A-43338, JULY 16, 1932, 12 COMP. GEN. 63

A-43338: Jul 16, 1932

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NOTWITHSTANDING THAT THEY MAY NOT HAVE TAKEN THE FULL AMOUNT OF LEAVE WITH PAY WHICH COULD HAVE BEEN GRANTED DURING THE PERIOD JANUARY 1 TO JUNE 30. HAD TAKEN ANNUAL LEAVE IN EXCESS OF THE AMOUNT THAT HAD ACCRUED AT THE RATE OF TWO AND ONE-HALF DAYS A MONTH BUT NOT IN EXCESS OF THE AMOUNT TO WHICH HE WOULD HAVE BEEN ENTITLED DURING THE CALENDAR YEAR ENDING DECEMBER 31. DOES NOT REQUIRE THAT THE EXCESS LEAVE BE REGARDED AS LEAVE WITHOUT PAY OR BE CHARGED AGAINST THE FURLOUGH TIME TO WHICH THE EMPLOYEE IS ENTITLED AS THE RESULT OF THE OPERATION OF SECTION 101 OF THE SAID ACT. AS FOLLOWS: THE FOLLOWING MATTER IS PRESENTED FOR YOUR DECISION IN ORDER THAT AN EQUITABLE SOLUTION MAY BE PROVIDED RELATIVE TO THE GRANTING OF ANNUAL LEAVE OF ABSENCE WITH PAY DURING THE FISCAL YEAR 1933: PRIOR TO JULY 1.

A-43338, JULY 16, 1932, 12 COMP. GEN. 63

ECONOMY ACT - ANNUAL LEAVE OF ABSENCE - EXCESS EMPLOYEES OF THE DEPARTMENT OF STATE MAY NOT BE GRANTED OR RECEIVE ANY LEAVE OF ABSENCE WITH PAY DURING THE FISCAL YEAR 1933, NOTWITHSTANDING THAT THEY MAY NOT HAVE TAKEN THE FULL AMOUNT OF LEAVE WITH PAY WHICH COULD HAVE BEEN GRANTED DURING THE PERIOD JANUARY 1 TO JUNE 30, 1932. THE FACT THAT AN EMPLOYEE, PRIOR TO JULY 1, 1932, HAD TAKEN ANNUAL LEAVE IN EXCESS OF THE AMOUNT THAT HAD ACCRUED AT THE RATE OF TWO AND ONE-HALF DAYS A MONTH BUT NOT IN EXCESS OF THE AMOUNT TO WHICH HE WOULD HAVE BEEN ENTITLED DURING THE CALENDAR YEAR ENDING DECEMBER 31, 1932, BUT FOR THE PASSAGE OF THE ACT OF JUNE 30, 1932, DOES NOT REQUIRE THAT THE EXCESS LEAVE BE REGARDED AS LEAVE WITHOUT PAY OR BE CHARGED AGAINST THE FURLOUGH TIME TO WHICH THE EMPLOYEE IS ENTITLED AS THE RESULT OF THE OPERATION OF SECTION 101 OF THE SAID ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, JULY 16, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 8, 1932, AS FOLLOWS:

THE FOLLOWING MATTER IS PRESENTED FOR YOUR DECISION IN ORDER THAT AN EQUITABLE SOLUTION MAY BE PROVIDED RELATIVE TO THE GRANTING OF ANNUAL LEAVE OF ABSENCE WITH PAY DURING THE FISCAL YEAR 1933:

PRIOR TO JULY 1, 1932, THE DEPARTMENT OF STATE, IN ACCORDANCE WITH EXISTING LAW, GRANTING ITS EMPLOYEES NOT TO EXCEED THIRTY DAYS ANNUAL LEAVE OF ABSENCE WITH PAY EACH CALENDAR YEAR (ACT OF MARCH 3, 1893, 27 STAT. 715; ACT OF MARCH 15, 1898, 30 STAT. 316; ACT OF JULY 7, 1898, 30 STAT. 653; AND ACT OF FEBRUARY 24, 1899, 30 STAT. 890). THE ACTUAL ANNUAL LEAVE TAKEN, HOWEVER, DURING THE PAST ELEVEN CALENDAR YEARS, 1921-1931, HAS AVERAGED APPROXIMATELY TWENTY-FIVE AND ONE-HALF DAYS PER EMPLOYEE. OVERTIME WORK, WHICH HAS OF COURSE BEEN WITHOUT COMPENSATION, HAS AVERAGED APPROXIMATELY SEVEN FULL WORKING DAYS ANNUALLY FOR EACH EMPLOYEE DURING THE PAST THREE YEARS, 1929-1931.

IT HAS BEEN THE PRACTICE TO GRANT ANNUAL LEAVE OF ABSENCE AT SUCH TIMES AS WOULD CAUSE THE LEAST INCONVENIENCE TO THE DEPARTMENT AND, IN ORDER TO AVOID THE EMPLOYMENT OF ADDITIONAL PERSONS AS SUBSTITUTES WHILE REGULAR EMPLOYEES WERE ON LEAVE, IT HAS BEEN NECESSARY THAT SOME EMPLOYEES BE ON LEAVE EACH MONTH OF THE YEAR. IN OTHER WORDS, SOME EMPLOYEES WERE GRANTED THEIR FULL LEAVE EARLY IN THE CALENDAR YEAR, SOME RECEIVED LEAVE PERIODICALLY A FEW DAYS AT A TIME, AND OTHERS WERE GRANTED LEAVE TOWARD THE END OF THE CALENDAR YEAR. BY THIS METHOD OF DISTRIBUTION THE DEPARTMENT HAS HERETOFORE AVOIDED, TO A LARGE EXTENT, THE EMPLOYMENT OF ADDITIONAL PERSONNEL.

IT HAS BEEN CUSTOMARY TO REGARD LEAVE OF ABSENCE AS EARNED AT THE RATE OF TWO AND ONE-HALF DAYS PER MONTH AND ON THAT BASIS, UNDER THE LAW THEN IN FORCE, EACH EMPLOYEE HAD, ON JULY 1, 1932, EARNED FIFTEEN DAYS LEAVE OF ABSENCE WITH PAY. DURING THE PRESENT YEAR SOME EMPLOYEES HAVE USED THEIR LEAVE AS EARNED AND HAVE TAKEN FIFTEEN DAYS PRIOR TO JULY 1, SOME HAVE HAD THIRTY DAYS LEAVE PRIOR TO THAT DATE, WHILE OTHERSHAVE HAD NO LEAVE, OR PERHAPS IN SOME INSTANCES, BUT ONE OR TWO DAYS.

SECTION 103 OF THE ACT APPROVED JUNE 30, 1932 (PUBLIC, NO. 212) 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.'

IT IS FELT THAT A STRICT INTERPRETATION OF THE ABOVE SECTION WOULD WORK GREAT HARDSHIP ON MANY EMPLOYEES WHO, EITHER BECAUSE THEY COULD NOT BE SPARED DUE TO THE VAST AMOUNT OF WORK DURING THE FIRST SIX MONTHS OF THE PRESENT CALENDAR YEAR, OR BECAUSE OF LOYALTY TO THE GOVERNMENT SERVICE AND TO THE DEPARTMENT, HAVE HAD NO LEAVE OF ABSENCE DURING THE PRESENT YEAR. MANY OF THE EMPLOYEES IN THIS CATEGORY HAVE NOT ONLY BEEN WITHOUT LEAVE OF ABSENCE PRIOR TO JULY 1, BUT HAVE BEEN WORKING NIGHTS AND HOLIDAYS DUE TO THE GREAT PRESSURE OF WORK. IT IS BELIEVED THAT THE ACT CITED WAS NOT INTENDED TO OPERATE RETROACTIVELY AND THAT THE SUSPENSION OF LEAVE DURING THE FISCAL YEAR 1933 PRESCRIBED THEREIN DOES NOT, THEREFORE, DEPRIVE SUCH EMPLOYEES OF THE FIFTEEN DAYS LEAVE OF ABSENCE EARNED PRIOR TO ITS ENACTMENT. IT WOULD APPEAR EQUITABLE THAT SUCH EMPLOYEES SHOULD BE PERMITTED, BETWEEN JULY 1 AND DECEMBER 31, 1932, TO AVAIL THEMSELVES OF THE FIFTEEN DAYS LEAVE OF ABSENCE EARNED PRIOR TO JUNE 30, 1932. EVEN SHOULD IT BE SO DECIDED IT WOULD PROBABLY DEVELOP THAT MANY OF THE DEPARTMENT'S LOYAL EMPLOYEES WILL STILL HAVE TAKEN NO LEAVE OF ABSENCE AT THE END OF THE CALENDAR YEAR, BUT IT WOULD SERVE TO GIVE A BRIEF RESPITE TO SOME WHO, BECAUSE OF THE TREMENDOUS STRAIN UNDER WHICH THEY HAVE BEEN WORKING, ARE IN NEED, FOR THE SAKE OF THEIR HEALTH, OF AT LEAST SOME SHORT PERIOD OF RELAXATION AND REST.

IT IS BELIEVED THAT AN EQUITABLE INTERPRETATION OF THE ACT WOULD BE TO HOLD THAT EACH EMPLOYEE IN CONTINUOUS SERVICE BETWEEN JANUARY 1 AND JUNE 30, 1932, IS ENTITLED, UNDER THE LAW IN FORCE BETWEEN THOSE DATES, TO FIFTEEN DAYS LEAVE OF ABSENCE WITH PAY. IF FIFTEEN DAYS LEAVE HAS BEEN TAKEN PRIOR TO JULY 1, THEN UNDER THE PROVISIONS OF SECTION 101 (B) OF THE ACT CITED THE EMPLOYEE WOULD, DURING THE FISCAL YEAR 1933, BE FURLOUGHED FOR ONE CALENDAR MONTH OR TWENTY-FOUR WORKING DAYS' WITHOUT PAY. IF, ON THE OTHER HAND, THE EMPLOYEE HAS HAD MORE THAN FIFTEEN DAYS LEAVE PRIOR TO JULY 1, SUCH EXCESS OVER FIFTEEN DAYS WOULD BE CHARGED AGAINST THE FURLOUGH PROVIDED IN SECTION 101. IN OTHER WORDS, IN THE CASE OF AN EMPLOYEE WHO HAS HAD THIRTY DAYS' LEAVE BETWEEN JANUARY 1 AND JUNE 30, 1932, FIFTEEN DAYS OF SUCH LEAVE WOULD BE CONSIDERED AS EARNED PRIOR TO JULY 1. THE OTHER FIFTEEN DAYS LEAVE WOULD BE CONSIDERED AS UNEARNED AND WOULD APPLY TOWARD THE FURLOUGH UNDER SECTION 101. TO BE MORE SPECIFIC, SUCH EMPLOYEE WOULD, DURING THE FISCAL YEAR 1933, HAVE THE EQUIVALENT OF ONE MONTH'S SALARY DEDUCTED BUT WOULD RECEIVE ONLY NINE DAYS ADDITIONAL LEAVE, OR THE DIFFERENCE BETWEEN THE TWENTY-FOUR DAYS PROVIDED UNDER THE FURLOUGH SECTION AND THE FIFTEEN DAYS EXCESS LEAVE ALREADY TAKEN. THE EMPLOYEE WHO HAS HAD NO LEAVE OF ABSENCE PRIOR TO JULY 1 WOULD BE ENTITLED TO RECEIVE BETWEEN JULY 1 AND DECEMBER 31, 1932, THE FIFTEEN DAYS LEAVE EARNED PRIOR TO JUNE 30, 1932, AND HE WOULD, OF COURSE, ALSO BE SUBJECT TO THE TWENTY-FOUR DAY FURLOUGH AS PROVIDED IN SECTION 101 (B).

IF AUTHORIZATION TO ADJUST THE LEAVE SITUATION AS SET FORTH IN THE PARAGRAPH JUST ABOVE IS GRANTED, IT IS BELIEVED THAT THE WELFARE OF THE DEPARTMENT AND OF THE GOVERNMENT WILL BE GREATLY BENEFITED THEREBY IN THAT A FEELING WILL BE CREATED AMONG ALL EMPLOYEES THAT THEY HAVE BEEN TREATED FAIRLY AND THAT NO DISCRIMINATION OR FAVORITISM HAS BEEN SHOWN.

THE GRANTING OF ANNUAL LEAVE WITH PAY PRIOR TO JULY 1, 1932, PURSUANT TO THE ACT OF MARCH 15, 1898, 30 STAT. 316, AS AMENDED, WAS DISCRETIONARY WITH THE HEAD OF THE DEPARTMENT OR SERVICE, SUBJECT TO THE LIMITATIONS PRESCRIBED BY LAW, THERE BEING NO VESTED RIGHT IN THE EMPLOYEE TO SUCH LEAVE. 19 COMP. DEC. 661; 26 ID. 379; 3 COMP. GEN. 668.

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 ACT OF JUNE 30, 1932, TO THE 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 HAVE HERETOFORE 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, WHICH REACHED THE SAME CONCLUSION AS TO LEAVE OF ABSENCE FOR EMPLOYEES OF THE PANAMA CANAL, AND A-43265, JULY 15, 1932, 12 COMP. GEN. 49, RELATIVE TO EMPLOYEES OF THE FEDERAL RADIO COMMISSION. IT MUST BE HELD, THEREFORE, THAT EMPLOYEES OF THE DEPARTMENT OF STATE MAY NOT BE GRANTED OR RECEIVE ANY LEAVE OF ABSENCE WITH PAY DURING THE FISCAL YEAR 1933, NOTWITHSTANDING THAT THEY MAY NOT HAVE TAKEN THE FULL AMOUNT OF LEAVE WITH PAY WHICH COULD HAVE BEEN GRANTED THEM DURING THE PERIOD JANUARY 1 TO JUNE 30, 1932.

WITH RESPECT TO EMPLOYEES WHO WERE GRANTED AND HAVE TAKEN MORE THAN 15 DAYS' LEAVE WITH PAY BETWEEN JANUARY 1 AND JULY 1, 1932, IT MAY BE PRESUMED THAT SUCH LEAVE WAS DULY GRANTED IN ACCORDANCE WITH LAWS AND REGULATIONS IN FORCE AND EFFECT AT THAT TIME. IN SOME OF THE DEPARTMENTS OR SERVICES THE GRANTING OF MORE THAN 15 DAYS' LEAVE PRIOR TO JULY 1 OF ANY CALENDAR YEAR WAS MADE CONTINGENT UPON THE EMPLOYEE REMAINING IN THE SERVICE THE REMAINDER OF THE CALENDAR YEAR, THERE BEING A REGULATION OR A CONDITION IN THE APPROVED APPLICATION FOR SUCH LEAVE WITH PAY TO THE EFFECT THAT IF THE ENTIRE AMOUNT OF LEAVE SO GRANTED SHOULD NOT BE EARNED BY THE EMPLOYEE CONTINUING IN SERVICE THEREAFTER A SUFFICIENT TIME SO THAT THE AGGREGATE OF THE LEAVE TAKEN WOULD NOT EXCEED TWO AND ONE-HALF DAYS PER MONTH FOR THE PERIOD OF SERVICE DURING THE LEAVE YEAR, THE EXCESS WOULD BE REGARDED AS LEAVE WITHOUT PAY AND COLLECTED FROM THE EMPLOYEE ACCORDINGLY. SUCH REGULATIONS OR CONDITIONS DID NOT, OF COURSE, CONTEMPLATE THE ENACTMENT OF A STATUTE SUSPENDING LEAVE. FURTHERMORE, IT IS TO BE NOTED THAT THE INHIBITION IN SECTION 103 OF THE ACT OF JUNE 30, 1932, IS AGAINST THE RECEIVING, NOT THE HOLD, THEREFORE, THAT THE FACT THAT AN EMPLOYEE PRIOR TO JULY 1, 1932, HAD TAKEN ANNUAL LEAVE WITH PAY IN EXCESS OF THE AMOUNT THAT HAD ACCRUED AT THE RATE OF TWO AND ONE-HALF DAYS PER MONTH BUT NOT IN EXCESS OF THE AMOUNT TO WHICH HE WOULD HAVE BEEN ENTITLED DURING THE CALENDAR YEAR ENDING DECEMBER 31, 1932, BUT FOR THE PASSAGE OF THE ACT OF JUNE 30, 1932, DOES NOT REQUIRE THAT THE AMOUNT OF SUCH EXCESS BE REGARDED AS LEAVE WITHOUT PAY OR BE CHARGED AGAINST THE FURLOUGH TIME TO WHICH THE EMPLOYEE IS ENTITLED AS A RESULT OF THE OPERATION OF THE PROVISIONS OF SECTION 101 OF THE SAID ACT.

IT IS RECOGNIZED THAT THE OPERATION OF SOME OF THE PROVISIONS OF THE SAID ACT OF JUNE 30, 1932, AS APPLIED UNDER THIS AND OTHER DECISIONS OF THIS OFFICE WILL RESULT IN SOME INEQUALITIES, BUT THIS CAN NOT BE AVOIDED WITHOUT DOING VIOLENCE TO ESTABLISHED RULES FOR THE CONSTRUCTION OF STATUTES AND TO CANONS OF INTERPRETATION. IN THIS CONNECTION IT MAY BE OBSERVED THAT IT IS SELDOM POSSIBLE TO ENACT A LAW GRANTING OR WITHHOLDING PRIVILEGES OR BENEFITS THE OPERATION OF WHICH WILL NOT RESULT IN SOME INEQUALITIES BECAUSE OF THE DIFFERENT CONDITIONS EXISTING WITH RESPECT TO THE DIFFERENT GROUPS OR CLASSES OF PERSONS TO BE AFFECTED THEREBY.