B-11983, SEPTEMBER 9, 1940, 20 COMP. GEN. 140

B-11983, SEPTEMBER 9, 1940, 20 COMP. GEN. 140

LEAVES OF ABSENCE - ANNUAL AND SICK - BAILIFFS IN FEDERAL COURTS BAILIFFS IN THE FEDERAL COURTS ARE PART-TIME OR INTERMITTENT EMPLOYEES AS DISTINGUISHED FROM INDEFINITE EMPLOYEES WITHIN THE MEANING OF THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS OF MARCH 29, 1940, AND HENCE ARE NOT ENTITLED TO ANNUAL OR SICK LEAVE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ATTORNEY GENERAL, SEPTEMBER 9, 1940:

I HAVE YOUR LETTER OF AUGUST 15, 1940, AS FOLLOWS:

TRANSMITTED HEREWITH IS A PHOTOSTATIC COPY OF A LETTER ADDRESSED TO THE DEPARTMENT BY ONE JOHN D. CRENSHAW, A BAILIFF IN THE UNITED STATES DISTRICT COURT AT ST. PAUL, MINNESOTA, IN WHICH HE PROPOUNDS SEVERAL QUESTIONS HAVING TO DO WITH THE APPLICATION OF THE LEAVE LAWS TO HIS TYPE OF EMPLOYMENT. MR. CRENSHAW HAS ADDRESSED AN IDENTICAL LETTER TO THE UNITED STATES MARSHAL, WHO HAS REQUESTED A RULING FROM THE DEPARTMENT. THIS CONNECTION, IT IS ASSUMED THAT THE DECISION OF YOUR OFFICE IN 18 COMP. GEN. 225 ANSWERS MR. CRENSHAW'S INQUIRY AS REGARDS THE JOINT RESOLUTION OF JUNE 29, 1938.

THE QUESTION AS TO THE APPLICABILITY OF THE ANNUAL AND SICK LEAVE ACTS AND THE REGULATIONS PROMULGATED THEREUNDER MAY PRESENT A DIFFERENT PROBLEM AND REQUIRE ANOTHER CONCLUSION THAN THAT STATED IN YOUR DECISION OF 18 COMP. GEN. 457, DEALING WITH INDEFINITE EMPLOYEES, IN THAT A BAILIFF IS SELECTED BY THE UNITED STATES MARSHAL, AND ORDINARILY RECEIVES NO FORMAL APPOINTMENT. NO OATH OF OFFICE IS TAKEN, AND THE DEPARTMENT MAINTAINS NO RECORD OF SUCH EMPLOYMENT.

IN THIS SITUATION, I WILL BE PLEASED TO RECEIVE YOUR RULING ON THE QUESTIONS HERE PRESENTED.

(1) WHETHER THE FACT THAT THE JUDGE IS NOT PRESENT AND PRESIDING IN COURT OR PRESENT IN CHAMBERS ( PUBLIC, 508, 76TH CONGRESS, PAGE 27), THEREBY MAKING THE PRESENCE OF A BAILIFF UNNECESSARY FOR THE PARTICULAR DAY, CONSTITUTES A BREAK IN SERVICE SO AS TO PREVENT THE OPERATION OF SECTION 1 (E) OF THE LEAVE REGULATIONS OF 1940.

(2) PRESUMABLY, IF THE ANSWER TO (1) IS IN THE AFFIRMATIVE, THE SAME CONCLUSION WILL FOLLOW IF A DEPUTY MARSHAL IS AVAILABLE FOR SERVICE ON A GIVEN DAY, AND THE BAILIFF ACCORDINGLY IS NOT EMPLOYED.

(3) ASSUMING THAT THE LEAVE LAWS ARE HELD TO APPLY TO BAILIFF'S POSITIONS AND HE ACTUALLY WORKS EVERY ORDINARY WORKING DAY WITH THE EXCEPTION OF ONE DURING THE MONTH, WOULD IT BE PROPER FOR THE ADMINISTRATIVE OFFICE TO PLACE HIM ON LEAVE THE ONE DAY, IN ORDER TO AVOID A BREAK IN SERVICE. SEE 18 COMP. GEN. 400, WHICH APPEARS TO SANCTION THIS PROCEDURE. PRESUMABLY THE NUMBER OF DAYS IS IMMATERIAL SO LONG AS THE BAILIFF HAS ANNUAL LEAVE TO HIS CREDIT TO COVER DAYS NOT ACTUALLY EMPLOYED.

(4) PRESUMABLY, IF A BREAK IN SERVICE OCCURS THROUGH NOT BEING EMPLOYED ON A WORK DAY OR FOR OTHER REASONS, AND THE BAILIFF IS NOT CARRIED IN A LEAVE STATUS, ALL ANNUAL LEAVE TO HIS CREDIT WILL BE FORFEITED. ASSUMING THAT MR. CRENSHAW'S POSITION IS SUSTAINED, AND THAT AN ACTUAL BREAK IN SERVICE THROUGH NONPERFORMANCE OF DUTIES OCCURS, FOR ONE OR MORE DAYS, AND THE BAILIFF THEREAFTER PERFORMS SERVICES ON EACH WORK DAY UNTIL THE MONTH REQUIRED BY SECTION 1 (E) OF THE REGULATIONS IS COMPLETED, THE BAILIFF AGAIN WILL BE CONSIDERED AS HAVING EARNED THE LEAVE WHICH ACCRUES FOR SAID PERIOD.

PRIOR TO THE ENACTMENT OF THE LEAVE LAWS, BAILIFFS WERE NOT CONSIDERED TO BE ENTITLED TO LEAVE, AND SINCE THAT DATE, THE QUESTION HAS NOT BEEN PRESENTED. IT, HOWEVER, IS OF SUCH MOMENT TO THE DEPARTMENT THAT INTERPRETATION OF THE REGULATIONS IS REQUESTED.

IN DECISION OF SEPTEMBER 9, 1938, 18 COMP. GEN. 225, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE PROVISIONS OF ANNUAL APPROPRIATION ACTS FOR SALARIES AND EXPENSES OF BAILIFFS (FOR THE CURRENT FISCAL YEAR, SEE ACT OF APRIL 27, 1938, 52 STAT. 268), SPECIFICALLY NEGATIVE PAYMENT OF PER DIEM COMPENSATION FOR HOLIDAYS EXCEPT UNDER THE CONDITIONS STATED IN THE SAID ACTS, AND HENCE BAILIFFS ARE NOT "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT," WITHIN THE MEANING OF THE ACT OF JUNE 29, 1938, 52 STAT. 1246, PROVIDING THE CONDITIONS FOR HOLIDAY COMPENSATION FOR "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT WHOSE COMPENSATION IS FIXED AT A RATE PER DAY," ETC., AND THE SAID ACT HAS NO APPLICATION TO THEM.

ACCORDINGLY, THE ASSUMPTION IN THE LAST SENTENCE OF THE FIRST PARAGRAPH OF YOUR LETTER IS CORRECT.

UNDER SECTION 715, REVISED STATUTES, AND THE ACT OF MARCH 3, 1905, 33 STAT. 1259 (28 U.S.C. 595), THE COMPENSATION OF BAILIFFS IS FIXED ON A PER DIEM BASIS FOR THE DAYS ACTUALLY EMPLOYED. SEE ALSO, INSTRUCTIONS TO UNITED STATES MARSHALS, JULY 1, 1934, SECTION 630, PAGE 117, DEPARTMENT OF JUSTICE ORDER NO. 3009, DATED JULY 30, 1937, AND 18 COMP. GEN. 768, 772.

SECTION 596, TITLE 28, U.S.C. PROVIDES:

PER DIEM OF BAILIFFS AND CRIERS: NO PER DIEM SHALL BE PAID TO ANY BAILIFF OR CRIER UNLESS THE COURT IS ACTUALLY IN SESSION AND THE JUDGE PRESENT AND PRESIDING OR PRESENT IN CHAMBERS ( FEB. 27, 1925, C. 364, TITLE II, 43 STAT. 1030).

THE APPROPRIATION ACT FOR THE CURRENT FISCAL YEAR APPROVED MAY 14, 1940, PUBLIC, NO. 508, 54 STAT. 204, CONTAINS THE FOLLOWING ITEM:

PAY AND EXPENSES OF BAILIFFS: FOR PAY OF BAILIFFS, NOT EXCEEDING THREE BAILIFFS IN EACH COURT, EXCEPT IN THE SOUTHERN DISTRICT OF NEW YORK AND THE NORTHERN DISTRICT OF ILLINOIS; AND MEALS AND LODGING OF BAILIFFS OR DEPUTY MARSHALS IN ATTENDANCE UPON JURIES IN UNITED STATES CASES, WHEN ORDERED BY THE COURT, $280,000: PROVIDED, THAT, EXCEPT IN THE CASE OF BAILIFFS IN CHARGE OF JURIES OVER SUNDAYS AND HOLIDAYS, NO PER DIEM SHALL BE PAID TO ANY BAILIFF UNLESS THE JUDGE IS PRESENT AND PRESIDING IN COURT OR PRESENT IN CHAMBERS: PROVIDED FURTHER, THAT NONE OF THIS APPROPRIATION SHALL BE USED FOR THE PAY OF BAILIFFS WHEN DEPUTY MARSHALS OR MARSHALS ARE AVAILABLE FOR THE DUTIES ORDINARILY EXECUTED BY BAILIFFS, THE FACT OF UNAVAILABILITY TO BE DETERMINED BY THE CERTIFICATE OF THE MARSHAL.

SECTION 1 (E) OF THE CURRENT ANNUAL AND SICK LEAVE REGULATIONS ( EXECUTIVE ORDERS NOS. 8384 AND 8385 DATED MARCH 29, 1940) PROVIDES:

INDEFINITE EMPLOYEES: THOSE APPOINTED FOR THE "DURATION OF THE JOB" AND THOSE, WHO, ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, ARE CONTINUOUSLY EMPLOYED OR REQUIRED TO BE AVAILABLE FOR DUTY FOR A PERIOD OF NOT LESS THAN ONE MONTH, AS DISTINGUISHED FROM PART-TIME OR INTERMITTENT EMPLOYEES.

IN DECISION OF MAY 27, 1938, 17 COMP. GEN. 1017, 1019, IT WAS STATED:

* * * THE APPARENT PURPOSE OF THE DEFINITION OF INDEFINITE EMPLOYEES ARE PRIMARILY TO DISTINGUISH BETWEEN EMPLOYEES WHO ARE REQUIRED TO BE AVAILABLE FOR DUTY DURING THE PERIOD OF THEIR INDEFINITE APPOINTMENTS ALTHOUGH PAID "ONLY WHEN ACTUALLY EMPLOYED," AND PART-TIME OR INTERMITTENT EMPLOYEES WHO ARE NOT REQUIRED TO BE AVAILABLE FOR DUTY EXCEPT DURING THE TIME THEY ACTUALLY WORK. * * *

UNDER THE CONTROLLING STATUTES BAILIFFS ARE NOT EMPLOYED FOR THE DURATION OF ANY JOB WITHIN THE MEANING OF THE QUOTED LEAVE REGULATIONS. THE APPROPRIATION ACT PROHIBITS PAYMENT OF THEIR PER DIEM COMPENSATION UNDER SPECIFIED CONDITIONS, NAMELY, (1) WHERE THE JUDGE IS NOT PRESENT AND PRESIDING IN COURT OR PRESENT IN CHAMBERS WITH THE EXCEPTION OF BAILIFFS IN CHARGE OF A JURY OVER SUNDAYS AND HOLIDAYS, AND (2) WHERE A DEPUTY MARSHALL OR MARSHALL IS AVAILABLE FOR PERFORMANCE OF THE SAME DUTIES. OTHER WORDS, BAILIFFS, ARE, FOR PRACTICAL PURPOSES,"EXTRAS," WHO ARE EMPLOYED FROM DAY TO DAY, WITHOUT TENURE OF EMPLOYMENT, AS THEIR SERVICES MAY BE REQUIRED. THEIR STATUS IS CLEARLY THAT OF PART-TIME OR INTERMITTENT EMPLOYEES AS DISTINGUISHED FROM "INDEFINITE EMPLOYEES" WITHIN THE MEANING OF THE LEAVE REGULATIONS, FOR THE REASON THAT THERE EXISTS NO STATUTORY IMPEDIMENT TO THE CONTINUOUS EMPLOYMENT OF "INDEFINITE EMPLOYEES" WHO, THEREFORE, MAY HAVE TENURE OF EMPLOYMENT.

I HAVE TO ADVISE, THEREFORE, THAT BAILIFFS ARE NOT ENTITLED TO THE BENEFITS OF ANNUAL OR SICK LEAVE OF ABSENCE BUT ARE EXCEPTED THEREFROM BY SECTION 19 (F) (2) OF THE ANNUAL LEAVE REGULATIONS AND SECTION 23 (G) (2) OF THE SICK LEAVE REGULATIONS. THIS ANSWER TO THE GENERAL QUESTION PRESENTED MAKES IT UNNECESSARY TO ANSWER QUESTIONS (1) TO (4), INCLUSIVE, OF YOUR LETTER.