A-88929, OCTOBER 4, 1937, 17 COMP. GEN. 298

A-88929: Oct 4, 1937

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

COMPENSATION AND LEAVES OF ABSENCE - FIELD OFFICES CLOSED BY ADMINISTRATIVE ORDER ON LOCAL HOLIDAYS THERE IS NO STATUTE OR EXECUTIVE ORDER PRECLUDING ADMINISTRATIVE ACTION TO CLOSE FIELD OFFICES EITHER IN THE UNITED STATES. NOTWITHSTANDING THERE IS NO ADMINISTRATIVE DISCRETION TO EXCUSE FIELD EMPLOYEES FROM DUTY WITHOUT CHARGING ANNUAL LEAVE SOLELY ON THE GROUND THAT THE DAYS OF ABSENCE ARE HOLIDAYS LOCAL TO THE PLACE OF EMPLOYMENT. ARE ENTITLED TO COMPENSATION FOR SUCH DAYS OF ABSENCE IF PAID ON AN ANNUAL OR MONTHLY BASIS. PER DIEM EMPLOYEES AND EMPLOYEES PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" ARE NOT ENTITLED TO COMPENSATION FOR SUCH DAYS OF ABSENCE. IS AS FOLLOWS: THERE ARE SUBMITTED FOR YOUR CONSIDERATION THE FOLLOWING QUESTIONS CONCERNING THE MATTER OF EXCUSING EMPLOYEES OF THIS DEPARTMENT FROM DUTY ON HOLIDAYS LOCAL TO THE PLACE AT WHICH THEY ARE EMPLOYED. (1) MAY EMPLOYEES OF THE DEPARTMENT BE EXCUSED FROM DUTY ON LOCAL.

A-88929, OCTOBER 4, 1937, 17 COMP. GEN. 298

COMPENSATION AND LEAVES OF ABSENCE - FIELD OFFICES CLOSED BY ADMINISTRATIVE ORDER ON LOCAL HOLIDAYS THERE IS NO STATUTE OR EXECUTIVE ORDER PRECLUDING ADMINISTRATIVE ACTION TO CLOSE FIELD OFFICES EITHER IN THE UNITED STATES, ITS POSSESSIONS, OR FOREIGN COUNTRIES, ON LOCAL HOLIDAYS WHEN FEDERAL WORK MAY NOT BE PROPERLY PERFORMED, AND SUCH DAYS WOULD BE "NON-WORK DAYS ESTABLISHED BY ADMINISTRATIVE ORDER" WITHIN THE MEANING OF THE UNIFORM ANNUAL LEAVE REGULATIONS OF JULY 9, 1936, AND NOT CHARGEABLE AS ANNUAL LEAVE TO THE EMPLOYEES IN THE OFFICES INVOLVED, NOTWITHSTANDING THERE IS NO ADMINISTRATIVE DISCRETION TO EXCUSE FIELD EMPLOYEES FROM DUTY WITHOUT CHARGING ANNUAL LEAVE SOLELY ON THE GROUND THAT THE DAYS OF ABSENCE ARE HOLIDAYS LOCAL TO THE PLACE OF EMPLOYMENT. EMPLOYEES IN FIELD OFFICES CLOSED BY ADMINISTRATIVE ORDER ON LOCAL HOLIDAYS WHEN FEDERAL WORK MAY NOT BE PROPERLY PERFORMED, ARE ENTITLED TO COMPENSATION FOR SUCH DAYS OF ABSENCE IF PAID ON AN ANNUAL OR MONTHLY BASIS, BUT PER DIEM EMPLOYEES AND EMPLOYEES PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" ARE NOT ENTITLED TO COMPENSATION FOR SUCH DAYS OF ABSENCE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, OCTOBER 4, 1937:

YOUR LETTER OF SEPTEMBER 10, 1937, IS AS FOLLOWS:

THERE ARE SUBMITTED FOR YOUR CONSIDERATION THE FOLLOWING QUESTIONS CONCERNING THE MATTER OF EXCUSING EMPLOYEES OF THIS DEPARTMENT FROM DUTY ON HOLIDAYS LOCAL TO THE PLACE AT WHICH THEY ARE EMPLOYED.

(1) MAY EMPLOYEES OF THE DEPARTMENT BE EXCUSED FROM DUTY ON LOCAL, STATE, OR TERRITORIAL HOLIDAYS, IN THE UNITED STATES AND INSULAR POSSESSIONS, WITHOUT THE NECESSITY OF CHARGING THEM WITH ANNUAL LEAVE? SECTION 11 OF EXECUTIVE ORDER 7409, JULY 9, 1936, PRESCRIBING ANNUAL LEAVE REGULATIONS PURSUANT TO THE ACT OF MARCH 14, 1936, PROVIDES, IN PART, AS FOLLOWS:

"EMPLOYEES SHALL BE CHARGED WITH ANNUAL LEAVE ONLY FOR ABSENCE ON THEIR WORK DAYS. SUNDAYS, LEGAL HOLIDAYS, AND HOLIDAYS DECLARED BY EXECUTIVE ORDER, AND NON-WORK DAYS ESTABLISHED BY ADMINISTRATIVE ORDER, IN ACCORDANCE WITH LAW, OCCURRING WITHIN A PERIOD OF ANNUAL LEAVE, SHALL NOT BE CHARGED AS ANNUAL LEAVE.'

IN VIEW OF THE PROVISIONS OF THIS EXECUTIVE ORDER, IT WOULD APPEAR THAT NO DISCRETION VESTS IN THE SECRETARY OF AGRICULTURE TO EXCUSE EMPLOYEES FROM DUTY ON ANY DAYS OTHER THAN THOSE SPECIFIED BY THE EXECUTIVE ORDER ABOVE SOLELY ON THE GROUND THAT SUCH DAYS ARE HOLIDAYS LOCAL TO THE PLACE OF EMPLOYMENT. IT HAS COME TO OUR ATTENTION, HOWEVER THAT CERTAIN EMPLOYEES OF OTHER DEPARTMENTS HAVING OFFICES IN THE SAME BUILDINGS AS OUR EMPLOYEES HAVE BEEN EXCUSED ON LOCAL HOLIDAYS. IT IS UNDERSTOOD, OF COURSE, THAT IN LINE WITH YOUR DECISION IN 13 C.G. 277, AND 15 C.G. 911, 1048, EMPLOYEES MAY BE EXCUSED FROM DUTY WITHOUT CHARGING THEM WITH ANNUAL LEAVE WITHIN ADMINISTRATIVE DISCRETION, WHERE IT IS NECESSARY, FOR ADMINISTRATIVE REASONS OR BECAUSE OF INABILITY TO USE THE PLACE OF EMPLOYMENT DUE TO AN ACT OF GOD TO CLOSE THE OFFICE CONCERNED. THE QUESTION, THEREFORE, MAY AMOUNT TO THE INQUIRY WHETHER A LOCAL HOLIDAY IS SUFFICIENT ADMINISTRATIVE REASON FOR THE CLOSING OF THE OFFICE.

(2) IF THE ANSWER TO QUESTION (1) IS IN THE AFFIRMATIVE, IT IS BELIEVED THAT SUCH ANSWER IS EQUALLY APPLICABLE TO OUR NEXT QUESTION. HOWEVER, IF THE RESPONSE TO QUESTION (1) IS NEGATIVE, YOUR CONSIDERATION IS ASKED FOR THIS FURTHER QUESTION: MAY EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE, ON DUTY IN FOREIGN COUNTRIES, BE EXCUSED FROM DUTY ON NATIONAL HOLIDAYS OF THE FOREIGN COUNTRIES WHERE THEIR PLACE OF EMPLOYMENT IS LOCATED? IN SUCH INSTANCES NOT ONLY IS INVOLVED THE MATTER OF THE DIFFICULTY OF CARRYING ON WORK WHILE ALL LOCAL AGENCIES ARE CLOSED AND OFFICIALS ARE ABSENT FROM DUTY, BUT ALSO TO BE CONSIDERED ARE THE POSSIBLE OBJECTIONS WHICH MAY BE FELT BY OFFICIALS OF FOREIGN GOVERNMENTS WHEN EMPLOYEES OF THIS GOVERNMENT FAIL TO OBSERVE THE FOREIGN NATIONAL HOLIDAYS.

(3) IN THE EVENT THE ANSWERS TO QUESTIONS (1) AND (2) ARE IN THE NEGATIVE MAY, NEVERTHELESS, THOSE EMPLOYEES OF THE FOREIGN AGRICULTURAL SERVICE OF THE BUREAU OF AGRICULTURAL ECONOMICS, OF THIS DEPARTMENT, WHO ARE REGULARLY AND OFFICIALLY ATTACHED TO DIPLOMATIC MISSIONS OR CONSULATES OF THE UNITED STATES, IN FOREIGN COUNTRIES, BE EXCUSED FROM DUTY ON NATIONAL HOLIDAYS OF THE FOREIGN COUNTRY WHEREIN THEY ARE STATIONED. SECTION 2 (A) OF THE ACT CREATING THE FOREIGN AGRICULTURAL SERVICE (46 STAT. 498, 7 U.S.C. 542) PROVIDES:

"THE PRESENT REPRESENTATIVES OF THE BUREAU OF AGRICULTURAL ECONOMICS OF THE DEPARTMENT OF AGRICULTURE NOW STATIONED ABROAD SHALL BE OFFICERS OF THE FOREIGN AGRICULTURAL SERVICE OF THE UNITED STATES, AND THE SECRETARY OF AGRICULTURE MAY APPOINT OTHER OFFICERS IN SAID SERVICE FROM TIME TO TIME IN ACCORDANCE WITH CIVIL SERVICE PROCEDURE. ALL SUCH OFFICERS SHALL CONSTITUTE THE FOREIGN AGRICULTURAL SERVICE OF THE UNITED STATES, AND SHALL BE KNOWN AS AGRICULTURAL ATTACHES, ASSISTANT AGRICULTURAL ATTACHES, OR BY SUCH OTHER TITLES AS MAY BE DEEMED APPROPRIATE BY THE SECRETARY OF AGRICULTURE. ANY OFFICER IN SAID SERVICE, WHEN DESIGNATED BY THE SECRETARY OF AGRICULTURE, SHALL, THROUGH THE DEPARTMENT OF STATE, BE REGULARLY AND OFFICIALLY ATTACHED TO THE DIPLOMATIC MISSION OF THE UNITED STATES IN THE COUNTRY IN WHICH HE IS TO BE STATIONED, OR TO THE CONSULATE OF THE UNITED STATES, AS THE SECRETARY OF AGRICULTURE SHALL DESIGNATE. ANY SUCH OFFICER IS TO BE STATIONED IN A COUNTRY WHERE THERE IS NO DIPLOMATIC MISSION OR CONSULATE OF THE UNITED STATES, APPROPRIATE RECOGNITION AND STANDING, WITH FULL FACILITIES FOR DISCHARGING HIS OFFICIAL DUTIES, SHALL BE ARRANGED BY THE DEPARTMENT OF STATE. THE SECRETARY OF STATE MAY REJECT THE NAME OF ANY SUCH OFFICER, IF, IN HIS JUDGMENT, THE ATTACHMENT OF SUCH OFFICER TO THE DIPLOMATIC MISSION OR CONSULATE AT THE POST DESIGNATED WOULD BE PREJUDICIAL TO THE PUBLIC POLICY OF THE UNITED STATES.'

BY THE TERMS OF EXECUTIVE ORDER 7013, APRIL 16, 1935, AMENDING INSTRUCTIONS TO DIPLOMATIC OFFICERS AND CONSULAR REGULATIONS, THE CHANCERIES OF DIPLOMATIC MISSIONS AND CONSULAR OFFICES "MAY BE CONSIDERED AS CLOSED FOR THE TRANSACTION OF BUSINESS OF A ROUTINE NATURE" ON ALL NATIONAL HOLIDAYS OF THE COUNTRIES IN WHICH SAID MISSIONS OR CONSULAR OFFICES ARE LOCATED. THEREFORE, EVEN IF IT BE FOUND THAT THE SECRETARY OF AGRICULTURE HAS NO GENERAL AUTHORITY TO EXCUSE EMPLOYEES OF THE DEPARTMENT ON LOCAL HOLIDAYS, IT WOULD APPEAR THAT WHEN THE DIPLOMATIC MISSION OR CONSULAR OFFICE, TO WHICH A FOREIGN AGRICULTURAL ATTACHE IS ATTACHED, IS CLOSED BY VIRTUE OF EXECUTIVE ORDER 7013, THEN SUCH ATTACHE MAY BE EXCUSED FROM DUTY WITHOUT BEING CHARGED WITH ANNUAL LEAVE.

YOUR CONCLUSION IS CORRECT THAT THERE IS NO ADMINISTRATIVE DISCRETION TO EXCUSE FIELD EMPLOYEES FROM DUTY WITHOUT CHARGING ANNUAL LEAVE SOLELY ON THE GROUND THAT THE DAYS OF ABSENCE ARE HOLIDAYS LOCAL TO THE PLACE OF EMPLOYMENT.

HOWEVER, THERE IS NO STATUTE OR EXECUTIVE ORDER PRECLUDING ADMINISTRATIVE ACTION TO CLOSE A FIELD OFFICE ON LOCAL HOLIDAYS WHEN FEDERAL WORK MAY NOT BE PROPERLY PERFORMED. DECISION OF AUGUST 28, 1937, A-88481, 17 COMP. GEN. 192. SUCH DAYS WOULD BE "NONWORK DAYS ESTABLISHED BY ADMINISTRATIVE ORDERS" AND NOT CHARGEABLE AS ANNUAL LEAVE. EMPLOYEES PAID ON THE BASIS OF THE YEAR OR MONTH WOULD BE ENTITLED TO COMPENSATION FOR SUCH DAYS, BUT PER DIEM EMPLOYEES AND EMPLOYEES PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" WOULD NOT BE ENTITLED TO COMPENSATION ON SUCH DAYS OF ABSENCE. 23 COMP. DEC. 106.

ACCORDINGLY, ALL THREE QUESTIONS PRESENTED ARE ANSWERED IN THE AFFIRMATIVE.