A-10779, OCTOBER 30, 1925, 5 COMP. GEN. 302

A-10779: Oct 30, 1925

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DOES NOT HAVE THE EFFECT OF EXTENDING THE TERMS OF THE CLASSIFICATION ACT IN ALL ITS PHASES TO EMPLOYEES OF THE VETERANS' BUREAU OUTSIDE THE DISTRICT OF COLUMBIA. PROVIDED IN EACH CASE THERE IS NO PERSON ALREADY IN THE EMPLOY OF THE BUREAU WHO IS QUALIFIED AND AVAILABLE TO RENDER THE SERVICE. THERE IS NO STATUTORY REQUIREMENT THAT PERSONS APPOINTED TO THE FIELD SERVICE POSITIONS UNDER THE VETERANS' BUREAU SHALL BE APPOINTED TO THE MINIMUM SALARY RATE OF THE GRADE TO WHICH THE POSITIONS HAVE BEEN ALLOCATED. THERE IS NO REQUIREMENT THAT THE "AVERAGE" BE MAINTAINED IN THE FIELD SERVICE. THE VETERANS' BUREAU IN FIXING SALARIES OF ITS FIELD SERVICE EMPLOYEES IS RESTRICTED TO THE SALARY SCHEDULES FIXED BY THE CLASSIFICATION ACT OF 1923.

A-10779, OCTOBER 30, 1925, 5 COMP. GEN. 302

CLASSIFICATION OF CIVILIAN EMPLOYEES - FIELD SERVICE - VETERANS' BUREAU THE WORD "ELSEWHERE" APPEARING IN THE APPROPRIATION ACT PROVIDING FOR PERSONAL SERVICES UNDER THE VETERANS' BUREAU "IN THE DISTRICT OF COLUMBIA AND ELSEWHERE IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923," ACT OF MARCH 3, 1925, 43 STAT. 1210, DOES NOT HAVE THE EFFECT OF EXTENDING THE TERMS OF THE CLASSIFICATION ACT IN ALL ITS PHASES TO EMPLOYEES OF THE VETERANS' BUREAU OUTSIDE THE DISTRICT OF COLUMBIA, BUT ONLY TO THE FIELD SERVICE AS AUTHORIZED BY THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, AS EXTENDED BY THE ACT OF JANUARY 22, 1925, 43 STAT. 764. THERE APPEARS TO BE NO LEGAL OBJECTION TO THE FIXING OF PER DIEM RATES OF PAY FOR CONSULTANTS, FIELD EXPERTS, ETC., IN THE FIELD SERVICE OF THE VETERANS' BUREAU UNDER THE TERMS OF THE ACT OF DECEMBER 6, 1924, AS EXTENDED BY THE ACT OF JANUARY 22, 1925. THE DIRECTOR OF THE VETERANS' BUREAU HAS AUTHORITY TO FIX PER DIEM RATES OF PAY FOR EXPERT WITNESSES APPEARING FOR THE GOVERNMENT BY REGULATION OR SPECIFIC AUTHORIZATION, WITHOUT REGARD TO THE RATES FIXED BY THE CLASSIFICATION ACT, PROVIDED IN EACH CASE THERE IS NO PERSON ALREADY IN THE EMPLOY OF THE BUREAU WHO IS QUALIFIED AND AVAILABLE TO RENDER THE SERVICE. THE DIRECTOR OF THE VETERANS' BUREAU HAS AUTHORITY, IF NECESSARY, TO EMPLOY PERSONAL SERVICES ON A PART-TIME BASIS. THE COMPENSATION SHOULD BE FIXED AT A RATE HAVING THE SAME RELATION TO THE RATE FIXED FOR FULL TIME IN A SIMILAR POSITION WHICH THE TIME GIVEN THE BUREAU SERVICE BEARS TO THE TIME SERVED BY A FULL-TIME EMPLOYEE. A PART-TIME EMPLOYEE WHO DOES NOT WORK FOR THE ENTIRE PERIOD FOR WHICH HE CONTRACTED SHOULD BE PAID PROPORTIONATELY. THERE IS NO STATUTORY REQUIREMENT THAT PERSONS APPOINTED TO THE FIELD SERVICE POSITIONS UNDER THE VETERANS' BUREAU SHALL BE APPOINTED TO THE MINIMUM SALARY RATE OF THE GRADE TO WHICH THE POSITIONS HAVE BEEN ALLOCATED, AND THERE IS NO REQUIREMENT THAT THE "AVERAGE" BE MAINTAINED IN THE FIELD SERVICE. AN EMPLOYEE TRANSFERRED FROM A FIELD SERVICE POSITION TO A POSITION IN THE CENTRAL OFFICE OF THE VETERANS' BUREAU MUST BE TRANSFERRED AT THE MINIMUM SALARY RATE OF THE GRADE TO WHICH TRANSFERRED.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, OCTOBER 30, 1925:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF AUGUST 6, 1925, REQUESTING DECISION WHETHER, IN VIEW OF CERTAIN PROVISIONS IN THE ACTS OF JANUARY 22, 1925, 43 STAT. 764, AND MARCH 3, 1925, ID. 1210, THE VETERANS' BUREAU IN FIXING SALARIES OF ITS FIELD SERVICE EMPLOYEES IS RESTRICTED TO THE SALARY SCHEDULES FIXED BY THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488.

THE PROVISION IN THE ACT OF JANUARY 22, 1925, REFERRED TO IS AS FOLLOWS:

THOSE CIVILIAN POSITIONS IN THE FIELD SERVICES UNDER THE SEVERAL EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS, THE COMPENSATION OF WHICH WAS FIXED OR LIMITED BY LAW BUT ADJUSTED FOR THE FISCAL YEAR 1925 UNDER THE AUTHORITY AND APPROPRIATIONS CONTAINED IN THE ACT ENTITLED "AN ACT MAKING ADDITIONAL APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1925, TO ENABLE THE HEADS OF THE SEVERAL EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS TO ADJUST THE RATES OF COMPENSATION OF CIVILIAN EMPLOYEES IN CERTAIN OF THE FIELD SERVICES," APPROVED DECEMBER 6, 1924, MAY BE PAID UNDER THE APPLICABLE APPROPRIATIONS FOR THE FISCAL YEAR 1926 AT RATES NOT IN EXCESS OF THOSE PERMITTED FOR THEM UNDER THE PROVISIONS OF SUCH ACT OF DECEMBER 6, 1924.

THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, REFERRED TO IN THE PROVISION QUOTED, AUTHORIZED THE ADJUSTMENT BY THE HEADS OF DEPARTMENTS AND ESTABLISHMENTS, INCLUDING THE VETERANS' BUREAU, OF THE COMPENSATION OF CIVILIAN EMPLOYEES IN CERTAIN FIELD SERVICES TO CORRESPOND SO FAR AS MAY BE PRACTICABLE TO THE RATES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923 FOR POSITIONS IN THE DEPARTMENTAL SERVICES IN THE DISTRICT OF COLUMBIA. THE AUTHORITY CONFERRED BY THE ACT WAS LIMITED TO THE FISCAL YEAR 1925. COMP. GEN. 582. THE PROVISION IN THE ACT OF JANUARY 22, 1925, SUPRA, WAS INTENDED TO EXTEND THE AUTHORITY TO COVER THE FISCAL YEAR 1926.

THE ACT OF MARCH 3, 1925, MAKES APPROPRIATION FOR SALARIES AND ADMINISTRATIVE EXPENSES OF THE VETERANS' BUREAU FOR THE FISCAL YEAR 1926, "INCLUDING SALARIES OF PERSONNEL IN THE DISTRICT OF COLUMBIA AND ELSEWHERE IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923.'

THE INCLUSION OF THE WORD "ELSEWHERE" IN THE ABOVE-QUOTED CLAUSE MAY HAVE BEEN FOR THE REASON THAT THE APPROPRIATIONS FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA AND IN THE FIELD SERVICE UNDER THE UNITED STATES VETERANS' BUREAU ARE PROVIDED IN ONE LUMP SUM INSTEAD OF THE GENERAL FORM OF APPROPRIATIONS FOR PERSONAL SERVICES FOR OTHER ESTABLISHMENTS OR DEPARTMENTS OF THE GOVERNMENT. THE CLASSIFICATION ACT OF 1923 IS GENERAL LEGISLATION, AND THE RATES OF COMPENSATION THEREIN FIXED ARE SPECIFICALLY LIMITED TO POSITIONS IN THE DISTRICT OF COLUMBIA. LIKEWISE, THE PROVISION IN THE ACT OF DECEMBER 6, 1924, SUPRA, AS EXTENDED BY THE ACT OF JANUARY 22, 1925, IS, IN A MEASURE, GENERAL LEGISLATION APPLICABLE TO CERTAIN FIELD SERVICES, INCLUDING THAT OF THE UNITED STATES VETERANS' BUREAU. THE CLAUSE APPEARING IN THE APPROPRIATION ACT IS NEITHER GENERAL LEGISLATION NOR SPECIFIC LEGISLATION EXTENDING, MODIFYING, OR REPEALING THE GENERAL TERMS OF THE CLASSIFICATION ACT; AND THE USE OF THE WORD "ELSEWHERE" THEREIN MAY NOT BE CONSIDERED SUFFICIENT TO SHOW AN INTENT TO EXTEND THE TERMS OF THE CLASSIFICATION ACT IN ALL ITS PHASES TO THE EMPLOYEES OF THE UNITED STATES VETERANS' BUREAU OUTSIDE THE DISTRICT OF COLUMBIA. RATHER DOES THE APPROPRIATION CLAUSE CALL ATTENTION TO THE TERMS OF THE CLASSIFICATION ACT WHERE THAT ACT IS GENERALLY APPLICABLE, TO WIT, THE DISTRICT OF COLUMBIA, AND TO APPLY THE TERMS OF THE ACT OF DECEMBER 6, 1924, AS EXTENDED BY THE ACT OF JANUARY 22, 1925, WHERE ITS TERMS MAKE IT APPLICABLE, TO WIT, THE FIELD SERVICE. THE GENERAL QUESTION IS ANSWERED ACCORDINGLY.

THE SPECIFIC QUESTIONS SUBMITTED ARE AS FOLLOWS:

1. THE AUTHORITY OF THE DIRECTOR TO PLACE CONSULTANTS, FIELD EXPERTS, ETC., ON THE PAY ROLL AT A PER DIEM RATE.

2. THE AUTHORITY OF THE DIRECTOR TO PAY A PER DIEM RATE WHEN HIRING EXPERT WITNESSES TO TESTIFY IN CASES IN WHICH THE UNITED STATES IS A PARTY AT INTEREST.

3. THE AUTHORITY OF THE DIRECTOR TO HIRE PART-TIME EMPLOYEES IN THE FIELD.

4. IF THE ABOVE IS ANSWERED IN THE AFFIRMATIVE, ON WHAT BASIS SHOULD PART -TIME EMPLOYEES BE PAID, AND IN THE CASE OF AN EMPLOYEE WHO CONTRACTS TO WORK FOR SO MANY HOURS PER DAY, IF THE EMPLOYEE DOES NOT WORK FOR THE ENTIRE PERIOD OF THE DAY FOR WHICH HE CONTRACTED TO GIVE HIS SERVICES, ON WHAT BASIS WILL PARTIAL PAYMENT BE MADE?

5. IF CLASSIFICATION DOES EXTEND TO THE FIELD, MUST ALL EMPLOYEES BE APPOINTED AT THE MINIMUM SALARY, AND MUST AN AVERAGE OBTAIN?

6. DOES THE EXTENSION OF CLASSIFICATION TO THE FIELD SERVICE SERVE TO ABROGATE THE COMPTROLLER GENERAL'S DECISION OF MAY 27, 1925, REQUIRING EMPLOYEES TRANSFERRED FROM THE FIELD TO CENTRAL OFFICE TO BE TRANSFERRED AT THE MINIMUM SALARY FOR THEIR GRADE?

AND ARE ANSWERED IN THE ORDER IN WHICH STATED, AS FOLLOWS:

1. THERE APPEARS NO LEGAL OBJECTION TO FIXING PER DIEM RATES OF PAY FOR CONSULTANTS, FIELD EXPERTS, ETC., IN THE FIELD SERVICE OF THE UNITED STATES VETERANS' BUREAU. WITH RESPECT TO THE FIXING OF RATES OF COMPENSATION FOR FIELD POSITIONS UNDER THE ACTS OF DECEMBER 6, 1924, AND JANUARY 22, 1925, SEE 4 COMP. GEN. 625, 755; ID. 1077, AND 5 COMP. GEN. 73. YOU WILL NOTE THAT THE MAXIMUM PER DIEM RATE OF COMPENSATION AUTHORIZED IS $20.83 1/3.

2. IT IS UNDERSTOOD THAT AN EXPERT WITNESS IS HIRED TO TESTIFY IN INDIVIDUAL CASES OR IN A CLASS OF CASES. SUCH HIRING WOULD NOT APPEAR TO BE A "SPECIFIC CIVILIAN OFFICE OR EMPLOYMENT" WITHIN THE MEANING OF THE CLASSIFICATION ACT, WHICH DEFINES "POSITION" AS A "SPECIFIC CIVILIAN OFFICE OR EMPLOYMENT.' THE HIRING OF AN EXPERT WITNESS TO TESTIFY IN A SPECIFIC CASE WOULD NOT CREATE A POSITION OR FILL A POSITION ALREADY EXISTING. THEREFORE, THERE BEING NO POSITION TO BE ALLOCATED, THE CLASSIFICATION ACT DOES NOT APPLY TO SUCH HIRING. YOU ARE ADVISED, THEREFORE, THAT THE DIRECTOR HAS AUTHORITY IN THE EXERCISE OF HIS ADMINISTRATIVE DISCRETION TO FIX PER DIEM RATES FOR EXPERT WITNESSES BY REGULATION OR SPECIFIC AUTHORIZATION, PROVIDED, IN EACH CASE, THERE IS NO PERSON ALREADY IN THE EMPLOY OF THE BUREAU WHO IS QUALIFIED AND AVAILABLE TO RENDER THE SERVICE. SEE 4 COMP. GEN. 1017.

3. IN CASES WHERE IT IS FOUND NECESSARY SERVICES MAY BE OBTAINED UNDER SPECIAL CONTRACTS OR LETTERS OF APPOINTMENT FOR LIMITED OR SPECIAL SERVICE, THE RATE OF COMPENSATION TO BE BASED UPON THE TIME ENGAGED IN SERVICE FOR THE BUREAU AND PROPORTIONATELY LESS THAN THE AUTHORIZED RATE FOR FULL TIME FOR THE SAME CLASS OF SERVICE. SEE 3 COMP. GEN. 854.

4. THE BASIS ON WHICH PART-TIME EMPLOYEES SHOULD BE PAID IS THE COMPENSATION FOR FULL-TIME EMPLOYEES IN A POSITION WITH SIMILAR DUTIES AND RESPONSIBILITIES; THAT IS, THE PART-TIME POSITION SHOULD BE ALLOCATED TO THE PROPER CLASS AND GRADE AS DETERMINED BY THE DUTIES AND RESPONSIBILITIES OF THE POSITION. THE COMPENSATION SHOULD BE FIXED AT A RATE HAVING THE SAME RELATION TO THE RATE FIXED BY THE CLASSIFICATION ACT FOR FULL-TIME IN A SIMILAR POSITION WHICH THE TIME GIVEN TO THE BUREAU SERVICE BEARS TO THE TIME SERVED BY A FULL-TIME EMPLOYEE. A PART-TIME EMPLOYEE WHO DOES NOT WORK FOR THE ENTIRE PERIOD FOR WHICH HE CONTRACTED SHOULD ALSO BE PAID PROPORTIONATELY.

5. AS THE GENERAL TERMS OF THE CLASSIFICATION ACT HAVE NOT BEEN EXTENDED TO THE FIELD SERVICE, THIS QUESTION IS ANSWERED IN THE NEGATIVE. ATTENTION IS ALSO INVITED TO SECTION 2 OF THE ACT OF MARCH 3, 1925, 43 STAT. 1212, IN WHICH ACT THE APPROPRIATIONS FOR THE VETERANS' BUREAU FOR THE FISCAL YEAR 1926 APPEAR, WHICH PROVIDES THAT THE AVERAGE PROVISION SHALL APPLY ONLY TO PAYMENTS FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA.

6. THE DECISION OF MAY 27, 1925, 4 COMP. GEN. 1003, IS IN FULL FORCE AND EFFECT. THEREFORE IT MUST BE HELD THAT AN EMPLOYEE TRANSFERRED FROM THE FIELD TO THE CENTRAL OFFICE OF THE VETERANS' BUREAU MUST BE TRANSFERRED AT THE MINIMUM SALARY OF THE GRADE TO WHICH TRANSFERRED.