A-57620, DECEMBER 8, 1934, 14 COMP. GEN. 443

A-57620, DECEMBER 8, 1934, 14 COMP. GEN. 443

LEAVE OF ABSENCE - CASH REIMBURSEMENT AFTER SEPARATION FROM THE SERVICE PANAMA CANAL THE AUTHORITY VESTED IN THE PRESIDENT BY THE ACT OF AUGUST 24, 1912, 37 STAT. 561, IN THE MATTER OF EMPLOYMENT OF PERSONNEL AND THE FIXING OF RATES OF COMPENSATION OF EMPLOYEES OF THE PANAMA CANAL, DOES NOT INCLUDE THE AUTHORITY TO GRANT CASH GRATUITIES AS REIMBURSEMENT FOR LEAVE OF ABSENCE ACCRUED AND UNUSED AT DATE OF SEPARATION FROM THE SERVICE. THE ADMINISTRATIVE PRACTICE IN MAKING SUCH PAYMENTS MUST CEASE, BUT THERE WILL NOT BE QUESTIONED SUCH PAYMENTS HERETOFORE MADE IF OTHERWISE PROPERLY WITHIN ADMINISTRATIVE REGULATIONS.

COMPTROLLER GENERAL MCCARL TO THE GOVERNOR, PANAMA CANAL, DECEMBER 8, 1934:

THERE WAS RECEIVED A LETTER OF SEPTEMBER 7, 1934, FROM L. E. BURDGE, AS FOLLOWS:

I WISH TO SUBMIT THE FOLLOWING IN CONNECTION WITH MY RETIREMENT FROM THE SERVICE OF THE PANAMA CANAL ON THE ISTHMUS:

I RETIRED FROM THE SERVICE OF THE PANAMA CANAL ON THE ISTHMUS JULY 31, 1934, AT WHICH TIME I HAD 120 DAYS LEAVE TO MY CREDIT: VIZ 8 DAYS ANNUAL AND 112 DAYS CUMULATIVE LEAVE: TOTAL 120 DAYS, AS SHOWN ON FORM 310-3 ATTACHED.

I RECEIVED 118 DAYS LEAVE PAY ONLY, PLUS SALARY DUE. THE PAYMASTER'S EXPLANATION WAS THAT AS WE DO NOT RECEIVE PAY FOR THE 31ST DAY OF THE MONTH, THE 2 DAYS HELD OUT WAS TO COVER THE 31ST DAY OF AUGUST AND OCTOBER, THUS TENTATIVELY CARRYING ME ON LEAVE STATUS AFTER RETIREMENT.

IF IT WERE IN ORDER TO PLACE ME ON A TENTATIVE LEAVE STATUS AFTER RETIREMENT IN ORDER TO DEDUCT THE ABOVE TWO DATES FROM LEAVE DUE, IT WOULD ONLY BE REASONABLE TO ASSUME THAT I SHOULD RECEIVE THE RIGHTS OF AN EMPLOYEE ON LEAVE, FOR WHICH APPARENTLY I SHOULD RECEIVE ANNUAL LEAVE CREDIT OF 2 DAYS EACH MONTH FOR THE FULL PERIOD OF 120 DAYS, WHICH WOULD ADD TO MY CREDIT 8 DAYS ADDITIONAL ANNUAL LEAVE.

I DO NOT EXPECT CREDIT FOR ANNUAL LEAVE DURING THIS APPARENT TENTATIVE LEAVE STATUS, NOR AM I SUGGESTING THAT MY ASSUMPTION IS CORRECT, BUT I BELIEVE I AM WITHIN MY RIGHTS TO QUESTION THE DEDUCTION OF 2 DAYS LEAVE DUE AT TIME OF RETIREMENT TO COVER A MYTHICAL LEAVE PERIOD SINCE ACCORDING TO THE LAW WHEN AN EMPLOYEE RETIRES, ALL ACCOUNTS ARE CLOSED OUT BY COMMUTING TO CASH ALL LEAVE DUE ON LAST DAY OF SERVICE, CLOSING THE ACCOUNT OF THE EMPLOYEE AS FAR AS THE PANAMA CANAL IS CONCERNED AS OF DATE OF RETIREMENT, AND TRANSFERRING ALL PAPERS TO THE VETERANS' BUREAU, WASHINGTON, D.C.

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT I AM ENTITLED TO THE TWO DAYS' LEAVE PAY WITHHELD BY THE PAYMASTER, PANAMA CANAL.

UNDER DATE OF OCTOBER 18, 1934, YOU REPORTED, WITH REFERENCE TO THIS MATTER, AS FOLLOWS:

IN RESPONSE TO YOUR LETTER A-57620, OF THE 9TH INSTANT, REQUESTING A REPORT OF THE FACTS IN CONNECTION WITH THE CASH PAYMENT IN COMMUTATION OF 120 DAYS' LEAVE IN THE CASE OF L. E. BURDGE, YOU ARE INFORMED THAT THIS ITEM APPEARS UNDER PAY NUMBER 65 OF VOUCHER 742 IN THE SEPTEMBER 1934 ACCOUNTS OF R. W. GLAW, PAYMASTER, THE PANAMA CANAL (SYMBOL 92019), AND READS AS FOLLOWS:

TABLE

L. E. BURDGE, CLERK, RETIRED 7/31. 8 AL, 112 CL COMMUTED:

118/30THS AT $250.00 ------------------------------------ $983.33

LESS 5 PERCENT E.A. ------------------------------------- 49.17

GROSS ------------------------------------------------- 943.16

MISCELLANEOUS DEDUCTIONS -------------------------------- 12.06

NET --------------------------------------------------- 922.10

THE ABOVE COMPUTATION WAS MADE IN ACCORDANCE WITH THE FOLLOWING QUOTED UNPUBLISHED DECISION:

EWM-8-D

TREASURY DEPARTMENT,

OFFICE OF COMPTROLLER OF THE TREASURY,

WASHINGTON, FEBRUARY 9, 1915. L.R.H. THE GOVERNOR,

THE PANAMA CANAL, CANAL ZONE, THROUGH WASHINGTON OFFICE,

WASHINGTON, D.C.

SIR: I HAVE YOUR LETTER OF THE 30TH ULTIMO, REQUESTING MY DECISION AS TO THE MANNER OF COMPUTING COMMUTATION TO LEAVE PAY UNDER THE PROVISIONS OF EXECUTIVE ORDER OF FEBRUARY 2, 1914, PROVIDING CONDITIONS OF EMPLOYMENT FOR THE PERMANENT FORCE OF THE PANAMA CANAL, AND READING IN PART AS FOLLOWS:

" "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.'

"YOU CITE A SPECIFIC CASE AS AN EXAMPLE AS FOLLOWS:

" "M. J. KIMBALL RESIGNS EFFECTIVE AT THE CLOSE OF BUSINESS FEBRUARY 12, 1915, AND HAS 51 DAYS' LEAVE DUE ON THAT DATE. WOULD HE BE ENTITLED TO 51/30THS OF A MONTH'S COMPENSATION, OR WOULD PAYMENT BE MADE ON THE SAME BASIS AS IF HE REMAINED IN THE SERVICE AND ACTUALLY TOOK THE 51 DAYS' LEAVE EFFECTIVE FEBRUARY 13, WHICH WOULD MAKE 52/30THS OF A MONTH'S COMPENSATION?

"IF MR. KIMBALL SHOULD REMAIN IN THE SERVICE OF THE PANAMA CANAL AND SHOULD TAKE HIS 51 DAYS' LEAVE OF ABSENCE BEGINNING ON FEBRUARY 13, 1915, SAID LEAVE WOULD EXPIRE ON APRIL 4, 1915, AND HE WOULD BE ENTITLED TO PAY FOR 52/30THS OF A MONTH'S COMPENSATION; THAT IS TO SAY, FOR 18 DAYS IN FEBRUARY, 30 DAYS IN MARCH, AND 4 DAYS IN APRIL. FOR THE PURPOSE OF COMPUTING ANNUAL OR MONTHLY COMPENSATION EACH AND EVERY MONTH IS HELD TO CONSIST OF 30 DAYS WITHOUT REGARD TO THE ACTUAL NUMBER OF DAYS IN ANY MONTH, THUS EXCLUDING THE 31ST DAY OF ANY MONTH FROM COMPUTATION AND TREATING FEBRUARY AS IF IT ACTUALLY HAD 30 DAYS. SEE SECTION 6 OF THE ACT OF JUNE 30, 1906 (34 STAT. 763).

"I AM OF THE OPINION THAT THE EXECUTIVE ORDER, SUPRA, IN THE CASES OF EMPLOYEES COMING WITHIN ITS TERMS SHOULD BE CONSTRUED AS AUTHORIZING PAYMENT TO THEM UPON THE SAME BASIS AS IF THEY HAD REMAINED IN THE SERVICE AND ACTUALLY TOOK THE LEAVE TO WHICH THEY WERE ENTITLED. I HAVE NO DOUBT THAT THIS CONSTRUCTION WAS INTENDED BY THE FRAMERS OF THE ORDER. THIS WILL IN SOME INSTANCES GIVE AN EMPLOYEE PAY FOR MORE DAYS THAN HIS ACTUAL LEAVE AND IN OTHERS PAY FOR A LESS NUMBER OF DAYS, DEPENDING UPON THE MONTH OR MONTHS WHICH THE LEAVE CONSTRUCTIVELY COVERS.

RESPECTFULLY,

GEO. W. DOWNEY, COMPTROLLER.

W.'

J.D.T.

MR. BURDGE'S SERVICES WERE TERMINATED ON JULY 31, 1934, BUT IF HE HAD REMAINED IN THE EMPLOY OF THE PANAMA CANAL AND ACTUALLY ENTERED UPON THE 120 DAYS' LEAVE DUE HIM ON THE DAY FOLLOWING, THE COMPUTATION OF PAY THEREFOR WOULD HAVE BEEN:

31 DAYS' LEAVE, AUGUST 1-31, EQUALS 30/30THS AT $250.00.

30 DAYS' LEAVE, SEPTEMBER 1-30, EQUALS 30/30THS AT $250.00.

31 DAYS' LEAVE, OCTOBER 1-31, EQUALS 30/30THS AT $250.00.

28 DAYS' LEAVE, NOVEMBER 1-28, EQUALS 28/30THS AT $250.00.

TOTAL 120 DAYS' LEAVE, 118/30THS AT $250.00.

THE AUTHORITY TO COMMUTE LEAVE WITH PAY INTO A CASH PAYMENT WHEN AN EMPLOYEE'S SERVICE IS TERMINATED WHICH WAS QUOTED IN THE ABOVE DECISION IS STILL IN EFFECT AND IS REPEATED AS PARAGRAPH NUMBERED 36 IN THE PRESIDENT'S EXECUTIVE ORDER NUMBER 2514, DATED JANUARY 15, 1917 (SECTION 49:35 PERSONNEL REGULATIONS, THE PANAMA CANAL).

SECTION 4 OF THE PANAMA CANAL ACT OF AUGUST 24, 1912, 37 STAT. 561, PROVIDES, IN PART, AS FOLLOWS:

* * * THE PRESIDENT IS AUTHORIZED THEREAFTER TO COMPLETE, GOVERN, AND OPERATE THE PANAMA CANAL AND GOVERN THE CANAL ZONE, OR CAUSE THEM TO BE COMPLETED, GOVERNED, AND OPERATED, THROUGH A GOVERNOR OF THE PANAMA CANAL AND SUCH OTHER PERSONS AS HE MAY DEEM COMPETENT TO DISCHARGE THE VARIOUS DUTIES CONNECTED WITH THE COMPLETION, CARE, MAINTENANCE, SANITATION, OPERATION, GOVERNMENT, AND PROTECTION OF THE CANAL AND CANAL ZONE. * * * ALL OTHER PERSONS NECESSARY FOR THE COMPLETION, CARE, MANAGEMENT, MAINTENANCE, SANITATION, GOVERNMENT, OPERATION, AND PROTECTION OF THE PANAMA CANAL AND CANAL ZONE SHALL BE APPOINTED BY THE PRESIDENT, OR BY HIS AUTHORITY, REMOVABLE AT HIS PLEASURE, AND THE COMPENSATION OF SUCH PERSONS SHALL BE FIXED BY THE PRESIDENT, OR BY HIS AUTHORITY, UNTIL SUCH TIME AS CONGRESS MAY BY LAW REGULATE THE SAME, BUT SALARIES OR COMPENSATION FIXED HEREUNDER BY THE PRESIDENT SHALL IN NO INSTANCE EXCEED BY MORE THAN TWENTY -FIVE PERCENTUM THE SALARY OR COMPENSATION PAID FOR THE SAME OR SIMILAR SERVICES TO PERSONS EMPLOYED BY THE GOVERNMENT IN CONTINENTAL UNITED STATES, * * *.

PARTICULAR ATTENTION IS DIRECTED TO THE CLAUSE "AND THE COMPENSATION OF SUCH PERSONS SHALL BE FIXED BY THE PRESIDENT OR BY HIS AUTHORITY, UNTIL SUCH TIME AS CONGRESS MAY BY LAW REGULATE THE SAME.'

THE AUTHORITY VESTED IN THE PRESIDENT BY THE ACT OF 1912, SUPRA, IN THE MATTER OF THE EMPLOYMENT OF PERSONNEL AND THE FIXING OF RATES OF COMPENSATION, DOES NOT INCLUDE THE AUTHORITY TO GRANT CASH GRATUITIES TO FORMER EMPLOYEES OR TO THE ESTATES OF FORMER EMPLOYEES. WHILE THE RIGHT TO GRANT REASONABLE LEAVE OF ABSENCE WITH PAY--- IN THE SENSE OF EXCUSING THE EMPLOYEE FROM RENDERING SERVICE FOR A REASONABLE PERIOD WHILE HE CONTINUES TO BE AN EMPLOYEE, WITHOUT DEDUCTION OF PAY FOR THE ABSENCE--- WOULD EXIST AS AN INCIDENT TO THE RIGHT TO EMPLOY AND FIX COMPENSATION, IN THE ABSENCE OF ANY STATUTE SPECIFICALLY AUTHORIZING OR PROHIBITING THE GRANTING OF LEAVE, THE AUTHORITY TO APPOINT AND FIX THE COMPENSATION OF EMPLOYEES PROPERLY MAY NOT BE HELD TO CARRY WITH IT THE RIGHT TO PAY A FORMER EMPLOYEE OR THE ESTATE OF A FORMER EMPLOYEE, THE COMMUTED VALUE OF LEAVE WHICH MIGHT HAVE BEEN, BUT WHICH WAS NOT GRANTED AND TAKEN DURING SERVICE.

IT HAS BEEN HELD, WITH RESPECT TO EMPLOYEES IN THE CONTINENTAL UNITED STATES, THAT IN THE ABSENCE OF A SPECIFIC STATUTE SO PROVIDING, THERE IS NO AUTHORITY TO PAY EMPLOYEES AFTER SEPARATION FROM THE SERVICE FOR LEAVE NOT TAKEN (7 COMP. GEN. 83; 8 ID. 471 (INVOLVING A NAVY YARD EMPLOYEE); 12 ID. 602; AND 13 ID. 179). YOU ARE ADVISED, THEREFORE, THAT WHILE IT IS PROPER TO GIVE EMPLOYEES OF THE PANAMA CANAL WHO ARE ABOUT TO RESIGN OR TO BECOME INVOLUNTARILY SEPARATED FROM THE SERVICE, THE BENEFIT OF THE ACCRUED LEAVE BY GRANTING THEM THE LEAVE THAT HAS BEEN EARNED AND MAKING THE SEPARATION EFFECTIVE AT THE EXPIRATION OF THE LEAVE GRANTED, IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, THE ADMINISTRATIVE PRACTICE OF PAYING THE FORMER EMPLOYEES OR TO THE ESTATES OF FORMER EMPLOYEES, AFTER SEPARATION FROM THE SERVICE BY RETIREMENT, RESIGNATION, DEATH, OR OTHERWISE, THE COMMUTED VALUE EARNED BUT NOT TAKEN PRIOR TO THE EFFECTIVE DATE OF SUCH SEPARATION, MUST BE DISCONTINUED.

THERE WILL NOT BE QUESTIONED SUCH PAYMENTS HERETOFORE MADE, IF OTHERWISE PROPERLY WITHIN THE ADMINISTRATIVE REGULATIONS, AND L. E. BURDGE HAS BEEN ADVISED ACCORDINGLY.