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The foregoing facts present the question whether any recovery must be made from Mrs. Hardie on account of this advanced sick or annual leave.
Decision of February 5, 1940 (19 Comp. Gen. 705), and decisions cited therein, state that the provisions of section 4 of the Annual Leave Regulations are for application only upon the final separation of an employee from the service when there is for consideration whether all unearned annual and sick leave should be charged to the employee, whether advanced in one or more periods.
Section 11 of the Sick Leave Regulations provides that refund on account of unearned sick leave shall not be due from an employee whose services are terminated by death, retirement for age or disability, or reduction of force, or in case an employee, who is not eligible for retirement, is unable to return to duty because of disability, evidence of which shall be supported by an acceptable certificate from a registered, practicing physician or other practitioner. It appears that no refund for the amount of excess sick leave is required in this case if the foregoing section is interpreted to mean that an employee-member of the Civil Service Retirement and Disability Fund, who is eligible for disability retirement except for the fact that the disability is not such as to qualify the employee for disability retirement under the Civil Service Retirement and Disability Act and pertinent regulations, may, on the basis of a lesser disability evidenced by a physician's certificate as required, be relieved of any obligation to refund the amount of excess sick leave.
If Mrs. Hardie's resignation is accepted as tendered, she will be carried as an employee of the Farm Credit Administration through March 31, 1941, although her last day in a pay status was July 31, 1910. If you find that under the circumstances, Mrs. Hardie is relieved of any obligation to refund for overdrawn sick leave, it appears that in accordance with the decision of February 5, 1940, supra, the provisions of section 4 of the Annual Leave Regulations, similar to those contained in section 11 of the Sick Leave Regulations, would relieve her of any obligation to refund for the excess annual leave granted during the calendar year 1940, even though the acceptance of her resignation, effective as of the close of business March 31, 1941, would accomplish the termination of her services in the calendar year 1941.
Your answers to the questions presented herein, for our guidance in this and other similar cases, will be appreciated.
Section 11 of the sick leave regulations (Executive Order No. 8385, dated March 29, 1940, effective March 2, 1940) provides as follows:
In the case of voluntary separation or removal for cause of an employee to whom sick leave has been advanced in an amount in excess of that accumulated, the employee shall refund the amount paid him for the period of such excess, or deduction therefor shall be made from any salary due him or from any amount in the retirement fund to his credit. Such indebtedness shall be charged against the employee on the basis of the salary rate obtaining during the period of advanced sick leave and on the basis of one day's pay for each day of absence on a day upon which the employee would otherwise work and receive pay, such days of absence being exclusive of Sundays which do not occur within a regular tour of duty, holidays, and all nonwork days established by Federal statute or by Executive or administrative order. Absences for fractional parts of a day shall be charged proportionately. This section shall not apply in cases of death, retirement for age or disability, or reduction of force, or in case an employee who is not eligible for retirement is unable to return to duty because of disability, evidence of which shall be supported by an acceptable certificate from a registered practicing physician or other practitioner.
Section 4 (b) of the annual leave regulations (Executive Order No. 8384, dated March 29, 1940, effective March 2, 1940) contains similar exceptions to the rule requiring a charge against employees for overdrawing annual leave.
The general rule stated in these regulations—which regulations have the force and effect of law-is that an employee must be charged for overdrawn sick and/or annual leave. Express exceptions to this general rule are made in cases of (1) death, (2) retirement for age or
disability, (3) reduction of force, or (4) in case an employee who is not eligible for retirement is unable to return to duty because of disability. Exceptions to a general rule prescribed by law, or regulations having the force and effect of law, are required to be strictly construed. 19 Comp. Gen. 397; id. 791. Exception (4) is expressly made applicable only to those who are not eligible for retirement, and may not be broadened by construction to include employees who are eligible for retirement. Compare 18 Comp. Gen. 13, 15, second question and answer.
Accordingly, as Mrs. Hardie was separated from the service by resignation, classed as a voluntary separation, a charge should be raised against her for the overdrawn sick and annual leave in an amount computed in accordance with the regulations.
TRAVELING EXPENSES-STATE EMPLOYEES COOPERATING WITH
The fiscal year 1942 appropriation of the Federal Communications Commission
for traveling expenses in connection with performing the duties imposed by the Communications Act of 1934 is available for the transportation and subsistence expenses of State officers and employees while engaged in cooperative work under agreements deemed necessary and advantageous for
the Commission to enter into with the several States. While State officers and employees whose services the Federal Communications
Commission may utilize under cooperative agreements would not be officers or employees of the United States, the cooperative agreements may provide for payment of their transportation and subsistence expenses either on a commutation basis in accordance with the mileage law of February 14, 1931, as amended, the Subsistence Expense Act of 1926, as amended, and the Standardized Government Travel Regulations, or on an actual expense
basis within proper limitations. Comptroller General Warren to the Chairman, Federal Communications Com
mission, July 15, 1941: I have your letter of June 27, 1941, as follows: The Commission desires to avail itself of the services of certain experts regularly employed by various State regulatory bodies for the purpose of cooperative study with members of this Commission's staff, and in effecting this cooperation a question of payment of expenses out of the Commission's appropriations arises on which the opinion of the Comptroller General would be appreciated.
The specific study to be undertaken at this time is the separation of property investment and expenses jointly incurred for several classes of telephone service, some of which are subject to the jurisdiction of the various States and some of which are under the jurisdiction of this Commission. Initially, it is planned to conduct these studies on an informal basis, although the Commission has under consideration also the possibility of proceeding in a more formal manner through the use of a joint board or boards.
The State commissions have indicated that they will make available to the Commission for the purpose of the informal studies above mentioned, certain of their experts on the basis of payment by this Commission of (1) travel and (2) subsistence of these experts while away from their headquarters and payment by the particular State of the salaries of the employees.
Section 410 (a) of the Communications Act of 1934, as amended, provides for joint board members as the Commission shall provide. Subsection (b) of this section authorizes the Commission to confer with State commissions on matters such as those here involved and authorizes this Commission “to avall itself of such cooperation, services, records, and facilities as may be afforded by any State commission."
Section 4 (g) of the Communications Act authorizes the Commission to "make such expenditures
as may be necessary for the execution of the functions vested in the Commission and as from time to time may be appropriated for by Congress."
The Commission is desiro'is of proceeding as expeditiously as possible in this matter. Accordingly, an expression of opinion from the Comptroller General will be appreciated at the earliest practicable date as to whether or not the (1) travel and (2) subsistence expenses of the persons referred to may be paid from the appropriation for salaries and expenses of this Commission for the fiscal year 1942.
Section 410 of the act of June 19, 1934, 48 Stat. 1098, provides as follows:
(a) The Commission may refer any matter arising in the administration of this act to a joint board to be composed of a member, or of an equal number of members, as determined by the Commission, from each of the States in which the wire or radio communication affected by or involved in the proceeding takes place or is proposed, and any such board shall be vested with the same powers and be subject to the same duties and liabilities as in the case of a member of the Commission when designated by the Commission to hold a hearing as hereinbefore authorized. The action of a joint board shall have such force and effect and its proceedings shall be conducted in such manner as the Commission shall by regulations prescribe. The joint board member or members for each State shall be nominated by the State commission of the State or by the Governor if there is no State commission, and appointed by the Federal Communications Commission. The Commission shall have discretion to reject any nominee. Joint board members shall receive such allowances for expenses as the Commissilon shall provide.
(b) The Commission may confer with any State commission having regulatory jurisdiction with respect to carriers, regarding the relationship between rate structures, accounts, charges, practices, classifications, and regulations of carriers subject to the jurisdiction of such State commission and of the Commission; and the Commission is authorized under such rules and regulations as it shall prescribe to hold joint hearings with any State commission in connection with any matter with respect to which the Commission is authorized to act. The Commission is authorized in the administration of this act to avail itself of such cooperation, services, records, and facilities as may be afforded by any State commission.
The appropriation for the Federal Communications Commission for the fiscal year 1942, contained in Public Law 28, approved April 5, 1941, 55 Stat. 98, is made available, among other things, "for all other authorized expenditures of the Federal Communications Commission in performing the duties imposed by the Communications Act of 1934, approved June 19, 1934, 48 Stat. 1064, *
In decision of September 8, 1924, 4 Comp. Gen. 281, 282, after quoting from an appropriation for the Children's Bureau available for traveling expenses, it was stated
The traveling expense authorized under this act is primarily that of the personnel of the Children's Bureau in connection with the administration of the act. It has, however, been heretofore recognized that Government funds appropriated for traveling expenses are available for the traveling expenses of other than Government officers and employees, upon submission of satisfactory evidence with the accounts of the disbursing officer showing that such use of the funds is absolutely necessary to accomplish the purposes for which the appropriation is made. Decision of August 26, 1924, 4 Comp. Gen. 210, and MS. decision of July 14, 1924. (Italics supplied.] Also, see decision of November 30, 1928, 8 Comp. Gen. 277, holding as follows (quoting from the syllabus) :
The appropriation "General expenses, Children's Bureau" is available for the payment of traveling expenses of persons employed in State departments of public welfare or similar State agencies to Washington and return home for the purpose of attending conferences called by the Children's Bureau in the interest of its work, without the necessity of appointing the State officers or employees as special agents of the Government at a nominal compensation.
In decision of February 26, 1929, 8 Comp. Gen. 465, it was held as follows (quoting from the syllabus):
When a person who is not a Government employee or officer is requested by a proper Federal officer to come to Washington, D. C., for a conference upon official matters, the request to do so stating that his expenses would be paid in accordance with departmental regulations, such person may be reimbursed his actual and necessary expenses of transportation and subsistence not in excess of those permitted by the Standardized Government Travel Regulations. [Italics supplied.]
If, in performance of the duties imposed by the act of June 19, 1934, supra, it be deemed necessary or advantageous for the Federal Communications Commission to enter into cooperative agreements with the several States to pay both the transportation and subsistence expenses of State officers or employees while engaged on cooperative work under such agreements, the appropriation, supra, is available for such payments.
While the employees of the State whose services the Commission proposes to utilize in the manner indicated in your letter would not be officers or employees of the United States, the cooperative agreements legally may provide for payment of their transportation and subsistence expenses either on a commutation basis in accordance with the mileage law of February 14, 1931, 46 Stat. 1103, as amended by the acts of March 3, 1933, 47 Stat. 1516, and April 25, 1940, 54 Stat. 167, and the Subsistence Expense Act of 1926, approved June 3, 1926, 44 Stat. 688, as amended by the act of June 30, 1932, 47 Stat. 405, and the Standardized Government Travel Regulations, or on an actual expense basis within proper limitations.
CONTRACTS-PRICE ADJUSTMENTS-FLUCTUATIONS IN OCEAN
FREIGHT RATES TO PANAMA CANAL
While paragraph GC-46 inserted in certain construction contracts of the Panama
Canal Department of the United States Army, and of the Panama Canal, may not be so construed as to justify adjustments in contract prices for fluctuations in freight rates applicable to deliveries by contractors to the Canal Zone on vessels other than those of The Panama Railroad Steamship Line, this office will not object to a modification of the contracts extending the adjustments to such other vessels, in view of the
Government's interest in obviating delays caused by congestion of shipping facilities, provided the adjustments are limited to shipments on and after
the date of modification, Comptroller General Warren to the Chief of Office, The Panama Canal, July 16,
1941: I have your letter of July 8, transmitting letter of May 31, 1941, from the Acting Governor of The Panama Canal, as follows:
Reference is made to your decision of November 14, 1940, B_13299, concerning the interpretation to be placed upon paragraph GC-46 of General Conditions, made a part of all construction contracts awarded by the Panama Canal Department of the United States Army, on a competitive bid basis. Paragraph GC-46 reads as follows:
“Rates for miscellaneous services and supplies obtained from the Government. The current 'Departmental Tariff' or 'Special Tariff or supplements thereto, containing schedules of rates for services and supplies for the departments and divisions of the Panama Canal, will apply to the contractor and his subcontractors when the services and supplies are available, unless otherwise provided in these specifications for particular services and supplies. For services and supplies not included in the current 'Departmental Tariff' *Special Tariff,' the current commercial tariff, or supplements thereto, containing schedules of rates for services and supplies for shipping and allied interests at the Panama Canal, will apply to the contractor and his subcontractors when the services and supplies are available, unless otherwise provided in these specifications for particular services and supplies. Copies of the tariffs mentioned may be obtained from the Office of the Panama Canal, Balboa Heights, C. Z., or Washington, D. C. All rates so quoted are subject to change without notice.
"It is understood and agreed that the contractor's bids are based in part upon the freight rates prevailing on the Panama Railroad and the Panama Railroad Steamship Line, at the time the award is made and that if such rates are changed at any time during the life of the contract, thereafter each monthly or other periodic or final payment to the contractor shall be increased or decreased in the amount of any consequent increased or decreased cost for freight due to increase or decrease in the freight rates actually paid by the contractor for shipments on account of the contract during the period to which said payment applies."
The provision last quoted above (that relating to adjustment of contract payments on the basis of fluctuation in freight rates) is the one which was construed by you in the decision referred to, and you reached the conclusion that the said provision is for application insofar as carriage by water is concerned, only in the event shipment is made over the Panama Railroad Steamship Line. In reaching that conclusion, it was stated :
“The provision last quoted does not require an adjustment of the contract price in an amount equal to any increase or decrease in freight charges due to changes in the rates of the Panama Railroad and the Panama Railroad Steamship Line. Rather, the provision requires an adjustment—if the rates on the Panama Railroad and the Panama Railroad Steamship Line are changed-in an amount equal to any difference between the rates of the Panama Railroad and the Panama Railroad Steamship Line, at the time of award of a contract, and the rates actually paid by the contractor. From copies of correspondence transmitted with your letter, it appears that contractors are seeking to interpret the provision for adjustment as applicable to shipments over private lines, upon a theory that the adjustment provision applies to 'freight rates actually paid by the contractor, whether paid to the Panama Railroad or the Panama Railroad Steamship Line, or to a private line.
“The paragraph which contains the questioned provision clearly relates to services to be obtained from the Government or from Government agencies, as shown both by the heading and by the context, and such fact affords a strong inference that the adjustment provision was intended to apply only to services so obtained. But even when the adjustment provision is considered apart from the context, it is clear that the provision for adjustment is applicable only when rates of the Panama Railroad or the Panama Railroad Steamship Line are changed during the life of the contract, and then only to the extent of any 'consequent' increased or decreased cost for freight. Manifestly, increases or