A-44585, OCTOBER 3, 1932, 12 COMP. GEN. 386

A-44585: Oct 3, 1932

Additional Materials:

Contact:

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

 

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

IS AUTOMATICALLY SEPARATED FROM THE SERVICE BY OPERATION OF A LAW EFFECTIVE SO SOON AFTER ITS APPROVAL THAT THE EMPLOYEE COULD NOT. AS FOLLOWS: THERE ARE TRANSMITTED HEREWITH FOR YOUR CONSIDERATION. THERE IS ALSO TO BE CONSIDERED IN CONNECTION WITH THE ACCOUNT OF MR. THERE ARE ALSO INCLOSED HEREWITH PREAUDIT DIFFERENCE STATEMENTS SHOWING WHY THE AUDIT DIVISION RETURNED THE ACCOUNTS WITHOUT CERTIFICATION. I HAVE CAREFULLY READ 8 COMP. GEN. 166 REFERRED TO IN THESE STATEMENTS AND AM UNABLE TO SEE WHERE THE CASES REFERRED TO THEREIN ARE ANALOGOUS TO THE PRESENT CASES. BOTH OF THESE MEN WERE PAST 70 YEARS OF AGE. WERE WORKING UNDER EXTENSIONS AS ALLOWED UNDER THE LAWS IN EFFECT PRIOR TO THE EFFECTIVE DATE OF PUBLIC 212.

A-44585, OCTOBER 3, 1932, 12 COMP. GEN. 386

ECONOMY ACT - TRAVELING EXPENSES OF EMPLOYEES UPON SEPARATION FROM THE SERVICE WHEN AN EMPLOYEE TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS REGULAR POST OF DUTY, UNDER ORDERS DIRECTING THAT HE RETURN TO SUCH POST OF DUTY UPON COMPLETION OF THE OFFICIAL BUSINESS REQUIRING THE TRAVEL, IS AUTOMATICALLY SEPARATED FROM THE SERVICE BY OPERATION OF A LAW EFFECTIVE SO SOON AFTER ITS APPROVAL THAT THE EMPLOYEE COULD NOT, IN DUE COURSE, BE RETURNED TO HIS REGULAR POST OF DUTY BETWEEN THE TIME OF THE PRESIDENT'S APPROVAL OF THE ACT AND THE EFFECTIVE DATE OF THE SEPARATION, THE RETURN TRAVEL, IF EFFECTED PROMPTLY, MAY BE REGARDED AS TRAVEL ON OFFICIAL BUSINESS AND THE NECESSARY EXPENSES THEREOF REIMBURSED ACCORDINGLY.

COMPTROLLER GENERAL MCCARL TO GUY L. SEAMAN, DISBURSING CLERK, INTERSTATE COMMERCE COMMISSION, OCTOBER 3, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 8, 1932, AS FOLLOWS:

THERE ARE TRANSMITTED HEREWITH FOR YOUR CONSIDERATION, THE EXPENSE ACCOUNTS OF S. J. BARCLAY, VOUCHER NO. 31,692, IN THE AMOUNT OF $11.86, AND W. E. SIDELL, VOUCHER NO. 31,693, IN THE AMOUNT OF .10.25. THERE IS ALSO TO BE CONSIDERED IN CONNECTION WITH THE ACCOUNT OF MR. SIDELL THE PROPRIETY OF THE PAYMENT OF $2.61, REPRESENTING RAILROAD TRANSPORTATION FROM NEW HAVEN, CONN., TO NEW YORK CITY, SECURED ON T.R. 199,058.

THERE ARE ALSO INCLOSED HEREWITH PREAUDIT DIFFERENCE STATEMENTS SHOWING WHY THE AUDIT DIVISION RETURNED THE ACCOUNTS WITHOUT CERTIFICATION.

I HAVE CAREFULLY READ 8 COMP. GEN. 166 REFERRED TO IN THESE STATEMENTS AND AM UNABLE TO SEE WHERE THE CASES REFERRED TO THEREIN ARE ANALOGOUS TO THE PRESENT CASES.

BOTH OF THESE MEN WERE PAST 70 YEARS OF AGE, AND WERE WORKING UNDER EXTENSIONS AS ALLOWED UNDER THE LAWS IN EFFECT PRIOR TO THE EFFECTIVE DATE OF PUBLIC 212, 82ND CONGRESS. MR. BARCLAY WAS WORKING UNDER A SECOND EXTENSION WHICH WOULD HAVE TERMINATED SEPTEMBER 27, 1933, AND MR. SIDELL UNDER A FIRST EXTENSION EXPIRING AUGUST 22, 1933. BOTH MEN WERE IN EXCELLENT HEALTH AND UNDER ORDINARY CONDITIONS WOULD HAVE BEEN RETAINED UNTIL THE EXPIRATION OF THEIR EXTENSIONS.

AS YOU ARE WELL AWARE, THE ACT ABOVE REFERRED TO WAS SIGNED BY THE PRESIDENT AT 11.30 A.M. ON JUNE 30, AND BY THE TERMS OF SECTION 204 OF THE ACT: "ON AND AFTER JULY 1, 1932, NO PERSON RENDERING CIVILIAN SERVICE * * * WHO SHALL HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE APPLICABLE TO SUCH PERSON, SHALL BE CONTINUED IN SUCH SERVICE, ETC.' HOWEVER, THERE IS A SAVING CLAUSE, WHICH IS "PROVIDED, THAT THE PRESIDENT MAY, BY EXECUTIVE ORDER, EXEMPT FROM THE PROVISIONS OF THIS SECTION ANY PERSON WHEN, IN HIS JUDGMENT, THE PUBLIC INTEREST SO REQUIRES.'

PURSUANT TO THIS PROVISO THE COMMISSION ASKED FOR THE EXEMPTION OF MR. BARCLAY AND MR. SIDELL, BUT THE PRESIDENT DID NOT DEEM IT EXPEDIENT TO TAKE THE REQUESTED ACTION. NOTICE OF THE REFUSAL OF THE PRESIDENT TO ACT WAS NOT RECEIVED IN TIME TO NOTIFY THESE MEN DURING BUSINESS HOURS ON JULY 1, SO NIGHT LETTERS, COPIES OF WHICH ARE ATTACHED TO THE ACCOUNTS, WERE SENT, AND WERE RECEIVED THE MORNING OF JULY 2. MR. BARCLAY, AS INDICATED IN HIS EXPLANATION, DID NOT RECEIVE HIS NOTICE UNTIL HE REPORTED FOR WORK, AND IN ORDER TO LEAVE NO LOOSE ENDS ACTUALLY WORKED UNTIL THE CARRIERS' OFFICES CLOSED AT NOON ON THAT DAY, WHICH WAS A SATURDAY. MR. SIDELL RECEIVED HIS NOTICE AT HIS HOTEL AND RETURNED TO HIS HEADQUARTERS AS SOON AS POSSIBLE.

MR. BARCLAY DID NOT RETURN TO NEW YORK IMMEDIATELY, SO PAID CASH FARES, CLAIMING ONLY THE DIRECT NEW HAVEN-NEW YORK FARE. NO RECEIPTS WERE OBTAINED BY HIM AS THE TRAVEL REGULATIONS DO NOT REQUIRE RECEIPTS FOR CASH RAILROAD FARES.

IT IS CLAIMED THAT THE TWO CASES REFERRED TO HEREIN ARE DIFFERENTIATED FROM ANY PREVIOUSLY CONSIDERED AND DECIDED IN THAT THE SEPARATIONS WERE CAUSED SOLELY BY AN ACT OF CONGRESS WHICH BECAME A LAW ONLY 12 1/2 HOURS BEFORE ITS EFFECTIVE DATE, WHICH FACT MADE IT PHYSICALLY IMPOSSIBLE TO RECALL THE MEN PRIOR TO JULY 1, UNLESS THEY WERE TO BE DEPRIVED OF ANY CHANCE FOR CONTINUING IN THE SERVICE UNDER THE PROVISO QUOTED ABOVE.

IT IS CONTENDED, THEREFORE, THAT AS THESE MEN WERE AWAY FROM THEIR HEADQUARTERS, TRAVELING ON OFFICIAL BUSINESS UNDER COMPETENT ORDERS, AND WERE INVOLUNTARILY SEPARATED FROM THE SERVICE SOLELY UNDER THE TERMS OF AN ACT OF CONGRESS, APPROVED BY THE PRESIDENT AT SUCH AN HOUR THAT IT WAS PHYSICALLY IMPOSSIBLE TO RETURN THEM TO THEIR HEADQUARTERS BEFORE THE EFFECTIVE DATE OF THE LAW, THAT THE UNITED STATES IS UNDER A MORAL AND LEGAL RESPONSIBILITY TO RETURN THEM TO THEIR HEADQUARTERS, AND ALLOW THEM PER DIEM AT THE USUAL RATE, UNTIL SUCH RETURN.

IT WAS MERELY A FORTUITOUS CIRCUMSTANCE THAT THEY WERE SO NEAR THEIR HEADQUARTERS. THEY MIGHT WELL HAVE BEEN AT ANY ONE OF MANY POINTS FROM 400 TO 500 MILES DISTANT. THERE HAVE BEEN EMERGENCIES UNDER WHICH MEN WITH HEADQUARTERS IN NEW YORK HAVE BEEN ASSIGNED WORK ON THE PACIFIC COAST. IF CONGRESS CAN AT ANY TIME LEGISLATE AN EMPLOYEE OUT OF OFFICE, WITHOUT NOTICE, SOLELY BECAUSE OF AGE, OR FOR ANY OTHER REASON NOT CONNECTED WITH HIS WORK, OR HIS ABILITY TO PERFORM IT, AND THEN REFUSE TO PAY HIS WAY BACK TO HIS HEADQUARTERS, IT WILL HAVE THE EFFECT OF MAKING EMPLOYEES NEARING THE RETIREMENT AGE HESITATE TO PERFORM ANY OFFICIAL TRAVEL, OR WILL REQUIRE A CHANGE IN THE WORDING OF ALL APPROPRIATION BILLS WHICH PROVIDE FOR TRAVEL OF EMPLOYEES, SO THAT THEY WILL PROVIDE IN TERMS FOR RETURN OF THE TRAVELER TO HEADQUARTERS IN ALL CASES OF SEPARATION NOT DUE TO THE VOLUNTARY ACT OR MISCONDUCT OF THE EMPLOYEE.

IT IS RESPECTFULLY REQUESTED THAT THESE ACCOUNTS BE GIVEN CAREFUL CONSIDERATION BECAUSE THERE IS A PRINCIPLE INVOLVED THAT MAY HAVE FAR REACHING EFFECTS.

IN DECISION OF SEPTEMBER 12, 1932, A-43854, 12 COMP. GEN. 341, IT WAS HELD THAT UNDER SECTION 204 OF THE ECONOMY ACT---

* * * ALL SUCH PERSONS WHO HAD REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE BECAME AUTOMATICALLY SEPARATED FROM THE SERVICE ON JULY 1, 1932, AND ALL SALARY, PAY, OR COMPENSATION AUTOMATICALLY CEASED FROM THAT DATE, EXCEPT AS OTHERWISE PROVIDED IN THE FIRST AND THIRD PROVISOS OF SAID SECTION, AND NO ADMINISTRATIVE ACTION WAS NECESSARY TO EFFECT SUCH AUTOMATIC SEPARATION FROM THE SERVICE AND SUCH CESSATION OF ALL SALARY, PAY, OR COMPENSATION. SEE 26 COMP. DEC. 1079; 27 ID. 858; 5 COMP. GEN. 70; 6 ID. 71, 263.

WHEN AN EMPLOYEE TRAVELING ON OFFICIAL BUSINESS AWAY FROM HIS REGULAR POST OF DUTY, UNDER ORDERS DIRECTING THAT HE RETURN TO SUCH POST OF DUTY UPON COMPLETION OF THE OFFICIAL BUSINESS REQUIRING THE TRAVEL, IS AUTOMATICALLY SEPARATED FROM THE SERVICE BY OPERATION OF A LAW EFFECTIVE SO SOON AFTER ITS APPROVAL THAT THE EMPLOYEE COULD NOT, IN DUE COURSE, BE RETURNED TO HIS REGULAR POST OF DUTY BETWEEN THE TIME OF THE PRESIDENT'S APPROVAL OF THE ACT AND THE EFFECTIVE DATE OF THE SEPARATION, THE RETURN TRAVEL, IF EFFECTED PROMPTLY, MAY BE REGARDED AS TRAVEL ON OFFICIAL BUSINESS AND THE NECESSARY EXPENSES THEREOF REIMBURSED ACCORDINGLY.

THE TWO VOUCHERS TRANSMITTED WITH YOUR LETTER WILL BE GIVEN FURTHER CONSIDERATION UNDER THE RULE ABOVE STATED AND WILL BE RETURNED IN DUE COURSE.