B-170497, SEP. 9, 1970

B-170497, SEP. 9, 1970

COURT LEAVE - JUROR'S FEES DECISION TO ACCOUNTING OFFICER, TREASURY DEPT., HOLDING THAT EMPLOYEE WHO RECEIVED PAYMENT FOR JURY SERVICE WHILE PERFORMING ON HER REGULAR JOB, WILL NOT HAVE THE PAY CREDITED TOWARDS REGULAR PAY UNDER 5 U.S.C. 5515. TREASURY EMPLOYEE, WHO WAS ON JURY DUTY LEAVE REPORTED TO HER REGULAR JOB AS REQUIRED WHEN THE COURT RECESSED FOR TWO DAYS, DUE TO A JURISDICTIONAL CONFERENCE, WILL BE ENTITLED TO RETAIN THE SUM RECEIVED FOR THE TWO DAYS, SINCE SHE WAS NOT ENTITLED TO LEAVE FOR JURY SERVICE UNDER 5 U.S.C. 6322, THE JUROR'S FEE RECEIVED FOR THE TWO DAYS UNDER 5 U.S.C. 5515 ARE APPLICABLE AND ARE NOT REQUIRED TO BE CREDITED AGAINST HER PAY, AND THE FACT THAT SHE WILL RECEIVE THE JUROR'S FEE IN ADDITION TO HER PAY FOR THE DAYS IN QUESTION DOES NOT RENDER THE RETENTION OF THE FEE IMPROPER.

TO MR. JOHN J. SCHRAGE:

REFERENCE IS MADE TO YOUR LETTER OF JULY 28, 1970, CONCERNING CREDITING TOWARD THE PAY OF MISS CAROL J. LENKOWSKI, AN EMPLOYEE OF YOUR AGENCY, AN AMOUNT RECEIVED BY HER FOR JURY SERVICE UNDER THE FOLLOWING CIRCUMSTANCES.

WHILE MISS LENKOWSKI WAS A MEMBER OF A JURY HEARING A CASE IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS, THE COURT WAS RECESSED FOR TWO DAYS--JUNE 4 AND 5, 1970--DUE TO A JURISDICTIONAL CONFERENCE. THE JUDGE INFORMED THE JURORS THAT THEY WOULD BE PAID FOR THOSE TWO DAYS. SINCE MISS LENKOWSKI HAD BEEN TOLD TO REPORT TO WORK ON ANY FULL DAYS OF ABSENCE FROM THE COURTROOM, SHE REPORTED FOR DUTY AT THE TREASURY DEPARTMENT ON JUNE 4 AND 5. INASMUCH AS MISS LENKOWSKI WORKED ON JUNE 4 AND 5, SHE BELIEVES THE JURY FEES RECEIVED FOR THOSE TWO DAYS SHOULD NOT BE CREDITED TOWARD HER PAY.

SECTION 5515 OF TITLE 5, U.S.C. DERIVED FROM SECTION 3 OF THE ACT OF JUNE 29, 1940, CHAPTER 446, 54 STAT. 689, PROVIDES AS FOLLOWS:

"AN AMOUNT RECEIVED BY AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA FOR JURY SERVICE IN A STATE COURT FOR A PERIOD DURING WHICH THE EMPLOYEE OR INDIVIDUAL IS ENTITLED TO LEAVE UNDER SECTION 6322 OF THIS TITLE SHALL BE CREDITED AGAINST PAY PAYABLE BY THE UNITED STATES OR THE DISTRICT OF COLUMBIA TO THE EMPLOYEE OR INDIVIDUAL." SECTION 6322 OF TITLE 5, U.S.C. PROVIDES AS FOLLOWS:

"EXCEPT AS PROVIDED BY SECTION 5515 OF THIS TITLE, THE PAY OF AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA MAY NOT BE REDUCED DURING A PERIOD OF ABSENCE FOR JURY SERVICE IN A STATE COURT OR A COURT OF THE UNITED STATES BECAUSE OF THE ABSENCE. THE PERIOD OF ABSENCE FOR JURY SERVICE IS WITHOUT DEDUCTION FROM OTHER LEAVE OF ABSENCE AUTHORIZED BY STATUTE."

IN DECISION 26 COMP. GEN. 413 (1946) WE HELD THAT IT WAS WITHIN ADMINISTRATIVE DISCRETION TO INFORM AN EMPLOYEE OTHERWISE ENTITLED TO ABSENCE WITH PAY ON ACCOUNT OF JURY SERVICE THAT IF HE IS EXCUSED FROM JURY DUTY FOR ONE DAY OR A SUBSTANTIAL PORTION OF A DAY, HE WOULD BE EXPECTED TO RETURN TO DUTY OR SUFFER A CHARGE AGAINST HIS ANNUAL LEAVE WHERE SUCH RETURN WOULD NOT WORK A HARDSHIP. IN ACCORDANCE WITH THE HOLDING IN THE CITED DECISION, MISS LENKOWSKI WAS REQUIRED TO RETURN TO WORK ON JUNE 4 AND 5 OR BE CHARGED ANNUAL LEAVE.

SINCE SHE WAS NOT ENTITLED TO LEAVE FOR JURY SERVICE UNDER 5 U.S.C. 6322, THE JUROR'S FEES RECEIVED BY MISS LENKOWSKI FOR JUNE 4 AND 5 ARE NOT REQUIRED BY 5 U.S.C. 5515 TO BE CREDITED AGAINST HER PAY FOR THOSE DAYS. THE FACT THAT MISS LENKOWSKI WILL RECEIVE JUROR'S FEES IN ADDITION TO HER PAY FOR THE DAYS IN QUESTION DOES NOT RENDER THE RETENTION OF THE JUROR'S FEES IMPROPER. THE STATUTE CONTEMPLATES CREDITING AGAINST PAY ONLY THE AMOUNT RECEIVED BY AN EMPLOYEE FROM A STATE ON ACCOUNT OF JURY SERVICE FOR ANY PERIOD HE OTHERWISE WOULD BE PERFORMING THE DUTIES OF HIS ORDINARY POSITION. SEE 45 COMP. GEN. 251, 252 (1965).