B-110228, AUGUST 29, 1952, 32 COMP. GEN. 115

B-110228: Aug 29, 1952

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ANNUAL LEAVE TO WHICH THE DISTRICT ATTORNEY OF THE UNITED STATES DISTRICT COURT FOR THE PANAMA CANAL ZONE IS ENTITLED IS FIXED BY STATUTE WHEREAS THAT OF THE ASSISTANT DISTRICT ATTORNEY IS PRESCRIBED BY REGULATIONS OF THE GOVERNOR OF THE PANAMA CANAL. AS THE TWO POSITIONS ARE COVERED BY DIFFERENT LEAVE SYSTEMS. AN ASSISTANT DISTRICT ATTORNEY WHO IS APPOINTED TO THE OFFICE OF DISTRICT ATTORNEY IS ENTITLED UNDER SAID REGULATIONS TO A LUMP-SUM PAYMENT FOR ACCRUED LEAVE. OR MARSHALL OF THE UNITED STATES DISTRICT COURT FOR THE PANAMA CANAL ZONE IS HELD BY TWO OR MORE PERSONS IN ONE CALENDAR YEAR. 1952: REFERENCE IS MADE TO LETTER OF JUNE 11. WHICH WILL BE ANSWERED IN THE ORDER OF PRESENTATION.

B-110228, AUGUST 29, 1952, 32 COMP. GEN. 115

LEAVES OF ABSENCE - PERSONNEL OF THE DISTRICT COURT OF THE PANAMA CANAL ZONE - ANNUAL AND SICK LEAVE ACT OF 1951 THE ANNUAL AND SICK LEAVE ACT OF 1951 DOES NOT APPLY TO THE STATUTORY LEAVE RIGHTS OF THE DISTRICT JUDGE, DISTRICT ATTORNEY, OR MARSHAL OF THE UNITED STATES DISTRICT COURT FOR THE PANAMA CANAL ZONE, OR TO SUBORDINATE PERSONNEL IN THEIR RESPECTIVE OFFICES. ANNUAL LEAVE TO WHICH THE DISTRICT ATTORNEY OF THE UNITED STATES DISTRICT COURT FOR THE PANAMA CANAL ZONE IS ENTITLED IS FIXED BY STATUTE WHEREAS THAT OF THE ASSISTANT DISTRICT ATTORNEY IS PRESCRIBED BY REGULATIONS OF THE GOVERNOR OF THE PANAMA CANAL; THEREFORE, AS THE TWO POSITIONS ARE COVERED BY DIFFERENT LEAVE SYSTEMS, AN ASSISTANT DISTRICT ATTORNEY WHO IS APPOINTED TO THE OFFICE OF DISTRICT ATTORNEY IS ENTITLED UNDER SAID REGULATIONS TO A LUMP-SUM PAYMENT FOR ACCRUED LEAVE. THE SIXTY DAY ANNUAL LEAVE ALLOWANCE OF THE DISTRICT JUDGE, DISTRICT ATTORNEY, AND MARSHALL OF THE UNITED STATES DISTRICT COURT FOR THE PANAMA CANAL ZONE, PRESCRIBED BY SECTION 42 (C) OF TITLE 7 OF THE CANAL ZONE CODE, SHOULD BE CHARGED ON A CALENDAR DAY BASIS AS DISTINGUISHED FROM A WORK DAY BASIS. WHEN THE OFFICE OF DISTRICT JUDGE, DISTRICT ATTORNEY, OR MARSHALL OF THE UNITED STATES DISTRICT COURT FOR THE PANAMA CANAL ZONE IS HELD BY TWO OR MORE PERSONS IN ONE CALENDAR YEAR, THE SIXTY DAY ANNUAL LEAVE ALLOWANCE SHALL BE PRORATED AMONG SUCH PERSONS IN PROPORTION TO THE TIME EACH HAS SERVED IN SUCH OFFICE DURING THAT YEAR, AND THE FAILURE OF A SUCCESSOR TO QUALIFY IMMEDIATELY UPON CREATION OF A VACANCY DOES NOT OPERATE TO INCREASE THE PREDECESSOR'S PROPORTIONATE SHARE OF THE LEAVE.

ASSISTANT COMPTROLLER GENERAL YATES TO THE ATTORNEY GENERAL, AUGUST 29, 1952:

REFERENCE IS MADE TO LETTER OF JUNE 11, 1952, A3, FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, REQUESTING A DECISION UPON CERTAIN QUESTIONS INVOLVING THE LEAVE RIGHTS OF THE DISTRICT JUDGE, THE DISTRICT ATTORNEY AND MARSHAL OF THE DISTRICT COURT OF THE UNITED STATES FOR THE PANAMA CANAL ZONE, AS WELL AS THOSE OF THE SUBORDINATE PERSONNEL IN THEIR RESPECTIVE OFFICES. THE SAID QUESTIONS, WHICH WILL BE ANSWERED IN THE ORDER OF PRESENTATION, ARE STATED IN THE LETTER AS OLLOWS:

1. DOES THE 1951 LEAVE LAW SUPERCEDE THE LEAVE PROVISION IN 48 U.S.C. 1353, AS TO THE DISTRICT JUDGE, DISTRICT ATTORNEY AND THE MARSHAL?

2. DOES THE 1951 LEAVE LAW APPLY TO THE PERSONNEL OF THE OFFICES OF THE DISTRICT JUDGE, DISTRICT ATTORNEY AND THE MARSHAL?

3. ASSUMING THAT YOUR ANSWERS TO THE FOREGOING QUESTIONS ARE IN THE NEGATIVE, WOULD AN ASSISTANT DISTRICT ATTORNEY BE ENTITLED TO A LUMP SUM PAYMENT FOR LEAVE STANDING TO HIS CREDIT UPON BEING APPOINTED DISTRICT ATTORNEY?

4. ASSUMING THAT THE ANSWER TO THE FIRST QUESTION IS IN THE NEGATIVE, SHOULD THE SIXTY DAY ANNUAL ALLOWANCE OF LEAVE BE CHARGED ON A WORK DAY OR A CALENDAR DAY BASIS? BY WAY OF DISCUSSION, THE DEPARTMENT IS ADVISED THAT PRIOR TO 1933 SUCH LEAVE WAS CHARGED ON A CALENDAR DAY BASIS. AS THE ANNUAL RATE WAS THEN SIXTY DAYS (44 STAT. 924) NO REASON IS APPARENT FOR CHANGING THE METHOD OF CHARGE, AS TO DO OTHERWISE NOW WOULD HAVE THE EFFECT OF INCREASING THE LENGTH OF ABSENCE ON LEAVE.

5. AGAIN ASSUMING THE CONTINUED VALIDITY OF THE SIXTY DAY LEAVE PROVISION OF 48 U.S.C. 1353, IF A DISTRICT ATTORNEY LEAVES THE SERVICE AT THE CLOSE OF MARCH OF ANY YEAR, TO WHAT PART OF THE SIXTY DAY GRANT OF LEAVE WOULD HE BE ENTITLED UNDER EXECUTIVE ORDER 7676? WOULD THE ANSWER BE ANY DIFFERENT IF HIS SUCCESSOR DID NOT QUALIFY UNTIL SEPTEMBER 1, FOLLOWING?

SECTION 202 (B) (1) (D) OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, IS AS FOLLOWS:

THIS TITLE SHALL NOT APPLY TO--- * * * * * * *

(D) EMPLOYEES OF THE CANAL ZONE GOVERNMENT, AND THE PANAMA CANAL COMPANY WHEN EMPLOYED ON THE ISTHMUS OF PANAMA; * * *.

THE QUOTED SECTION SPECIFICALLY EXCEPTS EMPLOYEES OF THE CANAL ZONE GOVERNMENT FROM THE REMAINING PROVISIONS OF SUCH ACT AND WHILE THE TERM,"OFFICERS," HAS NOT BEEN USED IN THE SAID EXCEPTION THERE HAS BEEN FOUND NO INDICATION THAT THE CONGRESS INTENDED BY ENACTMENT OF THE 1951 LEAVE STATUTE TO REPEAL, MODIFY OR AFFECT IN ANY WAY THE LEAVE RIGHTS AFFORDED THE DISTRICT JUDGE, DISTRICT ATTORNEY, OR MARSHAL UNDER SECTION 42 (C) OF TITLE 7, CANAL ZONE CODE, AND SECTION 8 OF EXECUTIVE ORDER NO. 7676, JULY 26, 1937, ISSUED PURSUANT THERETO. NEITHER IS SUCH ACT CONSTRUED AS EMBRACING SUBORDINATE PERSONNEL IN THE OFFICES OF THE DISTRICT JUDGE, DISTRICT ATTORNEY, OR MARSHAL WHO PRIOR TO ENACTMENT OF THE SAID ACT HAD EARNED AND BEEN GRANTED LEAVE IN ACCORDANCE WITH REGULATIONS PROMULGATED BY THE GOVERNOR OF THE PANAMA CANAL ( CIRCULAR 602 -39, JUNE 20, 1946) PURSUANT TO THE AUTHORITY GRANTED BY THE PRESIDENT UNDER EXECUTIVE ORDER NO. 9740, JUNE 20, 1946. QUESTIONS 1 AND 2, THEREFORE, ARE ANSWERED IN THE NEGATIVE.

SECTION 42 (C) OF TITLE 7, CANAL ZONE CODE, PROVIDES, IN EFFECT THAT THE DISTRICT JUDGE, DISTRICT ATTORNEY, AND MARSHAL SHALL BE ALLOWED 60 DAYS' LEAVE OF ABSENCE EACH YEAR WITH PAY UNDER SUCH REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT. THE IMPLEMENTING REGULATIONS PROMULGATED BY THE PRESIDENT ARE SET FORTH IN EXECUTIVE ORDER NO. 7676, SUPRA, AS FOLLOWS:

SECTION 8. LEAVE OF ABSENCE OF DISTRICT JUDGE, DISTRICT ATTORNEY, AND MARSHAL--- THE LEAVE OF ABSENCE ALLOWED THE DISTRICT JUDGE, DISTRICT ATTORNEY, AND MARSHAL BY SECTION 42 OF TITLE 7 OF THE CODE SHALL BE RECKONED BY CALENDAR YEARS, IF THE OFFICE INVOLVED IS HELD BY TWO OR MORE PERSONS IN ONE CALENDAR YEAR, THE LEAVE SHALL BE PRORATED TO SUCH PERSONS IN PROPORTION TO THE TIME THAT THEY HAVE HELD OFFICE DURING THAT YEAR. ANY PORTION OF THE LEAVE OF ABSENCE ACCRUING IN ANY ONE CALENDAR YEAR AND NOT USED IN THAT YEAR MAY BE ACCUMULATED AND USED IN SUCCEEDING CALENDAR YEARS: PROVIDED, THAT LEAVE MAY NOT BE ACCUMULATED IN EXCESS OF 120 DAYS, AND THAT NOT MORE THAN 120 DAYS OF LEAVE MAY BE TAKEN IN ANY ONE CALENDAR YEAR. THE OFFICERS CONCERNED SHALL MAKE APPLICATIONS FOR LEAVE OF ABSENCE TO THE ATTORNEY GENERAL OF THE UNITED STATES AND SHALL REPORT TO HIM THE TIME OF THEIR DEPARTURE AND THE TIME OF THEIR RETURN TO DUTY.

THE LEAVE RIGHTS OF THE DISTRICT ATTORNEY ARE FIXED BY LAW--- SECTION 42 (C), TITLE 7, CANAL ZONE CODE, SUPRA--- WHEREAS THOSE OF THE ASSISTANT DISTRICT ATTORNEY STATIONED IN THE CANAL ZONE ARE BASED UPON CANAL ZONE CIRCULAR NO. 602-39, SUPRA. HENCE, REFERRING TO QUESTION 3, IT LOGICALLY MAY BE CONCLUDED THAT THE TWO POSITIONS ARE COVERED BY DIFFERENT LEAVE SYSTEMS, AND, THEREFORE, THE ASSISTANT DISTRICT ATTORNEY REFERRED TO IN THIS QUESTION WOULD BE ENTITLED TO A LUMP-SUM PAYMENT FOR LEAVE IN ACCORDANCE WITH SECTION 11 OF THE SAID CIRCULAR UPON HIS TRANSFER TO THE POSITION OF DISTRICT ATTORNEY.

WITH REFERENCE TO QUESTION 4, IT IS PERTINENT TO NOTE THAT UNLIKE THE ANNUAL AND SICK LEAVE ACT OF 1951, WHICH IN EFFECT, DEFINES DAYS OF LEAVE AS ONLY SUCH DAYS AS AN EMPLOYEE OTHERWISE WOULD WORK AND RECEIVE PAY--- EXCLUSIVE OF HOLIDAYS AND NONWORKDAYS--- SECTION 42 (C) OF TITLE 7, CANAL ZONE CODE, MERELY PROVIDES IN THE CASE OF THE DISTRICT JUDGE, DISTRICT ATTORNEY, AND MARSHAL FOR THE ALLOWANCE OF 60 DAYS' LEAVE PER YEAR. VIEW THEREOF, THE ADMINISTRATIVE PRACTICE OF LONG STANDING UNDER WHICH SUCH LEAVE IS LIMITED TO 60 CALENDAR DAYS--- AS DISTINGUISHED FROM WORKDAYS--- PER YEAR IS CONSIDERED CORRECT. COMPARE 17 COMP. GEN. 906.

REFERRING TO QUESTION 5, UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 7676, SUPRA, IF THE OFFICE OF DISTRICT JUDGE, DISTRICT ATTORNEY, OR MARSHAL IS HELD BY TWO OR MORE PERSONS IN ONE CALENDAR YEAR, THE LEAVE SHALL BE PRORATED AMONG SUCH PERSONS IN PROPORTION TO THE TIME THEY HAVE HELD THE OFFICE DURING SUCH YEAR. HENCE, IF THE INCUMBENT OF ONE OF SUCH OFFICES LEAVES THE SERVICE AT THE CLOSE OF MARCH IN ANY YEAR HIS PROPORTIONATE SHARE OF THE 70 DAYS ALLOWABLE LEAVE WOULD BE ONE FOURTH THEREOF, OR 15 CALENDAR DAYS. MOREOVER, THE FACT THAT HIS SUCCESSOR MIGHT NOT QUALIFY UNTIL THE FOLLOWING SEPTEMBER WOULD NOT INCREASE THE SHARE OF THE OUTGOING OFFICER WHO, AS INDICATED, ACTUALLY WOULD HAVE BEEN SEPARATED ON MARCH 31 OF SUCH YEAR.