B-122346, FEBRUARY 16, 1955, 34 COMP. GEN. 384

B-122346, FEBRUARY 16, 1955, 34 COMP. GEN. 384

OFFICERS AND EMPLOYEES - DISCHARGES AND DISMISSALS - COMPENSATION OUTSIDE EARNINGS DEDUCTIONS MONEY PAID TO EMPLOYEE FOR SCIENTIFIC ARTICLE PREPARED BY HIM DURING PERIOD OF ERRONEOUS REMOVAL FROM OFFICE IS NOT INCOME FROM "OTHER EMPLOYMENT" REQUIRED BY SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, TO BE DEDUCTED FROM THE COMPENSATION DUE EMPLOYEE FOR THE PERIOD OF THE UNJUSTIFIED REMOVAL.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LIEUTENANT E. E. MCGUIRE, FEBRUARY 16, 1955:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 16, 1954, CODE 620: EVT DIS. SER. 41-55, SUBMITTING A PAYROLL VOUCHER IN FAVOR OF MR. LOUIS A. POST FOR $1,688.22, REPRESENTING A PROPOSED PAYMENT OF COMPENSATION UNDER THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, 62 STAT. 354, 5 U.S.C. 652, FOR THE PERIOD OF HIS REMOVAL FROM SERVICE AS AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY. YOU REQUEST A DECISION "CONCERNING THE VALIDITY AND CORRECTNESS" OF THE PROPOSED PAYMENT.

THE EMPLOYEE WAS SEPARATED AT CLOSE OF BUSINESS ON JULY 23, 1954, AND PURSUANT TO THE DECISION OF THE SECRETARY OF THE NAVY, HE WAS RESTORED TO DUTY EFFECTIVE DECEMBER 6, 1954.

SECTION 6 (B) OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (B), PROVIDES THAT ANY PERSON IN THE CLASSIFIED CIVIL SERVICE, WHO IS REINSTATED OR RESTORED TO DUTY--- AFTER A PERIOD OF REMOVAL OR SUSPENSION WITHOUT PAY UNDER SUBSECTION (A/--- UPON THE GROUND THAT HIS REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION FOR SUCH PERIOD AT THE RATE RECEIVED ON THE DATE 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.'

AMONG THE PAPERS ACCOMPANYING THE VOUCHER IS AN AFFIDAVIT BY THE EMPLOYEE TO THE EFFECT THAT HE RECEIVED NO COMPENSATION OR EARNINGS DURING THE PERIOD OF HIS REMOVAL OTHER THAN $35 PAID HIM BY SCIENCE DIGEST FOR PUBLICATION OF AN ARTICLE PREPARED BY HIM AND WHICH NORMALLY WOULD HAVE BEEN PREPARED DURING OFF-DUTY HOURS HAD HE BEEN EMPLOYED AT THE HYDROGRAPHIC OFFICE DURING THE PERIOD OF SUSPENSION. YOUR DOUBT IN THIS MATTER APPEARS TO BE WHETHER THAT AMOUNT SHOULD BE DEDUCTED FROM THE COMPENSATION FOUND DUE FOR THE PERIOD OF THE UNJUSTIFIED REMOVAL.

IT APPEARS THAT YOUR ADMINISTRATIVE OFFICE REGARDS SUCH INCOME AS NOT "AN EARNING RESULTING DIRECTLY FROM HIS SEPARATION," AND IT IS PROPOSED NOT TO DEDUCT THE AMOUNT THEREOF FROM THE AMOUNT OF COMPENSATION FOUND DUE UNDER THE CITED ACT. IN THAT RESPECT THE ACT REQUIRES THE DEDUCTION OF ,ANY AMOUNTS EARNED BY HIM THROUGH OTHER EMPLOYMENT.' SUCH PROVISION IS VIEWED BY US AS REFERRING TO INCOME FROM EMPLOYMENT OBTAINED TO TAKE THE PLACE OF THAT HE HAD PRIOR TO HIS SUSPENSION OR REMOVAL; THE NATURE OF THE SERVICES RENDERED FOR THE AMOUNT OF $35 DOES NOT APPEAR TO HAVE BEEN ,OTHER EMPLOYMENT" AS CONTEMPLATED IN THE ACT. SEE 32 COMP. GEN. 408; JACKSON V. UNITED STATES, 121 C.1CLS. 405.

ACCORDINGLY, THE EXCLUSION OF THE AMOUNT OF $35, IN COMPUTING THE DEDUCTIONS TO BE MADE FROM COMPENSATION PAYABLE UNDER THE ACT OF 1948, APPEARS PROPER; HENCE, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE PROCESSED FOR PAYMENT IF OTHERWISE CORRECT.