B-125762, NOV. 19, 1957

B-125762, NOV. 19, 1957

TO THE SECRETARY OF AGRICULTURE:

ON OCTOBER 8, 1957, YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR ADVICE WHETHER YOUR ADMINISTRATIVE REGULATIONS (7AR FISCAL, CHAPTER 3, SUBSECTION 7, PARAGRAPHS 350 TO 352) ARE ADEQUATE WHERE "INTERIM COMPENSATION" IS INVOLVED. THESE REGULATIONS PERTAIN TO COMPENSATION FOR PERIODS OF UNJUSTIFIED SEPARATION OR SUSPENSION UNDER THE ACT OF JUNE 10, 1948, 5 U.S.C. 652, OR THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1. A COPY OF SUCH REGULATIONS ACCOMPANIED THE LETTER OF OCTOBER 8.

THE ASSISTANT SECRETARY REFERS TO OUR DECISION OF AUGUST 26, 1957, B- 132700, WHEREIN WE ADVISED A CERTIFYING OFFICER OF THE SOIL CONSERVATION SERVICE CONCERNING HIS COMPUTATION OF THE BACK PAY DUE AN EMPLOYEE UNDER THE 1948 ACT. YOUR PRESENT QUESTION ARISES BECAUSE OF AN ADMINISTRATIVE DOUBT REGARDING THE DISTINCTION TO BE DRAWN BETWEEN OUR DECISIONS OF AUGUST 26, 1957, B-132700, AND OF FEBRUARY 14, 1956, B-125762 (35 COMP. GEN. 452).

THE PRINCIPAL QUESTION PRESENTED BY THE CERTIFYING OFFICER IN B 132700 CONCERNED CERTAIN ITEMS OF EXPENSE CLAIMED BY THE EMPLOYEE IN COMPUTING HIS INTERIM NET EARNINGS. ON THE VOUCHER, THE TABULATION OF THE PAY WAS INCOMPLETE--- NONE OF THE INTERIM EARNINGS HAVING BEEN DEDUCTED BY THE CERTIFYING OFFICER BECAUSE THE EMPLOYEE CLAIMED EXPENSES EXCEEDING HIS GROSS INTERIM EARNINGS. IN THE SECOND PARAGRAPH OF THAT DECISION, HOWEVER, WE INFORMED THE CERTIFYING OFFICER THAT THE EMPLOYEE'S RETIREMENT, TAX, AND INSURANCE CONTRIBUTIONS SHOULD BE COMPUTED ON THE GROSS BACK PAY, BEFORE SUBTRACTING HIS EARNINGS FROM OTHER EMPLOYMENT. THAT ADVICE, HOWEVER, MUST BE REGARDED AS DICTA SO FAR AS THE ISSUES IN THE CASE ARE CONCERNED AND IT DOES NOT UNDERTAKE TO MODIFY OUR DECISION, B -125762, WHICH PRIMARILY DEALT WITH TAX DEDUCTIONS IN CONNECTION WITH LUMP -SUM PAYMENTS FOR LEAVE. TO REMOVE ANY DOUBT AS TO THE PROPER PROCEDURE, INTERIM NET EARNINGS, IF ANY, MUST BE DEDUCTED FROM THE GROSS AMOUNT OF SALARY COVERING THE PERIOD OF SUSPENSION OR SEPARATION AND TAX WITHHELD ONLY ON THE REMAINDER.

AS TO YOUR SPECIFIC QUESTION, NAMELY, WHETHER YOUR REGULATIONS ARE ADEQUATE WHERE INTERIM COMPENSATION IS INVOLVED UNDER THE BACK PAY STATUTES, WE NOTE THAT PARAGRAPHS 7AR351 (C) (2) AND 8AH223D (2) PROVIDE THAT THE "GROSS AMOUNT" OF INTERIM EARNINGS "SHOULD BE DEDUCTED FROM THE GROSS AMOUNT OTHERWISE DUE THE EMPLOYEE.' IN OUR DECISION OF NOVEMBER 3, 1955, B-125362 (35 COMP. GEN. 268), WE CONCLUDED THAT IN BOTH THE 1950 ACT AND THE 1948 ACT THE LANGUAGE REFERRING TO EARNINGS CONTEMPLATED INTERIM NET EARNINGS. THEREFORE, WE RECOMMEND THAT THE TERM "GROSS AMOUNT" USED IN THE REGULATIONS IN REFERRING TO EARNINGS FROM OTHER EMPLOYMENT BE CLEARLY SHOWN TO MEAN ,INTERIM NET EARNINGS.'

THE FOREGOING ANSWERS THE SPECIFIC QUESTIONS RAISED BY YOUR ASSISTANT SECRETARY'S LETTER.