B-134210, JAN. 2, 1958

B-134210: Jan 2, 1958

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IN FAVOR OF A FORMER EMPLOYEE WHOSE POSITION WAS MAIL CLERK (GS-2) IN THE PUBLIC HOUSING ADMINISTRATION. THE RECORD SHOWS THE EMPLOYEE WAS SUSPENDED FROM DUTY ON DECEMBER 21. HE WAS CHARGED WITH OPERATION OF A LOTTERY ON GOVERNMENT PREMISES. THE EMPLOYEE WAS GIVEN WRITTEN NOTICE OF PROPOSED ADVERSE ACTION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT. THAT THE NOTICE WAS NOT COMMUNICATED TO THE EMPLOYEE UNTIL JULY 6. ON THE BASIS OF THAT NOTICE THE EMPLOYEE WAS REMOVED EFFECTIVE C.O.B. IT RECOMMENDED ONLY THAT THE PUBLIC HOUSING ADMINISTRATION "CORRECT ITS PERSONNEL RECORDS SO AS TO REFLECT THAT (THE EMPLOYEE) WAS IN AN ACTIVE DUTY STATUS BETWEEN JULY 2. WAS RELIED UPON ADMINISTRATIVELY AS AUTHORITY FOR THE SUSPENSION OF DECEMBER 21.

B-134210, JAN. 2, 1958

TO MRS. L. P. KELLS, AUTHORIZED CERTIFYING OFFICER, PUBLIC HOUSING ADMINISTRATION:

YOUR UNDATED LETTER RECEIVED HERE OCTOBER 25, 1957, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE ENCLOSED PAYROLL VOUCHER FOR $322.86, REPRESENTING SALARY AT THE RATE OF $3,230 PER ANNUM FOR THE PERIOD JULY 2 THROUGH AUGUST 6, 1954, IN FAVOR OF A FORMER EMPLOYEE WHOSE POSITION WAS MAIL CLERK (GS-2) IN THE PUBLIC HOUSING ADMINISTRATION. ALSO, ON NOVEMBER 29, 1957, THE PUBLIC HOUSING ADMINISTRATION FURNISHED US COPIES OF THE DOCUMENTS COMPRISING THE PROCEEDINGS BEFORE THE UNITED STATES CIVIL SERVICE COMMISSION IN THE MATTER.

THE RECORD SHOWS THE EMPLOYEE WAS SUSPENDED FROM DUTY ON DECEMBER 21, 1953, ON SECURITY GROUNDS UNDER AUTHORITY OF THE ACT OF AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. 22-1, AND EXECUTIVE ORDER NO. 10450. HE WAS CHARGED WITH OPERATION OF A LOTTERY ON GOVERNMENT PREMISES, DURING OFFICIAL DUTY HOURS, AND WITHOUT APPROPRIATE CHARGE TO ANNUAL LEAVE FOR HIS ABSENCES FROM HIS POST OF DUTY WHILE ENGAGING IN SUCH ACTIVITIES. YOU SAY THAT ON JULY 2, 1954, WHILE STILL IN SUSPENSION STATUS, THE EMPLOYEE WAS GIVEN WRITTEN NOTICE OF PROPOSED ADVERSE ACTION UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT, 5 U.S.C. 863, PROPOSING TO REMOVE HIM NOT LESS THAN 30 DAYS FROM RECEIPT OF THAT NOTICE, ON THE SAME CHARGES. THE NOTICE OF JULY 2 ADVISED THE EMPLOYEE THAT, PENDING FINAL DECISION, HE WOULD REMAIN IN HIS STATUS OF SUSPENSION UNDER EXECUTIVE ORDER NO. 10450. THE EVIDENCE OF RECORD INDICATES, HOWEVER, THAT THE NOTICE WAS NOT COMMUNICATED TO THE EMPLOYEE UNTIL JULY 6, 1954. ON THE BASIS OF THAT NOTICE THE EMPLOYEE WAS REMOVED EFFECTIVE C.O.B. AUGUST 6, 1954.

AS A PREFERENCE ELIGIBLE UNDER SECTION 14, THE EMPLOYEE APPEALED HIS CASE TO THE CIVIL SERVICE COMMISSION, WHOSE FINAL DECISION DATED MARCH 6, 1957, SUSTAINED THE REMOVAL ACTION FOR THE REASONS CHARGED, BUT, IN THE EMPLOYEE'S FAVOR, IT RECOMMENDED ONLY THAT THE PUBLIC HOUSING ADMINISTRATION "CORRECT ITS PERSONNEL RECORDS SO AS TO REFLECT THAT (THE EMPLOYEE) WAS IN AN ACTIVE DUTY STATUS BETWEEN JULY 2, 1954 AND AUGUST 6, 1954, INCLUSIVE.'

WHILE IT MAY BE AS YOU SAY THAT THE ACT OF AUGUST 26, 1950, WAS RELIED UPON ADMINISTRATIVELY AS AUTHORITY FOR THE SUSPENSION OF DECEMBER 21, 1953, THE LETTER OF NOVEMBER 29, 1957, FROM YOUR AGENCY SAYS THAT THE POSITION OCCUPIED BY THE SUBJECT EMPLOYEE HAS NOT BEEN DESIGNATED AS A ,SENSITIVE POSITION.' IN THAT REGARD, SEE THE SUPREME COURT'S DECISION IN THE CASE OF COLE V. UNITED STATES, 351 U.S. 536, HOLDING THAT THE SUMMARY SUSPENSION AND DISMISSAL PROCEDURES OF EXECUTIVE ORDER NO. 10450 AND THE ACT OF AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. 22-1, ET SEQ., COULD NOT BE EXTENDED TO EMPLOYEES IN NONSENSITIVE POSITIONS. HENCE, WE HELD THE 1950 ACT IS NOT CONTROLLING SO FAR AS CONCERNS THE DISPOSITION OF THE BACK PAY FOR THE STATUTORY PERIOD OF NOTICE UNDER THE VETERANS' PREFERENCE ACT.

UNDER THE VETERANS' PREFERENCE ACT IT IS MANDATORY THAT THE ADMINISTRATIVE OFFICER CONCERNED TAKE SUCH CORRECTIVE ACTION AS THE COMMISSION FINALLY RECOMMENDS. THE RECORD SHOWS THE EMPLOYEE HERE INVOLVED WAS, BY ADMINISTRATIVE ACTION DATED MARCH 14, 1957, PLACED IN "ACTIVE DUTY STATUS BETWEEN JULY 2, 1954 AND AUGUST 6, 1954, INCLUSIVE.' THE EMPLOYEE, HOWEVER, DID NOT PERFORM DUTY DURING THAT PERIOD OF TIME. OUR VIEW IS THAT IN ACCORDANCE WITH SECTION 14 OF THE VETERANS' PREFERENCE ACT AND THE ACT OF JUNE 10, 1948, 5 U.S.C. 652 (B) (2), THE EMPLOYEE BECAME ENTITLED TO COMPENSATION FOR THE 30-DAY NOTICE PERIOD JULY 7 THROUGH AUGUST 5, 1954. B-134042, DECEMBER 30, 1957, COPY ATTACHED. SEE GENERALLY TAYLOR V. UNITED STATES, 131 C.CLS. 387; 34 COMP. GEN. 568; 33 ID. 295. ADDITIONALLY SEE 29 COMP. GEN. 320 CONCERNING INTERIM NET EARNINGS DEDUCTIONS.

THE VOUCHER IS RETURNED HEREWITH AND ACTION THEREON SHOULD BE TAKEN ACCORDING TO OUR HOLDING ABOVE.