A-50676, AUGUST 25, 1933, 13 COMP. GEN. 58

A-50676: Aug 25, 1933

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COMPENSATION - RESIGNATION OF EMPLOYEE WHERE THE RESIGNATION OF AN EMPLOYEE WAS ACCEPTED TO TAKE EFFECT ON A FUTURE DATE. AS FOLLOWS: I HAVE TO REQUEST YOUR ADVANCE DECISION AS TO WHETHER THE DISBURSING CLERK OF THE FEDERAL POWER COMMISSION WOULD BE AUTHORIZED TO MAKE PAYMENT OF SALARY TO MR. WAS ACCEPTED. WAS AMENDED TO MAKE THE RESIGNATION EFFECTIVE AS OF THE CLOSE OF BUSINESS ON AUGUST 31. IT WAS HELD: "WHEN THE DATE OF RESIGNATION OF AN EMPLOYEE IS ONCE FIXED. A REVIEW OF PRIOR AND SUBSEQUENT DECISIONS TO THE ONE QUOTED FAILS TO REVEAL A STATEMENT OF FACTS WHICH IS IN POINT WITH THE INSTANT CASE. THE QUESTION INVOLVED HERE IS: DOES ACTION BY THE PROPER AUTHORITY TAKEN PRIOR TO THE DATE OF TERMINATION OF THE ORIGINAL ACCEPTANCE AND EXTENDING THE EFFECTIVE DATE OF RESIGNATION TO A LATER DATE CONSTITUTE A VALID EXCEPTION TO THE RULE QUOTED?

A-50676, AUGUST 25, 1933, 13 COMP. GEN. 58

COMPENSATION - RESIGNATION OF EMPLOYEE WHERE THE RESIGNATION OF AN EMPLOYEE WAS ACCEPTED TO TAKE EFFECT ON A FUTURE DATE, BUT BEFORE ARRIVAL OF SUCH DATE THE EMPLOYEE REQUESTED, AND THE APPOINTING POWER GRANTED THE REQUEST, POSTPONING THE EFFECTIVE DATE OF THE RESIGNATION, COMPENSATION MAY BE PAID TO THE EMPLOYEE FOR SERVICES RENDERED UNTIL THE FINAL EFFECTIVE DATE OF THE RESIGNATION. 11 COMP. DEC. 349; 10 COMP. GEN. 11; 12 ID 544; DISTINGUISHED.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN OF THE FEDERAL POWER COMMISSION, AUGUST 25, 1933:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 23, 1933, AS FOLLOWS:

I HAVE TO REQUEST YOUR ADVANCE DECISION AS TO WHETHER THE DISBURSING CLERK OF THE FEDERAL POWER COMMISSION WOULD BE AUTHORIZED TO MAKE PAYMENT OF SALARY TO MR. H. B. TEEGARDEN, SOLICITOR, FOR THE PERIOD AUGUST 22-31, INCLUSIVE. MR. TEEGARDEN, BY LETTER DATED JULY 21, 1933, SUBMITTED HIS RESIGNATION TO BECOME EFFECTIVE AT THE COMMISSION'S PLEASURE. THE COMMISSION ON JULY 27, AS RECORDED IN THE MINUTES OF THAT DATE TOOK THE FOLLOWING ACTION:

"UPON MOTION OF COMMISSIONER MANLY, SECONDED BY COMMISSIONER SMITH, THE RESIGNATION OF SOLICITOR H. B. TEEGARDEN, DATED JULY 21, 1933, WAS ACCEPTED, EFFECTIVE AUGUST 21, 1933.'

MR. TEEGARDEN ON AUGUST 17, 1933, ADDRESSED A SECOND LETTER TO THE COMMISSION REQUESTING THAT HIS RESIGNATION BE ACCEPTED AS EFFECTIVE AT THE CLOSE OF BUSINESS AUGUST 31, 1933. THE COMMISSION ON AUGUST 17 AMENDED ITS ACTION OF JULY 27, AS FOLLOWS:

"UPON MOTION OF COMMISSIONER MANLY, SECONDED BY COMMISSIONER SMITH, THE ACTION OF THE COMMISSION ON JULY 27, 1933, ACCEPTING THE RESIGNATION OF SOLICITOR H. B. TEEGARDEN, EFFECTIVE AUGUST 21, 1933, WAS AMENDED TO MAKE THE RESIGNATION EFFECTIVE AS OF THE CLOSE OF BUSINESS ON AUGUST 31, 1933.'

IN YOUR DECISION OF JULY 3, 1930 (10 COMP. GEN. 11), IT WAS HELD:

"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.'

A REVIEW OF PRIOR AND SUBSEQUENT DECISIONS TO THE ONE QUOTED FAILS TO REVEAL A STATEMENT OF FACTS WHICH IS IN POINT WITH THE INSTANT CASE. COURSE, THE QUESTION INVOLVED HERE IS: DOES ACTION BY THE PROPER AUTHORITY TAKEN PRIOR TO THE DATE OF TERMINATION OF THE ORIGINAL ACCEPTANCE AND EXTENDING THE EFFECTIVE DATE OF RESIGNATION TO A LATER DATE CONSTITUTE A VALID EXCEPTION TO THE RULE QUOTED?

IT WILL BE APPRECIATED IF PROMPT DECISION MAY BE RENDERED IN THIS CASE, AS THE COMMISSION DOES NOT DESIRE TO RETAIN THE SERVICES OF MR. TEEGARDEN FOR THE PERIOD IN QUESTION IF HE CANNOT BE PAID FOR THE SERVICES RENDERED.

IN DECISION OF NOVEMBER 16, 1894, 1 COMP. DEC. 68, 70, THE COMPTROLLER OF THE TREASURY HELD AS FOLLOWS:

IF THE RESIGNATION IS TO TAKE EFFECT IN FUTURE, THE OFFICER MAY, AT LEAST WITH THE CONSENT OF THE APPOINTING POWER, WITHDRAW THE SAME BEFORE THE DATE UPON WHICH IT WAS TO TAKE EFFECT ARRIVES, PROVIDED THE RIGHTS OF NO THIRD PARTIES HAVE INTERVENED (BUNTING V. WILLIS, 27 GRATT., 144; BIDDLE V. WILLARD, 10 IND., 62; STATE V. VAN BUSKIRK, 56 MO., 17; PEOPLE V. PORTER, 6 CAL., 26).

THE FACTS PRESENTED HERE, SHOWING THAT THE RESIGNATION WAS ORIGINALLY TENDERED TO BECOME EFFECTIVE AT THE PLEASURE OF THE APPOINTING POWER, THAT THE APPOINTING POWER ORIGINALLY FIXED AN EFFECTIVE DATE OF THE RESIGNATION IN FUTURE, AND THAT PRIOR TO SAID DATE THE APPOINTING POWER DEFERRED THE EFFECTIVE DATE OF THE RESIGNATION, BRING THE CASE SQUARELY WITHIN THE ABOVE STATED RULE.

THIS CASE IS TO BE DISTINGUISHED FROM THE CASE CONSIDERED IN 11 COMP. DEC. 349, 351, WHEREIN IT WAS HELD THAT---

* * * THE REMOVAL OF THE INCUMBENT OF AN OFFICE TAKES EFFECT UPON THE RECEIPT BY HIM OF NOTICE OF HIS REMOVAL, * * *

BY THE FACT THAT IN THAT CASE THE REMOVAL WAS NOT IN FUTURE, WHEREAS IN THE INSTANT CASE THE RESIGNATION WAS ACCEPTED IN FUTURE.

THIS CASE MAY BE DISTINGUISHED, ALSO, FROM THE CASE CONSIDERED IN DECISION OF JULY 3, 1930, 10 COMP. GEN. 11, CITED BY YOU, AND THE DECISION OF MARCH 14, 1933, 12 COMP. GEN. 544, AND CASES THEREIN CITED, BY THE FACT THAT IN THOSE CASES THE ATTEMPTED REVOCATION OR POSTPONEMENT OF THE REMOVAL OR SEPARATION WAS NOT MADE BY THE PROPER APPOINTING POWER UNTIL AFTER THE EFFECTIVE DATE OF SEPARATION ORIGINALLY FIXED, WHEREAS IN THE INSTANT CASE THE POSTPONEMENT OF THE DATE OF RESIGNATION WAS MADE BY THE APPOINTING POWER PRIOR TO THE ORIGINAL DATE FIXED FOR SEPARATION.

ACCORDINGLY, YOU ARE ADVISED THAT COMPENSATION MAY BE PAID TO MR. TEEGARDEN FOR SERVICES RENDERED DURING THE PERIOD FROM AUGUST 22, TO 31, 1933, INCLUSIVE.