A-43622, AUGUST 1, 1932, 12 COMP. GEN. 149

A-43622, AUGUST 1, 1932, 12 COMP. GEN. 149

ECONOMY ACT - 5-DAY WEEK - ADMINISTRATIVE AND LEGISLATIVE FURLOUGHS - TRANSFERS TO VACANT POSITIONS - RETIREMENT DEDUCTIONS THE RETIREMENT DEDUCTIONS (INCLUDING TONTINE) DURING PERIODS OF LEGISLATIVE FURLOUGHS PURSUANT TO SECTION 101 (B) OF THE ACT OF JUNE 30, 1932, ARE TO BE COMPUTED AS THOUGH THE EMPLOYEE WERE ON DUTY OR LEAVE WITH PAY. IF ABSENT AN ENTIRE MONTH ON LEGISLATIVE FURLOUGH, THE RETIREMENT DEDUCTIONS MUST BE TAKEN FROM THE NEXT MONTH'S PAY. NO RETIREMENT DEDUCTIONS ARE TO BE MADE FOR TIME ABSENT ON ADMINISTRATIVE FURLOUGH EXCEPT THAT THE TONTINE DEDUCTION WILL BE APPLIED UNDER THE RULES IN DECISION OF NOVEMBER 19, 1930, 10 COMP. GEN. 226. IF AN EMPLOYEE HAS TAKEN HIS ENTIRE LEGISLATIVE FURLOUGH AND BEFORE THE END OF THE FISCAL YEAR RESIGNS, NO PORTION OF SUCH FURLOUGH MAY BE CONSIDERED ADMINISTRATIVE, BUT THE ENTIRE AMOUNT OF THE FURLOUGH DEDUCTIONS MUST BE IMPOUNDED. ADMINISTRATIVE FURLOUGHS UNDER SECTION 216 OF THE ECONOMY ACT ARE LEAVES WITHOUT PAY AND INCLUDE ALL SUNDAYS AND HOLIDAYS. THEY MAY NOT BE ADMINISTERED ON THE 24-WORKING-DAY BASIS PRESCRIBED FOR LEGISLATIVE FURLOUGHS. WHERE THE EMPLOYEES ARE SUBJECT TO THE FURLOUGH PROVISIONS OF SECTION 101 (B), NO ADMINISTRATIVE FURLOUGH MAY BE REQUIRED OR PERMITTED UNTIL THE LEGISLATIVE FURLOUGH OF ONE CALENDAR MONTH, OR 24 WORKING DAYS, HAS BEEN COMPLETED AND THE AMOUNTS SO SAVED IMPOUNDED. WHEN ALL EMPLOYEES ARE REQUIRED TO BE ABSENT ALL DAY SATURDAY FOR AN EXTENDED PERIOD, THE OFFICE OR SERVICE IS ON A 5-DAY WEEK BASIS AND THE PAY DEDUCTIONS REQUIRED BY SECTION 101 (A) MUST BE APPLIED THERETO. LEGISLATIVE FURLOUGHS ARE NOT TO BE COUNTED AS ABSENCES WITHIN THE PURVIEW OF SECTION 5 OF THE CIVIL RETIREMENT ACT, BUT ALL ADMINISTRATIVE FURLOUGHS MUST BE SO COUNTED. WHEN AN EMPLOYEE SUBJECT TO LEGISLATIVE FURLOUGH OR THE 8 1/3 PERCENT DEDUCTION PLAN IS FURLOUGHED FOR THE ENTIRE FISCAL YEAR 1933, ONE CALENDAR MONTH'S PAY OR 8 1/3 PERCENT MUST BE CONSIDERED AS DUE TO LEGISLATIVE FURLOUGH AND IMPOUNDED. POSITIONS WITHIN THE GOVERNMENT SERVICE VACANT ON OR AFTER JULY 1, 1932, MAY NOT BE FILLED AFTER THAT DAY BY REASSIGNMENT OF OTHER EMPLOYEES TO SUCH POSITIONS WITHOUT THE WRITTEN AUTHORITY OR APPROVAL OF THE PRESIDENT AS REQUIRED BY SECTION 203 OF THE ECONOMY ACT.

COMPTROLLER GENERAL MCCARL TO THE CIVIL SERVICE COMMISSION, AUGUST 1, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 23, 1932, AS FOLLOWS:

SECTIONS 101 (B), 205, AND 216 OF THE ACT (ECONOMY) APPROVED JUNE 30, 1932, READ AS FOLLOWS:

SECTION 101 (B) (IN PART):

DURING THE FISCAL YEAR ENDING JUNE 30, 1933--- EACH OFFICER OR EMPLOYEE RECEIVING COMPENSATION ON AN ANNUAL BASIS AT THE RATE OF MORE THAN $1,000 PER ANNUM SHALL BE FURLOUGHED WITHOUT COMPENSATION FOR ONE CALENDAR MONTH, OR FOR SUCH PERIODS AS SHALL IN THE AGGREGATE BE EQUIVALENT TO ONE CALENDAR MONTH, FOR WHICH LATTER PURPOSE TWENTY-FOUR WORKING DAYS (COUNTING SATURDAY AS ONE-HALF DAY) SHALL BE CONSIDERED AS THE EQUIVALENT OF ONE CALENDAR MONTH.

SEC. 205. THE PROVISIONS OF THIS PART OF THIS ACT PROVIDING FOR TEMPORARY REDUCTIONS IN COMPENSATION AND SUSPENSION IN AUTOMATIC INCREASES IN COMPENSATION SHALL NOT OPERATE TO REDUCE THE RATE OF COMPENSATION UPON WHICH THE RETIRED PAY OR RETIREMENT BENEFITS OF ANY OFFICER OR EMPLOYEE WOULD BE BASED BUT FOR THE APPLICATION OF SUCH PROVISIONS, BUT THE AMOUNT OF RETIRED PAY SHALL BE REDUCED AS PROVIDED IN TITLE I: PROVIDED, THAT RETIREMENT DEDUCTIONS AUTHORIZED BY LAW TO BE MADE FROM THE SALARY, PAY, OR COMPENSATION OF OFFICERS OR EMPLOYEES AND TRANSFERRED OR DEPOSITED TO THE CREDIT OF A RETIREMENT FUND, SHALL BE BASED ON THE REGULAR RATE OF SALARY, PAY, OR COMPENSATION INSTEAD OF ON THE RATE AS TEMPORARILY REDUCED UNDER THE PROVISIONS OF THIS ACT.

SEC. 216. IN ORDER TO KEEP WITHIN THE APPROPRIATIONS MADE FOR THE FISCAL YEAR 1933, THE HEADS OF THE VARIOUS EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE UNITED STATES GOVERNMENT AND THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA ARE HEREBY AUTHORIZED AND DIRECTED TO FURLOUGH, WITHOUT PAY, SUCH EMPLOYEES CARRIED ON THEIR RESPECTIVE ROLLS, SUCH TIME AS IN THEIR JUDGMENT IS NECESSARY TO CARRY OUT SAID PURPOSE WITHOUT DISCHARGING SUCH EMPLOYEES, THE HIGHER SALARIED TO BE FURLOUGHED FIRST WHENEVER POSSIBLE WITHOUT INJURY TO THE SERVICE: PROVIDED, THAT RULES AND REGULATIONS SHALL BE PROMULGATED BY THE PRESIDENT WITH A VIEW TO SECURING UNIFORM ACTION BY THE HEADS OF THE VARIOUS EXECUTIVE DEPARTMENTS AND INDEPENDENT GOVERNMENT ESTABLISHMENTS IN THE APPLICATION OF THE PROVISIONS OF THIS SECTION.

IN ORDER TO PROVIDE PROCEDURES LOOKING TO A PROPER COMPLIANCE WITH THE PROVISIONS OF PART II, TITLES I AND II, ACT OF JUNE 30, 1932 (PUBLIC 212), THE FOLLOWING QUESTIONS ARE SUBMITTED FOR YOUR CONSIDERATION:

1. (A)IF AN OFFICER OR EMPLOYEE TO WHOM SECTION 101 (B) IS APPLICABLE IS FURLOUGHED WITHOUT COMPENSATION FOR THE ENTIRE MONTH OF JULY, 1932, AND RECEIVES FULL COMPENSATION THEREAFTER, HOW SHALL DEDUCTIONS BE MADE FOR THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND IN ORDER TO COMPLY WITH THE PROVISIONS OF SECTION 205?

(B) IN CONNECTION WITH THE FOREGOING CASE, SHALL THE $1 PER MONTH TONTINE CONTRIBUTIONS BE MADE FOR THE MONTH OF JULY AS WELL AS FOR THE REMAINING 11 MONTHS?

(C) IF FURLOUGHED FOR 2 DAYS FOR EACH OF THE MONTHS JULY, AUGUST, SEPTEMBER, AND OCTOBER AND 16 DAYS IN NOVEMBER (TOTAL 24), RECEIVING FULL SALARY FOR THE REMAINING PART OF THE FISCAL YEAR, SHALL DEDUCTIONS IN THIS CASE BE MADE ON THE TOTAL BASIC SALARY FOR THE YEAR, AND WOULD $1 GO TO TONTINE FOR THE MONTH OF NOVEMBER?

2. IF AN OFFICER OR EMPLOYEE IS FURLOUGHED WITHOUT COMPENSATION FOR PERIODS WHICH IN THE AGGREGATE ARE EQUIVALENT TO ONE CALENDAR MONTH DURING THE PERIOD JULY 1 TO DECEMBER 31, 1932, AND THEN RESIGNS EFFECTIVE DECEMBER 31ST, SHALL THE ENTIRE FURLOUGH DEDUCTIONS BE CONSIDERED AS ,LEGISLATIVE" IN CHARACTER AND REQUIRED TO BE IMPOUNDED OR SHALL ONE-HALF OF SUCH DEDUCTIONS BE CONSIDERED "LEGISLATIVE" AND ONE-HALF "ADMINISTRATIVE?

3. WHERE AN ADMINISTRATIVE FURLOUGH IS SPECIFIED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 216, CAN SUCH FURLOUGH BE ADMINISTERED ON A WORKING DAY BASIS IN ORDER TO PROVIDE FOR UNIFORMITY IN THE MATTER OF ABSENCES SO THAT WHERE TWO OR MORE EMPLOYEES HAVE DEDUCTIONS MADE FOR THE SAME NUMBER OF DAYS' PAY APPROXIMATELY THE SAME NUMBER OF WORKING DAYS OF ABSENCE WILL BE HAD BY EACH EMPLOYEE?

4. (A) IN THE EVENT THE COMMISSION FINDS IT NECESSARY TO PRESCRIBE AN ADMINISTRATIVE FURLOUGH OF APPROXIMATELY 42 DAYS' PAY UNDER THE PROVISIONS OF SECTION 216, CAN SUCH ADMINISTRATIVE FURLOUGH BE ADMINISTERED CONCURRENTLY WITH THE LEGISLATIVE FURLOUGH?

(B) IF THE TWO TYPES OF FURLOUGH CAN BE ADMINISTERED CONCURRENTLY, WHAT PORTION OF EACH MONTH'S DEDUCTION WILL BE CHARGED TO THE ADMINISTRATIVE FURLOUGH?

(C) WHERE AN ADMINISTRATIVE FURLOUGH IS PRESCRIBED, WHAT WILL BE THE RATE OF COMPENSATION FOR THE PURPOSE OF DETERMINING DEDUCTIONS FOR THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND?

(D) IF FURLOUGHED 2 1/2 DAYS IN JULY, 2 1/2 DAYS IN AUGUST, AND THE ENTIRE MONTHS OF SEPTEMBER AND OCTOBER, THE EMPLOYEE RESIGNING OCTOBER 31, HOW SHALL THE DEDUCTIONS FOR THE RETIREMENT FUND AND THE TONTINE BE DETERMINED?

(E) SHALL FURLOUGHS WITHOUT COMPENSATION UNDER THE PROVISIONS OF SECTION 101 (B) AND/OR SECTION 216 BE COUNTED IN DETERMINING EXCESS LEAVE (MORE THAN SIX MONTHS) UNDER SECTION 5 OF THE RETIREMENT ACT OF MAY 29, 1930?

5. IF AN OFFICER OR EMPLOYEE WHOSE RATE OF COMPENSATION IS MORE THAN $1,000 PER ANNUM IS FURLOUGHED WITHOUT COMPENSATION DURING THE ENTIRE FISCAL YEAR 1933, DOES SECTION 101 (B) REQUIRE THAT 8 1/3 PERCENT OF SUCH OFFICER'S OR EMPLOYEE'S SALARY BE IMPOUNDED?

6. MAY POSITIONS WITHIN THE ORGANIZATION BECOMING VACANT EITHER BEFORE OR AFTER JULY 1, 1932, BE FILLED BY REASSIGNMENT OF ANOTHER EMPLOYEE WITHOUT THE APPROVAL OF THE PRESIDENT IF THERE IS NO INCREASE IN SALARY?

THE QUESTIONS WILL BE CONSIDERED IN THE ORDER ABOVE STATED.

(1) IN VIEW OF THE REQUIREMENT OF SECTION 205 OF THE ECONOMY ACT, 47 STAT. 404, THAT THE RETIREMENT DEDUCTION SHALL BE BASED ON THE REGULAR RATE OF SALARY, PAY OR COMPENSATION, THE RETIREMENT DEDUCTIONS ARE TO BE TAKEN FROM EACH REGULAR PAY THROUGHOUT THE YEAR IRRESPECTIVE OF THE MANNER IN WHICH THE LEGISLATIVE FURLOUGH IS TAKEN. IF AN EMPLOYEE IS ABSENT FOR THE ENTIRE MONTH OF JULY RESULTING IN NO COMPENSATION BEING DUE FOR THAT MONTH, THE RETIREMENT DEDUCTION OF 3 1/2 PERCENT OF THE FULL SALARY FOR THAT MONTH MUST BE MADE FROM THE FIRST COMPENSATION PAYABLE TO THE EMPLOYEE AFTER HIS RETURN TO DUTY. A 43420, JULY 21, 1932, 12 COMP. GEN. 97. THE TONTINE CONTRIBUTIONS FOR PERIODS OF LEGISLATIVE FURLOUGH ARE TO BE COMPUTED AND APPLIED THE SAME AS THOUGH THE EMPLOYEE WERE ON DUTY OR ON LEAVE WITH FULL PAY.

(2) IF AN EMPLOYEE HAS BEEN ON A LEGISLATIVE FURLOUGH FOR ONE CALENDAR MONTH OR AN AGGREGATE OF 24 WORKING DAYS (WHERE FURLOUGH IS TAKEN IN LESS PERIODS THAN ONE MONTH), IN ACCORDANCE WITH SECTION 101 (B) OF THE ECONOMY ACT, WITH CORRESPONDING DEDUCTIONS FROM HIS COMPENSATION, AND THEREAFTER AND BEFORE THE EXPIRATION OF THE FISCAL YEAR RESIGNS, THERE IS NO AUTHORITY TO CONSIDER ANY PORTION OF THE FURLOUGH DEDUCTIONS AS DUE TO ADMINISTRATIVE FURLOUGHS, AND THE ENTIRE AMOUNT OF SUCH DEDUCTIONS MUST BE CONSIDERED AS LEGISLATIVE FURLOUGH DEDUCTIONS AND BE IMPOUNDED.

(3) THIS QUESTION IS ANSWERED IN THE NEGATIVE. ADMINISTRATIVE FURLOUGHS FOR THE PURPOSE OF CONSERVING APPROPRIATIONS ARE TO BE ADMINISTERED NOT AS THE LEGISLATIVE FURLOUGH BUT UNDER THE SAME RULES AND REGULATIONS AS LEAVES OF ABSENCE WITHOUT PAY IN PREVIOUS YEARS; THAT IS, THE EMPLOYEE IS TO BE REGARDED AS IN A NONPAY STATUS FROM TIME OF DEPARTURE TO TIME OF RETURN TO DUTY AND CHARGED FOR ALL SUNDAYS AND HOLIDAYS OCCURRING WITHIN THE LEAVE PERIOD AT THE REGULAR RATE OF COMPENSATION. THAT IS TO SAY, NO PAY ACCRUES DURING ABSENCE ON ADMINISTRATIVE FURLOUGH. THE 24 WORKING DAY PROVISION IN SECTION 101 (B) OF THE ECONOMY ACT, WITH DEDUCTION OF 1 1/4 DAYS' COMPENSATION FOR EACH DAY'S FURLOUGH, IS TO BE APPLIED ONLY TO LEGISLATIVE FURLOUGHS PROVIDED FOR BY THAT SECTION OF THE ACT AND HAS NO APPLICATION TO ADMINISTRATIVE FURLOUGHS.

QUESTION 4 (A) IS ANSWERED IN THE NEGATIVE, AND THIS MAKES CONSIDERATION OF QUESTION 4 (B) UNNECESSARY. WITH RESPECT TO ADMINISTRATIVE FURLOUGHS IN ADDITION TO LEGISLATIVE FURLOUGHS, IT WILL BE NOTED THAT THE LEGISLATIVE FURLOUGH IS MANDATORY IRRESPECTIVE OF THE CONDITION OF THE APPROPRIATIONS, AND MAY BE ENFORCED UP TO FIVE DAYS A MONTH WITHOUT THE CONSENT OF THE EMPLOYEE CONCERNED. IF SO ENFORCED, THE LEGISLATIVE FURLOUGH WOULD BE COMPLETED IN FIVE CALENDAR MONTHS AND THUS LEAVE THE REMAINDER OF THE FISCAL YEAR IN WHICH TO MAKE UP ANY SHORTAGE IN APPROPRIATIONS BY ADMINISTRATIVE FURLOUGHS. IT MUST BE HELD, THEREFORE, THAT NO ADMINISTRATIVE FURLOUGHS MAY BE REQUIRED OR PERMITTED TO BE TAKEN UNTIL THE LEGISLATIVE FURLOUGH OF ONE CALENDAR MONTH OR 24 WORKING DAYS HAS BEEN COMPLETED AND THE AMOUNTS SO SAVED IMPOUNDED.

YOUR SUPPLEMENTAL SUBMISSION OF JULY 27, 1932, SUBMITS A PLAN WHEREBY IT IS PROPOSED TO ADMINISTER THE LEGISLATIVE FURLOUGH BY REQUIRING THE EMPLOYEES OF YOUR COMMISSION TO BE ABSENT EACH SATURDAY MORNING BEGINNING WITH JULY 30, 1932, AND CONTINUING THE REMAINDER OF THE YEAR, AND, IN ADDITION THERETO, TO TAKE CERTAIN ADMINISTRATIVE FURLOUGHS DEPENDING UPON THE SALARY RANGE IN WHICH EMPLOYED. SUCH PLAN WOULD RESULT IN LEGISLATIVE AND ADMINISTRATIVE FURLOUGHS RUNNING CONCURRENTLY WITH DIFFERING DEDUCTIONS FOR THE TIME ABSENT DEPENDING UPON WHETHER IT IS CALLED AN ADMINISTRATIVE OR LEGISLATIVE FURLOUGH. IT MUST BE HELD, THEREFORE, THAT ALL TIME ABSENT WITHOUT PAY BY ANY EMPLOYEE UP TO AN AGGREGATE OF 24 WORKING DAYS MUST BE CONSIDERED LEGISLATIVE FURLOUGHS AND ACCOUNTED FOR ACCORDINGLY. FURTHERMORE, IF THE EMPLOYEES ARE REQUIRED TO BE ABSENT ALL DAY SATURDAY, THAT IS TANTAMOUNT TO PUTTING THEM ON THE 5-DAY WEEK BASIS AS AUTHORIZED UNDER THE FIRST PROVISO OF SUBSECTION (B) OF SECTION 101 AND THERE WOULD BE FOR APPLICATION THE PROVISIONS OF SUBSECTION (A) OF SAID SECTION.

WITH REFERENCE TO QUESTION 4 (C), NO DEDUCTION FOR THE RETIREMENT FUND IS TO BE MADE FOR THE TIME COVERED BY AN ADMINISTRATIVE FURLOUGH, BUT WITH REFERENCE TO THE TONTINE THERE WOULD BE FOR APPLICATION THE RULES ANNOUNCED IN DECISION OF NOVEMBER 19, 1930, 10 COMP. GEN. 226.

YOUR QUESTION 4 (D) IS ANSWERED BY APPLYING THE RULES ABOVE STATED.

PARAGRAPH 2 OF SECTION 5 OF THE ACT OF MAY 29, 1930, 46 STAT. 472, PROVIDES:

IN COMPUTING LENGTH OF SERVICE FOR THE PURPOSES OF THIS ACT ALL PERIODS OF SEPARATION FROM THE SERVICE, AND SO MUCH OF ANY LEAVES OF ABSENCE AS MAY EXCEED SIX MONTHS IN THE AGGREGATE IN ANY CALENDAR YEAR, SHALL BE EXCLUDED, EXCEPT SUCH LEAVES OF ABSENCE GRANTED EMPLOYEES WHILE RECEIVING BENEFITS UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT, AND IN THE CASE OF SUBSTITUTES IN THE POSTAL SERVICE CREDIT SHALL BE GIVEN FROM DATE OF ORIGINAL APPOINTMENT AS A SUBSTITUTE.

AS THE TIME ABSENT DUE TO A LEGISLATIVE FURLOUGH DOES NOT DIMINISH THE EMPLOYEE'S CONTRIBUTIONS TO THE RETIREMENT FUND, SUCH LEGISLATIVE FURLOUGHS ARE NOT TO BE COUNTED AS ABSENCES WITHIN THE PURVIEW OF SAID SECTION 5 OF THE CIVIL RETIREMENT ACT. ALL ADMINISTRATIVE FURLOUGHS MUST, HOWEVER, BE COUNTED AS LEAVES OF ABSENCE UNDER THAT SECTION OF THE ACT.

(5) IF AN OFFICER OR EMPLOYEE OTHERWISE SUBJECT TO LEGISLATIVE FURLOUGHS OR THE 8 1/3 PERCENT DEDUCTION IN COMPENSATION IS FURLOUGHED FOR THE ENTIRE FISCAL YEAR 1933, ONE CALENDAR MONTH OF SUCH FURLOUGH MUST BE CONSIDERED AS A LEGISLATIVE FURLOUGH AND AN AMOUNT EQUAL TO THE EMPLOYEE'S SALARY FOR ONE CALENDAR MONTH (8 1/3 PERCENT) MUST BE IMPOUNDED.

(6) A POSITION WITHIN THE GOVERNMENT SERVICE BECOMING VACANT EITHER BEFORE OR AFTER JULY 1, 1932, MAY NOT BE FILLED AFTER THAT DATE BY REASSIGNMENT OF ANOTHER EMPLOYEE TO SUCH VACANCY WITHOUT THE WRITTEN AUTHORIZATION OR APPROVAL OF THE PRESIDENT. SECTION 203 OF THE ECONOMY ACT PERMITS THE FILLING OF VACANCIES ONLY WHEN AUTHORIZED OR APPROVED IN WRITING BY THE PRESIDENT AND ONLY IN THAT EVENT WHEN THE POSITION IS AN "ABSOLUTELY ESSENTIAL" ONE. A TRANSFER SUCH AS SUGGESTED BY YOUR QUESTION IF PERMITTED MIGHT RESULT IN THE FILLING OF A NONESSENTIAL POSITION WITHOUT THE WRITTEN AUTHORIZATION OR APPROVAL OF THE PRESIDENT BY THE TRANSFER THERETO OF AN EMPLOYEE FROM AN ABSOLUTELY ESSENTIAL POSITION, THE LATTER POSITION THEN BEING FILLED WITH THE WRITTEN AUTHORIZATION OR APPROVAL OF THE PRESIDENT. THIS WOULD TEND TO DEFEAT THE PURPOSE OF THE PROVISION. HOWEVER, THE LAW DOES NOT PREVENT THE DUTIES OF A POSITION THAT HAS BECOME VACANT BEING ASSIGNED TO SOME OTHER EMPLOYEE OR EMPLOYEES IF NO INCREASE IN COMPENSATION IS INVOLVED AND THE SALARY OF THE VACANT POSITION IS IMPOUNDED.