A-43369, JULY 20, 1932, 12 COMP. GEN. 93

A-43369: Jul 20, 1932

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ECONOMY ACT - LEAVE OF ABSENCE EMPLOYEES OF THE TREASURY DEPARTMENT WHOSE SALARIES ARE DERIVED FROM ASSESSMENTS ON BANKS ARE SPECIFICALLY EXCEPTED BY SECTION 104 OF THE ACT OF JUNE 30. SUCH ANNUAL LEAVE WITH PAY AS WHEN ADDED TO THE LEAVE PREVIOUSLY TAKEN DURING THE CALENDAR LEAVE YEAR WILL NOT EXCEED 15 DAYS. EMPLOYEES WHO HAVE BEEN GRANTED AND HAVE TAKEN MORE THAN 15 DAYS' ANNUAL LEAVE WITH PAY PRIOR TO JULY 1. WILL NOT BE REQUIRED TO REFUND THE COMPENSATION FOR SUCH EXCESS LEAVE. THIS DEPARTMENT DESIRES YOUR DECISION ON THE FOLLOWING QUESTIONS: ARE THE OFFICERS AND EMPLOYEES OF THE NATIONAL BANK REDEMPTION AGENCY OF THE OFFICE OF THE TREASURER OF THE UNITED STATES AND THE EMPLOYEES OF THE REDEMPTION DIVISION OF THE OFFICE OF THE COMPTROLLER OF THE CURRENCY.

A-43369, JULY 20, 1932, 12 COMP. GEN. 93

ECONOMY ACT - LEAVE OF ABSENCE EMPLOYEES OF THE TREASURY DEPARTMENT WHOSE SALARIES ARE DERIVED FROM ASSESSMENTS ON BANKS ARE SPECIFICALLY EXCEPTED BY SECTION 104 OF THE ACT OF JUNE 30, 1932, 47 STAT. 400, FROM THE RESTRICTIONS OF TITLE I AND CONTINUE TO BE ENTITLED TO ANNUAL LEAVE WITH PAY DURING THE FISCAL YEAR 1933 TO THE EXTENT PERMITTED BY SECTION 215 OF THE ACT; I.E., THEY MAY BE GRANTED BETWEEN JULY 1 AND DECEMBER 31, 1932, SUCH ANNUAL LEAVE WITH PAY AS WHEN ADDED TO THE LEAVE PREVIOUSLY TAKEN DURING THE CALENDAR LEAVE YEAR WILL NOT EXCEED 15 DAYS. EMPLOYEES WHO HAVE BEEN GRANTED AND HAVE TAKEN MORE THAN 15 DAYS' ANNUAL LEAVE WITH PAY PRIOR TO JULY 1, 1932, WILL NOT BE REQUIRED TO REFUND THE COMPENSATION FOR SUCH EXCESS LEAVE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JULY 20, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 11, 1932, AS FOLLOWS:

IN REFERENCE TO THE (ECONOMY BILL) LEGISLATIVE APPROPRIATION ACT APPROVED JUNE 30, 1932, PUBLIC NO. 212, THIS DEPARTMENT DESIRES YOUR DECISION ON THE FOLLOWING QUESTIONS:

ARE THE OFFICERS AND EMPLOYEES OF THE NATIONAL BANK REDEMPTION AGENCY OF THE OFFICE OF THE TREASURER OF THE UNITED STATES AND THE EMPLOYEES OF THE REDEMPTION DIVISION OF THE OFFICE OF THE COMPTROLLER OF THE CURRENCY, WHOSE SALARIES ARE DERIVED FROM ASSESSMENTS UPON THE NATIONAL AND FEDERAL RESERVE BANKS, SUBJECT TO THE FURLOUGH PROVISIONS OF TITLE I, SECTION 101 (B/? ALSO, ARE THE RIGHTS OF SUCH OFFICERS AND EMPLOYEES TO RECEIVE ANNUAL LEAVE WITH PAY DURING THE FISCAL YEAR ENDING JUNE 30, 1933, SUSPENDED UNDER TITLE I, SECTION 103?

SECTION 104 (A) DEFINES THE TERMS "OFFICER" AND "EMPLOYEE" AS USED IN TITLE I AND SPECIFICALLY ENUMERATES CERTAIN CLASSES OF OFFICIALS AND EMPLOYEES WHO ARE EXCLUDED FROM THAT DEFINITION. ONE CLASS EXCLUDED IS "/7) PUBLIC OFFICIALS AND EMPLOYEES WHOSE COMPENSATION IS DERIVED FROM ASSESSMENTS ON BANKS AND/OR IS NOT PAID FROM THE FEDERAL TREASURY.'

WHILE CONGRESS APPROPRIATES FUNDS TO PAY THE COMPENSATION OF THE EMPLOYEES OF THE NATIONAL BANK REDEMPTION AGENCY OF THE OFFICE OF THE TREASURER OF THE UNITED STATES AND THE EMPLOYEES OF THE REDEMPTION DIVISION OF THE OFFICE OF THE COMPTROLLER OF THE CURRENCY, THE GOVERNMENT IS REIMBURSED BY ASSESSMENTS LEVIED ON BANKS PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 20, 1874 (18 STAT. 123), WHICH READS IN PART AS FOLLOWS:

"* * * PROVIDED, THAT EACH OF SAID ASSOCIATIONS SHALL REIMBURSE TO THE TREASURY THE CHARGES FOR TRANSPORTATION AND THE COSTS FOR ASSORTING SUCH NOTES; AND THE ASSOCIATIONS HEREAFTER ORGANIZED SHALL ALSO SEVERALLY REIMBURSE TO THE TREASURY THE COST OF ENGRAVING SUCH PLATES AS SHALL BE ORDERED BY EACH ASSOCIATION, RESPECTIVELY; AND THE AMOUNT ASSESSED UPON EACH ASSOCIATION SHALL BE IN PROPORTION TO THE CIRCULATION REDEEMED, AND BE CHARGED TO THE FUND ON DEPOSIT WITH THE TREASURER.'

THE PURPOSE OF TITLE I OF THE ACT IS NOT APPLICABLE TO SUCH EMPLOYEES, SINCE THEIR COMPENSATION IS PAID ULTIMATELY BY THE BANKS, AND DOES NOT AFFECT THE PROBLEM OF BALANCING THE BUDGET OF THE GOVERNMENT, AND, EVEN IF IT BE CONSIDERED THAT THE COMPENSATION OF THESE EMPLOYEES IS PAID IN THE FIRST INSTANCE FROM THE FEDERAL TREASURY, IT SEEMS CLEAR FROM A CONSIDERATION OF THE ACT OF JUNE 20, 1874, THAT THEIR COMPENSATION IS "DERIVED FROM ASSESSMENTS ON BANKS" AND THAT, THEREFORE, THEY COME WITHIN THE EXEMPTED CLASS.

THE DECISION OF THE COMPTROLLER GENERAL (A-9897) VOL. 4, P. 1075 1076, CLEARLY RECOGNIZED THAT THE FUNDS OUT OF WHICH THESE OFFICIALS AND EMPLOYEES ARE PAID ARE "DERIVED BY REIMBURSEMENT FROM THE FEDERAL RESERVE AND NATIONAL BANKS.'

IF THESE OFFICIALS AND EMPLOYEES COME WITHIN THE MEANING OF SECTION 104 (A) (1), ARE THEY EXEMPT FROM THE FURLOUGH PROVISIONS; AND IF SO (2) ARE THEY ALSO EXEMPT FROM SUSPENSION OF ANNUAL LEAVE WITH PAY; AND (3) ARE THEY ENTITLED UNDER SECTION 215 TO FIFTEEN DAYS' ANNUAL LEAVE WITH PAY; AND (4) WILL SUCH FIFTEEN DAYS' LEAVE BE ON THE BASIS OF THE FISCAL YEAR BEGINNING JULY 1, 1932; OR (5) WILL IT BE CONFINED TO THE CALENDAR YEAR BEGINNING JANUARY 1, 1932; AND (6) WHAT IS THE STATUS OF AN EMPLOYEE WHO HAS RECEIVED MORE THAN FIFTEEN DAYS' ANNUAL LEAVE WITH PAY BETWEEN JANUARY 1 AND JUNE 30, 1932?

THERE ARE OTHER OFFICIALS AND EMPLOYEES OF THE TREASURY DEPARTMENT NOT PAID FROM APPROPRIATED FUNDS BUT WHOSE COMPENSATION IS "DERIVED FROM ASSESSMENTS ON BANKS AND/OR IS NOT PAID FROM THE FEDERAL TREASURY" WHO ARE EXEMPT FROM THE PROVISIONS OF PART II, TITLE I, WHICH INCLUDES EXEMPTION FROM THE PROVISIONS OF SECTION 103 WITH RESPECT TO ANNUAL LEAVE. SECTION 215 PROVIDES IN PART THAT "HEREAFTER ANNUAL LEAVE WITH PAY SHALL NOT BE GRANTED IN EXCESS OF 15 DAYS IN ANY ONE YEAR.' WILL (1) SUCH FIFTEEN DAYS' LEAVE BE ON THE BASIS OF THE FISCAL YEAR BEGINNING JULY 1, 1932; OR (2) WILL IT BE CONFINED TO THE CALENDAR YEAR BEGINNING JANUARY 1, 1932; AND (3) WHAT IS THE STATUS OF AN EMPLOYEE WHO HAS RECEIVED MORE THAN FIFTEEN DAYS ANNUAL LEAVE WITH PAY BETWEEN JANUARY 1 AND JUNE 30, 1932?

THE FACT THAT THE EMPLOYEES OF THE NATIONAL BANK REDEMPTION AGENCY OF THE OFFICE OF THE TREASURER OF THE UNITED STATES AND THE EMPLOYEES OF THE REDEMPTION DIVISION OF THE OFFICE OF THE COMPTROLLER OF THE CURRENCY ARE PAID THEIR COMPENSATION FROM APPROPRIATED FUNDS DOES NOT RENDER THEM ANY THE LESS EMPLOYEES "WHOSE COMPENSATION IS DERIVED FROM ASSESSMENTS ON BANKS AND/OR IS NOT PAID FROM THE FEDERAL TREASURY" IF, AS STATED BY YOU, THE ENTIRE AMOUNT OF THEIR COMPENSATION IS ASSESSED AGAINST AND COLLECTED FROM THE BANKS OR BANKING ASSOCIATIONS NOT SUPPORTED FROM APPROPRIATED FUNDS. SEE DECISION TO YOU OF JULY 16, 1932, A-43357, 12 COMP. GEN. 69, RELATIVE TO CERTAIN EMPLOYEES IN THE CUSTOMS SERVICE.

IN VIEW OF THE SPECIFIC EXEMPTION FROM THE DEFINITIONS OF "OFFICER" AND "EMPLOYEE" UNDER SECTION 104 OF THE ACT OF JUNE 30, 1932, OF EMPLOYEES WHOSE COMPENSATION IS DERIVED FROM ASSESSMENTS ON BANKS, SUCH EMPLOYEES ARE EXEMPTED FROM ALL THE RESTRICTIONS OF TITLE I, IN WHICH THE TERMS "OFFICERS" AND "EMPLOYEES" ARE USED, THAT IS, WHERE THE RESTRICTION IS LIMITED TO OFFICERS AND EMPLOYEES, INCLUDING THE FURLOUGH PROVISIONS AND THE PROVISION FOR SUSPENSION OF ANNUAL LEAVE WITH PAY.

SECTION 215 OF THE ACT OF JUNE 30, 1932, PUBLIC, 212, 47 STAT. 407, PROVIDES:

HEREAFTER NO CIVILIAN OFFICER OR EMPLOYEE OF THE GOVERNMENT WHO RECEIVES ANNUAL LEAVE WITH PAY SHALL BE GRANTED ANNUAL LEAVE OF ABSENCE WITH PAY IN EXCESS OF FIFTEEN DAYS IN ANY ONE YEAR, EXCLUDING SUNDAYS AND LEGAL HOLIDAYS: PROVIDED, THAT THE PART UNUSED IN ANY YEAR MAY BE CUMULATIVE FOR ANY SUCCEEDING YEAR:PROVIDED FURTHER, THAT NOTHING HEREIN SHALL APPLY TO CIVILIAN OFFICERS AND EMPLOYEES OF THE PANAMA CANAL LOCATED ON THE ISTHMUS AND WHO ARE AMERICAN CITIZENS OR TO OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICES OF THE UNITED STATES HOLDING OFFICIAL STATION OUTSIDE THE CONTINENTAL UNITED STATES: PROVIDED FURTHER, THAT NOTHING HEREIN SHALL BE CONSTRUED AS AFFECTING THE PERIOD DURING WHICH PAY MAY BE ALLOWED UNDER EXISTING LAWS FOR SO CALLED SICK LEAVE OF ABSENCE: PROVIDED FURTHER, THAT THE SO-CALLED SICK LEAVE OF ABSENCE, WITHIN THE LIMITS NOW AUTHORIZED BY LAW, SHALL BE ADMINISTERED UNDER SUCH REGULATIONS AS THE PRESIDENT MAY PRESCRIBE SO AS TO OBTAIN, SO FAR AS PRACTICABLE, UNIFORMITY IN THE VARIOUS EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT.

ANNUAL LEAVE OF ABSENCE TO DEPARTMENTAL EMPLOYEES GENERALLY, AS AUTHORIZED BY THE ACT OF MARCH 15, 1898, 30 STAT. 316, AS AMENDED, WAS BASED ON THE CALENDAR YEAR. IN SOME OTHER SERVICES THE ANNUAL LEAVE WAS BASED ON THE FISCAL YEAR AND IN SOME OTHERS ON THE SERVICE YEAR. THERE APPEARS NOTHING IN THE SAID SECTION 215 TO INDICATE AN INTENT TO CHANGE IN THIS RESPECT THE LAWS OR PRACTICES THERETOFORE EXISTING. LEAVE OF ABSENCE WITH PAY IS A PRIVILEGE IN THE NATURE OF A GRATUITY, AND THE CONDITIONS AND EXTENT THEREOF MAY BE CHANGED OR MODIFIED BY THE CONGRESS AT ITS PLEASURE. BY SECTION 215, SUPRA, THE CONGRESS HAS LIMITED THE ANNUAL LEAVE OF ABSENCE WITH PAY TO NOT TO EXCEED 15 DAYS IN ANY LEAVE YEAR, AND AS THE PRESENT LEAVE YEAR, SO FAR AS THE EMPLOYEES REFERRED TO IN YOUR SUBMISSION ARE CONCERNED, AT THE TIME OF THE ENACTMENT, WAS FROM JANUARY 1 TO DECEMBER 31, THE EFFECT OF THE LIMITATION IS TO PRECLUDE THE GRANTING AFTER JULY 1, 1932, OF ANNUAL LEAVE WITH PAY WHEN IT WOULD RESULT IN THE EMPLOYEE RECEIVING MORE THAN 15 DAYS' ANNUAL LEAVE WITH PAY DURING THE CURRENT LEAVE YEAR.

THEREFORE A PERSON OTHERWISE ENTITLED TO ANNUAL LEAVE WITH PAY DURING THE LAST HALF OF THE CALENDAR YEAR 1932 AND WHO HAD RECEIVED 15 OR MORE DAYS' ANNUAL LEAVE WITH PAY PRIOR TO JULY 1, 1932, IS NOT ENTITLED TO ANY FURTHER LEAVE OF ABSENCE WITH PAY BEFORE JANUARY 1, 1933, BUT A PERSON WHO HAD LESS THAN 15 DAYS' LEAVE OF ABSENCE WITH PAY DURING THE FIRST HALF OF THE CALENDAR YEAR 1932 MAY BE GRANTED DURING THE LAST HALF OF SUCH CALENDAR YEAR, IF OTHERWISE ENTITLED THERETO, SUCH ADDITIONAL LEAVE WITH PAY AS, WHEN ADDED TO THAT PREVIOUSLY TAKEN, WOULD NOT EXCEED 15 DAYS.

WITH RESPECT TO EMPLOYEES OF THE PARTICULAR SERVICES ABOVE MENTIONED WHO HAD BEEN GRANTED AND HAD TAKEN MORE THAN 15 DAYS' LEAVE WITH PAY DURING THE FIRST HALF OF THE CALENDAR YEAR 1932, I HAVE TO ADVISE THAT IF THE TAKING OF SUCH LEAVE WITH PAY WAS LEGAL AND PROPER AT THE TIME OF THE TAKING, SECTION 215 OF THE ACT OF JUNE 30, 1932, DOES NOT REQUIRE OR AUTHORIZE REGARDING THE EXCESS OVER 15 DAYS AS LEAVE WITHOUT PAY OR COLLECTING FROM THE EMPLOYEE THE COMPENSATION RECEIVED FOR SUCH EXCESS LEAVE. (27 COMP. DEC. 583). SEE ALSO DECISION OF JULY 16, 1932, A-43338, 12 COMP. GEN. 63.