A-16698, JULY 29, 1927, 7 COMP. GEN. 83

A-16698, JULY 29, 1927, 7 COMP. GEN. 83

LEAVE OF ABSENCE - COURT OFFICERS OF THE PANAMA CANAL ZONE UNDER SUBSECTION (G) OF SECTION 8 OF THE PANAMA CANAL ACT, AS AMENDED BY SECTION 2 OF THE ACT OF DECEMBER 29, 1926, 44 STAT. 924, THE PRESIDENT IS AUTHORIZED TO PROMULGATE REGULATIONS GRANTING TO THE DISTRICT JUDGE, THE DISTRICT ATTORNEY, AND THE MARSHAL OF THE PANAMA CANAL ZONE THE RIGHT TO ACCUMULATE THROUGH TWO CALENDAR YEARS THE LEAVE OF ABSENCE WITH PAY OF SIXTY DAYS EACH YEAR AUTHORIZED BY THE STATUTE. REGULATIONS TO BE PRESCRIBED BY THE PRESIDENT, UNDER THE PROVISION IN THE PANAMA CANAL ACT, AS AMENDED BY SECTION 2 OF THE ACT OF DECEMBER 29, 1926, 44 STAT. 924, MAY NOT LAWFULLY AUTHORIZE THE PAYMENT OF SALARY ATTACHING TO THE OFFICES OF DISTRICT JUDGE, DISTRICT ATTORNEY, AND MARSHAL OF THE PANAMA CANAL ZONE FOR ACCRUED UNUSED LEAVE OF ABSENCE AUTHORIZED BY LAW AFTER THE OFFICERS HAVE BEEN SEPARATED FROM THE SERVICE BY DEATH, RESIGNATION, REMOVAL, OR EXPIRATION OF TERM OF OFFICE.

COMPTROLLER GENERAL MCCARL TO THE GOVERNOR OF THE PANAMA CANAL, JULY 29, 1927:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 18, 1927, REQUESTING DECISION WHETHER THE FOLLOWING PARAGRAPHS OF PROPOSED REGULATIONS TO BE PRESCRIBED BY THE PRESIDENT, GOVERNING THE GRANTING OF LEAVE OF ABSENCE WITH PAY TO THE JUDGE OF THE DISTRICT COURT, THE DISTRICT ATTORNEY, AND THE MARSHAL OF THE PANAMA CANAL ZONE, ARE AUTHORIZED UNDER THE TERMS OF THE ACT OF DECEMBER 29, 1926, 44 STAT. 924:

3. UNUSED LEAVE OF ABSENCE IN ANY ONE CALENDAR YEAR MAY BE ACCUMULATED AND ALLOWED TO SUCH OFFICER IN THE NEXT CALENDAR YEAR, PROVIDED NO LEAVE IN EXCESS OF 120 DAYS SHALL BE TAKEN IN ANY ONE CALENDAR YEAR.

4. SHOULD ANY ONE OF THESE OFFICIALS DIE, RESIGN, BE REMOVED, OR HIS TERM OF OFFICE EXPIRE WITHOUT REAPPOINTMENT, DURING ANY CALENDAR YEAR WITHOUT HIS HAVING TAKEN THE FULL AMOUNT OF LEAVE DUE HIM UNDER THESE REGULATIONS, HE OR HIS LEGAL REPRESENTATIVE SHALL BE PAID FOR ALL SUCH UNUSED LEAVE OF ABSENCE ACCRUED, NOT TO EXCEED 120 DAYS.

WITH RESPECT TO PARAGRAPH 3 OF THE PROPOSED REGULATIONS, YOU CITE THE FACT THAT OTHER EMPLOYEES UNDER THE PANAMA CANAL ARE AUTHORIZED TO ACCUMULATE LEAVE THROUGH TWO YEARS AS PROPOSED IN THE PRESENT INSTANCE AND YOU ALSO REFER TO THE ISOLATION OF THE PANAMA CANAL AS ADDITIONAL REASON FOR THE PROPOSED REGULATIONS.

IN DECISION OF SEPTEMBER 16, 1926, 6 COMP. GEN. 186, 187, IT WAS STATED:

THERE APPEAR TO HAVE BEEN NO SPECIFIC REGULATIONS PRESCRIBED BY THE PRESIDENT WITH RESPECT TO THE LEAVE OF THE JUDGE, DISTRICT ATTORNEY, AND MARSHAL OF THE CANAL ZONE. THE REGULATIONS APPLICABLE TO EMPLOYEES, GENERALLY, OF THE CANAL ZONE ARE NOT APPLICABLE TO THE JUDGE, DISTRICT ATTORNEY, AND MARSHAL, WHOSE LEAVE IS FIXED BY LAW, AND WHETHER THEY SHALL HEREAFTER BE ALLOWED TO ACCUMULATE LEAVE AS ARE THE EMPLOYEES OF THE EXECUTIVE DEPARTMENT OF THE CANAL ZONE AND THE PANAMA CANAL OR OTHERWISE WOULD BE FOR THE DETERMINATION, IN THE FIRST INSTANCE, OF THE PRESIDENT BY THE ISSUANCE OF REGULATIONS THEREFOR, AND WOULD INVOLVE A CONSIDERATION OF WHETHER THEIR SERVICES MAY BE SPARED FOR MORE THAN SIX WEEKS DURING ANY ONE YEAR.

IN DECISION OF JANUARY 14, 1927, 6 COMP. GEN. 470, 473, IT WAS STATED:

* * * THERE IS NO PROVISION IN THE LAW, OR IN ANY REGULATION MADE PURSUANT TO LAW, TO AUTHORIZE THE CUMULATION OF SUCH LEAVE FROM YEAR TO YEAR, NOR HAS THIS BEEN AUTHORIZED BY THE MORE RECENT STATUTE CITED. * *

LEAVE OF ABSENCE OF OTHER EMPLOYEES UNDER THE PANAMA CANAL IS CONTROLLED BY EXECUTIVE ORDER DATED JANUARY 15, 1917, ISSUED PURSUANT TO THE GENERAL AUTHORITY CONTAINED IN SECTION 4 OF THE PANAMA CANAL ACT OF AUGUST 24, 1912, 37 STAT. 561. WHILE THIS ACT DOES NOT MENTION OR SPECIFICALLY AUTHORIZE LEAVE OF ABSENCE OF EMPLOYEES AND, OF COURSE, DOES NOT SPECIFICALLY AUTHORIZE ACCUMULATION OF LEAVE, THE GENERAL AUTHORITY GRANTED THE PRESIDENT TO REGULATE MATTERS OF PERSONNEL IN THE PANAMA CANAL ZONE, THEREIN CONTAINED, HAS BEEN CONSTRUED AND CONSIDERED SUFFICIENT TO INCLUDE THE GRANTING OF THE RIGHT TO ACCUMULATE LEAVE OF ABSENCE. IT IS CUSTOMARY FOR ADMINISTRATIVE OFFICES TO AUTHORIZE ACCUMULATION OF LEAVE OF ABSENCE OF EMPLOYEES STATIONED IN THE ISLAND POSSESSIONS OF THE UNITED STATES. IT IS REASONABLE TO CONCLUDE THAT THE SPECIFIC STATUTORY AUTHORITY FOR THE PRESIDENT TO REGULATE THE LEAVE OF ABSENCE WITH PAY OF THE JUDGE, DISTRICT ATTORNEY, AND MARSHAL MAY INCLUDE THE DISCRETION TO GRANT SUCH OFFICERS THE RIGHT TO ACCUMULATE LEAVE OF ABSENCE AS PROPOSED. YOU ARE ADVISED, THEREFORE, THAT THERE IS NO LEGAL OBJECTION TO PARAGRAPH 3 OF THE PROPOSED REGULATIONS.

RELATIVE TO PARAGRAPH 4 OF THE PROPOSED REGULATIONS, IT IS WELL SETTLED THAT THERE IS NO RIGHT TO PAY FOR ACCRUED UNUSED LEAVE OF ABSENCE NOT TAKEN PRIOR TO SEPARATION FROM THE SERVICE. 6 COMP. DEC. 544; 8 ID. 827; 10 ID. 15; 12 ID. 247; 26 ID. 448; 1 COMP. GEN. 482. THERE IS NO PROVISION IN THE STATUTE GRANTING LEAVE OF ABSENCE TO THE COURT OFFICERS IN DEROGATION OF THIS ESTABLISHED PRINCIPLE. THE STATUTE DOES NOT GRANT 14 MONTHS' PAY FOR 12 MONTHS' SERVICE. TO AUTHORIZE PAYMENT OF SALARY FOR ACCRUED UNUSED LEAVE OF ABSENCE SUBSEQUENT TO THE SEPARATION OF THE OFFICERS FROM THE SERVICE WOULD BE EQUIVALENT TO INCREASING THE SALARY RATE FOR THE THREE OFFICES IN EXCESS OF THAT SPECIFICALLY AUTHORIZED BY STATUTE, WHICH, OF COURSE, WAS NOT INTENDED AND IS NOT AUTHORIZED. YOU ARE ADVISED, THEREFORE, THAT PARAGRAPH 4 OF THE PROPOSED REGULATIONS WOULD BE UNLAWFUL.