A-48383, APRIL 29, 1933, 12 COMP. GEN. 613

A-48383: Apr 29, 1933

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WERE ENTITLED TO LEAVE WITH PAY UNDER THE ACT OF FEBRUARY 22. ARE ENTITLED BEGINNING APRIL 1. AS FOLLOWS: THERE ARE SUBMITTED HEREWITH FOR YOUR CONSIDERATION AND ADVICE CERTAIN QUESTIONS AS TO GRANTING OF LEAVE WITH PAY TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA. PROVIDES: "HEREAFTER ALL PER DIEM EMPLOYEES AND DAY LABORERS OF THE DISTRICT OF COLUMBIA WHO HAVE BEEN REGULARLY EMPLOYED FOR FIFTEEN WORKING DAYS NEXT PRECEDING SUCH DAYS AS ARE LEGAL HOLIDAYS IN THE DISTRICT OF COLUMBIA. SHALL BE GRANTED SUCH LEAVE OF ABSENCE WITH PAY AS IS GRANTED THE REGULAR ANNUAL EMPLOYEES OF THE DISTRICT OF COLUMBIA FOR SAID LEGAL HOLIDAYS.'. PROVIDES: "THAT THE COMMISSIONERS ARE AUTHORIZED IN THEIR DISCRETION.

A-48383, APRIL 29, 1933, 12 COMP. GEN. 613

ECONOMY ACT - LEAVES OF ABSENCE - DISTRICT OF COLUMBIA PER DIEM EMPLOYEES PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA WHO, PRIOR TO THE ECONOMY ACT OF JUNE 30, 1932, WERE ENTITLED TO LEAVE WITH PAY UNDER THE ACT OF FEBRUARY 22, 1921, 41 STAT., 1144, THEIR LEAVE YEAR RUNNING FROM MARCH 1 TO FEBRUARY 28 OF THE SUCCEEDING YEAR, ARE ENTITLED BEGINNING APRIL 1, 1933, AND FOR THE LEAVE YEAR ENDING FEBRUARY 28, 1934, TO LEAVE OF ABSENCE WITH PAY FOR NOT EXCEEDING 13 3/4 DAYS AND ANY UNUSED PORTION THEREOF MAY BE CUMULATIVE FOR ANY SUCCEEDING LEAVE YEAR.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, APRIL 29, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 7, 1933, AS FOLLOWS:

THERE ARE SUBMITTED HEREWITH FOR YOUR CONSIDERATION AND ADVICE CERTAIN QUESTIONS AS TO GRANTING OF LEAVE WITH PAY TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA.

SECTION 7 OF THE ACT OF JUNE 5, 1920 (41 STAT. 873), PROVIDES:

"HEREAFTER ALL PER DIEM EMPLOYEES AND DAY LABORERS OF THE DISTRICT OF COLUMBIA WHO HAVE BEEN REGULARLY EMPLOYED FOR FIFTEEN WORKING DAYS NEXT PRECEDING SUCH DAYS AS ARE LEGAL HOLIDAYS IN THE DISTRICT OF COLUMBIA, AND WHOSE EMPLOYMENT CONTINUES THROUGH AND BEYOND SAID LEGAL HOLIDAYS, SHALL BE GRANTED SUCH LEAVE OF ABSENCE WITH PAY AS IS GRANTED THE REGULAR ANNUAL EMPLOYEES OF THE DISTRICT OF COLUMBIA FOR SAID LEGAL HOLIDAYS.'

SECTION 8 OF THE ACT OF FEBRUARY 22, 1921 (41 STAT. 1144), PROVIDES:

"THAT THE COMMISSIONERS ARE AUTHORIZED IN THEIR DISCRETION, AND UNDER SUCH REGULATIONS AS THEY MAY PRESCRIBE, TO GRANT NOT EXCEEDING FIFTEEN DAYS' LEAVE OF ABSENCE WITH PAY EACH YEAR TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA WHO HAVE BEEN EMPLOYED FOR TEN CONSECUTIVE MONTHS OR MORE.'

SECTION 4 OF THE CURRENT DISTRICT OF COLUMBIA APPROPRIATION ACT, APPROVED JUNE 29, 1932, PROVIDES IN PART:

"ANY PERSON EMPLOYED UNDER ANY OF THE PROVISIONS OF THIS ACT WHO HAS BEEN EMPLOYED FOR TEN CONSECUTIVE MONTHS OR MORE SHALL NOT BE DENIED LEAVE OF ABSENCE WITH PAY FOR WHICH THE LAW PROVIDES.'

SECTION 103 OF THE ECONOMY ACT OF JUNE 30, 1932 (47 STAT. 400), PROVIDES:

"ALL RIGHTS NOW CONFERRED OR AUTHORIZED TO BE CONFERRED BY LAW UPON ANY OFFICER OR EMPLOYEE TO RECEIVE ANNUAL LEAVE OF ABSENCE WITH PAY ARE HEREBY SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1933.'

THE TERMS "OFFICER" AND "EMPLOYEE," AS DEFINED BY SECTION 104 OF THE ACT OF JUNE 30, 1932, HAVE BEEN INTERPRETED TO INCLUDE PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA, WHICH SECTION, AS WELL AS SECTION 103, WAS ABOLISHED BY SUBSECTION (D), SECTION 4, TITLE II OF THE ACT ENTITLED,"AN ACT TO MAINTAIN THE CREDIT OF THE UNITED STATES GOVERNMENT," APPROVED MARCH 20, 1933, EFFECTIVE APRIL 1, 1933.

SECTION 215 OF THE ECONOMY ACT APPROVED JUNE 30, 1932, PROVIDES IN PART:

"HEREAFTER NO CIVIL OFFICER OR EMPLOYEE OF THE GOVERNMENT WHO RECEIVES ANNUAL LEAVE WITH PAY SHALL BE GRANTED ANNUAL LEAVE OF ABSENCE WITH PAY IN EXCESS OF 15 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.'

THIS PROVISION WAS NOT REPEALED OR MODIFIED BY THE ACT OF MARCH 20, 1933.

PURSUANT TO THE AUTHORITY GRANTED AND THE COMMISSIONERS BY THE ACT OF FEBRUARY 22, 1921, TO MAKE REGULATIONS GOVERNING THE GRANTING OF LEAVE OF ABSENCE WITH PAY TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA, THE COMMISSIONERS ESTABLISHED AS THE SERVICE YEAR IN WHICH THIS LEAVE MAY BE GRANTED THE PERIOD BEGINNING MARCH 1 AND ENDING FEBRUARY 28 OF THE FOLLOWING YEAR, LEAVE BEING GRANTED AT THE RATE OF ONE AND ONE-QUARTER DAYS PER MONTH AFTER SERVICE OF TEN CONSECUTIVE MONTHS.

THE COMMISSIONERS WOULD APPRECIATE YOUR EARLY CONSIDERATION AND ADVICE OF THE FOLLOWING QUESTIONS:

1. IN YOUR OPINION, DOES SECTION 215 OF THE ECONOMY ACT OF JUNE 30, 1932, REPEAL SECTION 7 OF THE ACT OF JUNE 5, 1920, AND SECTION 8 OF THE ACT OF FEBRUARY 22, 1921?

2. IF YOUR ANSWER TO QUESTION NO. 1 IS IN THE NEGATIVE, DOES SECTION 215 OF THE ACT OF JUNE 30, 1932, AMEND THE ACT OF FEBRUARY 22, 1921, BY MAKING UNUSED LEAVE OF ABSENCE WITH PAY CUMULATIVE FOR ANY SUCCEEDING YEAR SO FAR AS PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA ARE CONCERNED?

3. IF YOUR ANSWERS TO QUESTIONS NOS. 1 AND 2 BE IN THE NEGATIVE, WHAT IS THE EFFECTIVE DATE OF THE LEAVE PRIVILEGES TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA?

4. IF THE LEAVE PRIVILEGE IS EFFECTIVE APRIL 1, 1933, IS IT ASSUMED THAT PER DIEM EMPLOYEES WHO HAVE BEEN IN THE SERVICE OF THE DISTRICT OF COLUMBIA FOR 10 CONSECUTIVE MONTHS OR MORE ARE ENTITLED TO LEAVE OF ABSENCE WITH PAY AT THE RATE OF ONE AND A QUARTER DAYS' PAY A MONTH, OR 13 3/4 DAYS FOR THE BALANCE OF THE SERVICE YEAR, APRIL 1, 1933, TO FEBRUARY 28, 1934?

SECTION 215 OF THE ECONOMY ACT OF JUNE 30, 1932, MADE NO CHANGE IN THE RIGHT OF EMPLOYEES TO BE ABSENT FROM DUTY ON HOLIDAYS AND RECEIVE PAY THEREFOR IF ENTITLED THERETO PRIOR TO THE PASSAGE OF THAT ACT. IT DOES NOT, THEREFORE, MAKE ANY CHANGE IN THE APPLICATION OF SECTION 7 OF THE ACT OF JUNE 5, 1920, 41 STAT. 873.

IN DECISION OF JULY 21, 1932, 12 COMP. GEN. 93, IT WAS STATED THAT THERE APPEARS NOTHING IN SAID SECTION 215 TO INDICATE AN INTENTION TO CHANGE THE LAWS OR PRACTICES THERETOFORE EXISTING WITH RESPECT TO THE LEAVE YEAR, AND THAT IN SOME SERVICES THE ANNUAL LEAVE WAS BASED ON THE FISCAL YEAR AND IN SOME OTHERS ON THE SERVICE YEAR.

SECTION 8 OF THE ACT OF FEBRUARY 22, 1921, AUTHORIZED THE ALLOWANCE OF NOT EXCEEDING 15 DAYS' LEAVE OF ABSENCE TO PER DIEM EMPLOYEES, WHICH IS NOT IN CONFLICT OR INCONSISTENT WITH SECTION 215, IT IS NOT REPEALED THEREBY, BUT IS MODIFIED TO THE EXTENT THAT SUCH LEAVE MAY NOW BE CUMULATIVE. AS INDICATED FROM REFERENCE TO 12 COMP. GEN. 93, THE LEAVE YEAR PREVIOUSLY IN FORCE FOR SUCH EMPLOYEES IS NOT CHANGED, AND ACCORDINGLY THE PER DIEM EMPLOYEES IN QUESTION, IF OTHERWISE ENTITLED TO LEAVE UNDER THE PROVISIONS OF SECTION 8 OF THE ACT OF FEBRUARY 22, 1921, WOULD BEGIN TO ACCRUE LEAVE WITH PAY AT THE RATE OF 1 1/4 CALENDAR DAYS A MONTH, BEGINNING APRIL 1, 1933, THAT IS TO SAY, FOR THE LEAVE YEAR ENDING FEBRUARY 28, 1934, THEY WOULD BE ENTITLED TO NOT TO EXCEED 13 3/4 CALENDAR DAYS' LEAVE OF ABSENCE WITH PAY AND ANY UNUSED PORTION THEREOF WOULD BE CUMULATIVE FOR ANY SUCCEEDING LEAVE YEAR.