B-84647, APRIL 19, 1949, 28 COMP. GEN. 593

B-84647: Apr 19, 1949

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1949: REFERENCE IS MADE TO YOUR LETTER OF MARCH 15. WAS DIRECTED TO PERFORM OVERTIME SERVICE ON SATURDAY AFTER HAVING COMPLETED HIS REGULAR TOUR OF DUTY. WAS RELIEVED FROM DUTY FOR THE BALANCE OF THE DAY AND SUMMARILY SENT HOME BY HIS SUPERVISOR. IN THAT CONNECTION DECISION IS ASKED UPON THE FOLLOWING QUESTIONS: (1) IS RELIEF FROM DUTY ON AN OVERTIME DAY TO BE CONSTRUED AS A SUSPENSION UNDER THE PROVISIONS OF THE ACT OF JUNE 10. 1948 ( PUBLIC LAW 623/? (2) IF THE ANSWER TO THE FIRST QUESTION IS AFFIRMATIVE. PROVIDES IN PERTINENT PART: SEC. 6 (A) NO PERSON IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES SHALL BE REMOVED OR SUSPENDED WITHOUT PAY THEREFROM EXCEPT FOR SUCH CAUSES AS WILL BE PROMOTE THE EFFICIENCY OF SUCH SERVICE AND FOR REASONS GIVEN IN WRITING.

B-84647, APRIL 19, 1949, 28 COMP. GEN. 593

OFFICERS AND EMPLOYEES - SUSPENSION FROM DUTY - REFUSAL TO PERFORM DUTIES A SUPERVISOR'S ACTION IN RELIEVING A CLASSIFIED EMPLOYEE FROM DUTY BECAUSE HE REFUSED TO PERFORM DUTIES PROPERLY ASSIGNED TO HIM ON AN OVERTIME DAY MAY NOT BE REGARDED AS CONSTITUTING A SUSPENSION FROM DUTY WITHIN THE MEANING OF SECTION 6 (A) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, PRESCRIBING THE PROCEDURES TO BE FOLLOWED IN SUSPENDING CLASSIFIED EMPLOYEES FOR CAUSE, BUT MERELY AS CONSTITUTING AN ADMINISTRATIVE RECOGNITION OF THE EMPLOYEE'S OWN ACTIONS IN REMOVING HIMSELF FROM DUTY STATUS TO A NON-DUTY STATUS.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, APRIL 19, 1949:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 15, 1949, REQUESTING DECISION AS TO THE APPLICABILITY OF SECTION 6 (A) OF THE ACT OF JUNE 10, 1948, 62 STAT. 354, 355, TO A SITUATION IN WHICH AN EMPLOYEE, A NON VETERAN WITH COMPETITIVE STATUS, WAS DIRECTED TO PERFORM OVERTIME SERVICE ON SATURDAY AFTER HAVING COMPLETED HIS REGULAR TOUR OF DUTY, MONDAY THROUGH FRIDAY, BUT WHO, AFTER REPORTING FOR WORK REFUSED TO PERFORM THE DUTIES PROPERLY ASSIGNED TO HIM AND BECAUSE OF SUCH REFUSAL, WAS RELIEVED FROM DUTY FOR THE BALANCE OF THE DAY AND SUMMARILY SENT HOME BY HIS SUPERVISOR. IN THAT CONNECTION DECISION IS ASKED UPON THE FOLLOWING QUESTIONS:

(1) IS RELIEF FROM DUTY ON AN OVERTIME DAY TO BE CONSTRUED AS A SUSPENSION UNDER THE PROVISIONS OF THE ACT OF JUNE 10, 1948 ( PUBLIC LAW 623/?

(2) IF THE ANSWER TO THE FIRST QUESTION IS AFFIRMATIVE, DOES IT FOLLOW THAT THE EMPLOYEE IN QUESTION MUST BE PAID FOR WORK WHICH HE REFUSED TO PERFORM, AND IF SO, MUST BE PAID AT OVERTIME RATES?

SECTION 6 OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, PUBLIC LAW 623, PROVIDES IN PERTINENT PART:

SEC. 6 (A) NO PERSON IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES SHALL BE REMOVED OR SUSPENDED WITHOUT PAY THEREFROM EXCEPT FOR SUCH CAUSES AS WILL BE PROMOTE THE EFFICIENCY OF SUCH SERVICE AND FOR REASONS GIVEN IN WRITING. ANY PERSON WHOSE REMOVAL OR SUSPENSION WITHOUT PAY IS SOUGHT SHALL (1) HAVE NOTICE OF THE SAME AND OF ANY CHARGES PREFERRED AGAINST HIM; (2) BE FURNISHED WITH A COPY OF SUCH CHARGES; (3) BE ALLOWED A REASONABLE TIME FOR FILING A WRITTEN ANSWER TO SUCH CHARGES, WITH AFFIDAVITS; AND (4) BE FURNISHED AT THE EARLIEST PRACTICABLE DATE WITH A WRITTEN DECISION ON SUCH ANSWER. NO EXAMINATION OF WITNESSES NOR ANY TRAIL OR HEARING SHALL BE REQUIRED EXCEPT IN THE DISCRETION OF THE OFFICER OR EMPLOYEE DIRECTING THE REMOVAL OR SUSPENSION WITHOUT PAY. COPIES OF THE CHARGES, THE NOTICE OF HEARING, THE ANSWER, THE REASONS FOR REMOVAL OR SUSPENSION WITHOUT PAY, AND THE ORDER OF REMOVAL OR SUSPENSION WITHOUT PAY SHALL BE MADE A PART OF THE RECORDS OF THE PROPER DEPARTMENT OR AGENCY, AS SHALL ALSO THE REASONS FOR REDUCTION IN GRADE OR COMPENSATION; AND COPIES OF THE SAME SHALL BE FURNISHED, UPON REQUEST, TO THE PERSON AFFECTED AND TO THE CIVIL SERVICE COMMISSION. THIS SUBSECTION SHALL APPLY TO A PERSON WITHIN THE PURVIEW OF SECTION 14 OF THE VETERANS'PREFERENCE ACT OF 1944, AS AMENDED, ONLY IF HE SO ELECTS.

BY HIS REFUSAL TO PERFORM DUTIES PROPERLY ASSIGNED TO HIM, THE EMPLOYEE, IN FACT, REMOVED HIMSELF FROM A DUTY STATUS TO A NON-DUTY STATUS. CONSEQUENTLY, THE ACTION TAKEN BY THE SUPERVISOR IN RELIEVING HIM FROM DUTY WAS NOTHING MORE THAN ADMINISTRATIVE RECOGNITION OF THE EMPLOYEE'S OWN ACTIONS AND DID NOT CONSTITUTE A SUSPENSION FROM DUTY SUCH AS CONTEMPLATED BY THE ABOVE-QUOTED STATUTORY PROVISION. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE, RENDERING UNNECESSARY ANY ANSWER TO QUESTION 2.