B-153714, APRIL 6, 1964, 43 COMP. GEN. 672

B-153714, APRIL 6, 1964, 43 COMP. GEN. 672

COURTS - JURORS - FEES - GOVERNMENT EMPLOYEES IN STATE COURTS - COMPENSATION DEDUCTION EMPLOYEES SERVING ON JURIES IN STATE COURTS WHO WAIVE OR REFUSE TO ACCEPT THE AUTHORIZED JURY FEES ARE, NEVERTHELESS, REQUIRED UNDER SECTION 3 OF THE ACT OF JUNE 20, 1940, 5 U.S.C. 30N, WHICH LIMITS THE GOVERNMENT'S LIABILITY FOR SALARY PAYMENTS DURING THE ABSENCE TO THE DIFFERENCE BETWEEN THE SALARY AND THE FEES, TO HAVE THEIR SALARIES REDUCED BY THE AMOUNT OF THE AUTHORIZED FEES.

TO THE DIRECTOR, OFFICE OF EMERGENCY PLANNING, APRIL 6, 1964:

ON OCTOBER 29, 1963, WE ISSUED INFORMAL INQUIRY NO. 4C048 QUESTIONING CERTAIN SALARY PAYMENTS CERTIFIED BY DONALD A. THOMPSON, CERTIFYING OFFICER, OFFICE OF CIVIL AND DEFENSE MOBILIZATION, EXECUTIVE OFFICE OF THE PRESIDENT, AS BEING PAYABLE TO ROBERT A. BOWMAN, COVERING A PERIOD OF JURY DUTY PERFORMED IN THE CIRCUIT COURT OF FAIRFAX COUNTY, FAIRFAX, VIRGINIA. OUR ACTION IN QUESTIONING THE PROPRIETY OF THE COMPENSATION PAYMENTS TO MR. BOWMAN WAS PREDICATED UPON THE FACT THAT HE WAS NOT ENTITLED TO THE FULL SALARY OF HIS POSITION COVERING THE PERIOD OF HIS JURY DUTY IN A STATE COURT BUT ONLY TO THAT PART OF HIS SALARY FOR SUCH PERIOD THAT EXCEEDED THE AUTHORIZED JURY FEES TO WHICH HE WAS ENTITLED UNDER STATE LAW.

MR. FREDERICK P. MCINTYRE, THE CHIEF OF YOUR AUDIT AND FISCAL BRANCH, REQUESTED THAT WE RENDER A FORMAL DECISION CONCERNING MR. BOWMAN'S LIABILITY FOR PARTIAL REFUND OF THE SALARY HE RECEIVED COVERING THE PERIOD OF SUCH JURY DUTY. MR. MCINTYRE HAS POINTED OUT THAT THE EMPLOYEE NEVER, IN FACT, RECEIVED ANY JURY FEES WHATSOEVER AND THAT HE IS NOT PRECLUDED BY VIRGINIA LAW FROM CLAIMING AND RECEIVING PAYMENT OF THE FEE IN QUESTION.

SINCE THE CHIEF OF YOUR AUDIT AND FISCAL BRANCH IS NOT THE CERTIFYING OFFICER AGAINST WHOM THE INFORMAL INQUIRY WAS STATED, WE ARE NOT AUTHORIZED BY LAW TO RENDER A DECISION AT HIS REQUEST UPON THE QUESTION PRESENTED AND WE UNDERSTAND THAT MR. THOMPSON, THE CERTIFYING OFFICER INVOLVED, IS NOT NOW EMPLOYED IN THE OFFICE OF EMERGENCY PLANNING. VIEW THEREOF, AND SINCE THE MATTER APPEARS TO BE ONE OF CONCERN TO YOUR AGENCY WE ARE ADDRESSING OUR DECISION UPON THE QUESTION PRESENTED TO YOU AS HEAD OF THE OFFICE FOR EMERGENCY PLANNING.

THE PERTINENT STATUTORY PROVISION INVOLVED IS THE ACT OF JUNE 29, 1940, 54 STAT 689, 5 U.S.C. 30N, READING IN PART AS FOLLOWS:

* * * THAT THE COMPENSATION OF ANY EMPLOYEE OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY STATE COURT OR COURT OF THE UNITED STATES SHALL NOT BE DIMINISHED DURING THE TERM OF SUCH JURY SERVICE BY REASON OF SUCH ABSENCE, EXCEPT AS PROVIDED IN SECTION 3, NOR SHALL SUCH PERIOD OF SERVICE BE DEDUCTED FROM THE TIME ALLOWED FOR ANY LEAVE OF ABSENCE AUTHORIZED BY LAW.

SEC. 3. THERE SHALL BE CREDITED AGAINST THE AMOUNT OF COMPENSATION PAYABLE BY THE UNITED STATES TO ANY EMPLOYEE SPECIFIED IN SECTION 1 FOR SUCH PERIOD AS SUCH EMPLOYEE MAY BE ABSENT ON ACCOUNT OF JURY SERVICE IN THE COURT OF ANY STATE ANY AMOUNTS WHICH SUCH EMPLOYEE MAY RECEIVE FROM SUCH STATE ON ACCOUNT OF SUCH JURY SERVICE.

THE APPARENT PURPOSE OF SECTION 3, 5 U.S.C. 30P, IS TO LIMIT THE GOVERNMENT'S LIABILITY FOR SALARY PAYMENTS COVERING AN EMPLOYEE'S ABSENCE FROM DUTY WHILE SERVING ON A JURY IN A STATE COURT--- AS OTHERWISE AUTHORIZED IN SECTION 1 OF THE ACT--- TO THE DIFFERENCE BETWEEN THE SALARY OF HIS POSITION AND THE JURY FEES TO WHICH HE ACQUIRES ENTITLEMENT BY REASON OF THE JURY SERVICE SO RENDERED. ALTHOUGH IT MAY BE ARGUED THAT THE LETTER OF THE QUOTED STATUTE REQUIRES A REDUCTION OF AN EMPLOYEE'S SALARY ONLY WHEN THE EMPLOYEE, IN FACT, RECEIVES JURY FEES, WE CONSIDER THAT ANY INTERPRETATION UNDER WHICH THE GOVERNMENT'S LIABILITY FOR SALARY COVERING A PERIOD OF STATE JURY SERVICE COULD BE INCREASED AT THE OPTION OF THE EMPLOYEE BY WAIVING OR REFUSING TO ACCEPT JURY FEES, SUCH AS HERE, WHEN TENDERED BY THE STATE IS WHOLLY INCONSISTENT WITH THE SPIRIT AND PURPOSE OF THE CONTROLLING STATUTORY PROVISION. ACCORDINGLY, APPROPRIATE ACTION SHOULD BE TAKEN TO EFFECT COLLECTION FROM MR. BOWMAN OF THE SALARY OVERPAYMENTS INVOLVED.