A-48217, APRIL 11, 1933, 12 COMP. GEN. 584

A-48217: Apr 11, 1933

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1933 WHEN LEGISLATIVE FURLOUGH WAS LEGALLY AND PROPERLY GRANTED OR IMPOSED BY AN ADMINISTRATIVE OFFICE UNDER THE TERMS OF SECTION 101 (B) OF THE ECONOMY ACT. IT WAS NECESSARY TO MAKE A DEDUCTION OF TWO AND ONE-HALF (2 1/2 ( DAYS' PAY EACH MONTH FROM THE SALARY OF EACH EMPLOYEE. IN RETURN FOR WHICH EACH EMPLOYEE WAS ENTITLED TO TWO (2) DAYS LEGISLATIVE FURLOUGH LEAVE A MONTH. DURING WHICH THESE PROVISIONS WERE IN EFFECT. THE MINIMUM REQUIRED DEDUCTION IS 22 1/2 DAYS' PAY. WERE FACED WITH THE NECESSITY OF IMPOSING ADMINISTRATIVE FURLOUGHS IN ORDER TO KEEP WITHIN THE FUNDS APPROPRIATED. A NUMBER OF THE EMPLOYEES OF THE DEPARTMENT HAVE HAD THE FULL 30 DAYS' PAY DEDUCTED FROM THEIR COMPENSATION.

A-48217, APRIL 11, 1933, 12 COMP. GEN. 584

ECONOMY ACT, AMENDED - LEGISLATIVE FURLOUGH - FINAL ADJUSTMENT AS OF MARCH 31, 1933 WHEN LEGISLATIVE FURLOUGH WAS LEGALLY AND PROPERLY GRANTED OR IMPOSED BY AN ADMINISTRATIVE OFFICE UNDER THE TERMS OF SECTION 101 (B) OF THE ECONOMY ACT, THE ABSENCE OF EMPLOYEES ON SUCH FURLOUGH MAY NOT NOW BE REGARDED AS SOMETHING ELSE; I.E., EITHER AS ADMINISTRATIVE FURLOUGH OR ORDINARY LEAVE OF ABSENCE WITHOUT PAY, THE DECISION OF MARCH 23, 1933, 12 COMP. GEN. 555, HAVING STATED THE ONLY AUTHORIZED BASIS FOR ADJUSTMENT OF LEGISLATIVE FURLOUGH WITH EACH INDIVIDUAL OFFICER OR EMPLOYEE AS OF MARCH 31, 1933.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, APRIL 11, 1933:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MARCH 29, 1933, AS FOLLOWS:

UNDER THE PROVISIONS OF PART II, TITLE 1 OF PUBLIC, NO. 212, 72ND CONGRESS, IT WAS NECESSARY TO MAKE A DEDUCTION OF TWO AND ONE-HALF (2 1/2 ( DAYS' PAY EACH MONTH FROM THE SALARY OF EACH EMPLOYEE, IN RETURN FOR WHICH EACH EMPLOYEE WAS ENTITLED TO TWO (2) DAYS LEGISLATIVE FURLOUGH LEAVE A MONTH. FOR THE NINE MONTHS' PERIOD FROM JULY 1, 1932, TO MARCH 31, 1933, INCLUSIVE, DURING WHICH THESE PROVISIONS WERE IN EFFECT, THE MINIMUM REQUIRED DEDUCTION IS 22 1/2 DAYS' PAY. HOWEVER, SEVERAL OF THE BUREAUS OF THE DEPARTMENT, BY REASON OF THE DRASTICALLY REDUCED APPROPRIATIONS, WERE FACED WITH THE NECESSITY OF IMPOSING ADMINISTRATIVE FURLOUGHS IN ORDER TO KEEP WITHIN THE FUNDS APPROPRIATED. A NUMBER OF THE EMPLOYEES OF THE DEPARTMENT HAVE HAD THE FULL 30 DAYS' PAY DEDUCTED FROM THEIR COMPENSATION, UNDER PROVISIONS OF THE ABOVE-MENTIONED ACT, IN ORDER THAT THE DEDUCTIONS FOR THE ADMINISTRATIVE FURLOUGH WHICH ARE NECESSARY MAY BE MADE DURING THE REMAINDER OF THE YEAR. FURTHERMORE, THESE EMPLOYEES HAVE BEEN ENCOURAGED TO TAKE AS MUCH OF THE COMPENSATORY TIME AS POSSIBLE DURING THE EARLY PART OF THE YEAR IN ORDER TO AVOID TOO GREAT A CONGESTION OF LEAVE DURING THE LATTER PART OF THE YEAR.

UNDER THE PROVISIONS OF THE ACT OF MARCH 20, 1933, AND IN ACCORDANCE WITH YOUR DECISION OF MARCH 23, 1933, A-47718, THE EMPLOYEES WHO HAVE HAD EXCESSIVE DEDUCTIONS UNDER THE ORIGINAL ECONOMY ACT, BUT WHO HAVE NOT TAKEN COMPENSATORY TIME, ARE ENTITLED TO A REFUND OF SUCH EXCESSIVE DEDUCTIONS, WHEREAS THE EMPLOYEES WHO HAVE TAKEN ALL THEIR COMPENSATORY TIME AS URGED BY THE DEPARTMENT HAVE NO PROSPECT OF REDUCING THE TOTAL REDUCTION OF THEIR INCOME. THIS SITUATION EXISTS ONLY IN THOSE OFFICES WHERE ADMINISTRATIVE FURLOUGHS ARE REQUIRED AND MIGHT BE EQUALIZED BY A TRANSFER OF THE EXCESSIVE DEDUCTIONS WHICH HAVE BEEN MADE UNDER LEGISLATIVE FURLOUGH PROVISIONS TO OFFSET THE DEDUCTIONS WHICH ARE TO BE APPLIED BY THE DEPARTMENT ADMINISTRATIVELY. WITHOUT SOME RELIEF ALONG THIS LINE THE FOLLOWING SITUATION WOULD EXIST AMONG A NUMBER OF EMPLOYEES OF THIS DEPARTMENT: A AND B, WHO ARE EMPLOYED IN THE SAME OFFICE AND WHOSE SERVICES CAN NOT BE SPARED AT THE SAME TIME, AGREE THAT A SHALL TAKE HIS TOTAL 24 DAYS LEGISLATIVE FURLOUGH DURING NOVEMBER AND THAT B SHALL TAKE HIS TOTAL 24 DAYS LEGISLATIVE FURLOUGH DURING APRIL. DEDUCTIONS HAVE BEEN MADE SO THAT BOTH HAVE HAD 30 DAYS' PAY DEDUCTED PRIOR TO THE EFFECTIVE DATE OF THE NEW ACT. UNDER YOUR DECISION OF MARCH 23, B WILL BE ENTITLED TO A REFUND OF 7 1/2 DAYS' PAY WHEREAS A WILL NOT BE ENTITLED TO ANY REFUND. BOTH OF THESE EMPLOYEES ARE SUBJECT TO AN ADDITIONAL 10 DAYS' ADMINISTRATIVE FURLOUGH, WHICH WILL RESULT IN A HAVING A TOTAL OF 40 DAYS DEDUCTION WHEREAS THE TOTAL DEDUCTIONS FOR B WHEN THE REFUND IS CONSIDERED WOULD BE ONLY 32 1/2 DAYS. INSTEAD OF MAKING A REFUND TO THOSE EMPLOYEES WHO WILL BE SUBJECT TO FURTHER DEDUCTIONS ADMINISTRATIVELY, THE DEPARTMENT WOULD LIKE TO TRANSFER AND OFFSET ALL EXCESSIVE DEDUCTIONS MADE UNDER THE LEGISLATIVE FURLOUGH PROVISION AGAINST THE ADMINISTRATIVE DEDUCTIONS WHICH WILL HAVE TO BE MADE. IF THIS CAN BE DONE, IN THE ABOVE-MENTIONED CASES NO REFUND WILL BE MADE TO EITHER, BUT THE EXCESSIVE DEDUCTIONS WILL BE TRANSFERRED AND EACH WILL HAVE AN ADDITIONAL DEDUCTION OF 2 1/2 DAYS' PAY ONLY, MAKING THE TOTAL DEDUCTIONS FOR THE YEAR OF 22 1/2 DAYS ON ACCOUNT OF LEGISLATIVE FURLOUGH AND 10 DAYS FOR ADMINISTRATIVE FURLOUGH.

UNDER YOUR DECISION OF MARCH 23, A REFUND IS AUTHORIZED TO THOSE EMPLOYEES WHO HAVE HAD EXCESS DEDUCTIONS BUT FOR WHICH COMPENSATORY TIME HAS NOT BEEN TAKEN. THIS IS IN FACT A RELEASE OF FUNDS WHICH HAVE BEEN IMPOUNDED. THE INSTANT REQUEST CONTEMPLATES A SIMILAR RELEASE IN CASES WHERE THE LEAVE HAS BEEN TAKEN, THE EXCESS DEDUCTIONS TO BE CREDITED TO THE APPROPRIATIONS TO OFFSET THE REQUIRED ADMINISTRATIVE FURLOUGH DEDUCTIONS; THE EXCESS LEAVE TO BE CHARGED AGAINST THE ADMINISTRATIVE FURLOUGH LEAVE.

IT IS RESPECTFULLY REQUESTED THAT YOU ADVISE THIS DEPARTMENT WHETHER IT WOULD BE PERMISSIBLE TO MAKE THE TRANSFER OF DEDUCTIONS AS ABOVE STATED.

REFERRING TO THE ILLUSTRATION OF CASES A AND B IN YOUR LETTER, IT IS NOT UNDERSTOOD ON WHAT BASIS THERE CAN BE CORRECT THE STATEMENT SET FORTH IN YOUR SUBMISSION AS FOLLOWS: "DEDUCTIONS HAVE BEEN MADE SO THAT BOTH HAVE HAD 30 DAYS' PAY DEDUCTED PRIOR TO THE EFFECTIVE DATE OF THE NEW ACT.' THE RULES STATED BY THIS OFFICE IN DECISION OF JULY 8, 1932, 12 COMP. GEN. 16, UNDER THE TERMS OF SECTION 101 (B) OF THE ECONOMY ACT, HAVE BEEN APPLIED BY THE DEPARTMENT OF COMMERCE, THE LEGISLATIVE FURLOUGH DEDUCTIONS AS OF MARCH 31, 1933, IN THE CASE OF A SHOULD HAVE BEEN 30 DAYS' COMPENSATION, BUT IN THE CASE OF B ONLY 22 1/2 DAYS' COMPENSATION. HOWEVER, THIS IS NOT MATERIAL TO A DETERMINATION OF THE QUESTION PRESENTED.

THE ECONOMY ACT FIXED A DEFINITE BASIS FOR DEDUCTION FROM COMPENSATION TO COVER LEGISLATIVE FURLOUGH, AND, IN MAKING ANY ADJUSTMENTS NECESSARY BY REASON OF THE REPEAL OF THE SAID FURLOUGH PROVISION, FULL FORCE AND EFFECT MUST BE GIVEN TO THE REQUIREMENTS OF THE FURLOUGH PROVISION WITH RESPECT TO ALL LEGISLATIVE FURLOUGH ABSENCE ACTUALLY TAKEN DURING THE PERIOD FROM JULY 1, 1932, TO MARCH 31, 1933, EITHER AT THE REQUEST OF THE EMPLOYEE OR BY DIRECTION OF THE ADMINISTRATIVE OFFICE. IT WAS LEGAL AND PROPER FOR AN EMPLOYEE TO APPLY FOR AND BE GRANTED THE ENTIRE PERIOD OF 24 WORKING DAYS OF LEGISLATIVE FURLOUGH DURING THE FIRST NINE MONTHS OF THE FISCAL YEAR. LIKEWISE, IT WAS LEGAL AND PROPER FOR THE ADMINISTRATIVE OFFICE TO REQUIRE THE EMPLOYEE TO TAKE, WITHOUT HIS CONSENT, THE ENTIRE 24 WORKING DAYS DURING SAID PERIOD, PROVIDED HE BE NOT REQUIRED TO TAKE MORE THAN 5 DAYS OF SUCH FURLOUGH IN ANY ONE MONTH. WITH RESPECT TO THE LEGISLATIVE FURLOUGH THUS IMPOSED OR VOLUNTARILY TAKEN, THE LAW CLEARLY PROVIDED THAT THERE SHOULD BE DEDUCTED ONE MONTH'S PAY. THEREFORE, WHEN LEGISLATIVE FURLOUGH WAS LEGALLY AND PROPERLY GRANTED OR IMPOSED BY THE DEPARTMENT OF COMMERCE UNDER THE TERMS OF SECTION 101 (B) OF THE ECONOMY ACT, THE ABSENCE OF THE EMPLOYEE ON SUCH FURLOUGH MAY NOT NOW BE REGARDED AS SOMETHING ELSE--- THAT IS, EITHER AS ADMINISTRATIVE FURLOUGH OR ORDINARY LEAVE OF ABSENCE WITHOUT PAY. THE DECISION OF MARCH 23, 1933, A-47718, 12 COMP. GEN. 555, STATED THE ONLY AUTHORIZED BASIS FOR ADJUSTMENT OF THE LEGISLATIVE FURLOUGH ACCOUNT WITH EACH INDIVIDUAL OFFICER OR EMPLOYEE AS OF MARCH 31, 1933, AND YOU ARE ADVISED THAT THE BASIS OF THE ADJUSTMENT SUGGESTED IN YOUR LETTER IS NOT AUTHORIZED.

HOWEVER, AS AN ADMINISTRATIVE PROPOSITION THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO SUCH EQUALIZING AS MAY BE PRACTICABLE BY SELECTING FOR ADMINISTRATIVE FURLOUGH DURING THE REMAINDER OF THE FISCAL YEAR--- IF AND TO THE EXTENT SUCH FURLOUGHS MAY BE NECESSARY TO KEEP WITHIN THE APPROPRIATIONS--- THE EMPLOYEES WHO HAVE NOT HAD MORE THAN 22 1/2 DAYS' PAY DEDUCTED ON ACCOUNT OF LEGISLATIVE FURLOUGH. THAT IS TO SAY, BY SO IMPOSING THE REQUIRED ADMINISTRATIVE FURLOUGH THAT THE TOTAL NUMBER OF DAYS' PAY LOST (BOTH LEGISLATIVE AND ADMINISTRATIVE) DURING THE ENTIRE FISCAL YEAR WILL, AS NEARLY AS PRACTICABLE, BE THE SAME FOR ALL EMPLOYEES.