A-5372, DECEMBER 3, 1924, 4 COMP. GEN. 511

A-5372, DECEMBER 3, 1924, 4 COMP. GEN. 511

LEAVE OF ABSENCE - TEMPORARY PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA TEMPORARILY EMPLOYED OR PAID FROM APPROPRIATIONS EXPRESSLY AND EXCLUSIVELY AVAILABLE FOR TEMPORARY PERSONAL SERVICES, ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY, EITHER UNDER THE ACT OF MARCH 2, 1911, 36 STAT. 966, OR THE ACT OF FEBRUARY 22, 1921, 41 STAT. 1144. (SEE 4 COMP. GEN. 552.)

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, DECEMBER 3, 1924:

I HAVE YOUR LETTER OF SEPTEMBER 22, 1924, REQUESTING DECISION WHETHER IT IS WITHIN THE ADMINISTRATIVE DISCRETION OF THE COMMISSIONERS TO GRANT SICK LEAVE OF ABSENCE WITH PAY TO A. C. OLIVER, AN EMPLOYEE OF THE DISTRICT OF COLUMBIA.

YOU FORWARD A COPY OF A LETTER FROM A. C. OLIVER, AS FOLLOWS:

I AM EMPLOYED AS CLERK IN THE OFFICE OF THE WATER REGISTRAR (REVENUE AND INSPECTION BRANCH), ENGINEER DEPARTMENT, DISTRICT OF COLUMBIA, AT AN ANNUAL COMPENSATION OF $1,320, AND HAVE OCCUPIED MY PRESENT POSITION FOR OVER FIVE YEARS. THE PERSONNEL CLASSIFICATION BOARD CLASSIFIED THE POSITION I AM FILLING UNDER CAF-2, BUREAU NO. 11-22-96, AND P.C.B. NO. 268.

ON AUGUST 29, 1924, I WAS CONFINED TO MY HOME THROUGH ILLNESS. ON AUGUST 30, 1924, I RETURNED TO DUTY AND FILLED OUT THE PRESCRIBED APPLICATION FOR SICK LEAVE WITH PAY FOR THE ABSENCE ON AUGUST 29TH. MY APPLICATION WAS DISALLOWED ON THE GROUND THAT THE POSITION I OCCUPY DOES NOT ENTITLE ME TO SICK LEAVE WITH PAY, THIS NOTWITHSTANDING THE FACT THAT OTHER EMPLOYEES IN THE SAME OFFICE, WORKING UNDER THE SAME CLASSIFICATION, ARE GRANTED SICK LEAVE WITH PAY.

I CAN FIND NO AUTHORITY OF LAW FOR THIS DISCRIMINATION AND THEREFORE RESPECTFULLY REQUEST A RULING FROM YOU AS TO WHETHER HOLDING THE POSITION THAT I DO I AM, UNDER THE LAW, ENTITLED TO SICK LEAVE WITH PAY IN THE DISCRETION OF THE APPROPRIATE ADMINISTRATIVE OFFICER.

YOU STATE THAT HE IS EMPLOYED AND PAID ON A PER DIEM BASIS UNDER THE FOLLOWING PROVISION APPEARING IN THE ANNUAL APPROPRIATION ACT FOR THE DISTRICT OF COLUMBIA FOR THE FISCAL YEAR 1925, APPROVED JUNE 7, 1924, 43 STAT. 577:

SEC. 4. THAT THE SERVICES OF ASSISTANT ENGINEERS, DRAFTSMEN, LEVELERS, RODMEN, CHAIRMEN, COMPUTERS, COPYISTS, AND INSPECTORS TEMPORARILY REQUIRED IN CONNECTION WITH WATER DEPARTMENT WORK AUTHORIZED BY APPROPRIATIONS, MAY BE EMPLOYED EXCLUSIVELY TO CARRY INTO EFFECT SAID APPROPRIATIONS, AND BE PAID THEREFROM WHEN SPECIFICALLY AND IN WRITING ORDERED BY THE COMMISSIONERS, AND THE COMMISSIONERS IN THEIR BUDGET ESTIMATES SHALL REPORT THE NUMBER OF SUCH EMPLOYEES PERFORMING SUCH SERVICES AND THEIR WORK AND THE SUMS PAID TO EACH: PROVIDED, THAT THE EXPENDITURES HEREUNDER SHALL NOT EXCEED $25,000 DURING THE FISCAL YEAR 1925.

THERE ARE TWO STATUTES CONTROLLING THE GRANTING OF LEAVE OF ABSENCE TO EMPLOYEES OF THE DISTRICT OF COLUMBIA. THE FIRST IS DATED MARCH 2, 1911, 36 STAT. 966, EXTENDING THE PROVISIONS OF THE ACT OF MARCH 15, 1898, 30 STAT. 316, AS AMENDED BY THE ACT OF JULY 7, 1898, 30 STAT. 653, REGULATING LEAVE OF ABSENCE OF EMPLOYEES OF THE FEDERAL GOVERNMENT, TO THE "REGULAR ANNUAL EMPLOYEES OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, EXCEPT THE POLICE AND FIRE DEPARTMENTS AND PUBLIC-SCHOOL OFFICERS, TEACHERS, AND EMPLOYEES.' THE SECOND IS DATED FEBRUARY 22, 1921, 41 STAT. 1144, PROVIDING AS FOLLOWS:

SEC. 8. THAT THE COMMISSIONERS ARE AUTHORIZED IN THEIR DISCRETION, AND UNDER SUCH REGULATIONS AS THEY MAY PRESCRIBE, TO GRANT NOT EXCEEDING FIFTEEN DAYS LEAVE OF ABSENCE WITH PAY EACH YEAR TO PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA WHO HAVE BEEN EMPLOYED FOR TEN CONSECUTIVE MONTHS OR MORE.

IF A. C. OLIVER ACTUALLY OCCUPIES HIS POSITION UNDER A TEMPORARY APPOINTMENT, MADE UNDER AUTHORITY OF AND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 4 OF THE ACT OF JUNE 7, 1924, HEREINBEFORE QUOTED, AS DISTINGUISHED FROM A PERMANENT APPOINTMENT AS A REGULAR EMPLOYEE, THE COMPENSATION OF WHICH IS PROPERLY CHARGEABLE TO THE REGULAR APPROPRIATION FOR THE WATER DEPARTMENT, HE WOULD NOT BE ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE ACT OF MARCH 2, 1911.

THE ACT OF FEBRUARY 22, 1921, GRANTING NOT TO EXCEED 15 DAYS' LEAVE OF ABSENCE, WITHIN THE DISCRETION OF THE COMMISSIONERS, TO "PER DIEM EMPLOYEES OF THE DISTRICT OF COLUMBIA" IS EXPRESSLY LIMITED TO THOSE WHO HAVE BEEN EMPLOYED FOR 10 CONSECUTIVE MONTHS OR MORE. THIS NEGATIVES GRANTING LEAVE OF ABSENCE WITH PAY TO TEMPORARY EMPLOYEES. SEE, GENERALLY, 3 COMP. GEN. 382; 4 COMP. GEN. 18.

IT WOULD APPEAR, THEREFORE, UPON YOUR REPRESENTATION THAT A. C. OLIVER IS A TEMPORARY EMPLOYEE. HE IS NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER EITHER OF THE STATUTES CONTROLLING THE GRANTING OF LEAVE OF ABSENCE TO EMPLOYEES OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA.