A-17151, FEBRUARY 15, 1927, 6 COMP. GEN. 534

A-17151: Feb 15, 1927

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COMPENSATION - SUSPENSION FROM DUTY A CIVILIAN EMPLOYEE OF THE GOVERNMENT IS NOT ENTITLED TO SALARY FOR THE PERIOD HE WAS UNDER SUSPENSION PENDING INVESTIGATION OF HIS EFFICIENCY WHERE THE SUSPENSION WAS AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR OFFICE. EVEN THOUGH THE CHARGES OF INEFFICIENCY WERE LATER DISPROVED AND THE EMPLOYEE RESTORED TO DUTY. DURING WHICH PERIOD HE WAS UNDER SUSPENSION. OR AT LEAST WAS NOT AUTHORIZED TO RENDER SERVICE. THE FACTS IN THE CASE HAVE BEEN REPORTED BY THE VETERANS' BUREAU. IT WAS BROUGHT TO THE ATTENTION OF THE MEDICAL OFFICER IN CHARGE THAT THE DISBURSING AGENT WAS DELINQUENT IN FORWARDING HIS ACCOUNTS TO CENTRAL OFFICE. CURRY OF THE DUTIES OF SPECIAL DISBURSING AGENT HIS SERVICES WERE CONSIDERED SURPLUS AT THAT STATION.

A-17151, FEBRUARY 15, 1927, 6 COMP. GEN. 534

COMPENSATION - SUSPENSION FROM DUTY A CIVILIAN EMPLOYEE OF THE GOVERNMENT IS NOT ENTITLED TO SALARY FOR THE PERIOD HE WAS UNDER SUSPENSION PENDING INVESTIGATION OF HIS EFFICIENCY WHERE THE SUSPENSION WAS AUTHORIZED BY THE HEAD OF THE DEPARTMENT OR OFFICE, EVEN THOUGH THE CHARGES OF INEFFICIENCY WERE LATER DISPROVED AND THE EMPLOYEE RESTORED TO DUTY.

DECISION BY ASSISTANT COMPTROLLER GENERAL GINN, FEBRUARY 15, 1927:

WILLIAM K. CURRY HAS REQUESTED REVIEW OF SETTLEMENT 0133220, DATED JUNE 5, 1926, DISALLOWING HIS CLAIM FOR $1,023.75, SALARY, LESS RETIREMENT DEDUCTIONS, AS ADMINISTRATIVE ASSISTANT AND SPECIAL DISBURSING AGENT, UNITED STATES VETERANS' BUREAU HOSPITAL, FORT BAYARD, N.MEX., FOR THE PERIOD MAY 1 TO SEPTEMBER 30, 1925, DURING WHICH PERIOD HE WAS UNDER SUSPENSION, OR AT LEAST WAS NOT AUTHORIZED TO RENDER SERVICE.

THE FACTS IN THE CASE HAVE BEEN REPORTED BY THE VETERANS' BUREAU, UNDER DATE OF MARCH 31, 1926, AS FOLLOWS:

ON JANUARY 21, 1925, IT WAS BROUGHT TO THE ATTENTION OF THE MEDICAL OFFICER IN CHARGE THAT THE DISBURSING AGENT WAS DELINQUENT IN FORWARDING HIS ACCOUNTS TO CENTRAL OFFICE. ON JANUARY 26, 1925, MEDICAL OFFICER IN CHARGE RECOMMENDED THAT MR. CURRY BE RELIEVED FROM THE DUTIES OF SPECIAL DISBURSING AGENT AND MR. HARVEY A. WAMBOLD APPOINTED IN HIS STEAD. MARCH 10, 1925, MEDICAL OFFICER STATED THAT IN RELIEVING MR. CURRY OF THE DUTIES OF SPECIAL DISBURSING AGENT HIS SERVICES WERE CONSIDERED SURPLUS AT THAT STATION; THAT HE SHOULD BE CONSIDERED FOR TRANSFER ELSEWHERE IN THE BUREAU. ON APRIL 20, 1925, MEDICAL OFFICER RECOMMENDED THAT MR. CURRY BE DECLARED SURPLUS AT HIS STATION, EFFECTIVE APRIL 30, 1925. INVESTIGATION OF THIS CASE WAS MADE, AND IT DEVELOPED THAT MR. CURRY WAS CONSIDERABLY HANDICAPPED; THAT PERSONNEL WAS TAKEN AWAY FROM HIM TO SUCH AN EXTENT THAT HE COULD NOT EFFICIENTLY PERFORM THE DUTIES OF HIS POSITION.

EFFORTS WERE MADE BY CENTRAL OFFICE TO LOCATE A POSITION FOR MR. CURRY ELSEWHERE. THE TELEGRAM SENT TO MR. CURRY ON APRIL 29, 1925, BY THE CHIEF, PERSONNEL DIVISION, CENTRAL OFFICE, U.S. VETERANS' BUREAU, READING AS FOLLOWS: "YOUR SERVICES SURPLUS FORT BAYARD; OTHER ASSIGNMENT NOT YET LOCATED" WAS NOT CONSIDERED A SURPLUS NOTICE WITH REGARD TO TAKING HIS NAME FROM THE ROLLS OF THE BUREAU AS AN EMPLOYEE. DEVELOPMENTS IN THE CASE, AFTER THE SENDING OF THIS TELEGRAM, WERE SUCH THAT MR. CURRY'S REASSIGNMENT TO DUTY IN THE BUREAU WAS MADE AT FORT BAYARD RATHER THAN AT ANOTHER STATION. IT WAS INTENDED THAT IF HIS REINSTATEMENT OR REASSIGNMENT TO ANY STATION IN THE BUREAU SHOULD BE MADE OTHER THAN AT FORTH BAYARD, IT WOULD BE THROUGH TRANSFER AND NOT THROUGH REINSTATEMENT AS A RESULT OF ABSOLUTE SEPARATION FROM THE BUREAU. WITH THIS IN MIND HIS NAME WAS NOT REMOVED FROM THE ROLLS, PENDING REASSIGNMENT.

IF MR. CURRY'S NAME HAD BEEN ABSOLUTELY REMOVED FROM THE ROLLS, HIS DISCONTINUANCE WOULD HAVE BEEN ENTERED FORMALLY ON A PERSONNEL JOURNAL, AND A FORMAL LETTER OF DISCONTINUANCE, CARRYING A JOURNAL NUMBER, WOULD HAVE BEEN ISSUED. THIS PROCEDURE, HOWEVER, WAS NOT TAKEN IN MR. CURRY'S CASE, WHICH LACK OF ADMINISTRATIVE ACTION WOULD INDICATE THAT HE WAS NOT ISSUED A SEPARATION NOTICE WHEREBY HIS NAME WAS REMOVED FROM THE ROLLS.

MR. CURRY IS RECEIVING A SALARY OF $2,520 PER ANNUM, WHICH HAS BEEN HIS RATE OF SALARY SINCE JULY 1, 1924, ON WHICH DATE HE WAS PROMOTED FROM $2,280 TO $2,520. HIS CIVIL-SERVICE STATUS IS THAT OF A PERMANENT ADMINISTRATIVE ASSISTANT, HIS BUREAU DUTIES BEING SPECIAL DISBURSING AGENT.

IT IS RECOMMENDED THAT SETTLEMENT BE MADE IN FAVOR OF MR. CURRY IN SUCH AMOUNT AS MAY BE FOUND LEGALLY DUE, FROM MAY 1, 1925, TO SEPTEMBER 30, 1925, DURING WHICH PERIOD HE WAS RELIEVED FROM DUTY THROUGH NO FAULT OF HIS OWN, AND WAS AWAITING REASSIGNMENT, AND DURING WHICH HE RENDERED NO ACTUAL SERVICE TO THE BUREAU.

IT IS UNDERSTOOD THAT THE ACTION TAKEN BY THE CHIEF OF THE PERSONNEL DIVISION, CENTRAL OFFICE OF THE VETERANS' BUREAU, IS SENDING THE TELEGRAM OF APRIL 29, 1925, DECLARING CLAIMANT'S SERVICES SURPLUS WAS UNDER THE SPECIFIC DIRECTION AND AUTHORITY OF THE DIRECTOR OF THE VETERANS' BUREAU. THERE IS ALSO WITH THE RECORD COPY OF A LETTER FROM THE CENTRAL OFFICE AT WASHINGTON SIGNED "FOR THE DIRECTOR" BY THE MEDICAL DIRECTOR, ADDRESSED TO CLAIMANT, WHEREIN, AFTER QUOTING A TELEGRAM FROM CLAIMANT, IT IS STATED:

THE MATTER OF YOUR TRANSFER IS RECEIVING CONSIDERATION, AND YOU WILL BE INFORMED WHEN DEFINITE ACTION IS TAKEN IN THE MATTER. DURING A RECENT VISIT TO CENTRAL OFFICE THE MATTER OF YOUR STATUS WAS TAKEN UP, AND IT IS BELIEVED THAT THE SITUATION IS UNDERSTOOD BY YOU.

APPARENTLY, THEREFORE, THE REASON FOR THE ACTION OF THE DIRECTOR OF THE VETERANS' BUREAU WAS UNDERSTOOD BY THE CLAIMANT TO BE A SUSPENSION FROM PERFORMANCE OF DUTY PENDING INVESTIGATION OF CHARGES OF INEFFICIENCY MADE BY HIS SUPERIOR OFFICER AT THE FORT BAYARD HOSPITAL.

WHILE THE MANNER OF MAKING THE SUSPENSION MIGHT BE OPEN TO CRITICISM IN THAT THE ORDER RELIEVING FROM PERFORMANCE OF DUTY DID NOT SPECIFICALLY STATE THAT THE ACTION WAS A SUSPENSION FROM DUTY AND PAY PENDING INVESTIGATION OF CHARGES OF INEFFICIENCY, 21 COMP. DEC. 478, YET, IN VIEW OF ALL THE FACTS APPEARING, THERE WOULD SEEM TO BE NO ROOM FOR REASONABLE DOUBT THAT THE ACTION TAKEN WAS EQUIVALENT TO A SUSPENSION FROM DUTY BY THE DIRECTOR OF THE VETERANS' BUREAU, TO WHICH MAY BE APPLIED WELL-SETTLED RULES IN DETERMINING WHETHER CLAIMANT WAS ENTITLED TO SALARY FOR THE PERIOD OF SUSPENSION, THE CHARGES HAVING BEEN DISPROVED AND CLAIMANT RESTORED TO DUTY.

IT IS WELL SETTLED THAT WHERE THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT OFFICE OF THE GOVERNMENT, AS AN INCIDENT TO THE POWER OF APPOINTMENT AND REMOVAL, SUSPENDS AN EMPLOYEE FROM DUTY PENDING THE INVESTIGATION OF CHARGES OF OFFICIAL INEFFICIENCY OR MISCONDUCT, THERE IS NO AUTHORITY TO MAKE PAYMENT OF SALARY FOR THE PERIOD OF SUSPENSION DURING WHICH NO SERVICE IS RENDERED, UNLESS THE ORDER OF SUSPENSION SPECIFICALLY PROVIDES OTHERWISE. 20 COMP. DEC. 505; 21 ID. 478; 25 ID. 996; 27 ID. 657; BURNAP V. UNITED STATES, 252 U.S. 512.

THE RIGHT OF THE EMPLOYEE TO PAY DEPENDS ON HIS BEING IN A DUTY STATUS, THAT IS, IN ACTUAL PERFORMANCE OF SERVICE OR ON AUTHORIZED LEAVE OF ABSENCE WITH PAY. HE IS IN A NONPAY STATUS FOR THE PERIOD OF SUSPENSION WHERE THE ORDER OF SUSPENSION SPECIFICALLY STATES THAT IT SHALL BE WITHOUT PAY OR IS MERELY SILENT UPON THE QUESTION. 11 COMP. DEC. 661; 25 ID. 996; 4 COMP. GEN. 849. IF THE SUSPENSION IS MADE BY A SUBORDINATE OFFICER, AND NOT CONFIRMED BY THE HEAD OF THE DEPARTMENT OR OFFICE, THE SUSPENSION IS ILLEGAL AND WOULD NOT CAUSE A FORFEITURE OF SALARY, 12 COMP. DEC. 653; 26 ID. 444; 27 ID. 656; 21 OP.ATTY.GEN. 356; UNITED STATES. V. WICKERSHAM, 201 U.S. 390, 399; BURNAP V. UNITED STATES, 252 U.S. 512. BUT IN THE PRESENT CASE THE SUBORDINATE OFFICER, VIZ, THE MEDICAL OFFICER OF THE HOSPITAL AT FORT BAYARD, DID NOTHING MORE THAN RECOMMEND ACTION AND ACT UPON AUTHORITY OF THE DIRECTOR OF THE VETERANS' BUREAU. THE ACTUAL SUSPENSION OR RELIEF FROM DUTY IN THIS CASE WAS BY THE DIRECTOR OF THE VETERANS' BUREAU. 1 COMP. GEN. 42 AND CASES THEREIN CITED. THE FACT THAT THE CHARGES WERE DISPROVED AND THE EMPLOYEE RESTORED TO DUTY DOES NOT AUTHORIZE PAYMENT OF SALARY DURING THE THE PERIOD OF SUSPENSION LAWFULLY MADE. 20 COMP. DEC. 505; 21 ID. 478.

IT MUST BE CONCLUDED, THEREFORE, THAT PAYMENT OF SALARY FOR THE PERIOD OF SUSPENSION IS NOT AUTHORIZED. DISALLOWANCE OF THE CLAIM MUST BE AND IS SUSTAINED.