A-43069, JULY 9, 1932, 12 COMP. GEN. 17

A-43069, JULY 9, 1932, 12 COMP. GEN. 17

ECONOMY ACT - SUSPENSION OF LEAVE OF ABSENCE - PANAMA CANAL EMPLOYEES SECTION 103 OF THE ACT OF JUNE 30, 1932, 47 STAT. 400, SUSPENDS DURING THE FISCAL YEAR 1933 ALL RIGHTS OF PANAMA CANAL EMPLOYEES TO RECEIVE ALL LEAVE OF ABSENCE WITH PAY DESIGNATED IN REGULATIONS ISSUED UNDER AUTHORITY OF THE PANAMA CANAL ACT, AS "ANNUAL," "CUMULATIVE," AND "TRAVEL," INCLUDING LEAVE ACCRUED OR EARNED DURING SERVICE PRIOR TO JULY 1, 1932.

COMPTROLLER GENERAL MCCARL TO THE GOVERNOR OF THE PANAMA CANAL, JULY 9, 1932:

CONSIDERATION HAS BEEN GIVEN TO LETTER OF JUNE 24, 1932, FROM YOUR WASHINGTON OFFICE AS OLLOWS:

YOUR EARLY DETERMINATION OF THE QUESTION PROPOUNDED IN THE FOLLOWING RADIOGRAM, DATED JUNE 23, 1932, JUST RECEIVED FROM THE GOVERNOR OF THE PANAMA CANAL IS EARNESTLY REQUESTED, IN VIEW OF THE NECESSITY OF ADVISING PANAMA CANAL EMPLOYEES WHO WILL BE ON LEAVE IN THE STATES ON JULY 1, 1932, AND WHO ARE SCHEDULED TO GO ON LEAVE SHORTLY AFTER JULY 1ST:

"REFERRING TO YOUR RADIOGRAM NUMBER 60 ANNUAL LEAVE IT SEEMS ESSENTIAL THAT AN AUTHORITATIVE DECISION BE HAD FROM THE COMPTROLLER GENERAL AS TO STATUS OF CANAL EMPLOYEES ON LEAVE IN THE STATES ON JULY 1, 1932, AND THOSE SCHEDULED TO GO ON LEAVE SHORTLY AFTER JULY 1ST IN EVENT SECTION 103, LEGISLATIVE APPROPRIATION BILL, BECOMES LAW. UNDER CANAL REGULATIONS LEAVE WITH PAY IS NOT GRANTED UNTIL EARNED AND ON SEPARATION FROM SERVICE MAY BE COMMUTED INTO CASH PAYMENT. THE QUESTION IS WHETHER LEAVE EARNED PRIOR TO JULY 1, 1932, MAY BE TAKEN AS LEAVE WITH PAY ON OR AFTER JULY 1, 1932. THERE ARE SEVERAL OTHER QUESTIONS WHICH WILL NEED EARLY DETERMINATION WITH REGARD TO THIS LEAVE QUESTION, BUT ANSWER TO THIS QUESTION WILL ENABLE US TO NOTIFY EMPLOYEES NOW ON LEAVE OR SCHEDULED TO GO ON LEAVE EARLY IN JULY AS TO THEIR PAY STATUS.'

THE PROVISIONS OF SECTION 103 OF THE LEGISLATIVE APPROPRIATION BILL WHICH APPARENTLY WILL SHORTLY BECOME LAW READS AS FOLLOWS:

"ALL RIGHTS NOW CONFERRED OR AUTHORIZED TO BE CONFERRED BY LAW UPON ANY OFFICER OR EMPLOYEE TO RECEIVE ANNUAL LEAVE OF ABSENCE WITH PAY ARE HEREBY SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1933.'

LEAVE GRANTED BY THE PANAMA CANAL IS OF THREE CLASSES, NAMELY, ANNUAL LEAVE, CUMULATIVE LEAVE, AND TRAVEL LEAVE. THE THREE PARAGRAPHS OF THE LEAVE REGULATIONS DEFINING THESE CLASSES OF LEAVE ARE AS FOLLOWS:

"22. TWENTY-FOUR DAYS ANNUAL LEAVE WILL BE ALLOWED EACH EMPLOYEE FOR EACH YEAR AFTER ENTRY INTO SERVICE, AND ANY ANNUAL LEAVE NOT USED PRIOR TO THE END OF THE SERVICE YEAR IN WHICH IT IS EARNED SHALL BE THEREAFTER IN THE SAME STATUS AND SUBJECT TO THE SAME RULES AS CUMULATIVE LEAVE.'

"29. THIRTY DAYS CUMULATIVE LEAVE WILL BE ALLOWED EACH EMPLOYEE PAID ON A MONTHLY OR ANNUAL BASIS FOR EACH YEAR OF HIS SERVICE AND TWENTY DAYS TO EACH EMPLOYEE PAID ON AN HOURLY BASIS. THIS LEAVE WILL BE DUE AFTER COMPLETING TEN MONTHS' SERVICE EACH YEAR AND MAY BE TAKEN WHEN THE EMPLOYEE'S SERVICE CAN BE SPARED. IT MAY BE TAKEN ANNUALLY OR LEFT TO ACCUMULATE TO THE CREDIT OF THE EMPLOYEE: PROVIDED, HOWEVER, THAT THE MAXIMUM NUMBER OF DAYS' LEAVE WITH PAY OF ALL KINDS WHICH MAY BE GRANTED AT ANY ONE TIME OR WHICH MAY BE COMMUTED INTO A CASH PAYMENT AT TERMINATION OF SERVICE IS 120.'

"33. EMPLOYEES WHO TRAVEL TO POINTS OUTSIDE THE TROPICS, WHEN ON CUMULATIVE LEAVE, WILL BE ALLOWED SEVEN DAYS' ADDITIONAL LEAVE (OR TRAVEL LEAVE) WITH FULL PAY, PROVIDED THE TOTAL OF ALL LEAVE WITH PAY GRANTED SHALL NOT EXCEED 120 DAYS. TRAVEL LEAVE MAY BE ALLOWED APPROXIMATELY ONCE A YEAR AND IS NOT CUMULATIVE.'

THE QUESTION CONCERNING WHICH THE GOVERNOR REQUESTS YOUR PROMPT DECISION IS WHETHER LEAVE EARNED PRIOR TO JULY 1, 1932, MAY BE TAKEN AS LEAVE WITH PAY ON OR AFTER JULY 1, 1932.

PARAGRAPH 36 OF THE LEAVE REGULATIONS PROVIDES FOR A CASH PAYMENT IN COMMUTATION OF LEAVE UPON TERMINATION OF AN EMPLOYEE'S SERVICE, AS FOLLOWS:

"36. WHEN AN EMPLOYEE'S SERVICE IS TERMINATED, A CASH PAYMENT IN COMMUTATION OF LEAVE WILL BE MADE TO HIM FOR THE NUMBER OF DAYS CUMULATIVE LEAVE DUE, PLUS THE ANNUAL LEAVE DUE. IN THE EVENT OF HIS DEATH HIS ESTATE WILL BE PAID THE SUM DUE.'

THERE IS ATTACHED HERETO FOR YOUR FURTHER INFORMATION A COPY OF PANAMA CANAL CIRCULAR NO. 602-25, DATED MARCH 28, 1924, WHICH CONTAINS THE EXISTING LEAVE REGULATIONS AS ESTABLISHED BY THE EXECUTIVE ORDER OF JANUARY 15, 1917, WITH THE INTERPRETATIVE RULES THEREFOR.

IT IS NOT A MATTER OF DETERMINING AT THIS TIME WHAT RIGHTS HAVE ACCRUED OR MAY ACCRUE TO EMPLOYEES UNDER THE LEAVE LAWS AND REGULATIONS, BUT RATHER A MATTER OF WHAT MAY LAWFULLY BE DONE OR PAYMENTS MADE WITH RESPECT TO THE FISCAL YEAR NOW CURRENT, 1933.

IN DECISION OF JULY 8, 1932, TO THE PUBLIC PRINTER, A-43056, 12 COMP. GEN. 9, APPLYING THE PROVISIONS OF SECTIONS 103 AND 104 OF THE ACT OF JUNE 30, 1932, PUBLIC, NO. 212, 47 STAT. 400, TO THE EMPLOYEES UNDER THE GOVERNMENT PRINTING OFFICE WHO, ALSO, ARE ENTITLED TO CUMULATIVE LEAVE COVERING A PRIOR FISCAL YEAR, IT WAS HELD AS FOLLOWS:

THE TERM "ANNUAL LEAVE" REFERS TO ALL "VACATION" LEAVE OF ABSENCE WITH PAY AUTHORIZED BY LAW AND/OR REGULATION FOR EACH YEAR, WHETHER BASED ON THE CALENDAR, FISCAL, OR SERVICE YEAR, FOR THE PERSONAL PLEASURE, CONVENIENCE, OR BENEFIT OF THE OFFICER OR EMPLOYEE, BUT DOES NOT INCLUDE SICK, QUARANTINE, AND MILITARY LEAVE. RIGHTS TO ANNUAL LEAVE, AS THUS DEFINED, AS WELL AS TO ALL BENEFITS INCIDENT THERETO, ARE SUSPENDED DURING THE FISCAL YEAR 1933, IRRESPECTIVE OF WHETHER THE LEAVE RIGHTS HERETOFORE HAVE BEEN GRANTED ABSOLUTELY BY STATUTE OR ALLOWED WITHIN ADMINISTRATIVE DISCRETION.

THE PLAIN PURPOSE OF THE ENACTMENT IS TO EFFECT A SAVING OR ECONOMY TO THE GOVERNMENT DURING THE FISCAL YEAR 1933, AND IT MUST BE CONSTRUED AND APPLIED TO EFFECTUATE THAT PURPOSE. IN THE ABSENCE OF ANY PROVISION IN THE STATUTE LIMITING THE SUSPENSION TO ANNUAL LEAVE WHICH WOULD BE EARNED OR ACCRUE DURING THE FISCAL YEAR 1933, THERE IS NO ALTERNATIVE BUT TO HOLD THAT THE SUSPENSION APPLIES ALSO TO RIGHTS TO ALL ANNUAL LEAVE ACCRUED OR EARNED AND UNUSED PRIOR TO JULY 1, 1932.

OFFICERS AND EMPLOYEES OF THE PANAMA CANAL ARE WITHIN THE DEFINITION OF THE TERMS "OFFICERS" AND "EMPLOYEES" APPEARING IN SECTION 104 OF THE STATUTE. THE EXEMPTION OF "EMPLOYEES OF THE PANAMA CANAL LOCATED ON THE ISTHMUS" FROM THE PROVISIONS OF SECTION 215 OF THE ACT, PERMANENTLY LIMITING ANNUAL LEAVE TO 15 DAYS PER ANNUM, APPLIES ONLY TO THE PROVISIONS OF SAID SECTION AND CAN NOT BE CONSTRUED AS EXEMPTING SUCH EMPLOYEES FROM THE PROVISIONS OF SECTION 103. SAID SECTION 103 IS A TEMPORARY PROVISION DESIGNED TO MEET WHAT WAS REGARDED AS AN EMERGENCY CONDITION. IT MUST BE CONSIDERED IN CONNECTION WITH SECTION 101 PROVIDING FOR COMPULSORY FURLOUGHS WITHOUT PAY AND THE INHIBITIONS OF SECTION 203 UPON THE FILING OF VACANCIES. WHEN SO CONSIDERED THERE WOULD APPEAR TO BE NO ROOM FOR REASONABLE DOUBT THAT THE PROVISION PRECLUDES ANY LEAVE WITH PAY DURING THE FISCAL YEAR 1933, EXCEPT WHERE AUTHORIZED BY LAW OR REGULATION ON ACCOUNT OF SICKNESS. THE SO-CALLED MILITARY LEAVE IS, IN FACT, MERELY A RELEASE FROM DUTY IN ONE POSITION FOR THE PERFORMANCE OF DUTY IN ANOTHER UNDER A STATUTE PROVIDING SPECIFICALLY THAT IT SHALL BE WITHOUT LOSS OF PAY, TIME, ETC.

UNDER THE LEAVE REGULATIONS FOR THE PANAMA CANAL, ISSUED UNDER AUTHORITY OF THE PANAMA CANAL ACT OF AUGUST 24, 1912, 37 STAT. 561, LEAVE OF ABSENCE DESIGNATED AS "ANNUAL" AND "CUMULATIVE" IS COMPUTED ON THE SERVICE YEAR, AND LEAVE OF ABSENCE DESIGNATED AS "TRAVEL" IS A BENEFIT INCIDENT THERETO.

EXCEPT TO THE EXTENT OF ABSENCES DUE TO PERSONAL ILLNESS OF OFFICERS AND EMPLOYEES, ALL LEAVE OF ABSENCE DESIGNATED IN THE PANAMA CANAL REGULATIONS AS "ANNUAL," "CUMULATIVE," AND "TRAVEL" IS REQUIRED TO BE CLASSED AS "ANNUAL LEAVE" WITHIN THE MEANING OF SECTION 103 OF THE ACT OF JUNE 30, 1932, SUPRA, AND ALL RIGHTS TO RECEIVE THE SAME WITH PAY ARE SUSPENDED DURING THE FISCAL YEAR 1933.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT LEAVE EARNED PRIOR TO JULY 1, 1932, MAY NOT BE TAKEN AS LEAVE WITH PAY ON OR AFTER JULY 1, 1932, EXCEPT TO COVER PERIODS OF ILLNESS AS SPECIFICALLY PROVIDED FOR UNDER REGULATIONS.