A-43420, JULY 21, 1932, 12 COMP. GEN. 97

A-43420: Jul 21, 1932

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ECONOMY ACT - PERSONNEL OF THE OFFICE OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL WITH THE UNDERSTANDING THAT FULL TIME PER DIEM EMPLOYEES UNDER THE OFFICE OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL RECEIVED THE SATURDAY HALF HOLIDAY WITH PAY AND WERE REQUIRED TO WORK ONLY 5 1/2 DAYS PER WEEK PRIOR TO JULY 1. WILL BE TEN-ELEVENTHS OF SIX TIMES THE DAILY RATE OF COMPENSATION EFFECTIVE JUNE 30. THE UNITED STATES PARK POLICE AND THE MOUNT VERNON HIGHWAY POLICE ARE EXEMPTED FROM THE PROHIBITION IN SECTION 103 OF THE ECONOMY ACT AGAINST RECEIPT OF ANNUAL LEAVE OF ABSENCE WITH PAY DURING THE FISCAL YEAR 1933. ARE SUBJECT TO THE TERMS OF SECTION 215 OF THE ACT LIMITING ANNUAL LEAVE OF ABSENCE WITH PAY TO 15 DAYS IN ANY ONE YEAR.

A-43420, JULY 21, 1932, 12 COMP. GEN. 97

ECONOMY ACT - PERSONNEL OF THE OFFICE OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL WITH THE UNDERSTANDING THAT FULL TIME PER DIEM EMPLOYEES UNDER THE OFFICE OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL RECEIVED THE SATURDAY HALF HOLIDAY WITH PAY AND WERE REQUIRED TO WORK ONLY 5 1/2 DAYS PER WEEK PRIOR TO JULY 1, 1932, COMPENSATION FOR 5 DAYS' WORK ON A 5-DAY- WEEK BASIS UNDER THE TERMS OF SECTION 101 (A) OF THE ACT OF JUNE 30, 1932, 47 STAT. 399, WILL BE TEN-ELEVENTHS OF SIX TIMES THE DAILY RATE OF COMPENSATION EFFECTIVE JUNE 30, 1932. THE UNITED STATES PARK POLICE AND THE MOUNT VERNON HIGHWAY POLICE ARE EXEMPTED FROM THE PROHIBITION IN SECTION 103 OF THE ECONOMY ACT AGAINST RECEIPT OF ANNUAL LEAVE OF ABSENCE WITH PAY DURING THE FISCAL YEAR 1933, BUT ARE SUBJECT TO THE TERMS OF SECTION 215 OF THE ACT LIMITING ANNUAL LEAVE OF ABSENCE WITH PAY TO 15 DAYS IN ANY ONE YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS. IF AN EMPLOYEE SUBJECT TO THE PROVISIONS OF SECTION 101 (B) OF THE ECONOMY ACT PROVIDING FOR THE LEGISLATIVE FURLOUGH IS ABSENT THE ENTIRE CALENDAR MONTH OF JULY, HE WOULD NOT BE ENTITLED TO ANY COMPENSATION FOR THAT MONTH, AND RETIREMENT DEDUCTIONS AT THE RATE OF 3 1/2 PERCENT OF THE TOTAL SALARY RATE COVERING JULY SHOULD BE DEDUCTED FROM HIS COMPENSATION AT THE NEXT REGULAR PAY DAY AFTER HE RETURNED TO DUTY. IN THE APPLICATION OF SECTION 212 OF THE ACT OF JUNE 30, 1932, 47 STAT. 406, LIMITING THE COMBINED RATE OF COMPENSATION IN A CIVILIAN POSITION AND RETIRED PAY FOR OR ON ACCOUNT OF COMMISSIONED SERVICE TO $3,000 PER ANNUM, RETIRED PAY OF ENLISTED MEN ON ACCOUNT OF COMMISSIONED SERVICE UNDER THE TERMS OF THE ACT OF JUNE 6, 1924, 43 STAT. 472, SHOULD NOT BE REDUCED BELOW THAT WHICH THEY WOULD HAVE RECEIVED HAD THEY ONLY ENLISTED SERVICE.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL, JULY 21, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 14, 1932, PRESENTING FOR CONSIDERATION A NUMBER OF QUESTIONS INVOLVING THE APPLICATION OF THE ECONOMY ACT OF JUNE 30, 1932, PUBLIC, NO. 212, 47 STAT. 382, WHICH WILL BE STATED AND CONSIDERED IN THE ORDER APPEARING IN YOUR LETTER:

1. THE METHOD OF APPLICATION OF YOUR DECISION OF JULY 8, 1932--- A 43126- -- TO PER DIEM EMPLOYEES NOW WORKING ON A FIVE-DAY WEEK BASIS IS NOT QUITE CLEAR. YOU STATE THAT, UNDER SUBSECTION (A) OF SECTION 101 OF THE ACT, THE PER DIEM RATE OF COMPENSATION OF A PER DIEM EMPLOYEE WILL BE 1/5 OF 10/11 OF THE FORMER REGULAR WEEKLY (5 1/2 DAYS OR 44 HOURS) RATE OF COMPENSATION OF EMPLOYEES. THE QUESTION SUBMITTED ON THIS POINT IS, WILL THE RATE BE 10/11 OF THE FORMER WEEKLY RATE OF SIX DAYS' PAY FOR 5 1/2 DAYS' WORK (CONSIDERING A FULL DAY'S PAY FOR FOUR HOURS ON SATURDAYS) OR WILL IT BE 10/11 OF 5 1/2 DAYS' PAY? AS AN EXAMPLE, A $6.00 A DAY EMPLOYEE UNDER THIS OFFICE FORMERLY WAS PAID $36.00 FOR A WEEK'S WORK OF 5 1/2 DAYS; THAT IS, WORKING 4 HOURS ON SATURDAY AND ALL DAY ON 5 OTHER DAYS OF THE WEEK. 10/11 OF $36.00 EQUALS $32.72 FOR FIVE DAYS' WORK. 10/11 OF 5 1/2 DAYS' PAY AT THE SAME PER DIEM SALARY WOULD BE $30.00 FOR FIVE DAYS' PAY. WHICH BASIS APPLIES IN THE COMPUTATION OF SALARIES OF PER DIEM EMPLOYEES, 5 1/2 DAYS' PAY OR 6 DAYS' PAY?

THE CORRECT RATE FOR A WEEK'S WORK OF FIVE DAYS DURING THE FISCAL YEAR 1933, UNDER THE CONDITIONS STATED IN THIS QUESTION, WOULD BE TEN ELEVENTHS OF $36 OR $32.72 FOR A WEEK OF FIVE DAYS OR $6.54 A DAY. SEE DECISION OF JULY 14, 1932, A-43185, 12 COMP. GEN. 30, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

WITH THE UNDERSTANDING THAT FULL-TIME PER DIEM EMPLOYEES IN THE FIELD SERVICE OF THE NAVY DEPARTMENT RECEIVED THE SATURDAY HALF HOLIDAY WITH PAY AND WERE REQUIRED TO WORK ONLY 5 1/2 DAYS (44 HOURS PER WEEK), PRIOR TO JULY 1, 1932, COMPENSATION FOR 5 DAYS' WORK ON A 5 DAY WEEK BASIS UNDER THE TERMS OF SECTION 101 (A) OF THE ACT OF JULY 30, 1932 (PUBLIC, NO. 212), WILL BE 10/11 OF SIX TIMES THE DAILY RATE OF COMPENSATION EFFECTIVE JUNE 30, 1932.

2. UNDER SUBSECTION (D), SECTION 105, THE RATE OF COMPENSATION OF MEMBERS OF THE PARK POLICE FORCE IS REDUCED 8 1/3 PERCENTUM BECAUSE THEY ARE EXEMPTED UNDER SECTION 102 FROM THE PROVISIONS OF SUBSECTIONS (A) AND (B) OF SECTION 101. UNDER THE PROVISIONS OF SECTION 2 OF THE ACT APPROVED JULY 3, 1926, PUBLIC, NO. 481, 69TH CONGRESS, PARK POLICE HAVE HERETOFORE BEEN GRANTED 20 DAYS' ANNUAL LEAVE WITH PAY WHEN THEY COULD BE SPARED FROM DUTY. IS THIS ANNUAL LEAVE PRIVILEGE IN ANY WAY AFFECTED BY THE PROVISIONS OF PUBLIC, NO. 212?

SECTION 104 (5) OF THE ECONOMY ACT EXEMPTS FROM THE DEFINITION OF THE TERMS "OFFICER" AND ,EMPLOYEE," WHEN USED IN TITLE I,"OFFICERS AND MEMBERS OF THE * * * UNITED STATES PARK POLICE IN THE DISTRICT OF COLUMBIA * * *.' ACCORDINGLY, THEY ARE NOT SUBJECT TO THE PROVISIONS OF SECTION 103 OF THE ACT SUSPENDING ALL RIGHTS TO RECEIVE ANNUAL LEAVE OF ABSENCE WITH PAY DURING THE FISCAL YEAR 1933.

AS TO THE RIGHT OF OFFICERS AND MEMBERS OF THE UNITED STATES PARK POLICE TO RECEIVE LEAVE OF ABSENCE WITH PAY, IT IS BELIEVED THAT YOU REFER TO SECTION 215 OF THE ACT, WHICH PROVIDES AS FOLLOWS:

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.

SECTION 2 OF THE ACT OF JULY 3, 1926, 44 STAT. 834, PROVIDES AS FOLLOWS:

THAT SECTION 7 OF THE SAID ACT IS HEREBY AMENDED BY ADDING AT THE END OF SAID SECTION THE FOLLOWING: "HEREAFTER EACH OF THE MEMBERS OF THE UNITED STATES PARK POLICE FORCE MAY BE GRANTED LEAVE OF ABSENCE WITH PAY FOR SUCH TIME, NOT EXCEEDING TWENTY DAYS IN ANY ONE CALENDAR YEAR, AS THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL SHALL DETERMINE: PROVIDED FURTHER, THAT UPON THE RECOMMENDATION OF THE BOARD OF POLICE AND FIRE SURGEONS OF THE DISTRICT OF COLUMBIA, ACTING AS SUCH BOARD, OR MEMBERS THEREOF IN THEIR INDIVIDUAL CAPACITY, AND WITH THE APPROVAL OF THE DIRECTOR, MEMBERS OF THE UNITED STATES PARK POLICE FORCE MAY BE GRANTED ADDITIONAL LEAVE WITH PAY ON ACCOUNT OF SICKNESS, NOT TO EXCEED THIRTY DAYS IN ANY ONE CALENDAR YEAR; EXCEPT THAT IN CASE OF SICKNESS OR INJURY INCURRED IN ACTUAL PERFORMANCE OF DUTY, THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL MAY GRANT SUCH ADDITIONAL SICK LEAVE, WITH FULL PAY, AS MAY BE RECOMMENDED BY THE BOARD OF POLICE AND FIRE SURGEONS, ACTING AS SUCH, OR MEMBERS THEREOF IN THEIR INDIVIDUAL CAPACITY.

VARIOUS TERMS TO DESCRIBE OR DESIGNATE THE DIFFERENT BRANCHES OF THE GOVERNMENT AND THE PERSONNEL THEREOF ARE USED IN THE ECONOMY ACT. A CLEAR INTENTION IS SHOWN, WHENEVER THE TERMS ,CIVIL" OR "CIVILIAN" APPEAR, TO USE THE SAME IN THEIR BROADEST SENSE TO DISTINGUISH THE CIVIL BRANCH OF THE GOVERNMENT FROM THE MILITARY AND TO DISTINGUISH THE PERSONNEL OF THE ONE ONLY FROM THE PERSONNEL OF THE OTHER WITHOUT REGARD TO THE SUBDIVISION OR ACTIVITIES OF THE RESPECTIVE BRANCHES, AND WHEN THUS USED ALL PERSONNEL MUST BE CONSIDERED EITHER AS CIVILIAN OR MILITARY. WHILE THE COMPENSATION AND LEAVE PRIVILEGES OF OFFICERS AND MEMBERS OF THE UNITED STATES PARK POLICE ARE GOVERNED BY STATUTES SEPARATE AND DISTINCT FROM THE STATUTES APPLICABLE EITHER TO THE CIVIL OR MILITARY BRANCHES OF THE GOVERNMENT, THEIR DUTIES RELATE TO PRESERVATION OF ORDER AND ENFORCEMENT OF LAWS, A CIVILIAN SERVICE, AND NOT TO WAR OR NATIONAL DEFENSE, A MILITARY SERVICE. YOU ARE ADVISED, THEREFORE, THAT THE OFFICERS AND MEMBERS OF THE UNITED STATES PARK POLICE ARE SUBJECT TO THE TERMS OF SECTION 215 OF THE ECONOMY ACT.

3. THE SAME QUESTION PROPOUNDED UNDER 2 ABOVE APPLIES TO MEMBERS OF THE MOUNT VERNON HIGHWAY POLICE FORCE. FUNDS FOR THIS FORCE ARE APPROPRIATED IN THE INDEPENDENT OFFICES ACT, PUBLIC, NO. 228, SEVENTY SECOND CONGRESS, IN WHICH PROVISION IS MADE UNDER THIS OFFICE "FOR PAY AND ALLOWANCES AND FOR UNIFORMING AND EQUIPPING IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MAY 27, 1924, AS AMENDED, * * *.' THIS FORCE HAS ALSO BEEN ALLOWED THE SAME LEAVE PRIVILEGES HERETOFORE CONFERRED UPON MEMBERS OF THE U.S. PARK POLICE FORCE.

THE APPROPRIATION ACT OF JUNE 30, 1932, PUBLIC, NO. 228, 47 STAT. 464, PROVIDES AS FOLLOWS:

MOUNT VERNON HIGHWAY POLICE: FOR PAY AND ALLOWANCES AND FOR UNIFORMING AND EQUIPPING, IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MAY 27, 1924, AS AMENDED, THE POLICE FORCE TO BE ENGAGED IN PATROLLING THE MOUNT VERNON MEMORIAL HIGHWAY IN THE STATE OF VIRGINIA, AND OTHER FEDERAL LANDS, AS AUTHORIZED BY THE ACT APPROVED MAY 29, 1930 (46 STAT., P. 483), * * *.

OFFICERS AND MEMBERS OF THE MOUNT VERNON HIGHWAY POLICE FORCE ARE IN THE SAME STATUS AS TO LEAVE PRIVILEGES AS MEMBERS OF THE UNITED STATES PARK POLICE FORCE AND THE ANSWER TO QUESTION 2 IS APPLICABLE TO THEM.

4. IN THE CASE OF EMPLOYEES WHO ARE TAKING 24 DAYS' FURLOUGH DURING THE MONTH OF JULY, NECESSITATING THE DEDUCTION OF THE FULL MONTH'S PAY, AND THE IMPOUNDMENT OF SAME, WHAT METHOD IS TO BE FOLLOWED IN MAKING THE RETIREMENT DEDUCTION OF 3 1/2 PERCENT FOR THAT MONTH IF SUCH DEDUCTION IS TO BE MADE?

THERE ARE NOT 24 WORKING DAYS IN THE MONTH OF JULY, 1932. HOWEVER, IF AN EMPLOYEE SUBJECT TO THE PROVISIONS OF SECTION 101 (B) OF THE ECONOMY ACT PROVIDING FOR THE LEGISLATIVE FURLOUGH ,WITHOUT COMPENSATION FOR ONE CALENDAR MONTH" IS ABSENT THE ENTIRE CALENDAR MONTH OF JULY, HE WOULD NOT BE ENTITLED TO ANY COMPENSATION FOR THAT MONTH, AND RETIREMENT DEDUCTION AT THE RATE OF 3 1/2 PERCENT OF THE TOTAL SALARY RATE COVERING JULY SHOULD BE DEDUCTED FROM HIS COMPENSATION AT THE NEXT REGULAR PAY DAY AFTER HE RETURNS TO DUTY.

5. WITH REGARD TO SECTION 212 (A) OF THE ACT, THIS OFFICE HAS AN EMPLOYEE IN GRADE 9 OF THE CUSTODIAL SERVICE RECEIVING $2,500 PER ANNUM, WHO IS RETIRED FROM THE UNITED STATES ARMY AS A FIRST SERGEANT, BUT WHO RECEIVES THE PAY OF $138.76 PER MONTH OF A WARRANT OFFICER BECAUSE OF THE PROVISIONS OF SECTION 127 (A) OF THE NATIONAL DEFENSE ACT, AS AMENDED. DOES THE LIMITATION ON AMOUNT OF RETIRED PAY APPLY IN THIS CASE?

IN DECISION OF JULY 14, 1932, A-43204, 12 COMP. GEN. 37, QUESTION AND ANSWER 13, AFTER CITING THE VARIOUS PROVISIONS OF THE ECONOMY ACT WHICH EXEMPT ENLISTED MEN FROM ITS RESTRICTIONS AND THE SAVING CLAUSE IN THE PROVISO TO THE ACT OF JUNE 6, 1924, 43 STAT. 472, PURSUANT TO WHICH ENLISTED MEN ARE GRANTED RETIRED PAY ON ACCOUNT OF COMMISSIONED (WARRANT) SERVICE, IT WAS HELD:

CONSIDERING THIS SAVING CLAUSE IN CONNECTION WITH THE EXEMPTIONS IN THE ECONOMY ACT IN FAVOR OF RETIRED PAY OF ENLISTED MEN, IT REASONABLY MAY BE CONCLUDED THAT, IN THE APPLICATION OF SECTION 212 OF THE LATTER STATUTE, THE RETIRED PAY OF THE ENLISTED MEN MENTIONED IN PARAGRAPH 13 OF YOUR LETTER SHOULD NOT BE REDUCED BELOW THAT WHICH THEY WOULD HAVE RECEIVED HAD THEY ONLY ENLISTED SERVICE.

THEREFORE, THE EMPLOYEE REFERRED TO IN THIS QUESTION WOULD BE ENTITLED TO CONTINUE TO RECEIVE THE COMPENSATION OF HIS CIVILIAN POSITION AS WELL AS RETIRED PAY WHICH HE WOULD HAVE RECEIVED HAD HE ONLY ENLISTED SERVICE, NOTWITHSTANDING THE TOTAL EXCEEDS $3,000 PER ANNUM.