A-25738, FEBRUARY 14, 1929, 8 COMP. GEN. 443

A-25738: Feb 14, 1929

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I HAVE TO REQUEST THAT YOU ADVISE ME WHETHER A CLERK REMOVED FROM THE POSTAL SERVICE BECAUSE OF REPEATED CASES OF INTOXICATION ON DUTY SHOULD BE HELD TO HAVE VIOLATED HIS OATH OF OFFICE AND BROKEN HIS CONTRACT WITH THE GOVERNMENT SO AS TO WORK A FORFEITURE OF THE SALARY DUE HIM AT THE TIME OF HIS REMOVAL. IN DETERMINING WHETHER COMPENSATION OTHERWISE DUE FOR PERIODS PRIOR TO DISMISSAL FROM THE SERVICE IS FORFEITED. THE TEST TO BE APPLIED IS WHETHER THE CAUSE OF DISMISSAL IS SUCH AS TO HAVE CONSTITUTED A VIOLATION OF THE OATH OF OFFICE REQUIRED OF THE EMPLOYEE AND A BREACH OF THE CONTRACT OF EMPLOYMENT. IS AS FOLLOWS: I (NAME OF APPOINTEE). DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES.

A-25738, FEBRUARY 14, 1929, 8 COMP. GEN. 443

COMPENSATION - POSTAL EMPLOYEES - DISMISSAL FOR INTOXICATION REPEATED INTOXICATION ON DUTY, WHILE SUFFICIENT CAUSE FOR DISMISSAL OF POSTAL EMPLOYEES UNDER THE POSTAL LAWS AND REGULATIONS, DOES NOT CONSTITUTE SUCH A VIOLATION OF THEIR OATH OF OFFICE OR BREACH OF THEIR CONTRACT OF EMPLOYMENT AS TO CAUSE A FORFEITURE OF COMPENSATION DUE FOR PERIODS PRIOR TO DISMISSAL.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, FEBRUARY 14, 1929:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JANUARY 12, 1929, AS FOLLOWS:

INVITING ATTENTION TO PRIOR DECISIONS OF YOUR OFFICE ON THE QUESTION OF FORFEITURE OF SALARY OF EMPLOYEES DISCHARGED FOR CAUSE, I HAVE TO REQUEST THAT YOU ADVISE ME WHETHER A CLERK REMOVED FROM THE POSTAL SERVICE BECAUSE OF REPEATED CASES OF INTOXICATION ON DUTY SHOULD BE HELD TO HAVE VIOLATED HIS OATH OF OFFICE AND BROKEN HIS CONTRACT WITH THE GOVERNMENT SO AS TO WORK A FORFEITURE OF THE SALARY DUE HIM AT THE TIME OF HIS REMOVAL.

IN DETERMINING WHETHER COMPENSATION OTHERWISE DUE FOR PERIODS PRIOR TO DISMISSAL FROM THE SERVICE IS FORFEITED, THE TEST TO BE APPLIED IS WHETHER THE CAUSE OF DISMISSAL IS SUCH AS TO HAVE CONSTITUTED A VIOLATION OF THE OATH OF OFFICE REQUIRED OF THE EMPLOYEE AND A BREACH OF THE CONTRACT OF EMPLOYMENT. SEE 7 COMP. GEN. 688; ID. 757; DECISION IN THE CRAWFORD CASE, MARCH 3, 1927, A-15584, AND DECISION IN THE CASE OF LOUIS A. DAVIS AND JOHN R. JORDAN, NOVEMBER 13, 1928, A-24937.

THE OATH OF OFFICE REQUIRED OF POSTAL EMPLOYEES APPEARS IN SECTION 332 OF THE POSTAL LAWS AND REGULATIONS, AND IS AS FOLLOWS:

I (NAME OF APPOINTEE), HAVING BEEN APPOINTED (DESIGNATE OFFICE OR EMPLOYMENT), DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES, FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME; THAT I TAKE THIS OBLIGATION FREELY AND WITHOUT ANY MENTAL RESERVATION OR PURPOSE OF EVASION; AND THAT I WILL WELL AND FAITHFULLY DISCHARGE THE DUTIES OF THE OFFICE ON WHICH I AM ABOUT TO ENTER. SO HELP ME GOD.

I DO FURTHER SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL FAITHFULLY PERFORM ALL THE DUTIES REQUIRED OF ME AND ABSTAIN FROM EVERYTHING FORBIDDEN BY THE LAWS IN RELATION TO THE ESTABLISHMENT OF POST OFFICES AND POST ROADS WITHIN THE UNITED STATES; AND THAT I WILL HONESTLY AND TRULY ACCOUNT FOR AND PAY OVER ANY MONEY BELONGING TO THE SAID UNITED STATES WHICH MAY COME INTO MY POSSESSION OR CONTROL; AND I ALSO FURTHER SWEAR (OR AFFIRM) THAT I WILL SUPPORT THE CONSTITUTION OF THE UNITED STATES. SO HELP ME GOD.

THIS OATH IS PROVIDED BY SECTION 1757, REVISED STATUTES, AND SECTION 391, REVISED STATUTES, AS AMENDED BY THE ACT OF MARCH 5, 1874, 18 STAT. 19.

THE POSTAL LAWS AND REGULATIONS FORBID THE USE OF INTOXICATING LIQUORS TO CERTAIN CLASSES OF POSTAL EMPLOYEES WHILE ON DUTY; AND WHILE DRINKING TO EXCESS OF INTOXICATION AT ANY TIME IS STATED AS BEING SUFFICIENT CAUSE FOR DISMISSAL, THERE APPEARS NO SUCH EXPRESS PROHIBITION AGAINST BEING INTOXICATED AS WOULD CONSTITUTE A VIOLATION OF THE OATH OF OFFICE OR A BREACH OF THE CONTRACT OF EMPLOYMENT. SEE SECTION 681, AS TO CITY LETTER CARRIERS; SECTION 741 AS TO RURAL LETTER CARRIERS; AND SECTION 1531 AS TO RAILWAY MAIL CARRIERS.