A-88178, AUGUST 30, 1937, 17 COMP. GEN. 199

A-88178, AUGUST 30, 1937, 17 COMP. GEN. 199

LEAVES OF ABSENCE - ANNUAL - ACT, MARCH 14, 1936 - UNJUSTIFIABLE SUSPENSION WITHOUT PAY THE STATUTORY RIGHT TO ANNUAL LEAVE OF ABSENCE WITH PAY MAY NOT BE DENIED BECAUSE AN EMPLOYEE HAS BEEN SUSPENDED WITHOUT PAY WHERE IT IS ADMINISTRATIVELY DETERMINED THE SUSPENSION WAS UNJUSTIFIED; AND WHERE THE EMPLOYEE HAS TO HIS CREDIT ACCRUED ANNUAL LEAVE EQUAL TO OR IN EXCESS OF THE PERIOD OF SUSPENSION, LEAVE WITH PAY MAY BE SUBSTITUTED FOR SUCH PERIOD IF THE EMPLOYEE REMAINS IN THE SERVICE, OR HE MAY BE PAID AFTER SEPARATION FOR A REASON OTHER THAN THAT CAUSING THE SUSPENSION THE AMOUNT OF COMPENSATION HE WOULD HAVE EARNED DURING THE PERIOD OF SUSPENSION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, AUGUST 30, 1937:

CONSIDERATION HAS BEEN GIVEN TO LETTER OF JULY 26, 1937, FROM THE ADMINISTRATIVE ASSISTANT, PROCUREMENT DIVISION, TREASURY DEPARTMENT, IN REFERENCE TO DISALLOWANCE OF CREDIT FOR $16.67 AND $83.33, REPRESENTING PAYMENT FOR ACCRUED LEAVE TO JAMES A. BUELL, JR., PURCHASING ASSISTANT, FOR PERIOD JUNE 16 TO JULY 3, 1936, ON VOUCHERS 35-4487 AND 35-4488, JULY 1936 ACCOUNTS OF J. M. LEE, AS FOLLOWS:

THIS OFFICE HAS BEEN ADVISED BY THE PROCUREMENT OFFICE OF LOS ANGELES THAT EXCEPTION HAS BEEN TAKEN ON MARCH 5, 1937, TO PAYMENT OF SALARY TO JAMES A. BUELL FROM JUNE 16TH TO JULY 3, 1936, COVERING ANNUAL LEAVE ACCRUED AND DUE THIS EMPLOYEE AT THE TERMINATION OF HIS SERVICE WITH THE PROCUREMENT DIVISION. PAYMENT WAS MADE ON SUPPLEMENTARY PAYROLLS--- DO VOUCHERS--- 35-4488 AND 35-4487.

THE PROCUREMENT OFFICER QUOTES THE NOTICE OF EXCEPTION AS FOLLOWS:

"PAID 2,000 P.A. JULY 1-3, 1936. DISMISSED FROM SERVICE JULY 3, 1936. EMPLOYEE WAS SUSPENDED WITHOUT PAY AS OF JUNE 16, 1936, PENDING DECISION OF A FEDERAL COURT.

"AN EMPLOYEE MAY NOT BE GRANTED LEAVE WITH PAY FOR A PERIOD PRIOR TO SEPARATION FROM SERVICE, FOLLOWING A PERIOD OF SUSPENSION WITHOUT PAY PENDING AN INVESTIGATION OF PREFERRED CHARGES AGAINST HIM.

"THE RIGHT TO PAY ENDED WITH THE DATE OF SUSPENSION OF SERVICE. THE ITEM IS DISALLOWED. DEBT REPORTED.'

AS AUTHORITY FOR THE EXCEPTION, THE FOLLOWING RULINGS OF THE COMPTROLLER GENERAL ARE CITED: 7-COMP. GEN. 584 AND 754; A-75300 DATED JUNE 26, 1936, AND A-79827, DATED SEPTEMBER 2, 1936.

BRIEFLY, MR. BUELL'S CASE IS SUMMARIZED AS FOLLOWS:

1. CHARGES WERE MADE AGAINST TWO EMPLOYEES OF THE WORKS PROGRESS ADMINISTRATION OF CONSPIRACY TO DEFRAUD THE GOVERNMENT BY AIDING A CERTAIN VENDOR TO OBTAIN AN AWARD UPON PAYMENT OF A CERTAIN AGREED SUM.

2. THE CONTRACTOR FAILED TO REALIZE THE RETURN HE ANTICIPATED ON THE CONTRACT AND REPORTED THE INCIDENT.

3. JAMES A. BUELL WAS EMPLOYED IN THE REQUISITION SECTION OF THE PROCUREMENT OFFICE. THE CONTRACTOR, IN REPORTING THE MATTER, STATED THAT HE HAD BEEN PROMISED BY THE ALLEGED CONSPIRATORS THAT JAMES BUELL COULD "FIX" THE AWARD AND, LATER, WHEN HE WAS ASKED FOR MORE MONEY WAS TOLD ,JIMMY NEEDED THE MONEY.' ON THE BASIS OF THESE REFERENCES TO MR. BUELL, THE PROCUREMENT OFFICER DEEMED IT NECESSARY TO SUSPEND THIS EMPLOYEE PENDING FINAL INVESTIGATION OF THE CASE, AND BY LETTER TO THIS OFFICE, DATED JUNE 17TH, REQUESTED APPROVAL OF HIS ACTION.

4. THE ACTION OF THE PROCUREMENT OFFICER WAS APPROVED BY THIS OFFICE AND THE FOLLOWING TELEGRAM WAS SENT:

"RELET JUNE FIFTEEN SUSPENSION J. A. BUELL, JR., APPROVED. AT PROPER TIME FURNISH BY AIR MAIL COMPLETE REPORT FOR FINAL DISPOSITION OF CASE.'

JULY 14TH, A SPECIAL REPORT OF THE CASE WAS RECEIVED BY THIS OFFICE, IN WHICH IT WAS STATED THAT MR. BUELL HAD SERVED A SHORT PRISON SENTENCE FOR BURGLARY IN NOVEMBER 1931 AS DISCLOSED BY THE CRIMINAL COURT FILES OF LOS ANGELES COUNTY, CALIFORNIA, AND FURTHER INDICATED THAT THE EVIDENCE AGAINST MR. BUELL FOR ALLEGED COMPLICITY IN THE CASE INVOLVING THE TWO W.P.A. EMPLOYEES WAS SLIGHT. IT WAS DETERMINED THAT THE SUSPENSION OF MR. BUELL SHOULD BE REMOVED, BUT THAT HE SHOULD BE REINSTATED ONLY FOR THE PURPOSE OF ALLOWING ANNUAL LEAVE, SINCE HIS PREVIOUS RECORD MADE HIM AN UNDESIRABLE EMPLOYEE OF THE PROCUREMENT DIVISION. HAD THE FACTS CONCERNING HIS POLICE RECORD BEEN KNOWN, HE WOULD NOT HAVE BEEN APPOINTED IN THE DIVISION.

IN ANALYZING THE DECISIONS UPON WHICH THE EXCEPTION WAS BASED, THIS OFFICE IS OF THE OPINION THAT THERE ARE CERTAIN CONDITIONS WHICH ALTER MR. BUELL'S CASE WHICH SHOULD BE CONSIDERED. THE SYLLABUS IN CONNECTION WITH DECISION OF 7 COMP. GEN. 564 IS QUOTED AS FOLLOWS:

"WHEN AN EMPLOYEE OF THE GOVERNMENT IS SUSPENDED FROM DUTY AND PAY PENDING AN INVESTIGATION OF CHARGES PREFERRED AGAINST HIM, AND THE INVESTIGATION CULMINATES IN A FORCED RESIGNATION FROM THE PUBLIC SERVICE, THE RIGHT TO PAY TERMINATES AS OF THE DATE OF SUSPENSION REGARDLESS OF ANY PROVISION IN THE ORDER OF SUSPENSION CONCERNING PAY DURING THE PERIOD OF SUSPENSION.'

THIS DECISION WAS GIVEN IN CONNECTION WITH EMPLOYEES AGAINST WHOM CHARGES WERE SUSTAINED AND FORFEITURE OF PAY RESULTED. SINCE THE CHARGES AGAINST MR. BUELL WERE NOT SUSTAINED, THIS PARTICULAR DECISION WOULD NOT SEEM TO APPLY. SIMILAR DECISIONS UNDER 7 COMP. GEN. 688 AND 757 SUSTAIN THE OPINION THAT AN EMPLOYEE UNDER SUSPENSION WITHOUT PAY WHO IS TO BE DISMISSED FROM THE SERVICE FOR AN OFFENSE DIRECTLY CONNECTED WITH HIS DUTIES MAY NOT BE GRANTED LEAVE WITH PAY PRIOR TO DISMISSAL.

THIS OFFICE BASED ITS OPINION OF THE RIGHT OF AN APPOINTING OFFICER TO GRANT LEAVE WITH PAY DURING A PERIOD WHEN AN EMPLOYEE HAS BEEN SUSPENDED ON THE UNDERSTANDING WHICH IS EXPRESSED IN THE COMPTROLLER GENERAL'S DECISION, 7:584, QUOTED IN PART AS FOLLOWS:

"THE RIGHT WAS RESERVED, IN THE DISCRETION OF THE DIRECTOR, TO ALLOW OR DISALLOW PAY FOR ANY OR ALL OF THE PERIOD OF SUSPENSION IF THE CHARGES WERE NOT SUSTAINED, IT BEING BEYOND THE SCOPE OF THE DIRECTOR'S AUTHORITY TO ALLOW PAY DURING THE PERIOD OF SUSPENSION IN CASES IN WHICH THE CHARGES ARE SUSTAINED.'

IT IS THE BELIEF OF THIS OFFICE THAT IT IS WITHIN THE ADMINISTRATIVE SCOPE OF THE PROCUREMENT DIVISION TO ALLOW PAY TO JAMES A. BUELL FOR THE PERIOD IN QUESTION, SINCE HIS SEPARATION WAS EFFECTED FOR OTHER REASONS THAN THOSE FOR WHICH THE SUSPENSION WAS MADE. SINCE HE WAS COMPLETELY EXONERATED FROM THE CHARGES, THERE SEEMS TO BE NO JUSTIFICATION BASED ON THE DECISIONS QUOTED FOR WITHHOLDING PAY FOR ACCRUED AND ACCUMULATED ANNUAL LEAVE TO WHICH THIS EMPLOYEE WAS ENTITLED.

IT IS UNDERSTOOD FROM YOUR LETTER THAT THE EMPLOYEE WAS CLEARED OF THE CHARGES FOR WHICH HE WAS SUSPENDED WITHOUT PAY; THAT HE WAS RESTORED TO A PAY STATUS FOR THE PURPOSE OF GRANTING HIS ACCRUED ANNUAL LEAVE PRIOR TO FINAL SEPARATION FROM THE SERVICE; AND THAT HIS SEPARATION WAS NOT ON ACCOUNT OF CHARGES FOR WHICH HE WAS SUSPENDED, BUT BECAUSE IT WAS ADMINISTRATIVELY DETERMINED THAT "HIS PREVIOUS RECORD MADE HIM AN UNDESIRABLE EMPLOYEE OF THE PROCUREMENT DIVISION.'

THE DECISIONS CITED AS A BASIS FOR AUDIT ACTION DISALLOWING CREDIT IN THE ACCOUNTS OF THE DISBURSING OFFICER FOR THE PAYMENT OF COMPENSATION TO THIS EMPLOYEE COVERING THE PERIOD OF HIS SUSPENSION DO NOT STATE THE RULE APPLICABLE IN THIS CASE FOR THE REASON THAT THE EMPLOYEE WAS EXONERATED AND THE SEPARATION WAS NOT ON ACCOUNT OF THE CHARGES PREFERRED AGAINST HIM.

THE STATUTORY RIGHT TO ANNUAL LEAVE OF ABSENCE WITH PAY MAY NOT BE DENIED BECAUSE AN EMPLOYEE HAS BEEN SUSPENDED WITHOUT PAY, WHERE IT IS ADMINISTRATIVELY DETERMINED THAT THE SUSPENSION WAS UNJUSTIFIED AND THE EMPLOYEE HAS TO HIS CREDIT ACCRUED ANNUAL LEAVE EQUAL TO OR IN EXCESS OF THE PERIOD OF SUSPENSION WITHOUT PAY. IN SUCH A CASE LEAVE WITH PAY MAY BE SUBSTITUTED FOR THE SUSPENSION WITHOUT PAY IF THE EMPLOYEE REMAINS IN THE SERVICE, OR HE MAY BE PAID AFTER SEPARATION, FOR A REASON OTHER THAN THAT CAUSING THE SUSPENSION, THE AMOUNT OF COMPENSATION HE WOULD HAVE EARNED DURING THE PERIOD OF SUSPENSION. SEE 16 COMP. GEN. 818.

ACCORDINGLY, THE AUDIT ACTION IS REVERSED AND CREDIT WILL NOW BE ALLOWED FOR THE PAYMENTS IN QUESTION.