B-131587, SEP 18, 1970, 50 COMP GEN 191
Highlights
DEFENSE DEPARTMENT - TEACHERS EMPLOYED IN AREAS OVERSEAS - LEAVES OF ABSENCE WHEN TEACHERS IN THE DEPARTMENT OF DEFENSE OVERSEAS DEPENDENTS' SCHOOLS ARE ABSENT FROM DUTY WITHOUT AUTHORIZATION. ENACTED TO ELIMINATE THE MANY DIFFICULTIES RESULTING FROM THE APPLICATION OF CIVIL SERVICE LAWS AND REGULATIONS TO OVERSEAS TEACHERS WHOSE CONDITIONS OF EMPLOYMENT ARE SIGNIFICANTLY DIFFERENT FROM THOSE OF FULL-TIME CIVIL SERVICE EMPLOYEES. THE CURRENT REGULATIONS MAY BE AMENDED TO ELIMINATE THE REQUIREMENT FOR THE DEDUCTION OF SALARY FOR ALL DAYS FROM THE TIME A TEACHER IS ABSENT WITHOUT PROPER AUTHORIZATION UNTIL A RETURN TO DUTY. THE ASSISTANT SECRETARY ADVISES THAT THE CURRENT REGULATION GOVERNING SUCH MATTERS REQUIRES THE DEDUCTION OF SALARY FOR ALL DAYS FROM THE TIME A TEACHER IS ABSENT WITHOUT PROPER AUTHORIZATION UNTIL HE RETURNS TO DUTY.
B-131587, SEP 18, 1970, 50 COMP GEN 191
DEFENSE DEPARTMENT - TEACHERS EMPLOYED IN AREAS OVERSEAS - LEAVES OF ABSENCE WHEN TEACHERS IN THE DEPARTMENT OF DEFENSE OVERSEAS DEPENDENTS' SCHOOLS ARE ABSENT FROM DUTY WITHOUT AUTHORIZATION, A PAY DEDUCTION FOR SCHEDULED WORKDAYS ONLY WOULD BE IN ACCORD WITH PUBLIC LAW 86-91, AS AMENDED, 20 U.S.C. 901-907, ENACTED TO ELIMINATE THE MANY DIFFICULTIES RESULTING FROM THE APPLICATION OF CIVIL SERVICE LAWS AND REGULATIONS TO OVERSEAS TEACHERS WHOSE CONDITIONS OF EMPLOYMENT ARE SIGNIFICANTLY DIFFERENT FROM THOSE OF FULL-TIME CIVIL SERVICE EMPLOYEES. THEREFORE, THE SECRETARY OF DEFENSE HAVING BROAD AUTHORITY UNDER SECTION 4 OF THE ACT (20 U.S.C. 902) TO REGULATE THE ENTITLEMENT OF TEACHERS TO COMPENSATION AND THE PAYMENT OF SUCH COMPENSATION, THE CURRENT REGULATIONS MAY BE AMENDED TO ELIMINATE THE REQUIREMENT FOR THE DEDUCTION OF SALARY FOR ALL DAYS FROM THE TIME A TEACHER IS ABSENT WITHOUT PROPER AUTHORIZATION UNTIL A RETURN TO DUTY.
TO THE SECRETARY OF DEFENSE, SEPTEMBER 18, 1970:
BY LETTER DATED FEBRUARY 26, 1970, THE ASSISTANT SECRETARY OF DEFENSE (COMPTROLLER) REQUESTED OUR OPINION AS TO THE LEGALITY OF A PROPOSED AMENDMENT TO A REGULATION GOVERNING THE DEDUCTION OF PAY FOR UNAUTHORIZED ABSENCES OF TEACHERS IN THE DEPARTMENT OF DEFENSE OVERSEAS DEPENDENTS' SCHOOLS.
THE ASSISTANT SECRETARY ADVISES THAT THE CURRENT REGULATION GOVERNING SUCH MATTERS REQUIRES THE DEDUCTION OF SALARY FOR ALL DAYS FROM THE TIME A TEACHER IS ABSENT WITHOUT PROPER AUTHORIZATION UNTIL HE RETURNS TO DUTY. SUCH REGULATION IS BASED UPON THE RULE SET OUT IN OUR DECISION AT 16 COMP. GEN. 807 (1937), AS FOLLOWS:
WHERE, HOWEVER, THE LEAVE WITHOUT PAY IS TAKEN WITHOUT OBTAINING APPROPRIATE AUTHORIZATION PRIOR TO THE TAKING OF SUCH LEAVE, THE ESTABLISHED RULE IS THAT, IN THE ABSENCE OF A STATUTE SPECIFICALLY PROVIDING OTHERWISE, THE EMPLOYEE IS CONSIDERED IN A NON-PAY STATUS FOR THE ENTIRE PERIOD DURING WHICH HE ABSENTS HIMSELF FROM DUTY, AND IN SUCH CASES DEDUCTION OF PAY IS REQUIRED FOR ALL DAYS COMING WITHIN THAT PERIOD, INCLUDING SUNDAYS AND HOLIDAYS IRRESPECTIVE OF WHETHER OCCURRING IMMEDIATELY PRIOR TO THE DAY ON WHICH THE EMPLOYEE REPORTS FOR DUTY.
THE ASSISTANT SECRETARY STATES THAT APPLICATION OF THE CURRENT REGULATION MAY RESULT IN LOST PAY FOR AS MANY AS 11 AUTHORIZED NONWORKDAYS WHEN A TEACHER IS ABSENT WITHOUT LEAVE ON A SCHEDULED WORKDAY. THIS STATEMENT IS EXPLAINED BY THE ASSISTANT SECRETARY AS FOLLOWS:
THE TEACHERS ARE PAID A SCHOOL YEAR SALARY AT A DAILY RATE FOR THE CALENDAR DAYS (EXCLUDING SATURDAYS AND SUNDAYS) WITHIN THE SCHOOL YEAR. FOR THE SCHOOL YEAR FROM 18 AUGUST 1969 THROUGH 5 JUNE 1970, PAY COULD BE RECEIVED FOR 210 DAYS. THESE CONSIST OF 189 WORKDAYS (INCLUDING 180 STUDENT ATTENDANCE DAYS), 7 LEGAL HOLIDAYS AND 14 ADMINISTRATIVELY AUTHORIZED NONWORK DAYS. THE ADMINISTRATIVELY AUTHORIZED NONWORK DAYS (FOR WHICH NO LEAVE IS CHARGED) ARE THE FRIDAY AFTER THANKSGIVING, EIGHT DAYS DURING THE TWO-WEEK CHRISTMAS SCHOOL HOLIDAY, AND FIVE DAYS FOR THE SPRING (EASTER) HOLIDAY.
IF A TEACHER IS ABSENT ONE WORKDAY ON APPROVED LEAVE WITHOUT PAY IMMEDIATELY PRECEDING A HOLIDAY (FOR EXAMPLE, 29 AUGUST 1969; 26 NOVEMBER 1969; OR 19 DECEMBER 1969), PAY FOR ONE DAY IS DEDUCTED. IF ABSENT ON THOSE SAME DAYS WITHOUT OBTAINING PRIOR AUTHORIZATION AND RETURN TO WORK IS ON THE NEXT SCHEDULED WORKDAY AFTER THE HOLIDAY, PAY DEDUCTIONS WOULD BE (A) TWO DAYS FOR THE LABOR DAY WEEKEND, 29 AUGUST AND 1 SEPTEMBER 1969, (B) THREE DAYS AT THANKSGIVING, 26 THROUGH 28 NOVEMBER 1969, AND (C) ELEVEN DAYS FOR THE CHRISTMAS SCHOOL HOLIDAY, 19 DECEMBER 1969 THROUGH 2 JANUARY 1970. IF ABSENCE WITHOUT LEAVE IS ON THE WORKDAY IMMEDIATELY FOLLOWING THE HOLIDAY, PAY FOR ONE DAY IS DEDUCTED.
DUE TO THE WIDE VARIANCE IN FINANCIAL PENALTY WHICH RESULTS UNDER CURRENT REGULATION, AS ILLUSTRATED ABOVE, THE ASSISTANT SECRETARY PROPOSES TO AMEND THE REGULATION TO PROVIDE THAT PAY WILL BE DEDUCTED ONLY FOR SCHEDULED WORKDAYS ON WHICH A TEACHER IS ABSENT FROM DUTY WITHOUT PROPER AUTHORIZATION.
THE PAY OF OVERSEAS TEACHERS IS GOVERNED ENTIRELY BY THE PROVISIONS OF PUBLIC LAW 86-91, AS AMENDED, 20 U.S.C. 901-907. SECTION 4 OF THAT ACT, NOW 20 U.S.C. 902, AUTHORIZES THE SECRETARY OF DEFENSE TO PRESCRIBE REGULATIONS GOVERNING, INTER ALIA, THE ENTITLEMENT OF TEACHERS TO COMPENSATION AND THE PAYMENT OF COMPENSATION TO TEACHERS.
THE PRIMARY REASON FOR ENACTING PUBLIC LAW 86-91 WAS TO ELIMINATE THE MANY DIFFICULTIES RESULTING FROM APPLICATION OF CIVIL SERVICE LAWS AND REGULATIONS TO OVERSEAS TEACHERS WHOSE CONDITIONS OF EMPLOYMENT ARE SIGNIFICANTLY DIFFERENT FROM THOSE OF MOST FULL-TIME CIVIL SERVICE EMPLOYEES. H. REPT. NO. 357, 86TH CONGRESS. IN THE PRESENT CASE IT APPEARS THAT THE RULE ENUNCIATED IN 16 COMP. GEN. 807 AND APPLICABLE TO MOST CIVIL SERVICE EMPLOYEES IS NOT SUITABLE FOR APPLICATION TO OVERSEAS TEACHERS.
IN VIEW OF THE PURPOSE OF PUBLIC LAW 86-91 AND OF THE BROAD AUTHORITY VESTED IN THE SECRETARY OF DEFENSE UNDER THAT ACT, WE ARE NOT REQUIRED TO OBJECT TO AMENDING THE REGULATION ALONG THE LINES PROPOSED BY THE ASSISTANT SECRETARY OF DEFENSE.