B-123934, AUGUST 31, 1955, 35 COMP. GEN. 121

B-123934, AUGUST 31, 1955, 35 COMP. GEN. 121

OFFICERS AND EMPLOYEES - UNJUSTIFIED SUSPENSION OR REMOVAL - COMPENSATION; LONGEVITY TEP-INCREASES; LEAVE FORFEITURES COMPENSATION FOR THE PERIOD BETWEEN A SUSPENSION FROM DUTY UNDER THE ACT OF AUGUST 26, 1950, AND SUBSEQUENT REINSTATEMENT IS LIMITED TO THE RATE AN EMPLOYEE WAS RECEIVING ON THE DATE OF SUSPENSION AND MAY NOT INCLUDE A LONGEVITY STEP-INCREASE WHICH THE EMPLOYEE WOULD HAVE RECEIVED BUT FOR THE SUSPENSION. AN EMPLOYEE WHO, AFTER COMPLETION OF MORE THAN TEN YEARS OF SERVICE IN GRADE GS-3, WAS PROMOTED TO GRADE GS-4 AND LATER DEMOTED TO GRADE GS 3 AFTER HAVING REACHED THE MAXIMUM STEP IN GRADE GS-4, MAY NOT COUNT THE SERVICE IN GRADE GS-3 PRIOR TO PROMOTION TOWARD THE THREE-YEAR CONTINUOUS SERVICE PERIOD REQUIRED BY SECTION 102 OF THE ACT OF SEPTEMBER 1, 1954, FOR A LONGEVITY PAY INCREASE, AND THE NEW THREE-YEAR WAITING PERIOD SHOULD BE COMPUTED FROM THE DATE THE EMPLOYEE REACHED THE MAXIMUM STEP IN GRADE GS-4. ALTHOUGH AN EMPLOYEE WHO IS RESTORED TO DUTY AFTER SUSPENSION UNDER THE ACT OF AUGUST 26, 1950, IS ENTITLED TO BE CREDITED WITH ANNUAL AND SICK LEAVE FOR THE PERIOD OF SUSPENSION, THE LEAVE TO BE CREDITED IS SUBJECT TO THE MAXIMUM ACCUMULATION LIMITATION OF THE ANNUAL AND SICK LEAVE ACT OF 1951 AND, THEREFORE, SUCH AN EMPLOYEE IS REQUIRED TO FORFEIT ANNUAL LEAVE EARNED DURING THE INVOLVED LEAVE YEAR WHICH IS IN EXCESS OF THE LIMITATION PROVIDED IN THE LEAVE ACT.

TO C. P. BATES, DEPARTMENT OF AGRICULTURE, AUGUST 31, 1955:

YOUR LETTER OF MAY 3, 1955, REQUESTS OUR DECISION ON CERTAIN QUESTIONS RELATING TO THE PAYMENT OF AN ENCLOSED VOUCHER FOR LONGEVITY PAY FOR MRS. S, COVERING THE PERIOD SEPTEMBER 12, 1954, THROUGH APRIL 9, 1955.

THE RECORD SHOWS THAT MRS. S RECEIVED AN APPOINTMENT AS A CAF-3 EFFECTIVE JANUARY 10, 1941, AND THAT SHE REACHED THE TOP OF GRADE GS-3 ON MAY 29, 1949. SHE WAS PROMOTED TO THE SIXTH STEP OF GRADE GS-4 ON APRIL 1, 1951, AND SHE REACHED THE TOP OF GRADE GS-4 ON MARCH 30, 1952. ON MAY 23, 1954, SHE WAS DEMOTED TO THE TOP OF GRADE GS-3. THE EMPLOYEE WAS SUSPENDED FROM DUTY AT THE CLOSE OF BUSINESS ON AUGUST 9, 1954, AND WAS RESTORED TO DUTY EFFECTIVE APRIL 4, 1955, WITH PAYMENT OF COMPENSATION AUTHORIZED FOR THE PERIOD OF SUSPENSION PURSUANT TO PUBLIC LAW 733, APPROVED AUGUST 26, 1950, 64 STAT. 476, 5 U.S.C. 22-1.

THE SUBMITTED PAYROLL PROPOSES PAYMENT FROM SEPTEMBER 12, 1954, THROUGH APRIL 9, 1955, FOR THE DIFFERENCE BETWEEN $3,430, THE TOP OF GRADE GS-3, AND $3,510, THE FIRST LONGEVITY STEP INCREASE OF THAT GRADE.

THE QUESTIONS PRESENTED BY YOU RELATE PRINCIPALLY TO (1) MAY THE PAYROLL BE CERTIFIED AND PAID, (2) THE COMPUTATION OF THE EMPLOYEE'S SERVICE FOR LONGEVITY STEP INCREASES, AND (3) THE PROPER AMOUNT OF LEAVE THAT MAY BE CREDITED TO HER.

THAT ACT OF AUGUST 26, 1950, UNDER WHICH THE COMPENSATION FOR THE PERIOD OF SUSPENSION WAS AUTHORIZED, PROVIDES AS FOLLOWS:

PROVIDED FURTHER, THAT ANY PERSON WHOSE EMPLOYMENT IS SO SUSPENDED OR TERMINATED UNDER THE AUTHORITY OF THIS ACT MAY, IN THE DISCRETION OF THE AGENCY HEAD CONCERNED, BE REINSTATED OR RESTORED TO DUTY, AND IF SO REINSTATED OR RESTORED SHALL BE ALLOWED COMPENSATION FOR ALL OR ANY PART OF THE PERIOD OF SUCH SUSPENSION OR TERMINATION IN AN AMOUNT NOT TO EXCEED THE DIFFERENCE BETWEEN THE AMOUNT SUCH PERSON WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF SUCH SUSPENSION OR TERMINATION, AT THE RATE HE WAS RECEIVING ON THE DATE OF SUSPENSION OR TERMINATION, AS APPROPRIATE, AND THE INTERIM NET EARNINGS OF SUCH PERSON. ( ITALICS SUPPLIED.)

CONCERNING YOUR STATEMENT THAT THE TWO ITALICIZED PORTIONS OF THE STATUTE APPEAR TO BE CONTRADICTORY, YOU ARE ADVISED THAT THE ENTIRE PROVISION MUST BE CONSTRUED AS A WHOLE. THE VARIOUS PHRASES AND CLAUSES MAY NOT BE SEPARATED AND CONSTRUED SEPARATELY. WHEN THE TWO ITALICIZED PROVISIONS ARE CONSIDERED TOGETHER IT IS CLEAR THAT THE AMOUNT THE EMPLOYEE WOULD NORMALLY HAVE EARNED DURING THE PERIOD OF HER SUSPENSION IS LIMITED TO THE RATE SHE WAS RECEIVING ON THE DATE OF HER SUSPENSION. ACCORDINGLY, THE VOUCHER, WHICH APPEARS TO HAVE BEEN PREPARED TO COVER THE DIFFERENCE BETWEEN THE RATE OF COMPENSATION THE EMPLOYEE WAS RECEIVING WHEN SUSPENDED AND THE FIRST LONGEVITY STEP WHICH YOU SAY SHE WOULD HAVE RECEIVED EXCEPT FOR THE SUSPENSION, MAY NOT BE CERTIFIED FOR PAYMENT. SEE 32 COMP. GEN. 132; 34 ID. 382.

REGARDING QUESTION TWO, SECTION 703 (A) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 968, AS AMENDED BY SECTION 102 OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1105, 5 U.S.C. 1123, PROVIDES:

SUBJECT TO SUBSECTION (B), AND AS A REWARD FOR LONG AND FAITHFUL SERVICE, EACH DEPARTMENT SHALL GRANT AN ADDITIONAL STEP-INCREASE (TO BE KNOWN AS A LONGEVITY STEP-INCREASE) BEYOND THE MAXIMUM SCHEDULED RATE OF THE GRADE IN WHICH HIS POSITION IS PLACED, TO EACH OFFICER OR EMPLOYEE FOR EACH THREE YEARS OF CONTINUOUS SERVICE COMPLETED BY HIM AT SUCH MAXIMUM RATE OR AT A RATE IN EXCESS THEREOF AUTHORIZED BY THIS SECTION WITHOUT INCREASE IN GRADE OR RATE OF BASIC COMPENSATION EXCEPT SUCH INCREASE AS MAY BE PRESCRIBED BY ANY PROVISION OF LAW OF GENERAL APPLICATION. ( ITALICS SUPPLIED.)

SUBSECTION (B) (6) PROVIDES:

THE OFFICER OR EMPLOYEE SHALL HAVE HAD, IN THE AGGREGATE, NOT LESS THAN TEN YEARS OF SERVICE IN THE POSITION WHICH HE THEN OCCUPIES, OR IN POSITIONS OF EQUIVALENT OR HIGHER CLASS OR GRADE.

THE EMPLOYEE COMPLETED THE TEN YEAR MINIMUM SERVICE REQUIREMENT ON JANUARY 10, 1951; HOWEVER, UPON HER PROMOTION TO THE GS-4 POSITION ON APRIL 1, 1951, SHE RECEIVED AN INCREASE IN GRADE OR RATE OF BASIC COMPENSATION, AND, THEREFORE, THE SERVICE PRIOR TO THAT TIME COULD NOT COUNT TOWARD THE THREE-YEAR PERIOD. AS STATED ABOVE, THE EMPLOYEE REACHED THE TOP OF GRADE GS-4 ON MARCH 30, 1952, AND SHE WAS DEMOTED TO THE TOP OF GRADE GS-3 ON MAY 23, 1954. UNDER THE ABOVE-QUOTED PROVISION OF SUBSECTION (B) (6), HER NEW THREE YEAR WAITING PERIOD FOR A LONGEVITY INCREASE IS TO BE COMPUTED FROM MARCH 30, 1952, THE DATE SHE REACHED THE TOP OF GRADE GS-4.

WHILE AN EMPLOYEE WHO IS RESTORED TO DUTY AFTER SUSPENSION UNDER THE ACT OF AUGUST 26, 1950, IS ENTITLED TO BE CREDITED WITH ANNUAL AND SICK LEAVE FOR THE PERIOD OF SUSPENSION (31 COMP. GEN. 58), THE LEAVE TO BE CREDITED IS SUBJECT TO THE MAXIMUM ACCUMULATION LIMITATION OF THE ANNUAL AND SICK LEAVE ACT OF 1951, 65 STAT. 679, AS AMENDED. THEREFORE, SINCE YOUR LETTER INDICATES THAT THE EMPLOYEE COULD HAVE ACCUMULATED ONLY 240 HOURS OF ANNUAL LEAVE DURING THE 1954 LEAVE YEAR, SHE IS REQUIRED TO FORFEIT THE ANNUAL LEAVE EARNED DURING 1954 WHICH IS IN EXCESS OF THE 240 HOURS MAXIMUM LIMITATION AUTHORIZED BY THE LEAVE ACT. QUESTION THREE IS ANSWERED ACCORDINGLY.