B-77963, FEB 12, 1974, 53 COMP GEN 577

B-77963, FEB 12, 1974, 53 COMP GEN 577

LEAVES OF ABSENCE - ANNUAL AND SICK LEAVE ACT - COVERAGE - PRESIDENTIAL APPOINTEES UNITED STATES ATTORNEYS WHO ARE COMPENSATED AT EXECUTIVE SCHEDULE RATES ARE EXCLUDED FROM THE COVERAGE OF THE ANNUAL AND SICK LEAVE ACT SINCE 5 U.S.C. 6301(2)(X) EXEMPTS FROM COVERAGE ALL OFFICERS APPOINTED BY THE PRESIDENT WHOSE BASIC RATES OF PAY EXCEED THE HIGHEST GENERAL SCHEDULE (GS) LEVEL AND ALTHOUGH 5 U.S.C. 6301(2)(X) REFERS TO AN INDIVIDUAL WHOSE RATE OF PAY "EXCEEDS" THE HIGHEST GS LEVEL, THE INTENT OF THE ACT CAN BE EFFECTED ONLY IF THOSE WHOSE SALARIES ARE INTENDED TO EXCEED THE HIGHEST GS LEVEL BY VIRTUE OF ASSIGNMENT TO THE EXECUTIVE SCHEDULE ARE EXEMPTED EVEN THOUGH GS-18 AND EXECUTIVE LEVEL V OFFICIALS MAY AT TIMES RECEIVE EQUAL PAY. FURTHERMORE, WHILE THE DISCRETIONARY EXEMPTION AUTHORITY IN 5 U.S.C. 6301(2)(XI) PROHIBITS THE PRESIDENT FROM EXCLUDING ANY U.S. ATTORNEY FROM COVERAGE UNDER THE LEAVE ACT, THE CLAUSE DOES NOT OPERATE TO NULLIFY THE STATUTORY EXCLUSION REQUIRED BY 5 U.S.C. 6301(2)(X).

TO THE ATTORNEY GENERAL, FEBRUARY 12, 1974:

THIS REFERS TO YOUR LETTER DATED SEPTEMBER 18, 1973, REQUESTING OUR DECISION AS TO WHETHER FOUR UNITED STATES ATTORNEYS COMPENSATED AT RATES OF THE EXECUTIVE SCHEDULE ARE EXCLUDED FROM THE COVERAGE OF THE ANNUAL AND SICK LEAVE PROVISIONS OF 5 U.S.C. 6301 ET SEQ.

THE CONGRESS AMENDED THE LEAVE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951 IN 1953 - THE ACT OF JULY 2, 1953, PUBLIC LAW 102, 83D CONGRESS, 64 STAT. 136 - TO REMOVE CERTAIN TOP RANKING OFFICERS IN THE EXECUTIVE BRANCH FROM COVERAGE. THOSE AMENDMENTS WHICH ARE NOW CODIFIED AT 5 U.S.C. 6301(2)(X) AND 6301(2)(XI) MAKE THE FOLLOWING EXCLUSIONS FROM COVERAGE BY THE LEAVE PROVISIONS:

(X) AN OFFICER *** WHO IS APPOINTED BY THE PRESIDENT AND WHOSE RATE OF BASIC PAY EXCEEDS THE HIGHEST RATE PAYABLE UNDER (THE GENERAL SCHEDULE)

(XI) AN OFFICER IN THE EXECUTIVE BRANCH *** WHO IS DESIGNATED BY THE PRESIDENT, EXCEPT A POSTMASTER, UNITED STATES ATTORNEY, OR UNITED STATES MARSHAL ***.

THE ACTING ASSISTANT ATTORNEY GENERAL PRESENTS THE PROBLEM WHICH HAS ARISEN UNDER THOSE PROVISIONS AS FOLLOWS:

AT THE TIME THESE EXCEPTIONS WERE PASSED, UNITED STATES ATTORNEYS, WHILE APPOINTED BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE, WERE COMPENSATED AT RATES COMPARABLE TO GENERAL SCHEDULE RATES AND THUS DID NOT FALL WITHIN THE PRESIDENTIAL APPOINTEE EXCEPTION TO THE LEAVE PROVISIONS. IN 1964, HOWEVER, THE PRESIDENT, PURSUANT TO 5 U.S.C. 5317, PLACED THE UNITED STATES ATTORNEYS FOR THE DISTRICT OF COLUMBIA AND THE SOUTHERN DISTRICT OF NEW YORK IN EXECUTIVE LEVEL IV AND THE UNITED STATES ATTORNEYS FOR THE NORTHERN DISTRICT OF ILLINOIS AND THE SOUTHERN DISTRICT OF CALIFORNIA IN LEVEL V. SINCE THAT TIME THE COMPENSATION OF U.S. ATTORNEYS WHO ARE LEVEL IV HAS ALWAYS EXCEEDED THE GENERAL SCHEDULE SALARY MAXIMUM AND THE COMPENSATION OF U.S. ATTORNEYS WHO ARE LEVEL V HAS EXCEEDED IT PERIODICALLY. ***

*** WHILE LEVEL V SALARIES ARE - AS A MATTER OF POLICY - INTENDED TO BE HIGHER THAN THOSE OF THE GENERAL SCHEDULE, THE FREQUENCY OF PAY RAISES FOR THE GENERAL SCHEDULE AND THE LIMITATION OF THE EXECUTIVE SCHEDULE TO QUADRENNIAL RAISES FREQUENTLY PRODUCES THE SITUATION WHERE THE RATES OF PAY FOR GS-18 AND FOR LEVEL V ARE IDENTICAL. ***

TWO QUESTIONS ARE RAISED FROM THE ABOVE FACTS. THE FIRST IS WHETHER THESE FOUR UNITED STATES ATTORNEYS ARE TO BE TREATED FOR LEAVE PURPOSES AS ARE THE REST OF THE UNITED STATES ATTORNEYS OR WHETHER THEY ARE TO BE CONSIDERED AS PRESIDENTIAL APPOINTEES WHOSE SALARIES EXCEED THE GENERAL SCHEDULE AS ARE OTHER OFFICERS COMPENSATED UNDER THE EXECUTIVE SALARY SCALE. THE SECOND QUESTION IS WHETHER 5 U.S.C. 6301(2)(X) REQUIRES PRESIDENTIAL APPOINTEES AT LEVEL V TO BE INCLUDED IN THE LEAVE ACT PROVISIONS WHENEVER THEIR SALARIES ARE EQUAL TO THE GS-18 LEVEL AND EXCLUDED WHENEVER THEIR SALARIES ARE RAISED TO EXCEED THE GS-18 LEVEL.

REGARDING THE FIRST QUESTION THE ISSUE APPEARS TO BE WHETHER 5 U.S.C. 6301(2)(X) BECAUSE THEY ARE APPOINTED BY THE PRESIDENT AND RECEIVE COMPENSATION IN EXCESS OF THAT PAYABLE UNDER THE GENERAL SCHEDULE. OUR OPINION IS THAT WHILE CLAUSE (XI) PROHIBITS THE PRESIDENT, IN THE EXERCISE OF THE DISCRETIONARY EXEMPTION AUTHORITY CONTAINED IN SUCH CLAUSE, FROM EXCLUDING ANY UNITED STATES ATTORNEY FROM COVERAGE UNDER THE LEAVE STATUTE, IT DOES NOT OPERATE TO NULLIFY THE STATUTORY EXCLUSION OF THE FOUR UNITED STATES ATTORNEYS OTHERWISE REQUIRED BY 5 U.S.C. 6301(2)(X).

WITH RESPECT TO THE SECOND QUESTION, IT IS THE VIEW OF THE DEPARTMENT THAT CONGRESS COULD NOT HAVE INTENDED THE "*** ANOMALOUS AND POTENTIALLY CHAOTIC RESULT" WHICH WOULD FOLLOW IF LEVEL V ATTORNEYS WERE PERIODICALLY INCLUDED UNDER AND EXCLUDED FROM THE LEAVE PROVISIONS. IN THAT CONNECTION IT IS STATED THAT WHILE 5 U.S.C. 6301(2)(X) REFERS TO RATES OF COMPENSATION THAT "EXCEED" THE MAXIMUM PAYABLE UNDER THE GENERAL SCHEDULE, THE ONLY RATIONAL INTERPRETATION OF THIS LANGUAGE IS TO ASSUME THAT CONGRESS INTENDED IT TO APPLY TO ALL OF THOSE WHOSE SALARIES ARE INTENDED TO EXCEED THE HIGHEST RATE OF THE GENERAL SCHEDULE EVEN THOUGH OCCASIONAL EQUALITY OF SALARY MAY OCCUR.

IN ENACTING THE 1953 AMENDMENTS TO THE ANNUAL AND SICK LEAVE ACT OF 1951 IT WAS CONGRESS' PURPOSE TO COMPLETELY REMOVE CERTAIN HIGH OFFICIALS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT FROM THE LEAVE SYSTEM WHICH COVERS FEDERAL EMPLOYEES. THE REASON FOR THIS WAS STATED AT S. REPT. 294, 83D CONG., 1ST SESS., P. 1 (1953) AS FOLLOWS:

THIS ACTION IS BASED ON THE PREMISE THAT SUCH OFFICIALS NEVER COMPLETELY DIVEST THEMSELVES OF THEIR RESPONSIBILITY EVEN DURING PERIODS OF VACATION OR ILLNESS. IN EFFECT, SUCH OFFICIALS ARE ACTUALLY ON DUTY AT ALL TIMES, THUS, IT IS ABSURD TO MAINTAIN ATTENDANCE AND LEAVE RECORDS AND ALLOW THEM LUMP-SUM PAYMENTS FOR ANY UNUSED VACATION TIME REMAINING TO THEIR CREDIT WHEN THEY TERMINATE THEIR POSITION.

A LETTER APPEARING IN S. REPT. 294, 83D CONG., 1ST SESS., AT PP. 4-5, FROM THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION TO THE CHAIRMAN OF THE SENATE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, FURTHER EXPLAINS THE REASON FOR THE AMENDMENT:

IN GENERAL, POSITIONS IN GRADES GS-16, 17 AND 18 ARE A PART OF THE CAREER SERVICE. PERSONS OCCUPYING THESE SO-CALLED SUPERGRADE POSITIONS OBSERVE STANDARD WORKING HOURS AND ARE AUTHORIZED TO TAKE LEAVE OF ABSENCE ONLY AS PROVIDED BY THE 1951 LEAVE ACT. THUS, THESE EMPLOYEES WORK UNDER VERY DIFFERENT CONDITIONS AND SHOULD BE TREATED DIFFERENTLY FROM PRESIDENTIAL AND OTHER APPOINTIVE OFFICIALS.

THE 1953 AMENDMENT TO THE ANNUAL AND SICK LEAVE ACT THUS CLEARLY DISTINGUISHED OFFICIALS ON THE GENERAL SCHEDULE LEVEL WHO WERE TO KEEP REGULAR WORK HOURS FROM THOSE HIGH LEVEL EXECUTIVES WHO ARE CONSIDERED TO BE ON DUTY AT ALL TIMES. THE CIRCUMSTANCES WHICH HAVE RESULTED IN EQUAL PAY FOR GRADE GS-18 AND EXECUTIVE LEVEL V OFFICIALS DO NOT CHANGE THE ESSENTIAL REASON FOR WHICH THE DISTINCTION IN THE LEAVE ACT WAS MADE. NOTE FURTHER THAT ALTHOUGH THE POSITIONS WHICH THESE HIGH LEVEL EXECUTIVES OCCUPY ARE NOW AUTHORIZED BY OR UNDER THE EXECUTIVE PAY PROVISIONS OF 5 U.S.C. 5311-5317, AT THE TIME THE PERTINENT AMENDMENTS TO THE ANNUAL AND SICK LEAVE ACT OF 1951 WERE ENACTED THERE WAS NO EXECUTIVE PAY SYSTEM AS SUCH. AT THAT TIME EXECUTIVE POSITIONS WERE GENERALLY ESTABLISHED IN THE ORGANIC ACT OF THE AGENCY IN QUESTION. A PARTIAL EXECUTIVE PAY SYSTEM WAS ENACTED IN 1956 (FEDERAL EXECUTIVE PAY ACT OF 1956, JULY 31, 1956, CH. 804, 70 STAT. 736) AND A MORE COMPREHENSIVE SYSTEM IN 1964 (FEDERAL EXECUTIVE SALARY ACT OF 1964, PUBLIC LAW 88-426, TITLE III, AUGUST 14, 1964, 78 STAT. 415). HOWEVER THESE EXECUTIVE PAY SYSTEMS, SINCE THEY WERE NOT IN BEING AT THE TIME THE EXEMPTIONS WERE FIRST AUTHORIZED, COULD NOT HAVE BEEN MADE THE BASIS FOR EXEMPTING EMPLOYEES FROM THE LEAVE SYSTEM. THEREFORE, EVEN THOUGH CLAUSE (X) INDICATES THAT AN EXCEPTION IS GRANTED FOR INDIVIDUALS OTHERWISE QUALIFIED WHOSE RATE OF PAY "EXCEEDS" THE HIGHEST PAY UNDER THE GENERAL SCHEDULE WE BELIEVE THAT IT IS APPROPRIATE TO CONSTRUE THAT CLAUSE AS BEING APPLICABLE TO THOSE OFFICIALS WHOSE SALARIES WERE INTENDED TO EXCEED THE HIGHEST GENERAL SCHEDULE LEVEL, I.E., EMPLOYEES IN EXECUTIVE LEVEL V AND ABOVE. UNDER THAT CONSTRUCTION EXECUTIVE LEVEL V UNITED STATES ATTORNEYS MAY BE TREATED IN THE SAME MANNER AS EXECUTIVE LEVEL IV UNITED STATES ATTORNEYS WITH RESPECT TO EXEMPTION FROM THE ANNUAL AND SICK LEAVE ACT EVEN THOUGH CERTAIN SALARIES IN THE GENERAL SCHEDULE MAY FROM TIME TO TIME EQUAL THE SALARY OF EXECUTIVE LEVEL V.

FOR THE ABOVE REASONS WE HOLD THAT THE TWO UNITED STATES ATTORNEYS IN EXECUTIVE SCHEDULE LEVEL IV AND THE TWO IN LEVEL V ARE EXEMPT FROM THE COVERAGE OF THE ANNUAL AND SICK LEAVE ACT.