B-143598, SEP. 14, 1960

B-143598: Sep 14, 1960

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FOR EITHER RESTORATION OF THE ANNUAL LEAVE HE WAS FORCED TO TAKE BETWEEN MAY 4 AND JUNE 22. THE FACTS REPORTED ARE THAT MR. WAS INVOLVED IN AN ALTERCATION DURING WHICH A PRISONER DIED AND THAT THE DIRECTOR OF THE DEPARTMENT OF CORRECTIONS DEEMED IT ADVISABLE TO PLACE HIM ON ENFORCED ANNUAL LEAVE DURING THE INVESTIGATION OF THE CIRCUMSTANCES SURROUNDING THE PRISONER'S DEATH BECAUSE OF THE PUBLICITY RECEIVED BY THE INCIDENT. KIRKPATRICK WAS RETURNED TO DUTY ON JUNE 22. THE FIRST QUESTION SUBMITTED IS: "WAS THE ACTION TAKEN BY THE DIRECTOR. KIRKPATRICK ON ANNUAL LEAVE ILLEGAL AT THE TIME THE ACTION WAS TAKEN? THIS QUESTION IS RAISED IN VIEW OF THE DECISION OF THE COMPTROLLER GENERAL DATED SEPTEMBER 11.

B-143598, SEP. 14, 1960

TO HONORABLE ROBERT E. MCLAUGHLIN, PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF OLUMBIA:

ON JULY 22, 1960, THE ACTING PRESIDENT OF THE BOARD OF COMMISSIONERS SUBMITTED THREE QUESTIONS TO US RELATING TO THE CLAIM OF MR. JAMES E. KIRKPATRICK, AN EMPLOYEE OF THE DEPARTMENT OF CORRECTIONS OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, FOR EITHER RESTORATION OF THE ANNUAL LEAVE HE WAS FORCED TO TAKE BETWEEN MAY 4 AND JUNE 22, 1950, OR REIMBURSEMENT FOR THE LEAVE CHARGED HIM AT THAT TIME.

THE FACTS REPORTED ARE THAT MR. KIRKPATRICK, WHILE ON DUTY AS A PRISON GUARD, WAS INVOLVED IN AN ALTERCATION DURING WHICH A PRISONER DIED AND THAT THE DIRECTOR OF THE DEPARTMENT OF CORRECTIONS DEEMED IT ADVISABLE TO PLACE HIM ON ENFORCED ANNUAL LEAVE DURING THE INVESTIGATION OF THE CIRCUMSTANCES SURROUNDING THE PRISONER'S DEATH BECAUSE OF THE PUBLICITY RECEIVED BY THE INCIDENT. AFTER CONSIDERABLE DELAY THE DISTRICT CORONER RULED THAT THE DEATH OF THE PRISONER RESULTED FROM NATURAL CAUSES AND NOT FROM ANY ACTION OF MR. KIRKPATRICK. MR. KIRKPATRICK WAS RETURNED TO DUTY ON JUNE 22, 1950.

THE FIRST QUESTION SUBMITTED IS:

"WAS THE ACTION TAKEN BY THE DIRECTOR, DEPARTMENT OF CORRECTIONS, ON MAY 4, 1950, IN PLACING MR. KIRKPATRICK ON ANNUAL LEAVE ILLEGAL AT THE TIME THE ACTION WAS TAKEN? THIS QUESTION IS RAISED IN VIEW OF THE DECISION OF THE COMPTROLLER GENERAL DATED SEPTEMBER 11, 1958, B-135906 (38 CG (.'

IN VIEW OF THE STATEMENTS BY THE ACTING PRESIDENT THAT MR. KIRKPATRICK WAS APPARENTLY READY AND ABLE TO PERFORM HIS DUTIES DURING THE PERIOD OF ENFORCED ANNUAL LEAVE AND THAT HE WAS PLACED ON SUCH LEAVE BECAUSE OF THE NOTORIETY OF THE INCIDENT IN WHICH HE WAS INVOLVED, WE FEEL THAT PLACING HIM ON LEAVE WOULD NOT HAVE BEEN CONSIDERED TO BE PROPER UNDER 38 COMP. GEN. 203. HOWEVER, OUR ORIGINAL CONSTRUCTION OF THE ACT OF JUNE 10, 1948, 62 STAT. 623, 5 U.S.C. 652, AND SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944, AS AMENDED, 5 U.S.C. 863, WAS THAT PLACING AN EMPLOYEE ON ENFORCED ANNUAL LEAVE WAS NOT TANTAMOUNT TO A SUSPENSION WITHOUT PAY. COMP. GEN. 38. THAT CONSTRUCTION WAS NOT CHANGED BY US UNTIL OUR DECISION IN 36 COMP. GEN. 779, FOLLOWING THE DECISIONS OF THE COURT OF CLAIMS IN TAYLOR V. UNITED STATES, 131 CT.CL. 387, AND MCTIERNAN V. UNITED STATES, 135 CT.CL. 82. THEREFORE, THE ACTION IN PLACING MR. KIRKPATRICK ON ANNUAL LEAVE WAS IN ACCORDANCE WITH THE APPLICABLE STATUTES AS CONSTRUED AT THAT TIME.

THE ACTING PRESIDENT'S SECOND QUESTION IS:

"IF IT IS RULED THAT THE ACTION TAKEN ON MAY 4, 1950, WAS ILLEGAL, MAY RESTITUTION BE MADE TO THE EMPLOYEE IN VIEW OF THE FACT THAT A CLAIM WAS NOT FILED BY THE EMPLOYEE UNTIL MARCH 23, 1960--- APPROXIMATELY NINE AND THREE-QUARTERS YEARS AFTER THE AGENCY'S ACTION?

IN THAT REGARD WE DIRECT YOUR ATTENTION TO SECTION 12-201 OF THE DISTRICT OF COLUMBIA CODE WHICH PROVIDES IN PART THAT:

"* * * NO ACTION THE LIMITATION OF WHICH IS NOT OTHERWISE SPECIFICALLY PRESCRIBED IN THIS SECTION SHALL BE BROUGHT AFTER THREE YEARS FROM THE TIME WHEN THE RIGHT TO MAINTAIN SUCH ACTION SHALL HAVE ACCRUED; * * *.'

THE AUTHORITY OF THE BOARD OF COMMISSIONERS TO SETTLE CERTAIN CLAIMS AGAINST THE DISTRICT OF COLUMBIA IS GRANTED BY THE ACT OF FEBRUARY 11, 1929, PUBLIC LAW 719, SECTIONS 1-901 TO 1-905 OF THE DISTRICT OF COLUMBIA CODE. SECTION 1-903 PROVIDES THAT THE AUTHORITY GRANTED THE BOARD OF COMMISSIONERS SHALL NOT BE "CONSTRUED AS REDUCING THE PERIOD OF THE STATUTE OF LIMITATIONS.'

IN ORDER FOR AN EMPLOYEE TO BE ENTITLED TO A RECREDIT OF ENFORCED ANNUAL LEAVE, THERE MUST BE A FINDING THAT HE WAS OTHERWISE ENTITLED TO COMPENSATION FOR SUCH PERIOD. HERE, THERE IS NO INDICATION OF ANY SUCH FINDING. MOREOVER, THERE IS NO SHOWING THAT THE EMPLOYEE, UNTIL MARCH 23, 1960, EITHER REQUESTED THAT HE BE RECREDITED WITH THE ENFORCED ANNUAL LEAVE OR REQUESTED THAT THE PERIOD BE REGARDED AS A PERIOD OF SUSPENSION TO WHICH HE WAS ENTITLED TO COMPENSATION WITHOUT REFERENCE TO LEAVE UPON RESTORATION TO DUTY. THEREFORE, SINCE MORE THAN 3 YEARS HAVE ELAPSED SINCE MR. KIRKPATRICK WAS RESTORED TO DUTY WE BELIEVE THE STATUTE OF LIMITATION REFERRED TO ABOVE IS APPLICABLE AND THAT HIS CLAIM SHOULD BE DENIED. BY REASON OF THAT CONCLUSION NO SPECIFIC ANSWER TO THE THIRD QUESTION SUBMITTED BY THE ACTING PRESIDENT WHICH CONCERNS WHAT LIMITATIONS (PRESUMABLY MAXIMUM LEAVE ACCUMULATION RESTRICTIONS) ARE APPLICABLE IN THE EVENT OF RESTITUTION OF LEAVE, IS DEEMED NECESSARY. HOWEVER, WE REFER YOU TO OUR DECISION IN 36 COMP. GEN. 779 WHICH INDICATES THAT THE MAXIMUM ACCUMULATION RESTRICTIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, ARE APPLICABLE UNDER SIMILAR CIRCUMSTANCES.