B-6225, OCTOBER 6, 1939, 19 COMP. GEN. 424

B-6225: Oct 6, 1939

Additional Materials:

Contact:

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

 

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

COMPENSATION - SUSPENSION FROM DUTY PENDING CITIZENSHIP DETERMINATION - EFFECT OF RESTORATION TO DUTY ON SUSPENSION PERIOD WHERE AN EMPLOYEE WAS SUSPENDED FROM DUTY PENDING ESTABLISHMENT OF HIS CITIZENSHIP STATUS. - WITHOUT WHICH STATUS HE COULD NOT HAVE BEEN EMPLOYED AND PAID FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR HIS SALARY IN VIEW OF A SPECIFIC STATUTORY PROHIBITION. 1939: I HAVE YOUR LETTER OF SEPTEMBER 27. AS FOLLOWS: YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER HARRY R. DURING WHICH PERIOD HE WAS SUSPENDED FROM DUTY PENDING ESTABLISHMENT OF CITIZENSHIP STATUS. SMITH WAS ORDERED SUSPENDED HE WAS REGARDED AS AN ALIEN AND PAY WAS WITHHELD. THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE GOVERNMENT OF THE UNITED STATES.

B-6225, OCTOBER 6, 1939, 19 COMP. GEN. 424

COMPENSATION - SUSPENSION FROM DUTY PENDING CITIZENSHIP DETERMINATION - EFFECT OF RESTORATION TO DUTY ON SUSPENSION PERIOD WHERE AN EMPLOYEE WAS SUSPENDED FROM DUTY PENDING ESTABLISHMENT OF HIS CITIZENSHIP STATUS--- WITHOUT WHICH STATUS HE COULD NOT HAVE BEEN EMPLOYED AND PAID FROM THE APPROPRIATION OTHERWISE AVAILABLE FOR HIS SALARY IN VIEW OF A SPECIFIC STATUTORY PROHIBITION--- HE MAY NOT BE PAID SALARY FOR THE PERIOD OF THE SUSPENSION, EXCEPT FOR SUCH PART THEREOF AS MAY EQUAL THE ACCRUED ANNUAL LEAVE TO HIS CREDIT ON DATE OF SUSPENSION, NOTWITHSTANDING HE HAS BEEN RESTORED TO DUTY AND THAT A COURT DECISION RENDERED, IN ANOTHER CASE, DURING THE PERIOD OF SUSPENSION REMOVES THE DOUBT AS TO HIS AMERICAN CITIZENSHIP.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF LABOR, OCTOBER 6, 1939:

I HAVE YOUR LETTER OF SEPTEMBER 27, 1939, AS FOLLOWS:

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER HARRY R. SMITH, AN IMMIGRANT INSPECTOR, MAY BE PAID COMPENSATION FOR THE PERIOD JULY 12, 1938, TO SEPTEMBER 22, 1939, DURING WHICH PERIOD HE WAS SUSPENDED FROM DUTY PENDING ESTABLISHMENT OF CITIZENSHIP STATUS.

AT THE TIME MR. SMITH WAS ORDERED SUSPENDED HE WAS REGARDED AS AN ALIEN AND PAY WAS WITHHELD, PURSUANT TO SECTION 3 OF THE ACT APPROVED APRIL 27, 1938.

"NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT OR AUTHORIZED HEREBY TO BE EXPENDED SHALL BE USED TO PAY THE COMPENSATION OF ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES, OR OF ANY AGENCY, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE GOVERNMENT OF THE UNITED STATES, WHOSE POST OF DUTY IS IN CONTINENTAL UNITED STATES UNLESS SUCH OFFICER OR EMPLOYEE IS A CITIZEN OF THE UNITED STATES OR A PERSON IN THE SERVICE OF THE UNITED STATES ON THE DATE OF THE APPROVAL OF THIS ACT WHO, BEING ELIGIBLE FOR CITIZENSHIP, HAS FILED A DECLARATION OF INTENTION TO BECOME A CITIZEN OR WHO OWES ALLEGIANCE TO THE UNITED STATES.'

THE FACTS CONCERNING MR. SMITH'S CITIZENSHIP STATUS ARE FULLY SET FORTH IN DEPARTMENTAL LETTER ADDRESSED TO YOUR OFFICE UNDER DATE OF JULY 22, 1938 (55600/5). UPON REFERENCE TO THE SAID LETTER, IT WILL BE NOTED THAT MR. SMITH WAS CONSIDERED AN ALIEN, IN VIEW OF THE OPINION OF THE ATTORNEY GENERAL IN THE TOBIASSEN CASE, 36 OPS. ATTY. GEN. 535. HOWEVER, THE SUPREME COURT OF THE UNITED STATES ON MAY 29, 1939, HANDED DOWN AN OPINION IN THE CASE OF PERKINS, ET AL. V. ELG, FROM WHICH IT APPEARS THAT SMITH NEVER LOST HIS AMERICAN CITIZENSHIP. ACCORDINGLY, HE WAS ORDERED RESTORED TO DUTY ON SEPTEMBER 22, 1939.

ALTHOUGH MR. SMITH PERFORMED NO SERVICE FOR THE GOVERNMENT DURING THE PERIOD HE WAS SUSPENDED, HE WAS NOT SUSPENDED FOR DISCIPLINARY PURPOSES OR BECAUSE OF ANY FAULT ON HIS PART. MR. SMITH'S COMPENSATION IS FIXED AT THE RATE OF $2,700 PER ANNUM, IN ACCORDANCE WITH THE SO CALLED IMMIGRANT INSPECTOR PAY BILL (ACT OF MAY 29, 1928, 45 STAT. 954). THE AMOUNT INVOLVED, IF PAYMENT MAY BE MADE FOR THE PERIOD STATED, IS$3,232.50, OF WHICH AMOUNT $2,617.50 WOULD BE PAYABLE FROM THE APPROPRIATION " SALARIES, FIELD SERVICE, IMMIGRATION AND NATURALIZATION SERVICE, 1939," AND $615.00 FROM THE APPROPRIATION " SALARIES, FIELD SERVICE, IMMIGRATION AND NATURALIZATION SERVICE, 1940.'

THE QUESTION WHETHER AN EMPLOYEE MAY BE PAID COMPENSATION FOR A PERIOD DURING WHICH HE, FOR ANY REASON, WAS SUSPENDED FROM DUTY BY THE HEAD OF A DEPARTMENT HAVING THE POWER OF APPOINTMENT AND REMOVAL, HAS, UPON NUMEROUS OCCASIONS, RECEIVED THE CONSIDERATION OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT. ASIDE FROM ANY CONSIDERATION OF ACCRUED LEAVE, THE QUESTION HAS CONSISTENTLY BEEN ANSWERED IN THE NEGATIVE.

IN A DECISION OF JANUARY 11, 1930, 9 COMP. GEN. 284, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

AN EMPLOYEE WHO WAS SUSPENDED FROM DUTY PENDING THE OUTCOME OF AN INVESTIGATION BY THE UNITED STATES ATTORNEY, WHOSE SUSPENSION WAS APPROVED BY THE HEAD OF THE DEPARTMENT WITH THE UNDERSTANDING THAT HE SHOULD BE ENTITLED TO HIS REGULAR COMPENSATION IN THE EVENT HE WAS PROVEN NOT GUILTY OF THE CHARGES PREFERRED AGAINST HIM, AND WHO WAS FOUND NOT GUILTY AND RESTORED TO A DUTY STATUS, MAY NEVERTHELESS NOT BE PAID FOR THE PERIOD OF SUSPENSION DURING WHICH HE RENDERED NO SERVICE.

IN DECISION OF APRIL 14, 1925, 4 COMP. GEN. 849, IT WAS STATED AT PAGE 851:

IT HAS BEEN HELD BY THE COMPTROLLER OF THE TREASURY, AND BY THIS OFFICE, THAT WHERE THE HEAD OF AN EXECUTIVE DEPARTMENT AS AN INCIDENT TO THE POWER OF APPOINTMENT AND REMOVAL SUSPENDS AN EMPLOYEE FROM DUTY PENDING THE INVESTIGATION OF OFFICIAL MISCONDUCT THE PAY OF THE EMPLOYEE FOR THE PERIOD OF SUSPENSION IS FORFEITED; AND THAT NO ORDER CAN OPERATE RETROACTIVELY TO RESTORE PAY FOR ANY PERIOD OF SUSPENSION. 21 COMP. DEC. 478; 20 ID. 505; 11 ID. 661. A SUSPENDED OFFICER OR EMPLOYEE IS IN A NONPAY STATUS FOR THE PERIOD OF SUSPENSION WHETHER THE ORDER OF SUSPENSION SPECIFICALLY STATES THAT IT SHALL BE WITHOUT PAY, OR IS MERELY SILENT UPON THE QUESTION. 11 COMP. DEC. 661. SEE ALSO 25 COMP. DEC. 996.

THE DECISION OF FEBRUARY 15, 1927, 6 COMP. GEN. 534, HELD AS FOLLOWS AT PAGE 536:

THE RIGHT OF THE EMPLOYEE TO PAY DEPENDS ON HIS BEING IN A DUTY STATUS, THAT IS, IN ACTUAL PERFORMANCE OF SERVICE OR ON AUTHORIZED LEAVE OF ABSENCE WITH PAY. HE IS IN A NONPAY STATUS FOR THE PERIOD OF SUSPENSION WHERE THE ORDER OF SUSPENSION SPECIFICALLY STATES THAT IT SHALL BE WITHOUT PAY OR IS MERELY SILENT UPON THE QUESTION. 11 COMP. DEC. 661; 25 ID. 996; 4 COMP. GEN. 849. * * * THE ACTUAL SUSPENSION OR RELIEF FROM DUTY IN THIS CASE WAS BY THE DIRECTOR OF THE VETERANS' BUREAU. 1 COMP. GEN. 42 AND CASES THEREIN CITED. THE FACT THAT THE CHARGES WERE DISPROVED AND THE EMPLOYEE RESTORED TO DUTY DOES NOT AUTHORIZE PAYMENT OF SALARY DURING THE PERIOD OF SUSPENSION LAWFULLY MADE. 20 COMP. DEC. 505; 21 ID. 478.

WHILE, IN THE PRESENT CASE, NO CHARGES WERE PREFERRED AGAINST THE EMPLOYEE, NEVERTHELESS IT WAS ADMINISTRATIVELY DETERMINED THAT MR. SMITH WAS REQUIRED TO BE SUSPENDED FROM DUTY PENDING ESTABLISHMENT OF A CITIZENSHIP STATUS WITHOUT WHICH STATUS HE COULD NOT HAVE BEEN EMPLOYED AND PAID FROM THE APPROPRIATION AVAILABLE FOR THE SALARY OF IMMIGRANT INSPECTORS. THE RULE STATED IN THE QUOTED DECISIONS IS EQUALLY APPLICABLE IN THIS CASE.

IN DECISION OF AUGUST 30, 1937, 17 COMP. GEN. 199, IT WAS STATED AS FOLLOWS AT PAGE 201:

THE STATUTORY RIGHT TO ANNUAL LEAVE OF ABSENCE WITH PAY MAY NOT BE DENIED BECAUSE AN EMPLOYEE HAS BEEN SUSPENDED WITHOUT PAY, WHERE IT IS ADMINISTRATIVELY DETERMINED THAT THE SUSPENSION WAS UNJUSTIFIED AND THE EMPLOYEE HAS TO HIS CREDIT ACCRUED ANNUAL LEAVE EQUAL TO OR IN EXCESS OF THE PERIOD OF SUSPENSION WITHOUT PAY. IN SUCH A CASE LEAVE WITH PAY MAY BE SUBSTITUTED FOR THE SUSPENSION WITHOUT PAY IF THE EMPLOYEE REMAINS IN THE SERVICE, OR HE MAY BE PAID AFTER SEPARATION, FOR A REASON OTHER THAN THAT CAUSING THE SUSPENSION, THE AMOUNT OF COMPENSATION HE WOULD HAVE EARNED DURING THE PERIOD OF SUSPENSION. SEE 16 COMP. GEN. 818.

COMPARE O-NEIL V. UNITED STATES, 56 CT.1CLS. 89; ALSO, WILMETH V. UNITED STATES, 64 CT.1CLS. 368.

IN VIEW OF THE WELL-SETTLED PRECEDENTS, YOU ARE ADVISED THAT MR. SMITH MAY NOT BE PAID COMPENSATION FOR THE PERIOD OF SUSPENSION FROM DUTY JULY 12, 1938, TO SEPTEMBER 22, 1939, EXCEPT FOR SUCH PERIOD THEREOF AS MAY EQUAL THE ACCRUED ANNUAL LEAVE TO HIS CREDIT ON JULY 12, 1938.