B-155197, NOV. 24, 1965

B-155197, NOV. 24, 1965

TO THE SECRETARY OF THE TREASURY:

BY LETTER OF OCTOBER 21, 1965, FILE REFERENCE 300.0, THE DIRECTOR, UNITED STATES SECRET SERVICE, TREASURY DEPARTMENT, REQUESTED OUR DECISION WHETHER APPROPRIATED FUNDS MAY BE USED TO PAY THE CLAIMS OF MEMBERS OF THE U.S. SECRET SERVICE, TREASURY GUARD FORCE, FOR RETROACTIVE OVERTIME COMPENSATION BASED ON THE FACT THAT THE CLAIMANTS WERE REQUIRED TO REPORT BEFORE THE TIME SCHEDULED FOR THE BEGINNING OF THEIR SHIFTS.

BY THAT LETTER AND BY HIS SUPPLEMENTARY LETTER OF NOVEMBER 19 THE DIRECTOR INFORMED US THAT DURING THE PERIOD COVERED BY THEIR CLAIMS MEMBERS OF THE TREASURY GUARD FORCE WERE REQUIRED TO REPORT FOR WORK 15 MINUTES EARLY. SUCH EARLY REPORTING WAS REQUIRED BECAUSE GUARD FORCE MEMBERS WERE NOT PERMITTED TO WEAR THEIR UNIFORMS OR CARRY THEIR WEAPONS OUTSIDE THE TREASURY BUILDINGS. DURING THE 15-MINUTE PERIOD IN QUESTION GUARDS CHANGED INTO THEIR UNIFORMS, DREW THEIR WEAPONS, ATTENDED ROLL CALL AND REPORTED TO THEIR PLACES OF DUTY. THE DIRECTOR ALSO ADVISED US THAT MEMBERS OF THE GUARD FORCE WERE NORMALLY RELIEVED FOR A LUNCH BREAK OF FROM 15 TO 30 MINUTES BUT THAT THEY WERE REQUIRED TO REMAIN IN THE "SQUAD ROOM" DURING SUCH BREAKS AND WERE NOT PERMITTED TO LEAVE THE TREASURY BUILDINGS EXCEPT IN EXTRAORDINARY CIRCUMSTANCES. THIS WAS FOR THE PURPOSE OF BEING IMMEDIATELY AVAILABLE FOR CALL IN CASE OF AN EMERGENCY WHICH MIGHT ARISE BECAUSE OF LARGE AMOUNTS OF CASH AND NEGOTIABLE SECURITIES IN THE TREASURY BUILDINGS. WE ALSO NOTE THAT AFTER BEING RELIEVED FROM DUTY AT THE END OF THEIR SHIFTS GUARDS WERE REQUIRED TO TURN IN THEIR WEAPONS AND CHANGE OUT OF THEIR UNIFORMS BEFORE THEY WERE FREE TO LEAVE.

ON THE BASIS OF THE FACTS PRESENTED IT APPEARS THAT MEMBERS OF THE TREASURY GUARD FORCE WERE REQUIRED TO WORK APPROXIMATELY 15 MINUTES PER DAY IN ADDITION TO THEIR ASSIGNED 8-HOUR TOURS OF DUTY. ACCORDINGLY, THEY ARE ENTITLED TO RETROACTIVE PAYMENT OF 15 MINUTES OVERTIME COMPENSATION FOR EACH DAY THEY WERE REQUIRED TO REPORT EARLY WITHOUT ADDITIONAL COMPENSATION PROVIDED PAYMENT IS NOT BARRED BY THE ACT OF OCTOBER 9, 1940, 54 STAT. 1061, 31 U.S.C. 71A, ALBRIGHT V. UNITED STATES, 161 CT.CL. 356 (1963).

THE DIRECTOR, U.S. SECRET SERVICE, HAS FORWARDED THE CLAIMS OF THREE EMPLOYEES--- MESSRS. EDWARD M. BROWN, EDMOND F. HARRIGAN AND LEO C. JANUSZEWSKI--- TOGETHER WITH THE AVAILABLE TIME AND ATTENDANCE RECORDS IN EACH CASE AND COMPUTATIONS OF THE AMOUNTS PROPOSED TO BE PAID IF THEIR CLAIMS ARE ALLOWABLE. THOSE COMPUTATIONS ARE STATED TO BE MADE UNDER THE FOLLOWING FORMULA:

"IN COMPUTING THE RETROACTIVE CLAIMS OF THE ABOVE INDIVIDUALS THE OFFICIAL TIME AND ATTENDANCE RECORDS (SF 1130) FOR THE PERIODS 1955 THROUGH 1956 AND 1961 THROUGH 1964 WERE USED. FOR THE YEARS 1957 THROUGH 1960 THE TIME AND ATTENDANCE REPORTS WERE INADVERTENTLY DESTROYED AND THEREFORE IT WAS NECESSARY TO USE THE TREASURY GUARD FORCE LOG TO DETERMINE THE ATTENDANCE OF INDIVIDUALS (SIC) ON DUTY. THE LOG IS AN ACCURATE RECORD MAINTAINED BY AN OFFICER OF THE GUARD FORCE WHICH REFLECTS THE NUMBER OF HOURS WORKED, THE DATE AND THE TOUR OF DUTY ASSIGNED.

"TO DETERMINE THE OVERTIME HOURS PAYABLE THE CLAIM PERIOD WAS BROKEN DOWN TO REFLECT CHANGES IN RATES OF PAY, DUTY HOURS, ETC., COMPATIBLE WITH THE LEAVE YEAR. OVERTIME DAYS ACTUALLY WORKED DURING EACH PERIOD WERE THEN ADDED TO THE BASIC WORK DAYS TO DETERMINE THE MAXIMUM ROLL CALLS DURING THE PERIOD. THE NUMBER OF NET ROLL CALL DAYS INCLUDING HOLIDAYS WORKED WERE COUNTED AND DIVIDED BY FOUR TO ARRIVE AT THE HOURLY RATE OF OVERTIME PAYABLE FOR EACH RATE OF PAY.

"THE TWO SHIFTS, 4 P.M. TO 12 MIDNIGHT AND 12 MIDNIGHT TO 8 A.M., BOTH INVOLVED SIX HOURS OF NIGHT DIFFERENTIAL. ONLY THE LATTER GROUP WOULD BE ENTITLED TO NIGHT DIFFERENTIAL OVERTIME AS A PART OF THE CLAIM SETTLEMENT. CERTIFIED TIME AND ATTENDANCE DOCUMENTS INDICATING DUTY HOURS WERE USED FOR THE PERIOD 1955 THROUGH 1956 AND 1961 THROUGH 1964. THE MISSING YEARS, 1957 THROUGH 1960, WERE DETERMINED BY THE USE OF THE GUARD FORCE LOG BOOK TO DETERMINE ENTITLEMENT TO NIGHT DIFFERENTIAL. IN VIEW OF THE LIMITED NUMBER OF CHANGES IN SHIFT ASSIGNMENT THE GUARD LOG BOOKS WERE CHECKED ON THE FIRST REGULAR WORK DAY OF EACH QUARTER OF THE CALENDAR YEAR AND OVERTIME NIGHT DIFFERENTIAL FOR THE QUARTER PAID ON THAT BASIS.

"FEDERAL, STATE AND FICA TAXES WITHHELD ARE ON A PERCENTAGE BASIS IN THE TAX YEAR WHICH PAID.'

THE PROPOSED METHOD OF COMPUTATION IS IN ACCORDANCE WITH THE METHOD WE HAVE APPROVED IN OTHER CASES INVOLVING OVERTIME COMPENSATION FOR EARLY REPORTING OF SECURITY GUARDS EXCEPT THAT WE HAVE REQUIRED A UNIFORM DEDUCTION OF FOUR OVERTIME UNITS (15 MINUTES IN THIS CASE) PER YEAR AS A REASONABLE DEDUCTION FOR PROBABLE TARDINESS WHERE RECORDS USED IN COMPUTING THE AMOUNT DUE DID NOT SHOW IF AND WHEN THE CLAIMANTS HAD BEEN TARDY. B-155197, MARCH 17, 1965. SINCE TARDINESS HAS NOT BEEN RECORDED ON THE RECORDS FROM WHICH THE COMPUTATIONS WERE MADE IN THE CASES PRESENTED, THE UNIFORM DEDUCTION OF FOUR OVERTIME UNITS PER YEAR (ONE AT THE END OF EACH QUARTER IF DESIRED) SHOULD BE MADE FROM THE AMOUNTS OTHERWISE DUE MEMBERS OF THE TREASURY GUARD FORCE.

SUBJECT TO THE ABOVE DEDUCTION FOR TARDINESS WE WILL NOT OBJECT IF THE CLAIMS OF MESSRS. BROWN, HARRIGAN AND JANUSZEWSKI ARE PAID AS COMPUTED WITHOUT FURTHER REFERENCE TO OUR OFFICE. THE CLAIMS OF OTHER MEMBERS OF THE TREASURY GUARD FORCE MAY BE PAID ON THE BASIS OF SIMILAR EVIDENCE AND COMPUTATIONS.

THE ENCLOSURES ATTACHED TO THE LETTER OF OCTOBER 21, 1965, ARE RETURNED.