A-89562, OCTOBER 18, 1937, 17 COMP. GEN. 351

A-89562: Oct 18, 1937

Additional Materials:

Contact:

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

 

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

ARE NOT CIVILIAN EMPLOYEES OF THE UNITED STATES WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE STATUTES OF MARCH 14. IS AS FOLLOWS: MY ATTENTION HAS BEEN DIRECTED TO CHANGES NO. 76. ENROLLEES ARE ENTITLED TO 26 DAYS ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR. SUCH LEAVE FOR ENROLLEES WHOSE SERVICE IS LESS THAN ONE YEAR WILL BE COMPUTED AT THE RATE OF 2 1/6 DAYS FOR EACH MONTH OF SERVICE. LEAVE WILL BE GRANTED AT SUCH TIME OR TIMES. WILL NOT BE GRANTED BEYOND THE DATE OF SEPARATION FROM THE SERVICE. RECORDS OF LEAVES WILL BE ENTERED UNDER "REMARKS" ON C.C.C. IT WILL BE NOTED THAT THIS AMENDED REGULATION IS PREDICATED ON THE AUTHORITY CONTAINED IN THE ACT OF CONGRESS APPROVED MARCH 14. RELATING TO THE ANNUAL LEAVE TO WHICH CIVILIAN EMPLOYEES OF THE GOVERNMENT ARE ENTITLED.

A-89562, OCTOBER 18, 1937, 17 COMP. GEN. 351

CIVILIAN CONSERVATION CORPS - ENROLLEES - STATUS UNDER CIVILIAN EMPLOYEE ANNUAL AND SICK LEAVE STATUTES ENROLLEES OF THE CIVILIAN CONSERVATION CORPS ESTABLISHED BY THE ACT OF JUNE 28, 1937, 50 STAT. 319, ARE NOT CIVILIAN EMPLOYEES OF THE UNITED STATES WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE STATUTES OF MARCH 14, 1936, 49 STAT. 1161-1162.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE DIRECTOR, CIVILIAN CONSERVATION CORPS, OCTOBER 18, 1937:

YOUR LETTER RECEIVED OCTOBER 12, 1937, IS AS FOLLOWS:

MY ATTENTION HAS BEEN DIRECTED TO CHANGES NO. 76, DATED SEPTEMBER 14, 1937, AMENDING PARAGRAPH 35 OF THE WAR DEPARTMENT REGULATIONS, RELIEF OF UNEMPLOYMENT, CIVILIAN CONSERVATION CORPS, MAY 15, 1935, DEALING WITH THE QUESTION OF ABSENCE WITH LEAVE OF ENROLLEES OF THE CIVILIAN CONSERVATION CORPS, READING AS FOLLOWS:

"35. ABSENCE WITH LEAVE.--- A. UNDER AUTHORITY OF THE ACT OF CONGRESS APPROVED MARCH 14, 1936 (49 STAT. 1162), ENROLLEES ARE ENTITLED TO 26 DAYS ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS. SUCH LEAVE FOR ENROLLEES WHOSE SERVICE IS LESS THAN ONE YEAR WILL BE COMPUTED AT THE RATE OF 2 1/6 DAYS FOR EACH MONTH OF SERVICE. LEAVE WILL BE GRANTED AT SUCH TIME OR TIMES, IN THE DISCRETION OF THE COMPANY COMMANDER, AS MAY BE DEEMED IN THE PUBLIC INTEREST, BUT WILL NOT BE GRANTED BEYOND THE DATE OF SEPARATION FROM THE SERVICE. LEAVE MAY BE ACCUMULATED TO A TOTAL OF NOT MORE THAN 60 DAYS, EXCEPT THAT WHEN ENROLLMENT PERIOD RUNS FOR EXACTLY 6 MONTHS AND NO MORE, LEAVE MAY NOT BE ACCUMULATED, BUT IF TAKEN MUST BE TAKEN WITHIN THE ENROLLMENT PERIOD IN WHICH IT ACCRUES, AT THE RATE OF 2 1/2 DAYS PER MONTH. RECORDS OF LEAVES WILL BE ENTERED UNDER "REMARKS" ON C.C.C. FORM NO. 1. * * *.'

IT WILL BE NOTED THAT THIS AMENDED REGULATION IS PREDICATED ON THE AUTHORITY CONTAINED IN THE ACT OF CONGRESS APPROVED MARCH 14, 1936, 49 STAT. 1161, AN ACT TO PROVIDE FOR VACATIONS TO GOVERNMENT EMPLOYEES, AND FOR OTHER PURPOSES.

BECAUSE OF THE PECULIAR STATUS AND CONDITIONS OF SERVICE OF ENROLLEES IN THE CIVILIAN CONSERVATION CORPS, I AM RELUCTANT TO CONCUR IN THIS REGULATION IN SO FAR AS IT PURPORTS TO BE ISSUED IN NECESSARY COMPLIANCE WITH THE PROVISIONS OF THE ACT OF MARCH 14, 1936, RELATING TO THE ANNUAL LEAVE TO WHICH CIVILIAN EMPLOYEES OF THE GOVERNMENT ARE ENTITLED. MOREOVER, IT WOULD APPEAR THAT IF THE ACT OF AUGUST 14, 1936, SUPRA, AND THE REGULATIONS ISSUED THEREUNDER, ARE CONTROLLING AS TO THE ANNUAL LEAVE WHICH MAY BE GRANTED ENROLLEES, CONSIDERED AS "CIVILIAN EMPLOYEES" WITHIN THE SCOPE OF SAID ACT, THE ACT OF THE SAME DATE ENTITLED "AN ACT TO STANDARDIZE SICK LEAVE AND TO EXTEND IT TO ALL CIVILIAN EMPLOYEES," 49 STAT. 1162, MIGHT ALSO BE VIEWED AS APPLICABLE TO ENROLLEES OF THE CORPS, WITH VERY SERIOUS RESULTS TO THE PROPER ADMINISTRATION OF THE AFFAIRS OF THE CORPS. THE VIEW OF THE WAR DEPARTMENT WHICH RESULTED IN THE REGULATION IN QUESTION IS PREDICATED ON AN OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY DATED JULY 29, 1937, A COPY OF WHICH IS ATTACHED FOR YOUR INFORMATION, IN WHICH THE JUDGE ADVOCATE GENERAL ARRIVES AT THE CONCLUSION THAT THE ENROLLEES IN QUESTION ARE CIVILIAN EMPLOYEES OF THE UNITED STATES WITHIN THE MEANING OF THE ANNUAL LEAVE ACT. WITH THIS VIEW I CANNOT FULLY CONCUR, CERTAINLY NOT WITHOUT AN AUTHORITATIVE DECISION FROM YOUR OFFICE AS TO THE STATUS OF THESE ENROLLEES IN THE MATTER OF ABSENCE FROM DUTY.

IT WILL BE NOTED BY REFERENCE TO THE ACT OF JUNE 28, 1937, THAT SECTION 5 THEREOF DEALS WITH ,CIVILIAN PERSONNEL" ENGAGED IN THE DISCHARGE OF THE FUNCTIONS OF THE CORPS, AND SECTION 7 THEREOF DEALS WITH THE "ENROLLED PERSONNEL," SEEMINGLY MAKING A DISTINCTION BETWEEN CIVILIAN PERSONNEL AND THE ENROLLEES. THE TWO LEAVE LAWS IN QUESTION AND THE REGULATIONS ISSUED THEREUNDER, SPECIFICALLY REFER TO, AND INTEND TO REGULATE THE LEAVE PRIVILEGES OF CIVILIAN EMPLOYEES ONLY.

THE ENROLLEES OF THE CORPS, ALTHOUGH NOT MEMBERS OF THE MILITARY ESTABLISHMENT IN ANY SENSE, ARE, NEVERTHELESS, NECESSARILY HOUSED, SUBSISTED, AND SUBJECTED TO DISCIPLINARY CONTROL AND TREATMENT IN A MANNER SOMEWHAT PARALLELING THAT RELATING TO THE ENLISTED MEN OF THE ARMY. THEY ARE NOT ON DUTY ANY SPECIFIED NUMBER OF HOURS A DAY AS IS THE CASE GENERALLY WITH CIVILIAN EMPLOYEES, BUT ARE AVAILABLE FOR DUTY THROUGHOUT THE TWENTY-FOUR HOURS OF THE DAY AND IN FACT IN A DUTY STATUS AND SUBJECT TO GOVERNMENTAL CONTROL CONTINUOUSLY THROUGHOUT THE ENROLLMENT PERIOD. THEY ARE ALSO NOT PERMITTED TO LIVE AT HOME AS ARE CIVILIAN EMPLOYEES OF THE GOVERNMENT, BUT INSTEAD ARE, GENERALLY SPEAKING, FURNISHED FREE OF COST HOUSING FACILITIES AND REQUIRED TO LIVE IN SUCH FACILITIES AND TO BE SUBSISTED, CLOTHED, AND THEIR GENERAL WELFARE (INCLUDING MEDICAL AND HOSPITAL ATTENTION, EDUCATION AND RECREATION) AS INDIVIDUALS IN AN ORGANIZATION LOOKED AFTER BY AND AT THE EXPENSE OF THE UNITED STATES, ALL NECESSARILY IN KEEPING WITH THE OBJECTS AND PURPOSES OF THE CORPS AND THE WORK WHICH THE ENROLLEES MUST PERFORM. IN THE MATTER OF MEDICAL AND HOSPITAL ATTENTION IT OFTEN BECOMES NECESSARY TO HOSPITALIZE, QUARANTINE, OR ISOLATE A GIVEN ENROLLEE, OR GROUP OF ENROLLEES AT TIMES FOR THE PROTECTION OF THE ORGANIZATION AS A WHOLE, ENTAILING ABSENCE BY THE ENROLLEES FROM WORK FOR MORE OR LESS LONG PERIODS OF TIME OVER WHICH SITUATION ENROLLEES HAVE NO CONTROL OR ANY OPTION. THIS SITUATION DOES NOT ARISE WITH REFERENCE TO CIVILIAN EMPLOYEES OF THE UNITED STATES GOVERNMENT.

IT IS MY VIEW, THEREFORE, THAT TO CONSIDER THESE ENROLLEES IN THE SAME CATEGORY AS THE ORDINARY CIVILIAN EMPLOYEE OF THE UNITED STATES WOULD DO VIOLENCE TO THE ACTS IN QUESTION, AND WOULD FROM AN ADMINISTRATIVE STANDPOINT LARGELY FRUSTRATE THE OBJECTS AND PURPOSES WHICH THE LAW CREATING THE CIVILIAN CONSERVATION CORPS INTENDED FOR ACCOMPLISHMENT. WHILE PERHAPS IN SOME RESPECTS IT MIGHT BE FOUND ADMINISTRATIVELY DESIRABLE TO RESTRICT THE PERIODS OF ABSENCE FOR SICKNESS OR OTHERWISE TO THE SAME PERIODS OF LEAVE OF ABSENCE APPLICABLE UNDER THE ACTS OF MARCH 14, 1936, SUPRA, FOR CIVILIAN EMPLOYEES GENERALLY, IT IS MY VIEW THAT THESE ACTS ARE NOT FOR APPLICATION OF THEIR OWN FORCE AND DO NOT THEREFORE NECESSARILY REQUIRE THAT LEAVE OF ABSENCE FOR ENROLLEES FOR SICKNESS OR OTHERWISE BE PRESCRIBED ON THE BASIS SET FORTH IN THESE ACTS AND THE REGULATIONS PROMULGATED THEREUNDER.

IN VIEW OF THE ABOVE IT IS REQUESTED THAT YOUR DECISION ON THE QUESTION INVOLVED BE RENDERED AT THE EARLIEST POSSIBLE DATE.

SECTION 1 OF THE ACT OF JUNE 28, 1937, PUBLIC, NO. 163, 50 STAT. 319, PROVIDES:

THAT THERE IS HEREBY ESTABLISHED THE CIVILIAN CONSERVATION CORPS, HEREINAFTER CALLED THE CORPS, FOR THE PURPOSE OF PROVIDING EMPLOYMENT, AS WELL AS VOCATIONAL TRAINING, FOR YOUTHFUL CITIZENS OF THE UNITED STATES WHO ARE UNEMPLOYED AND IN NEED OF EMPLOYMENT, * * * PROVIDED, THAT AT LEAST TEN HOURS EACH WEEK MAY BE DEVOTED TO GENERAL EDUCATIONAL AND VOCATIONAL TRAINING: * * *

THE ACT IS THEREFORE SIMILAR IN PURPOSE TO THE ACT OF MARCH 31, 1933, 48 STAT. 22. BEFORE THE ENACTMENT OF JUNE 28, 1937, ESTABLISHING THE CIVILIAN CONSERVATION CORPS BY STATUTE, ENROLLEES WERE NOT REGARDED AS CIVILIAN EMPLOYEES OF THE GOVERNMENT FOR LEAVE PURPOSES. THEIR LEAVE PRIVILEGES WERE CONTROLLED BY REGULATIONS APPROVED BY THE PRESIDENT ON AN ENTIRELY DIFFERENT BASIS THAN THAT PRESCRIBED BY ADMINISTRATIVE REGULATIONS ADOPTED UNDER THE GENERAL LEAVE LAWS APPLICABLE TO CIVILIAN EMPLOYEES. ENROLLEES HAVE NOT BEEN REGARDED AS CIVILIAN EMPLOYEES WITHIN THE MEANING OF SECTION 3 OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, REQUIRING THE VALUE OF QUARTERS AND OTHER ALLOWANCES FURNISHED IN KIND TO BE DETERMINED AND CONSIDERED A PART OF COMPENSATION. THE ACT OF JUNE 28, 1937, CLEARLY RECOGNIZES AND CONTINUES THE DISTINCTION BETWEEN CIVILIAN EMPLOYEES AND ENROLLEES. SECTIONS 5, 7, AND 8 OF THE STATUTE PROVIDE:

SEC. 5. THE DIRECTOR AND, UNDER HIS SUPERVISION, THE HEADS OF OTHER FEDERAL DEPARTMENTS OR AGENCIES COOPERATING IN THE WORK OF THE CORPS, ARE AUTHORIZED WITHIN THE LIMIT OF THE ALLOTMENTS OF FUNDS THEREFOR, TO APPOINT SUCH CIVILIAN PERSONNEL AS MAY BE DEEMED NECESSARY FOR THE EFFICIENT AND ECONOMICAL DISCHARGE OF THE FUNCTIONS OF THE CORPS WITHOUT REGARD TO THE CIVIL-SERVICE LAWS AND REGULATIONS. * * *

SEC. 7. THE DIRECTOR IS AUTHORIZED TO HAVE ENROLLED NOT TO EXCEED THREE HUNDRED THOUSAND MEN AT ANY ONE TIME, OF WHICH NOT MORE THAN THIRTY THOUSAND MAY BE WAR VETERANS: PROVIDED, THAT IN ADDITION THERETO CAMPS OR FACILITIES MAY BE ESTABLISHED FOR NOT TO EXCEED TEN THOUSAND ADDITIONAL INDIAN ENROLLEES AND FIVE THOUSAND ADDITIONAL TERRITORIAL AND INSULAR POSSESSION ENROLLEES.

SEC. 8. THE ENROLLEES IN THE CORPS * * * SHALL BE UNMARRIED MALE CITIZENS OF THE UNITED STATES BETWEEN THE AGES OF SEVENTEEN AND TWENTY THREE YEARS, BOTH INCLUSIVE, AND SHALL AT THE TIME OF ENROLLMENT BE UNEMPLOYED AND IN NEED OF EMPLOYMENT: * * * PROVIDED FURTHER, THAT ENROLLMENTS SHALL BE FOR A PERIOD OF NOT LESS THAN SIX MONTHS AND REENROLLMENTS * * * SHALL NOT EXCEED A TOTAL TERM OF TWO YEARS: PROVIDED FURTHER, THAT IN THE DISCRETION OF THE DIRECTOR CONTINUOUS SERVICE BY THE ENROLLEE DURING HIS PERIOD OF ENROLLMENT SHALL NOT BE REQUIRED IN ANY CASE WHERE THE ENROLLEE ATTENDS AN EDUCATIONAL INSTITUTION OF HIS CHOICE DURING HIS LEAVE OF ABSENCE. * * *

WHILE, THEREFORE, PROVISION IS MADE FOR ENROLLMENT AND A LIMITED PAY BY THE UNITED STATES, IN ADDITION TO OTHER BENEFITS, THE CLEAR PURPOSE OF THE ACT IS TO AID YOUTHFUL UNEMPLOYED CITIZENS--- A FORM OF UNEMPLOYMENT RELIEF. THE ENROLLEES ARE NOT SELECTED TO ACCOMPLISH A PROJECTED ACTIVITY OF GOVERNMENT BUT ARE ENROLLED THAT THEIR IDLE TIME MAY BE UTILIZED IN ACTIVITIES OF SOME POTENTIAL VALUE TO THE COMMUNITIES WHERE THEY ARE ENCAMPED AND ARE GIVEN A LIMITED PAY, WITH SUBSISTENCE, CLOTHING, AND MEDICAL ATTENTION, NOT AS COMPENSATION, BUT TO AID THEM WHILE UNEMPLOYED.

REFERENCE IS MADE TO DECISION OF JUNE 25, 1936, 15 COMP. GEN. 1129, CONSIDERING THE LEAVE STATUS OF RELIEF WORKERS AS DISTINGUISHED FROM ADMINISTRATIVE PERSONNEL OF THE WORKS PROGRESS ADMINISTRATION, WHEREIN IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

EMPLOYEES ON WORKS PROGRESS ADMINISTRATION PROJECTS PAID THE PREVAILING WAGE UNDER THE SECURITY WAGE EXEMPTION PROVISION OF EXECUTIVE ORDER NO. 7046, DATED JUNE 5, 1935, WHO ARE NOT REQUIRED TO TAKE AN OATH OF OFFICE AND ARE NOT APPOINTED BY THE HEAD OF AN ESTABLISHMENT, BUT ARE EMPLOYED FROM RELIEF ROLLS THROUGH THE UNITED STATES EMPLOYMENT SERVICE, OR SIMILAR LABOR ASSIGNMENT FACILITY, ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE OF ABSENCE WITH PAY UNDER THE ACTS OF MARCH 14, 1936, 49 STAT. 1161, ID. 1162, RESPECTIVELY, REGARDLESS OF THE CAPACITY IN WHICH EMPLOYED.

THIS RULES HAS BEEN INCORPORATED IN THE UNIFORM ANNUAL- AND SICK LEAVE REGULATIONS PROMULGATED BY THE PRESIDENT. ENROLLEES OF THE CIVILIAN CONSERVATION CORPS, AS DISTINGUISHED FROM ADMINISTRATIVE PERSONNEL, ARE NOT APPOINTED TO CIVILIAN POSITIONS BASED ON THEIR QUALIFICATIONS FOR THE POSITIONS BUT ARE ENROLLED IN A STATUS INTENDED FOR THEIR BENEFIT, THE STATUTE STATING THE PURPOSE OF THE ACT TO BE TO PROVIDE "EMPLOYMENT AS WELL AS VOCATIONAL TRAINING, FOR YOUTHFUL CITIZENS OF THE UNITED STATES WHO ARE UNEMPLOYED AND IN NEED OF EMPLOYMENT.' HENCE, ENROLLEES ARE NOT TO BE REGARDED AS CIVILIAN EMPLOYEES OF THE GOVERNMENT WITHIN THE MEANING OF THE LEAVE STATUTES OF MARCH 14, 1936, 49 STAT. 1161-1162, AND REGULATIONS ISSUED PURSUANT THERETO.