B-176347, OCT 4, 1972

B-176347, OCT 4, 1972

CIVILIAN EMPLOYEES - VOLUNTARY LAWMAN - COURT LEAVE DECISION ALLOWING COURT LEAVE TO PAUL E. COWDREY, AN EMPLOYEE OF THE NAVAL UNDERWATER SYSTEMS CENTER, WEST PALM BEACH, FLA., INCIDENT TO HIS VOLUNTARY SERVICES AS AUXILIARY PATROLMAN FOR RIVIERA BEACH, FLA. SINCE THE EMPLOYEE APPEARED AS A WITNESS FOR THE STATE OF FLORIDA IN COURT PROCEEDINGS, HE IS ENTITLED TO COURT LEAVE PURSUANT TO 5 U.S.C. 6322, EVEN THOUGH THE APPEARANCE WAS REQUIRED AS A RESULT OF HIS VOLUNTARY SERVICES AS A LAWMAN. HOWEVER, IF THE EMPLOYEE IS PAID FOR HIS SERVICES AS A PART-TIME LAWMAN, HE SHOULD NOT BE PAID FOR SUCH LEAVE.

TO MR. SECRETARY:

THIS IS IN REFERENCE TO LETTER OF MAY 15, 1972, WITH ENCLOSURES, REFERENCE NTC/04/CM:VS FROM THE COMMANDER, NAVAL TRAINING CENTER, ORLANDO, FLORIDA, FORWARDED HERE UNDER FIRST ENDORSEMENT DATED JUNE 22, 1972, REFERENCE NAFC-3121 7420, BY THE NAVY ACCOUNTING AND FINANCE CENTER, WASHINGTON, REQUESTING AN ADVANCE DECISION CONCERNING COURT LEAVE GRANTED TO MR. COWDREY, AN EMPLOYEE OF THE NAVAL UNDERWATER SYSTEMS CENTER, WEST PALM BEACH, FLORIDA.

THE LETTER OF MAY 15, 1972, STATES THAT MR. COWDREY WAS SUBPOENAED IN HIS OFFICIAL CAPACITY AS A PART-TIME AUXILIARY DEPUTY SHERIFF FOR PALM BEACH COUNTY, FLORIDA. THE LETTER STATES THAT AS ARRESTING OFFICER MR. COWDREY WAS SUMMONED TO TESTIFY AND WAS PAID WITNESS FEES IN FIVE OF SIX APPEARANCES AND WAS GRANTED COURT LEAVE IN ALL CASES. THE ENCLOSURES ARE NOTED TO THE EFFECT THAT ALL WITNESS FEES WERE DEPOSITED IN THE AGENCY PAYROLL OFFICE.

THE QUESTIONS ASKED ARE AS FOLLOWS:

"IT IS REQUESTED THAT ADVICE BE GIVEN AS TO THE PROPRIETY OF COURT LEAVE WHEN IT IS THE RESULT OF A PART-TIME JOB THAT HAS NO CONNECTION WITH HIS FEDERAL EMPLOYMENT.

"WOULD THE DECISION BE THE SAME WHETHER OR NOT THE EMPLOYEE IS A VOLUNTEER OR A PAID PART-TIME LAWMAN?"

ENCLOSED WITH THE ENDORSEMENT WAS A LETTER OF JUNE 1, 1972, SIGNED BY MR. COWDREY WHICH CONTESTED IN PART THE FACTS STATED ABOVE TO THE EFFECT THAT ON ONE OF THE SIX OCCASIONS HE WAS SUBPOENAED AS A RESERVE PATROLMAN IN THE RIVIERA BEACH, FLORIDA, POLICE DEPARTMENT; THAT HE WAS NOT THE ARRESTING OFFICER ON ANY OF THE SUBJECT OCCASIONS; AND THAT HE HAS NEVER RECEIVED ANY REMUNERATION AS AN AUXILIARY DEPUTY SHERIFF OR RESERVE PATROLMAN.

SECTION 6322 OF TITLE 5, U.S.C. AS AMENDED BY PUBLIC LAW 91-563, APPROVED DECEMBER 19, 1970, 84 STAT. 1476, PROVIDES IN PART AS FOLLOWS:

"(A) AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE (EXCEPT AN INDIVIDUAL WHOSE PAY IS DISBURSED BY THE SECRETARY OF THE SENATE OR THE CLERK OF THE HOUSE OF REPRESENTATIVES) OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS ENTITLED TO LEAVE, WITHOUT LOSS OF, OR REDUCTION IN, PAY, LEAVE TO WHICH HE OTHERWISE IS ENTITLED, CREDIT FOR TIME OR SERVICE, OR PERFORMANCE OF EFFICIENCY RATING, DURING A PERIOD OF ABSENCE WITH RESPECT TO WHICH HE IS SUMMONED, IN CONNECTION WITH A JUDICIAL PROCEEDING, BY A COURT OR AUTHORITY RESPONSIBLE FOR THE CONDUCT OF THAT PROCEEDING, TO SERVE -

"(1) AS A JUROR; OR

"(2) AS A WITNESS ON BEHALF OF A PARTY OTHER THAN THE UNITED STATES, THE DISTRICT OF COLUMBIA, OR A PRIVATE PARTY;

IN THE DISTRICT OF COLUMBIA, A STATE, TERRITORY, OR POSSESSION OF THE UNITED STATES INCLUDING THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, OR THE TRUST TERRITORY OF THE PACIFIC ISLANDS. FOR THE PURPOSE OF THIS SUBSECTION, 'JUDICIAL PROCEEDING' MEANS ANY ACTION, SUIT, OR OTHER JUDICIAL PROCEEDING, INCLUDING ANY CONDEMNATION, PRELIMINARY, INFORMATIONAL, OR OTHER PROCEEDING OF A JUDICIAL NATURE, BUT DOES NOT INCLUDE AN ADMINISTRATIVE PROCEEDING."

THE RECORD INDICATES THAT MR. COWDREY WAS SUMMONED AS A WITNESS ON BEHALF OF THE STATE OF FLORIDA. WHILE IT MAY BE THAT HIS TESTIMONY WAS REQUIRED AS A RESULT OF VOLUNTARY SERVICES PERFORMED AS AN AUXILIARY PATROLMAN, HE IS NEVERTHELESS ENTITLED TO COURT LEAVE PURSUANT TO THE ABOVE STATUTORY AUTHORITY.

THE FIRST QUESTION IS ANSWERED ACCORDINGLY. WITH RESPECT TO THE SECOND QUESTION WE DO NOT BELIEVE IT IS THE INTENT OR PURPOSE OF THE ABOVE STATUTORY PROVISIONS TO GRANT COURT LEAVE TO AN EMPLOYEE WHO IS PAID FOR HIS SERVICES AS A PART-TIME LAWMAN. THUS, THE SECOND QUESTION IS ANSWERED IN THE NEGATIVE.