A-21929, MARCH 19, 1928, 7 COMP. GEN. 584

A-21929: Mar 19, 1928

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COMPENSATION - SUSPENSION FROM DUTY WHERE AN EMPLOYEE OF THE GOVERNMENT IS SUSPENDED FROM DUTY AND PAY PENDING AN INVESTIGATION OF CHARGES PREFERRED AGAINST HIM. TO THE EFFECT THAT FIVE PHYSICIANS OF THE UNITED STATES VETERANS' BUREAU AT ONE OF THE HOSPITALS WERE SUSPENDED FROM DUTY AND PAY EFFECTIVE NOVEMBER 14. THEY WERE PERMITTED TO RESIGN EFFECTIVE NOVEMBER 30. YOU REQUEST DECISION WHETHER THEY MAY BE PAID THEIR SALARIES DURING THE PERIOD THEY WERE SUSPENDED FROM ALL DUTY AND PAY PENDING ACTION ON THE CHARGES AND WHEN THEY PERFORMED NO SERVICE FOR THE GOVERNMENT. IS THAT STATED IN 21 COMP. TO THE EFFECT THAT AN ORDER SUSPENDING AN EMPLOYEE OF THE GOVERNMENT FROM DUTY PENDING ACTION ON CHARGES AGAINST HIM MAY BE SO WORDED AS TO RESERVE FOR SUBSEQUENT CONSIDERATION THE RIGHTS OF THE EMPLOYEE TO PAY DURING THE PERIOD OF SUSPENSION IF AND WHEN THE CHARGES ARE DISAPPROVED AND THE EMPLOYEE IS RESTORED TO DUTY.

A-21929, MARCH 19, 1928, 7 COMP. GEN. 584

COMPENSATION - SUSPENSION FROM DUTY WHERE AN EMPLOYEE OF THE GOVERNMENT IS SUSPENDED FROM DUTY AND PAY PENDING AN INVESTIGATION OF CHARGES PREFERRED AGAINST HIM, AND THE INVESTIGATION CULMINATES IN A FORCED RESIGNATION FROM THE PUBLIC SERVICE, THE RIGHT TO PAY TERMINATES AS OF THE DATE OF SUSPENSION REGARDLESS OF ANY PROVISION IN THE ORDER OF SUSPENSION CONCERNING PAY DURING THE PERIOD OF SUSPENSION.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, MARCH 19, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER DATED MARCH 1, 1928, TO THE EFFECT THAT FIVE PHYSICIANS OF THE UNITED STATES VETERANS' BUREAU AT ONE OF THE HOSPITALS WERE SUSPENDED FROM DUTY AND PAY EFFECTIVE NOVEMBER 14, 1927, PENDING ACTION ON CERTAIN CHARGES PREFERRED AGAINST THEM; THAT SUCH ACTION RESULTED IN THE CHARGES BEING SUSTAINED; AND THAT IN LIEU OF DISMISSAL, THEY WERE PERMITTED TO RESIGN EFFECTIVE NOVEMBER 30, 1927, WITH NOTICE THAT "SUCH RESIGNATIONS WOULD BE ACCEPTED WITH PREJUDICE.' YOU REQUEST DECISION WHETHER THEY MAY BE PAID THEIR SALARIES DURING THE PERIOD THEY WERE SUSPENDED FROM ALL DUTY AND PAY PENDING ACTION ON THE CHARGES AND WHEN THEY PERFORMED NO SERVICE FOR THE GOVERNMENT.

THE GENERAL RULE, WHICH HAS BEEN APPLIED FOR MANY YEARS IN CASES INVOLVING THE SUSPENSION OF EMPLOYEES, IS THAT STATED IN 21 COMP. DEC. 478, AND 1 COMP. GEN. 42, TO THE EFFECT THAT AN ORDER SUSPENDING AN EMPLOYEE OF THE GOVERNMENT FROM DUTY PENDING ACTION ON CHARGES AGAINST HIM MAY BE SO WORDED AS TO RESERVE FOR SUBSEQUENT CONSIDERATION THE RIGHTS OF THE EMPLOYEE TO PAY DURING THE PERIOD OF SUSPENSION IF AND WHEN THE CHARGES ARE DISAPPROVED AND THE EMPLOYEE IS RESTORED TO DUTY. THE RIGHT OF AN EMPLOYEE TO PAY DURING A PERIOD OF SUSPENSION DOES NOT DEPEND ENTIRELY UPON THE WORDING OF THE ORDER OF SUSPENSION, A RESTORATION TO DUTY AFTER INVESTIGATION OF THE FACTS BEING A PREREQUISITE IN ANY CASE TO AN ALLOWANCE OF PAY DURING SUCH PERIOD. THAT IS TO SAY, AN ORDER OF SUSPENSION CAN NOT, UNDER ANY CIRCUMSTANCES, GIVE TO A SUSPENDED EMPLOYEE A RIGHT TO PAY DURING A PERIOD OF SUSPENSION WHICH CULMINATES IN HIS SEPARATION FROM THE SERVICE WITHOUT RESTORATION TO DUTY, THOUGH THE ORDER OF SUSPENSION MAY PRESERVE TO THE EMPLOYEE SUCH RIGHT AS HE MAY HAVE TO PAY, IF AND WHEN HE IS CLEARED OF THE CHARGES AND RESTORED TO DUTY. THIS IS THE EXTENT OF THE ADMINISTRATIVE AUTHORITY IN THE MATTER OF THE RIGHT OF AN EMPLOYEE TO PAY DURING A PERIOD OF SUSPENSION.

THE ORDER OF SUSPENSION IN THE PRESENT CASES IS QUOTED BY YOU AS PROVIDING THAT:

THIS SUSPENSION MEASURE CARRIES WITH IT THE PROVISION THAT IF THE CHARGES SUSTAINED OR NOT SUSTAINED THE DIRECTOR MAY EXERCISE HIS PREROGATIVE WITH REFERENCE TO WITHHOLDING SALARY DURING THE ENTIRE PERIOD OF SUSPENSION OR ANY PART THEREOF.

CONSIDERING THE LIMITATION UPON THE ADMINISTRATIVE AUTHORITY TO ALLOW PAY DURING A PERIOD OF SUSPENSION, AS HEREINBEFORE INDICATED, IT MUST BE HELD THAT THE LEGAL EFFECT OF THE PROVISION JUST QUOTED WAS TO RESERVE THE RIGHT, IN THE DISCRETION OF THE DIRECTOR, TO ALLOW OR DISALLOW PAY FOR ALL OR ANY PART OF THE PERIOD OF SUSPENSION IF THE CHARGES SHOULD BE NOT SUSTAINED, IT BEING BEYOND THE SCOPE OF THE DIRECTOR'S AUTHORITY TO ALLOW PAY DURING THE PERIOD OF SUSPENSION IN CASES IN WHICH THE CHARGES ARE SUSTAINED.

THE FACT OF THE CHARGES BEING SUSTAINED IN THIS INSTANCE MAKES THE QUESTION SIMILAR TO THAT CONSIDERED IN ROTHSCHILD V. UNITED STATES, 62 CT.CLS. 297, WHERE THE EMPLOYEE WAS SUSPENDED FROM DUTY AND PAY FOR CAUSE, AND THE COURT SAID:

* * * THE PLAINTIFF DURING THE PERIOD OF HIS SUSPENSION, WHICH WAS A PENALTY LEGALLY IMPOSED UPON HIM, PERFORMED NO SERVICE FOR THE GOVERNMENT, AND WE FAIL TO SEE WHY HE SHOULD NOW BE PAID FOR A PERIOD OF TIME WHEN HE WAS NOT DOING ANY WORK FOR THE GOVERNMENT.

THE OBSERVATIONS OF THE COURT IN THE ROTHSCHILD CASE ARE PARTICULARLY APPLICABLE TO THE PAY OF THE PHYSICIANS IN THIS CASE FOR THE INVESTIGATION OF THE CHARGES NOT ONLY PROVED THE SUSPENSIONS TO HAVE BEEN JUSTIFIED BUT CULMINATED IN THEIR FORCED RESIGNATIONS FROM THE PUBLIC SERVICE. IT MUST BE HELD, IN ACCORDANCE WITH ESTABLISHED PRECEDENTS, THAT FOR ALL PURPOSES OF PAY FORCED RESIGNATIONS UNDER SUSTAINED CHARGES ARE EFFECTIVE FROM THE DATE OF THE SUSPENSION FROM DUTY AND PAY. SEE 1 COMP. GEN. 42, AND DECISIONS THEREIN CITED. THERE IS NO LEGAL OR EQUITABLE JUSTIFICATION FOR A PROVISION IN A SUSPENSION ORDER PURPORTING TO RESERVE A RIGHT TO PERMIT THE EMPLOYEE TO RECEIVE THE PAY WHICH WOULD HAVE OTHERWISE ACCRUED WHEN INVESTIGATION OF THE CHARGES CULMINATE IN A DISMISSAL OR FORCED RESIGNATION FROM THE PUBLIC SERVICE.

ACCORDINGLY, YOU ARE ADVISED THAT, UPON THE FACTS PRESENTED, PAY SUBSEQUENT TO NOVEMBER 14, 1927, IS NOT AUTHORIZED IN EITHER OF THE FIVE CASES SUBMITTED.