A-64859, JANUARY 11, 1936, 15 COMP. GEN. 597

A-64859, JANUARY 11, 1936, 15 COMP. GEN. 597

LEAVES OF ABSENCE - POSTAL SERVICE AN EMPLOYEE OF THE POSTAL SERVICE WHOSE ANNUAL AND SICK LEAVE HAS BEEN EXHAUSTED AND WHO IS IN A NONPAY STATUS MAY NOT BE PAID FOR SUNDAYS AND SATURDAY HALF-HOLIDAYS WHEN NO SERVICE HAS BEEN PERFORMED. AN EMPLOYEE OF THE POSTAL SERVICE WHOSE ANNUAL AND SICK LEAVE HAS BEEN EXHAUSTED AND WHO IS IN A NONPAY STATUS AT THE END OF A LEAVE YEAR, IS NOT ENTITLED TO ANNUAL AND SICK LEAVE WITH PAY AT THE BEGINNING OF A NEW LEAVE YEAR WITHOUT A RETURN TO DUTY, NOTWITHSTANDING THE ACT OF JULY 28, 1916, 39 STAT. 413, PROHIBITING THE DROPPING FROM THE ROLLS BY THE POSTMASTER GENERAL OF EMPLOYEES ABSENT ON ACCOUNT OF ILLNESS FOR LESS THAN 1 YEAR.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, JANUARY 11, 1936:

THERE HAS BEEN RECEIVED LETTER DATED JULY 5, 1935, FROM THE FIRST ASSISTANT POSTMASTER GENERAL REFERRING FOR MY CONSIDERATION LETTER DATED JUNE 7, 1935, TO HIM, FROM THE POSTMASTER, FRANKLIN, VA., AS FOLLOWS:

THIS OFFICE IS ATTEMPTING TO ASCERTAIN WHAT SALARY, IF ANY, IS DUE TO THE ESTATE OF CITY CARRIER WILLIAM C. BYRD, DECEASED. CARRIER BYRD WAS IN THE $2,100 CLASS, HIS LAST DAY OF ACTUAL SERVICE BEING JUNE 4, 1934, AND HIS DEATH OCCURRING ON JANUARY 11, 1935. ON JUNE 4, 1934, CARRIER BYRD HAD EXHAUSTED BOTH HIS SICK LEAVE AND ANNUAL LEAVE FOR THE FISCAL YEAR 1934. THIS OFFICE PAID CARRIER BYRD THE SUM OF $25.23 FOR SUNDAY AND SATURDAY HALF-HOLIDAY SERVICE FOR THE MONTH OF JUNE 1934, AND WE SHOULD LIKE TO KNOW IF THIS WAS CORRECT, AND IF NOT, WHAT AMOUNT, IF ANY, SHOULD HAVE BEEN PAID HIM.

UNDER DATE OF AUGUST 8, 1934, YOUR OFFICE WROTE US (INITIALS SPD-1) THAT CARRIER BYRD MIGHT BE GRANTED SICK AND ANNUAL LEAVE FOR THE FISCAL YEAR 1935, NONE OF WHICH HAS BEEN PAID HIM, SINCE HE KEPT EXPECTING TO RETURN TO DUTY AND DID NOT DESIRE EITHER ANNUAL OR SICK LEAVE AT THE TIME.

ON THE STRENGTH OF YOUR LETTER REFERRED TO ABOVE, THIS OFFICE THINKS THAT THE ESTATE OF CARRIER BYRD IS ENTITLED TO 8 DAYS ANNUAL LEAVE AND 5 1/2 DAYS SICK LEAVE FROM JULY 1, 1934, TO THE DATE OF HIS DEATH ON JANUARY 11, 1935, OR A TOTAL AMOUNT OF $69.09, LESS THE $25.23 REFERRED TO IN THE FIRST PARAGRAPH OF THIS COMMUNICATION, IF THAT AMOUNT SHOULD NOT HAVE BEEN PAID HIM; OR A NET AMOUNT DUE HIS ESTATE OF $43.86.

WILL YOU KINDLY ADVISE THIS OFFICE JUST WHAT IS DUE THE ESTATE OF CARRIER BYRD IN THE PREMISES, GIVING US THE AMOUNT WHICH SHOULD BE PAID HIM IN DOLLARS AND CENTS?

THE POSTMASTER, FRANKLIN, VA., FURTHER REPORTED TO THIS OFFICE BY LETTER OF AUGUST 9, 1935, IN PART, AS FOLLOWS:

MR. BYRD'S SICK LEAVE HAD BEEN EXHAUSTED BEFORE THE FIRST OF JUNE 1934. YOU WILL NOTE THAT THE FINAL 6 HOURS OF HIS ANNUAL LEAVE WAS TAKEN ON JUNE 5TH AND THAT HE DID NOT REPORT FOR DUTY AT ANY TIME AFTER JUNE 4TH.

NO PAYMENTS FOR SALARY WERE MADE TO MR. BYRD DURING THE FISCAL YEAR 1935, NOR DID HE REPORT FOR DUTY AT ANY TIME DURING THAT YEAR. AS PREVIOUSLY REPORTED HIS DEATH OCCURRED ON JANUARY 11, 1935.

TWO QUESTIONS ARE PRESENTED. FIRST, WHETHER AN EMPLOYEE OF THE POSTAL SERVICE WHO HAS EXHAUSTED ALL ANNUAL AND SICK LEAVE DURING A FISCAL OR LEAVE YEAR IS ENTITLED TO PAYMENT OF SALARY FOR SUNDAYS AND SATURDAY HALF- HOLIDAYS WHEN HE HAS RENDERED NO SERVICE; SECOND, WHETHER AN EMPLOYEE OF THE POSTAL SERVICE WHO BECAUSE OF ILLNESS HAS BEEN IN A NONPAY STATUS FOR LESS THAN A YEAR, IS ENTITLED TO ANNUAL AND SICK LEAVE WITH PAY AT THE BEGINNING OF A NEW FISCAL OR LEAVE YEAR WITHOUT A RETURN TO DUTY.

THE FIRST QUESTION IS ANSWERED IN THE NEGATIVE. THERE IS NO AUTHORITY OF LAW WHEREBY AN EMPLOYEE OF THE POSTAL SERVICE MAY BE PAID FOR SUNDAYS AND SATURDAY HALF-HOLIDAYS WHEN NO SERVICE HAS BEEN PERFORMED AND WHEN ALL ANNUAL AND SICK LEAVE HAS BEEN EXHAUSTED. 9 COMP. GEN. 350; 14 ID. 737.

WITH REFERENCE TO THE SECOND QUESTION, THERE IS FOR CONSIDERATION THE ACT OF JULY 28, 1916, 39 STAT. 413, WHICH PROVIDES, IN PART, AS FOLLOWS:

THAT THE POSTMASTER GENERAL SHALL NOT APPROVE OR CONTINUE ANY RULE OR REGULATION WHICH TERMINATES THE EMPLOYMENT OF ANY EMPLOYEE BY REASON OF ABSENCE ON ACCOUNT OF ILLNESS FOR A PERIOD OF LESS THAN 1 YEAR. * * *.

IT APPEARS THAT PRIOR TO THE PASSAGE OF THIS ACT, THE POSTAL LAWS AND REGULATIONS PROVIDED THAT---

POSTMASTERS MAY, IN ADDITION TO THE LEAVE OF ABSENCE WITH PAY PROVIDED BY LAW, GRANT LEAVE OF ABSENCE WITHOUT PAY TO CARRIERS (CLERKS IN FIRST- AND SECOND-CLASS POST OFFICES AND CITY AND RURAL LETTER CARRIERS), SUCH LEAVE NOT TO EXCEED 30 DAYS IN ANY ONE FISCAL YEAR. APPLICATIONS FOR LEAVE OF ABSENCE TO COVER A LONGER PERIOD IN CASES OF ILLNESS OR DISABILITY RECEIVED IN THE SERVICE MUST BE SUBMITTED BY THE POSTMASTER TO THE FIRST ASSISTANT POSTMASTER GENERAL, WITH A FULL STATEMENT OF THE FACTS, BUT LEAVE OF ABSENCE FOR MORE THAN 150 DAYS IN ONE FISCAL YEAR WILL NOT BE GRANTED IN ANY SUCH CASE. CARRIERS WHO DESIRE TO BE ABSENT FOR LONGER PERIODS WILL BE DROPPED FROM THE ROLLS WITHOUT PREJUDICE.

IT SEEMS CLEAR THAT THE INTENT OF THE ACT OF JULY 28, 1916, 39 STAT. 413, IS NOT TO MAKE AN EXCEPTION, IN THE CASE OF POSTAL EMPLOYEES, TO THE GENERAL RULE THAT LEAVE OF ABSENCE WITH PAY IS DEPENDENT UPON SERVICE, BUT MERELY TO PROHIBIT THE DROPPING FROM THE ROLLS, BY THE POSTMASTER GENERAL, OF EMPLOYEES WHO ARE ABSENT FROM THEIR DUTIES ON ACCOUNT OF SICKNESS FOR A PERIOD OF LESS THAN 1 YEAR. IN OTHER WORDS, UNDER THE PROVISIONS OF THIS STATUTE, A POSTAL EMPLOYEE WHO IS ABSENT FROM HIS OFFICIAL DUTIES ON ACCOUNT OF SICKNESS FOR A PERIOD OF LESS THAN 1 YEAR WILL BE CARRIED ON THE ROLLS AND MAY RETURN TO DUTY WITHOUT GOING THROUGH THE PROCESS OF REAPPOINTMENT OR REINSTATEMENT. THE MERE FACT, HOWEVER, THAT A GOVERNMENT EMPLOYEE IS CARRIED ON THE ROLLS GIVES HIM NO VESTED RIGHT TO COMPENSATION. SEE UNITED STATES V. MURRAY, 100 U.S. 536.

ACCORDINGLY, THERE IS FOR APPLICATION IN THIS CASE THE GENERAL RULE STATED IN 10 COMP. GEN. 102 IN REFERENCE TO THE LEAVE ACTS GOVERNING DEPARTMENTAL EMPLOYEES THAT EMPLOYEES 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. AS THE EMPLOYEE IN THIS CASE NEVER RETURNED TO DUTY AFTER HAVING EXHAUSTED ALL HIS ANNUAL AND SICK LEAVE, HE WAS NOT ENTITLED TO ANY COMPENSATION AT THE BEGINNING OF THE NEW LEAVE YEAR, JULY 1, 1934, OR THEREAFTER.

IT APPEARS THAT A CLAIM HAS BEEN FILED WITH THE UNITED STATES CIVIL SERVICE COMMISSION FOR REFUND OF RETIREMENT DEDUCTIONS MADE FROM THE FORMER EMPLOYEE'S PAY. AS THE EMPLOYEE WAS NOT ENTITLED TO THE 5 DAYS' PAY IN JUNE 1934 AFTER ALL HIS ANNUAL AND SICK LEAVE HAD BEEN EXHAUSTED, THE AMOUNT ERRONEOUSLY PAID TO HIM, TOGETHER WITH THE AMOUNT ERRONEOUSLY PLACED TO HIS CREDIT IN THE RETIREMENT FUND, WILL BE DEDUCTED FROM THE AMOUNT OTHERWISE DUE THEREFROM TO HIS ESTATE.