A-2000, AUGUST 29, 1930, 10 COMP. GEN. 102

A-2000, AUGUST 29, 1930, 10 COMP. GEN. 102

LEAVES OF ABSENCE - PROMOTIONS ON BASIS OF EFFICIENCY - CLASSIFICATION OF CIVILIAN EMPLOYEES UNDER BROOKHART SALARY ACT - NONPAY STATUS HEREAFTER, EMPLOYEES UNDER ANY DEPARTMENT OR OFFICE SUBJECT TO THE PROVISIONS OF THE LEAVE ACTS OF MARCH 15, 1898, 30 STAT. 316, JULY 7, 1898, 30 STAT. 653, AND FEBRUARY 24, 1899, 30 STAT. 890, MAY NOT BE GRANTED ANNUAL OR SICK LEAVE OF ABSENCE WITH PAY AT THE BEGINNING OF A CALENDAR, OR OTHER LEAVE, YEAR IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NONPAY STATUS IN THE PRECEDING YEAR, UNLESS AND UNTIL THERE HAS BEEN A RETURN TO DUTY. UNDER THE TERMS OF SECTION 9 OF THE ORIGINAL CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1491, NO EFFICIENCY RATING, OTHER THAN ZERO, PROPERTY MAY BE MADE FOR AN EMPLOYEE COVERING A YEAR ENDING MAY 15, DURING WHICH NO SERVICE WAS PERFORMED, AND NO ADMINISTRATIVE PROMOTION IS AUTHORIZED TO BE GRANTED TO SUCH EMPLOYEE WITHIN THE SALARY RANGE OF HIS GRADE AS ON THE BASIS OF AN EFFICIENCY RATING. AN EMPLOYEE ON THE ROLLS OF A DEPARTMENT IN A NONPAY STATUS JULY 3, 1930, IS ENTITLED TO AN AUTOMATIC INCREASE IN COMPENSATION UNDER THE TERMS OF THE BROOKHART SALARY ACT, IF THE CONDITIONS OF THE STATUTE ARE OTHERWISE FULFILLED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, AUGUST 29, 1930:

IN REPLY TO MY LETTER OF AUGUST 6, 1930, THERE HAS BEEN RECEIVED YOUR COMMUNICATION OF AUGUST 15, 1930, FORWARDING THE FOLLOWING REPORT FROM THE CHIEF OF FINANCE, WAR DEPARTMENT, RELATIVE TO THE CASE OF DORA E. GRUBB:

1. REPORT AS REQUESTED IN BASIC COMMUNICATION IN THE CASE OF DORA E. GRUBB, EMPLOYEE IN THE OFFICE, CHIEF OF FINANCE, IS FURNISHED BELOW:

IN 1928 MISS GRUBB WAS ON DUTY AT THE OFFICE THE ENTIRE YEAR WITH THE EXCEPTION OF THE PERIOD SHE WAS ON 30 DAYS' ANNUAL LEAVE AND 10 DAYS' SICK LEAVE.

IN 1929 MISS GRUBB WORKED 1 MONTH AND 21 DAYS, WAS GRANTED 30 DAY'S ANNUAL LEAVE, 30 DAYS' SICK LEAVE AND HAD 8 MONTHS AND 7 DAYS' LEAVE WITHOUT PAY ON ACCOUNT OF SICKNESS.

IN 1930, SHE HAD 30 DAYS' ANNUAL LEAVE AND 30 DAYS' SICK LEAVE, AND 5 MONTHS AND 7 DAYS LEAVE WITHOUT PAY, DUE TO ILLNESS. IN MAY OF THIS YEAR HER PHYSICIAN STATED THAT IN HIS OPINION SHE WOULD RETURN TO DUTY SEPTEMBER 1.

HER EFFICIENCY RATINGS ARE AS FOLLOWS:

MAY 15, 1928 ---------------------------------------- 95.44

MAY 15, 1929 ---------------------------------------- 95.02

MAY 15, 1930 ---------------------------------------- 94.36

ON JULY 1, 1928, MISS GRUBB RECEIVED ONE STEP UNDER THE WELCH ACT. JUNE 12, 1930, SHE RECEIVED A PROMOTION OF $60, AND ON JULY 3, 1930, SHE RECEIVED THE 2D STEP UNDER THE BROOKHART ACT.

IT APPEARS FROM THIS REPORT AND THE PAY ROLLS ON FILE IN THIS OFFICE THAT THE EMPLOYEE WAS ABSENT FROM DUTY ON LEAVE WITHOUT PAY CONTINUOUSLY FROM APRIL 24 TO DECEMBER 31, 1929; THAT SHE WAS PAID HER REGULAR RATE OF COMPENSATION FOR THE PERIOD FROM JANUARY 1 TO MARCH 7, 1930, INCLUSIVE, WITHOUT HAVING RETURNED TO DUTY, ON THE BASIS THAT SHE COULD BE GRANTED ADMINISTRATIVELY 30 DAYS' ANNUAL AND 30 DAYS' SICK LEAVE, WITH PAY, WITHOUT A RETURN TO DUTY; AND THAT SHE HAS SINCE BEEN CONTINUOUSLY ON LEAVE OF ABSENCE WITHOUT PAY. IN OTHER WORDS, IT APPEARS THAT THIS EMPLOYEE HAS RENDERED NO SERVICE WHATEVER SINCE FEBRUARY, 1929, OR DURING THE PAST EIGHTEEN MONTHS.

THE QUESTION INVOLVED IS WHETHER THERE IS AUTHORITY OF LAW FOR GRANTING ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY AT THE BEGINNING OF A CALENDAR, OR OTHER LEAVE YEAR, WITHOUT RETURN TO DUTY FOLLOWING A PERIOD OF LEAVE OF ABSENCE WITHOUT PAY IN THE PRECEDING CALENDAR OR OTHER LEAVE YEAR.

THE ACT OF MARCH 15, 1898, 30 STAT. 316, 317, PROVIDES AS FOLLOWS:

* * * PROVIDED FURTHER, THAT THE HEAD OF ANY DEPARTMENT MAY GRANT THIRTY DAYS' ANNUAL LEAVE WITH PAY IN ANY ONE YEAR TO EACH CLERK OR EMPLOYEE: AND PROVIDED FURTHER, THAT * * * IN EXCEPTIONAL AND MERITORIOUS CASES, WHERE A CLERK OR EMPLOYEE IS PERSONALLY ILL, AND WHERE TO LIMIT THE ANNUAL LEAVE TO THIRTY DAYS IN ANY ONE CALENDAR YEAR WOULD WORK PECULIAR HARDSHIP, IT MAY BE EXTENDED, IN THE DISCRETION OF THE HEAD OF THE DEPARTMENT, WITH PAY, NOT EXCEEDING THIRTY DAYS IN ANY ONE CASE OR IN ANY ONE CALENDAR YEAR.

THIS SECTION SHALL NOT BE CONSTRUED TO MEAN THAT SO LONG AS A CLERK OR EMPLOYEE IS BORNE UPON THE ROLLS OF THE DEPARTMENT IN EXCESS OF THE TIME HEREIN PROVIDED FOR OR GRANTED THAT HE OR SHE SHALL BE ENTITLED TO PAY DURING THE PERIOD OF SUCH EXCESSIVE ABSENCE, BUT THAT THE PAY SHALL STOP UPON THE EXPIRATION OF THE GRANTED LEAVE.

SEE, ALSO, THE ACTS OF JULY 7, 1898, 30 STAT. 653, AND FEBRUARY 24, 1899, 30 STAT. 890.

THE GRANTING OF LEAVE OF ABSENCE OF GOVERNMENT EMPLOYEES UNDER THE STATUTES IS LARGELY A MATTER OF ADMINISTRATIVE DISCRETION, BUT IN ORDER TO CARRY OUT THE PURPOSE AND INTENT OF THE CONTROLLING STATUTES, THERE MUST BE LIMITATIONS WITHIN WHICH SUCH DISCRETION PROPERLY MAY BE EXERCISED. IS MOST UNREASONABLE TO CONCLUDE THAT THE STATUTE CONTEMPLATES OR AUTHORIZES THE GRANTING OF ANNUAL AND SICK LEAVE OF ABSENCE WITH PAY AT THE BEGINNING OF EACH CALENDAR, OR OTHER LEAVE YEAR, SO LONG AS THE EMPLOYEE MAY BE CONTINUED ON THE ROLLS, WITHOUT A RETURN TO DUTY FOLLOWING A PERIOD OF ABSENCE FROM DUTY IN A NON-PAY STATUS. LEAVE OF ABSENCE WITH PAY IS DEPENDENT UPON AN ACTUAL DUTY STATUS WITH PAY, AND THERE CAN BE NO LEAVE STATUS WITH PAY IN ANY LEAVE YEAR UNLESS AND UNTIL THERE HAS BEEN A STATUS OF ACTUAL DUTY WITH PAY IN SAID YEAR. THE MERE ENDING OF ONE LEAVE YEAR AND THE BEGINNING OF ANOTHER WITHOUT A RETURN TO DUTY DOES NOT IPSO FACTO AUTHORIZE GRANTING THE EMPLOYEE A NEW ALLOWANCE OF LEAVE UNDER THE STATUTE. IF IT DID, IT WOULD BE POSSIBLE BY ADMINISTRATIVE ACTION TO CARRY AN EMPLOYEE ON THE ROLLS AND GIVE HIM PAY FOR OVER TWO MONTHS EACH YEAR OVER A PERIOD OF ANY NUMBER OF YEARS WITHOUT PERFORMANCE OF ANY DUTY WHATEVER. IT COULD NOT BE SERIOUSLY CONTENDED THAT THE LEAVE LAWS CONTEMPLATED THE PAYMENT OF COMPENSATION UNDER SUCH CIRCUMSTANCES.

IN RECOGNITION OF THE PRINCIPLE THAT A LEAVE WITH PAY STATUS IS DEPENDENT UPON A STATUS OF ACTUAL DUTY WITH PAY, SOME OF THE DEPARTMENTS HAVE PROPERLY INCLUDED IN THE REGULATIONS RESTRICTIONS WITH RESPECT TO THE CONDITIONS UNDER WHICH LEAVE MAY BE GRANTED TO COVER AN ABSENCE AT THE BEGINNING OF A YEAR. SEE PARTICULARLY 4 COMP. GEN. 69, WHEREIN WERE CONSIDERED THE REGULATIONS OF THE DEPARTMENT OF THE INTERIOR. THE DECISION HELD (QUOTING FROM THE SYLLABUS), AS FOLLOWS:

AN EMPLOYEE OF THE INTERIOR DEPARTMENT WHO IS ABSENT AT THE END OF THE CALENDAR YEAR WITHOUT PAY AND CONTINUES ABSENT AT THE BEGINNING OF NEXT YEAR IS NOT, UNDER THE REGULATIONS OF THAT DEPARTMENT, ENTITLED TO ANNUAL OR SICK LEAVE ON THE NEW YEAR'S ALLOWANCE UNTIL RETURN TO DUTY FOR AN AGGREGATE OF 30 DAYS; THEREAFTER THE LEAVE WITHOUT PAY PREVIOUSLY TAKEN IN THAT YEAR MAY BE MODIFIED TO SICK OR ANNUAL LEAVE TO THE EXTENT THAT CREDIT FOR SUCH SICK OR ANNUAL LEAVE IS EARNED IN THAT YEAR AND WHEN SO MODIFIED THE EMPLOYEE IS ENTITLED TO PAY THEREFOR.

HEREAFTER, EMPLOYEES UNDER ANY DEPARTMENT OR OFFICE SUBJECT TO THE PROVISIONS OF THE LEAVE STATUTES ABOVE QUOTED AND CITED, MAY NOT BE GRANTED ANNUAL OR SICK LEAVE OF ABSENCE WITH PAY AT THE BEGINNING OF A CALENDAR, OR OTHER LEAVE YEAR, IMMEDIATELY FOLLOWING A PERIOD OF ABSENCE IN A NONPAY STATUS IN THE PRECEDING YEAR, UNLESS AND UNTIL THERE HAS BEEN RETURN TO DUTY.

PAYMENT OF COMPENSATION IN THIS CASE TO MISS GRUBB FOR THE PERIOD FROM JANUARY 1 TO MARCH 7, 1930, AND FOR PAST PERIODS IN OTHER SIMILAR CASES, WILL NOT NOW BE QUESTIONED.

THE REPORT HEREINBEFORE QUOTED STATES THAT MISS GRUBB WAS GIVEN AN EFFICIENCY RATING OF 94.36 AS OF MAY 15, 1930, ON THE BASIS OF WHICH IT IS PRESUMED THE PROMOTION OF JUNE 12, 1930, WAS MADE.

SECTION 9 OF THE ORIGINAL CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1491, PROVIDES AS FOLLOWS:

THAT THE BOARD SHALL REVIEW AND MAY REVISE UNIFORM SYSTEMS OF EFFICIENCY RATING ESTABLISHED OR TO BE ESTABLISHED FOR THE VARIOUS GRADES OR CLASSES THEREOF, WHICH SHALL SET FORTH THE DEGREE OF EFFICIENCY WHICH SHALL CONSTITUTE GROUND FOR (A) INCREASE IN THE RATE OF COMPENSATION FOR EMPLOYEES WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF THE CLASS TO WHICH THEIR POSITIONS ARE ALLOCATED, (B) CONTINUANCE AT THE EXISTING RATE OF COMPENSATION WITHOUT INCREASE OR DECREASE, (C) DECREASE IN THE RATE OF COMPENSATION FOR EMPLOYEES WHO AT THE TIME ARE ABOVE THE MINIMUM RATE FOR THE CLASS TO WHICH THEIR POSITIONS ARE ALLOCATED, AND (D) DISMISSAL.

THE HEAD OF EACH DEPARTMENT SHALL RATE IN ACCORDANCE WITH SUCH SYSTEMS THE EFFICIENCY OF EACH EMPLOYEE UNDER HIS CONTROL OR DIRECTION. THE CURRENT RATINGS FOR EACH GRADE OR CLASS THEREOF SHALL BE OPEN TO INSPECTION BY THE REPRESENTATIVES OF THE BOARD AND BY THE EMPLOYEES OF THE DEPARTMENT UNDER CONDITIONS TO BE DETERMINED BY THE BOARD AFTER CONSULTATION WITH THE DEPARTMENT HEADS.

REDUCTIONS IN COMPENSATION AND DISMISSALS FOR INEFFICIENCY SHALL BE MADE BY HEADS OF DEPARTMENTS IN ALL CASES WHENEVER THE EFFICIENCY RATINGS WARRANT, AS PROVIDED HEREIN, SUBJECT TO THE APPROVAL OF THE BOARD.

THE BOARD MAY REQUIRE THAT ONE COPY OF SUCH CURRENT RATINGS SHALL BE TRANSMITTED TO AND KEPT ON FILE WITH THE BOARD.

EFFICIENCY WITHIN THE MEANINGS OF THIS STATUTE IS INTENDED TO BE BASED ON THE CHARACTER OF SERVICE, AND THE ATTITUDE, ETC., OF THE EMPLOYEE WHILE IN PERFORMANCE THEREOF. UNDER THE REGULATIONS OF THE PERSONNEL CLASSIFICATION BOARD, RATINGS ARE MADE AS OF MAY 15 OF EACH YEAR AND ARE TO BE BASED SOLELY ON THE SERVICE PERFORMED DURING THE YEAR IMMEDIATELY PRECEDING SAID DATE. IF NO SERVICE IS PERFORMED DURING ANY PORTION OF THE PRECEDING YEAR, AS IN THIS CASE, NO EFFICIENCY RATING, OTHER THAN ZERO, PROPERLY MAY BE MADE. UNDER SUCH CIRCUMSTANCES, NO PROMOTION WOULD BE AUTHORIZED.

YOU ARE ADVISED, THEREFORE, THAT THE ADMINISTRATIVE PROMOTION OF JUNE 12, 1930, IN THIS CASE, WAS NOT AUTHORIZED AND MAY NOT BE PAID THE EMPLOYEE IF AND WHEN SHE RETURNS TO DUTY.

AS THE BROOKHART SALARY ACT AUTHORIZES A STATUTORY INCREASE NOT DEPENDENT UPON THE PERFORMANCE OF DUTY, THE SAME WAS AUTHORIZED IN THIS CASE EFFECTIVE JULY 3, 1930, IF THE OTHER CONDITIONS OF THE STATUTE WERE MET, ALTHOUGH THE EMPLOYEE WAS IN A NONPAY STATUS ON THAT DATE. SEE DECISION OF AUGUST 20, 1930, A-32880, 10 COMP. GEN. 82, INVOLVING THE CASE OF AN EMPLOYEE IN A NONPAY STATUS ON JULY 1, 1928, THE EFFECTIVE DATE OF THE WELCH ACT.