B-135212, DEC. 28, 1961
Highlights
THAT WAS DUE TO THE FACT THAT SUCH TIME WAS NOT CONSIDERED COMPENSABLE AND POLICEMEN WERE EXPECTED TO APPEAR AND REMAIN AS LONG AS NECESSARY TO PROSECUTE CASES OF THE GOVERNMENT AGAINST ACCUSED PERSONS. THERE IS NO INDICATION AS TO HOW MUCH TIME WAS REQUIRED OR HOW MANY APPEARANCES MIGHT HAVE BEEN REQUIRED BEFORE A PARTICULAR CASE WAS ULTIMATELY DISPOSED OF BY THE COURT. SUCH RECORDS WOULD IN MANY CASES NOT REVEAL THE NAMES OF POLICEMEN WHO WERE NOT INVOLVED IN MAKING THE ARREST BUT WERE REQUIRED TO APPEAR AND STAND BY TO GIVE TESTIMONY. YOUR AGENCY CONCLUDES THAT THE CLAIMS COULD BE DISPOSED OF MOST EQUITABLE BY AWARDING AN EQUAL AMOUNT OF BACK PAY TO ALL WHO WERE ASSIGNED TO A ROTATING SHIFT AND WHO.
B-135212, DEC. 28, 1961
TO GOVERNOR, CANAL ZONE GOVERNMENT:
THIS REFERS TO LETTER OF NOVEMBER 17, 1961, REFERENCE CM-1440, CLAIM MG- 808, WITH ENCLOSURE, FROM THE COMPTROLLER, REQUESTING ADVICE REGARDING THE SETTLEMENT OF CLAIMS FOR ADDITIONAL COMPENSATION OF CANAL ZONE GOVERNMENT POLICEMEN WHO HAD APPEARED IN COURT DURING THEIR OFF DUTY HOURS TO TESTIFY CONCERNING MATTERS ARISING IN THE COURSE OF THEIR EMPLOYMENT.
THE COMPTROLLER SAYS THAT THE CANAL ZONE GOVERNMENT HAS MADE A THOROUGH STUDY OF THE AVAILABLE RECORDS AND OF THE WORK HISTORY OF THIS GROUP OF EMPLOYEES IN ORDER TO DETERMINE WHETHER THE EXACT AMOUNT OF TIME SPENT IN COURT APPEARANCES DURING OFF DUTY HOURS COULD BE ASCERTAINED. PRIOR TO MAY 1958 WHEN COURT TIME COMMENCED TO BE PAID PROSPECTIVELY IN ACCORDANCE WITH OUR DECISION OF APRIL 21, 1958, B 135212, NO RECORDS OF THE ACTUAL AMOUNT OF TIME SPENT IN COURT HAD BEEN MAINTAINED. THAT WAS DUE TO THE FACT THAT SUCH TIME WAS NOT CONSIDERED COMPENSABLE AND POLICEMEN WERE EXPECTED TO APPEAR AND REMAIN AS LONG AS NECESSARY TO PROSECUTE CASES OF THE GOVERNMENT AGAINST ACCUSED PERSONS. WHILE POLICE DIVISION AND COURT RECORDS DO SHOW IN MANY CASES THAT A GIVEN POLICEMAN APPEARED TO TESTIFY, THERE IS NO INDICATION AS TO HOW MUCH TIME WAS REQUIRED OR HOW MANY APPEARANCES MIGHT HAVE BEEN REQUIRED BEFORE A PARTICULAR CASE WAS ULTIMATELY DISPOSED OF BY THE COURT. SUCH RECORDS WOULD IN MANY CASES NOT REVEAL THE NAMES OF POLICEMEN WHO WERE NOT INVOLVED IN MAKING THE ARREST BUT WERE REQUIRED TO APPEAR AND STAND BY TO GIVE TESTIMONY. IN THE ABSENCE OF RECORDS FROM WHICH A CALCULATION COULD BE MADE OF THE AMOUNT OF COURT TIME OCCURRING OUTSIDE THE SCHEDULED WORKWEEK OF THE INDIVIDUAL CLAIMANTS, YOUR AGENCY CONCLUDES THAT THE CLAIMS COULD BE DISPOSED OF MOST EQUITABLE BY AWARDING AN EQUAL AMOUNT OF BACK PAY TO ALL WHO WERE ASSIGNED TO A ROTATING SHIFT AND WHO, THEREFORE, WERE SUBJECT TO CALL FOR COURT APPEARANCES DURING THEIR OFF DUTY HOURS. IN SPREADING THE CREDIT FOR OVERTIME WORK AMONG ALL THE ELIGIBLE CLAIMANTS THOSE WHO APPEARED MOST FREQUENTLY IN COURT WILL RECEIVE LESS THAN THAT DUE THEM AND THOSE WHO RARELY APPEARED WILL BE FAVORED.
AS A RESULT OF OUR PRIOR RULING OF JUNE 24, 1959, THAT JUDGMENTS IN TWO CASES IN THE COURT OF CLAIMS, BARKER V. UNITED STATES, 117 CT.CL. 221, AND AMASON V. UNITED STATES, 144 CT.CL. 761, ARE RES JUDICATA, THE COMPTROLLER SAYS THAT THE CLAIM PERIOD FOR MOST OF THE CLAIMANTS WILL BE REDUCED TO THE TIME BETWEEN OCTOBER 1, 1950, AND JULY 1, 1953. ALSO, THAT AFTER CONSIDERABLE STUDY AND AFTER DISCUSSION WITH REPRESENTATIVES OF THE CLAIMANTS, IT WAS DECIDED TO COMPARE THE 33 MONTH CLAIM PERIOD WITH A PERIOD OF SIMILAR LENGTH WHICH COMMENCED IN MAY 1958 WHEN THE CANAL ZONE GOVERNMENT BEGAN TO PAY COMPENSATION FOR COURT APPEARANCES IN ACCORDANCE WITH OUR DECISION OF APRIL 21, 1958, B 135212. ON THE BASIS OF THAT COMPARISON AND AFTER TAKING INTO ACCOUNT CERTAIN CHANGES IN THE OPERATING PROCEDURES OF THE POLICE DIVISION THAT WERE MADE AFTER COURT TIME BECAME PAYABLE, AS WELL AS OTHER FACTORS THAT SERVE TO DISTINGUISH THE TWO PERIODS BEING COMPARED, THE COMPTROLLER INDICATES THAT THREE HOURS PER MONTH WOULD BE A FAIR APPROXIMATION OF THE AVERAGE AMOUNT OF COURT TIME DUE ALL MEN WHO WERE ASSIGNED TO A ROTATING SHIFT DURING THE MONTHS IN QUESTION.
IN THOSE CASES IN WHICH THE CLAIMANTS WERE PLAINTIFFS IN THE BAKER AND AMASON CASES THE RES JUDICATA PRINCIPLE LIMITS THEIR PERIODS OF ELIGIBILITY FOR BACK PAY TO THE 33 MONTHS FROM OCTOBER 1950 THROUGH JUNE 1953. THE OTHER CLAIMANTS WHO WERE NOT PLAINTIFFS IN EITHER OF THE COURT OF CLAIMS SUITS WOULD BE ENTITLED TO BACK PAY FOR THE FULL 10-YEAR PERIOD PRECEDING THE DATE OF FILING OF THE CLAIM EXCLUDING THE TIME SINCE MAY 1958 WHEN ALL SUCH COURT TIME HASBEEN TREATED AS COMPENSABLE.
SINCE RECORDS ARE NOT AVAILABLE TO DETERMINE THE EXACT NUMBER OF HOURS EACH POLICEMAN SPENT IN COURT DURING THEIR OFF DUTY HOURS TO TESTIFY CONCERNING MATTERS ARISING IN THE COURSE OF THEIR EMPLOYMENT AS POLICEMEN WE CONCUR IN THE PROPOSED METHOD OF SETTLEMENT. IN THE ABSENCE OF ANY DOUBTFUL QUESTION OF LAW OR FACT THE CLAIMS MAY BE SETTLED BY YOUR AGENCY.
CONCERNING THE PERIOD FOR WHICH A RELEASE SHOULD BE TAKEN FROM THE CLAIMANT AS A CONDITION OF SETTLEMENT, THE RELEASE SHOULD COVER ONLY THE PERIOD FOR WHICH SETTLEMENT IS MADE.