B-23320, JANUARY 29, 1942, 21 COMP. GEN. 717

B-23320: Jan 29, 1942

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1942: I HAVE YOUR LETTER OF JANUARY 23. AS FOLLOWS: YOUR ATTENTION IS INVITED TO THAT PORTION OF SECTION 6 OF THE ACT APPROVED JUNE 28. WHOSE IMMEDIATE REMOVAL IS. IF SO REINSTATED SHALL BE ALLOWED COMPENSATION FOR THE PERIOD OF SUCH REMOVAL AT THE RATE THEY WERE RECEIVING ON THE DATE OF REMOVAL: * * *.'. WE PRESENT FOR YOUR CONSIDERATION THE FOLLOWING HYPOTHETICAL CASE: A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT IS SUSPECTED OF SUBVERSIVE ACTIVITIES AND HIS IMMEDIATE REMOVAL IS DEEMED NECESSARY IN THE INTERESTS OF NATIONAL SECURITY. AS A RESULT THE EMPLOYEE IS IMMEDIATELY SUSPENDED BY THE COMMANDING OFFICER OF THE POST. THE CHARGES ARE FOUND TO BE UNSUBSTANTIATED AND THE SECRETARY OF WAR ORDERS THE REINSTATEMENT OF THE EMPLOYEE.

B-23320, JANUARY 29, 1942, 21 COMP. GEN. 717

OFFICERS AND EMPLOYEES - COMPENSATION FOR PERIODS OF SUSPENSION THE AUTHORITY UNDER SECTION 6 OF THE ACT OF JUNE 28, 1940, TO SUMMARILY REMOVE EMPLOYEES OF THE WAR AND NAVY DEPARTMENTS AND OF THE COAST GUARD UPON SUSPICION OF ESPIONAGE OR OTHER SUBVERSIVE ACTIVITIES AND TO COMPENSATE THEM FOR THE PERIOD OF REMOVAL AFTER INVESTIGATION AND REINSTATEMENT INCLUDES, ALSO, THE AUTHORITY TO SUSPEND EMPLOYEES PENDING INVESTIGATION OF SUSPECTED SUBVERSIVE ACTIVITY AND TO COMPENSATE THEM FOR THE PERIOD OF SUSPENSION AFTER INVESTIGATION AND RESTORATION TO ACTIVE DUTY, WITHOUT CHARGING ANY PORTION OF THE PERIOD TO ANNUAL LEAVE. DECISIONS HOLDING THAT COMPENSATION MAY NOT BE PAID FOR A PERIOD OF SUSPENSION IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JANUARY 29, 1942:

I HAVE YOUR LETTER OF JANUARY 23, 1942, AS FOLLOWS:

YOUR ATTENTION IS INVITED TO THAT PORTION OF SECTION 6 OF THE ACT APPROVED JUNE 28, 1940 ( PUBLIC LAW NO. 671, 76TH CONGRESS), READING AS FOLLOWS:

"* * * PROVIDED FURTHER, THAT DURING THE NATIONAL EMERGENCY DECLARED BY THE PRESIDENT ON SEPTEMBER 8, 1939, TO EXIST, THE PROVISIONS OF SECTION 6 OF THE ACT OF AUGUST 24, 1912 (37 STAT. 555; U.S.C., TITLE 5, SEC. 652), SHALL NOT APPLY TO ANY CIVIL-SERVICE EMPLOYEE OF THE WAR OR NAVY DEPARTMENTS OR OF THE COAST GUARD, OR THEIR FIELD SERVICES, WHOSE IMMEDIATE REMOVAL IS, IN THE OPINION OF THE SECRETARY CONCERNED WARRANTED BY THE DEMANDS OF NATIONAL SECURITY, BUT NOTHING HEREIN SHALL BE CONSTRUED TO REPEAL, MODIFY, OR SUSPEND THE PROVISO IN THAT SECTION. THOSE PERSONS SUMMARILY REMOVED UNDER THE AUTHORITY OF THIS SECTION MAY, IF IN THE OPINION OF THE SECRETARY CONCERNED, SUBSEQUENT INVESTIGATION SO WARRANTS, BE REINSTATED, AND IF SO REINSTATED SHALL BE ALLOWED COMPENSATION FOR THE PERIOD OF SUCH REMOVAL AT THE RATE THEY WERE RECEIVING ON THE DATE OF REMOVAL: * * *.'

IN VIEW OF THE ABOVE-QUOTED SECTION, WE PRESENT FOR YOUR CONSIDERATION THE FOLLOWING HYPOTHETICAL CASE:

A CIVILIAN EMPLOYEE OF THE WAR DEPARTMENT IS SUSPECTED OF SUBVERSIVE ACTIVITIES AND HIS IMMEDIATE REMOVAL IS DEEMED NECESSARY IN THE INTERESTS OF NATIONAL SECURITY. AS A RESULT THE EMPLOYEE IS IMMEDIATELY SUSPENDED BY THE COMMANDING OFFICER OF THE POST, PENDING REMOVAL BY THE SECRETARY OF WAR UNDER THE AUTHORITY CONTAINED IN THE ABOVE-QUOTED PROVISION. UPON CONSIDERATION AND INVESTIGATION, THE CHARGES ARE FOUND TO BE UNSUBSTANTIATED AND THE SECRETARY OF WAR ORDERS THE REINSTATEMENT OF THE EMPLOYEE. DURING THE PERIOD OF INVESTIGATION THE EMPLOYEE IS ON THE WAR DEPARTMENT ROLLS AS "SUSPENDED PENDING ACTION TAKEN ON RECOMMENDATION FOR REMOVAL UNDER SECTION 6 OF THE ACT APPROVED JUNE 28, 1940 ( PUBLIC LAW NO. 671, 76TH CONGRESS).' HE IS, FOR ALL PRACTICAL PURPOSES,"REMOVED.' UNDER THE PROVISIONS OF SECTION 6 OF THE ABOVE-QUOTED ACT, ANY EMPLOYEE WHO HAS BEEN REMOVED UNDER THIS AUTHORITY MAY, IF SUBSEQUENT INVESTIGATION SO WARRANTS, BE REINSTATED, AND IF SO REINSTATED HE SHALL BE ALLOWED COMPENSATION FOR THE PERIOD OF SUCH REMOVAL AT THE RATE HE WAS RECEIVING ON THE DATE OF REMOVAL.

CONGRESSIONAL INTENT, AS EVIDENCED BY THE REPORTS OF THE COMMITTEES WHICH CONSIDERED THE QUESTION, WAS TO ALLOW THE SUMMARY REMOVAL OF CERTAIN EMPLOYEES, SUBJECT TO SUBSEQUENT INVESTIGATION. IN THE EVENT SUCH SUBSEQUENT INVESTIGATION DISCLOSED THE FACT THAT THE EMPLOYEE WAS INNOCENT OF ALL CHARGES AND AN INJUSTICE HAD BEEN DONE, CONGRESS PROVIDED FOR SUCH CASES BY DIRECTING "COMPENSATION FOR THE PERIOD OF SUCH REMOVAL AT THE RATE THEY WERE RECEIVING ON THE DATE OF REMOVAL.' CIVIL-SERVICE RULES ALLOW AN IMMEDIATE SUSPENSION FROM DUTY, BUT IN THE EVENT OF REINSTATEMENT NO COMPENSATION MAY BE PAID FOR THE PERIOD OF SUCH SUSPENSION, EXCEPT FOR SUCH PERIOD OF TIME AS IS COVERED BY ACCUMULATED OR ACCRUED ANNUAL LEAVE TO THE CREDIT OF THE EMPLOYEE.

IN VIEW OF THE ABOVE CONGRESSIONAL INTENT AND PROVISIONS, AND A LONG LINE OF DECISIONS HOLDING THAT THE RIGHT TO REMOVE NECESSARILY INCLUDES THE PRIVILEGE OF TEMPORARILY SUSPENDING AN EMPLOYEE, THIS OFFICE IS OF THE OPINION THAT AN EMPLOYEE WHO HAS BEEN SUSPENDED PENDING ACTION TAKEN ON RECOMMENDATION FOR REMOVAL UNDER SECTION 6 OF THE ACT APPROVED JUNE 28, 1940 ( PUBLIC LAW NO. 671, 76TH CONGRESS), AND WHO IS SUBSEQUENTLY REINSTATED, IS ENTITLED TO COMPENSATION FOR THE PERIOD OF SUCH SUSPENSION.

YOUR EARLY CONSIDERATION AND DECISION IS REQUESTED AS TO WHETHER COMPENSATION MAY BE PAID TO AN EMPLOYEE WHO HAS BEEN SUSPENDED FROM DUTY (AS DISTINGUISHED FROM "REMOVED") PENDING "REMOVAL" UNDER SECTION 6 OF THE ACT APPROVED JUNE 28, 1940 ( PUBLIC LAW NO. 671, 76TH CONGRESS), AND IS SUBSEQUENTLY REINSTATED AS A RESULT OF COMPLETE INVESTIGATION.

THIS OFFICE HAS BEEN ADVISED INFORMALLY THAT ACTUAL CASES INVOLVING THE QUESTION PRESENTED ARE NOW PENDING BEFORE THE WAR DEPARTMENT AND THAT OTHER CASES WILL ARISE IN THE FUTURE. HENCE, IT IS UNDERSTOOD THAT THE CASE PRESENTED IS ILLUSTRATIVE RATHER THAN HYPOTHETICAL, AS STATED IN YOUR LETTER.

THE ACT OF AUGUST 24, 1912, 37 STAT. 555, PROVIDES IN PERTINENT PART, AS FOLLOWS:

SEC. 6. THAT NO PERSON IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES SHALL BE REMOVED THEREFROM EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF SAID SERVICE AND FOR REASONS GIVEN IN WRITING, AND THE PERSON WHOSE REMOVAL IS SOUGHT SHALL HAVE NOTICE OF THE SAME AND OF ANY CHARGES PREFERRED AGAINST HIM, AND BE FURNISHED WITH A COPY THEREOF, AND ALSO BE ALLOWED A REASONABLE TIME FOR PERSONALLY ANSWERING THE SAME IN WRITING; AND AFFIDAVITS IN SUPPORT THEREOF; BUT NO EXAMINATION OF WITNESSES NOR ANY TRIAL OR HEARING SHALL BE REQUIRED EXCEPT IN THE DISCRETION OF THE OFFICER MAKING THE REMOVAL; AND COPIES OF CHARGES, NOTICE OF HEARING, ANSWER, REASONS FOR REMOVAL, AND OF THE ORDER OF REMOVAL SHALL BE MADE A PART OF THE RECORDS OF THE PROPER DEPARTMENT OR OFFICE, AS SHALL ALSO THE REASONS FOR REDUCTION IN RANK OR COMPENSATION; AND COPIES OF THE SAME SHALL BE FURNISHED TO THE PERSON AFFECTED UPON REQUEST, AND THE CIVIL SERVICE COMMISSION ALSO SHALL, UPON REQUEST, BE FURNISHED COPIES OF THE SAME * * *.

THE USUAL PROCEDURE UNDER THAT STATUTE IS: FIRST, TO SUSPEND AN EMPLOYEE FROM ACTIVE DUTY PENDING INVESTIGATION OF THE CHARGES OF OFFICIAL MISCONDUCT, AND SECOND, EITHER TO RESTORE THE EMPLOYEE TO ACTIVE DUTY IF THE CHARGES CANNOT BE SUSTAINED, OR TO REMOVE HIM FROM THE SERVICE IF THE CHARGES ARE SUSTAINED. AS YOU STATE, IT IS THE SETTLED RULE THAT--- IN THE ABSENCE OF SPECIFIC STATUTORY PROVISION THEREFOR--- COMPENSATION MAY NOT BE PAID FOR THE PERIOD OF SUSPENSION DURING WHICH NO DUTY IS PERFORMED, WHETHER THE EMPLOYEE IS OR IS NOT RESTORED TO DUTY, EXCEPT TO THE EXTENT OF ANNUAL LEAVE THAT MAY BE SUBSTITUTED FOR A PERIOD OF UNJUSTIFIED SUSPENSION. SEE 4 COMP. GEN. 849; 6 ID. 534; 9 ID. 284; 19 ID. 424. AS TO THE SUBSTITUTION OF ANNUAL LEAVE FOR THE PERIOD OF SUSPENSION, SEE 17 COMP. GEN. 199; 18 ID. 136.

THE PURPOSE OF THE PORTION OF THE ACT OF JUNE 28, 1940, 54 STAT. 679, QUOTED IN YOUR LETTER, IS STATED IN SENATE REPORT NO. 1863 ON BILL H.R. 9822, SEVENTY-SIXTH CONGRESS, THIRD SESSION (WHICH BECAME THE STATUTE HERE INVOLVED), AS FOLLOWS:

SECTION 6 OF THE HOUSE BILL CONTAINED A PROVISO WHICH VESTED IN THE SECRETARY OF THE NAVY UNLIMITED AUTHORITY TO WAIVE THE PROVISIONS OF SECTION 6 OF THE LA FOLLETTE ACT OF 1912, WHICH ACT GRANTED TO EMPLOYEES OF THE GOVERNMENT CERTAIN RIGHTS, INTER ALIA, THE RIGHT TO ANSWER CHARGES, THE RIGHT TO ORGANIZE, AND THE RIGHT TO PETITION CONGRESS. THIS UNLIMITED POWER COULD BE EXERCISED ARBITRARILY AND UNWISELY, AND CAN HARDLY BE JUSTIFIED SO LONG AS THE NATIONAL DEFENSE CAN BE FULLY PROTECTED WITHOUT JEOPARDIZING THE RIGHTS OF LOYAL AND FAITHFUL EMPLOYEES. TO THIS END, THE COMMITTEE HAS REWRITTEN THE PROVISO, AND EXTENDED IT TO THE EMPLOYEES OF THE WAR DEPARTMENT AND COAST GUARD. AS REPORTED TO THE SENATE, IT PERMITS THE IMMEDIATE REMOVAL OF ANY EMPLOYEE WHOSE REMOVAL IS, IN THE OPINION OF THE SECRETARY CONCERNED, WARRANTED BY THE DEMANDS OF NATIONAL DEFENSE. THIS IS NECESSARY FOR THE PREVENTION OF ESPIONAGE, SABOTAGE, AND OTHER SUBVERSIVE ACTIVITY WHICH MAY TEND TO DESTROY THE NATIONAL DEFENSE. HOWEVER, IN PROVIDING FOR THE IMMEDIATE REMOVAL OF AN EMPLOYEE, WHOSE RETENTION IS DEEMED INIMICAL TO NATIONAL DEFENSE, THE COMMITTEE HAS PROTECTED THE EMPLOYEE BY---

(1) INSURING TO THE EMPLOYEE A HEARING AND AN OPPORTUNITY TO SHOW CAUSE WHY HE SHOULD NOT HAVE BEEN REMOVED;

(2) BY PROVIDING FOR REINSTATEMENT OF THE EMPLOYEE IF SUBSEQUENT INVESTIGATION SO WARRANTS; AND

(3) IN THE EVENT OF SUCH REINSTATEMENT, GRANTING TO THE EMPLOYEE COMPENSATION FOR THE PERIOD OF REMOVAL.

WHILE THE ACT OF JUNE 28, 1940, AUTHORIZES, AND APPARENTLY CONTEMPLATES, THE SUMMARY REMOVAL OF AN EMPLOYEE UPON SUSPICION OF ESPIONAGE OR OTHER SUBVERSIVE ACTIVITIES, WITHOUT THE PRELIMINARY STEP OF SUSPENSION FROM ACTIVE DUTY--- THE STATUTE FULLY PROTECTING THE RIGHTS OF INNOCENT EMPLOYEES TO REINSTATEMENT AND TO COMPENSATION FOR THE PERIOD THE EMPLOYEE IS OUT OF THE SERVICE--- NEVERTHELESS THE STATUTE DOES NOT PRECLUDE ADMINISTRATIVE ACTION IN FIRST SUSPENDING AN EMPLOYEE FROM ACTIVE DUTY PENDING INVESTIGATION OF THE CHARGES. IT WOULD APPEAR THAT A SUSPENSION FROM ACTIVE DUTY AS EFFECTIVELY PREVENTS AN EMPLOYEE FROM CONTINUING SUBVERSIVE ACTIVITIES AS WOULD AN IMMEDIATE AND COMPLETE SEPARATION FROM THE SERVICE BY REMOVAL. IN EFFECT, SUSPENSION FROM ACTIVE DUTY PENDING INVESTIGATION OF SUBVERSIVE ACTIVITIES IS INCLUDED IN AND CONSTITUTES A PART OF A REMOVAL. STATED CONVERSELY, THE FINAL ACTION OF "REMOVAL" INCLUDES THE LESSER ACTION OF SUSPENSION LOOKING TO THE SAME RESULT.

THE ACT OF JUNE 28, 1940, SPECIFICALLY AUTHORIZES THE PAYMENT OF COMPENSATION "FOR THE PERIOD OF SUCH REMOVAL" WHICH IS HEREIN REGARDED AS INCLUDING PERIODS OF SUSPENSION FROM ACTIVE DUTY, THEREBY MAKING AN EXPRESS EXCEPTION TO THE GENERAL RULE STATED IN THE DECISIONS OF THIS OFFICE HEREINBEFORE CITED. HENCE, AN EMPLOYEE WHO IS RESTORED TO ACTIVE DUTY AFTER A PERIOD OF SUSPENSION UNDER THE TERMS OF SAID STATUTE MAY BE PAID THE COMPENSATION HE WOULD HAVE EARNED DURING THE PERIOD OF SUSPENSION AT THE RATE RECEIVED ON THE DATE OF SUSPENSION, WITHOUT THE NECESSITY OF CHARGING THE EMPLOYEE ANNUAL LEAVE FOR ANY PORTION OF SUCH PERIOD OF SUSPENSION.