A-35907, APRIL 17, 1931, 10 COMP. GEN. 478

A-35907: Apr 17, 1931

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COMPENSATION - DISMISSALS EVEN THOUGH THE DISMISSAL OF A CIVIL-SERVICE EMPLOYEE MAY NOT HAVE BEEN JUSTIFIED ON THE EVIDENCE DEDUCED. FULL COMPLIANCE MAY NOT HAVE BEEN MADE BY THE ADMINISTRATIVE OFFICE WITH THE TERMS OF THE ACT OF AUGUST 24. DURING WHICH NO SERVICE HAS BEEN RENDERED AND CLAIMANT WAS NOT IN A STATUS OF LEAVE OF ABSENCE WITH PAY. IS NOT. THE MATTER WILL BE FORWARDED TO THE DEPARTMENT WITH RECOMMENDATION FOR YOUR REMOVAL FROM THE SERVICE. A COPY OF WHICH IS WITH THE RECORD IN THIS OFFICE. CLAIMANT MADE AN EXTENDED REPLY TO THOSE CHARGES AND HEARING WAS HELD AT WHICH A NUMBER OF WITNESSES TESTIFIED. AS A RESULT CLAIMANT WAS ADVISED BY LETTER DATED APRIL 26. HAVE BEEN DISCONTINUED WITH PREJUDICE.

A-35907, APRIL 17, 1931, 10 COMP. GEN. 478

COMPENSATION - DISMISSALS EVEN THOUGH THE DISMISSAL OF A CIVIL-SERVICE EMPLOYEE MAY NOT HAVE BEEN JUSTIFIED ON THE EVIDENCE DEDUCED, AND FULL COMPLIANCE MAY NOT HAVE BEEN MADE BY THE ADMINISTRATIVE OFFICE WITH THE TERMS OF THE ACT OF AUGUST 24, 1912, 37 STAT. 555, WITH RESPECT TO NOTICE OF CHARGES, HEARING ETC., CLAIM FOR COMPENSATION MAY NOT BE ALLOWED BY THE GENERAL ACCOUNTING DEPARTMENT COVERING ANY PERIOD SUBSEQUENT TO DATE OF DISMISSAL BY COMPETENT ADMINISTRATIVE AUTHORITY, DURING WHICH NO SERVICE HAS BEEN RENDERED AND CLAIMANT WAS NOT IN A STATUS OF LEAVE OF ABSENCE WITH PAY.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 17, 1931:

LEONARD H. STOCKMAN, THROUGH HIS ATTORNEY, CHARLES B. BREWER, HAS REQUESTED REVIEW OF SETTLEMENT NO. 0280278, DATED JANUARY 14, 1930, DISALLOWING HIS CLAIM FOR COMPENSATION AS AN EMPLOYEE OF THE BUREAU OF ENGRAVING AND PRINTING, FOR PERIOD SUBSEQUENT TO APRIL 26, 1929, DATE OF HIS SEPARATION FROM THE SERVICE.

THE RECORD DISCLOSES THAT BY LETTER DATED MARCH 21, 1929, THE DIRECTOR OF THE BUREAU OF ENGRAVING AND PRINTING, ADDRESSED CLAIMANT, AS FOLLOWS:

I SUBMIT HEREWITH IN ACCORDANCE WITH DEPARTMENT CIRCULAR NO. 34, DATED AUGUST 5, 1914, FOR SUCH ANSWER AS YOU MAY DEEM NECESSARY TO MAKE THERETO, A REPORT OF THE SUPERINTENDENT OF THE ENGINEERING AND MACHINE DIVISION OF THIS BUREAU, SUPPORTED BY STATEMENTS OF OTHER SUPERVISORS IN THAT DIVISION, CHARGING YOU WITH INSUBORDINATION AND CONDUCT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE. IF THE STATEMENT SUBMITTED BY YOU, IN COMPLIANCE WITH THIS REQUEST, IS NOT, IN MY OPINION, A SUFFICIENT ANSWER TO THE CHARGES MADE AGAINST YOU, THE MATTER WILL BE FORWARDED TO THE DEPARTMENT WITH RECOMMENDATION FOR YOUR REMOVAL FROM THE SERVICE. SUCH ANSWER AS YOU MAY DESIRE TO MAKE MUST BE SUBMITTED TO ME IN WRITING WITHIN THREE DAYS FROM THE RECEIPT OF THIS COMMUNICATION.

BY LETTER DATED MARCH 28, 1929, A COPY OF WHICH IS WITH THE RECORD IN THIS OFFICE, CLAIMANT MADE AN EXTENDED REPLY TO THOSE CHARGES AND HEARING WAS HELD AT WHICH A NUMBER OF WITNESSES TESTIFIED. AS A RESULT CLAIMANT WAS ADVISED BY LETTER DATED APRIL 26, 1929, SIGNED BY THE ACTING CHIEF, DIVISION OF APPOINTMENTS, TREASURY DEPARTMENT, AS FOLLOWS:

BY DIRECTION OF THE SECRETARY YOUR SERVICES AS AN ELECTRICIAN AT $8.80 PER DIEM, AND $1.65 PER HOUR FOR OVERTIME, IN THE ENGINEERING AND MACHINE DIVISION, BUREAU OF ENGRAVING AND PRINTING, HAVE BEEN DISCONTINUED WITH PREJUDICE, TO TAKE EFFECT AT THE CLOSE OF BUSINESS ON APRIL 26, 1929, BECAUSE OF INSUBORDINATION AND CONDUCT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE.

THE BASIS OF THE INSTANT CLAIM IS THAT DISMISSAL FROM THE SERVICE WAS ILLEGAL FOR THE ALLEGED REASON THAT "THOUGH CHARGES IN WRITING WERE FURNISHED MR. STOCKMAN, THEY WERE NOT THE CHARGES DEPENDED UPON FOR HIS REMOVAL AND HE HAS NEVER BEEN FURNISHED WITH THE CHARGES FOR WHICH IT WAS ATTEMPTED TO DISCHARGE HIM, IN FACT, HIS FREQUENT REQUESTS FOR SAME HAVE MET WITH REFUSAL. * * *"

SECTION 6 OF THE ACT OF AUGUST 24, 1912, 37 STAT. 555, PROVIDES, IN PART, AS FOLLOWS:

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; * * *

THE RECORD IN THIS OFFICE SHOWS THAT THE CHARGES MADE IN LETTER ADDRESSED TO, AND ANSWERED BY CLAIMANT, WERE "INSUBORDINATION AND CONDUCT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE.' THE NOTICE OF DISMISSAL STATED THE SAME REASONS FOR THE ADMINISTRATIVE ACTION, CLAIMANT APPARENTLY HAVING FAILED TO ANSWER SATISFACTORILY THE CHARGES MADE.

IN SO FAR AS THE CLAIMANT'S RIGHT TO PAY IS CONCERNED, IT MUST BE HELD THAT THE REQUIREMENTS OF THE ACT OF AUGUST 24, 1912, SUPRA, HAVE BEEN COMPLIED WITH. SEE 26 COMP. DEC. 804, WHEREIN IT WAS HELD (QUOTED FROM THE SYLLABUS):

THE COMPTROLLER OF THE TREASURY HAS NO JURISDICTION TO PASS UPON ADMINISTRATION OF THE CIVIL SERVICE LAWS AND REGULATIONS THEREUNDER OR UPON THE VALIDITY AND EFFECT OF PARTICULAR OFFICIAL ACTS CONNECTING THEREWITH OTHERWISE THAN MAY BE NECESSARILY INVOLVED IN PASSING UPON THE VALIDITY OF CLAIMS AGAINST THE GOVERNMENT PENDING BEFORE THE ACCOUNTING OFFICERS OF THE TREASURY FOR SETTLEMENT.

ASIDE FROM THE QUESTION WHETHER FULL COMPLIANCE WAS MADE BY THE ADMINISTRATIVE OFFICE WITH THE TERMS OF THE ACT OF AUGUST 24, 1912, IT MUST BE CONCLUDED THAT THE DISMISSAL OF CLAIMANT BY ORDER OF THE SECRETARY OF THE TREASURY, THE APPOINTING POWER, COMPLETELY SEPARATED THE CLAIMANT FROM THE SERVICE. EVEN THOUGH THE DISMISSAL MAY NOT HAVE BEEN JUSTIFIED ON THE EVIDENCE DEDUCED, AND A FULL COMPLIANCE MAY NOT HAVE BEEN MADE WITH THE TERMS OF THE ACT OF AUGUST 24, 1912, CLAIM FOR COMPENSATION MAY NOT BE ALLOWED BY THIS OFFICE COVERING ANY PERIOD SUBSEQUENT TO DATE OF DISMISSAL, DURING WHICH NO SERVICE HAS BEEN RENDERED AND CLAIMANT WAS NOT IN A STATUS OF LEAVE OF ABSENCE WITH PAY. O-NEIL V. UNITED STATES, 56 CT.CLS. 89; WILMETH V. UNITED STATES, 64 CT.CLS. 368. THE CASE OF THE UNITED STATES V. WICKERSHAM, 201 U.S. 390, TO WHICH THE CLAIMANT REFERS IN SUPPORT OF HIS CLAIM, IS TO BE DISTINGUISHED BECAUSE THE FACTS THERE DISCLOSED THAT THE SUSPENSION OF THE EMPLOYEE FROM THE SERVICE WAS BY A SUBORDINATE OFFICER, WHICH ACTION WAS FINALLY DISAPPROVED BY THE APPOINTING POWER. THIS CASE WAS URGED BEFORE THE COURT OF CLAIMS BY THE PLAINTIFF IN THE CASE OF O-NEILL V. UNITED STATES, SUPRA, BUT THE COURT PROPERLY HELD (QUOTING FROM THE SYLLABUS):

WHERE THE HEAD OF AN EXECUTIVE DEPARTMENT REMOVES FROM THE OFFICE AN EMPLOYEE IN THE CLASSIFIED CIVIL SERVICE WITHOUT STATING IN WRITING THE CAUSE OF REMOVAL AND FILING THE SAME AS DIRECTED BY LAW AND THE RULES OF THE CIVIL SERVICE COMMISSION, THE REMOVAL IS NEVERTHELESS VALID.

WHERE AN EMPLOYEE HAS BEEN ILLEGALLY REMOVED FROM OFFICE THE COURT HAS NO JURISDICTION OF A CLAIM FOR SALARY UNLESS HIS RIGHT TO THE OFFICE HAS BEEN ESTABLISHED BY A COURT OF COMPETENT JURISDICTION.