A-1156, FEBRUARY 9, 1925, 4 COMP. GEN. 668

A-1156: Feb 9, 1925

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IS REMOVED OR SUSPENDED FROM DUTY AND PAY BY ADMINISTRATIVE ACTION ALONE. THE EMPLOYEE IS ENTITLED TO PAY OTHERWISE DUE WITHOUT REGARD TO THE SUSPENSION ORDER. FROM THE FACTS BEFORE THIS OFFICE AT THE TIME THE DISALLOWANCE WAS MADE AND SUSTAINED IT APPEARED THAT ONE. WAS LEGALLY SUSPENDED FROM HER EMPLOYMENT BY THE SECRETARY OF THE TREASURY WITHOUT PAY. ADDITIONAL EVIDENCE HAS BEEN SUBMITTED AND THE FACTS ARE NOW SHOWN BY THE RECORD TO BE AS FOLLOWS: MARVEL BIGLOW WAS EMPLOYED AS CHIEF CLERK. AS SHE WAS UNDER ORDERS FROM THE DIRECTOR AND DISBURSING AGENT TO GIVE OFFICIAL INFORMATION FROM THE RECORDS OF THE DISBURSING SECTION TO NO ONE WITHOUT THE DIRECTOR'S CONSENT. WHO WAS OUT OF THE CITY ON AUGUST 5.

A-1156, FEBRUARY 9, 1925, 4 COMP. GEN. 668

COMPENSATION, SUSPENSION FROM DUTY - CIVILIAN EMPLOYEE A CIVIL-SERVICE EMPLOYEE WHO, WHILE ON AN APPROVED LEAVE OF ABSENCE WITH PAY, IS REMOVED OR SUSPENDED FROM DUTY AND PAY BY ADMINISTRATIVE ACTION ALONE, SUCH REMOVAL OR SUSPENSION CAN NOT BECOME EFFECTIVE UNTIL THE EMPLOYEE RECEIVES NOTICE THEREOF, AND IF REVOKED PRIOR TO SUCH NOTICE, THE FAILURE TO RECEIVE NOTICE NOT BEING DUE TO WRONGFUL ACTS OF THE EMPLOYEE, THE EMPLOYEE IS ENTITLED TO PAY OTHERWISE DUE WITHOUT REGARD TO THE SUSPENSION ORDER.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 9, 1925:

RECONSIDERATION HAS BEEN REQUESTED OF DECISION OF NOVEMBER 21, 1923, WHICH SUSTAINED DISALLOWANCE OF $62.33 IN THE ACCOUNTS OF CHARLES A. GREGORY, FORMER SPECIAL DISBURSING AGENT AND PROHIBITION DIRECTOR, STATE OF ILLINOIS.

FROM THE FACTS BEFORE THIS OFFICE AT THE TIME THE DISALLOWANCE WAS MADE AND SUSTAINED IT APPEARED THAT ONE, MARVEL BIGLOW, AN EMPLOYEE OF THE OFFICE OF THE PROHIBITION DIRECTOR FOR ILLINOIS, WAS LEGALLY SUSPENDED FROM HER EMPLOYMENT BY THE SECRETARY OF THE TREASURY WITHOUT PAY; THAT THE SUSPENSION BECAME EFFECTIVE ON AUGUST 17, 1922; THAT BY REASON OF SUCH SUSPENSION THE EMPLOYEE PERFORMED NO SERVICE FROM SAID DATE TO AUGUST 27, 1922; AND THEREFORE THAT THE DISBURSING AGENT ERRED IN MAKING PAYMENT TO HER FOR THE PERIOD COVERED BY SUCH SUSPENSION.

ADDITIONAL EVIDENCE HAS BEEN SUBMITTED AND THE FACTS ARE NOW SHOWN BY THE RECORD TO BE AS FOLLOWS:

MARVEL BIGLOW WAS EMPLOYED AS CHIEF CLERK, DISBURSING SECTION, OFFICE OF THE PROHIBITION DIRECTOR, STATE OF ILLINOIS, CHICAGO. AS SHE WAS UNDER ORDERS FROM THE DIRECTOR AND DISBURSING AGENT TO GIVE OFFICIAL INFORMATION FROM THE RECORDS OF THE DISBURSING SECTION TO NO ONE WITHOUT THE DIRECTOR'S CONSENT, SHE REFUSED INFORMATION REQUESTED FROM HER BY THE ASSOCIATE DIRECTOR ON AUGUST 5, 1922. THE ASSOCIATE DIRECTOR ON THE SAME DAY MADE A WRITTEN CHARGE OF INSUBORDINATION AGAINST HER, PRESENTING A COPY TO HER FOR REPLY THERETO. ON AUGUST 5, UPON RETURN OF THE DIRECTOR, WHO WAS OUT OF THE CITY ON AUGUST 5, THE MATTER WAS EXPLAINED TO THE ASSOCIATE DIRECTOR BY THE DIRECTOR AND THE CHARGE AGAINST THE EMPLOYEE WAS ANSWERED BY HER IN WRITING AND THE INFORMATION REQUESTED BY THE ASSOCIATE DIRECTOR WAS FURNISHED HIM. THE EMPLOYEE AND THE DIRECTOR UNDERSTOOD AND ASSUMED THAT THE EXPLANATIONS WERE SATISFACTORY AND THAT THE INCIDENT WAS CLOSED. THEREAFTER, TO WIT, ON OR ABOUT AUGUST 13, 1922, THE EMPLOYEE SUBMITTED A REGULAR APPLICATION FOR LEAVE OF ABSENCE WITH PAY FOR THE PERIOD FROM AUGUST 14 TO 26, 1922, INCLUSIVE. THE GRANTING OF THE REQUESTED LEAVE WITH PAY WAS APPROVED BY THE ASSOCIATE DIRECTOR, WHO HAD THERETOFORE PREFERRED THE CHARGES, AS WELL AS BY THE DIRECTOR, AND ACCORDINGLY THE EMPLOYEE PROCEEDED IMMEDIATELY TO HER HOME IN WISCONSIN AND DID NOT RETURN TO HER OFFICE UNTIL MONDAY, AUGUST 28, 1922, THE FIRST WORK DAY FOLLOWING THE EXPIRATION OF HER LEAVE. WITHOUT THE KNOWLEDGE OF THE EMPLOYEE OR THE DIRECTOR UNDER WHOM SHE WAS EMPLOYED, THE CHARGE OF INSUBORDINATION HAD BEEN FORWARDED ON OR ABOUT AUGUST 7, 1922, BY THE ASSOCIATE DIRECTOR TO THE FEDERAL PROHIBITION COMMISSIONER, WASHINGTON, C., THROUGH WHOM THE MATTER WAS REFERRED TO THE SECRETARY OF THE TREASURY, WHO ORDERED THE EMPLOYEE SUSPENDED FROM DUTY AND PAY FOR A PERIOD OF 30 DAYS, EFFECTIVE AUGUST 17, 1922. THE DIRECTOR AT CHICAGO DID NOT RECEIVE ANY NOTICE THAT SUCH ACTION HAD BEEN TAKEN OR WAS CONTEMPLATED UNTIL AUGUST 17, 1922, AND HE DID NOT THEN ADVISE THE EMPLOYEE WHO WAS ON HER VACATION IN WISCONSIN, BUT WROTE TO THE BUREAU AT WASHINGTON UNDER DATE OF AUGUST 19, 1922, WITH A VIEW TO HAVING THE SUSPENSION REVOKED. ON AUGUST 26, 1922, THE FOLLOWING TELEGRAM, SIGNED BY THE COMMISSIONER OF INTERNAL REVENUE AND APPROVED BY THE ASSISTANT SECRETARY OF THE TREASURY, WAS SENT TO THE FEDERAL PROHIBITION DIRECTOR, CHICAGO:

SUSPENSION CLERK MARVEL BIGLOW FROM DUTY AND PAY HEREBY TERMINATED EFFECTIVE CLOSE BUSINESS AUGUST TWENTY-SEVEN LETTER FOLLOWS

IT THUS APPEARS THAT DURING THE ENTIRE PERIOD FROM THE DATE OF THE ORDER OF SUSPENSION TO THE EFFECTIVE DATE OF THE ACTION TERMINATING THE SUSPENSION THE EMPLOYEE WAS ON REGULARLY AUTHORIZED LEAVE OF ABSENCE WITH PAY AT HER HOME IN WISCONSIN AND THAT NO NOTICE OF THE SUSPENSION WAS CONVEYED TO HER UNTIL HER RETURN TO DUTY ON AUGUST 28, 1922, AFTER THE TERMINATION OF THE SUSPENSION.

WITH REFERENCE TO REMOVAL AND SUSPENSION OF EMPLOYEES, RULE XII OF THE CIVIL SERVICE REGULATIONS PROVIDES:

1. SECTION 6 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 555, PROVIDES "THAT NO PERSON IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES SHALL BE REMOVED THEREFROM EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF SAID SERVICE AND FOR REASONS GIVEN IN WRITING, AND THE PERSON WHOSE REMOVAL IS SOUGHT SHALL HAVE NOTICE OF THE SAME AND OF ANY CHARGES PREFERRED AGAINST HIM, AND BE FURNISHED WITH A COPY THEREOF, AND ALSO BE ALLOWED A REASONABLE TIME FOR PERSONALLY ANSWERING THE SAME IN WRITING; AND AFFIDAVITS IN SUPPORT THEREOF; BUT NO EXAMINATION OF WITNESSES NOR ANY TRIAL OR HEARING SHALL BE REQUIRED EXCEPT IN THE DISCRETION OF THE OFFICER MAKING THE REMOVAL; AND COPIES OF CHARGES, NOTICE OF HEARING, ANSWER, REASONS FOR REMOVAL, AND OF THE ORDER OF REMOVAL SHALL BE MADE A PART OF THE RECORDS OF THE PROPER DEPARTMENT OR OFFICE, AS SHALL ALSO THE REASONS FOR REDUCTION IN RANK OR COMPENSATION; AND COPIES OF THE SAME SHALL BE FURNISHED TO PERSONS AFFECTED UPON REQUEST, AND THE CIVIL SERVICE COMMISSION ALSO SHALL, UPON REQUEST, BE FURNISHED COPIES OF THE SAME: * *

3. PENDING ACTION UNDER SECTION 1 OF THIS RULE, OR FOR DISCIPLINARY REASONS, A PERSON MAY BE SUSPENDED FOR A PERIOD NOT TO EXCEED NINETY DAYS, BUT THE REASONS FOR SUCH SUSPENSION SHALL AT THE TIME OF THE SUSPENSION BE FILED IN THE RECORDS OF THE PROPER DEPARTMENT OR OFFICE AND COPIES SHALL BE FURNISHED THE COMMISSION UPON REQUEST. THE PERIOD OF SUSPENSION MAY BE EXTENDED BEYOND NINETY DAYS WITH THE PRIOR CONSENT OF THE COMMISSION.

IT IS WELL SETTLED THAT THE GRANTING OF LEAVE WITH PAY IN SUCH CASES AS THE ONE HERE UNDER CONSIDERATION IS WITHIN THE DISCRETION OF THE PROPER ADMINISTRATIVE OFFICER SUBJECT, OF COURSE, TO STATUTORY RESTRICTION. SEE 26 COMP. DEC. 379. AND LEAVE THUS GRANTED MAY BE REVOKED AND THE EMPLOYEE RECALLED TO DUTY BEFORE THE TERMINATION THEREOF UPON GIVING PROPER NOTICE TO THE EMPLOYEE. IT IS ALSO ESTABLISHED THAT THE HEAD OF A DEPARTMENT HAS THE AUTHORITY TO SUSPEND AN EMPLOYEE WITHOUT PAY UNDER CERTAIN CIRCUMSTANCES. 1 COMP. GEN. 42, AND CASES THERE CITED. HOWEVER, WHEN AN EMPLOYEE OTHERWISE IN A PAY STATUS IS REMOVED CAN NOT BECOME EFFECTIVE UNTIL THE EMPLOYEE RECEIVES NOTICE THEREOF UNLESS THE RECEIPT OF NOTICE IS PREVENTED BY A WRONGFUL ACT OF THE UNLESS/THE RECEIPT OF NOTICE IS PREVENTED BY A WRONGFUL ACT OF THE EMPLOYEE.

THE SUSPENSION HERE WAS REMOVED BEFORE IT BECAME EFFECTIVE AND DURING THE PERIOD IN QUESTION THE EMPLOYEE REMAINED IN A LEAVE-WITH PAY STATUS.

ACCORDINGLY, UPON RECONSIDERATION, THE ITEM OF $62.33 IS CERTIFIED FOR CREDIT IN THE DISBURSING AGENT'S ACCOUNT AND THE CHARGE AGAINST THE EMPLOYEE WILL BE REMOVED.