B-122899, AUG. 22, 1955

B-122899: Aug 22, 1955

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

LISTING ADDITIONAL EXPENSES INCURRED IN CONNECTION WITH YOUR INTERIM EARNINGS DURING THE PERIOD YOU WERE SUSPENDED FROM YOUR POSITION WITH THE DEPARTMENT OF THE ARMY. WAS FORWARDED TO OUR OFFICE BY MR. YOU WERE SUSPENDED UNDER THE PROVISIONS OF THE ACT OF AUGUST 26. WERE SEPARATED JUNE 22. WERE RESTORED TO DUTY ON MARCH 7. THAT ANY PERSON WHOSE EMPLOYMENT IS SO SUSPENDED OR TERMINATED UNDER THE AUTHORITY OF THIS ACT MAY. IF SO REINSTATED OR RESTORED SHALL BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH SUSPENSION OR TERMINATION IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH SUSPENSION OR TERMINATION.

B-122899, AUG. 22, 1955

TO MR. WILLIAM SALTZMAN:

YOUR LETTER OF MAY 19, 1955, LISTING ADDITIONAL EXPENSES INCURRED IN CONNECTION WITH YOUR INTERIM EARNINGS DURING THE PERIOD YOU WERE SUSPENDED FROM YOUR POSITION WITH THE DEPARTMENT OF THE ARMY, SIGNAL CORPS ENGINEERING LABORATORIES, FORT MONMOUTH, NEW JERSEY, WAS FORWARDED TO OUR OFFICE BY MR. KATCHEN, YOUR ATTORNEY, ON MAY 24, 1955. THERE ALSO HAS BEEN REFERRED TO OUR OFFICE YOUR LETTER OF MAY 19, 1955, ADDRESSED TO MR. JOHN G. PALCHO, FINANCE CENTER, U.S. ARMY, INDIANAPOLIS, INDIANA, REQUESTING REVIEW OF THE ACTION TAKEN BY OUR OFFICE ON D.O. VOUCHER NO. 82625, MAY 4, 1955, IN DISALLOWING YOUR CLAIM FOR LEGAL AND OTHER EXPENSES INCURRED BY YOU IN DEFENDING YOURSELF AGAINST YOUR SUSPENSION FROM DUTY AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FORT MONMOUTH, NEW JERSEY.

THE RECORD SHOWS THAT ON JANUARY 25, 1951, YOU WERE SUSPENDED UNDER THE PROVISIONS OF THE ACT OF AUGUST 26, 1950, 64 STAT. 476, FOR SECURITY REASONS, AND WERE SEPARATED JUNE 22, 1951, BUT WERE RESTORED TO DUTY ON MARCH 7, 1952. THAT ACT PROVIDES IN PERTINENT PART 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 IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING 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 * * *.'

IN OUR DECISION OF FEBRUARY 15, 1955, B-122555, 34 COMP. GEN. 382, WHICH CONSIDERED THE QUESTION OF DEDUCTING FROM AN EMPLOYEE'S INTERIM EARNINGS THE EXPENSES INCURRED IN DEFENDING HIMSELF AGAINST A SUSPENSION UNDER THE ABOVE-CITED ACT, WE HELD AS FOLLOWS:

"* * * WITH RESPECT TO THE AMOUNTS CLAIMED BY THE EMPLOYEE AS REPRESENTING PROPER DEDUCTIONS IN ARRIVING AT HIS INTERIM NET EARNINGS, IT MAY BE STATED THAT OBVIOUSLY THE CONGRESS INTENDED, IN USING THE TERM "NET EARNINGS," TO ALLOW SOME DEDUCTIONS FROM TOTAL INTERIM EARNINGS. THERE IS NOTHING IN THE ACT, AND NEITHER HAS THERE BEEN FOUND ANYTHING IN ITS LEGISLATIVE HISTORY, TO IDENTIFY THESE DEDUCTIONS. IT APPEARS REASONABLE, HOWEVER, IN THE ABSENCE OF STATUTORY IDENTIFICATION, TO ALLOW AS DEDUCTIONS THE ORDINARY AND NECESSARY BUSINESS EXPENSES INCURRED IN CONNECTION WITH THE GROSS AMOUNT REPORTED BY THE EMPLOYEE AS EARNINGS DURING THE PERIOD OF HIS SUSPENSION. THE AMOUNT LISTED BY THE CLAIMANT AS LEGAL EXPENSES IS SHOWN AS "NON-BUSINESS DEDUCTIONS.' IT APPEARS FROM THE ENCLOSURES WITH YOUR LETTER THAT THESE ARE LEGAL EXPENSES INCURRED BY HIM IN DEFENDING AGAINST HIS SUSPENSION. ACCORDINGLY, THEY MAY NOT BE ALLOWED AS A DEDUCTION FROM HIS INTERIM EARNINGS. * * *"

IT IS YOUR CONTENTION AND THAT OF YOUR ATTORNEY THAT THE DISALLOWANCE OF THE LEGAL FEES IN YOUR CASE IS CONTRARY TO THE ACTION TAKEN BY OUR CLAIMS DIVISION IN THE SETTLEMENT OF THE CLAIM OF ALBERT FISCHLER INVOLVING A SIMILAR SITUATION. THE ACTION TAKEN IN MR. FISCHLER'S CASE WAS PRIOR TO OUR DECISION OF FEBRUARY 15, 1955, AND WAS BASED ON AN ERRONEOUS INTERPRETATION BY OUR CLAIMS DIVISION OF WHAT ITEMS WERE TO BE CONSIDERED AS REPRESENTING PROPER DEDUCTIONS IN ARRIVING AT AN EMPLOYEE'S INTERIM NET EARINGS. THE ERRONEOUS ACTION TAKEN IN HIS CASE BY OUR CLAIMS DIVISION MAY NOT BE USED AS A PRECEDENT FOR THE ALLOWANCE OF YOUR CLAIM. IN THAT CONNECTION, WE SAID IN 20 COMP. GEN. 403, BEGINNING AT FOOT OF PAGE 405," * * * THAT THE ACTION OF THE GENERAL ACCOUNTING OFFICE IN THE AUDIT OR SETTLEMENT OF AN ACCOUNT OR CLAIM DOES NOT CONSTITUTE A DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES SUCH AD ADMINISTRATIVE AND DISBURSING OFFICERS ARE AUTHORIZED TO ACCEPT AS GUIDES AND PRECEDENTS IN OBLIGATING AND DISBURSING PUBLIC MONEYS.' TO LIKE EFFECT SEE 23 COMP. GEN. 310. ACCORDINGLY, IN LINE WITH OUR DECISION OF FEBRUARY 15, 1955, ABOVE REFERRED TO, THE DISALLOWANCE OF YOUR CLAIM FOR LEGAL AND OTHER EXPENSES INCURRED BY YOU IN DEFENDING YOURSELF AGAINST YOUR SUSPENSION MUST BE AND IS SUSTAINED.

CONCERNING YOUR CLAIM FOR ADDITIONAL EXPENSES OF $360 INCURRED BY YOU FOR TOOLS, INSTRUMENTS, AND SUPPLIES INCIDENT TO YOUR INTERIM EARNINGS, IT WILL BE NECESSARY FOR YOU TO SUBMIT RECEIPTS OR OTHER DOCUMENTS WHICH ITEMIZE THE EXPENDITURES AND SHOW THE DATES THE ITEMS WERE PURCHASED--- INCLUDING THEIR SALVAGE VALUE AT TIME OF YOUR RESTORATION TO DUTY--- BEFORE FURTHER ACTION MAY BE TAKEN ON THAT PART OF YOUR CLAIM.