B-36874, SEPTEMBER 18, 1943, 23 COMP. GEN. 204

B-36874: Sep 18, 1943

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LEAVES OF ABSENCE - ACCRUALS DURING PERIODS OF SUSPENSION PENDING INVESTIGATION OF SUBVERSIVE ACTIVITIES AN EMPLOYEE OF THE WAR DEPARTMENT WHO WAS SUSPENDED FROM DUTY PENDING INVESTIGATION OF SUSPECTED SUBVERSIVE ACTIVITIES. WHO WAS SUBSEQUENTLY REINSTATED BY THE SECRETARY OF WAR WITH COMPENSATION FOR THE ENTIRE PERIOD OF SUSPENSION UNDER AUTHORITY OF SECTION 3 OF THE ACT OF DECEMBER 17. IS ENTITLED TO CREDIT FOR LEAVE EARNED DURING THE ENTIRE PERIOD OF SUSPENSION. COMPENSATION IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT THEY NORMALLY WOULD HAVE EARNED DURING THE PERIOD OF SUSPENSION AND THEIR INTERIM NET EARNINGS. 1943: I HAVE YOUR LETTER OF SEPTEMBER 2. BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH REMOVAL IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH REMOVAL.

B-36874, SEPTEMBER 18, 1943, 23 COMP. GEN. 204

LEAVES OF ABSENCE - ACCRUALS DURING PERIODS OF SUSPENSION PENDING INVESTIGATION OF SUBVERSIVE ACTIVITIES AN EMPLOYEE OF THE WAR DEPARTMENT WHO WAS SUSPENDED FROM DUTY PENDING INVESTIGATION OF SUSPECTED SUBVERSIVE ACTIVITIES, BUT WHO WAS SUBSEQUENTLY REINSTATED BY THE SECRETARY OF WAR WITH COMPENSATION FOR THE ENTIRE PERIOD OF SUSPENSION UNDER AUTHORITY OF SECTION 3 OF THE ACT OF DECEMBER 17, 1942, IS ENTITLED TO CREDIT FOR LEAVE EARNED DURING THE ENTIRE PERIOD OF SUSPENSION. UNDER SECTION 3 OF THE ACT OF DECEMBER 17, 1942, PROVIDING THAT EMPLOYEES OF THE WAR DEPARTMENT SUSPENDED FOR SUSPECTED SUBVERSIVE ACTIVITIES MAY BE ALLOWED, UPON REINSTATEMENT, COMPENSATION IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT THEY NORMALLY WOULD HAVE EARNED DURING THE PERIOD OF SUSPENSION AND THEIR INTERIM NET EARNINGS, AN EMPLOYEE SO REINSTATED, REGARDLESS OF THE AMOUNT OF HIS INTERIM NET EARNINGS, MAY BE REGARDED AS HAVING RECEIVED HIS COMPENSATION FROM THE GOVERNMENT FOR ACCRUAL OF LEAVE PURPOSES SO AS TO ENTITLE HIM TO CREDIT FOR LEAVE EARNED DURING THE ENTIRE PERIOD OF SUSPENSION. WHERE THE WAR DEPARTMENT SUSPENDED AN EMPLOYEE PENDING INVESTIGATION OF SUSPECTED SUBVERSIVE ACTIVITIES AND THE SECRETARY OF WAR UNDER THE DISCRETIONARY AUTHORITY VESTED IN HIM BY SECTION 3 OF THE ACT OF DECEMBER 17, 1942, REINSTATED THE EMPLOYEE WITHOUT AUTHORIZING COMPENSATION FOR THE PERIOD OF SUSPENSION, SUCH PERIOD SHOULD BE REGARDED AS LEAVE OF ABSENCE WITHOUT PAY, AND, THEREFORE, ANNUAL LEAVE ACCRUES DURING SUCH PERIOD ONLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF SECTION 10 OF THE ANNUAL LEAVE REGULATIONS, RESPECTING ACCRUAL OF LEAVE DURING A NON-PAY STATUS.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF WAR, SEPTEMBER 18, 1943:

I HAVE YOUR LETTER OF SEPTEMBER 2, 1943, AS FOLLOWS:

SECTION 3 OF THE ACT APPROVED 17 DECEMBER 1942 ( PUBLIC LAW 808, 77TH CONGRESS), READS IN PART AS FOLLOWS:

"* * * 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 MAY, IN THE DISCRETION OF THE SECRETARY CONCERNED, BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH REMOVAL IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH REMOVAL, AT THE RATE HE WAS RECEIVING ON THE DATE OF REMOVAL, AND THE INTERIM NET EARNINGS OF SUCH PERSON.'

IN DECISION A-88178, OF 6 AUGUST 1938 TO THE SECRETARY OF AGRICULTURE (18 COMP. GEN. 136) IT WAS STATED, QUOTING FROM THE SYLLABUS:

"A PERIOD OF UNJUSTIFIED SUSPENSION FROM SERVICE IS TO BE REGARDED AS A PERIOD OF LEAVE WITHOUT PAY FOR LEAVE PURPOSES UNDER THE ANNUAL LEAVE ACT OF MARCH 14, 1936, AND SECTION 10 OF THE ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, AND IF THE PERIOD OF UNJUSTIFIED SUSPENSION IS LESS THAN 30 DAYS, ANNUAL LEAVE IS EARNED DURING THE PERIOD OF SUSPENSION.

"IF A SUSPENDED EMPLOYEE IS RETAINED IN THE SERVICE AFTER A PERIOD OF UNJUSTIFIED SUSPENSION, LEAVE WITH PAY ACCRUED UNDER THE ANNUAL LEAVE ACT OF MARCH 13, 1936, AND THE ANNUAL LEAVE REGULATIONS EFFECTIVE JANUARY 1, 1938, PRIOR AND SUBSEQUENT TO THE PERIOD OF SUSPENSION AND LEAVE ACCRUED DURING THE PERIOD OF SUSPENSION, IF LESS THAN 30 DAYS, AS WELL AS LEAVE WITH PAY AUTHORIZED TO BE ADVANCED WITHIN THE LIMITATIONS OF THE LAW AND REGULATIONS, MAY, WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE AND UPON ELECTION BY THE EMPLOYEE, BE SUBSTITUTED FOR THE PERIOD OF UNJUSTIFIED SUSPENSION WITHOUT PAY AND THE EMPLOYEE PAID ACCORDINGLY.'

IN THE LIGHT OF THE ABOVE, 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 WARRANTED IN THE DEMANDS OF NATIONAL SECURITY. AS A RESULT THE EMPLOYEE IS IMMEDIATELY SUSPENDED PENDING REMOVAL BY THE SECRETARY OF WAR UNDER THE AUTHORITY CONTAINED IN THE ABOVE-QUOTED PROVISION OF LAW, SUCH SUSPENSION LASTING FOR A PERIOD OF MORE THAN 30 DAYS. UPON CONSIDERATION AND INVESTIGATION, THE CHARGES ARE FOUND TO BE UNSUBSTANTIATED AND THE SECRETARY OF WAR ORDERS THE EMPLOYEE REINSTATED IN HIS POSITION. DURING THE PERIOD OF INVESTIGATION THE EMPLOYEE IS ON THE ROLLS OF THE DEPARTMENT AS "SUSPENDED PENDING ACTION TAKEN ON RECOMMENDATION FOR REMOVAL UNDER SECTION 3 OF THE ACT APPROVED 17 DECEMBER, 1942 ( PUBLIC LAW 808, 77TH CONGRESS).' UNDER THE PROVISIONS OF SECTION 3 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, MAY, IN THE DISCRETION OF THE SECRETARY BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH REMOVAL IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH REMOVAL, AT THE RATE HE WAS RECEIVING ON THE DATE OF REMOVAL AND THE INTERIM NET EARNINGS OF SUCH PERSON. YOUR DECISION IS RESPECTFULLY REQUESTED ON THE FOLLOWING QUESTIONS WHICH ARISE AS A RESULT OF THIS SITUATION:

(1) IF THE EMPLOYEE IS PAID FOR THE ENTIRE PERIOD OF SUSPENSION MAY LEAVE BE EARNED FOR THE ENTIRE PERIOD OF SUSPENSION?

(2) IF THE EMPLOYEE IS PAID THE DIFFERENCE BETWEEN WHAT HE WOULD HAVE EARNED AND WHAT WAS EARNED WHILE ON SUSPENSION, DOES HE EARN LEAVE DURING THE ENTIRE PERIOD OR IS THE LEAVE PRORATED TO COVER ONLY THE EQUIVALENT TIME FOR WHICH THE WAR DEPARTMENT PAYS HIM? FOR EXAMPLE; IF THE EMPLOYEE'S SALARY IS $200 PER MONTH IN HIS FEDERAL POSITION AND HE EARNS $100 PER MONTH WHILE ON SUSPENSION AND THE WAR DEPARTMENT PAYS HIM THE DIFFERENCE, NAMELY; $100 PER MONTH, DOES HE EARN LEAVE FOR 30 DAYS EACH MONTH, OR FOR 15 DAYS EACH MONTH WHICH WOULD BE THE EQUIVALENT TIME FOR WHICH THE WAR DEPARTMENT WOULD PAY HIS SALARY?

(3) IF THE SALARY DURING SUSPENSION EXCEEDS THAT WHICH WOULD HAVE BEEN EARNED IN HIS FEDERAL POSITION, AND THEREFORE THE WAR DEPARTMENT IS PROHIBITED FROM MAKING ANY PAYMENT, ALTHOUGH WILLING IF NOT SO RESTRICTED, WOULD THE EMPLOYEE EARN LEAVE FOR THE PERIOD OF SUSPENSION?

(4) IF IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT PAYMENT FOR THE PERIOD OF SUSPENSION SHOULD NOT BE MADE, IS LEAVE EARNED DURING THE ENTIRE PERIOD OF SUSPENSION?

FOR THE PURPOSE OF THIS DECISION IT IS ASSUMED THAT THE CASE PRESENTED BY YOU AS BEING ,HYPOTHETICAL" IS MEANT TO BE TYPICAL OF CASES CONFRONTING THE DEPARTMENT IN THE MATTER OF ADMINISTERING THE ACT IN QUESTION.

THE ACT OF DECEMBER 17, 1942, 56 STAT. 1053, QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER IS A REENACTMENT, IN SUBSTANCE, OF CORRESPONDING PROVISIONS APPEARING IN THE ACT OF JUNE 28, 1940, 54 STAT. 679, 681, WHICH EXPIRED BY OPERATION OF LAW JUNE 30, 1942 (SEE SECTION 12 OF THE STATUTE). REGARDING THE EARLIER LAW OF JUNE 28, 1940, IT WAS HELD IN DECISION OF JANUARY 29, 1942, 21 COMP. GEN. 717, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

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.

GIVING CONSIDERATION TO THE LEGISLATIVE HISTORY OF THE EARLIER ENACTMENT, PARTICULARLY SENATE REPORT NO. 1863 ON BILL H.R. 9822, SEVENTY-SIXTH CONGRESS, THIRD SESSION, WHICH BECAME SAID STATUTE, QUOTED IN PERTINENT PART IN THE DECISION OF JANUARY 29, 1942, THE CONCLUSION APPEARS JUSTIFIED THAT THE CONGRESS INTENDED EMPLOYEES WHO ARE CLEARED OF SUBVERSIVE CHARGES AFTER SUSPENSION FROM DUTY, ARE AUTHORIZED, WITHIN THE DISCRETION OF THE SECRETARY OF WAR, TO BE RESTORED TO ACTIVE DUTY WITHOUT THE LOSS OF ANY BENEFIT OF COMPENSATION OR LEAVE OF ABSENCE TO WHICH THEY OTHERWISE WOULD HAVE BEEN ENTITLED HAD THEY REMAINED ON ACTIVE DUTY DURING THE PERIOD OF SUSPENSION. HENCE, THE RULES STATED IN THE DECISION OF AUGUST 6, 1938, 18 COMP. GEN. 136, TWO PARAGRAPHS OF THE SYLLABUS OF WHICH ARE QUOTED IN YOUR LETTER, HAVING NO RELATION TO THE STATUTE HERE UNDER CONSIDERATION, ARE NOT FOR APPLICATION IN ANSWERING THE QUESTIONS SUBMITTED.

IN VIEW OF THE PURPOSE AND INTENT OF THE CONTROLLING STATUTE AS ABOVE STATED, QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE.

REFERRING TO QUESTIONS 2 AND 3, THE EMPLOYEE IN BOTH CASES WOULD EARN LEAVE DURING THE ENTIRE PERIOD OF SUSPENSION, THE EMPLOYEES BEING REGARDED AS HAVING RECEIVED THEIR COMPENSATION FROM THE FEDERAL GOVERNMENT FOR ACCRUAL OF LEAVE PURPOSES.

AS THE CONTROLLING STATUTE VESTS A DISCRETION IN THE SECRETARY OF WAR EITHER TO ALLOW OR TO DENY COMPENSATION FOR THE PERIOD OF SUSPENSION WHEN AN EMPLOYEE IS REINSTATED TO ACTIVE DUTY, IT FOLLOWS THAT IF THE SECRETARY, IN HIS DISCRETION, DENIES COMPENSATION FOR THE PERIOD OF SUSPENSION, THAT PERIOD SHOULD BE REGARDED AS LEAVE OF ABSENCE WITHOUT PAY AND LEAVE WITH PAY WOULD ACCRUE DURING SUCH PERIOD ONLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THAT PORTION OF SECTION 10 OF THE ANNUAL LEAVE REGULATIONS PROVIDING AS FOLLOWS:

* * * EXCEPT AS PROVIDED IN SECTION 9 HEREOF, ANNUAL LEAVE SHALL NOT ACCRUE TO AN EMPLOYEE WHILE IN A NON-PAY STATUS DUE TO LEAVE WITHOUT PAY OR FURLOUGH WHEN THE DURATION OF SUCH NON-PAY STATUS IN ANY CALENDAR YEAR AGGREGATES 30 CALENDAR DAYS OR MORE: PROVIDED, THAT WHEN THE DURATION OF SUCH NON-PAY STATUS IS IN EXCESS OF 30 CALENDAR DAYS IN ANY CALENDAR YEAR, SUCH EXCESS SHALL EFFECT THE ACCRUAL OF ANNUAL LEAVE ONLY WHEN IT AGGREGATES 10 CALENDAR DAYS, AND LIKEWISE FOR EACH AGGREGATE PERIOD OF 10 CALENDAR DAYS THEREAFTER. ANNUAL LEAVE SHALL NOT ACCRUE DURING ANY PERIOD OF SUSPENSION FOR DISCIPLINARY REASONS.