B-110892, SEPTEMBER 10, 1952, 32 COMP. GEN. 132

B-110892, SEPTEMBER 10, 1952, 32 COMP. GEN. 132

OFFICERS AND EMPLOYEES - SUSPENSION OR REMOVAL - RESTORATION - STATUTORY INCREASES THE COMPENSATION PAYABLE UNDER THE BACK PAY PROVISIONS OF THE ACT OF AUGUST 26, 1950, TO EMPLOYEES WHO ARE REINSTATED OR RESTORED TO DUTY AFTER A PERIOD AT THE RATE RECEIVED ON THE DATE OF SUSPENSION OR REMOVAL, SO THAT AN EMPLOYEE WHO WAS SUSPENDED PRIOR TO THE EFFECTIVE DATE OF THE INCREASED COMPENSATION AMENDMENT TO THE CLASSIFICATION ACT OF 1949, AND REINSTATED SUBSEQUENT THERETO IS NOT ENTITLED TO HAVE INCLUDED IN THE COMPUTATION OF THE AMOUNT OF COMPENSATION DUE ANY CREDIT FOR THE PAY INCREASE GRANTED BY SAID AMENDMENT.

COMPTROLLER GENERAL WARREN TO VIOLET R. ALLEN, DEPARTMENT OF STATE, SEPTEMBER 10, 1952:

REFERENCE IS MADE TO YOUR LETTER OF JULY 16, 1952, DF/P:VRA, REQUESTING A DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A SUPPLEMENTAL PAY ROLL VOUCHER FORWARDED THEREWITH, IN THE AMOUNT OF $540.94, REPRESENTING ADDITIONAL "BACK PAY" CLAIMED BY AN EMPLOYEE OF THE DEPARTMENT OF STATE FOR A PERIOD OF SUSPENSION FROM DUTY.

AT THE CLOSE OF BUSINESS FEBRUARY 5, 1951, THE EMPLOYEE INVOLVED WAS SUSPENDED WITHOUT PAY UNDER THE SUMMARY SUSPENSION PROVISIONS OF PUBLIC LAW 733, 81ST CONGRESS, APPROVED AUGUST 26, 1950, 64 STAT. 476. SUBSEQUENTLY, ON MARCH 24, 1952, THE EMPLOYEE'S SUSPENSION WAS CANCELED AND HE RETURNED TO DUTY ON MARCH 28, 1952, AFTER BEING IN A LEAVE WITHOUT PAY STATUS FROM MARCH 24 TO 27, 1952.

UNDER THE "BACK PAY" PROVISION OF PUBLIC LAW 733, COMPENSATION WAS PAID THE EMPLOYEE FOR THE PERIOD FEBRUARY 6, 1951, THROUGH MARCH 23, 1952, AT THE RATE OF $7,800 PER ANNUM, LESS INTERIM NET EARNINGS, WHICH WAS THE RATE OF COMPENSATION RECEIVED BY HIM, IN HIS POSITION OF GRADE GS-13, AT THE DATE OF SUSPENSION. HOWEVER, AS THE RATE OF $7,800 PER ANNUM FOR A GS -13 POSITION WAS INCREASED TO $8,650, EFFECTIVE JULY 8, 1951, BY PUBLIC LAW 201, 82D CONGRESS, APPROVED OCTOBER 24, 1951, 65 STAT. 612, THE EMPLOYEE CLAIMS ADDITIONAL COMPENSATION, AT THE INCREASED RATE, FOR THE PERIOD OF JILY 8, 1951, THROUGH MARCH 23, 1952.

THE "BACK PAY" PROVISION OF PUBLIC LAW 733, 64 STAT. 476, PURSUANT TO WHICH COMPENSATION WAS PAID THE EMPLOYEE FOR THE PERIOD OF SUSPENSION, PROVIDES 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 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. (ITALICS SUPPLIED./*

IN COMPUTING THE AMOUNT THE EMPLOYEE "WOULD NORMALLY HAVE EARNED" DURING THE PERIOD OF SUSPENSION, FOR THE PURPOSE OF "BACK PAY," THE ACT REQUIRES THE USE OF "THE RATE HE (THE EMPLOYEE) WAS RECEIVING ON THE DATE OF SUSPENSION.' THAT BEING SO, AND AS PUBLIC LAW 733 IS THE SOLE AUTHORITY FOR COMPENSATING THE EMPLOYEE FOR THE PERIOD OF SUSPENSION, IT WOULD APPEAR THAT THERE IS PRECLUDED FROM CONSIDERATION, FOR THE PERIOD OF SUSPENSION, THE PROVISIONS OF PUBLIC LAW 201, WHICH, SUBSEQUENT TO THE EMPLOYEE'S SUSPENSION, INCREASED GENERALLY THE BASIC RATES OF COMPENSATION. A SITUATION COMPARABLE TO THAT HEREIN CONSIDERED AROSE UNDER PUBLIC LAW 623, APPROVED JUNE 10, 1948, 62 STAT. 354, 355, CONTAINING "BACK PAY" PROVISIONS SIMILAR TO PUBLIC LAW 733, THERE BEING INVOLVED A QUESTION OF INCLUDING THE PAY INCREASE GRANTED BY THE POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948, PUBLIC LAW 900, 62 STAT. 1267, IN THE AMOUNT DUE AN EMPLOYEE BECAUSE OF AN ERRONEOUS REMOVAL FROM THE SERVICE, THE REMOVAL HAVING OCCURRED PRIOR TO THE EFFECTIVE DATE OF SUCH LATTER ACT. IN THAT INSTANCE, AS POINTED OUT IN YOUR LETTER, IT WAS HELD IN DECISION OF NOVEMBER 26, 1948, 28 COMP. GEN. 333, 336, AS FOLLOWS, QUOTING FROM THE DECISION:

WITH RESPECT TO THE RATE OF COMPENSATION FOR THE PERIOD OF SEPARATION, THE STATUTE RESTRICTS SUCH PAYMENTS TO THE "RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION.' ACCORDINGLY, THERE SHOULD NOT BE INCLUDED IN THE COMPUTATION OF THE AMOUNT DUE ANY CREDIT FOR THE PAY INCREASE GRANTED BY THE POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948, PUBLIC LAW 900, 62 STAT. 1267.

IN VIEW OF THE FOREGOING, YOU ARE ADVISED THAT UNDER THE "BACK PAY" PROVISION OF PUBLIC LAW 733 THE ALLOWANCE OF ADDITIONAL COMPENSATION AS CLAIMED BY THE EMPLOYEE IS NOT AUTHORIZED. THE VOUCHER SUBMITTED IS RETURNED HEREWITH AND MAY NOT BE CERTIFIED FOR PAYMENT.