B-216885, NOV 29, 1984

B-216885, NOV 29, 1984

COMPENSATION - WAIVERS - PROHIBITION DIGEST: CHAIRMAN OF THE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, HOUSE OF REPRESENTATIVES, REQUESTS OUR VIEWS ON THE LEGALITY OF THE SECRETARY OF LABOR, MR. RAYMOND DONOVAN'S LEAVE WITHOUT PAY STATUS. ALTHOUGH MR. DONOVAN STATES HE IS NOT PERFORMING THE DUTIES OF HIS OFFICE AND WILL NOT RECEIVE PAY, COURT DECISIONS AND THOSE OF THE COMPTROLLER GENERAL HOLD THAT AN OFFICER IS ENTITLED TO HIS SALARY AND MAY NOT VOLUNTARILY WAIVE THE SALARY SO AS TO ESTOP HIM FROM LATER CLAIMING IT. IF, HOWEVER, MR. DONOVAN WISHES TO WAIVE RECEIPT OF THE CHECKS HE MAY DO SO.

THE HONORABLE WILLIAM D. FORD CHAIRMAN, COMMITTEE ON POST OFFICE AND CIVIL SERVICE HOUSE OF REPRESENTATIVES

DEAR MR. CHAIRMAN:

THIS REPLIES TO YOUR LETTER OF OCTOBER 10, 1984, IN WHICH YOU ASK OUR OPINION CONCERNING THE SECRETARY OF LABOR'S LEAVE WITHOUT PAY STATUS AND WHETHER THE SECRETARY MUST CONTINUE TO BE PAID THE RATE OF PAY PRESCRIBED FOR HIS POSITION UNDER 5 U.S.C. SEC. 5312 SO LONG AS HE OCCUPIES THE POSITION OF SECRETARY OF LABOR. IT IS OUR VIEW THAT THE SECRETARY OF LABOR, MR. RAYMOND DONOVAN, IS LEGALLY ENTITLED TO THE PAY OF THE OFFICE AS LONG AS HE HOLDS IT; HE CANNOT EFFECTIVELY WAIVE HIS LEGAL ENTITLEMENT TO THE PAY. HOWEVER, BASED ON A PRECEDENT ESTABLISHED BY OUR OFFICE, HE MAY DECLINE RECEIPT OF HIS PAY CHECKS EVEN THOUGH HIS LEGAL ENTITLEMENT TO THE PAY REMAINS.

ACCORDING TO INFORMATION RELEASED BY SECRETARY DONOVAN, ON OCTOBER 1, 1984, THE PRESIDENT HAS ACCEPTED MR. DONOVAN'S REQUEST FOR A LEAVE OF ABSENCE WITHOUT PAY PENDING THE DISPOSITION OF CRIMINAL CHARGES AGAINST HIM RESULTING FROM A GRAND JURY INVESTIGATION. MR. DONOVAN STATED THAT HE EXPECTS TO RESUME HIS DUTIES AT SOME TIME IN THE FUTURE. THE QUESTION YOU RAISE IS WHETHER THE HEAD OF A DEPARTMENT OR AGENCY, SUCH AS MR. DONOVAN, HAS THE OPTION TO WAIVE HIS SALARY.

SECTION 5312 OF TITLE 5, U.S.C. (1982), SETS THE RATE OF PAY FOR CABINET OFFICERS, INCLUDING THE SECRETARY OF LABOR. BY VIRTUE OF 5 U.S.C. SEC. 6301(2)(X) (1982), CABINET OFFICERS ARE NOT GOVERNED BY THE PROVISIONS OF THE ANNUAL AND SICK LEAVE ACT OF 1951, AS AMENDED, 5 U.S.C. SECS. 6301 ET SEQ. ACCORDINGLY, THEY ARE IN A CONTINUOUS PAY STATUS.

EMPLOYEES COVERED BY THE LEAVE LAWS ARE ONLY PAID FOR THE HOURS OF WORK PERFORMED OR WHICH MAY BE CHARGED TO PAID LEAVE, AND THEY MAY BE PLACED IN LEAVE WITHOUT PAY STATUS WHEN THEY DO NOT WORK. CABINET OFFICERS, HOWEVER, ARE ENTITLED TO THEIR SALARIES AS A MATTER OF RIGHT REGARDLESS OF WHETHER THEY ARE PERFORMING THE DUTIES OF THEIR OFFICE SINCE THE RIGHT TO PAYMENT OF THEIR SALARIES IS DERIVED FROM THE FACT THAT THEY HOLD THE OFFICE AND NOT FROM WHETHER THEY PERFORM ITS DUTIES. SEE B-150989, APRIL 17, 1963; S. REP. NO. 294, 83RD CONG., 1ST SESS., 2-3 (1953).

IN A VIEW OF THE ABOVE, SECRETARY DONOVAN HAS A STATUTORY ENTITLEMENT TO HIS SALARY AS LONG AS HE HOLDS OFFICE. JUDICIAL DECISIONS AND DECISIONS OF OUR OFFICE HAVE CONSISTENTLY HELD THAT STATUTORY ENTITLEMENTS TO COMPENSATION CANNOT BE FORFEITED OR WAIVED IN A LEGALLY EFFECTIVE MANNER. SEE, E.G., UNITED STATES V. ANDREWS, 240 U.S. 90 (1915); GLAVEY V. UNITED STATES, 182 U.S. 595 (1901); UNITED STATES V. JONES, 100 F.2D 65, 68 (8TH CIR. 1938); 54 COMP.GEN. 393 (1974), AND CASES CITED. AT THE SAME TIME, THERE IS NO LEGAL BARRIER TO ACCOMMODATING SECRETARY DONOVAN'S DESIRE NOT TO RECEIVE SALARY PAYMENTS DURING THE PERIOD OF HIS LEAVE ABSENCE. OUR DECISION IN 28 COMP.GEN. 675 (1949) CONCERNED A SENATOR WHO DID NOT WISH TO RECEIVE HIS RETIRED PAY AS A MARINE CORPS OFFICER. WHILE WE HELD THAT THE SENATOR COULD NOT WAIVE HIS RIGHT TO THE RETIRED PAY, WE INSTRUCTED THE MARINE CORPS TO DISCONTINUE ISSUING HIM CHECKS, UNTIL THE SENATOR NOTIFIED THE CORPS OTHERWISE, IN AN EFFORT TO ACCOMPLISH THE PURPOSE OF A WAIVER.

IN SUM, SINCE MR. DONOVAN REMAINS IN OFFICE, HE IS ENTITLED TO HIS STATUTORY COMPENSATION REGARDLESS OF WHETHER OR NOT HE IS PERFORMING THE DUTIES OF THE OFFICE. HE MAY CHOOSE NOT TO ACCEPT SUCH COMPENSATION, AND HIS CHOICE SHOULD BE HONORED. HOWEVER, HE CANNOT EFFECTIVELY WAIVE HIS LEGAL ENTITLEMENT. THUS, FOR EXAMPLE, HE COULD NOT BE ESTOPPED FROM LATER CLAIMING THE AMOUNTS INVOLVED. SEE 54 COMP.GEN. 393, AND UNITED STATES V. ANDREWS, ABOVE.