A-92357, FEBRUARY 14, 1938, 17 COMP. GEN. 641

A-92357: Feb 14, 1938

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THE PERSONNEL ENGAGED ON SUCH WORK ARE AUTOMATICALLY SEPARATED FROM THE SERVICE ON THAT DATE AND MAY NOT TAKE EARNED ANNUAL LEAVE WITH PAY THEREAFTER. AN APPROPRIATION IS NOT OBLIGATED FOR THE PAYMENT OF ANNUAL LEAVE UNTIL THE LEAVE IS ACTUALLY TAKEN. IS AS FOLLOWS: I AM DIRECTING TO YOU AN INQUIRY. WHICH IS IN THE NATURE OF AN EMERGENCY. THE SITUATION IS THIS. IT WAS PRESUMABLY ON A TEMPORARY BASIS. WHERE IT WAS UNNECESSARY TO TAKE CARE OF LEAVE TIME. WE HAVE ACCORDINGLY PAID FOR LEAVE TIME TO TELEPHONE INVESTIGATION EMPLOYEES. NOW THAT THE WORK WILL TERMINATE AT THE CLOSE OF THE FISCAL YEAR. WE MUST KNOW THAT LEAVE TIME MAY BE PAID FROM THE APPROPRIATION AFTER THE EMPLOYEES HAVE QUIT WORK ON JUNE 30.

A-92357, FEBRUARY 14, 1938, 17 COMP. GEN. 641

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - AFTER AUTOMATIC SEPARATION FROM SERVICE WHERE STATUTORY AUTHORITY FOR INCURRING EXPENDITURES IN CONNECTION WITH CERTAIN WORK, AND THE AVAILABILITY OF THE APPROPRIATION THEREFOR, TERMINATE ON A DATE FIXED BY LAW, THE PERSONNEL ENGAGED ON SUCH WORK ARE AUTOMATICALLY SEPARATED FROM THE SERVICE ON THAT DATE AND MAY NOT TAKE EARNED ANNUAL LEAVE WITH PAY THEREAFTER. AN APPROPRIATION IS NOT OBLIGATED FOR THE PAYMENT OF ANNUAL LEAVE UNTIL THE LEAVE IS ACTUALLY TAKEN.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, FEBRUARY 14, 1938:

YOUR LETTER OF FEBRUARY 2, 1938, IS AS FOLLOWS:

I AM DIRECTING TO YOU AN INQUIRY, WHICH IS IN THE NATURE OF AN EMERGENCY, BECAUSE IT INVOLVES THE PLANNING OF THE WORK OF THE TELEPHONE INVESTIGATION FOR THE REMAINDER OF THE FISCAL YEAR 1937 1938.

THE SITUATION IS THIS, WHEN WE PLANNED THE WORK OF THE INVESTIGATION, IT WAS PRESUMABLY ON A TEMPORARY BASIS, WHERE IT WAS UNNECESSARY TO TAKE CARE OF LEAVE TIME. SINCE THEN STATUTORY ENACTMENT AS I UNDERSTAND IT, HAS MADE IT MANDATORY THAT LEAVE TIME BE GRANTED, AND WE HAVE ACCORDINGLY PAID FOR LEAVE TIME TO TELEPHONE INVESTIGATION EMPLOYEES. NOW THAT THE WORK WILL TERMINATE AT THE CLOSE OF THE FISCAL YEAR, WE MUST KNOW THAT LEAVE TIME MAY BE PAID FROM THE APPROPRIATION AFTER THE EMPLOYEES HAVE QUIT WORK ON JUNE 30, 1938. THE SITUATION IS SET OUT IN MORE DETAIL IN THE FOLLOWING PARAGRAPHS:

BY THE PROVISIONS OF PUBLIC RESOLUTION NO. 8, 74TH CONGRESS (COPY OF WHICH IS ATTACHED HERETO), THE FEDERAL COMMUNICATIONS COMMISSION WAS AUTHORIZED AND DIRECTED TO MAKE CERTAIN INVESTIGATIONS INTO THE AFFAIRS OF TELEPHONE COMPANIES ENGAGED IN INTERSTATE COMMERCE. SUBSEQUENT TO THE ENACTMENT OF THAT RESOLUTION, APPROPRIATIONS HAVE BEEN MADE BY THE CONGRESS TO CONTINUE THE WORK PRESCRIBED IN THE RESOLUTION, THE LAST OF SUCH APPROPRIATIONS BEING APPROPRIATION 277/80110, 1937-1938, AVAILABLE TO JUNE 30, 1938 (50 STAT. 8, 11). (COPY OF THE CONGRESSIONAL RESOLUTION AND THE STATUTORY PARAGRAPH RESPECTING THIS APPROPRIATION ARE ATTACHED HERETO.)

THE PERSONNEL EMPLOYED DURING THE COURSE OF THE SPECIAL INVESTIGATION, UNDER THIS RESOLUTION, WAS TAKEN FROM CIVIL SERVICE ROLLS OR EMPLOYED AS EXPERTS UNDER APPROPRIATE CIVIL SERVICE RULES AND REGULATIONS. OF THIS PERSONNEL SO EMPLOYED, SEVERAL REMAIN WHOSE SERVICES WILL BE ABSOLUTELY REQUIRED UNTIL JUNE 30, 1938. OTHERWISE ASSIGNMENTS WILL REMAIN UNCOMPLETED AND THE WORK DONE WILL LARGELY BE LOST BECAUSE THEREOF. THIS PRESENT ACTIVE PERSONNEL HAS BEEN ENGAGED UPON WORK OF AN UNUSUAL NATURE, MUCH OF WHICH HAS HAD TO BE COMPLETED AT SCHEDULED INTERVALS, AND THESE EMPLOYEES HAVE BEEN LARGELY UNABLE TO AVAIL THEMSELVES OF THE RIGHT OF TAKING ANNUAL LEAVE AS IT ACCRUED. THEY CONSEQUENTLY HAVE CONSIDERABLE EARNED ANNUAL LEAVE TO THEIR CREDIT, AND FURTHER LEAVE WILL ACCRUE BETWEEN THIS DATE AND JUNE 30, 1938.

THERE WILL REMAIN AVAILABLE IN THE CURRENT APPROPRIATION (277/80110), AS OF JUNE 30, 1938, A SUM SUFFICIENT TO PAY THIS EARNED ANNUAL LEAVE AND TO DISCHARGE ALL OTHER OUTSTANDING OBLIGATIONS, INCLUDING THE ECONOMY REDUCTION, APPLICABLE TO UNOBLIGATED FUNDS AS OF JUNE 30, 1938. IN VIEW OF THE PRACTICAL NECESSITY OF RETAINING THE ACTIVE SERVICES OF THESE SPECIALIZED EMPLOYEES UNTIL THAT DATE, IT IS REQUESTED THAT THIS COMMISSION BE ADVISED WHETHER THE EARNED ANNUAL LEAVE OF THIS PERSONNEL MAY BE TAKEN AFTER JUNE 30TH AND PAYMENT BE MADE THEREFOR FROM THE UNOBLIGATED BALANCE THUS REMAINING IN APPROPRIATION 277/80110 AS OF JUNE 30, 1938.

THIS MATTER IS OF VITAL AND IMMEDIATE IMPORTANCE TO THE CONDUCT OF SPECIAL TELEPHONE INVESTIGATION. IN THE EVENT DISBURSEMENTS TO PAY FOR LEAVE EARNED PRIOR TO JUNE 30, 1938, CANNOT THUS BE MADE AFTER JUNE 30, 1938, IT WILL BE NECESSARY FOR THE PRESENT PROGRAM TO BE DRASTICALLY CURTAILED, AND THE PROPER AND ADEQUATE CONCLUSION OF THIS WORK WILL BE SERIOUSLY HAMPERED, AND IN SOME IMPORTANT RESPECTS RENDERED ENTIRELY IMPOSSIBLE OF COMPLETION.

THE FOLLOWING FACTS, WITH RESPECT TO BUT ONE OF THESE EMPLOYEES, ARE ILLUSTRATIVE OF THE SITUATION WHICH CONFRONTS THIS COMMISSION:

ROBERT E. MAY, ASSOCIATE ATTORNEY, WAS EMPLOYED IN APRIL 1935. SINCE THAT TIME HE HAS BEEN CONTINUOUSLY EMPLOYED IN THE SPECIAL INVESTIGATION OF THE FEDERAL COMMUNICATIONS COMMISSION. DURING THE COURSE OF HIS EMPLOYMENT TO DECEMBER 31, 1937, HE HAD ACCUMULATED FORTY-THREE (43) DAYS OF EARNED ANNUAL LEAVE. THE NATURE OF THIS WORK RENDERED IT ENTIRELY IMPRACTICAL FOR HIM TO TAKE HIS FULL LEAVE AS IT ACCRUED. IT IS ESTIMATED THAT THE EARNED LEAVE OF MR. MAY WILL AMOUNT TO FIFTY-SIX (56) DAYS AS OF JUNE 30, 1938. TO AVAIL HIMSELF OF THE ANNUAL LEAVE WHICH HE HAS THUS EARNED, IF IT MUST BE TAKEN PRIOR TO JUNE 30, 1938, MR. MAY WOULD HAVE TO ENTER UPON ANNUAL LEAVE STATUS ON OR ABOUT APRIL 21, 1938. THIS WILL SO CURTAIL HIS WORK AS TO RENDER IT SERIOUSLY INCOMPLETE.

A SIMILAR SITUATION EXISTS WITH RESPECT TO SEVERAL OTHERS WHOSE SERVICES ARE NECESSARY IN DIRECTING THE ACTIVITIES OF THE SPECIAL INVESTIGATION AND COMPLETING THE WORK IN AN ORDERLY AND SATISFACTORY MANNER.

THE MATTERS NOW UNDER CONSIDERATION WHICH WILL REQUIRE THE SERVICES OF THIS PERSONNEL TO JUNE 30TH, IF THEY ARE TO BE COMPLETED, ARE OF DIRECT IMPORTANCE TO THE EFFECTIVE REGULATION OF COMPANIES ENGAGED IN INTERSTATE TELEPHONE BUSINESS, AND IT IS DESIRED THAT THE MAXIMUM BENEFIT FROM THE MONIES APPROPRIATED BY THE CONGRESS BE HAD BY THIS COMMISSION. SUCH BENEFIT CAN BE HAD ONLY IN THE EVENT THAT THERE IS NO CURTAILMENT OF THE PRESENT PROGRAM, WHICH HAS AT ALL TIMES CONTEMPLATED ACTIVE EFFORT UNTIL JUNE 30 OF THIS YEAR.

ATTACHED HERETO IS A TABLE SHOWING THE PERSONNEL CURRENTLY REFERRED TO IN THIS COMMUNICATION, THE POSITION AND BASE PAY OF EACH SUCH EMPLOYEE, THE AMOUNT OF EARNED ANNUAL LEAVE AS OF DECEMBER 31, 1937, THE ESTIMATED EARNED ANNUAL LEAVE AS OF JUNE 30, 1938, AND THE APPROXIMATE DATES ON WHICH EACH SUCH EMPLOYEE WOULD ENTER UPON LEAVE STATUS, IF SUCH EARNED LEAVE MUST BE TAKEN PRIOR TO JUNE 30, 1938. (THERE MAY POSSIBLY BE ADDITIONAL EMPLOYEES, WITH SUBSTANTIAL LEAVE TIME, WHOSE SERVICES WILL BE REQUIRED UNTIL JUNE 30, 1938, BUT THE AMOUNT OF MONEY INVOLVED WILL NOT BE GREAT, AND THE ATTACHED LIST WILL ILLUSTRATE THE SITUATION INVOLVED.)

ANY ADDITIONAL INFORMATION WHICH YOUR OFFICE MAY REQUIRE WILL BE GLADLY FURNISHED.

IT IS EARNESTLY REQUESTED THAT THIS MATTER BE GIVEN EARLY AND FAVORABLE CONSIDERATION TO THE END THAT THIS COMMISSION MAY BE ABLE TO UTILIZE THE ACTIVE SERVICES OF THESE EMPLOYEES UNTIL JUNE 30, 1938, AND THEREAFTER COMPENSATE THEM FOR EARNED LEAVE, FROM THE THEN REMAINING UNOBLIGATED BALANCE OF THE APPROPRIATION IN QUESTION.

SECTION 6 OF PUBLIC RESOLUTION NO. 8, APPROVED MARCH 15, 1935, 49 STAT. 45, PROVIDES AS OLLOWS:

THERE IS HEREBY APPROPRIATED, OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, THE SUM OF $750,000, TO BE MADE IMMEDIATELY AVAILABLE TO THE FEDERAL COMMUNICATIONS COMMISSION FOR THE PURPOSES OF THE INVESTIGATION AND REPORT HEREIN AUTHORIZED AND DIRECTED, AND THE COMMISSION SHALL MAKE SPECIAL REPORTS TO CONGRESS ON ITS PROGRESS AND ITS FINDINGS IN THIS INVESTIGATION.

THE DEFICIENCY APPROPRIATION ACT OF JUNE 22, 1936, 49 STAT. 1597, 1601, CONTAINED AN ITEM OF $400,000 FOR THE SPECIAL INVESTIGATION AUTHORIZED BY THE PUBLIC RESOLUTION NO. 8, OF MARCH 15, 1935, SUPRA,"TO REMAIN AVAILABLE UNTIL JUNE 30, 1937.' THE DEFICIENCY APPROPRIATION ACT OF FEBRUARY 9, 1937, PUBLIC, NO. 4, CONTAINED THE FOLLOWING ITEM:

FOR AN ADDITIONAL AMOUNT FOR ALL AUTHORIZED EXPENDITURES OF THE FEDERAL COMMUNICATIONS COMMISSION, INCLUDING PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE, IN COMPLETING THE INVESTIGATION AND REPORTING TO CONGRESS ON MATTERS WITH RESPECT TO THE AMERICAN TELEPHONE AND TELEGRAPH COMPANY AND ALL OTHER COMPANIES ENGAGED DIRECTLY OR INDIRECTLY IN TELEPHONE COMMUNICATION IN INTERSTATE COMMERCE, AS AUTHORIZED AND DIRECTED IN PUBLIC RESOLUTION NUMBERED 8, SEVENTY-FOURTH CONGRESS, APPROVED MARCH 15, 1935 (49 STAT. 43), $350,000, TO CONTINUE AVAILABLE UNTIL JUNE 30, 1938.

IT IS UNDERSTOOD THAT THE FIRST APPROPRIATION MADE BY SECTION 6 OF THE PUBLIC RESOLUTION OF MARCH 15, 1935, SUPRA, WITHOUT YEAR, HAS BEEN EXHAUSTED. HENCE, UNDER EXISTING LAW, THE AUTHORITY FOR INCURRING EXPENDITURES IN CONNECTION WITH THIS SPECIAL INVESTIGATION WILL TERMINATE JUNE 30, 1938, AND THE PERSONNEL ENGAGED ON SUCH WORK WHOSE COMPENSATION IS PAID FROM THE APPROPRIATION MADE AVAILABLE ONLY UNTIL JUNE 30, 1938, WILL BE AUTOMATICALLY SEPARATED FROM THE SERVICE ON THAT DATE.

AUTHORIZED LEAVE OF ABSENCE WITH PAY IS SYNONYMOUS WITH WORK OR A DUTY STATUS. 13 COMP. GEN. 295; ID. 370; 14 ID. 351; 17 ID. 349. IN THE ABSENCE OF A STATUTE SPECIFICALLY PROVIDING THEREFOR, LEAVE MAY NOT BE EXTENDED BEYOND THE FINAL TERMINATION OF THE SERVICE OR DUTY STATUS OF AN EMPLOYEE, NOR IS THERE ANY LAW AUTHORIZING PAYMENT, AFTER SEPARATION FROM THE SERVICE, FOR LEAVE ACCRUED BUT NOT TAKEN PRIOR TO SUCH SEPARATION. SEE PARTICULARLY DECISION OF NOVEMBER 2, 1937, 17 COMP. GEN. 376, AND DECISIONS THEREIN CITED.

YOU ARE ADVISED, THEREFORE, THAT ON THE BASIS OF EXISTING LAWS, EARNED ANNUAL LEAVE WITH PAY OF THE PERSONNEL IN QUESTION MAY NOT BE TAKEN AFTER JUNE 30, 1938, WITH PAYMENT OF COMPENSATION DURING SUCH LEAVE FROM THE UNOBLIGATED BALANCE REMAINING IN THE APPROPRIATION AS OF JUNE 30, 1938. SAID APPROPRIATION MAY NOT BE USED AFTER JUNE 30, 1938, EXCEPT FOR THE PAYMENT OF LEGAL OBLIGATIONS INCURRED ON OR BEFORE SAID DATE, AND A LEGAL OBLIGATION FOR PAYMENT FOR ANNUAL LEAVE IS NOT INCURRED UNTIL THE LEAVE IS ACTUALLY TAKEN.