A-78351, AUGUST 31, 1936, 16 COMP. GEN. 202

A-78351: Aug 31, 1936

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IS ALSO APPLICABLE TO POSTAL EMPLOYEES. AS FOLLOWS: THE ATTENTION OF THE DEPARTMENT HAS BEEN DRAWN TO THE FACT THAT CREDIT WAS DISALLOWED IN THE ACCOUNTS OF THE POSTMASTER AT CLINTON. IT IS UNDERSTOOD THAT ACTION IN THIS CASE WAS PREDICATED ON A DECISION DATED AUGUST 2. THE CHARGES ARE SUSTAINED CULMINATE IN DISMISSAL. THE EMPLOYEE IS NOT ENTITLED TO PAY FROM THE DATE OF ORIGINAL SUSPENSION BY THE FIELD OFFICER.'. ATTENTION IS INVITED TO THE ACT OF FEBRUARY 24. THAT IF AT THE TIME OF SUCH REMOVAL ANY SUCH EMPLOYEE IS INDEBTED TO THE UNITED STATES ANY SALARY. IN VIEW OF THIS STATUTE AND OF THE FACT THAT THE POSTMASTER WAS INSTRUCTED TO GRANT MR. IT IS DESIRED TO ALLOW THE NECESSARY CREDIT IN THIS CASE.

A-78351, AUGUST 31, 1936, 16 COMP. GEN. 202

LEAVES OF ABSENCE - ANNUAL - POSTAL EMPLOYEES SEPARATED FROM SERVICE FOR MISCONDUCT THE RULE STATED UNDER VARIOUS LEAVE LAWS THAT CIVILIAN EMPLOYEES OF THE GOVERNMENT MAY NOT BE PAID FOR LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SEPARATION FROM THE SERVICE, IS ALSO APPLICABLE TO POSTAL EMPLOYEES. THE ACT OF FEBRUARY 24, 1931, 46 STAT. 1416, PROHIBITING THE WITHHOLDING OR CONFISCATION OF PAY EARNED BY CIVILIAN EMPLOYEES OF THE GOVERNMENT REMOVED FOR CAUSE EXCEPT FOR INDEBTEDNESS TO THE GOVERNMENT, DOES NOT AUTHORIZE PAY FOR LEAVE NOT GRANTED AND TAKEN PRIOR TO REMOVAL FROM THE SERVICE. THE DATE OF DISCHARGE OF A POSTAL EMPLOYEE INVOLUNTARILY SEPARATED FROM THE SERVICE FOR CAUSE DUE TO HIS OWN MISCONDUCT MAY BE MADE EFFECTIVE IMMEDIATELY, OR AT THE EXPIRATION OF ACCRUED LEAVE, IN THE DISCRETION OF THE POSTMASTER GENERAL, BUT A DATE OF REMOVAL ONCE FIXED MAY NOT BE CHANGED FOR THE PURPOSE OF GRANTING LEAVE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, AUGUST 31, 1936:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JULY 11, 1936, AS FOLLOWS:

THE ATTENTION OF THE DEPARTMENT HAS BEEN DRAWN TO THE FACT THAT CREDIT WAS DISALLOWED IN THE ACCOUNTS OF THE POSTMASTER AT CLINTON, INDIANA, COVERING PAYMENTS MADE TO FORMER ASSISTANT POSTMASTER, CHARLES L. VOGEL, FOR VACATION GRANTED AFTER HIS SUSPENSION FROM DUTY, BUT PRIOR TO THE ORDER DIRECTING HIS DISMISSAL FROM THE SERVICE.

IT IS UNDERSTOOD THAT ACTION IN THIS CASE WAS PREDICATED ON A DECISION DATED AUGUST 2, 1921, AND PUBLISHED IN VOLUME 1, PAGE 42, DECISIONS OF THE COMPTROLLER GENERAL, WHICH PROVIDED:

"RATIFICATION OF THE ACTION OF A SUBORDINATE OFFICER OF THE GOVERNMENT IN SUSPENDING AN EMPLOYEE WITHOUT PAY RELATES BACK TO THE TIME OF SUSPENSION, PROVIDED THE SUPERIOR OFFICER HAS AUTHORITY TO PERFORM THE ACT RATIFIED.

"WHERE A FIELD EMPLOYEE OF THE GOVERNMENT HAS BEEN SUSPENDED WITHOUT PAY BY THE FIELD OFFICER IN CHARGE, THE SUSPENSION HAS BEEN RATIFIED BY THE APPOINTING POWER PENDING INVESTIGATION OF CHARGES, AND THE CHARGES ARE SUSTAINED CULMINATE IN DISMISSAL, THE EMPLOYEE IS NOT ENTITLED TO PAY FROM THE DATE OF ORIGINAL SUSPENSION BY THE FIELD OFFICER.'

ATTENTION IS INVITED TO THE ACT OF FEBRUARY 24, 1931 (SECTION 46A, TITLE 5, U.S.C., SUPP. VI), PROVIDING:

"THAT FROM AND AFTER THE PASSAGE OF THIS ACT THERE SHALL BE NO WITHHOLDING OR CONFISCATION OF THE EARNED PAY, SALARY, OR EMOLUMENT OF ANY CIVIL EMPLOYEE OF THE UNITED STATES REMOVED FOR CAUSE: PROVIDED, THAT IF AT THE TIME OF SUCH REMOVAL ANY SUCH EMPLOYEE IS INDEBTED TO THE UNITED STATES ANY SALARY, PAY, OR EMOLUMENT ACCRUING TO SUCH EMPLOYEE COMING WITHIN THE PROVISIONS OF THIS ACT SHALL BE APPLIED IN WHOLE OR IN PART TO THE SATISFACTION OF ANY CLAIM OR INDEBTEDNESS DUE TO THE UNITED STATES.'

IN VIEW OF THIS STATUTE AND OF THE FACT THAT THE POSTMASTER WAS INSTRUCTED TO GRANT MR. VOGEL A VACATION WITH PAY, IT IS DESIRED TO ALLOW THE NECESSARY CREDIT IN THIS CASE, AND YOUR CONSIDERATION OF THE MATTER IS REQUESTED. IT IS ALSO DESIRED THAT YOU INDICATE THE COURSE OF ACTION TO BE TAKEN IN THE FUTURE IN SIMILAR CASES.

THE POSTMASTER AT CLINTON, INDIANA, WITH HIS CLERK-HIRE ACCOUNT FOR THE QUARTER ENDED MARCH 31, 1936, FORWARDED VOUCHERS OF MR. VOGEL AMOUNTING TO $392.60 FOR 62 1/2 DAYS SERVICE, FROM MAY 16 TO JULY 17, 1935. HE CLAIMED CREDIT FOR THIS AMOUNT IN HIS POSTAL ACCOUNT AS A SEPARATE ITEM, WITH A NOTATION THAT MR. VOGEL WAS DISMISSED FROM THE OFFICE MAY 20, 1935, FOR EMBEZZLEMENT.

POSTMASTER GENERAL'S JOURNAL NO. 171, DATED JULY 23, 1935, CERTIFIED REMOVAL FOR EMBEZZLEMENT OF CHARLES L. VOGEL, ASSISTANT POSTMASTER AT CLINTON, INDIANA, EFFECTIVE JUNE 20, 1935, WHICH DATE WAS SUBSEQUENTLY CHANGED ON JOURNAL NO. 320, DATED JANUARY 17, 1936, TO JULY 16, 1935.

UNDER DATE OF MAY 28, 1936, THIS OFFICE ADDRESSED A LETTER TO THE FIRST ASSISTANT POSTMASTER GENERAL RELATIVE TO THE MATTER, AND IN HIS REPLY DATED JUNE 4, 1936, HE STATED:

THE RECORDS OF THIS BUREAU INDICATE THAT MR. VOGEL WAS SUSPENDED ON MAY 21, 1935, AND REMOVED FROM THE SERVICE EFFECTIVE JULY 16, 1935. THE RECORDS ALSO INDICATE THAT MR. VOGEL WAS NOT IN ARREARS TO THE GOVERNMENT AND THEREFORE HE WAS ENTITLED TO RECEIVE PAY FOR SALARY DUE FOR ACCUMULATED ANNUAL LEAVE.

IT APPEARS FROM COPIES OF INSPECTOR'S REPORTS AND OTHER CORRESPONDENCE IN THE FILE THAT AN INSPECTION OF THE POST OFFICE AT CLINTON, IND., ON MAY 20 AND 21, 1935, DISCLOSED THAT MR. VOGEL HAD EMBEZZLED C.O.D. FUNDS TO THE AMOUNT OF $888.77, AND THAT SAID AMOUNT WAS SUBSEQUENTLY DEDUCTED FROM THE AMOUNT DUE HIM IN THE RETIREMENT FUND, AND WAS DEPOSITED WITH THE TREASURER OF THE UNITED STATES TO THE CREDIT OF THE MONEY-ORDER ACCOUNT OF THE POSTMASTER AT CLINTON, IND., AND IS COVERED BY MONEY-ORDER CERTIFICATE OF DEPOSIT NO. 8185, DATED JANUARY 17, 1936.

IT IS FURTHER STATED IN INSPECTOR'S REPORT DATED OCTOBER 11, 1935, THAT:

MR. VOGEL WAS SUSPENDED FROM DUTY ON MAY 20, 1935, AND ARRESTED ON THE SAME DATE. HE WAS TAKEN BEFORE THE UNITED STATES COMMISSIONER AT TERRE HAUTE, INDIANA, ON MAY 20, 1935, AT WHICH TIME HE WAIVED EXAMINATION AND WAS RELEASED ON BOND IN THE AMOUNT OF $2,500.00. AN INDICTMENT WAS RETURNED BY THE GRAND JURY AT INDIANAPOLIS, INDIANA, ON SEPTEMBER 10, 1935, AND HE WAS ARRAIGNED BEFORE JUDGE ROBERT BALTZELL AT INDIANAPOLIS, INDIANA, ON SEPTEMBER 21, 1935, AT WHICH TIME HE PLEADED GUILTY. HE WAS SENTENCED ON OCTOBER 7, 1935, AT TERRE HAUTE, INDIANA, TO SERVE SIX MONTHS IN THE VIGO COUNTY JAIL, TERRE HAUTE, INDIANA. * * *

AS PREVIOUSLY STATED, THE POST OFFICE DEPARTMENT FIRST CERTIFIED MR. VOGEL'S REMOVAL FROM THE SERVICE EFFECTIVE JUNE 20, 1935 (PROBABLY INTENDED FOR MAY 20, 1935, SEE LETTER OF FIRST ASSISTANT POSTMASTER GENERAL, DATED JUNE 4, 1936), WHICH ORDER WAS MODIFIED NEARLY 6 MONTHS LATER TO JULY 16, 1935, TO ENABLE MR. VOGEL TO BE PAID FOR ACCUMULATED ANNUAL LEAVE, WHICH IT DOES NOT APPEAR HAD BEEN APPLIED FOR OR GRANTED AT THE TIME OF THE ORIGINAL ORDER.

IT DOES NOT APPEAR THAT MR. VOGEL WAS EVER RESTORED TO A DUTY STATUS AFTER THE SUSPENSION OF MAY 20, 1935, OR THAT HE PERFORMED SERVICE AT ANY TIME AFTER SAID DATE. THE PURPORTED MODIFICATION OF THE EFFECTIVE DATE OF HIS SEPARATION FROM THE SERVICE WAS NOT MADE UNTIL LONG AFTER HIS SEPARATION FROM THE SERVICE HAD BEEN CONSUMMATED AND AFTER HE HAD BEEN CONVICTED OF EMBEZZLEMENT AND SENTENCED TO 6 MONTHS IN JAIL.

IN THE SETTLEMENT OF THE ACCOUNT OF THE POSTMASTER AT CLINTON, INDIANA, FOR THE QUARTER ENDED MARCH 31, 1936, CREDIT WAS DISALLOWED FOR THE $392.60 PAID MR. VOGEL COVERING THE PERIOD MAY 16 TO JULY 17, 1935, IN ACCORDANCE WITH 1 COMP. GEN. 42. IT APPEARS, HOWEVER, THAT HE WAS ENTITLED TO CREDIT FOR PAYMENT COVERING THE PERIOD MAY 16 TO 20, 1935, DURING WHICH TIME MR. VOGEL ACTUALLY PERFORMED SERVICE.

THE GRANTING OF ANNUAL LEAVE OF ABSENCE TO POSTAL EMPLOYEES IS GOVERNED, INSOFAR AS HERE MATERIAL, BY SECTION 11 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1064, AND AS AMENDED BY SECTION 215 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 407, THE TWO STATUTES PROVIDING RESPECTIVELY AS FOLLOWS:

EMPLOYEES IN THE POSTAL SERVICE SHALL BE GRANTED FIFTEEN DAYS' LEAVE OF ABSENCE WITH PAY EXCLUSIVE OF SUNDAYS AND HOLIDAYS, EACH FISCAL YEAR, * *

HEREAFTER NO CIVILIAN OFFICER OR EMPLOYEE OF THE GOVERNMENT WHO RECEIVES ANNUAL LEAVE WITH PAY SHALL BE GRANTED ANNUAL LEAVE OF ABSENCE WITH PAY IN EXCESS OF FIFTEEN 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: * * *.

THERE IS NO AUTHORITY UNDER THESE STATUTES NOR UNDER ANY OTHER FOR PAYING A POSTAL EMPLOYEE AFTER SEPARATION FROM THE SERVICE FOR LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SUCH SEPARATION. THIS RULE HAS BEEN STATED A NUMBER OF TIMES UNDER OTHER LEAVE LAWS AND IS EQUALLY APPLICABLE TO POSTAL EMPLOYEES. 5 COMP. GEN. 753; 7 ID. 83; 8 ID. 471; 12 ID. 602; 13 ID. 179; 14 ID. 443; AND DECISION OF JULY 15, 1936, 16 COMP. GEN 28.

SECTION 44 (4) OF THE POSTAL LAWS AND REGULATIONS (1932) PROVIDES THAT "COMPENSATION SHALL NOT BE GRANTED IN LIEU OF LAPSED LEAVE.' THE ACT OF FEBRUARY 24, 1931, 46 STAT. 1416, QUOTED IN YOUR LETTER, WHICH RELATES TO THE FORFEITURE OF PAY ACTUALLY EARNED BY EMPLOYEES REMOVED FOR CAUSE, WAS NOT INTENDED TO AND DOES NOT AUTHORIZE PAY FOR LEAVE NOT GRANTED AND TAKEN PRIOR TO SUCH REMOVAL. CHANGING THE RECORD DATE OF REMOVAL CONTRARY TO THE FACTS FOR THE PURPOSE OF PAYING FOR UNUSED LEAVE IS UNAUTHORIZED AND CANNOT BE ACCEPTED AS CREATING A RIGHT TO PAY.

YOU ARE ADVISED, THEREFORE, THAT CREDIT MAY NOT BE ALLOWED IN THE ACCOUNTS OF THE POSTMASTER FOR THE PAYMENT MADE TO CHARLES L. VOGEL AFTER HIS SUSPENSION FROM THE SERVICE FOR LEAVE ACCRUED PRIOR THERETO, WHICH WAS NEITHER APPLIED FOR NOR GRANTED PRIOR TO ACTUAL SEPARATION FROM THE SERVICE, BUT THAT CREDIT WILL BE ALLOWED FOR PAYMENT OF COMPENSATION COVERING THE PERIOD MAY 16 TO 20, 1935, DURING WHICH TIME MR. VOGEL ACTUALLY PERFORMED SERVICE.

WITH REFERENCE TO THE LAST SENTENCE OF YOUR LETTER, IN DECISION OF AUGUST 1, 1936, A-72714, 16 COMP. GEN. 105, A QUESTION RAISED UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, NOT APPLICABLE TO POSTAL EMPLOYEES WAS STATED AND ANSWERED AS FOLLOWS:

(3) IS LEAVE TO BE CONFISCATED IN THE CASE OF AN EMPLOYEE INVOLUNTARILY SEPARATED FROM THE SERVICE AS A RESULT OF HIS OWN MISCONDUCT? THIS QUESTION ARISES AS A RESULT OF THE WORDING OF SECTION 7 OF THE EXECUTIVE ORDER.

SECTION 7 OF THE UNIFORM ANNUAL LEAVE REGULATIONS PROVIDES AS FOLLOWS:

"THE DATE OF A DISCHARGE OF AN EMPLOYEE WHO IS INVOLUNTARILY SEPARATED FROM THE SERVICE OTHER THAN FOR CAUSE DUE TO HIS OWN MISCONDUCT SHALL BE FIXED TO PERMIT THE ALLOWANCE OF ALL ACCUMULATED LEAVE AND CURRENT ACCRUED LEAVE.'

IT HAS BEEN HELD THAT THE ACT OF MARCH 14, 1936, 49 STAT. 1161, MAKES THE GRANTING OF LEAVE MANDATORY, A-77697, JULY 27, 1936. THERE IS NOTHING IN THE ACT EXPRESSLY OR IMPLIEDLY DENYING ACCRUED LEAVE TO EMPLOYEES DISCHARGED FOR CAUSE DUE TO MISCONDUCT. WHILE IT MAY BE IMPLIED FROM SECTION 7 OF THE REGULATIONS, SUPRA, THAT ACCRUED LEAVE IS FOR FORFEITING IN THE CASE OF AN EMPLOYEE INVOLUNTARILY SEPARATED FOR CAUSE DUE TO HIS OWN MISCONDUCT, THERE IS NO EXPRESS DIRECTION THAT THAT BE DONE. THUS THIS SECTION OF THE REGULATIONS IS NOT NECESSARILY TO BE REGARDED AS REQUIRING CONFISCATION OF ACCRUED ANNUAL LEAVE OF AN EMPLOYEE DISCHARGED FOR CAUSE DUE TO HIS OWN MISCONDUCT. IN OTHER WORDS IT WOULD APPEAR TO BE OPTIONAL WITH THE HEAD OF THE ESTABLISHMENT WHETHER, IN SUCH CASES, THE DISCHARGE BE MADE EFFECTIVE IMMEDIATELY OR AT THE EXPIRATION OF ACCRUED LEAVE. QUESTION (3) IS ANSWERED ACCORDINGLY.

AS SECTION 11 OF THE ACT OF FEBRUARY 28, 1925, SUPRA, MAKES THE GRANTING OF LEAVE TO POSTAL EMPLOYEES MANDATORY AND AS NOTHING APPEARS IN THAT ACT, IN THE ECONOMY ACT, SUPRA, OR IN THE POSTAL LAWS AND REGULATIONS, EXPRESSLY OR IMPLIEDLY DENYING ACCRUED LEAVE TO EMPLOYEES DISCHARGED FOR CAUSE DUE TO MISCONDUCT, IT MAY BE REGARDED AS OPTIONAL WITH THE POSTMASTER GENERAL WHETHER IN SUCH CASES THE DISCHARGE BE MADE EFFECTIVE IMMEDIATELY OR AT THE EXPIRATION OF ACCRUED LEAVE, PROVIDED THAT WHEN THE DATE OF REMOVAL HAS ONCE BEEN FIXED IT MAY NOT AFTER SAID DATE BE CHANGED TO A LATER DATE FOR THE PURPOSE OF GRANTING LEAVE.