B-2569, APRIL 3, 1939, 18 COMP. GEN. 763

B-2569, APRIL 3, 1939, 18 COMP. GEN. 763

DISTRICT OF COLUMBIA - METROPOLITAN POLICE - LEAVES OF ABSENCE IN EXCESS OF 30 DAYS - INJURY WHILE NOT "IN THE ACTUAL PERFORMANCE OF DUTY" A MEMBER OF THE DISTRICT OF COLUMBIA METROPOLITAN POLICE, WHO, AFTER REPORTING TO THE POLICE CLINIC WHILE ON SICK LEAVE AND AFTER BEING DESIGNATED FOR RETURN TO DUTY THAT DAY, WAS INJURED WHILE RETURNING HOME BY A TAXI-CAB DRIVER WHO WAS ARRESTED BY THE OFFICER AND FOUND GUILTY ON THE TRAFFIC CHARGE INVOLVED, MAY NOT BE GRANTED SICK LEAVE, BECAUSE OF THE INJURY INCURRED, IN EXCESS OF 30 DAYS, SECTION 9 OF THE POLICE MANUAL APPROVED BY THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA AUTHORIZING, INSOFAR AS HERE PERTINENT, SICK LEAVE IN EXCESS OF 30 DAYS IN ANY ONE CALENDAR YEAR ONLY WHEN IN DIRECT CONSEQUENCE OF INJURY RECEIVED "IN THE ACTUAL PERFORMANCE OF Y," AND THE ARRESTING OF THE DRIVER BY THE OFFICER, IMMEDIATELY FOLLOWING THE INJURY, NOT PLACING THE OFFICER IN A DUTY STATUS RETROACTIVELY TO THE TIME OF THE INJURY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, APRIL 3, 1939:

I HAVE YOUR LETTER OF MARCH 18, 1939, AS FOLLOWS:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA WISH TO SUBMIT FOR YOUR CONSIDERATION THE FOLLOWING SET OF FACTS INVOLVING THE PROPRIETY OF SICK LEAVE WITH PAY IN EXCESS OF 30 DAYS, REQUESTED BY A MEMBER OF THE METROPOLITAN POLICE.

ON OCTOBER 19, 1938, THE DIRECTOR OF THE WOMEN'S BUREAU, SUBMITTED A FORM OF REPORT OF INJURY TO MEMBER OF METROPOLITAN POLICE FORCE ON HELEN A. STANBERGER, WHEREIN THE FOLLOWING STATEMENT OF FACTS WAS OUTLINED:

"THIS OFFICER WAS ON SICK LEAVE AND HAD REPORTED TO THE POLICE CLINIC AS INSTRUCTED. ON LEAVING THE CLINIC TO RETURN HOME, WHEN SHE CROSSED THE INTERSECTION AT K STREET WITH THE TRAFFIC SIGNALS, A TAXI DRIVER BACKED INTO THE INTERSECTION AND BUMPED HER. THE DRIVER, TRUMAN FAWSETT HENNING, WAS CHARGED BY THE OFFICER WITH FAILING TO YIELD RIGHT OF WAY TO A PEDESTRIAN, POSTED COLLATERAL AND APPEARED IN COURT OCTOBER 20, 1938. THE JUDGE FOUND THE MAN GUILTY AND FINED HIM $10.

"IN VIEW OF THE FACT THAT THE OFFICER WAS BEING RETURNED TO DUTY THE SAME DAY AS THE ACCIDENT OCCURRED, AND THAT SHE PERFORMED HER DUTY IN THE MATTER, IT SEEMS TO ME SHE SHOULD BE CLASSIFIED AS "ON DUTY.'"

THE FOLLOWING NOTATION DATED OCTOBER 21, 1938, OF DR. W. W. SAGER, A MEMBER OF THE BOARD OF POLICE AND FIRE SURGEONS, APPEARS AT THE FOOT OF THE AFOREMENTIONED REPORT:

"SEEN AT CLINIC THIS DATE. CONTUSION RIGHT LEG AND RIGHT KNEE. SPRAINED BACK.'

WHILE SICK LEAVE FOR THE FIRE DEPARTMENT IS COVERED BY STATUTE (37 STAT. 960), THE MATTER OF EXCESS SICK LEAVE FOR THE POLICE DEPARTMENT IS COVERED BY SECTION 9 (PAGE 101) OF THE POLICE MANUAL, APPROVED BY THE COMMISSIONERS DECEMBER 29, 1936, EFFECTIVE APRIL 1, 1937, WHICH PROVIDES:

"THE BOARD OF SURGEONS, ACTING AS SUCH BOARD, OR MEMBERS THEREOF IN THEIR INDIVIDUAL CAPACITY AS SUCH MEMBERS, SHALL DETERMINE AND SHALL BE THE ONLY JUDGES AS TO WHAT AMOUNT OF SICK LEAVE, IF ANY, SHALL BE GRANTED ANY MEMBER OF THE FORCE: PROVIDED, HOWEVER, THAT IN NO CASE WILL SICK TIME BE ALLOWED ANY MEMBER OF THE FORCE IN EXCESS OF 30 DAYS IN ANY ONE CALENDAR YEAR, EXCEPT WHEN THE SAME IS IN DIRECT CONSEQUENCE OF INJURY RECEIVED (OR DISEASE CONTRACTED) IN THE ACTUAL PERFORMANCE OF DUTY, OR IN CASE OF A CONTAGIOUS DISEASE WHERE QUARANTINE BECOMES NECESSARY, AND THEN ONLY AFTER THE SURGEON OR SURGEONS HAVE STATED THE CAUSE OF SUCH ABSENCE, CERTIFIED TO ITS LEGALITY, RECOMMENDED ITS ALLOWANCE, AND THE SAME HAS BEEN APPROVED BY THE COMMISSIONERS.'

THE COMPTROLLER OF THE TREASURY (24 COMP. DEC. 143) HELD IN SUBSTANCE THAT THE RULES AND REGULATIONS OF THE METROPOLITAN POLICE HAD THE FORCE AND EFFECT OF LAW.

IN 5 COMP. GEN. 686 THE FACT WAS BROUGHT OUT AND URGED IN SUPPORT OF THE REQUEST FOR A REVIEW OF A CLAIM UNDER THE POLICEMEN AND FIREMEN'S RELIEF FUND,"THAT POLICEMEN AND FIREMEN ARE ON DUTY 24 HOURS DAILY AND EVERY DAY IN THE YEAR, BEING EXCUSED FROM ACTIVE PARTICIPATION IN DUTIES FOR NECESSARY REST, SLEEP, AND FOOD, AND THAT CONSEQUENTLY ANY DISABILITY MUST OF NECESSITY HAVE DEVELOPED WHILE ON ACTIVE DUTY.' YOUR OFFICE HELD IN THAT DECISION THAT THE INTERPRETATION QUOTED WAS TOO BROAD.

THE AUDITOR, D.C., ON DECEMBER 15, 1938, ADVISED THE BOARD OF POLICE AND FIRE SURGEONS THAT THE FACTS IN MISS STANBERGER'S CASE CLEARLY INDICATED THAT THE INJURY WAS NOT CONTRACTED IN THE ACTUAL DISCHARGE OF DUTY; THAT THEREFORE SICK LEAVE IN EXCESS OF 30 DAYS WAS NOT AUTHORIZED; THAT THE INJURY COMPLAINED OF, AS REPORTED IN THE INCIDENTAL, OCCURRED AFTER SHE HAD REPORTED TO THE CLINIC AND WAS RETURNING HOME; THAT, IN THE OPINION OF THE AUDITOR, MISS STANBERGER WAS NOT ACTING IN THE PERFORMANCE OF OFFICIAL DUTY AS A POLICE OFFICER AT THE TIME OF HER INJURY, AND THE FACT, AS ALLEGED, THAT HER STATUS CHANGED IMMEDIATELY UPON APPREHENDING AND ARRESTING THE CAB DRIVER WOULD NOT, NUNC PRO TUNC, PLACE HER IN A STATUS OF DISCHARGING HER OFFICIAL DUTY.

TO THE OPINION OF THE AUDITOR THE DIRECTOR OF THE WOMEN'S BUREAU TOOK EXCEPTION, AS FOLLOWS:

"THIS OFFICE HAS BEEN ADVISED ONLY BY TELEPHONE OF THE RULING OF THE AUDITOR'S OFFICE IN THIS MATTER. FROM A CONVERSATION WITH A MEMBER OF THE AUDITOR'S OFFICE I UNDERSTAND THAT THE TIME IS BEING DISALLOWED ON THE GROUND THAT THE OFFICER WAS STRUCK BY THE TAXICAB BEFORE SHE STARTED TO TAKE ACTION AGAINST THE CAB DRIVER FOR VIOLATION OF THE TRAFFIC REGULATION AND THAT CONSEQUENTLY SHE WAS OFFICIALLY OFF DUTY, BEING AT THAT TIME CARRIED ON SICK LEAVE. AS THIS IS A MATTER WHICH VERY SERIOUSLY AFFECTS THE WHOLE PERSONNEL OF THE DEPARTMENT, IT SEEMS TO ME THAT THE DECISION OF THE AUDITOR IN THIS MATTER SHOULD BE APPEALED.

"I AM ENTIRELY IN SYMPATHY WITH ANY MOVE TO HOLD THE PERSONNEL OF THE DEPARTMENT TO A REASONABLE AMOUNT OF SICK LEAVE AND HAVE IN THE PAST BROUGHT TO THE ATTENTION OF THE BOARD OF SURGEONS CASES WHERE IT SEEMED TO ME EXCESSIVE SICK LEAVE WAS BEING ALLOWED. BUT AS THIS RULING NOW HANDED DOWN PERTAINS TO THE QUESTION OF INJURIES TO OFFICERS WHO ARE PERFORMING POLICE DUTIES IN CONNECTION WITH SOME VIOLATION OF LAW BUT WHO DID NOT HAVE THEIR ATTENTION CALLED TO THE VIOLATION UNTIL THE PERSONS INVOLVED HAD IN SOME WAY ASSAULTED THE OFFICER, IT SEEMS TO ME THE TECHNICALITY IS TOO GREAT TO BE JUST. IF, FOR EXAMPLE, AN OFFICER WERE OFF DUTY IN PLAIN CLOTHES, WALKING ALONG THE STREET AND A SHOOTING AFFRAY STARTED, A STRAY BULLET HITTING THE OFFICER SIMULTANEOUSLY WITH THE BEGINNING OF THE FIGHT AND HE THEN PROCEEDED TO GO INTO ACTION AND DO WHAT WAS NECESSARY, AND WAS SUBSEQUENTLY ILL BECAUSE OF THE WOUND, UNDER THIS RULING HE WOULD NOT BE ALLOWED HIS SICK LEAVE BECAUSE HE WAS "OFF DUTY" AT THE TIME. IT SEEMS TO ME THIS IS QUITE A DIFFERENT MATTER FROM THAT OF OFFICERS WHO ARE OFF DUTY AND WHO BECOME ILL OR ARE INJURED IN PURSUIT OF THEIR OWN PRIVATE AFFAIRS.'

BECAUSE OF THESE CONFLICTING VIEWS, THE COMMISSIONERS WOULD APPRECIATE A RULING FROM YOU AS TO WHETHER, UNDER THE CIRCUMSTANCES HEREIN OUTLINED, MISS STANBERGER IS ENTITLED TO SICK LEAVE IN EXCESS OF 30 DAYS, SHE HAVING RECEIVED 32 DAYS' SICK LEAVE IN 1938 PRIOR TO THE INJURY.

THE ONLY QUESTION PRESENTED APPEARS TO BE WHETHER THE ABSENCE OF HELEN A. STANBERGER, MEMBER OF THE METROPOLITAN POLICE OF THE DISTRICT OF COLUMBIA, FROM DUTY ON ACCOUNT OF SICKNESS IN EXCESS OF 30 DAYS WAS "IN DIRECT CONSEQUENCE OF INJURY RECEIVED * * * IN THE ACTUAL PERFORMANCE OF DUTY.' THE FACTS SHOW SHE RECEIVED INJURY AT A TIME WHEN SHE WAS ABSENT FROM DUTY ON SICK LEAVE. IN DECISION 5 COMP. GEN. 685, 687, CITED BY YOU, IT WAS HELD AS FOLLOWS:

* * * THE STATUTORY LIMITATION PRECLUDES PAYMENT FOR MEDICAL OR SURGICAL SERVICES, OTHER THAN SUCH AS CAN BE RENDERED BY THE BOARD OF POLICE AND FIRE SURGEONS, ALSO HOSPITAL TREATMENT, EXCEPT IN CASES OF "INJURY RECEIVED OR DISEASE CONTRACTED IN THE ACTUAL DISCHARGE OF HIS DUTY," AND IT APPEARS CLEAR THAT BY NO PROPER CONSTRUCTION OF THE PHRASE "IN THE ACTUAL DISCHARGE OF HIS DUTY" COULD IT BE MADE TO INCLUDE EATING, SLEEPING, OR REST PERIODS, OR PERIODS OF ANNUAL LEAVE, SICK LEAVE, DAYS OFF DUTY. ETC. 10 COMP. DEC. 789.

THE FACT THAT THE POLICE OFFICER, IMMEDIATELY FOLLOWING HER INJURY, PERFORMED OFFICIAL DUTY BY ARRESTING THE MAN WHO CAUSED HER INJURY MAY NOT REASONABLY BE CONSIDERED AS PLACING HER IN A DUTY STATUS RETROACTIVELY TO THE TIME OF THE INJURY. THE PERFORMANCE OF SUCH DUTY MAY HAVE BEEN THE DIRECT RESULT OF THE INJURY BUT IT MAY NOT BE SAID THAT THE NECESSITY FOR HER CONTINUED ABSENCE FROM DUTY WAS THE DIRECT RESULT OF AN INJURY RECEIVED IN THE ACTUAL PERFORMANCE OF DUTY.

IT IS THE VIEW OF THIS OFFICE, THEREFORE, THAT UNDER THE QUOTED REGULATIONS HELEN A. STANBERGER IS NOT ENTITLED TO SICK LEAVE OF ABSENCE WITH PAY IN EXCESS OF 30 DAYS SOLELY ON ACCOUNT OF THE INJURY IN QUESTION.