A-46992, MARCH 14, 1933, 12 COMP. GEN. 544

A-46992: Mar 14, 1933

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COMPENSATION - RESIGNATION OF EMPLOYEE WHERE THE RESIGNATION OF AN EMPLOYEE WAS ACCEPTED TO TAKE EFFECT AT A FUTURE DATE AND HE WAS NOTIFIED. 1933: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 25. THE VOUCHER WAS RETURNED UPON PREAUDIT DIFFERENCE STATEMENT. WITH THE FOLLOWING STATEMENT: "WHEN THE DATE OF RESIGNATION OF AN EMPLOYEE IS ONCE FIXED. WHICH RESIGNATION WAS ACCEPTED ON NOVEMBER 1. MCSWAIN'S RESIGNATION WAS EXTENDED TO THE CLOSE OF DECEMBER 5. UPON RECEIPT OF THE PREAUDIT DIFFERENCE STATEMENT OF JANUARY 17TH THE MATTER WAS AGAIN TAKEN UP WITH THE DIRECTOR OF THE BUREAU OF INVESTIGATION WHO HAS FURNISHED A MEMORANDUM TO THE EFFECT THAT MR. THE ACTION OF THE GENERAL ACCOUNTING OFFICE IN REFUSING TO CERTIFY THE VOUCHER FOR SETTLEMENT IS APPARENTLY BASED UPON YOUR DECISION OF JULY 3.

A-46992, MARCH 14, 1933, 12 COMP. GEN. 544

COMPENSATION - RESIGNATION OF EMPLOYEE WHERE THE RESIGNATION OF AN EMPLOYEE WAS ACCEPTED TO TAKE EFFECT AT A FUTURE DATE AND HE WAS NOTIFIED, THE EMPLOYEE'S SERVICE LEGALLY TERMINATED ON THAT DATE, AND A LETTER THEREAFTER FROM THE DEPARTMENT PURPORTING TO CHANGE THE EFFECTIVE DATE TO A LATER DATE COULD NOT OPERATE TO RESTORE THE EMPLOYEE TO THE SERVICE, AND THEREBY ENTITLE HIM TO PAY FOR SERVICES RENDERED BETWEEN THE FORMER DATE AND THE LATTER DATE.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, MARCH 14, 1933:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 25, 1933 (JWG), AS FOLLOWS:

UNDER DATE OF JANUARY 17, 1933, THE GENERAL ACCOUNTING OFFICE RETURNED TO THIS DEPARTMENT A VOUCHER IN FAVOR OF W. A. MCSWAIN, SPECIAL AGENT OF THE BUREAU OF INVESTIGATION OF THIS DEPARTMENT, IN THE AMOUNT OF $155.55 FOR COMPENSATION AT THE RATE OF $5,600 PER ANNUM FOR THE PERIOD NOVEMBER 26 TO DECEMBER 5.

THE VOUCHER WAS RETURNED UPON PREAUDIT DIFFERENCE STATEMENT, WITHOUT CERTIFICATION, WITH THE FOLLOWING STATEMENT:

"WHEN THE DATE OF RESIGNATION OF AN EMPLOYEE IS ONCE FIXED, NO SUBSEQUENT ACTION, WHETHER ON THE PART OF THE EMPLOYEE OR EMPLOYER OR BOTH, CAN CHANGE THE DATE.'

THE RECORDS OF THE DEPARTMENT SHOW THAT MR. MCSWAIN TENDERED HIS RESIGNATION AS A SPECIAL AGENT OF THE BUREAU OF INVESTIGATION, WHICH RESIGNATION WAS ACCEPTED ON NOVEMBER 1, 1932, EFFECTIVE AT THE CLOSE OF BUSINESS ON NOVEMBER 25, 1932. BY REQUEST OF THE DIRECTOR OF THE BUREAU OF INVESTIGATION THE EFFECTIVE DATE OF MR. MCSWAIN'S RESIGNATION WAS EXTENDED TO THE CLOSE OF DECEMBER 5, 1932. UPON RECEIPT OF THE PREAUDIT DIFFERENCE STATEMENT OF JANUARY 17TH THE MATTER WAS AGAIN TAKEN UP WITH THE DIRECTOR OF THE BUREAU OF INVESTIGATION WHO HAS FURNISHED A MEMORANDUM TO THE EFFECT THAT MR. MCSWAIN REMAINED ON DUTY AT THE CHICAGO OFFICE OF THE BUREAU OF INVESTIGATION AT THE REQUEST OF THE DIRECTOR OF THE BUREAU OF INVESTIGATION AFTER THE DATE ORIGINALLY CONTEMPLATED IN ORDER THAT HE MIGHT CONTINUE THE INVESTIGATION OF CERTAIN DETAILS IN CONNECTION WITH THE INSULL CASE AND ALSO TO ENABLE HIM TO ACQUAINT HIS SUCCESSOR WITH ALL OF THE FACTS AND CIRCUMSTANCES IN CONNECTION THEREWITH SO THAT THE INVESTIGATION MIGHT BE EXPEDITIOUSLY HANDLED.

THE ACTION OF THE GENERAL ACCOUNTING OFFICE IN REFUSING TO CERTIFY THE VOUCHER FOR SETTLEMENT IS APPARENTLY BASED UPON YOUR DECISION OF JULY 3, 1930 (10 COMP. GEN. 11), WHEREIN IT WAS HELD THAT THE DATE OF A RESIGNATION OF AN EMPLOYEE WHEN ONCE FIXED CAN NOT BE CHANGED BY SUBSEQUENT ACTION EITHER ON THE PART OF AN EMPLOYEE OR THE EMPLOYER OR BOTH. THIS DECISION WAS RENDERED IN A CASE WHERE A RESIGNATION WAS SUBMITTED EFFECTIVE AT THE CLOSE OF BUSINESS FEBRUARY 27. UNDER NUMEROUS DECISIONS OF YOUR PREDECESSOR, IT HAS BEEN HELD THAT AN EMPLOYEE IN DUTY STATUS ON FEBRUARY 28TH IS ENTITLED TO THREE DAYS' PAY, NAMELY THE 38TH AND A THEORETICAL 29TH AND 30TH DAY. THERE IS NO DOUBT FROM THE INFORMATION CONTAINED IN THIS DECISION THAT THE PURPOSE OF THE ACTION OF THE EMPLOYEE AND EMPLOYER WAS FOR THE SOLE PURPOSE OF GIVING THE EMPLOYEE THREE DAYS' COMPENSATION FOR SUNDAY FEBRUARY 28TH. IN A DECISION OF THE COMPTROLLER OF THE TREASURY OF DECEMBER 5, 1919 (26 COMP. DEC. 448), A SOMEWHAT SIMILAR DECISION WAS RENDERED. IN THIS CASE, HOWEVER, THE EFFECTIVE DATE OF THE RESIGNATION WAS TO BE EXTENDED FOR THE PURPOSE OF PERMITTING AN EMPLOYEE TO TAKE A NUMBER OF DAYS ANNUAL LEAVE WHICH HAD ACCRUED TO HIM. THE PAYMENT IN THIS CASE WAS REFUSED.

IN BOTH OF THE ABOVE-MENTIONED DECISIONS IT APPEARS THAT IN EACH CASE THE EMPLOYEE ATTEMPTED TO RECEIVE COMPENSATION WITHOUT RENDERING SERVICES TO THE GOVERNMENT THEREFOR. FOR THAT REASON IT IS A VIEW OF THIS DEPARTMENT THAT NEITHER DECISION IS APPLICABLE IN MR. MCSWAIN'S CASE. MR. MCSWAIN ACTUALLY RENDERED SERVICE ON EACH AND EVERY DAY DURING THE PERIOD FROM NOVEMBER 26TH TO DECEMBER 5TH AND SHOULD BE ENTITLED TO COMPENSATION THEREFOR. THE ACTION OF THE DEPARTMENT WAS EQUIVALENT TO A WITHDRAWAL OF THE ORIGINAL RESIGNATION AND THE ACCEPTANCE OF A NEW RESIGNATION, EFFECTIVE AT A LATER DATE, CONTINUOUS SERVICE HAVING BEEN RENDERED DURING THE ENTIRE PERIOD, AT THE REQUEST OF THE DEPARTMENT.

YOUR DECISION ON THE MATTER IS REQUESTED.

IN RESPONSE TO MY LETTER OF FEBRUARY 16, 1933, REQUESTING INFORMATION AS TO WHEN AND BY WHOM ACTION PURPORTING TO EXTEND THE EFFECTIVE DATE OF RESIGNATION FROM NOVEMBER 25 TO DECEMBER 5, 1932, WAS TAKEN, THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 21, 1933, IN PART AS FOLLOWS:

YOU ARE ADVISED THAT THE RECORDS OF THE DEPARTMENT SHOW THAT UNDER DATE OF OCTOBER 31, 1932, THE DIRECTOR OF THE BUREAU OF INVESTIGATION TRANSMITTED A MEMORANDUM TO THE DEPARTMENT REQUESTING THAT A LETTER BE PREPARED ACCEPTING THE RESIGNATION OF MR. MCSWAIN AT THE CLOSE OF BUSINESS NOVEMBER 25, 1932. IN VIEW THEREOF THE LETTER DATED NOVEMBER 1, 1932, SIGNED BY ASSISTANT ATTORNEY GENERAL SISSON, ACCEPTED HIS RESIGNATION AT THE CLOSE OF BUSINESS NOVEMBER 25, 1932. THE FILES ALSO CONTAIN A MEMORANDUM FROM THE DIRECTOR OF THE BUREAU OF INVESTIGATION DATED DECEMBER 1, 1932, WHICH READS AS FOLLOWS:

"WITH REFERENCE TO MY MEMORANDUM OF OCTOBER 31, 1932, REQUESTING THAT THE RESIGNATION OF MR. W. A. MCSWAIN, SPECIAL AGENT IN THE BUREAU OF INVESTIGATION, BE ACCEPTED EFFECTIVE AT THE CLOSE OF BUSINESS NOVEMBER 25, 1932, IT IS REQUESTED THAT THE SAME BE AMENDED TO BE EFFECTIVE AT THE CLOSE OF BUSINESS DECEMBER 5, 1932.'

THIS MEMORANDUM HAS THE PENCIL APPROVAL OF THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL. THE FILES ALSO SHOW A COPY OF LETTER DATED DECEMBER 3, 1932, SIGNED BY ASSISTANT ATTORNEY GENERAL RUGG TO THE EFFECT THAT THE ACCEPTANCE OF MR. MCSWAIN'S RESIGNATION WAS THEREBY AMENDED SO THAT THE SAME WOULD BE EFFECTIVE AT THE CLOSE OF BUSINESS DECEMBER 5, 1932.

COPIES OF THE LETTERS OF NOVEMBER 1 ACCEPTING THE RESIGNATION AT THE CLOSE OF BUSINESS NOVEMBER 25 AND OF A LETTER OF DECEMBER 3 AMENDING THE ACCEPTANCE SO AS TO BE EFFECTIVE AT THE CLOSE OF DECEMBER 5, ARE ATTACHED TO THE VOUCHER IN FAVOR OF MR. MCSWAIN.

IT APPEARS THAT THE RESIGNATION OF MR. MCSWAIN WAS ACCEPTED BY LETTER OF NOVEMBER 1, 1932, TO HIM FROM THE ASSISTANT ATTORNEY GENERAL, WHICH LETTER, IT MUST BE ASSUMED, WAS RECEIVED BY MR. MCSWAIN BEFORE NOVEMBER 25, 1932, THE EFFECTIVE DATE OF HIS RESIGNATION. THOUGH IT APPEARS THAT MR. MCSWAIN REMAINED ON DUTY AFTER NOVEMBER 25, 1932, AT THE REQUEST OF THE DIRECTOR OF THE BUREAU OF INVESTIGATION, YET IT IS SHOWN THAT IT WAS NOT UNTIL DECEMBER 1, 1932, AFTER THE EFFECTIVE DATE OF HIS ACCEPTED RESIGNATION, THAT THE REQUEST OF THE DIRECTOR OF THE BUREAU OF INVESTIGATION TO CHANGE THE EFFECTIVE DATE OF THE RESIGNATION WAS MADE AND IT WAS NOT UNTIL DECEMBER 3, 1932, THAT THE ASSISTANT ATTORNEY GENERAL WROTE MR. MCSWAIN THAT THE EFFECTIVE DATE OF THE RESIGNATION WAS CHANGED TO DECEMBER 5, 1932.

MR. MCSWAIN'S SERVICE LEGALLY TERMINATED NOVEMBER 25, 1932, AND THE SAID LETTER OF DECEMBER 3, 1932, COULD NOT OPERATE TO RESTORE HIM TO THE SERVICE OR TO CHANGE THE EFFECTIVE DATE OF HIS SEPARATION. SEE 26 COMP. DEC. 310. SEE, ALSO, 11 COMP. DEC. 349, AND DECISION OF JULY 13, 1932, A- 43183. ACCORDINGLY, PAYMENT OF SALARY TO MR. MCSWAIN FOR THE PERIOD NOVEMBER 26 TO DECEMBER 5, 1932, IS NOT AUTHORIZED.