B-167879, OCT. 2, 1969

B-167879, OCT. 2, 1969

LEAVES OF ABSENCE--COURT--WITNESS FOR STATE NAVY EMPLOYEE WHO WAS SUBPOENAED TO TESTIFY AS WITNESS IN PROSECUTION BY STATE OF NEW YORK AGAINST DEFENDANT INDICTED BY FEDERAL GRAND JURY MAY NOT BE GRANTED COURT LEAVE SINCE ONLY STATUTORY AUTHORITY PERMITTING SUCH LEAVE FOR APPEARANCE OF GOVERNMENT EMPLOYEE AS WITNESS, NOT IN HIS OFFICIAL CAPACITY, IS CONTAINED IN 28 U.S.C. 1823(B), AND IT IS APPARENT SUBJECT EMPLOYEE WAS NOT CALLED ON BEHALF OF UNITED STATES OR DISTRICT OF COLUMBIA IN JUDICIAL PROCEEDINGS IN WHICH UNITED STATES WAS PARTY OR HAD INTEREST. AUTHORIZATION OF SUCH LEAVE TO GOVERNMENT EMPLOYEES CALLED AS WITNESSES IN STATE COURTS, HOWEVER, HAS BEEN MADE SUBJECT OF H.R. 12979, NOW PENDING BEFORE 91ST CONGRESS.

TO MR. BENJAMIN H. DOZIER:

YOUR LETTER OF SEPTEMBER 9, 1969, REFERENCE NAFC-3121, PRESENTS FOR OUR CONSIDERATION THE QUESTION OF WHETHER AN EMPLOYEE SUBPOENAED AS A WITNESS BY THE DISTRICT ATTORNEY, COUNTY OF WESTCHESTER, NEW YORK, TO TESTIFY IN A PROSECUTION BY THE STATE OF NEW YORK AGAINST A PRIVATE CITIZEN THEREOF MAY BE AUTHORIZED COURT LEAVE UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED. WE NOTE THAT THE MATTER WAS PRESENTED BY THE OFFICIALS OF THE NAVAL TRAINING DEVICE CENTER, ORLANDO, FLORIDA 32813, THROUGH OFFICIAL CHANNELS TO YOUR OFFICE FOR PRESENTATION TO US. ACCORDINGLY, WE ARE ADDRESSING OUR REPLY TO YOU.

THE INFORMATION SUBMITTED WITH YOUR REQUEST SHOWS THAT THE EMPLOYEE RESPONDED TO THE SUBPOENA AND TESTIFIED CONCERNING A "MAIMING" IN 1965, FOR A PERIOD OF 4 WORKDAYS, I.E., JUNE 17-20, 1969. FURTHER, THERE IS CONTAINED THEREIN INFORMATION TO THE EFFECT THAT THE DEFENDANTS INVOLVED HAD BEEN INDICTED BY A FEDERAL GRAND JURY AND WERE TO BE ARRAIGNED THEREON JULY 8, 1969, BY FEDERAL AUTHORITIES. THUS, IT IS REASONED THERE WAS A FEDERAL INTEREST JUSTIFYING THE AUTHORIZING OF COURT LEAVE TO THE EMPLOYEE INVOLVED FOR THE 4 DAYS.

THE ONLY STATUTORY AUTHORITY PERMITTING AN AGENCY TO GRANT COURT LEAVE TO AN EMPLOYEE FOR APPEARANCE AS A WITNESS, NOT IN HIS OFFICIAL CAPACITY, IS CONTAINED IN 28 U.S.C. 1823 (B), WHICH READS:

"/B) EMPLOYEES OF THE UNITED STATES OR AN AGENCY THEREOF IN ACTIVE SERVICE CALLED AS WITNESSES ON BEHALF OF THE DISTRICT OF COLUMBIA IN ANY JUDICIAL PROCEEDING IN WHICH THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS A PARTY, AND EMPLOYEES OF SUCH GOVERNMENT CALLED AS WITNESSES ON BEHALF OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA IN ANY JUDICIAL PROCEEDING IN WHICH THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS A PARTY, SHALL NOT BE PAID WITNESS FEES, BUT THE PERIOD OF SUCH SERVICE SHALL BE WITHOUT LOSS OF SALARY OR COMPENSATION AND SHALL NOT BE DEDUCTED FROM ANY AUTHORIZED LEAVE OF ABSENCE WITH PAY.'

SINCE IT IS APPARENT FROM THE FOREGOING THAT THE EMPLOYEE'S APPEARANCE AS A WITNESS WAS NOT RELATED TO HIS OFFICIAL POSITION AND SINCE, ALSO, IT IS APPARENT HE WAS NOT CALLED AS A WITNESS ON BEHALF OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA IN THE JUDICIAL PROCEEDINGS IN WHICH THE UNITED STATES WAS A PARTY OR HAD AN INTEREST, THERE IS NO BASIS FOR AUTHORIZING COURT LEAVE FOR THE 4 DAYS OF ANNUAL LEAVE TAKEN TO PARTICIPATE IN A COURT ACTION BROUGHT BY THE STATE OF NEW YORK, WHICH PARTICIPATION WAS REQUIRED BY SUBPOENA.

WE NOTE THAT IN PAST SESSIONS OF CONGRESS LEGISLATION HAS BEEN PROPOSED WHICH WOULD PERMIT ,COURT LEAVE" TO BE GRANTED TO EMPLOYEES WHO MAY BE CALLED AS WITNESSES IN STATE COURTS. HOWEVER, NONE OF SUCH PROPOSALS HAS BEEN ENACTED INTO LAW. SEE H.R. 12979, NOW PENDING IN THE 91ST CONGRESS.