B-130710, MAY 2, 1957

B-130710: May 2, 1957

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THE FACTS CONCERNING THE EMPLOYEE'S SUSPENSION ARE AS FOLLOWS: ON DECEMBER 13. CHARGES WERE MAILED TO HIM. HE WAS NOTIFIED BY STANDARD FORM NO. 50. THAT EFFECTIVE THAT DATE HE WAS SUSPENDED FOR A PERIOD NOT TO EXCEED THIRTY DAYS. WAS INTOXICATION WHILE ON DUTY IN THE ENGINE ROOM OF HIS SHIP. IT WAS ADMINISTRATIVELY DETERMINED THAT THE EMPLOYEE'S CONTINUED EMPLOYMENT ON BOARD SHIP CONSTITUTED A HAZARD WHICH COULD NOT BE ACCEPTED. THE LETTER OF CHARGES AND NOTICE WAS NOT RECEIVED BY THE EMPLOYEE UNTIL DECEMBER 21. IT WAS ADMINISTRATIVELY DETERMINED THAT HE COULD BE ASSIGNED TO DUTY ON A SHIP WHERE STRICT SUPERVISION OF HIS ACTIVITIES COULD BE MAINTAINED AND ON JANUARY 13. HE WAS SO ASSIGNED TO DUTY ON A SHIP FOR THE REMAINDER OF THE NOTICE PERIOD.

B-130710, MAY 2, 1957

TO THE SECRETARY OF THE NAVY:

ON JANUARY 24, 1957, REAR ADMIRAL R. MASON, COMMANDER, MILITARY SEA TRANSPORTATION SERVICE, ATLANTIC AREA--- FILE REFERENCE L-123---, REQUESTED OUR DECISION CONCERNING THE PROPRIETY OF MAKING PAYMENT TO A FORMER EMPLOYEE OF THE SERVICE, FOR THE PERIOD OF HIS SUSPENSION FROM DECEMBER 13, 1955, THROUGH JANUARY 11, 1956.

THE FACTS CONCERNING THE EMPLOYEE'S SUSPENSION ARE AS FOLLOWS: ON DECEMBER 13, 1955, CHARGES WERE MAILED TO HIM, WHICH, IF SUBSTANTIATED, WOULD RESULT IN HIS REMOVAL FROM HIS POSITION AS FIREMAN-WATER TENDER FOR UNSATISFACTORY SERVICE. SIMULTANEOUSLY, BECAUSE NO SUITABLE ASSIGNMENT ASHORE EXISTED, HE WAS NOTIFIED BY STANDARD FORM NO. 50, DATED DECEMBER 13, 1955, THAT EFFECTIVE THAT DATE HE WAS SUSPENDED FOR A PERIOD NOT TO EXCEED THIRTY DAYS. THE EMPLOYEE'S MOST RECENT OFFENSE, PRIOR TO THE ISSUANCE OF THE AFOREMENTIONED CHARGE, WAS INTOXICATION WHILE ON DUTY IN THE ENGINE ROOM OF HIS SHIP. IT WAS ADMINISTRATIVELY DETERMINED THAT THE EMPLOYEE'S CONTINUED EMPLOYMENT ON BOARD SHIP CONSTITUTED A HAZARD WHICH COULD NOT BE ACCEPTED. THE LETTER OF CHARGES AND NOTICE WAS NOT RECEIVED BY THE EMPLOYEE UNTIL DECEMBER 21, 1955. SUBSEQUENTLY, IT WAS ADMINISTRATIVELY DETERMINED THAT HE COULD BE ASSIGNED TO DUTY ON A SHIP WHERE STRICT SUPERVISION OF HIS ACTIVITIES COULD BE MAINTAINED AND ON JANUARY 13, 1956, HE WAS SO ASSIGNED TO DUTY ON A SHIP FOR THE REMAINDER OF THE NOTICE PERIOD. HE WAS REMOVED FROM THE SERVICE, EFFECTIVE APRIL 3, 1956.

UPON APPEAL TO THE DIRECTOR, SECOND U.S. CIVIL SERVICE REGION, THE AGENCY'S ACTION IN REMOVING THE EMPLOYEE WAS SUSTAINED BUT IT WAS DETERMINED THAT THE SUSPENSION WAS IN ERROR BECAUSE OF ADMINISTRATIVE FAILURE TO COMPLY WITH CIVIL SERVICE REGULATIONS, SECTION 9.102, 5 CFR 9.102, WHICH REQUIRES NOTICE OF AN EMERGENCY SUSPENSION, AN OPPORTUNITY TO REPLY TO SUCH NOTICE, AND A DECISION ON THE EMPLOYEE'S REPLY. ACCORDINGLY, THE DIRECTOR, SECOND U.S. CIVIL SERVICE REGION ORDERED THE EMPLOYEE BE RESTORED FOR THE PERIOD OF THE SUSPENSION. THE SERVICE APPEALED THIS PART OF THE DECISION SUBMITTING THAT CIVIL SERVICE REGULATION, SECTION 9.102, DOES NOT APPLY TO EMPLOYEES IN THE EXCEPTED SERVICE. THE COMMISSIONERS OF THE CIVIL SERVICE COMMISSION AGREED WITH THIS ARGUMENT BUT FOUND THAT THE EMPLOYEE HAD BEEN SUSPENDED CONTRARY TO SECTION 22.204 OF THE CIVIL SERVICE REGULATIONS, WHICH REQUIRES THAT A VETERAN EMPLOYEE BE GIVEN TWENTY-FOUR HOURS NOTICE OF AN EMERGENCY SUSPENSION. BY LETTER DATED JANUARY 8, 1957, THE SERVICE WAS ADVISED BY THE CHAIRMAN, BOARD OF APPEALS AND REVIEW, TO TAKE ACTION TO CORRECT THE RECORDS TO SHOW THE EMPLOYEE IN A DUTY STATUS FROM DECEMBER 13, 1955, THROUGH JANUARY 11, 1956.

THE SERVICE CONTENDS THAT THE EMPLOYEE WAS NOT SUSPENDED UNDER SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 58 STAT. 387, 5 U.S.C. 863, BECAUSE THAT SECTION APPLIES ONLY TO SUSPENSIONS OF MORE THAN THIRTY DAYS AND THAT HE WAS AT NO TIME SUSPENDED FOR MORE THAN THIRTY DAYS. ALSO, IT SUBMITS THAT HE WAS NOT REINSTATED OR RESTORED TO DUTY AS CONTEMPLATED BY PUBLIC LAW NO. 623, 80TH CONGRESS, 62 STAT. 354, 5 U.S.C. 652. CONCERNING THE PROCEDURAL DEFECT NOTED BY THE COMMISSIONERS, I.E., THE FAILURE TO GIVE TWENTY-FOUR HOURS NOTICE OF THE PROPOSED SUSPENSION, THE SERVICE URGES THAT THIS NOTICE REQUIREMENT IS NOT TO BE FOUND IN THE VETERANS PREFERENCE ACT, AS AMENDED, AND, ALSO, THAT THE NOTICE AFFORDS NO SUBSTANTIAL RIGHTS SAVE THE REQUIREMENT TO BE INFORMED OF A PROPOSED SUSPENSION. IT IS FURTHER ADVANCED THAT UNDER THE CIVIL SERVICE COMMISSION'S REGULATIONS, NOTICE PERIODS COMMENCE TWENTY-FOUR HOURS AFTER THE RECEIPT OF THE LETTER OF CHARGES AND, CONSEQUENTLY, THE EMPLOYEE'S THIRTY DAYS NOTICE PERIOD COMMENCED ON DECEMBER 23, 1955, OR TWENTY FOUR HOURS AFTER RECEIPT OF THE CHARGES.

IN SUMMARY, THE CONTENTION OF THE SERVICE IS THAT SINCE THE EMPLOYEE WAS NOT ACTUALLY SUSPENDED WITHIN THE PURVIEW OF SECTION 14 OF THE VETERANS PREFERENCE ACT, AS AMENDED, AND FURTHER, SINCE THE CONDITIONS PRECEDENT TO COMPENSATION UNDER PUBLIC LAW 623 ARE NOT PRESENT BECAUSE HE WAS NOT REINSTATED OR RESTORED TO DUTY, NO AUTHORITY EXISTS TO EFFECT PAYMENT TO THE EMPLOYEE FOR THE PERIOD OF SUSPENSION.

SECTION 14 OF THE VETERANS PREFERENCE ACT DOES NOT EXPRESSLY REQUIRE NOTICE WHERE THE ADVERSE ACTION TO BE TAKEN IS A SUSPENSION FROM DUTY FOR THIRTY DAYS OR LESS FOR DISCIPLINARY REASONS. NEITHER DO THE CIVIL SERVICE REGULATIONS REQUIRE NOTICE IN SUCH ADVERSE ACTIONS WHERE EXCEPTED EMPLOYEES ARE CONCERNED. WHERE, HOWEVER, THE PERIOD OF SUSPENSION IS FOR MORE THAN THIRTY DAYS, OR IS ASSOCIATED WITH AN ADMINISTRATIVE ACTION LOOKING TOWARD THE EMPLOYEE'S REMOVAL FROM THE SERVICE, THE COMMISSION UNDER APPROPRIATE STATUTORY AUTHORITY (SECTION 11, VETERANS PREFERENCE ACT OF 1944), IS AUTHORIZED TO REGULATE AND HAS SO REGULATED IN SECTION 22.204 OF ITS REGULATIONS REGARDING NOTICE OF TWENTY-FOUR HOURS IN EMERGENCY CASES REQUIRING SUSPENSION.

WHILE IT SEEMS THAT THE ACTUAL NOTICE PURPORTING TO SUSPEND THE EMPLOYEE ON DECEMBER 13, 1955, MIGHT HAVE BEEN CONSTRUED BY THE COMMISSION AS MEETING THE NOTICE REQUIREMENT OF REGULATION 22.204, TWENTY-FOUR HOURS AFTER ITS RECEIPT BY THE EMPLOYEE ON DECEMBER 21, 1955, WE CANNOT SAY AS A MATTER OF LAW THAT THE COMMISSION ERRED IN HOLDING THE ERRONEOUS NOTICE TO BE VOID FOR ANY PURPOSE THROUGHOUT THE SUSPENSION PERIOD.

ACCORDINGLY, SINCE THE COMMISSION DIRECTED THAT THE EMPLOYEE BE SHOWN AS IN AN ACTIVE DUTY STATUS DURING THE PERIOD DECEMBER 13, 1955, TO JANUARY 11, 1956, BECAUSE OF THE ADMINISTRATIVE VIOLATION OF A VALID REGULATION, WE CONCLUDE THAT THE EMPLOYEE IS ENTITLED TO COMPENSATION FOR THE PERIOD INVOLVED.