B-114120, MARCH 25, 1953, 32 COMP. GEN. 408

B-114120, MARCH 25, 1953, 32 COMP. GEN. 408

OFFICERS AND EMPLOYEES - UNJUSTIFIED SUSPENSION OR REMOVAL - COMPENSATION - OUTSIDE EARNING DEDUCTIONS THE SALARIES VOTED A FEDERAL EMPLOYEE, REINSTATED UNDER THE ACT OF JUNE 10, 1948, BY CERTAIN CORPORATIONS IN WHICH HE HELD OFFICE ARE NOT AFFECTED BY HIS FEDERAL EMPLOYMENT AND NEED NOT BE TAKEN INTO CONSIDERATION IN COMPUTING THE COMPENSATION DUE THE EMPLOYEE FOR A PERIOD OF UNJUSTIFIED SUSPENSION OR SEPARATION.

COMPTROLLER GENERAL WARREN TO F. C. KNEELAND, OFFICE OF PRICE STABILIZATION, MARCH 25, 1953:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 26, 1953 (0100/2930), FORWARDED HERE BY LETTER OF MARCH 6, 1953, FROM THE DIRECTOR, BUDGET AND FINANCE (2933/LKM), REQUESTING DECISION AS TO THE AMOUNT OF COMPENSATION PROPERLY PAYABLE TO LYMAN G. RICHEY, UNDER PUBLIC LAW 623, APPROVED JUNE 10, 1948, COVERING THE PERIOD OF SUSPENSION WITHOUT PAY-- THE QUESTION BEING WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, THE CLAIMANT EARNED "ANY AMOUNTS * * * THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD" WITHIN THE MEANING OF THE ACT.

IN 21 COMP. GEN. 1128, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

UNDER SECTION 3 OF THE ACT OF DECEMBER 29, 1941, GRANTING TO CERTIFYING OFFICERS THE RIGHT TO OBTAIN DECISIONS BY THE COMPTROLLER GENERAL, A CERTIFYING OFFICER IS ENTITLED TO A DECISION ONLY ON A QUESTION OF LAW INVOLVED IN PAYMENT ON A SPECIFIC VOUCHER PRESENTED TO HIM FOR CERTIFICATION.

NO VOUCHER ACCOMPANIED YOUR SUBMISSION BUT IN VIEW OF THE STATED URGENCY OF THE MATTER, THE SUBMISSION OF A VOUCHER WILL BE WAIVED IN THIS CASE--- IT APPEARING THAT THE QUESTION OF LAW ACTUALLY IS BEFORE YOU IN CONNECTION WITH YOUR CERTIFICATION OF THE AMOUNT DUE, IF ANY.

IT IS STATED IN YOUR SUBMISSION THAT MR. RICHEY WAS REACHED IN HIS FORMER POSITION IN A REDUCTION IN FORCE PROGRAM AND PLACED ON ANNUAL LEAVE AT THE CLOSE OF BUSINESS AUGUST 22, 1952, AND PAID FOR ACCUMULATED ANNUAL LEAVE THROUGH SEPTEMBER 9, 1952, AFTER THREE HOURS, THEN FURLOUGHED WITHOUT PAY UNTIL APRIL 30, 1953. HE APPEALED TO THE CIVIL SERVICE COMMISSION AND THE COMMISSION ORDERED HIS RESTORATION AND HE WAS RESTORED TO DUTY DECEMBER 29, 1952. HE AGAIN WAS PLACED ON FURLOUGH STATUS EFFECTIVE JANUARY 31, 1953, AND HAS BEEN PAID FOR DUTY AND ANNUAL LEAVE ACCRUED AFTER HIS RESTORATION ON DECEMBER 29.

SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, BY THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 62 STAT. 355 PROVIDES:

(B) (1) ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY UNDER SUBSECTION (A) WHO, AFTER FILING A WRITTEN ANSWER TO THE CHARGES AS PROVIDED UNDER SUCH SUBSECTION OR AFTER ANY FURTHER APPEAL TO PROPER AUTHORITY AFTER RECEIPT OF AN ADVERSE DECISION ON THE ANSWER, IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF SUCH REMOVAL OR SUSPENSION, FOR THE PERIOD FOR WHICH HE RECEIVED NO COMPENSATION WITH RESPECT TO THE POSITION FROM WHICH HE WAS REMOVED OR SUSPENDED, LESS ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING SUCH PERIOD, AND SHALL FOR ALL PURPOSES EXCEPT THE ACCUMULATION OF LEAVE BE DEEMED TO HAVE RENDERED SERVICE DURING SUCH PERIOD. * * * (ITALICS SUPPLIED.)

IN AN AFFIDAVIT DATED JANUARY 5, 1953, MR. RICHEY STATES THAT HE HAD NO OTHER EMPLOYMENT DURING THE PERIOD AUGUST 22 TO DECEMBER 29, 1952, BUT FOR YEARS HAS BEEN AN OFFICER OF CERTAIN CORPORATIONS AND HAS BEEN VOTED A SALARY IN SUCH OFFICE; THAT FOR THE CURRENT YEAR THE SALARIES WERE VOTED IN MAY 1952, PAYABLE IN JANUARY 1953; AND THAT SUCH SALARIES ARE NOT AFFECTED BY EMPLOYMENT WITH OTHER ORGANIZATIONS. SUCH SALARIES APPEAR TO HAVE AMOUNTED TO APPROXIMATELY $20,000 A YEAR.

IN THE CASE OF JOHN DANIEL JACKSON V. UNITED STATES, 121 C.1CLS. 405, THE COURT REFUSED TO REDUCE THE AMOUNT DUE AN EMPLOYEE FOR A PERIOD OF UNJUSTIFIED SUSPENSION OR SEPARATION BY THE AMOUNT EARNED WORKING AT NIGHT AS A STEWARD FOR THE REASON THAT SUCH EARNINGS WERE NOT EARNED BY HIM "TO TAKE THE PLACE OF WHAT HE WOULD HAVE EARNED WITH THE DEFENDANT.' ACCORDINGLY, AS IT APPEARS FROM THE RECORD, THAT THE SALARIES VOTED THIS CLAIMANT FROM THE CORPORATION IN WHICH HE HELD OFFICE WERE NOT AFFECTED BY THE FEDERAL EMPLOYMENT, THEY ARE NOT REQUIRED TO BE TAKEN INTO CONSIDERATION IN COMPUTING THE COMPENSATION DUE HIM FOR THE PERIOD OF SUSPENSION UNDER THE ABOVE ACT OF JUNE 10, 1948.