B-60257, SEPTEMBER 9, 1946, 26 COMP. GEN. 168

B-60257: Sep 9, 1946

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHICH IS APPLICABLE TO "ALL CIVILIAN EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED.'. 1946: I HAVE YOUR LETTER OF AUGUST 26. AS FOLLOWS: THIS LETTER IS WRITTEN AT THE DIRECTION OF THE MEMBERS OF THE PHILIPPINE WAR DAMAGE COMMISSION TO OBTAIN A RULING INTERPRETATIVE OF THE MEANING OF SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT OF 1946 ( PUBLIC LAW 370. IT IS THE DESIRE OF THE MEMBERS OF THE PHILIPPINE WAR DAMAGE COMMISSION TO GRANT ITS EMPLOYEES ANNUAL LEAVE IN EXCESS OF THE 26 DAYS ANNUAL LEAVE GRANTED EMPLOYEES OF OTHER AGENCIES. IT IS PROPOSED TENTATIVELY TO GRANT AMERICAN EMPLOYEES OF THIS COMMISSION 60 DAYS ANNUAL LEAVE. IS PROPOSED THAT BOTH THE HOME LEAVE AND THE SIMPLE OR LOCAL LEAVE SHALL BE CUMULATIVE UP TO 120 DAYS.

B-60257, SEPTEMBER 9, 1946, 26 COMP. GEN. 168

LEAVES OF ABSENCE - ANNUAL - PHILIPPINE WAR DAMAGE COMMISSION EMPLOYEES THE AUTHORITY GRANTED THE PHILIPPINE WAR DAMAGE COMMISSION BY SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT OF 1946 TO FIX THE "COMPENSATION AND ALLOWANCES" OF ITS EMPLOYEES "WITHOUT REGARD TO * * * THE CLASSIFICATION ACT OF 1923, AS AMENDED," DOES NOT INCLUDE THE AUTHORITY TO GRANT LEAVE IN EXCESS OF THAT PRESCRIBED BY THE ANNUAL LEAVE ACT OF MARCH 14, 1936, WHICH IS APPLICABLE TO "ALL CIVILIAN EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED.'

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, PHILIPPINE WAR DAMAGE COMMISSION, SEPTEMBER 9, 1946:

I HAVE YOUR LETTER OF AUGUST 26, 1946, AS FOLLOWS:

THIS LETTER IS WRITTEN AT THE DIRECTION OF THE MEMBERS OF THE PHILIPPINE WAR DAMAGE COMMISSION TO OBTAIN A RULING INTERPRETATIVE OF THE MEANING OF SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT OF 1946 ( PUBLIC LAW 370, 79TH CONGRESS), IN REFERENCE TO ANNUAL AND SICK LEAVE FOR THE COMMISSION'S PERSONNEL WHILE ON DUTY IN THE PHILIPPINES.

IT IS THE DESIRE OF THE MEMBERS OF THE PHILIPPINE WAR DAMAGE COMMISSION TO GRANT ITS EMPLOYEES ANNUAL LEAVE IN EXCESS OF THE 26 DAYS ANNUAL LEAVE GRANTED EMPLOYEES OF OTHER AGENCIES. IT IS PROPOSED TENTATIVELY TO GRANT AMERICAN EMPLOYEES OF THIS COMMISSION 60 DAYS ANNUAL LEAVE--- 30 DAYS OF WHICH SHALL BE CONSIDERED SIMPLE OR LOCAL LEAVE USABLE ONLY FOR VACATION OR REST PERIODS WITHIN THE PHILIPPINE ISLANDS, AND AN ADDITIONAL 30 DAYS FOR HOME LEAVE FOR THOSE WHO MAY WISH TO RETURN TO THE UNITED STATES. IS PROPOSED THAT BOTH THE HOME LEAVE AND THE SIMPLE OR LOCAL LEAVE SHALL BE CUMULATIVE UP TO 120 DAYS. SICK LEAVE WOULD BE ESTABLISHED AT THE RATE OF 15 DAYS PER ANNUM.

THE GRANTING OF HOME LEAVE, HOWEVER, SHALL BE REGARDED AS A PRIVILEGE AND NOT A RIGHT AND CAN ONLY BE GRANTED TO AN EMPLOYEE AT THE DISCRETION OF THE COMMISSION OR AT THE COMPLETION OF THE EMPLOYEE'S TERM OF SERVICE. STATED ABOVE, THESE PROPOSALS ARE TENTATIVE AND HAVE NOT BEEN FORMALLY ADOPTED BY THE COMMISSION BECAUSE OF THE FEELING THAT ADDITIONAL RESEARCH MAY BE NECESSARY TO ASCERTAIN THE EXACT PROVISIONS FOR LEAVE.

THE PROVISIONS OF SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT STATE THAT "THE COMMISSION MAY * * * FIX THE COMPENSATION AND ALLOWANCES OF SUCH OFFICERS, ATTORNEYS, AND EMPLOYEES, AND MAY MAKE SUCH EXPENDITURES, AS MAY BE NECESSARY TO CARRY OUT ITS FUNCTIONS * * *.' THE LEGISLATIVE HISTORY RECORD REGARDING THE INTENT OF CONGRESS AS TO LEAVE PRIVILEGES IS SILENT. HOWEVER LEAVE IS AN ALLOWANCE UNDER THE DEFINITION OF THE WORD "ALLOWANCE.' IT APPEARS OBVIOUS THAT, WHEN ONE CONSIDERS THAT THE VERY LIBERAL PROVISIONS OF OTHER SECTIONS OF THE ACT GRANT WIDE DISCRETIONARY POWERS TO THE COMMISSION ON MORE IMPORTANT MATTERS, THE CONGRESS INTENDED THAT SECTION 101 (B) SHOULD GIVE THE COMMISSION THE POWER TO ESTABLISH ITS OWN LEAVE SYSTEM.

THE CONGRESS TOOK OFFICIAL RECOGNITION OF THE NECESSITY FOR ADDITIONAL LEAVE FOR PERSONNEL STATIONED ABROAD IN THE ENACTMENT OF THE FOREIGN SERVICE ACT OF 1946 ( PUBLIC LAW 724, 79TH CONGRESS) IN PROVIDING FOR ANNUAL LEAVE FOR THOSE IN THE FOREIGN SERVICE. IN TAKING THIS ACTION THE COMMITTEE ON FOREIGN AFFAIRS OF THE HOUSE OF REPRESENTATIVES IN HOUSE REPORT NO. 2508, 79TH CONGRESS, STATED THE FOLLOWING IN REFERENCE TO HOME LEAVE:

"WHEN IT DOES OCCUR, IT IS OBVIOUSLY IN THE PUBLIC INTERESTS AND IN THE INTERESTS OF THE OFFICER OR EMPLOYEE, ESPECIALLY IF HE COMES FROM A DISTANT POST, THAT HE SHOULD HAVE 60 CALENDAR DAYS LEAVE IN THE UNITED STATES. IT IS THE EXPERIENCE OF MOST FOREIGN SERVICE PERSONNEL THAT A CONSIDERABLE PROPORTION OF THE 60 DAYS MUST BE DEVOTED TO MEDICAL CHECK- UPS, DENTAL WORK, THE PURCHASE OF NEW WARDROBES, AND OTHER PERSONAL PROBLEMS.'

IN AUTHORIZING THE ESTABLISHMENT OF THE PHILIPPINE WAR DAMAGE COMMISSION THE CONGRESS STATED IN THE PHILIPPINE REHABILITATION ACT ( PUBLIC LAW 370, 79TH CONGRESS) THAT THE LIFE OF THE COMMISSION SHOULD NOT EXCEED FIVE YEARS. THAT, IN EFFECT, MEANS THAT THE COMMISSION'S LIFE IS A TEMPORARY ONE. EMPLOYEES OF THE COMMISSION, THEREFORE, WILL BE FACED WITH THAT REALITY. THAT REALIZATION IS AN IMPORTANT FACTOR IN THE RECRUITMENT OF COMPETENT PERSONNEL AND THAT DETERRENT CAN ONLY BE OVERCOME BY PROVISIONS FOR ADEQUATE HOME LEAVE TO PERMIT EMPLOYEES TO MAKE NECESSARY READJUSTMENTS AND OBTAIN NEW EMPLOYMENT AFTER HAVING BEEN STATIONED 11,000 MILES FROM WASHINGTON.

IT IS EXTREMELY IMPORTANT THAT THIS COMMISSION HAVE YOUR OPINION PROMPTLY SO THAT IT MAY ADOPT A LEAVE SYSTEM WHICH WOULD ASSIST IN THE RECRUITMENT OF THE MOST COMPETENT AND QUALIFIED PERSONNEL AVAILABLE FOR ASSIGNMENT TO DUTY IN THE PHILIPPINES.

THE ACT OF MARCH 14, 1936, 49 STAT. 1161, ENTITLED,"TO PROVIDE FOR VACATIONS TO GOVERNMENT EMPLOYEES, AND FOR OTHER PURPOSES," IS, IN PERTINENT PART, AS FOLLOWS:

THAT WITH THE EXCEPTION OF TEACHERS AND LIBRARIANS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA AND OFFICERS AND EMPLOYEES OF OF THE PANAMA CANAL AND PANAMA RAILROAD ON THE ISTHMUS OF PANAMA AND EXCEPT AS PROVIDED IN SECTION 4 HEREOF, ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, REGARDLESS OF THEIR TENURE, IN ADDITION TO ANY ACCRUED LEAVE, SHALL BE ENTITLED TO TWENTY-SIX DAYS' ANNUAL LEAVE WITH PAY EACH CALENDAR YEAR, EXCLUSIVE OF SUNDAYS AND HOLIDAYS: PROVIDED, THAT THE PART UNUSED IN ANY YEAR SHALL BE ACCUMULATED FOR SUCCEEDING YEARS UNTIL IT TOTALS NOT EXCEEDING SIXTY DAYS. THIS ACT SHALL NOT AFFECT ANY SICK LEAVE TO WHICH EMPLOYEES ARE NOW OR MAY HEREAFTER BE ENTITLED. TEMPORARY EMPLOYEES, EXCEPT TEMPORARY EMPLOYEES ENGAGED ON CONSTRUCTION WORK AT HOURLY RATES, SHALL BE ENTITLED TO TWO AND ONE-HALF DAYS LEAVE FOR EACH MONTH OF SERVICE. THE ANNUAL LEAVE HEREIN AUTHORIZED SHALL BE GRANTED AT SUCH TIMES AS THE HEADS OF THE VARIOUS DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS MAY PRESCRIBE. THIS ACT BECOMES EFFECTIVE JANUARY 1, 1936.

SEC. 4. NOTHING IN THIS ACT SHALL AFFECT THE POSTMASTER GENERAL AND OFFICERS AND EMPLOYEES IN OR UNDER THE POST OFFICE DEPARTMENT: PROVIDED, THAT OFFICERS AND EMPLOYEES IN THE DEPARTMENTAL SERVICE AND IN THE MAIL EQUIPMENT SHOPS OF THE POST OFFICE DEPARTMENT SHALL BE INCLUDED WITHIN THE PROVISIONS OF THIS ACT.

SEC. 5. NOTHING IN THIS ACT SHALL BE CONSTRUED TO PREVENT THE CONTINUANCE OF ANY EXISTING LEAVE DIFFERENTIAL NOW OBTAINING FOR THE BENEFIT OF EMPLOYEES OF THE FEDERAL GOVERNMENT STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES.

WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL, PROVISIONS ESSENTIALLY SIMILAR TO THOSE QUOTED ABOVE ARE CONTAINED IN PUBLIC LAW 472, ALSO APPROVED MARCH 14, 1936 (49 STAT. 1162, AUTHORIZING SICK LEAVE AT THE RATE OF 1-1/4 DAYS PER MONTH FOR CIVILIAN EMPLOYEES OF THE GOVERNMENT.

IT WILL BE NOTED THAT, WITH THE EXCEPTION OF CERTAIN EMPLOYEES SPECIFICALLY EXEMPT THEREFROM, SECTION 1 OF PUBLIC LAW 471, QUOTED ABOVE, REFERS TO "ALL CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED.' HENCE, IN THE ABSENCE OF EXPRESS STATUTORY PROVISION THEREFOR, THERE APPEARS NO BASIS UPON WHICH ANNUAL LEAVE IN EXCESS OF THAT AUTHORIZED UNDER THE PROVISIONS OF THE SAID 1936 ANNUAL LEAVE STATUTE MAY BE GRANTED ADMINISTRATIVELY TO CIVILIAN EMPLOYEES OF THE PHILIPPINE WAR DAMAGE COMMISSION.

SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT OF 1946, PUBLIC LAW 370, APPROVED APRIL 30, 1946, 60 STAT. 128--- QUOTED IN PART IN YOUR LETTER--- AUTHORIZES THE COMMISSION TO APPOINT AND FIX THE COMPENSATION AND ALLOWANCES OF ITS EMPLOYEES "WITHOUT REGARD TO THE CIVIL-SERVICE LAWS OR THE CLASSIFICATION ACT OF 1923, AS AMENDED.' ANNUAL LEAVE AS AUTHORIZED BY THE 1936 ACT, SUPRA, IS A RIGHT--- NOT A PRIVILEGE--- AND, WHILE THE TIME AT WHICH IT MAY BE GRANTED IS SUBJECT TO ADMINISTRATIVE DISCRETION, THERE IS NO ADMINISTRATIVE AUTHORITY EITHER TO INCREASE OR DECREASE THE AMOUNT OF SUCH LEAVE. HENCE, THE BASIS UPON WHICH IT IS STATED THAT ANNUAL LEAVE IS AN "ALLOWANCE" WITHIN THE MEANING OF SECTION 101 (B) OF THE PHILIPPINE REHABILITATION ACT OF 1946, SUPRA, IS NOT UNDERSTOOD. RATHER, THE TERM "ALLOWANCES" AS USED IN THAT ACT REASONABLY APPEARS TO HAVE REFERENCE TO SUCH ALLOWANCES AS WOULD AFFECT COMPENSATION. SEE DECISION OF TODAY, TO YOU, UNDER DOCKET NO. B-60256, 26 COMP. GEN. 165.

THE FACT THAT ANNUAL LEAVE IN EXCESS OF THAT PROVIDED BY THE SAID ACT OF MARCH 14, 1936, HAS BEEN AUTHORIZED FOR FOREIGN SERVICE OFFICERS AND EMPLOYEES IN NOWISE MAY BE VIEWED AS EVIDENCING AN INTENT ON THE PART OF THE CONGRESS THAT SIMILAR BENEFITS ARE TO BE GRANTED ADMINISTRATIVELY TO EMPLOYEES OF OTHER FEDERAL AGENCIES SERVING OUTSIDE THE UNITED STATES.

SUCH LEAVE DIFFERENTIAL IN FAVOR OF FOREIGN SERVICE OFFICERS AND EMPLOYEES HAS EXISTED BY EXPRESS STATUTORY PROVISION AT LEAST SINCE 1931 (SEE SECTION 22 OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1210).

ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO AUTHORITY OF LAW WHEREBY EMPLOYEES OF THE PHILIPPINE WAR DAMAGE COMMISSION ON DUTY IN THE PHILIPPINES OR ELSEWHERE ADMINISTRATIVELY MAY BE GRANTED ANNUAL LEAVE IN EXCESS OF THAT PRESCRIBED BY THE SAID ACT OF MARCH 14, 1936.