A-22652, MAY 29, 1928, 7 COMP. GEN. 757

A-22652, MAY 29, 1928, 7 COMP. GEN. 757

COMPENSATION - LEAVES OF ABSENCE - RURAL CARRIER DISMISSED FOR ATTEMPTED DESTRUCTION OF MAIL MATTER A POSTAL EMPLOYEE UNDER SUSPENSION WITHOUT PAY WHO IS TO BE DISMISSED FROM THE SERVICE FOR AN OFFENSE DIRECTLY CONNECTED WITH HIS DUTIES MAY NOT BE GRANTED LEAVE WITH PAY PRIOR TO DISMISSAL. A POSTAL EMPLOYEE SUSPENDED WITHOUT PAY, WHO IS TO BE DISMISSED FROM THE SERVICE FOR AN OFFENSE DIRECTLY CONNECTED WITH HIS DUTIES AND INVOLVING A VIOLATION OF HIS OATH OF OFFICE, IS NOT ENTITLED TO COMPENSATION FOR THE SERVICE RENDERED DURING THE PAY PERIOD IN WHICH HE WAS SERVING WHEN THE OFFENSE WAS DISCOVERED ON WHICH HE WAS SUSPENDED AND IS TO BE DISMISSED. UNPAID SALARY NOT FORFEITED UNDER THE RULE ANNOUNCED IN THE PRECEDING PARAGRAPH MAY BE APPLIED TO LIQUIDATE A DISMISSED EMPLOYEE'S INDEBTEDNESS TO THE UNITED STATES IN ACCORDANCE WITH THE RULES ANNOUNCED IN 7 COMP. GEN. 305.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, MAY 29, 1928:

I HAVE YOUR LETTER OF MAY 8, 1928, RELATIVE TO THE DATE TO WHICH A POSTAL EMPLOYEE IS ENTITLED TO RECEIVE PAY FOR SERVICE RENDERED WHEN HIS REMOVAL FOR CAUSE IS DIRECTED BY THE POST OFFICE DEPARTMENT.

THE EMPLOYEE UNDER CONSIDERATION IS ROBERT B. MIDDLETON, A RURAL LETTER CARRIER WHO ATTEMPTED TO DESTROY MAIL MATTER, WAS SUSPENDED WITHOUT PAY ON AND AFTER MARCH 31, 1928, AND WHOM IT IS THE PURPOSE OF THE POST OFFICE DEPARTMENT TO DISMISS FROM THE SERVICE FOR THE OFFENSE ABOVE STATED.

IN YOUR LETTER OF APRIL 23, 1928, IT WAS STATED THAT THE EMPLOYEE IN QUESTION WAS REMOVED FROM THE SERVICE, HAVING BEEN SUSPENDED AT THE CLOSE OF BUSINESS ON MARCH 30, 1928. BASED UPON THAT STATEMENT, THE DECISION OF APRIL 30, 1928, A-22652, 7 COMP. GEN. 688, HELD THAT THE EMPLOYEE WAS NOT ENTITLED TO COMPENSATION FOR ANY PERIOD SUBSEQUENT TO MARCH 15, 1928, THE DATE OF THE LAST PAY PERIOD PRIOR TO HIS DISMISSAL FROM THE SERVICE. YOU NOW STATE THAT THE EMPLOYEE WAS NOT REMOVED FROM THE SERVICE, BUT WAS SUSPENDED WITHOUT PAY ON AND AFTER MARCH 31, 1928. THE RULE STATED IN THE DECISION OF APRIL 30, 1928, WOULD APPLY, HOWEVER, SINCE IT IS THE PURPOSE OF THE DEPARTMENT TO SEPARATE THE EMPLOYEE FROM THE SERVICE WITHOUT RESTORATION TO A DUTY OR PAY STATUS.

FOR YOUR GUIDANCE WITH RESPECT TO THE CASE OF CARRIER MIDDLETON, YOU REQUEST TO BE ADVISED ON POINTS STATED AS FOLLOWS:

A. IS IT THE DUTY OF THIS DEPARTMENT, UNDER THE ACT OF FEBRUARY 28, 1925, TO RESTORE CARRIER MIDDLETON TO A DUTY STATUS AND ALLOW HIM NINE DAYS' LEAVE OF ABSENCE WITH PAY BEFORE TERMINATING HIS SERVICES?

B. AS MIDDLETON WAS NOT DISMISSED ON MARCH 30, 1928, AS STATED, ISHE ENTITLED TO COMPENSATION FOR SERVICES RENDERED FOR ANY PERIOD SUBSEQUENT TO MARCH 15, 1928?

C. IS IT THE DUTY OF THIS DEPARTMENT, UNDER SAID STATUTE, TO PAY AN EMPLOYEE, WHO IS TO BE SEPARATED FROM THE SERVICE AT A FUTURE DATE FOR A CAUSE NOT CONNECTED WITH HIS OFFICIAL DUTIES, COMPENSATION DUE FOR SERVICES RENDERED SUBSEQUENT TO THE LAST PAY PERIOD, AND TO ALLOW HIM LEAVE OF ABSENCE WITH PAY TO SUCH FUTURE DATE?

D. MAY THIS DEPARTMENT APPLY UNPAID SALARY DUE A DEFAULTING EMPLOYEE TOWARD LIQUIDATING HIS INDEBTEDNESS TO THE UNITED STATES BEFORE RESORTING TO ITS REMEDY UNDER THE EMPLOYEE'S BOND?

THE QUESTIONS WILL BE ANSWERED IN THE ORDER STATED:

A. ALTHOUGH THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1064, PROVIDES THAT EMPLOYEES IN THE POSTAL SERVICE SHALL BE GRANTED LEAVE WITH PAY, YET THE LEAVE IS TO BE GRANTED TO EMPLOYEES IN THE POSTAL SERVICE WHO WOULD ORDINARILY REMAIN AS EMPLOYEES EITHER IN A PAY STATUS OR WHO MAY PROPERLY BE RESTORED TO SUCH STATUS. THE STATUTE IS NOT TO BE CONSTRUED AS AUTHORIZING THE RESTORATION TO A PAY STATUS OF AN EMPLOYEE WHOSE OFFENSE HAS CAUSED HIM TO BE PLACED IN A NONPAY STATUS FOR THE SOLE PURPOSE OF GRANTING HIM LEAVE WITH PAY. THE QUESTION IS ANSWERED IN THE NEGATIVE.

B. FOR REASONS HEREINBEFORE STATED, THIS QUESTION ALSO IS ANSWERED IN THE NEGATIVE.

C. IN CASES WHERE THE CAUSE OF DISMISSAL IS NOT CONNECTED WITH THE EMPLOYEE'S OFFICIAL DUTIES--- THAT IS TO SAY, DOES NOT INVOLVE A VIOLATION OF HIS OATH OF OFFICE--- THE LEAVE OF ABSENCE WHICH HAS ACCRUED MAY BE GRANTED THE EMPLOYEE AND PAY MAY BE ALLOWED FOR THE PERIOD OF SERVICE ACTUALLY RENDERED AND THE PERIOD OF LEAVE. BUT, OF COURSE, IF THE EMPLOYEE IS INDEBTED TO THE UNITED STATES THE AMOUNT OF THE PAY THUS ALLOWED SHOULD BE APPLIED IN LIQUIDATION OR REDUCTION OF SUCH INDEBTEDNESS. THE QUESTION IS ANSWERED ACCORDINGLY.

D. EXCEPT AS TO THE SALARY FORFEITED BY THE ACTION OR CONDUCT OF THE EMPLOYEE AS IN THE CASE INVOLVED IN THE DECISION OF APRIL 30, SUPRA, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. SEE DECISION OF NOVEMBER 2, 1927, 7 COMP. GEN. 305.

IN RESPONSE TO THE REQUEST IN THE LAST PARAGRAPH OF YOUR LETTER OF MAY 8, 1928, YOU ARE ADVISED THAT CREDIT WILL NOT BE DISALLOWED FOR OTHERWISE PROPER PAYMENTS MADE PRIOR TO JULY 1, 1928, UNDER THE PRACTICE THAT HAS HERETOFORE MAINTAINED IN THE MATTER OF FINAL PAY OF DISCHARGED EMPLOYEES OF THE POSTAL SERVICE.