A-25121, NOVEMBER 19, 1928, 8 COMP. GEN. 261

A-25121, NOVEMBER 19, 1928, 8 COMP. GEN. 261

COMPENSATION - DOUBLE IN DETERMINING WHETHER THE COMBINED AMOUNT OF MORE THAN ONE SALARY RECEIVED IN MORE THAN ONE POSITION UNDER THE GOVERNMENT EXCEEDS THE SUM OF $2,000 PER ANNUM, THE MAXIMUM AUTHORIZED BY THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, THE BASIS IS THE RATE PER ANNUM OF THE COMBINED SALARIES AND NOT THE AGGREGATE AMOUNT ACTUALLY RECEIVED DURING A PORTION OF THE YEAR, WHETHER THE MEASURE OF TIME FOR PAYMENT OF SALARY UNDER ONE OR MORE POSITIONS IS PER ANNUM, PER DIEM, OR PER HOUR, IT BEING NECESSARY TO DETERMINE IN EACH INSTANCE THE PER ANNUM RATE EQUIVALENT TO THE RATE BASED ON A MEASURE OF TIME LESS THAN A YEAR. (MODIFIED BY 8 COMP. GEN. 487.)

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, NOVEMBER 19, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF NOVEMBER 12, 1928 (M 24799), REQUESTING DECISION AS TO THE PROPER BASIS FOR COMPUTING THE COMBINED SALARY RATE OF DAVID B. STAFFORD, JR., IN TWO POSITIONS.

IT APPEARS THAT MR. STAFFORD IS MAKING CLAIM FOR THE AMOUNT TO HIS CREDIT IN THE CIVIL RETIREMENT FUND, AND THERE HAS ARISEN THE QUESTION WHETHER HE IS INDEBTED TO THE UNITED STATES BY REASON OF "RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM" IN CONTRAVENTION OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582.

THE PERIOD INVOLVED WAS FROM AUGUST 25, 1926, TO FEBRUARY 28, 1927, DURING WHICH HE WAS EMPLOYED IN TWO POSITIONS, ONE UNDER THE UNITED STATES VETERANS' BUREAU AT THE RATE OF $1,260 PER ANNUM, RECEIVING A TOTAL OF $425.54, AND THE OTHER AS A SUBSTITUTE POSTAL CLERK IN THE UNITED STATES POST OFFICE, LOUISVILLE, KY., AT THE RATE OF 65 CENTS PER HOUR, RECEIVING A TOTAL OF $158.60 FOR 244 HOURS' SERVICE DURING THE PERIOD INVOLVED.

BY LETTER DATED OCTOBER 29, 1928 (COL-0238271-CG), FROM THIS OFFICE THE COMMISSIONER OF PENSIONS WAS REQUESTED TO ISSUE CHECK FOR THE AMOUNT IN THE RETIREMENT FUND TO THE CREDIT OF THIS FORMER EMPLOYEE PAYABLE TO THE UNITED STATES AND TO FORWARD THE SAME TO THIS OFFICE FOR DEPOSIT IN THE TREASURY IN PARTIAL LIQUIDATION OF THE INDEBTEDNESS OF THE FORMER EMPLOYEE TO THE GOVERNMENT IN THE AMOUNT OF $158.60, THE TOTAL AMOUNT RECEIVED AS A SUBSTITUTE POSTAL CLERK, ON THE BASIS THAT HIS COMBINED SALARY IN THE TWO POSITIONS OCCUPIED WAS IN EXCESS OF THE AMOUNT AUTHORIZED BY LAW.

YOU SUGGEST THAT THERE WAS NO VIOLATION OF THE 1916 STATUTE UNDER THE APPLICATION THEREOF MADE IN OPINION OF THE SECRETARY OF THE INTERIOR, DATED SEPTEMBER 4, 1923, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

IN COMPUTING THE ANNUAL RATE OF PAY OF A SUBSTITUTE POSTAL CLERK, EMPLOYED DURING A PORTION OF THE YEAR AT A CERTAIN HOURLY RATE WHILE ACTUALLY EMPLOYED, THE PERIODS OF SUCH EMPLOYMENT BEING UNCERTAIN AND IRREGULAR, IT IS PROPER TO DETERMINE THE AMOUNT THAT WOULD HAVE BEEN EARNED FOR A FULL YEAR UPON THE BASIS OF THE ACTUAL AMOUNT RECEIVED DURING THE PERIOD OF THE EMPLOYMENT.

IT WOULD APPEAR THAT YOU REGARD THIS RULE AS SUPPORTED BY TWO DECISIONS OF THE COMPTROLLER OF THE TREASURY REPORTED AT 24 COMP. DEC. 350; ID. 396. THE FIRST OF THE CITED DECISIONS INVOLVED EMPLOYEES WORKING AT NIGHT ON A PIECEWORK BASIS AND THE PRINCIPLE WAS ANNOUNCED AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE MAXIMUM COMPENSATION OF GOVERNMENT EMPLOYEES TEMPORARILY EMPLOYED AFTER WORKING HOURS ON A PIECEWORK BASIS IN ANOTHER DEPARTMENT OR ESTABLISHMENT SHOULD BE SO FIXED THAT THE RATE PER ANNUM COMBINED WITH THE EMPLOYEE'S REGULAR COMPENSATION WILL NOT EXCEED THE AMOUNT ALLOWED BY LAW.

THE PRINCIPLE THUS STATED IN THE DECISION IS DIRECTLY CONTRARY TO THAT STATED BY THE SECRETARY OF THE INTERIOR. THE SECOND OF THE CITED DECISIONS INVOLVED NIGHT EMPLOYMENT AT A SPECIFIC RATE PER HOUR WITH A SPECIFIC LIMITATION OF THE NUMBER OF HOURS AND IS NOT APPLICABLE IN THE INSTANT MATTER. THE FOLLOWING PRINCIPLE WAS STATED:

WHETHER COMPENSATION IS WITHIN THE PROHIBITION OF THE ACT OF MAY 10, 1916, AS AMENDED, IS TO BE DETERMINED BY THE COMPENSATION PER ANNUM, NOT BY THE LIMITATION TO A MAXIMUM AMOUNT WHICH MAY BE EARNED IN LESS THAN A YEAR.

IT IS UNDERSTOOD THAT THERE IS NO LAW OR REGULATION SO LIMITING THE NUMBER OF HOURS A SUBSTITUTE POSTAL CLERK MAY WORK DURING A DAY OR YEAR THAT HE COULD NOT RECEIVE MORE THAN $2.05 A DAY OR $740 A YEAR. ON THE CONTRARY, IT IS UNDERSTOOD THAT THEY ARE SUBJECT TO CALL WHEN NEEDED AT ANY TIME DURING THE ENTIRE YEAR, AND MAY BE REQUIRED OR PERMITTED TO WORK EIGHT HOURS A DAY. THEREFORE, NEITHER OF THE DECISIONS CITED BY YOU SUPPORT THE RULE ANNOUNCED BY THE SECRETARY OF THE INTERIOR.

IT HAS BEEN UNIFORMLY HELD THAT THE LIMITATION IN THE STATUTES OF 1916, SUPRA, HAS REFERENCE TO THE RATE OF THE COMBINED SALARIES RATHER THAN TO THE AGGREGATE AMOUNT RECEIVED DURING THE YEAR, AND THAT NO PAYMENT OF A PART OF A SALARY IS AUTHORIZED IF THE ANNUAL RATE TAKEN WITH THE SALARY OF ANY OTHER POSITION OR POSITIONS HELD BY THE EMPLOYEE EXCEEDS THE LIMITS FIXED BY THE STATUTE. IT IS IMMATERIAL ON WHAT MEASURE OF TIME THE SALARY IS BASED, WHETHER PER ANNUM, PER DIEM, PER HOUR, OR PIECEWORK IF THE REMUNERATION CONSTITUTES SALARY AS DISTINGUISHED FROM FEES. THE SALARY IN EACH INSTANCE MUST BE REDUCED TO OR COMPUTED ON AN ANNUAL BASIS TO DETERMINE WHETHER THERE HAS BEEN A VIOLATION OF THE STATUTE. FOR INSTANCE, IN DECISION OF OCTOBER 26, 1923, 3 COMP. GEN. 260, IT WAS HELD (QUOTING FROM THE SYLLABUS):

EMPLOYMENT OF THE SAME PERSON AS LABORER AND AS CLERK AT THE SAME TIME WHEN THE COMBINED SALARIES EXCEED AN AGGREGATE RATE OF $2,000 PER ANNUM IS PROHIBITED BY THE ACT OF MAY 10, 1916, 39 STAT. 120, IT BEING IMMATERIAL THAT BY REASON OF THE INTERMITTENT CHARACTER OF THE EMPLOYMENT THE TOTAL PAY ACTUALLY RECEIVED PER ANNUM DOES NOT AMOUNT TO $2,000.

SEE, ALSO, 4 COMP. GEN. 521. THE RULE HAS BEEN APPLIED AS LATE AS SEPTEMBER 20, 1928, IN DECISION ADDRESSED TO THE CIVIL SERVICE COMMISSION, A-24419, IN A CASE INVOLVING A PERSON RECEIVING COMBINED SALARY RATE OF A SUBSTITUTE RAILWAY MAIL CLERK AT $1,850 PER ANNUM AND A SUBSTITUTE LETTER CARRIER AT 65 CENTS PER HOUR, BOTH RATES HAVING BEEN ESTABLISHED BY LAW.

THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1059, PROVIDES THAT THE PAY OF SUBSTITUTE POSTAL CLERKS AT FIRST AND SECOND CLASS POST OFFICES SHALL BE AT THE RATE OF 65 CENTS PER HOUR. FOR COMPUTING OVERTIME AND EXTRA PAY FOR NIGHT WORK FOR POSTAL CLERKS, EXCEPT RAILWAY MAIL CLERKS, 306 DAYS PER ANNUM AND EIGHT HOURS PER DAY IS THE BASIS. SEE 7 COMP. GEN. 779. THEREFORE, THE SAME BASIS MAY BE TAKEN FOR COMPUTING THE PER ANNUM EQUIVALENT OF THE HOURLY RATE OF SUBSTITUTE POSTAL CLERKS, WHICH AMOUNTS TO $1,591.20 PER ANNUM. THIS RATE, TOGETHER WITH THE RATE OF $1,260 PER ANNUM RECEIVED AS A CLERK UNDER THE VETERANS' BUREAU, EXCEEDS THE PER ANNUM RATE OF $2,000, THE MAXIMUM AUTHORIZED BY LAW.

IN THE ABSENCE OF AN ELECTION BY THE EMPLOYEE, IT IS PRESUMED THAT HE WOULD ELECT TO RETAIN THE COMPENSATION UNDER THE POSITION WHICH WOULD GIVE HIM THE GREATER SUM. THEREFORE, THE FORMER EMPLOYEE IN THIS INSTANCE IS INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $158.60, THE SALARY ACTUALLY RECEIVED AS A SUBSTITUTE POSTAL CLERK. THE REQUEST CONTAINED IN THE LETTER OF OCTOBER 29, 1928, IS RENEWED.