B-70371, NOVEMBER 24, 1947, 27 COMP. GEN. 293

B-70371, NOVEMBER 24, 1947, 27 COMP. GEN. 293

UNGRADED WAGE BOARD AND PER ANNUM EMPLOYEES - STATE JURY SERVICE ON HOLIDAYS - CREDITING OF JURY FEES TO COMPENSATION SECTION 3 OF THE ACT OF JUNE 29, 1940, REQUIRING THE CREDITING OF FEES RECEIVED BY A FEDERAL EMPLOYEE FOR JURY SERVICE IN A STATE COURT AGAINST THE AMOUNT OF COMPENSATION PAYABLE BY THE UNITED STATES "FOR SUCH PERIOD AS SUCH EMPLOYEE MAY BE ABSENT ON ACCOUNT OF JURY SERVICE," HAS NO APPLICATION TO JURY FEES RECEIVED BY AN UNGRADED WAGE BOARD EMPLOYEE OR BY A CLASSIFIED PER ANNUM EMPLOYEE WHO PERFORMED JURY SERVICE ON A HOLIDAY FALLING WITHIN THE EMPLOYEE'S 40-HOUR TOUR OF DUTY ON WHICH, EXCEPT FOR THE OCCURRENCE OF THE HOLIDAY, HE WOULD HAVE PERFORMED SERVICE IN HIS USUAL POSITION.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, NOVEMBER 24, 1947:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 15, 1947, IN WHICH YOU REQUEST DECISION WHETHER SECTION 3 OF THE ACT OF JUNE 29, 1940, 54 STAT. 689, REQUIRING THE CREDITING OF FEES RECEIVED BY A FEDERAL EMPLOYEE FOR JURY SERVICE IN A STATE COURT AGAINST THE COMPENSATION PAYABLE BY THE UNITED STATES FOR SUCH PERIOD AS THE EMPLOYEE MAY BE ABSENT ON ACCOUNT OF JURY SERVICE IS FOR APPLICATION WHERE THE JURY SERVICE IS RENDERED ON A HOLIDAY FALLING WITHIN THE EMPLOYEE'S 40-HOUR TOUR OF DUTY. THE QUESTION ARISES IN THE CASE OF AN UNGRADED WAGE BOARD EMPLOYEE WHO SERVED ON A STATE JURY ON SEPTEMBER 1 AND 2, 1947, WHICH INCLUDED LABOR DAY, A HOLIDAY UPON WHICH HE WAS NOT REQUIRED TO WORK AND WHICH FELL WITHIN THE 40-HOUR TOUR OF DUTY, THUS ENTITLING HIM TO PAY THEREFOR UNDER THE ACT OF JUNE 29, 1938, 52 STAT. 1246. DECISION UPON THE QUESTION IS ASKED BOTH AS TO SUCH UNGRADED WAGE BOARD EMPLOYEES AND AS TO CLASSIFIED PER ANNUM EMPLOYEES.

THE ACT OF JUNE 29, 1940, 54 STAT. 689, PROVIDES---

THAT THE COMPENSATION OF ANY EMPLOYEE OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY STATE COURT OR COURT OF THE UNITED STATES SHALL NOT BE DIMINISHED DURING THE TERM OF SUCH JURY SERVICE BY REASON OF SUCH ABSENCE, EXCEPT AS PROVIDED IN SECTION 3, NOR SHALL SUCH PERIOD OF SERVICE BE DEDUCTED FROM THE TIME ALLOWED FOR ANY LEAVE OF ABSENCE AUTHORIZED BY LAW.

SEC. 2. ANY EMPLOYEE SPECIFIED IN SECTION 1 WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY COURT OF THE UNITED STATES SHALL NOT RECEIVE ANY COMPENSATION FOR SUCH SERVICE.

SEC. 3. THERE SHALL BE CREDITED AGAINST THE AMOUNT OF COMPENSATION PAYABLE BY THE UNITED STATES TO ANY EMPLOYEE SPECIFIED IN SECTION 1 FOR SUCH PERIOD AS SUCH EMPLOYEE MAY BE ABSENT ON ACCOUNT OF JURY SERVICE IN THE COURT OF ANY STATE ANY AMOUNTS WHICH SUCH EMPLOYEE MAY RECEIVE FROM SUCH STATE ON ACCOUNT OF SUCH JURY SERVICE.

AS TO PERSONS EMPLOYED ON A PER DIEM BASIS, IT WAS HELD IN 24 COMP. GEN. 450, THAT SECTION 3 OF THAT ACT DID NOT REQUIRE A CREDITING OF FEES RECEIVED ON ACCOUNT OF THE PERFORMANCE OF JURY DUTY IN A STATE COURT WHEN SUCH JURY SERVICE WAS PERFORMED OUTSIDE OF THE EMPLOYEE'S REGULAR TOUR OF DUTY AND WHEN THE EMPLOYEE HAD WORKED IN HIS FEDERAL EMPLOYMENT THE ENTIRE TOUR OF DUTY FOR WHICH COMPENSATION WAS PAID BY THE UNITED STATES--- IT BEING NOTED THAT THE GOVERNMENT LOST NONE OF THE EMPLOYEE'S SERVICE BY REASON OF STATE JURY SERVICE.

THE PRINCIPLE OF THAT DECISION WAS APPLIED IN, AND FORMED THE BASIS OF, THE DECISION OF MAY 19, 1947, B-66002, 26 COMP. GEN. 888, WHICH INVOLVED A PERMANENT CLASSIFIED EMPLOYEE, AND WHICH HELD THAT AS TO SUCH AN EMPLOYEE, SECTION 3 OF THE ACT OF JUNE 29, 1940, DID NOT REQUIRE A CREDITING OF FEES RECEIVED ON ACCOUNT OF THE PERFORMANCE OF JURY SERVICE IN A STATE COURT SUBSEQUENT TO JULY 1, 1945--- THE EFFECTIVE DATE OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295-- WHEN THE JURY SERVICE WAS PERFORMED ON NON -WORKDAYS WHICH DID NOT COME WITHIN THE ADMINISTRATIVE WORKWEEK AND FOR WHICH THE EMPLOYEE WAS NOT COMPENSATED BY THE UNITED STATES.

IN LINE WITH THOSE DECISIONS, AND HAVING IN MIND THAT THE STATUTE PROVIDES ONLY FOR CREDITING ,FOR SUCH PERIOD AS SUCH EMPLOYEE MAY BE ABSENT ON ACCOUNT OF JURY SERVICE IN THE COURT OF ANY STATE" AND THAT THE STATUTE WOULD APPEAR TO CONTEMPLATE A CREDITING ONLY OF THE AMOUNT RECEIVED FROM THE STATE ON ACCOUNT OF JURY SERVICE IN THE STATE COURT FOR THE PERIOD THAT HE OTHERWISE WOULD BE PERFORMING THE DUTIES OF HIS ORDINARY POSITION, I AM INCLINED TO HOLD THAT THE PROVISIONS OF SECTION 3 OF THE STATUTE, SUPRA, ARE NOT FOR APPLICATION WHERE JURY SERVICE IS RENDERED BY A FEDERAL EMPLOYEE IN A STATE COURT ON A HOLIDAY FALLING WITHIN THE EMPLOYEE'S 40-HOUR TOUR OF DUTY AND UPON WHICH, EXCEPT FOR THE OCCURRENCE OF THE HOLIDAY, THE EMPLOYEE WOULD HAVE PERFORMED SERVICE IN HIS USUAL POSITION.