B-150089, NOV. 21, 1962

B-150089: Nov 21, 1962

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YOU REQUESTED OUR DECISION WHETHER THE COMMISSIONERS ARE AUTHORIZED TO GRANT LEAVE OF ABSENCE WITH PAY FOR 67 DAYS TO DEPUTY POLICE CHIEF EDGAR E. YOU SAY THAT THE PERTINENT RECORDS PRIOR TO 1951 ARE UNAVAILABLE BUT THAT A BALANCE OF 49 DAYS WAS CARRIED FORWARD INTO THAT YEAR WHILE THE REMAINING 19 DAYS WERE ACCUMULATED DURING 1951 AND THE YEARS FOLLOWING. IT IS APPARENT THAT THE OVERTIME SERVICE UPON WHICH THE REQUEST FOR COMPENSATORY TIME IS BASED WAS NOT EXTRA SERVICE VOLUNTARILY PERFORMED ON ACCOUNT OF EXISTING VACANCIES IN THE PERSONNEL STRENGTH OF THE FORCE AND FOR WHICH COMPENSATION WAS AUTHORIZED BY 4 D.C. 904 (E). NOR WAS IT PERFORMED DURING PERIODS OF DECLARED EMERGENCIES WHEN ALL OFFICERS AND MEMBERS OF THE METROPOLITAN POLICE FORCE WERE REQUIRED TO RENDER CONTINUOUS SERVICE.

B-150089, NOV. 21, 1962

TO WALTER N. TO BRINER:

ON OCTOBER 10, 1962, YOU REQUESTED OUR DECISION WHETHER THE COMMISSIONERS ARE AUTHORIZED TO GRANT LEAVE OF ABSENCE WITH PAY FOR 67 DAYS TO DEPUTY POLICE CHIEF EDGAR E. SCOTT ON ACCOUNT OF OVERTIME SERVICES PERFORMED BY HIM ON HIS OFF DAYS DURING THE WAR YEARS WHICH HE SAYS COULD BE CONSTRUED AS WORKED UNDER EMERGENCY CONDITIONS.

YOU SAY THAT THE PERTINENT RECORDS PRIOR TO 1951 ARE UNAVAILABLE BUT THAT A BALANCE OF 49 DAYS WAS CARRIED FORWARD INTO THAT YEAR WHILE THE REMAINING 19 DAYS WERE ACCUMULATED DURING 1951 AND THE YEARS FOLLOWING.

IT IS APPARENT THAT THE OVERTIME SERVICE UPON WHICH THE REQUEST FOR COMPENSATORY TIME IS BASED WAS NOT EXTRA SERVICE VOLUNTARILY PERFORMED ON ACCOUNT OF EXISTING VACANCIES IN THE PERSONNEL STRENGTH OF THE FORCE AND FOR WHICH COMPENSATION WAS AUTHORIZED BY 4 D.C. 904 (E), NOR WAS IT PERFORMED DURING PERIODS OF DECLARED EMERGENCIES WHEN ALL OFFICERS AND MEMBERS OF THE METROPOLITAN POLICE FORCE WERE REQUIRED TO RENDER CONTINUOUS SERVICE, 4 D.C. 904 (B). DEPUTY CHIEF SCOTT STATED IN HIS LETTER OF SEPTEMBER 14, 1962:

"THE TYPE OF OVERTIME WHICH IS INCLUDED IN MY REQUEST IN WHERE A FEW MEMBERS OF THE DEPARTMENT, WORKING ON SPECIAL CASES OF SERIOUS CRIMES, WERE REQUIRED TO WORK ON THEIR DAYS OFF IN ORDER THAT AN EFFICIENT JOB COULD BE DONE * * *.'

POLICEMEN AND FIREMEN WERE NOT COVERED BY THE COMPENSATORY TIME PROVISION OF THE ACT OF MARCH 3, 1931, CH. 396, 46 STAT. 1482. 16 COMP. GEN. 581. NEITHER, AS STATED IN YOUR LETTER, WERE THEY COVERED BY THE IRREGULAR OR OCCASIONAL OVERTIME PROVISIONS--- AUTHORIZING COMPENSATORY TIME OFF--- OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 911-912, SUCH OFFICERS HAVING BEEN EXPRESSLY EXEMPTED FROM THAT ACT BY SECTION 102 (A) THEREOF, 5 U.S.C. 902 (A). THE SAME SECTION EXCLUDES THEM FROM THE BENEFITS OF 5 U.S.C. 926 (2), AMENDING THE PAY ACT OF 1945, WHICH WE BELIEVE SPECIFICALLY CONTEMPLATES THE TYPE OF OVERTIME SERVICE RENDERED BY DEPUTY CHIEF SCOTT.

MOREOVER, AN ACT APPROVED ON JULY 14, 1945, PUBLIC LAW 151 (59 STAT. 470) EFFECTIVE JULY 1, PROVIDED THAT IN LIEU OF OVERTIME PAY AND NIGHT DIFFERENTIAL SUCH OFFICERS AND MEMBERS SHOULD BE PAID ADDITIONAL COMPENSATION AT THE RATE OF 8 PERCENTUM OF THEIR ANNUAL BASIC SALARIES. FAVORABLE REPORTS ON THE BILL BY BOTH THE SENATE AND HOUSE OF REPRESENTATIVES COMMITTEES FOR THE DISTRICT OF COLUMBIA CONTAINED THE FOLLOWING STATEMENT:

"MEMBERS OF THE POLICE DEPARTMENTS, IN ADDITION TO THE 48 HOURS PRESCRIBED, WORK AN AVERAGE OF 12 HOURS PER WEEK. THREE OF THESE HOURS ARE ACCOUNTED FOR BY THE REGULATION REQUIRING MEMBERS TO REPORT FOR ROLL CALL 30 MINUTES BEFORE ASSUMING DUTY. THE REMAINING 9 ADDITIONAL HOURS COVER TIME SPENT IN COURT, GOING TO AND FROM COURT ON OFF TIME AND EXTRA DUTY FOR SPECIAL ASSIGNMENTS TO PARADES, FUNCTIONS, OR OTHER EMERGENCIES.'

OBVIOUSLY THE WORD "OVERTIME" AS USED IN THE ACT HAD REFERENCE TO TIME WORKED IN EXCESS OF THE PRESCRIBED WORKWEEK OF 48 HOURS. WE FIND NOTHING IN THE REPORTS OF THE COMMITTEES OR IN THE ACT TO SUPPORT THE VIEW THAT THE ADDITIONAL COMPENSATION IT AUTHORIZED WAS NOT INTENDED TO COVER ALL SERVICES IN EXCESS OF 48 HOURS PER WEEK WHETHER PERFORMED ON REGULARLY ASSIGNED WORKDAYS OR THE MEMBERS' SCHEDULED DAYS OFF.

THE 8 PERCENT DIFFERENTIAL PROVISION WAS CARRIED FORWARD IN ALL PERTINENT SALARY INCREASE ACTS UNTIL REPEALED BY THE DISTRICT OF COLUMBIA POLICE AND FIREMEN'S SALARY ACT OF 1953, 67 STAT. 72, EFFECTIVE JULY 1, 1953. THE 1953 ACT MADE NO PROVISION FOR OVERTIME COMPENSATION OR FOR COMPENSATORY TIME OFF IN LIEU THEREOF; NEITHER ARE WE AWARE OF ANY SUBSEQUENT LAW SPECIFICALLY PROVIDING THOSE BENEFITS FOR MEMBERS OF THE METROPOLITAN POLICE FORCE.

WE ARE NOT AWARE OF ANY AUTHORITY PURSUANT TO WHICH THE COMMISSIONERS MAY GRANT THE LEAVE CLAIMED IN DEPUTY CHIEF SCOTT'S CASE; THEREFORE, ON THE PRESENT RECORD WE MUST CONCLUDE THAT THE GRANTING OF THE REQUESTED COMPENSATORY TIME OFF IS UNAUTHORIZED.