B-136552, AUGUST 22, 1958, 38 COMP. GEN. 142
Highlights
CIVILIAN PERSONNEL - WITNESSES FOR THE UNITED STATES - OVERTIME COMPENSATION EMPLOYEES WHO ARE REQUIRED TO BE WITNESSES IN THEIR OFFICIAL CAPACITIES FOR THE UNITED STATES ON SCHEDULED NONWORKDAYS OUTSIDE OF THEIR BASIC 40- HOUR WORKWEEK ARE NOT PRECLUDED FROM RECEIVING OVERTIME COMPENSATION PROVIDED IN SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. WAS NOT INCLUDED IN THE ENACTMENT INTO POSITIVE LAW OF 28 U.S.C. 1823 (A). THEY ARE ENTITLED TO CALL-BACK OVERTIME OF TWO HOURS UNDER SECTION 203 OF THE 1945 ACT. THE LETTER AND THE ENCLOSURES ESTABLISH THAT THE PAYEES NAMED ON THE VOUCHER ARE EMPLOYEES AT THE PENITENTIARY WHO WERE CALLED TO TESTIFY ON SCHEDULED NONWORKDAYS OUTSIDE OF THEIR BASIC 40-HOUR WORKWEEK REGARDING AN ESCAPE OF A FEDERAL PRISONER.
B-136552, AUGUST 22, 1958, 38 COMP. GEN. 142
CIVILIAN PERSONNEL - WITNESSES FOR THE UNITED STATES - OVERTIME COMPENSATION EMPLOYEES WHO ARE REQUIRED TO BE WITNESSES IN THEIR OFFICIAL CAPACITIES FOR THE UNITED STATES ON SCHEDULED NONWORKDAYS OUTSIDE OF THEIR BASIC 40- HOUR WORKWEEK ARE NOT PRECLUDED FROM RECEIVING OVERTIME COMPENSATION PROVIDED IN SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 911, SINCE THE PROHIBITORY LANGUAGE IN SECTION 850, R.S., WHICH BARRED ANY "COMPENSATION IN ADDITION TO SALARY" TO EMPLOYEE WITNESSES, WAS NOT INCLUDED IN THE ENACTMENT INTO POSITIVE LAW OF 28 U.S.C. 1823 (A). ALTHOUGH EMPLOYEES WHO PERFORMED TRAVEL BETWEEN THE HOURS OF 7:00 A.M. AND 9:00 A.M. TO TAKE EVIDENCE FROM THEIR HEADQUARTERS TO A COURT WHERE THEY APPEARED AS WITNESSES FOR THE UNITED STATES ON A NONWORKDAY OUTSIDE OF THEIR BASIC 40-HOUR WORKWEEK MIGHT BE PRECLUDED BY THE RESTRICTIVE TERMS OF SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 912B, FROM RECEIVING OVERTIME COMPENSATION FOR TIME IN A TRAVEL STATUS, THEY ARE ENTITLED TO CALL-BACK OVERTIME OF TWO HOURS UNDER SECTION 203 OF THE 1945 ACT, 5 U.S.C. 912A, ON ACCOUNT OF REPORTING TO HEADQUARTERS TO PICK UP EVIDENCE TO BE PRODUCED IN COURT.
TO THE ATTORNEY GENERAL, AUGUST 22, 1958:
BY LETTER OF JUNE 18, 1958, THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL REQUESTED OUR ADVANCE APPROVAL OF A VOUCHER ( PAYROLL FOR PERSONAL SERVICES) COVERING THE PROPOSED PAYMENT OF OVERTIME COMPENSATION TO TWO EMPLOYEES OF THE U.S. PENITENTIARY, MCNEIL ISLAND, WASHINGTON, ON ACCOUNT OF THEIR APPEARANCE IN COURT AT TACOMA, WASHINGTON, AS WITNESSES IN THEIR OFFICIAL CAPACITY ON BEHALF OF THE UNITED STATES.
THE LETTER AND THE ENCLOSURES ESTABLISH THAT THE PAYEES NAMED ON THE VOUCHER ARE EMPLOYEES AT THE PENITENTIARY WHO WERE CALLED TO TESTIFY ON SCHEDULED NONWORKDAYS OUTSIDE OF THEIR BASIC 40-HOUR WORKWEEK REGARDING AN ESCAPE OF A FEDERAL PRISONER. THE EMPLOYEES WERE REQUIRED TO REPORT TO THE PENITENTIARY AT 7 A.M. ON THE MORNING OF THE SCHEDULED APPEARANCE IN COURT, PICK UP CERTAIN ARTICLES (EXTRA CLOTHING, ETC.) CONSTITUTING EVIDENCE OF ATTEMPTED ESCAPE, AND APPEAR IN COURT AT 9 A.M. THE PURPOSE OF THEIR TESTIMONY WAS TO IDENTIFY THE ARTICLES AND ESTABLISH CONNECTION WITH THE ESCAPE ATTEMPT. TRAVEL FROM THE PENITENTIARY TO COURT WAS ACCOMPLISHED BY BOAT AND GOVERNMENT AUTOMOBILE. THE 8 1/2 HOURS FOR WHICH PAYMENT IS PROPOSED CONSTITUTES THE TIME FROM 7 A.M. UNTIL :30 P.M., WHEN THE EMPLOYEES WERE EXCUSED AS WITNESSES, WHICH IS EXCLUSIVE OF A ONE-HOUR LUNCH PERIOD AND RETURN TRAVEL TIME.
THE GENERAL RULE IS THAT AN EMPLOYEE WHO IS REQUIRED TO SERVE AS A WITNESS IN BEHALF OF THE UNITED STATES CONCERNING MATTERS INVOLVING HIS REGULAR EMPLOYMENT IS IN A DUTY STATUS WHILE SO SERVING. 24 COMP. GEN. 225. ON THE OTHER HAND, OUR DECISIONS UNDER SECTION 850 OF THE REVISED STATUTES, AS AMENDED, 28 U.S.C. (1946 USED.) 604, HELD THAT THE LANGUAGE OF THE STATUTE,"BUT NO * * * COMPENSATION IN ADDITION TO HIS SALARY SHALL IN ANY CASE BE ALLOWED," HAVING REFERENCE TO EMPLOYEE WITNESSES TESTIFYING FOR THE GOVERNMENT, CONSTITUTED A BAR TO PAYMENT OF OVERTIME COMPENSATION WHEN OVERTIME WAS NOT PART OF THE EMPLOYEE'S REGULAR ADMINISTRATIVE WORKWEEK. 26 COMP. GEN. 151; 27 ID. 83. HOWEVER, SINCE, AS POINTED OUT BY THE ASSISTANT ATTORNEY GENERAL, THE FORMER PROHIBITORY LANGUAGE IS NOT INCLUDED IN THE CURRENT PROVISIONS OF LAW AS CODIFIED IN 28 U.S.C. (1952 USED.) 1823 (A), THERE NOW IS NO BASIS FOR DENYING OVERTIME COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 911, IN THE CASE OF EMPLOYEES PERFORMING DUTY AS WITNESSES FOR THE UNITED STATES IN THEIR OFFICIAL CAPACITY. CF. 37 COMP. GEN. ; B-135212, APRIL 21, 1958 (INVOLVING CANAL ZONE POLICEMEN), TWO COPIES OF WHICH ARE ENCLOSED.
IN VIEW OF THE RESTRICTIVE TERMS OF SECTION 204 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 5 U.S.C. 912B, CONCERNING TIME IN A TRAVEL STATUS FOR OVERTIME COMPENSATION PURPOSES, A QUESTION AROSE IN CONNECTION WITH THE TIME BETWEEN 7 A.M. AND 9 A.M. CONSUMED IN TRAVEL FROM THE PENITENTIARY TO COURT. HOWEVER, UNDER SECTION 203 OF THE 1945 ACT, AS AMENDED, 5 U.S.C. 912A, THE EMPLOYEES ARE ENTITLED TO CALL-BACK OVERTIME OF 2 HOURS ON ACCOUNT OF THE ACT OF REPORTING TO THE PENITENTIARY TO PICK UP THE EVIDENCE TO BE PRODUCED IN COURT; THEREFORE, ASIDE FROM THE MATTER OF TRAVEL TIME, THE EMPLOYEES APPEAR TO BE ENTITLED TO OVERTIME COMPENSATION FOR THE TIME FROM 7 A.M. TO 9 A.M. 37 COMP. GEN. 1, SUPRA.
THE SUBJECT VOUCHER WHICH, TOGETHER WITH THE SUPPORTING PAPERS, IS HEREWITH RETURNED MAY BE PROCESSED FOR PAYMENT IF OTHERWISE CORRECT.