B-4180, JUNE 19, 1939, 18 COMP. GEN. 951

B-4180, JUNE 19, 1939, 18 COMP. GEN. 951

APPOINTMENTS - EFFECTIVE DATE - QUALIFYING ENTRANCE ON DUTY CONDITION - FORTY-HOUR WEEK EMPLOYEES WHERE AN EMPLOYEE EMPLOYED ON A PER HOUR 5-DAY WEEK BASIS--- MONDAY TO FRIDAY--- IS PROMOTED TO A PER ANNUM 5-DAY WEEK POSITION--- MONDAY TO FRIDAY--- "EFFECTIVE WHEN YOU ENTER UPON DUTY," HE IS NOT ENTITLED TO SALARY FOR THE INTERVENING SATURDAY AND SUNDAY NOTWITHSTANDING ACCEPTANCE OF THE APPOINTMENT ON THE INTERVENING SATURDAY, THE APPOINTMENT HAVING BEEN QUALIFIED AS TO ITS EFFECTIVE DATE AND ENTRANCE ON DUTY NOT HAVING BEEN POSSIBLE OR IN FACT MADE UNTIL THE FOLLOWING MONDAY, THE BEGINNING OF THE NEXT 5-DAY WEEK PERIOD.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JUNE 19, 1939:

I HAVE YOUR COMMUNICATION OF MAY 26, 1939, AS FOLLOWS:

CLAIM OF JOSEPH A. GIOVANNONI, A CIVIL EMPLOYEE OF THE NAVY YARD, WASHINGTON, D.C., FOR THE SUM OF $17.14 DEDUCTED FROM HIS SALARY FOR TWO DAYS, APRIL 1 AND APRIL 2, 1939, THE SATURDAY AND SUNDAY INTERVENING BETWEEN THE LAST WORKDAY ON A PER DIEM BASIS AS TOOLMAKER (PLANNER AND ESTIMATOR), GROUP III AT $1.308 PER HOUR, AND ON A PER ANNUM BASIS AS ASSOCIATE MECHANICAL ENGINEER, P-3, GROUP IV (B) AT $3,200 PER ANNUM, UNDER A PROMOTION ISSUED BY THE NAVY DEPARTMENT UNDER DATE OF MAR. 24, 1939.

RESPECTFULLY FORWARDED TO THE COMPTROLLER GENERAL FOR HIS DECISION AS TO WHETHER JOSEPH A. GIOVANNONI IS ENTITLED TO PAY FOR APRIL 1 AND APRIL 2, 1939.

THE REASONS FOR MAKING THE DEDUCTION FROM THE SALARY OF JOSEPH A. GIOVANNONI ARE SET FORTH IN THE SECOND ENDORSEMENT OF THE ACCOUNTING OFFICER OF THE WASHINGTON NAVY YARD ON SUBJECT CLAIM.

THE STATEMENT OF THE ACCOUNTING OFFICER OF THE WASHINGTON NAVY YARD, TO WHICH YOU REFER, IS AS FOLLOWS:

SUBJECT: PROMOTION FROM TOOLMAKER (PLANNER AND ESTIMATOR), GROUP III AT $1.308 PER HOUR, TO ASSOCIATE MECHANICAL ENGINEER, P-3, GROUP IV (B) AT $3,200 PER ANNUM--- JOSEPH A. GIOVANNONI.

1. FORWARDED.--- AS EVIDENCED BY THE ATTACHED PAPERS, MR. GIOVANNONI WAS PROMOTED FROM TOOLMAKER (PLANNER AND ESTIMATOR) GROUP III AT $1.308 PER HOUR AND APPOINTED ASSOCIATE MECHANICAL ENGINEER, P 3, GROUP IV (B) WITH PAY AT THE RATE OF $3,200 PER ANNUM, TO TAKE EFFECT ON ENTRANCE UPON DUTY. THIS APPOINTMENT WAS RECEIVED IN THE NAVY YARD PRIOR TO THURSDAY, MARCH 30, 1939, BUT, ALTHOUGH HE SIGNED A FORMAL ACCEPTANCE ON APRIL 1, 1939, MR. GIOVANNONI DID NOT ACTUALLY ENTER UPON DUTY TO HIS NEW POSITION UNTIL MONDAY, APRIL 3, 1939.

2. COMPENSATION OF THE POSITION FORMERLY HELD WAS ON A PER HOUR BASIS, AND EMPLOYMENT WAS FOR 40 HOURS PER WEEK ON FIVE DAYS FROM MONDAY TO FRIDAY, INCLUSIVE. SINCE MR. GIOVANNONI COMPLETED HIS WORKWEEK ON A PER HOUR BASIS ON FRIDAY, MARCH 31, 1939, AND WAS PAID ON THAT BASIS FOR HIS FULL 40 HOURS WORK FOR THAT WORKWEEK, DOUBT EXISTS AS TO WHETHER OR NOT HE IS ENTITLED TO ANY FURTHER COMPENSATION UNTIL THE BEGINNING OF ANOTHER WORK PERIOD. THE SCHEDULE OF EMPLOYMENT UNDER THE NEW POSITION REQUIRES 40 HOURS' WORK ON FIVE DAYS, MONDAY TO FRIDAY, INCLUSIVE.

3. THEREFORE, UNDER THE PROMOTION IN QUESTION, PAY HAS BEEN CREDITED ONLY FROM APRIL 3, 1939, IRRESPECTIVE OF THE FACT THAT APPOINTMENT TO THE NEW POSITION WAS ACCEPTED AS OF APRIL 1, 1939. A PARALLEL CASE INVOLVING THE PROMOTION OF MR. RALPH F. BERGMAN FROM MACHINIST, GROUP III, AT $1.056 PER HOUR TO INSPECTOR OF ENGINEERING MATERIALS, CAF-5, $2,200, WAS SIMILARLY TREATED BY CREDITING PAY ONLY FROM APRIL 3, 1949.

4. PURSUANT TO INSTRUCTIONS CONTAINED IN ARTICLE 2302-1 (B), BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, AN ADVANCE DECISION OF THE COMPTROLLER GENERAL IS REQUESTED AS TO CREDITING THESE EMPLOYEES WITH 2/30 MONTH'S PAY ON ACCOUNT OF TWO NON-WORK DAYS, APRIL 1 AND 2, 1939, AT $3,200 AND $2,200 PER ANNUM RESPECTIVELY.

THE ADMINISTRATIVE ORDER OF MARCH 24, 1939, PROMOTING THIS EMPLOYEE READS, SO FAR AS HERE MATERIAL, AS FOLLOWS:

SUBJECT: PROMOTION.

1.YOU ARE HEREBY PROMOTED FROM TOOLMAKER (PLANNER AND ESTIMATOR), GROUP III AT $1.308 PER HOUR, AND APPOINTED ASSOCIATE MECHANICAL ENGINEER, P-3, GROUP IV (B) (AUTHORITY U.S. CIVIL SERVICE COMMISSION'S CERTIFICATE NO. Z- 5420, DATED MARCH 22, 1939), WITH PAY AT THE RATE OF $3,200 PER ANNUM (40- HOUR WEEK), CHARGEABLE TO THE APPROPRIATION "REPLACEMENT OF NAVAL VESSELS, ARMOR, ARMAMENT, AND AMMUNITION," (LIMITATION FOR PAY OF GROUP IV (B) EMPLOYEES, ETC.), EFFECTIVE WHEN YOU ENTER UPON DUTY, ON WHICH DATE YOU WILL EXECUTE THE REQUIRED OATH OF OFFICE.

THE EMPLOYEE BASES HIS CLAIM TO COMPENSATION FOR APRIL 1 AND 2, 1939, UPON THE DECISION OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES, DATED APRIL 11, 1925, 4 COMP. GEN. 845, WHICH HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

TO ENTITLE AN OFFICER OR EMPLOYEE TO COMPENSATION UNDER AN APPOINTMENT, THE APPOINTMENT MUST BE ACCEPTED EITHER FORMALLY, OR BY ENTRY UPON DUTY, OR BY TAKING THE OATH OF OFFICE. NO PAYMENT MAY BE MADE PRIOR TO TAKING THE OATH BUT THE OATH WHEN TAKEN MAY RELATE BACK TO THE DATE OF THE ACCEPTANCE OF THE APPOINTMENT IN THE ABSENCE OF ANY RESTRICTION IN THE APPOINTMENT ITSELF.

THAT DECISION MERELY STATED THE GENERAL RULE FOR DETERMINING THE BEGINNING DATE FROM WHICH SALARY ACCRUES UNDER AN APPOINTMENT WHICH CONTAINS NO QUALIFYING CONDITIONS IN RESPECT OF ITS EFFECTIVE DATE. UNLIKE THE APPOINTMENT CONSIDERED IN THAT CASE, THE APPOINTMENT HERE WAS SPECIFICALLY MADE "EFFECTIVE WHEN YOU ENTER UPON DUTY.'

THE EMPLOYEE RELIES, ALSO, UPON 24 COMP. DEC. 547, THE FIRST PARAGRAPH OF THE SYLLABUS READING AS FOLLOWS:

THE OATH OF OFFICE IS NOT NECESSARILY A CONDITION PRECEDENT TO THE TAKING EFFECT OF A PROMOTION IN THE CIVIL SERVICE; BUT WHERE THE PROMOTION IS ACCOMPANIED BY A CHANGE OF POSITION, SUCH OATH MUST BE TAKEN, AND WHEN TAKEN PAYMENT AT THE INCREASED RATE IS AUTHORIZED FROM AND INCLUDING THE DATE THE PROMOTION WAS ORDERED TO TAKE EFFECT, PROVIDED THE INCUMBENT THEN ACCEPTED THE SAME AND ENTERED UPON DUTY.

OBVIOUSLY, THAT DECISION DOES NOT SUPPORT THE EMPLOYEE'S CONTENTION BUT, ON THE CONTRARY, IT SUPPORTS THE POSITION THAT THE INCREASE IS EFFECTIVE "ON THE DATE THE PROMOTION WAS ORDERED TO TAKE EFFECT"--- THE OTHER CONDITIONS BEING MET.

IN DECISION OF AUGUST 6, 1927, 7 COMP. GEN. 96, IT WAS STATED AT PAGE 97:

APPOINTMENTS OR COMMISSIONS DO NOT NECESSARILY TAKE EFFECT IMMEDIATELY UPON THEIR ISSUE. THE APPOINTING POWER MAY MAKE THEM EFFECTIVE AT SOME FUTURE DATE OR ON THE HAPPENING OF SOME CONTINGENCY SUCH AS TAKING THE OATH OF OFFICE OR ENTERING UPON DUTY. * * *

IN DECISION OF AUGUST 9, 1916, 23 COMP. DEC. 88, BY THE FORMER COMPTROLLER OF THE TREASURY TO THE SECRETARY OF THE NAVY, THERE WAS CONSIDERED AN APPOINTMENT IN SUBSTANTIALLY THE SAME TERMS AS THE APPOINTMENT IN THE INSTANT CASE. WHILE THERE WAS NOT INVOLVED THE SAME QUESTION AS HERE, THE FOLLOWING IS QUOTED FOR COMPARISON:

IF MR. MANSFIELD'S APPOINTMENT HAD CONTAINED A PROVISION RENDERING THE TAKING OF AN OATH A CONDITION PRECEDENT TO ITS TAKING EFFECT, IT WOULD HAVE BEEN A QUALIFICATION OF HIS APPOINTMENT AND PAYMENT OF SALARY WOULD NOT BE AUTHORIZED UNTIL THAT TIME (6 COMP. DEC., 41); * * *

IN THE PRESENT CASE, ENTRANCE UPON DUTY WAS A QUALIFICATION OF THE APPOINTMENT AND A CONDITION PRECEDENT TO ITS TAKING EFFECT. DUE TO THE FACT THAT THE EMPLOYEE'S TOUR OF DUTY WAS A 5-DAY WEEK BEGINNING WITH MONDAY AND ENDING WITH FRIDAY IN BOTH POSITIONS, HE COULD NOT HAVE ENTERED AND DID NOT ENTER ON DUTY UNDER THE APPOINTMENT IN QUESTION UNTIL MONDAY, APRIL 3, 1939. ACCEPTANCE OF THE APPOINTMENT ON APRIL 1, 1939, DID NOT HAVE THE EFFECT OF PLACING THE EMPLOYEE IN A PAY STATUS UNDER THE TERMS OF THE APPOINTMENT.

YOU ARE ADVISED, THEREFORE, THAT THE ADMINISTRATIVE ACTION IN REFUSING PAYMENT OF SALARY TO MR. GIOVANNONI FOR APRIL 1 AND 2, 1939, WAS CORRECT.