A-34943, JANUARY 30, 1931, 10 COMP. GEN. 327

A-34943: Jan 30, 1931

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COMPENSATION - HOLIDAYS BY EXECUTIVE ORDER - PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA ARE NOT ENTITLED TO COMPENSATION FOR DECEMBER 24. NOTWITHSTANDING THAT ALL FEDERAL DEPARTMENTS AND SERVICES WERE EXCUSED FROM LABOR UPON THAT DAY BY EXECUTIVE ORDER. AS FOLLOWS: THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA DESIRE TO SUBMIT TO YOU FOR AN OPINION THE QUESTION OF WHETHER OR NOT PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA WERE ENTITLED TO LEAVE OF ABSENCE WITH PAY ON DECEMBER 24. PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA ARE ENTITLED TO FIFTEEN DAYS' LEAVE. THIS SECTION PROVIDES: "HEREAFTER ALL PER DIEM EMPLOYEES AND DAY LABORERS OF THE DISTRICT OF COLUMBIA WHO HAVE BEEN REGULARLY EMPLOYED FOR FIFTEEN WORKING DAYS NEXT PRECEDING SUCH DAYS AS ARE LEGAL HOLIDAYS IN THE DISTRICT OF COLUMBIA.

A-34943, JANUARY 30, 1931, 10 COMP. GEN. 327

COMPENSATION - HOLIDAYS BY EXECUTIVE ORDER - PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA ARE NOT ENTITLED TO COMPENSATION FOR DECEMBER 24, 1930, WHEN THEY PERFORMED NO SERVICE, UNLESS ENTITLED TO AND GRANTED LEAVE OF ABSENCE UNDER THE ACT OF FEBRUARY 22, 1921, 41 STAT. 1144, NOTWITHSTANDING THAT ALL FEDERAL DEPARTMENTS AND SERVICES WERE EXCUSED FROM LABOR UPON THAT DAY BY EXECUTIVE ORDER.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, JANUARY 30, 1931:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 15, 1931, AS FOLLOWS:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA DESIRE TO SUBMIT TO YOU FOR AN OPINION THE QUESTION OF WHETHER OR NOT PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA WERE ENTITLED TO LEAVE OF ABSENCE WITH PAY ON DECEMBER 24, 1930, THAT DATE HAVING BEEN DECLARED A HOLIDAY BY EXECUTIVE ORDER.

UNDER SECTION 7 OF THE ACT OF JUNE 5, 1920 (41 STAT. 873), PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA ARE ENTITLED TO FIFTEEN DAYS' LEAVE, IN ADDITION TO LEGAL HOLIDAYS, WITH PAY. THIS SECTION PROVIDES:

"HEREAFTER ALL PER DIEM EMPLOYEES AND DAY LABORERS OF THE DISTRICT OF COLUMBIA WHO HAVE BEEN REGULARLY EMPLOYED FOR FIFTEEN WORKING DAYS NEXT PRECEDING SUCH DAYS AS ARE LEGAL HOLIDAYS IN THE DISTRICT OF COLUMBIA, AND WHOSE EMPLOYMENT CONTINUES THROUGH AND BEYOND SAID LEGAL HOLIDAYS, SHALL BE GRANTED SUCH LEAVE OF ABSENCE WITH PAY AS IS GRANTED THE REGULAR ANNUAL EMPLOYEES OF THE DISTRICT OF COLUMBIA FOR SAID LEGAL HOLIDAYS.'

SECTION 5 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT, APPROVED JULY 3, 1930, PROVIDES IN PART,"ANY PERSON EMPLOYED UNDER ANY OF THE PROVISIONS OF THIS ACT WHO HAS BEEN EMPLOYED FOR TEN CONSECUTIVE MONTHS OR MORE SHALL NOT BE DENIED THE LEAVE OF ABSENCE WITH PAY FOR WHICH THE LAW PROVIDES.'

UNDER SECTION 1389 OF THE CODE OF LAW OF THE DISTRICT OF COLUMBIA, CERTAIN DAYS HAVE BEEN DESIGNATED AS LEGAL HOLIDAYS, AND ON THESE DAYS PER DIEM EMPLOYEES ARE ENTITLED TO LEAVE OF ABSENCE WITH PAY AS IS GRANTED TO REGULAR ANNUAL EMPLOYEES; PROVIDED, THEY HAVE BEEN REGULARLY EMPLOYED FOR FIFTEEN WORKING DAYS NEXT PRECEDING SAID LEGAL HOLIDAY, AND WHOSE EMPLOYMENT CONTINUES THROUGH AND BEYOND SAID LEGAL HOLIDAY. (SEE COMPTROLLER OF THE TREASURY'S DECISIONS DATED JANUARY 22, 1918, AND SEPTEMBER 18, 1918.) THERE ARE SOME PER DIEM EMPLOYEES, HOWEVER, WHO BY REASON OF THE EXIGENCIES OF THE PUBLIC SERVICE ARE REQUIRED TO BE EMPLOYED ON LEGAL HOLIDAYS. THESE EMPLOYEES ACCEPT THEIR POSITIONS SUBJECT TO THIS CONDITION.

THE QUESTION PRESENTED IS WHETHER THE EXECUTIVE ORDER DATED DECEMBER 15, 1930, DECLARING DECEMBER 24, 1930, TO BE A HOLIDAY, SHOULD EXTEND THAT PRIVILEGE TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA. LEAVE OF ABSENCE WITH PAY OTHER THAN THAT INDICATED ABOVE HAS BEEN DENIED TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA. IN VIEW OF THE FACT THAT PER DIEM EMPLOYEES OF THE NAVY YARD WERE GRANTED LEAVE OF ABSENCE WITH PAY ON TUESDAY, DECEMBER 24, 1929, THAT DATE ALSO HAVING BEEN DECLARED A HOLIDAY BY EXECUTIVE ORDER, IT IS BELIEVED THAT THE SAME LEAVE PRIVILEGE SHOULD EXTEND TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA FOR DECEMBER 24, 1930, AND SUCH OTHER DAYS AS MAY BE DECLARED HOLIDAYS BY EXECUTIVE ORDER.

COMPENSATION WAS PAID TO PER DIEM EMPLOYEES OF THE NAVY YARD AS A RESULT OF A LETTER DATED JANUARY 10, 1930, FROM THE ACTING SECRETARY OF THE NAVY, ERNEST LEE JAHNCKE, TO THE COMMANDANT OF THE NAVY YARD, WASHINGTON, D.C. THIS LETTER IS QUOTED BELOW FOR YOUR INFORMATION:

"YOUR ATTENTION IS INVITED TO THE FOLLOWING EXTRACT LETTER FROM THE ATTORNEY GENERAL OF THE UNITED STATES TO THE PRESIDENT DATED DECEMBER 20, 1929, RELATIVE TO EXCUSING EMPLOYEES IN THE DISTRICT OF COLUMBIA FROM DUTY ON TUESDAY, DECEMBER 24, 1929, WHICH READS AS FOLLOWS:

"I HAVE TAKEN THE MATTER UP WITH THE COMPTROLLER GENERAL'S OFFICE AND AM ADVISED THAT UNDER EIGHT COMPTROLLER'S DECISIONS, 235, ISSUED IN 1901, REGULAR AND PERMANENT EMPLOYEES, ALTHOUGH THEIR PAY IS MEASURED ON A PER DIEM BASIS WILL BE ENTITLED TO RECEIVE A DAY'S PAY NOTWITHSTANDING THEY ARE EXCUSED FROM DUTY, AND THAT CASUAL EMPLOYEES, OF WHOM THERE ARE A VERY LIMITED NUMBER, IF ANY, WILL SUFFER A LOSS OF THEIR PAY ON THAT DAY FROM THE CLOSING OF THE DEPARTMENT OR ESTABLISHMENT.'

"IN VIEW OF THE FOREGOING, PAR. 3 OF REFERENCE B (ABOVE) IS MODIFIED AND IT IS HEREBY DIRECTED THAT ALL REGULAR EMPLOYEES AT THE YARD, STATION, OR ESTABLISHMENT UNDER YOUR COMMAND BE PAID FOR CHRISTMAS EVE, DECEMBER 24, 1929.'

YOUR EARLY DECISION IN THE MATTER WILL BE APPRECIATED.

THE EXECUTIVE ORDER OF DECEMBER 15, 1930, NO. 5514, PROVIDED AS FOLLOWS:

IT IS HEREBY ORDERED THAT THE SEVERAL EXECUTIVE DEPARTMENTS AND INDEPENDENT GOVERNMENT ESTABLISHMENTS IN THE DISTRICT OF COLUMBIA, INCLUDING THE GOVERNMENT PRINTING OFFICE AND THE NAVY YARD AND STATIONS, BE CLOSED ON WEDNESDAY, DECEMBER 24, 1930, AND ALL CLERKS AND OTHER EMPLOYEES IN THE FEDERAL SERVICE IN THE DISTRICT OF COLUMBIA, EXCEPT THOSE WHO MAY FOR SPECIAL PUBLIC REASONS BE EXCEPTED FROM THE PROVISIONS OF THIS ORDER, OR THOSE WHOSE ABSENCE FROM DUTY WOULD BE INCONSISTENT WITH THE PROVISIONS OF EXISTING LAW, ARE HEREBY EXCUSED FROM DUTY ON THAT DAY.

THIS ORDER IS NOT TO BE DEEMED AS ESTABLISHING A PRECEDENT.

IT WILL BE NOTED THAT THE EXECUTIVE ORDER DID NOT DECLARE DECEMBER 24, 1930, TO BE A HOLIDAY, AS SET FORTH IN YOUR SUBMISSION, AND DID NOT MAKE ANY REFERENCE TO MUNICIPAL EMPLOYEES OF THE DISTRICT OF COLUMBIA BUT RELATED TO FEDERAL EMPLOYEES ONLY. SUCH BEING THE CASE, ANY ACTION TAKEN WITH RESPECT TO COMPENSATION OF PER DIEM EMPLOYEES OF THE NAVY YARD OR ANY OTHER GOVERNMENT ESTABLISHMENT FOR THAT DAY WOULD HAVE NO BEARING UPON THE RIGHTS OF PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA.

TITLE 22, SECTION 126 OF THE DISTRICT OF COLUMBIA CODE, ENUMERATES THE DAYS WHICH SHALL BE LEGAL HOLIDAYS IN THE DISTRICT OF COLUMBIA, AND I FIND NO AUTHORITY, AND NONE HAS BEEN CITED, EMPOWERING THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA TO DECLARE ANY OTHER DAY A LEGAL HOLIDAY. I FIND NO AUTHORITY IN SECTION 7 OF THE ACT OF JUNE 5, 1920, QUOTED IN YOUR SUBMISSION, FOR GRANTING 15 DAYS' LEAVE OF ABSENCE TO PER DIEM EMPLOYEES. HOWEVER, SECTION 8 OF THE ACT OF FEBRUARY 22, 1921, 41 STAT. 1144, PROVIDES:

THAT THE COMMISSIONERS ARE AUTHORIZED IN THEIR DISCRETION, AND UNDER SUCH REGULATIONS AS THEY MAY PRESCRIBE, TO GRANT NOT EXCEEDING FIFTEEN DAYS' LEAVE OF ABSENCE WITH PAY EACH YEAR TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA WHO HAVE BEEN EMPLOYED FOR TEN CONSECUTIVE MONTHS OR MORE.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT PER DIEM EMPLOYEES AND DAY LABORERS WHO PERFORMED NO SERVICE ON DECEMBER 24, 1930, ARE NOT ENTITLED TO PAY FOR THAT DAY UNLESS ENTITLED TO AND GRANTED LEAVE OF ABSENCE IN ACCORDANCE WITH SECTION 8 OF THE ACT OF FEBRUARY 22, 1921, SUPRA. ..END :