B-69907, OCTOBER 9, 1947, 27 COMP. GEN. 194

B-69907, OCTOBER 9, 1947, 27 COMP. GEN. 194

EXPERTS AND CONSULTANTS - EMPLOYMENT WITHOUT COMPENSATION; TRAVELING EXPENSES THE OCCUPANT OF A POSITION THE COMPENSATION FOR WHICH IS FIXED BY OR PURSUANT TO LAW MAY WAIVE HIS ORDINARY RIGHT TO SUCH COMPENSATION AND THEREAFTER BE FOREVER ESTOPPED FROM CLAIMING AND RECEIVING THE SALARY PREVIOUSLY WAIVED, IF THERE BE SOME APPLICABLE PROVISION OF LAW AUTHORIZING THE ACCEPTANCE OF SERVICE WITHOUT COMPENSATION. COMPARE 26 COMP. GEN. 956. IN THE ABSENCE OF A STATUTE SPECIFICALLY FIXING THE AMOUNT TO BE PAID IN THE PARTICULAR CASE, AN EXPERT OR CONSULTANT WHOSE SERVICES ARE PROCURED BY CONTRACT ON A TEMPORARY OR INTERMITTENT BASIS WITHOUT REGARD TO CIVIL SERVICE OR CLASSIFICATION LAWS, IN ACCORDANCE WITH SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, MAY AGREE TO SERVE WITHOUT COMPENSATION AND THEREAFTER BE ESTOPPED FROM ASSERTING ANY VALID CLAIM FOR COMPENSATION ON ACCOUNT OF SERVICES PERFORMED. AN EXPERT OR CONSULTANT EMPLOYED BY CONTRACT ON A TEMPORARY OR INTERMITTENT BASIS TO SERVE WITHOUT COMPENSATION, IN ACCORDANCE WITH SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, IS WITHIN THE PURVIEW OF THE PROVISIONS OF SECTION 5 OF SAID ACT RELATING TO THE PAYMENT OF TRAVELING EXPENSES AND PER DIEM IN LIEU OF SUBSISTENCE OF PERSONS SERVING WITHOUT COMPENSATION, RATHER THAN THE PROVISIONS RELATING TO PERSONS EMPLOYED INTERMITTENTLY AS EXPERTS OR CONSULTANTS AND COMPENSATED ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, BUREAU OF THE BUDGET, OCTOBER 9, 1947:

I HAVE YOUR LETTER OF SEPTEMBER 30, 1947, REQUESTING DECISION AS TO WHETHER AN AGENCY WHICH HAS BEEN AUTHORIZED BY AN APPROPRIATION OR OTHER ACT TO EMPLOY THE TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS, BY CONTRACT, IN ACCORDANCE WITH SECTION 15 OF THE ACT APPROVED AUGUST 2, 1946, PUBLIC LAW 600, 60 STAT. 810, MAY EMPLOY SUCH EXPERTS OR CONSULTANTS WITHOUT COMPENSATION. ADDITIONAL QUESTION ASKED IS WHETHER A PERSON SO EMPLOYED WITHOUT COMPENSATION MAY BE PAID TRAVEL EXPENSES AND A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE AS AUTHORIZED BY SECTION 5 OF THE ACT APPROVED AUGUST 2, 1946, 60 STAT. 808.

ALTHOUGH THE ACCEPTANCE OF VOLUNTARY SERVICES--- THAT IS, SERVICES FURNISHED ON THE INITIATIVE OF THE PARTY RENDERING THE SAME WITHOUT REQUEST FROM, OR AGREEMENT WITH, THE UNITED STATES--- IS PROHIBITED BY SECTION 3679, REVISED STATUTES, AS AMENDED, THERE IS NO PROVISION OF LAW WHICH PURPORTS TO PREVENT THE ACCEPTANCE OF GRATUITOUS SERVICES, IF OTHERWISE LAWFUL, WHERE THE SERVICES ARE RENDERED BY ONE WHO, UPON BEING APPOINTED AS A GOVERNMENT EMPLOYEE WITHOUT COMPENSATION, AGREES IN WRITING AND IN ADVANCE THAT HE WAIVES ANY AND ALL CLAIMS AGAINST THE GOVERNMENT ON ACCOUNT OF SUCH SERVICE. IT IS ONLY WHERE THE COMPENSATION FOR A PARTICULAR POSITION IS FIXED BY OR PURSUANT TO LAW THAT THE OCCUPANT OF THE POSITION MAY NOT WAIVE HIS ORDINARY RIGHT TO THE COMPENSATION FIXED FOR THE POSITION. IN SUCH A CASE, THE ONLY LAWFUL SALARY IS THE SALARY FIXED BY LAW FOR THE POSITION. HOWEVER, EVEN WHERE THE COMPENSATION FOR A PARTICULAR POSITION IS FIXED BY OR PURSUANT TO LAW, THE OCCUPANT OF THE POSITION MAY WAIVE HIS ORDINARY RIGHT TO THE COMPENSATION FIXED FOR THE POSITION AND THEREAFTER FOREVER BE ESTOPPED FROM CLAIMING AND RECEIVING THE SALARY PREVIOUSLY WAIVED, IF THERE BE SOME APPLICABLE PROVISION OF LAW AUTHORIZING THE ACCEPTANCE OF SERVICES WITHOUT COMPENSATION. SEE, GENERALLY, THE DECISION OF JUNE 27, 1947, B-66664, 26 COMP. GEN. 956, TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, AND DECISIONS THEREIN CITED.

SECTION 15 OF PUBLIC LAW 600 PROVIDES:

THE HEAD OF ANY DEPARTMENT, WHEN AUTHORIZED IN AN APPROPRIATION OR OTHER ACT, MAY PROCURE THE TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES OF THE EXPERTS OR CONSULTANTS OR ORGANIZATIONS THEREOF, INCLUDING STENOGRAPHIC REPORTING SERVICES, BY CONTRACT, AND IN SUCH CASES SUCH SERVICE SHALL BE WITHOUT REGARD TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS (BUT AS TO AGENCIES SUBJECT TO THE CLASSIFICATION ACT AT RATES NOT IN EXCESS OF THE PER DIEM EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER THE CLASSIFICATION ACT, UNLESS OTHER RATES ARE SPECIFICALLY PROVIDED IN THE APPROPRIATION OR OTHER LAW) AND, EXCEPT IN THE CASE OF STENOGRAPHIC REPORTING SERVICES BY ORGANIZATIONS, WITHOUT REGARD TO SECTION 3709, REVISED STATUTES, AS AMENDED BY THIS ACT.

UNDER THAT SECTION OF THE STATUTE, WHEN THE TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES OF AN EXPERT OR CONSULTANT ARE AUTHORIZED IN AN APPROPRIATION OR OTHER ACT TO BE PROCURED BY CONTRACT, THE PROCUREMENT OF SUCH SERVICE MAY BE HAD WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS. IN THE ABSENCE OF SOME ACT SPECIFICALLY FIXING THE AMOUNT TO BE PAID AN EXPERT OR CONSULTANT, THERE IS NO LAW OTHER THAN THE CLASSIFICATION LAW WHICH WOULD REQUIRE THAT A RATE OF COMPENSATION BE FIXED FOR A POSITION OCCUPIED BY AN EXPERT OR CONSULTANT. SINCE THE CLASSIFICATION LAW PARTICULARLY IS MADE INAPPLICABLE TO THE PROCURING OF SERVICES OF EXPERTS OR CONSULTANTS ON A TEMPORARY OR INTERMITTENT BASIS IN ACCORDANCE WITH SECTION 15 OF PUBLIC LAW 600, SUPRA, IT FOLLOWS THAT, GENERALLY, AN EXPERT OR CONSULTANT WHOSE SERVICES ARE THUS USED TEMPORARILY OR INTERMITTENTLY, MAY AGREE TO SERVE WITHOUT COMPENSATION, OR AT ANY COMPENSATION UP TO THE MAXIMUM, WHICH, IN AN AGENCY SUBJECT TO THE CLASSIFICATION ACT, IS ANY AMOUNT NOT IN EXCESS OF THE PER DIEM EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER THE CLASSIFICATION ACT, UNLESS OTHER RATES SPECIFICALLY ARE PROVIDED IN THE APPROPRIATION OR OTHER LAW. ACCORDINGLY, AN EXPERT OR CONSULTANT WHOSE SERVICES ARE PROCURED ON A TEMPORARY OR INTERMITTENT BASIS, MAY AGREE TO SERVE WITHOUT COMPENSATION, AND THEREAFTER HE WOULD BE ESTOPPED FROM ASSERTING ANY VALID CLAIM FOR COMPENSATION ON ACCOUNT OF THE SERVICE PERFORMED. CF. 27 COMP. DEC. 131, 132; 30 OP. ATTY. GEN. 51, 56; AND DECISION OF JUNE 27, 1947, B-66664, SUPRA. THIS ANSWERS YOUR FIRST QUESTION.

SECTION 5 OF PUBLIC LAW 600, SUPRA, PROVIDES:

PERSONS IN THE GOVERNMENT SERVICE EMPLOYED INTERMITTENTLY AS CONSULTANTS OR EXPERTS AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS MAY BE ALLOWED TRAVEL EXPENSES WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, INCLUDING PER DIEM IN LIEUOF SUBSISTENCE WHILE AT PLACE OF SUCH EMPLOYMENT, IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, OF FEBRUARY 14, 1931, AS AMENDED BY THIS ACT, AND PERSONS SERVING WITHOUT COMPENSATION OR AT $1 PER ANNUM MAY BE ALLOWED, WHILE AWAY FROM THEIR HOMES OR REGULAR PLACES OF BUSINESS, TRANSPORTATION IN ACCORDANCE WITH SAID REGULATIONS AND SAID ACT OF FEBRUARY 14, 1931, AS SO AMENDED, AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE EN ROUTE AND AT PLACE OF SUCH SERVICE OR EMPLOYMENT UNLESS A HIGHER RATE IS SPECIFICALLY PROVIDED IN AN APPROPRIATION OR OTHER ACT.

THE FIRST PART OF THAT SECTION APPLIES ONLY TO A CONSULTANT OR EXPERT EMPLOYED INTERMITTENTLY AND RECEIVING COMPENSATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS. AS TO SUCH A PERSON, TRAVEL EXPENSES AND A PER DIEM IN LIEU OF SUBSISTENCE ARE ALLOWABLE WHILE AWAY FROM HIS HOME OR REGULAR PLACE OF BUSINESS AND WHILE AT HIS PLACE OF EMPLOYMENT IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED, AND THE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103, AS AMENDED BY SECTION 3 OF PUBLIC LAW 600, 60 STAT. 807. THE SECOND PART OF THE SECTION APPLIES TO A PERSON SERVING WITHOUT COMPENSATION OR AT $1 PER ANNUM. AS TO SUCH A PERSON, TRAVEL EXPENSES ARE ALLOWABLE WHILE AWAY FROM HIS HOME OR PLACE OF BUSINESS IN ACCORDANCE WITH THE STANDARDIZED GOVERNMENT TRAVEL REGULATIONS, AND THE ACT OF FEBRUARY 14, 1931, 46 STAT. 1103, AS AMENDED BY SECTION 3 OF PUBLIC LAW 600, 60 STAT. 807, AND, UNLESS A HIGHER RATE SPECIFICALLY IS PROVIDED IN AN APPROPRIATION OR OTHER ACT, A PER DIEM ALLOWANCE IN LIEU OF SUBSISTENCE NOT IN EXCESS OF $10 MAY BE PAID BOTH EN ROUTE AND AT THE PLACE OF SERVICE OR EMPLOYMENT. AN EXPERT OR CONSULTANT EMPLOYED TO SERVE WITHOUT COMPENSATION MAY BE PAID TRAVEL EXPENSES AND A PER DIEM IN LIEU OF SUBSISTENCE IN ACCORDANCE WITH THE SECOND PART OF THAT SECTION. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.