B-67951, JULY 31, 1947, 27 COMP. GEN. 54

B-67951: Jul 31, 1947

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AS FOLLOWS: ONE OF OUR "WHEN ACTUALLY EMPLOYED" PERSONNEL WHO IS SUBJECT TO THE LEAVE REGULATIONS WAS SUMMONED TO PERFORM JURY SERVICE WITH THE DISTRICT CRIMINAL COURT. HE IS NOT AN EMPLOYEE WITHIN THE MEANING OF THE JURY DUTY ACT OF JUNE 29. HE IS NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY FOR JURY SERVICE (20 C.G. 133. GEN. 276 IT WAS HELD. IN VIEW OF THE ABOVE-QUOTED EXCERPT AND SINCE IT SEEMS THAT THERE IS NOT A QUESTION OF DUAL COMPENSATION INVOLVED. IT WOULD BE APPRECIATED IF YOU WILL INFORM US WHETHER THAT CONCLUSION IS CORRECT. HE IS NOT ENTITLED TO THE BENEFITS PROVIDED FOR IN SECTION 1 OF THE ABOVE-QUOTED ACT. THAT EMPLOYEES IN THAT STATUS LIKEWISE ARE NOT SUBJECT TO THE INHIBITION CONTAINED IN SECTION 2 OF THE SAID ACT.

B-67951, JULY 31, 1947, 27 COMP. GEN. 54

LEAVES OF ABSENCE - ANNUAL - DURING PERIOD OF STATE JURY SERVICE - TEMPORARY "WHEN ACTUALLY EMPLOYED" EMPLOYEES AN EMPLOYEE HOLDING A TEMPORARY APPOINTMENT ON A "WHEN ACTUALLY EMPLOYED" BASIS WHEN CALLED TO SERVE AS A JUROR IN A STATE COURT NOT BEING AN "EMPLOYEE OF THE UNITED STATES" WITHIN THE MEANING OF THE ACT OF JUNE 29, 1940, ENTITLED TO COURT LEAVE OF ABSENCE WHILE SERVING AS A JUROR, MAY BE GRANTED ANNUAL LEAVE FOR THE PERIOD DURING WHICH HE RECEIVED FEES FOR JURY SERVICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, JULY 31, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JULY 11, 1947, AS FOLLOWS:

ONE OF OUR "WHEN ACTUALLY EMPLOYED" PERSONNEL WHO IS SUBJECT TO THE LEAVE REGULATIONS WAS SUMMONED TO PERFORM JURY SERVICE WITH THE DISTRICT CRIMINAL COURT, TARRANT COUNTY, TEXAS AND PERFORMED SUCH SERVICE FOR FIVE WORKING DAYS RECEIVING PAYMENT IN THE AMOUNT OF TWENTY DOLLARS.

HAVING A TEMPORARY APPOINTMENT, HE IS NOT AN EMPLOYEE WITHIN THE MEANING OF THE JURY DUTY ACT OF JUNE 29, 1940, 5 U.S.C. 30N. THEREFORE, HE IS NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY FOR JURY SERVICE (20 C.G. 133; ID 145; ID. 276). IN THE ABSENCE OF A SPECIFIC RULING THE ADMINISTRATIVE OFFICE HAVING JURISDICTION OVER THIS EMPLOYEE PLACED HIM ON LEAVE WITHOUT PAY FOR THE PERIOD OF TIME HE SERVED ON THE JURY ALTHOUGH HE HAD MORE THAN 6 DAYS ANNUAL LEAVE TO HIS CREDIT.

IN 20 COMP. GEN. 276 IT WAS HELD---

"* * * AN EMPLOYEE OF THE CLASS REFERRED TO WOULD NOT APPEAR TO BE AN "EMPLOYEE OF THE UNITED STATES" WITHIN THE MEANING OF THE JURY LEAVE ACT * * * AND WHILE SERVING AS A JUROR SUCH EMPLOYEE WOULD OCCUPY A STATUS SIMILAR TO A JUROR AND NOT CONNECTED WITH THE GOVERNMENT SERVICE.' ITALICS SUPPLIED.)

IN VIEW OF THE ABOVE-QUOTED EXCERPT AND SINCE IT SEEMS THAT THERE IS NOT A QUESTION OF DUAL COMPENSATION INVOLVED, IT WOULD APPEAR PROPER TO ALLOW THE EMPLOYEE ANNUAL LEAVE FOR THE TIME INVOLVED. IT WOULD BE APPRECIATED IF YOU WILL INFORM US WHETHER THAT CONCLUSION IS CORRECT.

THE ACT OF JUNE 29, 1940, 54 STAT. 689, PROVIDES AS FOLLOWS:

THAT THE COMPENSATION OF ANY EMPLOYEE OF THE UNITED STATES OR OF THE DISTRICT OF COLUMBIA WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY STATE COURT OR COURT OF THE UNITED STATES SHALL NOT BE DIMINISHED DURING THE TERM OF SUCH JURY SERVICE BY REASON OF SUCH ABSENCE, EXCEPT AS PROVIDED IN SECTION 3, NOR SHALL SUCH PERIOD OF SERVICE BE DEDUCTED FROM THE TIME ALLOWED FOR ANY LEAVE OF ABSENCE AUTHORIZED BY LAW.

SEC. 2. ANY EMPLOYEE SPECIFIED IN SECTION 1 WHO MAY BE CALLED UPON FOR JURY SERVICE IN ANY COURT OF THE UNITED STATES SHALL NOT RECEIVE ANY COMPENSATION FOR SUCH SERVICE.

INASMUCH AS THE EMPLOYEE REFERRED TO IN YOUR LETTER HELD A TEMPORARY APPOINTMENT ON A "WHEN ACTUALLY EMPLOYED" BASIS AT THE TIME HE SERVED AS A JUROR, HE IS NOT ENTITLED TO THE BENEFITS PROVIDED FOR IN SECTION 1 OF THE ABOVE-QUOTED ACT. SEE 20 COMP. GEN. 145. IT FOLLOWS, THEREFORE, THAT EMPLOYEES IN THAT STATUS LIKEWISE ARE NOT SUBJECT TO THE INHIBITION CONTAINED IN SECTION 2 OF THE SAID ACT. ACCORDINGLY, THERE IS NO LEGAL OBJECTION TO AN OTHERWISE PROPER GRANT OF ANNUAL LEAVE TO TEMPORARY WHEN- ACTUALLY-EMPLOYED PERSONNEL COVERING A PERIOD DURING WHICH SUCH EMPLOYEES RECEIVED FEES FOR JURY SERVICE. SEE 7 COMP. GEN. 754.