B-126457, APRIL 5, 1956, 35 COMP. GEN. 543

B-126457, APRIL 5, 1956, 35 COMP. GEN. 543

COMPENSATION - SUSPENSION FROM DUTY - PROCEDURAL DEFECT IN SUSPENSION - BACK PAY A DETERMINATION BY THE CIVIL SERVICE COMMISSION THAT THE SUMMARY SUSPENSION OF AN EMPLOYEE PRIOR TO HIS DISCHARGE WAS IMPROPER BECAUSE THE DEPARTMENT FAILED TO COMPLY WITH THE PROCEDURAL REQUIREMENTS OF SECTION 6 (A) OF THE BACK PAY ACT OF JUNE 10, 1948, ENTITLES THE EMPLOYEE TO COMPENSATION FOR THE PERIOD OF SUSPENSION.

TO THE SECRETARY OF COMMERCE, APRIL 5, 1956:

ON DECEMBER 23, 1955, THE ASSISTANT SECRETARY OF COMMERCE FOR ADMINISTRATION REQUESTED OUR DECISION REGARDING THE PROPRIETY OF BACK PAY TO A FORMER EMPLOYEE WHOSE SUSPENSION WAS FOUND TO BE PROCEDURALLY DEFECTIVE BY THE CIVIL SERVICE COMMISSION. IN ITS DECISION THE COMMISSION RECOMMENDED THAT THE RECORDS BE CORRECTED TO SHOW AN ACTIVE DUTY STATUS DURING THE PERIOD OF IMPROPER SUSPENSION. THE REASONS GIVING RISE TO THE SUBMISSION ARE SET FORTH IN THE LETTER OF DECEMBER 23, AS FOLLOWS:

IN YOUR DECISION, 34 COMP. GEN. 568, IT WAS HELD THAT EMPLOYEES WHO ARE RESTORED TO DUTY BY ORDER OF THE CIVIL SERVICE COMMISSION BECAUSE THE EMPLOYING AGENCY FAILED TO FOLLOW THE PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS PREFERENCE ACT OF 1944 ARE ENTITLED TO "BACK PAY" UNDER THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 5 U.S.C. 652. IN THIS CASE, ALTHOUGH THE EMPLOYEE WAS A VETERAN PREFERENCE ELIGIBLE, THE SUSPENSION ACTION WAS NOT COVERED BY SECTION 14 OF THE VETERANS' PREFERENCE ACT BUT WAS COVERED BY SECTION 6A OF THE ABOVE-CITED ACT OF AUGUST 24, 1912, AS AMENDED.

NEITHER THE DECISION IN 34 COMP. GEN. 568 NOR ANY SUBSEQUENT DECISION APPEARS TO CLEARLY ESTABLISH ENTITLEMENT TO "BACK PAY" OF EMPLOYEES WHO ARE RESTORED TO DUTY BECAUSE OF A DETERMINATION BY PROPER AUTHORITY THAT THE AGENCY FAILED TO FOLLOW THE PROCEDURAL REQUIREMENTS OF SECTION 6A OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948.

SINCE THE SUBMISSION DISCLOSED THAT THE SUSPENSION WAS COVERED BY SECTION 6A OF THE ACT OF AUGUST 24, 1912, AS AMENDED BY THE ACT OF JUNE 10, 1948, 62 STAT. 354, 5 U.S.C. 652--- ALTHOUGH THE EMPLOYEE HAD VETERANS PREFERENCE--- AND SINCE THE PROCEDURAL DEFECTS IN THE SUSPENSION WERE NOT DISCLOSED, WE FOUND IT NECESSARY TO CALL UPON THE CIVIL SERVICE COMMISSION FOR A REPORT ON THE MATTER.

ON FEBRUARY 14, 1956, THE COMMISSION REPORTED TO US AS FOLLOWS:

THE EMPLOYEE, WHO IS A PREFERENCE ELIGIBLE, WAS DISCHARGED BY THE DEPARTMENT EFFECTIVE OCTOBER 25, 1955, AND HE FILED A SECTION 14 VETERANS' PREFERENCE ACT APPEAL. IT DEVELOPED THAT HE HAD BEEN PROPERLY DISCHARGED, BUT IMPROPERLY SUMMARILY SUSPENDED FOR THIRTY DAYS DURING THE DEPARTMENT'S DISCHARGE PROCEEDINGS IN VIOLATION OF PART 22, SECTION 22.204 OF THE COMMISSION'S REGULATIONS, PURSUANT TO SECTION 14. THIS PARTICULAR REGULATION PROVIDES THAT AN EMPLOYEE SHALL BE RETAINED IN AN ACTIVE-DUTY STATUS DURING THE NOTICE PERIOD OF A DISCHARGE WITH CERTAIN EXCEPTIONS; AND THAT IN LIEU THEREOF MAY BE SUSPENDED IN ACCORDANCE WITH PART 9 OF THE COMMISSION'S REGULATIONS FOR NOT MORE THAN THIRTY (30) DAYS. PART 9 OF THE REGULATIONS, ISSUED UNDER AUTHORITY OF REVISED STATUTES 1753, SECTION 2, 22 STAT. 403, AS AMENDED, 5 U.S.C. 631, 633, IS APPLICABLE TO BOTH THE VETERAN AND NONVETERAN. SECTION 9.102 (A) (1) WHICH IS IN GENERAL CONFORMITY WITH THE PROVISIONS OF SECTION 6 (A) OF THE ACT OF AUGUST 24, 1912, AS AMENDED, PROVIDES THAT NO EMPLOYEE SHALL BE SUSPENDED EXCEPT FOR SUCH CAUSE AS WILL PROMOTE THE EFFICIENCY OF THE SERVICE, UPON NOTICE IN WRITING OF THE PROPOSED ACTION, OPPORTUNITY FOR ANSWER, AND A WRITTEN DECISION. THE REGULATION ALSO SETS FORTH PROVISIONS AS TO RETENTION IN AN ACTIVE-DUTY STATUS DURING NOTICE PERIODS OF PROPOSED ACTION WITH CERTAIN EXCEPTIONS INCLUDING SUSPENSIONS OF VETERANS FOR THIRTY (30) DAYS OR LESS. A NOTE TO THE REGULATION ALSO CONTAINS A CROSS REFERENCE TO SECTION 14 OF THE VETERANS' PREFERENCE ACT AND THE COMMISSION'S REGULATIONS IN PART 22.

IT WAS HELD ON THE APPEAL OF THE EMPLOYEE THAT HIS DISCHARGE WAS VALID BUT THE SUSPENSION INVALID. FINDINGS WERE MADE THAT THE DEPARTMENT HAD COMPLIED WITH THE PROCEDURAL REQUIREMENTS OF SECTION 14 IN EFFECTING THE DISCHARGE, AND MERITS OF THE CASE WERE FULLY SUPPORTED BY THE EVIDENCE. FURTHER FINDING WAS MADE, HOWEVER, THAT THERE WAS NO COMPLIANCE BY THE DEPARTMENT WITH THE PROCEDURAL REQUIREMENTS OF THE COMMISSION'S REGULATIONS IN EFFECTING THE SUSPENSION; AND THAT THE SUMMARY SUSPENSION WAS THEREFORE IMPROPER. THE APPEAL WAS CONCLUDED WITH RECOMMENDATIONS THAT NO CHANGE BE MADE IN THE PERSONNEL ACTION RELATIVE TO THE DISCHARGE, BUT THAT THE RECORDS OF THE DEPARTMENT BE CORRECTED TO SHOW THE EMPLOYEE WAS IN AN ACTIVE DUTY STATUS DURING THE PERIOD OF IMPROPER SUSPENSION.

THE FOREGOING CONCLUSIONS IN THIS CASE WERE BASED ON A POLICY ESTABLISHED BY THE COMMISSION IN 1952. IN ACCORDANCE WITH THIS POLICY WHERE A DISCHARGE UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT, 5 U.S.C. 561, IS PROPER ON ITS MERITS AND THERE IS NO QUESTION AS TO THE PROCEDURAL REQUIREMENTS OF THE LAW, BUT THE EMPLOYEE WAS SUMMARILY SUSPENDED DURING THE NOTICE PERIOD, THE DISCHARGE WILL BE SUSTAINED. WITH RESPECT TO THE IMPROPER SUSPENSION, THE COMMISSION WILL RECOMMEND CORRECTIVE ACTION TO BE EFFECTED BY AMENDMENT OF THE EMPLOYING AGENCY RECORDS TO SHOW A RESTORATION RETROACTIVE TO THE DATE OF SUSPENSION AND CONTINUANCE OF THE EMPLOYEE ON THE ROLLS UNTIL THE DATE OF DISCHARGE. IN ESTABLISHING THIS POLICY THE COMMISSION CONSIDERED THAT IN CASES OF THIS NATURE THERE ARE TWO SEPARATE ACTIONS--- A SUSPENSION AND A DISCHARGE; ALSO THAT WHEN A VALID DISCHARGE HAS BEEN EFFECTED, IT SHOULD NOT BE INVALIDATED BECAUSE OF A PREVIOUS INVALID PERSONNEL ACTION OF SUSPENSION. FURTHER CONSIDERATION WAS GIVEN TO THE FACT THAT CORRECTING THE RECORD OF THE IMPROPER SUSPENSION WOULD AFFORD A REMEDY TO THE APPELLANT WHICH MIGHT SERVE AS A BASIS FOR A CLAIM FOR COMPENSATION TO THE GENERAL ACCOUNTING OFFICE OR THE U.S. COURT OF CLAIMS COVERING THE PERIOD OF IMPROPER SUSPENSION.

SECTION 6 (B) (1) OF THE ACT OF JUNE 10, 1948, PROVIDES, IN PERTINENT PART, THAT ANY PERSON REMOVED OR SUSPENDED WITHOUT PAY UNDER SUBSECTION (A) WHO IS REINSTATED OR RESTORED TO DUTY ON THE GROUND THAT SUCH REMOVAL OR SUSPENSION WAS UNJUSTIFIED OR UNWARRANTED, SHALL BE PAID COMPENSATION AT THE RATE RECEIVED ON THE DATE OF THE REMOVAL OR SUSPENSION LESS ANY AMOUNT EARNED BY HIM THROUGH OTHER EMPLOYMENT DURING THE PERIOD INVOLVED. AS THE LETTER OF DECEMBER 23, POINTS OUT, WE HELD IN 34 COMP. GEN. 568, THAT AN EMPLOYEE WHO IS RESTORED TO DUTY BY ORDER OF THE CIVIL SERVICE COMMISSION BECAUSE THE EMPLOYING AGENCY FAILED TO FOLLOW THE PROCEDURAL REQUIREMENTS OF SECTION 14 OF THE VETERANS' PREFERENCE ACT IS ENTITLED TO "BACK PAY" UNDER SECTION 6 (B) (2) OF THE 1948 ACT. IN OTHER WORDS, WE CONCLUDED THAT THE VIOLATION OF THE PROCEDURAL REQUIREMENTS CONSTITUTED AN UNJUSTIFIED OR UNWARRANTED REMOVAL. SINCE IN THE INSTANT CASE THE COMMISSION HAS DETERMINED THAT THE EMPLOYEE WAS IMPROPERLY SUSPENDED BECAUSE THE DEPARTMENT FAILED TO COMPLY WITH THE PROCEDURAL REQUIREMENTS OF SECTION 6 (A) OF THE 1948 ACT, WE HOLD THAT THE PAYMENT OF COMPENSATION FOR THE PERIOD OF THE SUSPENSION IS AUTHORIZED UNDER THE PROVISIONS OF SECTION 6 (B) (1) OF SAID ACT.