B-106914, JANUARY 23, 1952, 31 COMP. GEN. 325

B-106914, JANUARY 23, 1952, 31 COMP. GEN. 325

OFFICERS AND EMPLOYEES - SUSPENSION IN INTEREST OF NATIONAL SECURITY - RECREDIT OF ANNUAL LEAVE UPON REINSTATEMENT AN EMPLOYEE WHO IS PLACED ON LEAVE WITH PAY PRIOR TO ACTION BEING TAKEN PURSUANT TO THE ACT OF AUGUST 26, 1950, TO SUSPEND HIM WITHOUT PAY IN THE INTEREST OF NATIONAL SECURITY AND WHO, AFTER SUSPENSION WITHOUT PAY, SUBSEQUENTLY IS RESTORED TO DUTY AND ALLOWED COMPENSATION FOR THE PERIOD OF SUCH SUSPENSION, IS NOT ENTITLED UNDER SAID ACT TO A RECREDIT OF LEAVE FOR THE PERIOD OF LEAVE WITH PAY PRIOR TO SUSPENSION WITHOUT PAY.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, JANUARY 23, 1952:

REFERENCE IS MADE TO LETTER DATED DECEMBER 6, 1951, REFERENCE L/A, FROM THE ACTING DUTY UNDER SECRETARY, REQUESTING A DECISION AS TO WHETHER AN EMPLOYEE WHO, IN THE INTEREST OF NATIONAL SECURITY, IS SUSPENDED UNDER AUTHORITY OF THE ACT OF AUGUST 26, 1950, PUBLIC LAW 733, 64 STAT. 477, AND WHO SUBSEQUENTLY IS RESTORED TO DUTY, MAY BE RECREDITED WITH ANNUAL LEAVE GRANTED AND USED BY HIM DURING THE PERIOD OF HIS SUSPENSION.

IT IS STATED IN THE LETTER THAT IT HAS BEEN THE DEPARTMENT'S PRACTICE TO CARRY CERTAIN EMPLOYEES ON ANNUAL LEAVE WHEN SUSPENDED UNDER PUBLIC LAW 733 FOR THE REASON THAT SOME EMPLOYEES, SUCH AS EMPLOYEES STATIONED ABROAD, WOULD BE WITHOUT MEANS OF SUPPORT FOR THEMSELVES AND THEIR FAMILIES IF SUSPENDED WITHOUT PAY FOR A PERIOD OF INDEFINITE DURATION PENDING INVESTIGATION AND FINAL DETERMINATION OF THEIR CASES; AND THAT THE EMPLOYEES WHO USED THEIR ANNUAL LEAVE DURING THE PERIOD OF THEIR SUSPENSION UNDER SUCH CIRCUMSTANCES HAVE USED IT AS MUCH FOR THE CONVENIENCE OF THE GOVERNMENT AS FOR THE CONVENIENCE OF THEMSELVES AND SHOULD NOT BE PENALIZED BY RECEIVING LESS COMPENSATION THAN THAT TO WHICH THEY WOULD HAVE BEEN ENTITLED HAD THEY BEEN ON LEAVE WITHOUT PAY DURING THE ENTIRE PERIOD. ALSO, IT IS STATED TO BE THE VIEW OF THE DEPARTMENT THAT IF SUCH LEAVE IS NOT RECREDITED IN THE EVENT THEY ARE RESTORED TO DUTY THEY WOULD NOT, IN EFFECT, HAVE BEEN COMPENSATED FOR THE PERIOD OF THEIR SUSPENSION AS CONTEMPLATED BY THE STATUTE; AND THAT PUBLIC LAW 733 AUTHORIZES THE SECRETARY OF STATE, IN HIS DISCRETION, NOT ONLY TO SUSPEND AN EMPLOYEE SUMMARILY BUT ALSO TO RECREDIT THE ANNUAL LEAVE HE TOOK WHILE SO SUSPENDED, IN THE EVENT IT IS DETERMINED THAT HE SHOULD BE RESTORED TO DUTY AND ALLOWED COMPENSATION FOR THE PERIOD OF SUSPENSION.

SECTION 1, PUBLIC LAW 733, 64 STAT. 466, 477, AUTHORIZES THE SECRETARY OF STATE AND THE HEADS OF OTHER NAMED DEPARTMENTS AND AGENCIES TO "SUSPEND WITHOUT PAY" ANY CIVILIAN EMPLOYEE OF SUCH AGENCY WHEN DEEMED NECESSARY IN THE INTERESTS OF NATIONAL SECURITY AND, FOLLOWING SUCH INVESTIGATION AND REVIEW AS THE SECRETARY DEEMS NECESSARY, TO TERMINATE THE EMPLOYMENT OF SUCH SUSPENDED EMPLOYEE. SECTION 1 OF THE ACT FURTHER PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * PROVIDED FURTHER, THAT ANY PERSON WHOSE EMPLOYMENT IS SO SUSPENDED OR TERMINATED UNDER THE AUTHORITY OF THIS ACT MAY, IN THE DISCRETION OF THE AGENCY HEAD CONCERNED, BE REINSTATED OR RESTORED TO DUTY, AND IF SO REINSTATED OR RESTORED SHALL BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUSPENSION OR TERMINATION IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH SUSPENSION OR TERMINATION, AT THE RATE HE WAS RECEIVING ON THE DATE OF SUSPENSION OR TERMINATION, AS APPROPRIATE, AND THE INTERIM NET EARNINGS OF SUCH PERSON: * * *

AS INDICATED ABOVE, PUBLIC LAW 733, AUTHORIZES THE HEAD OF THE AGENCIES INVOLVED TO SUSPEND AN EMPLOYEE WITHOUT PAY. THE RELIEF GRANTED INVOLVED TO SUSPEND AN EMPLOYEE WITHOUT PAY. THE RELIEF GRANTED BY THE ACT FOR THE PAYMENT OF COMPENSATION TO EMPLOYEES WHO ARE RESTORED TO DUTY FOLLOWING SUSPENSION RELATES SOLELY TO THE PERIOD OF SUCH SUSPENSION WITHOUT PAY. THAT IS TO SAY, THE RELIEF ACCORDED BY THE ACT ATTACHES TO THE EMPLOYEE FROM THE TIME HE HAS BEEN SUSPENDED WITHOUT PAY, AND NOT DURING A PERIOD OF SO-CALLED "SUSPENSION," WHEN HE IS ON LEAVE WITH PAY.

IT REPEATEDLY HAS BEEN HELD BY THIS OFFICE THAT UNDER THE 1936 LEAVE ACT, 49 STAT. 1161, IT WAS WITHIN THE ADMINISTRATIVE DISCRETION TO PLACE AN EMPLOYEE ON ANNUAL LEAVE WITH OR WITHOUT THE EMPLOYEE'S CONSENT, WHENEVER IT WAS DEEMED EXPEDIENT TO DO SO FOR ADMINISTRATIVE REASONS. SEE 28 COMP. GEN. 526. SUCH RULE DOUBTLESS WOULD BE EQUALLY APPLICABLE UNDER THE ANNUAL AND SICK LEAVE ACT OF 1951, APPROVED OCTOBER 30, 1951, PUBLIC LAW 233, 65 STAT. 679. HENCE, AMPLE AUTHORITY EXISTED PRIOR TO PUBLIC LAW 733 FOR YOU TO PLACE AN EMPLOYEE ON LEAVE WITH PAY WHEN IT WAS DEEMED NECESSARY IN THE INTEREST OF NATIONAL SECURITY OR FOR OTHER REASONS. THUS THE DEPARTMENT'S STATEMENT TO THE EFFECT THAT CERTAIN EMPLOYEES ARE PLACED ON LEAVE WITH PAY UNDER AUTHORITY OF PUBLIC LAW 733, IS NOT UNDERSTOOD. THE LEGISLATIVE HISTORY OF PUBLIC LAW 733 SHOWS THAT ONE OF THE PURPOSES INTENDED TO BE ACCOMPLISHED THEREBY WAS TO PROVIDE AUTHORITY FOR SUMMARILY SUSPENDING AN EMPLOYEE WITHOUT PAY WHERE OTHER METHODS, SUCH AS BY TRANSFERRING THE EMPLOYEE OR BY PLACING HIM ON LEAVE WITH PAY, WERE NOT SATISFACTORY IN IMMEDIATELY OVERCOMING THE SECURITY RISK OF THE EMPLOYEE.

ACCORDINGLY, WHERE AN EMPLOYEE IS PLACED ON LEAVE WITH PAY PRIOR TO ACTION TAKEN PURSUANT TO PUBLIC LAW 733 TO SUSPEND THE EMPLOYEE WITHOUT PAY IN THE INTEREST OF NATIONAL SECURITY, AND THE EMPLOYEE SUBSEQUENTLY IS RESTORED TO DUTY AND ALLOWED COMPENSATION FOR THE PERIOD OF SUSPENSION WITHOUT PAY, IT MUST BE HELD THAT PUBLIC LAW 733 MAY NOT BE CONSIDERED AS AUTHORITY FOR THE ADJUSTMENT OF LEAVE COVERING A PERIOD DURING WHICH LEAVE WITH PAY WAS TAKEN PRIOR TO THE SUSPENSION WITHOUT PAY UNDER PUBLIC LAW 733. COMPARE B-99992, AUGUST 20, 1951, 31 COMP. GEN. 38.