B-130988, MAY 23, 1957

B-130988, MAY 23, 1957

TO HONORABLE CHARLES M. THOMPSON, CHAIRMAN, VETERANS' EDUCATION APPEALS BOARD:

YOUR LETTER OF MARCH 7, 1957, REQUESTS OUR DECISION REGARDING THE RIGHT OF THE PRESIDING MEMBER OF THE VETERANS' EDUCATION APPEALS BOARD TO COMPENSATION FOR HOLIDAYS ON WHICH NO WORK IS PERFORMED AND TO ANNUAL AND SICK LEAVE BENEFITS.

THE VETERANS' EDUCATION APPEALS BOARD WAS CREATED AS AN INDEPENDENT BOARD BY SECTION 2, ACT OF JULY 13, 1950, 64 STAT. 336, WHICH PROVIDES:

". . . A BOARD TO BE KNOWN AS THE "VETERANS" EDUCATION APPEALS BOARD" CONSISTING OF THREE MEMBERS, APPOINTED BY THE PRESIDENT. MEMBERS OF THE BOARD SHALL RECEIVE, OUT OF APPROPRIATIONS AVAILABLE FOR ADMINISTRATIVE EXPENSES OF THE VETERANS' ADMINISTRATION, COMPENSATION AT THE RATE OF $50 FOR EACH DAY ACTUALLY SPENT BY THEM IN THE WORK OF THE BOARD, TOGETHER WITH NECESSARY TRAVEL AND SUBSISTENCE EXPENSES. THE ADMINISTRATOR OF VETERANS' AFFAIRS SHALL PROVIDE FOR THE BOARD SUCH STENOGRAPHIC, CLERICAL, AND OTHER ASSISTANCE AND SUCH FACILITIES AND SERVICES AS MAY BE NECESSARY FOR THE DISCHARGE OF ITS FUNCTIONS. SUCH BOARD SHALL BE SUBJECT, IN RESPECT TO HEARINGS, APPEALS, AND ALL OTHER ACTIONS AND QUALIFICATIONS, TO THE PROVISIONS OF SECTIONS 5 TO 11, INCLUSIVE, OF THE ADMINISTRATIVE PROCEDURE ACT, APPROVED JUNE 11, 1946, AS AMENDED. THE DECISION OF SUCH BOARD WITH RESPECT TO ALL MATTERS SHALL CONSTITUTE THE FINAL ADMINISTRATIVE DETERMINATION.'

THE CONFERENCE REPORT ON THE UNDERLYING BILL, S. 2596, HOUSE REPORT NO. 2373, DATED JUNE 28, 1950, MAKES THE FOLLOWING EXPLANATION:

"THE NEW BOARD IS TO CONSIST OF THREE MEMBERS APPOINTED BY THE PRESIDENT AND IS TO BE AN INDEPENDENT BOARD. BOARD MEMBERS ARE TO BE PAID FROM ADMINISTRATIVE EXPENSES OF THE VETERANS' ADMINISTRATION, AND THE ADMINISTRATOR IS DIRECTED TO PROVIDE SUCH STENOGRAPHIC AND CLERICAL ASSISTANCE AND FACILITIES AS MAY BE NECESSARY FOR THE DISCHARGE OF THE FUNCTIONS OF THE BOARD. . . .'

THE PRESIDENT APPOINTED THREE MEMBERS OF THE BOARD AND AT THE FIRST MEETING OF THE BOARD IT WAS CONCLUDED THAT ONE MEMBER MUST BE IN FULL TIME ATTENDANCE TO OVERSEE ITS GENERAL ADMINISTRATION AND TO CONDUCT ROUTINE PROCEDURAL MATTERS. ACCORDINGLY, ONE MEMBER WAS DESIGNATED RESIDENT AND PRESIDING MEMBER AND WAS INSTRUCTED TO PERFORM HIS DUTIES ON A REGULAR WORKWEEK AND ON SUCH SATURDAYS AND SUNDAYS AS WERE NECESSARY. YOU URGE THAT SUCH ACTION MAKES THE PRESIDING MEMBER A FULL-TIME EMPLOYEE ENTITLED TO HOLIDAY PAY AND LEAVE BENEFITS.

THE STATUTE IN THIS CASE PRESCRIBES THE RATE OF COMPENSATION AND FOR WHAT PURPOSE, NAMELY,"$50 FOR EACH DAY ACTUALLY SPENT BY THEM IN THE WORK OF THE BOARD," APPARENTLY, IT IS CONCEDED THAT THE OTHER EMPLOYEES OF THE BOARD MAY BE CONSIDERED ONLY INTERMITTENT EMPLOYEES, BUT IT IS CONTENDED THAT THE ACTION OF THE BOARD MAKES THE PRESIDING MEMBER A FULL-TIME EMPLOYEE.

AS INDICATED ABOVE THE STATUTE RESTRICTS THE COMPENSATION OF THE THREE MEMBERS TO $50 FOR EACH DAY ACTUALLY SPENT ON THE WORK OF THE BOARD AND WHILE THE BOARD HAS GENERAL AUTHORITY TO MAKE ADMINISTRATIVE DETERMINATIONS OF THE QUESTIONS PRESENTED IT, IT IS NOT VESTED WITH AUTHORITY TO ENLARGE OR DISREGARD THE STATUTORY RESTRICTION IN THE MATTER OF COMPENSATION PAYABLE TO ITS MEMBERS. TO GRANT ANNUAL LEAVE WITH PAY WHEN NO TIME IS ACTUALLY SPENT IN THE WORK OF THE BOARD WOULD BE IN EXPRESS VIOLATION OF THE STATUTE WHICH SPECIFIES THAT COMPENSATION IS PAYABLE ONLY ,FOR EACH DAY ACTUALLY SPENT * * * ON THE WORK OF THE BOARD.'

ACCORDINGLY, WE ARE REQUIRED TO HOLD THAT NO MEMBER OF THE BOARD, INCLUDING THE PRESIDING MEMBER, MAY BE PAID FOR HOLIDAYS WHEN NO WORK IS PERFORMED, NOR MAY BE GRANTED ANNUAL OR SICK LEAVE WITH PAY.