B-31747, JANUARY 20, 1943, 22 COMP. GEN. 682

B-31747, JANUARY 20, 1943, 22 COMP. GEN. 682

COMPENSATION - ADDITIONAL - ACT OF DECEMBER 22, 1942 - LIBRARY OF CONGRESS "SUNDAY OPENING" EMPLOYEES PERSONS ENGAGED UNDER THE " SUNDAY OPENING" ITEM IN THE LEGISLATIVE BRANCH APPROPRIATION ACT, 1943, FOR SUNDAY AND HOLIDAY WORK AT THE LIBRARY OF CONGRESS ARE "EMPLOYEES IN OR UNDER THE LEGISLATIVE * * * BRANCH/ES)," AS WELL AS "CIVILIAN EMPLOYEES IN OR UNDER THE UNITED STATES GOVERNMENT," AND, AS SUCH, COME WITHIN THE 10 PERCENT ADDITIONAL COMPENSATION PROVISIONS OF THE ACT OF DECEMBER 22, 1942, EVEN THOUGH THEIR BASIC SALARY RATES ARE SUBJECT TO ADJUSTMENT BY THE LIBRARIAN OF CONGRESS.

COMPTROLLER GENERAL WARREN TO THE LIBRARIAN OF CONGRESS, JANUARY 20, 1943:

I HAVE YOUR LETTER OF JANUARY 12, 1943, AS FOLLOWS:

REFERENCE IS MADE TO PUBLIC LAW 821, 77TH CONGRESS, PROVIDING THAT ADDITIONAL COMPENSATION, AMOUNTING TO 10 PERCENT OF EARNED BASIC COMPENSATION NOT IN EXCESS OF $2900 PER ANNUM AND NOT CAUSING AN AGGREGATE COMPENSATION IN EXCESS OF $5000 PER ANNUM, SHALL BE PAID TO EMPLOYEES IN OR UNDER THE LEGISLATIVE AND JUDICIAL BRANCHES.

THE ANNUAL APPROPRIATION FOR THE LIBRARY OF CONGRESS INCLUDES AN ITEM FOR " SUNDAY OPENING" AS FOLLOWS: "TO ENABLE THE LIBRARY OF CONGRESS TO BE KEPT OPEN FOR REFERENCE USE ON SUNDAYS AND ON HOLIDAYS WITHIN THE DISCRETION OF THE LIBRARIAN, INCLUDING THE EXTRA SERVICES OF EMPLOYEES AND THE SERVICES OF ADDITIONAL EMPLOYEES UNDER THE LIBRARIAN, AT RATES TO BE FIXED BY THE LIBRARIAN.' PERSONS EMPLOYED UNDER THIS APPROPRIATION ARE PAID AT PER DIEM RATES FOR THE SUNDAYS AND HOLIDAYS SERVED, SUCH PER DIEM RATES BEING FIXED BY THE LIBRARIAN. THE QUESTION ARISES WHETHER THE PERSONS SO EMPLOYED ARE "EMPLOYEES" WITHIN THE MEANING OF PUBLIC LAW 821 AS USED IN THE PHRASE "EMPLOYEES IN OR UNDER THE LEGISLATIVE AND JUDICIAL BRANCHES.' IT MAY BE NOTED IN THIS CONNECTION THAT PRIOR TO THE ENACTMENT OF PUBLIC LAW 821, THE LIBRARIAN HAD AUTHORITY TO FIX THE RATES OF PAY OF THESE EMPLOYEES AND THAT THIS AUTHORITY IS NOT AFFECTED BY THE ACT; CONSEQUENTLY HE STILL HAS AUTHORITY BOTH TO INCREASE AND TO LOWER THESE RATES. IT IS TO BE OBSERVED HOWEVER, THAT IF THEY SHOULD BE MANDATORILY INCREASED, A DEFICIENCY WILL PROBABLY BE THEREBY INCURRED.

THE " LEGISLATIVE BRANCH APPROPRIATION ACT, 1943" APPROVED JUNE 8, 1942, PUBLIC LAW 600, 56 STAT. 345, CONTAINS, UNDER THE GENERAL HEADING," LIBRARY OF CONGRESS," AN ITEM, AS FOLLOWS:

SUNDAY OPENING

SALARIES: TO ENABLE THE LIBRARY OF CONGRESS TO BE KEPT OPEN FOR REFERENCE USE ON SUNDAYS AND ON HOLIDAYS WITHIN THE DISCRETION OF THE LIBRARIAN, INCLUDING THE EXTRA SERVICES OF EMPLOYEES AND THE SERVICES OF ADDITIONAL EMPLOYEES UNDER THE LIBRARIAN, AT RATES TO BE FIXED BY THE LIBRARIAN, $26,018.

UNQUESTIONABLY, THE PERSONNEL EMPLOYED BY THE LIBRARIAN OF CONGRESS UNDER AUTHORITY OF THAT APPROPRIATION ITEM--- INVOLVING THE USE OF APPROPRIATED FUNDS--- ARE "CIVILIAN EMPLOYEES IN OR UNDER THE UNITED STATES GOVERNMENT" AND, ALSO, ARE "EMPLOYEES IN OR UNDER THE LEGISLATIVE * * * BRANCH/ES)," WITHIN THE MEANING OF THOSE QUOTED WORDS APPEARING IN THE JOINT RESOLUTION OF DECEMBER 22, 1942, PUBLIC LAW 821, 56 STAT. 1068. SEE 12 COMP. GEN. 245; QUESTION AND ANSWER 7, DECISION OF JANUARY 8, 1943, B-31488, 22 COMP. GEN. 627, TO THE POSTMASTER GENERAL. COMPARE QUESTION AND ANSWER 5, DECISION OF JULY 14, 1932, 12 COMP. GEN. 30, 34; 12 ID. 220; AND DECISION OF JANUARY 13, 1943, B 31619, 22 COMP. GEN. 649, TO YOU.

WHILE IT IS TRUE AS YOU STATE THAT YOU RETAIN AUTHORITY TO ADJUST THE BASIC SALARY RATES OF EMPLOYEES ENGAGED UNDER THE APPROPRIATION ITEM " SUNDAY OPENING," NEVERTHELESS, THE EMPLOYEES ARE ENTITLED TO ADDITIONAL COMPENSATION IN THE AMOUNT OF 10 PERCENT OF THEIR BASIC COMPENSATION UNDER THE PROVISIONS OF THE LAW HERE INVOLVED. AS TO THE INCURRING OF A DEFICIENCY BY REASON OF PAYING THE ADDITIONAL COMPENSATION DIRECTED BY SAID LAW, SEE DECISION OF DECEMBER 22, 1942, B 31220, 22 COMP. GEN. 570, TO THE CLERK OF THE HOUSE OF REPRESENTATIVES.