSELF MAKES AN EXCEPTION. LEAVE OF ABSENCE WITH PAY IS AN EXCEPTION. EMPLOYEES OF THE GOVERNMENT MAY BE CLASSED IN CONNECTION WITH THE LEAVE PRIVILEGE AS PERMANENT AND TEMPORARY, AND THE RIGHT TO LEAVE--- I.E., THE AUTHORITY TO USE FUNDS FOR THE PAYMENT OF EMPLOYEES WHILE ON LEAVE OF ABSENCE--- REFERS ONLY TO PERMANENT EMPLOYMENT. THIS WOULD BE TRUE WITHOUT ANY RESTRICTIONS IN THE STATUTE LIMITING THE LEAVE PRIVILEGE TO PERMANENT EMPLOYEES, BUT IN ADDITION TO THIS FUNDAMENTAL RULE, CONGRESS HAS IN THE PRESENT INSTANCE FURTHER SHOWED ITS INTENTION TO RESTRICT THE LEAVE PRIVILEGE TO THOSE PERMANENTLY EMPLOYED BY USE OF THE WORDS ,EMPLOYEES OF THE DISTRICT OF COLUMBIA WHO HAVE BEEN EMPLOYED FOR 10 CONSECUTIVE MONTHS OR MORE.'

WHETHER AN EMPLOYEE IS A PERMANENT OR TEMPORARY EMPLOYEE IS NOT FOR DETERMINATION SOLELY ON THE LENGTH OF TIME THE EMPLOYEE MAY HAPPEN TO SERVE, BUT OTHER CONDITIONS ARE FOR CONSIDERATION, SUCH AS THE CHARACTER OF THE APPOINTMENT, PURPOSES FOR WHICH EMPLOYED, AND PARTICULARLY THE EXPRESS TERMS OF THE APPROPRIATION UNDER WHICH THE EMPLOYEES ARE PAID.

THE ANNUAL APPROPRIATIONS FOR THE DISTRICT OF COLUMBIA ARE DIVIDED UNDER THE VARIOUS ACTIVITIES OF THE DISTRICT GOVERNMENT. UNDER THESE HEADINGS ARE PROVIDED FUNDS FOR PERSONAL SERVICES, WHICH ARE INTENDED TO PROVIDE FOR THE REGULAR FORCE OF EMPLOYEES BASED ON THE ESTIMATES SUBMITTED. THE APPROPRIATION FOR THE WATER DEPARTMENT, HERE INVOLVED, FOR THE PRESENT FISCAL YEAR, IS FOUND IN THE ACT OF JUNE 7, 1924, 43 STAT. 575, AND CONTAINS ITEMS FOR "PERSONAL SERVICES IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923" AND "EMPLOYMENT OF ALL LABOR NECESSARY FOR THE PROPER EXECUTION OF THIS WORK.' AT THE END OF THE APPROPRIATION ACT THERE ARE SECTIONS 2 AND 4 APPROPRIATING FUNDS FOR CERTAIN CLASSES OF PERSONAL SERVICES,"TEMPORARILY REQUIRED" IN CONNECTION WITH SEWER, STREET, STREET CLEANING, ROAD WORK, ETC., AND IN CONNECTION WITH THE WATER DEPARTMENT. IN THE SECOND PARAGRAPHS OF BOTH SECTIONS, THE COMMISSIONERS ARE AUTHORIZED TO ,EMPLOY TEMPORARILY" CERTAIN CLASSES OF PERSONAL SERVICES IN CONNECTION WITH THE SAME WORK. ACCORDINGLY, THE APPROPRIATIONS PROVIDED UNDER THESE TWO SECTIONS AND THE AUTHORITY GRANTED THE COMMISSIONERS ARE EXPRESSLY AND EXCLUSIVELY APPLICABLE TO EMPLOYMENT OF TEMPORARY EMPLOYEES, AND THE APPROPRIATIONS ARE NOT AVAILABLE TO PAY THE COMPENSATION OF THE PERMANENT FORCE OF THE DISTRICT OF COLUMBIA AS SUPPLEMENTAL TO THE REGULAR APPROPRIATIONS OTHERWISE PROVIDED. THEREFORE, PERSONS EMPLOYED UNDER THE AUTHORITY OF AND IN ACCORDANCE WITH SECTIONS 2 AND 4 MAY NOT BE CONSIDERED AS PERMANENT EMPLOYEES OF THE DISTRICT OF COLUMBIA ENTITLED TO LEAVE OF ABSENCE WITH PAY. WHILE THE DATA WHICH YOU HAVE SUBMITTED MAY DISCLOSE WHAT THE DISTRICT AUTHORITIES INTENDED WHEN REQUESTING THE LEAVE LEGISLATION, IT CAN NOT BE CONSIDERED AS INFLUENCING THE CONSTRUCTION OF THE PLAIN TERMS OF THE STATUTE. DECISION OF DECEMBER 3, 1924, IS AFFIRMED.

HERETOFORE THE DISBURSING OFFICER OF THE DISTRICT OF COLUMBIA IN HIS ACCOUNTS HAS NOT SUPPORTED HIS DISBURSEMENTS FOR PERSONAL SERVICES UNDER SECTIONS 2 AND 4, SUPRA, WITH EVIDENCE AS TO THE TEMPORARY CHARACTER OF THE EMPLOYMENT. BEGINNING WITH THE QUARTER ENDING MARCH 31, 1925, THERE WILL BE REQUIRED TO BE SUBMITTED WITH THE ACCOUNTS A CERTIFICATE OF THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ON THE PAY ROLLS THAT ALL THE FUNDS REPRESENTED AS EXPENDED BY THE PAY ROLLS WERE EXCLUSIVELY FOR TEMPORARY PERSONAL SERVICES.