B-179697, JAN 30, 1974, 53 COMP GEN 515

B-179697, JAN 30, 1974, 53 COMP GEN 515

WITNESSES - GOVERNMENT EMPLOYEES - STATUS EMPLOYEES WHO WERE REQUESTED BY A UNITED STATES ATTORNEY TO GIVE TESTIMONY BEFORE A FEDERAL GRAND JURY AND IN THE TRIAL OF CRIMINAL CASES WHILE SUSPENDED FROM THEIR POSITIONS, WERE NOT PLACED IN A PAY OR DUTY STATUS BY REASON OF THE REQUEST EVEN THOUGH THE TESTIMONY BEFORE THE GRAND JURY WAS IN REGARD TO THEIR OFFICIAL DUTIES. ALTHOUGH THE EMPLOYEES ARE NOT ENTITLED TO SALARY FOR THE PERIOD OF TIME THEY SPENT TESTIFYING, THEY MAY BE PAID AND RETAIN ANY WITNESS FEES THAT WOULD BE PAYABLE TO NON- GOVERNMENT EMPLOYEES APPEARING AS WITNESSES IN SUCH PROCEEDINGS.

TO THE ADMINISTRATOR, DRUG ENFORCEMENT ADMINISTRATION, JANUARY 30, 1974:

YOUR LETTER OF SEPTEMBER 7, 1973, REQUESTED OUR OPINION REGARDING THE PAYMENT OF SALARY OR WITNESS FEES TO CERTAIN AGENTS OF THE DRUG ENFORCEMENT ADMINISTRATION. IN QUESTION IS WHETHER SUCH SALARY OR WITNESS FEES ARE PAYABLE FOR TESTIMONY GIVEN BEFORE A GRAND JURY AND IN THE TRIAL OF CRIMINAL CASES DURING A PERIOD THAT THE AGENTS WERE TEMPORARILY SUSPENDED FROM THEIR POSITIONS.

THE FACTS AS STATED IN YOUR LETTER INDICATE THAT SEVEN AGENTS WERE SUSPENDED FOR A PERIOD OF 30 DAYS AS A RESULT OF IMPROPER ACTIVITIES REGARDING ENTRIES AND SEARCHES IN THE ST. LOUIS AREA. DURING THE EFFECTIVE PERIOD OF THE 30-DAY SUSPENSIONS, THE AGENTS WERE REQUESTED BY THE UNITED STATES ATTORNEY TO GIVE TESTIMONY BEFORE A FEDERAL GRAND JURY CONCERNING THE SAME INCIDENTS WHICH LED TO THEIR SUSPENSIONS. SUBSEQUENTLY, SOME OF THE AGENTS WERE INDICTED BY THE GRAND JURY AS A RESULT OF THEIR ACTIVITIES. DURING THE PERIODS OF SUSPENSION THE AGENTS ALSO GAVE TESTIMONY IN THE TRIAL OF CRIMINAL CASES WHICH WERE TOTALLY UNRELATED TO THEIR SUSPENSIONS OR TO THE GRAND JURY INQUIRY.

BASED ON THE FOREGOING YOU ASK THE FOLLOWING QUESTIONS:

(1) SHOULD THE AGENTS BE PAID FOR THE TIME THEY SPENT TESTIFYING, WHILE THEY WERE SUSPENDED, BEFORE THE FEDERAL GRAND JURY REGARDING THE SAME INCIDENTS FOR WHICH THEY WERE SUSPENDED?

(2) SIMILARLY, SHOULD THE AGENTS BE PAID FOR THE TIME THEY SPENT TESTIFYING IN CRIMINAL CASES UNRELATED TO THEIR SUSPENSIONS OR THE GRAND JURY INQUIRY?

(3) WHAT METHOD SHOULD BE USED TO COMPENSATE THE AGENTS - RETURN TO DUTY, SEPARATE PAY, OR WITNESS FEES?

THE BASIC STATUTORY PROVISIONS GOVERNING THE SERVICE OF FEDERAL EMPLOYEES AS WITNESSES OR JURORS AND THE DESIGNATION OF CERTAIN WITNESS OR JURY SERVICE AS OFFICIAL DUTY IS CONTAINED IN SECTION 6322 OF TITLE 5, U.S. CODE, WHICH PROVIDES AS FOLLOWS:

SEC 6322. LEAVE FOR JURY OR WITNESS SERVICE; OFFICIAL DUTY STATUS FOR CERTAIN WITNESS SERVICE.

(A) AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE (EXCEPT AN INDIVIDUAL WHOSE PAY IS DISBURSED BY THE SECRETARY OF THE SENATE OR THE CLERK OF THE HOUSE OF REPRESENTATIVES) OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS ENTITLED TO LEAVE, WITHOUT LOSS OF, OR REDUCTION IN, PAY, LEAVE TO WHICH HE OTHERWISE IS ENTITLED, CREDIT FOR TIME OR SERVICE, OR PERFORMANCE OF EFFICIENCY RATING, DURING A PERIOD OF ABSENCE WITH RESPECT TO WHICH HE IS SUMMONED, IN CONNECTION WITH A JUDICIAL PROCEEDING, BY A COURT OR AUTHORITY RESPONSIBLE FOR THE CONDUCT OF THAT PROCEEDING, TO SERVE -

(1) AS A JUROR; OR

(2) AS A WITNESS ON BEHALF OF A PARTY OTHER THAN THE UNITED STATES, THE DISTRICT OF COLUMBIA, OR A PRIVATE PARTY;

IN THE DISTRICT OF COLUMBIA, A STATE, TERRITORY, OR POSSESSION OF THE UNITED STATES INCLUDING THE COMMONWEALTH OF PUERTO RICO, THE CANAL ZONE, OR THE TRUST TERRITORY OF THE PACIFIC ISLANDS. FOR THE PURPOSE OF THIS SUBSECTION, "JUDICIAL PROCEEDING" MEANS ANY ACTION, SUIT, OR OTHER JUDICIAL PROCEEDING, INCLUDING ANY CONDEMNATION, PRELIMINARY, INFORMATIONAL, OR OTHER PROCEEDING, OF A JUDICIAL NATURE, BUT DOES NOT INCLUDE AN ADMINISTRATIVE PROCEEDING.

(B) AN EMPLOYEE AS DEFINED BY SECTION 2105 OF THIS TITLE (EXCEPT AN INDIVIDUAL WHOSE PAY IS DISBURSED BY THE SECRETARY OF THE SENATE OR THE CLERK OF THE HOUSE OF REPRESENTATIVES) OR AN INDIVIDUAL EMPLOYED BY THE GOVERNMENT OF THE DISTRICT OF COLUMBIA IS PERFORMING OFFICIAL DUTY DURING THE PERIOD WITH RESPECT TO WHICH HE IS SUMMONED, OR ASSIGNED BY HIS AGENCY, TO -

(1) TESTIFY OR PRODUCE OFFICIAL RECORDS ON BEHALF OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA; OR

(2) TESTIFY IN HIS OFFICIAL CAPACITY OR PRODUCE OFFICIAL RECORDS ON BEHALF OF A PARTY OTHER THAN THE UNITED STATES OR THE DISTRICT OF COLUMBIA.

(C) THE CIVIL SERVICE COMMISSION MAY PRESCRIBE REGULATIONS FOR THE ADMINISTRATION OF THIS SECTION.

ALTHOUGH THE CIVIL SERVICE COMMISSION HAS ISSUED NO REGULATIONS IMPLEMENTING THAT SECTION, THE ACCEPTANCE OF WITNESS FEES IS DISCUSSED IN BOOK 630, SUBCHAPTER S10-3F OF FPM SUPPLEMENT 990-2 AS FOLLOWS:

F. FEES. EMPLOYEES OF THE UNITED STATES AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA SHALL NOT BE PAID WITNESS FEES WHEN TESTIFYING ON BEHALF OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA; HOWEVER, THEY SHALL BE PAID THEIR REGULAR SALARIES (PLUS ANY APPROPRIATE OVERTIME PAY). THE TIME SERVED AS WITNESSES IS OFFICIAL DUTY AND CANNOT BE DEDUCTED FROM ANNUAL LEAVE (5 U.S.C. 5537(A) AND 6322(B)). AN EMPLOYEE WHO IS CALLED AS A WITNESS FOR THE UNITED STATES OR THE DISTRICT OF COLUMBIA GOVERNMENT WHILE ABSENT FROM HIS DUTIES ON LEAVE WITHOUT PAY FOR THE ENTIRE PERIOD HE SERVES AS A WITNESS MAY ACCEPT AND RETAIN WITNESS FEES (10 COMP. GEN. 329).

THE CITED DECISION, 10 COMP. GEN. 329 (1931), HELD THAT AN EMPLOYEE, WHO WHILE IN A LEAVE WITHOUT PAY STATUS IN LIEU OF SUSPENSION PENDING REVIEW OF A CHARGE OF DISOBEDIENCE WAS SUBPOENAED AND REQUIRED TO TESTIFY REGARDING MATTERS RELATING TO HIS OFFICIAL DUTIES, WAS NOT TO BE PLACED IN A PAY STATUS BY VIRTUE OF THE SUBPOENA. THEREFORE, IT WAS HELD THAT ALTHOUGH HE WAS NOT ENTITLED TO HIS REGULAR SALARY FOR THE PERIOD OF TIME HE SPENT TESTIFYING WHILE IN A NONPAY AND NONDUTY STATUS, HE WAS ENTITLED TO WITNESS FEES AND MILEAGE THE SAME AS "AN EMPLOYEE WHO HAD BEEN SEPARATED FROM THE SERVICE." PROVISIONS FOR WITNESS FEES APPLICABLE IN THAT DECISION, SECTION 3 OF THE ACT OF APRIL 26, 1926, 44 STAT. 324, ARE SIMILAR TO THOSE NOW CONTAINED IN 28 U.S.C. 1821.

A SUSPENSION, AS DEFINED IN SUBCHAPTER S1-6 OF FPM SUPPLEMENT 752-1, IS "AN ACTION PLACING AN EMPLOYEE IN A TEMPORARY NONDUTY AND NONPAY STATUS FOR DISCIPLINARY REASONS OR FOR OTHER REASONS PENDING INQUIRY." THEREFORE, SINCE THE AGENTS INVOLVED IN THE PRESENT SITUATION WERE IN A NONPAY AND NONDUTY STATUS DURING THE PERIOD OF THEIR SUSPENSIONS, WE BELIEVE THAT THE RULE IN 10 COMP. GEN. 329, SUPRA, IS APPLICABLE. THIS IS SO EVEN THOUGH THE AGENTS WERE "REQUESTED" TO TESTIFY RATHER THAN SUBPOENAED.

THE LANGUAGE OF 5 U.S.C. 6322(B) PROVIDES OF COURSE THAT AN EMPLOYEE IS PERFORMING AN OFFICIAL DUTY WHEN HE IS SUMMONED OR ASSIGNED BY HIS AGENCY TO TESTIFY OR PRODUCE OFFICIAL RECORDS ON BEHALF OF THE UNITED STATES OR TO TESTIFY IN HIS OFFICIAL CAPACITY OR PRODUCE OFFICIAL RECORDS ON BEHALF OF PARTIES OTHER THAN THE UNITED STATES. WE DO NOT FEEL, HOWEVER, THAT THIS PROVISION REQUIRES A RESULT DIFFERENT FROM THAT HERE REACHED. THE LEGISLATIVE HISTORY OF 5 U.S.C. 6322(B) DEMONSTRATES CLEARLY THAT ITS PURPOSE WAS TO TRANSFER TO TITLE 5 OF THE U.S.C. PREVIOUSLY EXISTING AUTHORITY IN TITLE 28 WHICH RELATED TO THE OFFICIAL DUTY STATUS OF EMPLOYEES ACTING ON BEHALF OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA AND TO EXTEND THAT SAME STATUS TO EMPLOYEES ACTING ON BEHALF OF PARTIES OTHER THAN THE UNITED STATES OR THE DISTRICT OF COLUMBIA. THUS, THE PURPOSE OF 5 U.S.C. 6322(B) WAS SIMPLY TO RESTATE CERTAIN EXISTING AUTHORITY AND TO EXTEND THAT AUTHORITY TO AN ADDITIONAL SITUATION. SEE S. REPT. NO. 91-1371, 8, AND H. REPT. NO. 91-414, 4. IN VIEW OF THIS HISTORY WE DO NOT FEEL THAT THE LANGUAGE IN 5 U.S.C. 6322(B) REQUIRES THE REINSTATEMENT TO DUTY OF THESE SUSPENDED EMPLOYEES. THIS POSITION IS IN HARMONY WITH OUR PREVIOUS RULING REGARDING SIMILAR LANGUAGE IN THE CASE OF JURY SERVICE WHERE, IN DECIDING APPROPRIATE PAYMENTS, THE DETERMINING FACTOR WAS THE DUTY STATUS OF THE EMPLOYEES AT THE TIME THEY WERE CALLED TO PERFORM THE SERVICE. 20 COMP. GEN. 276 (1940).

ACCORDINGLY, DURING THEIR SUSPENSIONS, THE AGENTS MAY NOT BE RESTORED TO DUTY FOR THE PERIODS THEY SPENT TESTIFYING BEFORE EITHER THE GRAND JURY OR IN THE CRIMINAL CASES FOR THE PURPOSE OF PAYING THEM THEIR REGULAR SALARIES OR THEIR TRAVEL EXPENSES UNDER 5 U.S.C. 5751. THEY ARE, HOWEVER, ENTITLED TO BE PAID AND TO RETAIN ANY WITNESS FEES THAT WOULD BE PAYABLE TO NON-GOVERNMENT EMPLOYEES APPEARING AS WITNESSES IN SUCH PROCEEDINGS.