A-43298, JULY 20, 1932, 12 COMP. GEN. 81

A-43298: Jul 20, 1932

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WHEN NO SERVICES ARE REQUIRED. AS FOLLOWS: THE FOLLOWING IS PRESENTED FOR YOUR CONSIDERATION AND AN EXPRESSION OF YOUR VIEWS WITH REFERENCE TO THE SAME WILL BE APPRECIATED. THE OFFICE OF THE ARCHITECT OF THE CAPITOL IS A PART OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT. ITS PRIMARY FUNCTION IS TO SERVE THE CONGRESS AND ITS HOURS OF DUTY ARE ENTIRELY CONTINGENT UPON THE NEEDS OF THE CONGRESS WHETHER IN OR OUT OF SESSION. THIS OFFICE IS NOT SUBJECT TO THE CIVIL-SERVICE LAWS AND REGULATIONS NOR IS IT SUBJECT TO ANY STATUTORY REGULATIONS WITH REFERENCE TO THE MATTER OF LEAVE. THIS PRACTICE WAS ADOPTED IN VIEW OF THE FACT THAT THE NATURE OF THE WORK OF THIS ORGANIZATION IS SUCH AS TO NORMALLY REQUIRE THE SERVICES OF THE GREATER PART OF ITS EMPLOYEES DURING THE ENTIRE YEAR WITH THE EXCEPTION OF THESE PERIODS OF LEAVE.

A-43298, JULY 20, 1932, 12 COMP. GEN. 81

ECONOMY ACT - LEAVE OF ABSENCE - ARCHITECT OF THE CAPITAL EXCEPT AS TO ABSENCES DURING RECESSES OF THE CONGRESS OF LEGISLATIVE EMPLOYEES ENGAGED EXCLUSIVELY IN CONNECTION WITH CONGRESSIONAL ACTIVITIES, WHEN NO SERVICES ARE REQUIRED, NO EMPLOYEE SERVING UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL MAY RECEIVE ANNUAL LEAVE OF ABSENCE WITH PAY DURING THE FISCAL YEAR 1933.

COMPTROLLER GENERAL MCCARL TO THE ARCHITECT OF THE CAPITOL, JULY 20, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 9, 1932, AS FOLLOWS:

THE FOLLOWING IS PRESENTED FOR YOUR CONSIDERATION AND AN EXPRESSION OF YOUR VIEWS WITH REFERENCE TO THE SAME WILL BE APPRECIATED.

THE OFFICE OF THE ARCHITECT OF THE CAPITOL IS A PART OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT. ITS PRIMARY FUNCTION IS TO SERVE THE CONGRESS AND ITS HOURS OF DUTY ARE ENTIRELY CONTINGENT UPON THE NEEDS OF THE CONGRESS WHETHER IN OR OUT OF SESSION. BEING PART OF THE LEGISLATIVE ESTABLISHMENT AND NOT AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT, THIS OFFICE IS NOT SUBJECT TO THE CIVIL-SERVICE LAWS AND REGULATIONS NOR IS IT SUBJECT TO ANY STATUTORY REGULATIONS WITH REFERENCE TO THE MATTER OF LEAVE.

IN ORDER TO MAINTAIN A UNIFORM SYSTEM OF ADMINISTRATION IN THE OFFICE OF THE ARCHITECT OF THE CAPITOL IT HAS BEEN THE PRACTICE IN RECENT YEARS TO ALLOW EACH EMPLOYEE 30 DAYS' LEAVE WITH PAY ANNUALLY AND LEAVE TO THE EXTENT OF 30 DAYS WITH PAY WHEN ABSENT DUE TO ILLNESS. THIS PRACTICE WAS ADOPTED IN VIEW OF THE FACT THAT THE NATURE OF THE WORK OF THIS ORGANIZATION IS SUCH AS TO NORMALLY REQUIRE THE SERVICES OF THE GREATER PART OF ITS EMPLOYEES DURING THE ENTIRE YEAR WITH THE EXCEPTION OF THESE PERIODS OF LEAVE.

HOWEVER, IT HAS BEEN IMPOSSIBLE TO APPLY SUCH A PROCEDURE TO ALL OF THE EMPLOYEES IN THIS ORGANIZATION. THE EMPLOYEES OF THE CAPITOL POWER PLANT, BY DIRECTION OF THE HOUSE OFFICE BUILDING COMMISSION, ARE NORMALLY LIMITED TO 30 DAYS' LEAVE FOR ALL PURPOSES OF ABSENCE IN ANY ONE YEAR, DUE TO THE NATURE OF THEIR WORK.

THE 60 ELEVATOR OPERATORS OF THE CAPITOL, SENATE AND HOUSE OFFICE BUILDINGS ARE ENTIRELY UNDER PATRONAGE CONTROL AND ARE PRIVILEGED TO REMAIN AWAY FROM DUTY WITH PAY JUST AS FREQUENTLY AND FOR SUCH LENGTHS OF TIME AS THE COMMISSIONS IN CHARGE OF THE ELEVATOR EMPLOYEES ELECT TO PERMIT, DURING THE RECESS PERIODS OF THE CONGRESS.

ON THE OTHER HAND, THIS OFFICE IS NEVER CLOSED SO LONG AS THE CONGRESS IS IN SESSION. THE HOURS OF DUTY FOR MANY OF THE EMPLOYEES ARE OF VERY LONG AND IRREGULAR DURATION WHEN THE CONGRESS IS IN SESSION AND FOR THESE REASONS THE COMMISSIONS IN CHARGE OF THE BUILDINGS FEEL FREE TO GRANT SUCH PRIVILEGES OF ABSENCE WITH PAY TO EMPLOYEES AS THEY SEE FIT IN THAT THE OFFICE OF THE ARCHITECT OF THE CAPITOL IS AN INTEGRAL PART OF THE LEGISLATIVE ESTABLISHMENT AND UNDER THE COMPLETE CONTROL AND DIRECTION OF THE CONGRESS.

ALL APPOINTMENTS, PROMOTIONS, SEPARATIONS, RULES, AND REGULATIONS ARE MADE BY THE COMMISSIONS IN CHARGE OF THE EMPLOYEES UNDER THE JURISDICTION OF THE ARCHITECT OF THE CAPITOL AND THE APPLICATION OF THE PRINCIPLES AND RESTRICTIONS OF ANNUAL AND SICK LEAVE TO THESE EMPLOYEES IS CONSIDERED MORE IN THE NATURE OF A FORMALITY THAN IN THE ACTUAL USAGE OF LEAVE AND SICK PRIVILEGES AS APPLICABLE TO THE OTHER BRANCHES OF THE GOVERNMENT. IS CONSIDERED THAT SUCH ABSENCES FROM DUTY WITH PAY COULD BE JUST AS PROPERLY RECORDED AS "ABSENCE WITH PAY UNDER LEGISLATIVE PRIVILEGES" AS "ANNUAL OR SICK LEAVE.'

THE USE OF ANNUAL AND SICK LEAVE BY THIS OFFICE HAS BEEN HITHERTO ADOPTED MORE FOR THE PURPOSE OF GOOD ADMINISTRATION FROM THE POINT OF MAINTENANCE OF UNIFORMITY IN THE ORGANIZATION AND ALSO IN THE EFFORT TO EQUALIZE THE PRIVILEGES OF ABSENCE WITH PAY FOR ALL EMPLOYEES IN THIS OFFICE SO FAR AS PRACTICAL OF ACCOMPLISHMENT.

YOUR VIEWS ARE THEREFORE REQUESTED AS TO WHETHER OR NOT THE PROVISIONS OF SECTION 103 WITH REFERENCE TO THE SUSPENSION OF LEAVE PRIVILEGES DURING THE FISCAL YEAR 1933 ARE APPLICABLE TO THE OFFICE OF THE ARCHITECT OF THE CAPITOL IN SO FAR AS THE RIGHTS OF EMPLOYEES IN THIS ORGANIZATION TO ABSENCE WITH PAY ARE CONCERNED WHEN GRANTED BY THE ARCHITECT OF THE CAPITOL SUBJECT TO THE PROPER CONGRESSIONAL COMMISSIONS AND COMMITTEES IN CHARGE OF THE EMPLOYEES IN THIS ORGANIZATION.

SECTION 103 OF THE 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.

IN VIEW OF THE DEFINITION OF THE TERMS "OFFICER" AND "EMPLOYEE" IN SECTION 104 OF THE ACT, THERE IS NO REASONABLE BASIS UPON WHICH EMPLOYEES UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL MAY BE HELD TO BE EXEMPT FROM THE RESTRICTIONS OF THIS SECTION. IN DECISION OF JULY 8, 1932, TO THE PUBLIC PRINTER, A-43056, 12 COMP. GEN. 9, IT WAS STATED:

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 ACCRUED 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.

IN DECISION OF JULY 14, 1932, A-43204, 12 COMP. GEN. 37, TO THE SECRETARY OF WAR, IT WAS TATED:

IT IS IMMATERIAL WHAT DESIGNATION OR TERM IS GIVEN IN STATUTE OR REGULATION TO LEAVE OF ABSENCE WITH PAY TO "ANY OFFICER OR EMPLOYEE.' SEE DECISION TO THE GOVERNOR OF THE PANAMA CANAL, DATED JULY 9, 1932, A- 43069. THE PLAIN PURPOSE OF THE STATUTE IS TO SUSPEND THE GRANTING OF LEAVE WITH PAY DURING THE FISCAL YEAR 1933 WHEN LEGISLATIVE FURLOUGHS WITHOUT PAY ARE REQUIRED. THE CONGRESS RECOGNIZED THAT TO GRANT LEAVE OF ABSENCE WITH PAY WOULD BE ENTIRELY INCONSISTENT WITH THE REQUIREMENT FOR FURLOUGHS WITHOUT PAY AND WOULD ELIMINATE OR CURTAIL THE SAVING REQUIRED.

YOU ARE ADVISED, THEREFORE, THAT EXCEPT AS TO ABSENCES DURING RECESSES OF THE CONGRESS OF LEGISLATIVE EMPLOYEES ENGAGED EXCLUSIVELY IN CONNECTION WITH CONGRESSIONAL ACTIVITIES, WHEN NO SERVICES ARE REQUIRED, NO EMPLOYEE SERVING UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL MAY RECEIVE ANNUAL LEAVE OF ABSENCE WITH PAY DURING THE FISCAL YEAR 1933.