A-43622, AUGUST 9, 1932, 12 COMP. GEN. 207

A-43622, AUGUST 9, 1932, 12 COMP. GEN. 207

ECONOMY ACT - 5-DAY WEEK - CONCURRENT LEGISLATIVE AND ADMINISTRATIVE FURLOUGHS AN OFFICE WHICH CLOSES EVERY SATURDAY OVER AN EXTENDED PERIOD IS OPERATING ON THE 5-DAY WEEK PRESCRIBED BY SECTION 101 (A) OF THE ECONOMY ACT AND ITS EMPLOYEES' COMPENSATION MUST BE REDUCED BY ONE ELEVENTH. AN OFFICE OPERATING ON THE LEGISLATIVE FURLOUGH PLAN UNDER PARAGRAPH 101 (B) OF THE ECONOMY ACT MAY GRANT ADMINISTRATIVE FURLOUGHS WHENEVER THE NEEDS OF THE SERVICE SO REQUIRE, PROVIDED THAT 8 1/3 PERCENT OF THE EMPLOYEES' SALARIES COVERING THE LEGISLATIVE FURLOUGH DEDUCTION IS REGULARLY IMPOUNDED, WHETHER THE EMPLOYEE IS IN A DUTY OR NONDUTY STATUS. A-43622 OF AUGUST 1, 1932, 12 COMP. GEN. 149, MODIFIED. THE EXPRESSION OF INFORMAL OPINIONS BY ANY OFFICER OR EMPLOYEE OF THE GENERAL ACCOUNTING OFFICE DOES NOT CONSTITUTE OFFICIAL ACTION, AND UNDER NO CIRCUMSTANCES CAN SUCH OPINIONS BE RECOGNIZED AS CONTROLLING THE ACTION OF THIS OFFICE IN ANY MATTER THAT MAY COME BEFORE IT FOR OFFICIAL DETERMINATION.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT OF THE CIVIL SERVICE COMMISSION, AUGUST 9, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 3, 1932, REQUESTING REVIEW OF THE DECISION OF AUGUST 1, 1932, 12 COMP. GEN. 149, ON THE FOLLOWING POINTS:

1. YOUR NEGATIVE ANSWER TO THE COMMISSION'S QUESTION NO. 4 (A). THE QUESTION IS AS FOLLOWS:

"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?

2. THAT PART OF YOUR DECISION STARTING WITH THE LAST PARAGRAPH ON PAGE 5 AND CONTINUING THROUGH THE PARAGRAPH ENDING IN THE MIDDLE OF PAGE 6, WHICH HOLDS IN EFFECT THAT THE FIRST ABSENCES OF AN EMPLOYEE MUST BE CHARGED TO LEGISLATIVE FURLOUGH AND MAY NOT BE CHARGED TO ADMINISTRATIVE FURLOUGH.

3. THAT PART OF YOUR DECISION CONTAINED IN THE LAST SENTENCE OF THE FIRST PARAGRAPH ON PAGE 6, WHICH IS AS FOLLOWS:

"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.'

THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 399, PROVIDES FOR THREE METHODS OF APPLYING THE REQUIRED REDUCTIONS TO OFFICERS AND EMPLOYEES COMING WITHIN ITS TERMS. SECTION 101 (A) PROVIDES A PLAN WHERE THE OFFICERS AND EMPLOYEES ARE PERMITTED TO WORK NOT EXCEEDING FIVE DAYS IN ANY ONE WEEK; SECTION 101 (B) PROVIDES A PLAN FOR FURLOUGHING THE OFFICERS AND EMPLOYEES FOR ONE CALENDAR MONTH OR THE PRESCRIBED EQUIVALENT THEREOF IF THE FURLOUGH IS TAKEN IN LESSER PERIODS FROM TIME TO TIME THAN THE FULL MONTH AT ONCE; AND SECTION 105 (D) (6) AND (7) PROVIDES FOR A FLAT REDUCTION IN COMPENSATION OF 8 1/3 PERCENT IN SALARIES BETWEEN $1,000 AND $10,000 WHERE THE OFFICERS AND EMPLOYEES DO NOT WORK ON A 5-DAY WEEK BASIS AND ARE NOT TO BE FURLOUGHED UNDER THE PROVISIONS OF SECTION 101 (B).

THESE THREE PLANS ARE SEPARATE AND DISTINCT. UNDER THE FIRST, THE COMPENSATION IS TO BE REDUCED ONE-ELEVENTH WITH A FURTHER LOSS OF PAY FOR ANY TIME OFF DURING THE FIVE DAYS PRESCRIBED FOR DUTY. UNDER THE SECOND, THERE IS A LOSS OF ONE MONTH'S PAY--- WHICH AMOUNTS TO A COMPENSATION REDUCTION OF ONE-TWELFTH--- WITH THE PRIVILEGE OF BEING ABSENT FROM DUTY FOR ONE CALENDAR MONTH OR 24 WORKING DAYS THROUGH AN AGGREGATE OF FRACTIONAL PERIODS OF ABSENCE. UNDER THE THIRD, THERE IS A PERCENTAGE REDUCTION IN PAY WITH NO SHORTENING OF THE WORK WEEK OR TIME OFF WITHOUT FURTHER LOSS OF PAY. THE STATUTE INDICATES WITH RESPECT TO EACH PLAN THE CLASS OF OFFICERS AND EMPLOYEES TO WHICH IT IS PRIMARILY INTENDED TO APPLY, BUT CONTAINS PROVISIONS WHICH MAKE IT PRACTICALLY WITHIN THE ADMINISTRATIVE DISCRETION AS TO WHICH PLAN SHALL BE ADOPTED. IT IS TO BE NOTED, HOWEVER, THAT THERE IS NOTHING IN THE LAW TO INDICATE AN INTENT TO VEST IN ANY ADMINISTRATIVE OFFICE THE POWER OR AUTHORITY TO SET UP A FOURTH PLAN BY COMBINING THE WORK PROVISIONS OF ONE OF THE THREE PLANS THE CONGRESS HAS ESTABLISHED WITH THE PAY PROVISIONS OF ANOTHER OF SAID THREE PLANS. OBVIOUSLY, TWO OFFICES OR ESTABLISHMENTS OF THE GOVERNMENT, EACH, IN FACT, OPERATING ON A 5-DAY-WEEK BASIS, CAN NOT BE PERMITTED TO APPLY DIFFERENT PROVISIONS OF THE ECONOMY ACT IN MAKING THE REQUIRED PAY REDUCTIONS. CERTAIN SERVICES OF THE GOVERNMENT ARE OPERATING UNDER THE 5- DAY-WEEK PLAN AND ARE APPLYING THE PAY PROVISIONS THEREOF AS REQUIRED BY THE PLAIN TERMS OF THE STATUTE, AND ANY OTHER SERVICE WHICH ADOPTS THAT PLAN FOR WORK PURPOSES LIKEWISE MUST APPLY THE PAY PROVISIONS APPLICABLE THERETO. THEREFORE, IF YOU ELECT TO CONTINUE THE PROPOSED PLAN OF CLOSING YOUR OFFICE EVERY SATURDAY FOR THE REMAINDER OF THE FISCAL YEAR, IT MUST BE CONSIDERED AS OPERATING ON THE 5-DAY-WEEK PLAN PRESCRIBED BY SECTION 101 (A), AND THE REDUCTION IN COMPENSATION OF YOUR EMPLOYEES MUST BE IN ACCORDANCE WITH THE PROVISIONS OF THAT SECTION. IT MAY BE NOTED IN THIS CONNECTION THAT THE DIFFERENCE BETWEEN THE REDUCTION UNDER THE 5-DAY-WEEK PLAN AND THE REDUCTION UNDER THE FURLOUGH PLAN AMOUNTS TO LESS THAN THREE DAYS' PAY FOR THE ENTIRE YEAR. IF YOU CONTINUE UNDER THE 5-DAY-WEEK PLAN, YOU MAY, OF COURSE, APPLY THE ADMINISTRATIVE FURLOUGHS PROVIDED FOR UNDER SECTION 216 OF THE ACT, AT SUCH TIMES AND TO SUCH EXTENT AS THE NEEDS OF THE SERVICE AND THE CONDITION OF YOUR APPROPRIATION MAY REQUIRE, AND THERE WILL NOT BE INVOLVED ANY QUESTION OF ADMINISTRATIVE FURLOUGHS BEING ADMINISTERED CONCURRENTLY WITH THE LEGISLATIVE FURLOUGH. IT MUST BE UNDERSTOOD, HOWEVER, THAT AN OFFICE CAN NOT ADOPT THE 5-DAY-WEEK PLAN FOR WORK PURPOSES AND AVOID THE CORRESPONDING REDUCTION OF ONE ELEVENTH IN THE COMPENSATION OF ITS EMPLOYEES BY CALLING IT THE LEGISLATIVE FURLOUGH PLAN. NEITHER IS THE REQUIREMENT OF SECTION 101 (A) OF THE ECONOMY ACT FULLY MET BY THE IMPOUNDING OF ONLY ONE MONTH'S SALARY FOR THE ENTIRE YEAR AS ASSERTED IN YOUR LETTER, BECAUSE ONE ELEVENTH OF THE WEEKLY COMPENSATION--- REQUIRED TO BE DEDUCTED UNDER SECTION 101 (A/--- IS OBVIOUSLY MORE THAN ONE-TWELFTH AND REQUIRES THE IMPOUNDING OF SLIGHTLY MORE THAN ONE MONTH'S SALARY FOR THE YEAR.

REFERENCE IS MADE TO THE QUESTION WHETHER LEGISLATIVE FURLOUGH UNDER SECTION 101 (B) AND ADMINISTRATIVE FURLOUGH UNDER SECTION 216 OF THE ECONOMY ACT MAY RUN CONCURRENTLY, WHICH WAS ANSWERED IN THE NEGATIVE IN DECISION OF AUGUST 1, 1932. THE NEGATIVING OF THE CONCURRENT APPLICATION OF THE TWO SECTIONS OF THE STATUTE REQUIRING FURLOUGH OF EMPLOYEES WAS DEEMED NECESSARY BECAUSE OF THE IMPOUNDING REQUIREMENTS OF THE STATUTE RELATING ONLY TO THE COMPENSATION OF EMPLOYEES PLACED ON LEGISLATIVE FURLOUGH AND NOT TO THE COMPENSATION OF EMPLOYEES PLACED ON ADMINISTRATIVE FURLOUGH, IN ORDER TO PREVENT UNNECESSARY DELAY IN EFFECTING THE SAVING REQUIRED BY THE STATUTE. UPON FURTHER CONSIDERATION OF THE MATTER, AND IN THE LIGHT OF THE ADMINISTRATIVE PROBLEMS PRESENTED, IT IS BELIEVED THAT THE IMPOUNDING REQUIREMENTS OF THE STATUTE WILL BE MET IF THE REGULAR PERIODICAL DEDUCTIONS FOR LEGISLATIVE FURLOUGH OF A MINIMUM OF ONE AND ONE -FOURTH DAYS' PAY, PLUS ADDITIONAL DEDUCTIONS AT THE SAME RATE FOR ADDITIONAL LEGISLATIVE FURLOUGH, REQUIRED BY DECISION OF JULY 8, 1932, A- 43276, 12 COMP. GEN. 16, IS CHARGED TO THE SALARY APPROPRIATION AND CREDITED TO THE IMPOUNDING FUND FOR EACH SEMIMONTHLY PAY PERIOD DURING THE WHOLE OR A PART OF WHICH THE EMPLOYEES ARE ON ADMINISTRATIVE FURLOUGH UNDER SECTION 216 OF THE ACT.

ON THIS BASIS, AND WITH THE DISTINCT UNDERSTANDING THAT 8 1/3 PERCENT OF THE TOTAL ANNUAL SALARY RATE OF EMPLOYEES MUST BE DEDUCTED AND IMPOUNDED WHETHER THE EMPLOYEE IS IN A DUTY OR NONDUTY STATUS, THIS OFFICE WILL INTERPOSE NO FURTHER OBJECTION TO ACTION GRANTING ADMINISTRATIVE FURLOUGH WHENEVER THE NEEDS OF THE SERVICE MAY REQUIRE. THE DECISION OF AUGUST 1, 1932, IS MODIFIED ACCORDINGLY.

WITH RESPECT TO THE STATEMENT IN YOUR PRESENT SUBMISSION THAT AN ATTORNEY -CONFEREE, AFTER A TELEPHONIC CONVERSATION WITH MYSELF, SIGNIFIED THAT YOUR PROPOSED PLAN WAS ACCEPTABLE, I MAY STATE THAT I WAS NOT CONSULTED PERSONALLY BY TELEPHONE AS STATED IN YOUR LETTER AND THE CONFEREE WITH WHOM YOUR REPRESENTATIVE TALKED STATES THAT HE DID NOT STATE THAT THE PROPOSED PLAN WOULD BE SATISFACTORY TO THIS OFFICE. BUT, BE THAT AS IT MAY, YOUR ATTENTION IS INVITED TO THE DECISION OF JUNE 9, 1925, 4 COMP. GEN. 1024, IN WHICH IT WAS STATED:

THE SIXTH INDORSEMENT DATED DECEMBER 3, 1923, REFERRED TO IN THE QUOTATION IS NOT WITH THE PAPERS IN THIS CASE AND THE REFERENCE TO "INFORMAL ACTION OF THE GENERAL ACCOUNTING OFFICE" IS NOT CLEAR. ASSUMING THAT THE REFERENCE IS TO AN OPINION EXPRESSED ORALLY BY SOME OFFICER OR EMPLOYEE OF THIS OFFICE, I MAY TAKE THIS OCCASION TO STATE THAT SUCH OPINIONS ARE NOT AUTHORIZED AND MUST OF NECESSITY BE REGARDED AS PERSONAL VIEWS ONLY, GIVEN FOR WHATEVER THEY MAY BE WORTH IN THE WAY OF ASSISTING THE ADMINISTRATIVE OFFICES IN THE SOLUTION OF THEIR PROBLEMS. THE EXPRESSION OF SUCH OPINIONS DOES NOT CONSTITUTE AN OFFICIAL ACTION AND CAN NOT UNDER ANY CIRCUMSTANCES BE RECOGNIZED AS CONTROLLING THE ACTION OF THIS OFFICE ON ANY MATTER THAT MAY COME BEFORE IT FOR OFFICIAL DETERMINATION. AN AUTHORITATIVE DECISION ON ANY MATTER WITHIN THE JURISDICTION OF THIS OFFICE MAY BE OBTAINED AT ANY TIME BY AN OFFICER AUTHORIZED BY LAW TO SUBMIT THE QUESTION INVOLVED, AND IF ANY SUCH OFFICER, INSTEAD OF FOLLOWING THE AUTHORIZED PROCEDURE IN SUCH MATTERS, ELECTS TO PRESENT THE QUESTION INFORMALLY TO SOME ONE CONNECTED WITH THIS OFFICE, HE THEREBY ASSUMES THE RISK OF BASING HIS ACTION UPON ADVICE WHICH, DUE TO INCOMPLETE PRESENTATION OR OTHERWISE, MAY NOT BE IN ACCORD WITH THE OFFICIAL ACTION WHICH THIS OFFICE THEREAFTER MAY TAKE WITH REFERENCE TO THE MATTER.

WITH RESPECT TO YOUR STATEMENT THAT OTHER FEDERAL AGENCIES WERE FURNISHED COPIES OF YOUR ORDER AND HAVE BEEN GUIDED THEREBY, I HAVE TO ADVISE THIS OFFICE CAN NOT ACCEPT ANY RESPONSIBILITY FOR ANY ADVICE OR INFORMATION THAT MAY HAVE BEEN FURNISHED BY OFFICERS OR EMPLOYEES OF YOUR COMMISSION TO OTHER FEDERAL AGENCIES. THIS OFFICE HAS RECEIVED AND IS CONTINUING TO RECEIVE INNUMERABLE REQUESTS FROM THE VARIOUS DEPARTMENTS AND ESTABLISHMENTS FOR DECISIONS CONCERNING THE OPERATION OF THE ECONOMY ACT, AND SUCH REQUESTS ARE PROMPTLY COMPLIED WITH AND COPIES OF ALL DECISIONS THEREON ARE DISTRIBUTED AS EXPEDITIOUSLY AS POSSIBLE TO THE VARIOUS SERVICES.