A-41027, APRIL 7, 1932, 11 COMP. GEN. 382

A-41027: Apr 7, 1932

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IS ENTITLED TO THE PAY AND ALLOWANCES OF HIS GRADE AND LENGTH OF SERVICE DURING PERIOD OF SUSPENSION FROM DUTY. EVEN THOUGH NO DUTY IS PERFORMED. UNDER THE WELL-SETTLED RULE THAT THE RIGHT TO COMPENSATION ATTACHED TO A PUBLIC OFFICE IS AN INCIDENT TO THE TITLE TO THE OFFICE AND NOT TO THE EXERCISE OF THE FUNCTIONS OF THE OFFICE. THE RULE IS DISTINGUISHED FROM THAT APPLICABLE TO CIVIL EMPLOYEES OF THE GOVERNMENT. DISALLOWANCE OF THE CLAIM WAS ON THE BASIS THAT CLAIMANT WAS A CIVILIAN EMPLOYEE OF THE GOVERNMENT. APPLICATION BEING MADE OF THE RULE THAT THERE IS NO AUTHORITY TO MAKE PAYMENT OF SALARY FOR A PERIOD OF SUSPENSION DURING WHICH NO SERVICE IS RENDERED. 4 COMP. CLAIMANT WAS AN OFFICER IN THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE COMMISSIONED BY THE PRESIDENT.

A-41027, APRIL 7, 1932, 11 COMP. GEN. 382

PAY AND ALLOWANCES - SUSPENSION FROM DUTY - PUBLIC HEALTH SERVICE OFFICER AN OFFICER IN THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE, COMMISSIONED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, IS ENTITLED TO THE PAY AND ALLOWANCES OF HIS GRADE AND LENGTH OF SERVICE DURING PERIOD OF SUSPENSION FROM DUTY, EVEN THOUGH NO DUTY IS PERFORMED, UNDER THE WELL-SETTLED RULE THAT THE RIGHT TO COMPENSATION ATTACHED TO A PUBLIC OFFICE IS AN INCIDENT TO THE TITLE TO THE OFFICE AND NOT TO THE EXERCISE OF THE FUNCTIONS OF THE OFFICE. THE RULE IS DISTINGUISHED FROM THAT APPLICABLE TO CIVIL EMPLOYEES OF THE GOVERNMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 7, 1932:

REVIEW HAS BEEN REQUESTED ON BEHALF OF DR. LEONARD GREENBURG,SANITARY ENGINEER, PUBLIC HEALTH SERVICE, OF SETTLEMENT NO. 0355018, DECEMBER 22, 1931, DISALLOWING HIS CLAIM FOR $756.60, PAY AND ALLOWANCES DURING THE PERIOD OF HIS SUSPENSION, AUGUST 29 TO OCTOBER 28, 1931, INCLUSIVE.

DISALLOWANCE OF THE CLAIM WAS ON THE BASIS THAT CLAIMANT WAS A CIVILIAN EMPLOYEE OF THE GOVERNMENT, APPLICATION BEING MADE OF THE RULE THAT THERE IS NO AUTHORITY TO MAKE PAYMENT OF SALARY FOR A PERIOD OF SUSPENSION DURING WHICH NO SERVICE IS RENDERED. 4 COMP. GEN. 849.

CLAIMANT WAS AN OFFICER IN THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE COMMISSIONED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. UNDER AUTHORITY OF SECTION 5 OF THE ACT OF APRIL 9, 1930, 46 STAT. 150, HE WAS ISSUED A TEMPORARY COMMISSION, EFFECTIVE SEPTEMBER 5, 1930, DURING A RECESS OF THE SENATE, WHICH WAS CONFIRMED AND MADE PERMANENT, EFFECTIVE DECEMBER 15, 1930, AS A SANITARY ENGINEER WITH THE GRADE OF SURGEON IN THE REGULAR CORPS OF THE PUBLIC HEALTH SERVICE. HAS HAD LESS THAN 23 AND MORE THAN 12 YEARS' ACCREDITED SERVICE. THE CLAIM HAS BEEN PRESENTED COMPUTING PAY AND ALLOWANCES UNDER THE TERMS OF THE ACT OF JUNE 10, 1922, 42 STAT. 625, PAY AT THE RATE OF $3,000 PER ANNUM, 20 PERCENT LONGEVITY INCREASE FOR OVER 12 AND LESS THAN 15 YEARS' SERVICE, RENTAL ALLOWANCE, THREE ROOMS, AT THE RATE OF $60 PER MONTH, AND ONE SUBSISTENCE ALLOWANCE AT THE RATE OF 60 CENTS PER DAY, ON THREE VOUCHERS COVERING THE PERIOD INVOLVED IN AUGUST, SEPTEMBER, AND OCTOBER, 1931, RESPECTIVELY, WHICH HAVE HAD ADMINISTRATIVE APPROVAL.

THE FOLLOWING ORDER, DATED AUGUST 12, 1931, SIGNED BY THE ACTING SECRETARY OF THE TREASURY, ISSUED TO THE CLAIMANT:

YOU ARE HEREBY DIRECTED TO PROCEED FROM SAN FRANCISCO, CALIFORNIA, TO NEW YORK CITY, AND UPON YOUR ARRIVAL IN NEW YORK YOU ARE DIRECTED TO REPORT TO MEDICAL DIRECTOR C. H. LAVINDER, CHAIRMAN OF A BOARD OF COMMISSIONED OFFICERS CONVENED TO INVESTIGATE CERTAIN CHARGES WHICH HAVE BEEN PREFERRED AGAINST YOU.

UPON REPORTING TO MEDICAL DIRECTOR LAVINDER YOU WILL STAND SUSPENDED FROM FURTHER DUTY PENDING ACTION UPON THE REPORT TO BE MADE BY THE BOARD OF WHICH DR. LAVINDER IS CHAIRMAN.

A COPY OF THE CHARGES PREFERRED AGAINST YOU IS INCLOSED HEREWITH FOR YOUR INFORMATION.

YOU ARE AUTHORIZED TO USE TREASURY DEPARTMENT TRANSPORTATION REQUESTS FOR RAILROAD TRANSPORTATION (BUT NOT FOR SLEEPING AND PARLOR CAR ACCOMMODATIONS). REIMBURSEMENT AT THE RATE OF EIGHT CENTS PER MILE FOR THE NECESSARY TRAVEL PERFORMED IN CARRYING OUT THE PROVISIONS OF THIS ORDER IS AUTHORIZED.

IT IS REQUESTED THAT YOU ACKNOWLEDGE RECEIPT OF THIS ORDER.

THE TRAVEL DIRECTED IS NECESSARY IN THE PUBLIC INTEREST.

THIS ORDER WAS COMPLIED WITH, AND BY LETTER DATED OCTOBER 30, 1931, CLAIMANT WAS ADVISED BY THE SURGEON GENERAL AS FOLLOWS:

REFERENCE IS MADE TO DEPARTMENT ORDER OF AUGUST 12, 1931, IN WHICH YOU WERE SUSPENDED FROM DUTY, EFFECTIVE AT THE CLOSE OF BUSINESS AUGUST 28, 1931, PENDING ACTION UPON THE REPORT OF A BOARD CONVENED TO INVESTIGATE CERTAIN CHARGES WHICH WERE PREFERRED AGAINST YOU.

THE BOARD FINDS:

FIRST SPECIFICATION: PROVED.

SECOND SPECIFICATION: NOT PROVED.

THIRD SPECIFICATION: PROVED EXCEPT THE WORD "FALSE" IN THE FIRST SENTENCE. THE WORD ,INCOMPLETE" IS SUBSTITUTED BY THE BOARD.

CHARGE: GUILTY IN LESS DEGREE THAN CHARGED.

THE BOARD RECOMMENDS:

1. TO BE REDUCED IN RANK TO THE BOTTOM OF HIS GRADE.

2. TO REMAIN IN THIS POSITION IN HIS GRADE FOR A PERIOD OF THREE YEARS.

3. OFFICIAL REPRIMAND BY CIRCULAR LETTER.

THE ABOVE FINDINGS AND RECOMMENDATIONS OF THE BOARD HAVE RECEIVED MY APPROVAL AND ALSO THAT OF THE SECRETARY OF THE TREASURY, AND YOU ARE HEREBY RETURNED TO A DUTY STATUS EFFECTIVE OCTOBER 29, 1931.

CIRCULAR LETTER OF THE SAME DATE TO THE CLAIMANT CONTAINED A REPRIMAND AND STATED:

YOU ARE HEREBY REDUCED IN RANK TO THE BOTTOM OF THE GRADE OF SURGEON AND ARE TO REMAIN IN THAT POSITION FOR A PERIOD OF THREE YEARS.

THERE IS FOR APPLICATION IN THIS CASE IN DETERMINING THE RIGHT TO PAY AND ALLOWANCE DURING THE PERIOD OF SUSPENSION NOT THE PRINCIPLES OF LAW APPLICABLE TO EMPLOYEES, ON THE BASIS OF WHICH THE DISALLOWANCE OF DECEMBER 22, 1931, WAS MADE, BUT THE PRINCIPLES OF LAW APPLICABLE TO AN OFFICER COMMISSIONED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. WITH RESPECT TO EMPLOYEES, IT HAS BEEN HELD THAT THE APPROPRIATIONS MADE BY THE PAYMENT OF THEIR REGULAR SALARIES ARE AVAILABLE FOR SALARY PAYMENTS ONLY FOR PERIODS WHEN IN AN ACTUAL DUTY STATUS OR ON AUTHORIZED LEAVE WITH PAY, BUT THE RULE APPLICABLE TO OFFICERS IS STATED IN 46 CORPUS JURIS, 1015, AS OLLOWS:

* * * THE RIGHT TO THE COMPENSATION ATTACHED TO A PUBLIC OFFICE IS AN INCIDENT TO THE TITLE TO THE OFFICE AND NOT TO THE EXERCISE OF THE FUNCTIONS OF THE OFFICE; HENCE, THE FACT THAT OFFICERS HAVE NOT PERFORMED THE DUTIES OF THE OFFICE DOES NOT DEPRIVE THEM OF THE RIGHT TO COMPENSATION, PROVIDED THEIR CONDUCT DOES NOT AMOUNT TO AN ABANDONMENT OF THE OFFICE. CITING PACK V. UNITED STATES, 41 CT.CLS. 414, AND SLEIGH V. UNITED STATES, 9 CT.CLS. 369.

UPON REVIEW THE SETTLEMENT IS REVERSED AND THERE IS CERTIFIED DUE CLAIMANT PAY AND ALLOWANCE OF HIS GRADE AND LENGTH OF SERVICE AUGUST 29 TO OCTOBER 28, 1931, INCLUSIVE.