A-90240, DECEMBER 13, 1937, 17 COMP. GEN. 488

A-90240, DECEMBER 13, 1937, 17 COMP. GEN. 488

COMPENSATION AND LEAVES OF ABSENCE - DELAYED NOTICE OF DISMISSAL BECAUSE OF ILLEGAL APPOINTMENT WHERE AN EMPLOYEE'S SERVICES WERE TERMINATED BECAUSE OF A FINDING BY THE CIVIL SERVICE COMMISSION THAT HE WAS APPOINTED ILLEGALLY DUE TO MISSTATEMENT AS TO AGE, BUT NOTICE OF TERMINATION WAS NOT GIVEN THE EMPLOYEE UNTIL THE LAST DAY OF THE FULL PAY PERIOD SUCCEEDING ITS STATED EFFECTIVE DATE, AND REQUEST BY THE CIVIL SERVICE COMMISSION TO THE GENERAL ACCOUNTING OFFICE TO WITHHOLD CREDIT FOR FURTHER COMPENSATION PAYMENTS, RECEIVED AFTER THE BEGINNING OF SUCH SUCCEEDING PAY PERIOD, WAS NOT ACTED UPON BEFORE EMPLOYEE'S SEPARATION FROM THE SERVICE, AND EMPLOYEE ACTUALLY WORKED OR WAS IN A LEAVE WITH PAY STATUS UP TO THE DATE HE WAS GIVEN THE NOTICE OF TERMINATION, HE MAY BE PAID UP TO AND INCLUDING THE DATE OF SUCH NOTICE, BUT NOT ON ACCOUNT OF LEAVE OR OTHERWISE FOR ANY PERIOD THEREAFTER.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, FEDERAL POWER COMMISSION, DECEMBER 13, 1937:

YOUR LETTER OF NOVEMBER 30, 1937, IS AS FOLLOWS:

ON OCTOBER 25, 1937, THE UNITED STATES CIVIL SERVICE COMMISSION NOTIFIED MR. ROY J. MCBRIDE, WHO WAS AT THAT TIME EMPLOYED IN THE FEDERAL POWER COMMISSION AS ASSISTANT MESSENGER, CU-2, $1,080 PER ANNUM, AS FOLLOWS:

"IN COMPLIANCE WITH THE PROVISIONS OF CIVIL SERVICE RULE XV, IT HAS BECOME NECESSARY TO REQUEST THE COMPTROLLER GENERAL TO WITHHOLD FURTHER PAYMENT OF YOUR SALARY AS ASSISTANT MESSENGER IN THE FEDERAL POWER COMMISSION, A POSITION WHICH YOU OBTAINED ILLEGALLY BECAUSE YOU FALSIFIED THE DATE OF YOUR BIRTH. THIS MATTER HAS BEEN THE SUBJECT OF CORRESPONDENCE WITH THE FEDERAL POWER COMMISSION AS WELL AS YOURSELF.'

ON NOVEMBER 15, 1937, MR. MCBRIDE WAS ADVISED BY THIS COMMISSION THAT "* * * YOUR WORK FROM THE DATE OF YOUR APPOINTMENT HAS BEEN ENTIRELY SATISFACTORY; BUT, SINCE THE CIVIL SERVICE COMMISSION HAS NOTIFIED YOU THAT IT HAS REQUESTED THE COMPTROLLER GENERAL TO WITHHOLD FURTHER PAYMENT OF YOUR SALARY AS ASSISTANT MESSENGER, YOUR SERVICES WITH THE FEDERAL POWER COMMISSION ARE TERMINATED AS OF THE CLOSE OF BUSINESS OCTOBER 31, 1937, WITHOUT PREJUDICE.'

YOUR OPINION IS RESPECTFULLY REQUESTED AS TO WHETHER THIS EMPLOYEE IS ENTITLED TO AND SHOULD BE PAID FOR HIS ACCRUED AND ACCUMULATED ANNUAL LEAVE. IF YOUR OPINION IS IN THE AFFIRMATIVE, IT IS ALSO REQUESTED THAT YOU ADVISE WHAT DOCUMENTS, IF ANY, SHOULD BE SUBMITTED WITH THE PAY ROLL VOUCHER.

BY LETTER DATED OCTOBER 28, 1937, RECEIVED IN THIS OFFICE NOVEMBER 2, 1937, THE CIVIL SERVICE COMMISSION REQUESTED THIS OFFICE, PURSUANT TO RULE XV OF THE CIVIL SERVICE LAWS AND REGULATIONS, TO WITHHOLD CREDIT IN THE AUDIT OF ACCOUNTS FOR FURTHER PAYMENTS OF COMPENSATION TO ROY J. MCBRIDE, WHOSE APPOINTMENT WAS HELD BY THE COMMISSION TO HAVE BEEN ILLEGAL. THE EFFECTIVE DATE OF THE DISALLOWANCE OF CREDIT FOR FURTHER PAYMENTS OF COMPENSATION IN SUCH CASES IS THE DATE OF RECEIPT IN THIS OFFICE OF THE NOTICE FROM THE CIVIL SERVICE COMMISSION (16 COMP. GEN. 924), WHICH IN THIS CASE WAS NOVEMBER 2, 1937.

AS THIS DATE WAS AFTER THE BEGINNING OF THE PAY PERIOD NOVEMBER 1 15, 1937, AND AS THE EMPLOYEE WAS SEPARATED FROM THE SERVICE BEFORE ANY ACTION WAS TAKEN BY THIS OFFICE ON THE REQUEST OF THE CIVIL SERVICE COMMISSION, AND AS THE EMPLOYEE WAS SEPARATED FROM THE SERVICE BEFORE ANY ACTION WAS TAKEN BY THIS OFFICE ON THE REQUEST OF THE CIVIL SERVICE COMMISSION, AND AS THE EMPLOYEE WAS NOT NOTIFIED OF HIS SEPARATION EFFECTIVE OCTOBER 30, 1937, UNTIL NOVEMBER 15, 1937, THIS OFFICE WILL NOT OBJECT TO PAYMENT OF COMPENSATION TO THE FORMER EMPLOYEE FOR THE PERIOD FROM NOVEMBER 1 TO 15, 1937, IF HE ACTUALLY WORKED OR WAS IN A LEAVE WITH PAY STATUS DURING SAID PERIOD, BUT HE MAY NOT BE PAID ON ACCOUNT OF LEAVE OR OTHERWISE FOR ANY PERIOD BEYOND NOVEMBER 15, 1937. SUCH SALARY AS HE MAY BE THUS ENTITLED TO FOR THE PAY PERIOD ENDING NOVEMBER 15, 1937, MAY BE PAID IN THE USUAL WAY ON A SUPPLEMENTAL PAY ROLL VOUCHER, REFERENCE BEING MADE THEREON TO THIS DECISION.