A-43265, JULY 15, 1932, 12 COMP. GEN. 49

A-43265: Jul 15, 1932

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WAS NOT OR COULD NOT HAVE BEEN TAKEN PRIOR TO THAT DATE. THE COMMISSION IS PERMITTED TO GRANT TO ITS EMPLOYEES ANY UNUSED PART OF THE FIFTEEN DAYS ANNUAL LEAVE WHICH ACCRUED IN THE PERIOD FROM JANUARY 1 TO JUNE 30. THIS QUESTION IS IMPORTANT TO THE COMMISSION FOR THE REASON THAT IT HAS BEEN NECESSARY TO CHARGE OFF ANNUAL LEAVE OF ABSENCE WITH PAY DURING THE MONTHS OF JULY AND AUGUST OF EACH YEAR. THAT IS TO SAY. ONE HALF THE COMMISSION PERSONNEL HAVE BEEN GRANTED ANNUAL LEAVE DURING THE MONTH OF JULY AND ONE HALF DURING THE MONTH OF AUGUST. EXCEPTIONS TO THE RULE HAVE OCCURRED ONLY WHEN EXCEPTIONAL CIRCUMSTANCES WERE PRESENT. IT IS OUR UNDERSTANDING THAT THIS POLICY IS AT VARIANCE WITH THE POLICIES IN EFFECT THROUGHOUT THE GOVERNMENT SERVICE.

A-43265, JULY 15, 1932, 12 COMP. GEN. 49

ECONOMY ACT - LEAVE OF ABSENCE - FEDERAL RADIO COMMISSION IN VIEW OF THE PROVISIONS OF SECTION 103 OF THE ACT OF JUNE 30, 1932, 47 STAT. 400, EMPLOYEES OF THE FEDERAL RADIO COMMISSION MAY NOT BE GRANTED LEAVE WITH PAY DURING THE FISCAL YEAR 1933, NOTWITHSTANDING THE ADMINISTRATIVE RULE OR PRACTICE PREVIOUSLY APPLIED TO THE GRANTING OF ANNUAL LEAVE TO EMPLOYEES OF THAT SERVICE OR THAT THE LEAVE ACCRUING PRIOR TO JULY 1, 1932, WAS NOT OR COULD NOT HAVE BEEN TAKEN PRIOR TO THAT DATE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE FEDERAL RADIO COMMISSION, JULY 15, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 7, 1932, AS FOLLOWS:

I DESIRE TO INQUIRE WHETHER IN VIEW OF THE PROVISIONS OF SECTION 103 OF THE ACT ENTITLED "AN ACT MAKING APPROPRIATIONS FOR THE LEGISLATIVE BRANCH OF THE GOVERNMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1933, AND FOR OTHER PURPOSES," APPROVED JUNE 30, 1932, THE COMMISSION IS PERMITTED TO GRANT TO ITS EMPLOYEES ANY UNUSED PART OF THE FIFTEEN DAYS ANNUAL LEAVE WHICH ACCRUED IN THE PERIOD FROM JANUARY 1 TO JUNE 30, 1932.

THIS QUESTION IS IMPORTANT TO THE COMMISSION FOR THE REASON THAT IT HAS BEEN NECESSARY TO CHARGE OFF ANNUAL LEAVE OF ABSENCE WITH PAY DURING THE MONTHS OF JULY AND AUGUST OF EACH YEAR; THAT IS TO SAY, ONE HALF THE COMMISSION PERSONNEL HAVE BEEN GRANTED ANNUAL LEAVE DURING THE MONTH OF JULY AND ONE HALF DURING THE MONTH OF AUGUST. EXCEPTIONS TO THE RULE HAVE OCCURRED ONLY WHEN EXCEPTIONAL CIRCUMSTANCES WERE PRESENT. IT IS OUR UNDERSTANDING THAT THIS POLICY IS AT VARIANCE WITH THE POLICIES IN EFFECT THROUGHOUT THE GOVERNMENT SERVICE, WHICH, WE UNDERSTAND, PERMIT THE TAKING OF ANNUAL LEAVE OVER A 12-MONTH PERIOD INSTEAD OF A 2-MONTH PERIOD. IT IS THE VIEW OF THE COMMISSION THAT BECAUSE OF ITS RIGID POLICY WITH RESPECT TO ANNUAL LEAVE, WHICH HAS BEEN ADHERED TO WITH A VIEW OF KEEPING ITS PERSONNEL TO THE SMALLEST POSSIBLE NUMBER AND HANDLING ITS WORK WITH THE GREATEST POSSIBLE DISPATCH AT A MINIMUM COST TO THE GOVERNMENT, THAT IT IS ONLY JUST AND EQUITABLE THAT IT BE PERMITTED UNDER THESE CIRCUMSTANCES TO GRANT TO ITS EMPLOYEES THE UNUSED PORTION OF THE FIFTEEN DAYS ANNUAL LEAVE WHICH ACCRUED IN THE PERIOD FROM JANUARY 1 TO JUNE 30, 1932.

SECTION 103 OF THE SAID ACT OF JUNE 30, 1932, PUBLIC NO. 212, 47 STAT. 400, PROVIDES:

ALL RIGHTS NOW CONFERRED OR AUTHORIZED TO BE CONFERRED BY LAW UPON ANY OFFICER OR EMPLOYEE TO RECEIVE ANNUAL LEAVE OF ABSENCE WITH PAY ARE HEREBY SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1933.

GENERALLY, THERE IS NO VESTED RIGHT IN EMPLOYEES TO SO-CALLED ANNUAL LEAVE, BUT SUCH LEAVE IS FOR GRANTING IN THE DISCRETION OF THE ADMINISTRATIVE HEAD. THE FURLOUGH WITHOUT PAY UNDER THE ECONOMY ACT IS COMPULSORY AND IN PLACE OF THE DISCRETIONARY ANNUAL LEAVE WITH PAY.

IN DECISION OF JULY 8, 1932, TO THE PUBLIC PRINTER, A-43056, 12 COMP. GEN. 9, WITH RESPECT TO THE APPLICATION OF SECTIONS 103 AND 104 OF THE SAID ACT TO EMPLOYEES OF THAT OFFICE, IT WAS HELD AS FOLLOWS:

THE TERM "ANNUAL LEAVE" REFERS TO ALL "VACATION" LEAVE OF ABSENCE WITH PAY AUTHORIZED BY LAW AND/OR REGULATION FOR EACH YEAR, WHETHER BASED ON THE CALENDAR, FISCAL, OR SERVICE YEAR, FOR THE PERSONAL PLEASURE, CONVENIENCE, OR BENEFIT OF THE OFFICER OR EMPLOYEE, BUT DOES NOT INCLUDE SICK, QUARANTINE, AND MILITARY LEAVE. RIGHTS TO ANNUAL LEAVE, AS THUS DEFINED, AS WELL AS TO ALL BENEFITS INCIDENT THERETO, ARE SUSPENDED DURING THE FISCAL YEAR 1933, IRRESPECTIVE OF WHETHER THE LEAVE RIGHTS HERETOFORE HAVE BEEN GRANTED ABSOLUTELY BY STATUTE OR ALLOWED WITHIN ADMINISTRATIVE DISCRETION.

THE PLAIN PURPOSE OF THE ENACTMENT IS TO EFFECT A SAVING OR ECONOMY TO THE GOVERNMENT DURING THE FISCAL YEAR 1933, AND IT MUST BE CONSTRUED AND APPLIED TO EFFECTUATE THAT PURPOSE. IN THE ABSENCE OF ANY PROVISION IN THE STATUTE LIMITING THE SUSPENSION TO ANNUAL LEAVE WHICH WOULD BE EARNED OR ACCRUE DURING THE FISCAL YEAR 1933, THERE IS NO ALTERNATIVE BUT TO HOLD THAT THE SUSPENSION APPLIES, ALSO, TO RIGHTS TO ALL ANNUAL LEAVE ACCRUED OR EARNED AND UNUSED PRIOR TO JULY 1, 1932.

SEE, ALSO, DECISION OF JULY 9, 1932, A-43069, 12 COMP. GEN. 17, REACHING A SIMILAR CONCLUSION AS TO LEAVES OF ABSENCE OF EMPLOYEES OF THE PANAMA CANAL. IT MUST BE HELD, THEREFORE, THAT THE EMPLOYEES OF THE FEDERAL RADIO COMMISSION MAY NOT BE GRANTED LEAVE WITH PAY DURING THE FISCAL YEAR 1933 NOTWITHSTANDING THE ADMINISTRATIVE RULE OR PRACTICE PREVIOUSLY APPLIED TO THE GRANTING OF ANNUAL LEAVE OF ABSENCE TO THE EMPLOYEES OF YOUR COMMISSION, OR THE FACT THAT LEAVE ACCRUING PRIOR TO JULY 1, 1932 WAS NOT AND COULD NOT HAVE BEEN TAKEN PRIOR TO SAID DATE.