A-12590, MARCH 26, 1926, 5 COMP. GEN. 763

A-12590: Mar 26, 1926

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SHOULD HAVE BEEN ON THE BASIS OF THE TOTAL AMOUNT TO WHICH THE EMPLOYEE WOULD HAVE BEEN ENTITLED HAD HE WORKED FULL TIME. THE COMPENSATION PAID THE EMPLOYEE IN QUESTION WAS AT THE RATE OF $20 PER DIEM. 000 PER ANNUM IS THE MAXIMUM SALARY RATE PRESCRIBED BY THE CLASSIFICATION ACT FOR GRADE P. IS HEREBY TRANSFERRED TO AUTOMOTIVE ENGINEER AT $20 PER DIEM (TOTAL COMPENSATION NOT TO EXCEED $5. TO TAKE EFFECT WHEN HE SHALL HAVE ENTERED ON DUTY. ON WHICH DATE HE WILL TAKE THE OATH OF OFFICE PRESCRIBED BY SECTIONS 1757 OF THE REVISED STATUTES OF THE UNITED STATES. THE FOLLOWING ADMINISTRATIVE EXPLANATION OF THIS TRANSFER AND APPOINTMENT AND PAYMENTS THEREUNDER IS MADE: THE EMPLOYMENT OF MR. KNOX IS FOR PART-TIME SERVICE ONLY.

A-12590, MARCH 26, 1926, 5 COMP. GEN. 763

CLASSIFICATION OF CIVILIAN EMPLOYEES - PART-TIME POSITIONS THE INITIAL PER ANNUM RATE OF COMPENSATION ON JULY 1, 1924, UNDER THE RULES OF SECTION 6 OF THE CLASSIFICATION ACT, FOR POSITIONS IN THE DISTRICT OF COLUMBIA PREVIOUSLY PAID ON A PER DIEM BASIS FOR TIME ACTUALLY SERVED, SHOULD HAVE BEEN ON THE BASIS OF THE TOTAL AMOUNT TO WHICH THE EMPLOYEE WOULD HAVE BEEN ENTITLED HAD HE WORKED FULL TIME. THE PERIOD OF DUTY OF A PART-TIME POSITION HAS RELATION TO THE PERIOD OF DUTY REQUIRED IN FULL-TIME POSITIONS OF SIMILAR CHARACTER AND REGULAR THROUGHOUT THE FISCAL YEAR, AND THE NECESSITY FOR THE CREATION OF A PART- TIME POSITION HAS RELATION TO THE CHARACTER OF THE WORK TO BE PERFORMED, SUCH AS DUTIES THE NATURE OF WHICH DO NOT NECESSARILY REQUIRE FULL-TIME SERVICE. THE LACK OF APPROPRIATED FUNDS FOR APPOINTMENT OF FULL-TIME EMPLOYEES ALONE SHOULD NOT BE THE BASIS FOR CREATING PART-TIME POSITIONS, BUT IN SUCH EVENT EMPLOYMENT SHOULD BE FOR REGULAR FULL-TIME SERVICE AT A RATE PER ANNUM AUTHORIZED BY THE CLASSIFICATION ACT, AND LEAVE OF ABSENCE WITHOUT PAY GRANTED FOR SUCH PERIOD AS MIGHT BE FOUND NECESSARY OR ADVISABLE.

DECISION BY COMPTROLLER GENERAL MCCARL, MARCH 26, 1926:

CAPT. CARL HALLA, FINANCE DEPARTMENT, UNITED STATES ARMY, HAS REQUESTED REVIEW OF THE ACTION OF THIS OFFICE IN NOT ALLOWING CREDIT IN HIS ACCOUNTS FOR JANUARY, 1925, FOR PAYMENTS REPRESENTING COMPENSATION FOR JANUARY, 1925, MADE TO HARRY A. KNOX, A CIVILIAN EMPLOYEE IN THE OFFICE, CHIEF OF ORDNANCE, WASHINGTON, D.C.

THE COMPENSATION PAID THE EMPLOYEE IN QUESTION WAS AT THE RATE OF $20 PER DIEM, WHEREAS $6,000 PER ANNUM IS THE MAXIMUM SALARY RATE PRESCRIBED BY THE CLASSIFICATION ACT FOR GRADE P. AND S. 5, IN WHICH THE POSITION HELD BY THE EMPLOYEE HAD BEEN ALLOCATED, OR $16.66 2/3 PER DIEM.

THERE HAS BEEN SUBMITTED COPY OF THE ORDER OF TRANSFER AND APPOINTMENT OF HARRY A. KNOX, EFFECTIVE SEPTEMBER 1, 1923, AS FOLLOWS:

HARRY A. KNOX, AUTOMOTIVE ENGINEER, AT $6,000 PER ANNUM IN THE ORDNANCE DEPARTMENT AT LARGE, ROCK ISLAND ARSENAL, ILLINOIS, IS HEREBY TRANSFERRED TO AUTOMOTIVE ENGINEER AT $20 PER DIEM (TOTAL COMPENSATION NOT TO EXCEED $5,000 PER ANNUM) IN THE OFFICE OF THE CHIEF OF ORDNANCE ($250,000 ALLOTMENT ROLL), TO TAKE EFFECT WHEN HE SHALL HAVE ENTERED ON DUTY, ON WHICH DATE HE WILL TAKE THE OATH OF OFFICE PRESCRIBED BY SECTIONS 1757 OF THE REVISED STATUTES OF THE UNITED STATES.

THE FOLLOWING ADMINISTRATIVE EXPLANATION OF THIS TRANSFER AND APPOINTMENT AND PAYMENTS THEREUNDER IS MADE:

THE EMPLOYMENT OF MR. KNOX IS FOR PART-TIME SERVICE ONLY, LIMITED TO $5,000 PER ANNUM AT A COMPENSATION OF $20.00 PER DIEM.

PREVIOUS TO THE TRANSFER OF MR. KNOX TO THIS OFFICE HE WAS EMPLOYED AT ROCK ISLAND ARSENAL AT $6,000 PER ANNUM FULL TIME. AT THE TIME THE TRANSFER WAS CONSIDERED THE DEPARTMENT DECIDED THAT IT COULD NOT EXPEND TO EXCEED $5,000 PER ANNUM FOR THE SERVICES THAT IT WAS DESIRED TO OBTAIN FROM MR. KNOX IN THIS OFFICE, AND SO ADVISED MR. KNOX. HE STATED HE COULD NOT CONSENT TO A FULL TIME EMPLOYMENT FOR LESS THAN $6,000 PER ANNUM. AFTER FULL CONSIDERATION IT WAS DECIDED TO ARRANGE FOR PART TIME SERVICE OF MR. KNOX ONLY ON THE BASIS OF $20.00 PER DAY, NOT TO EXCEED 250 DAYS OR $5,000 PER ANNUM, THE DEPARTMENT FEELING THAT THE PARTIAL EMPLOYMENT OF MR. KNOX IN THIS OFFICE WOULD ACCOMPLISH MORE THAN WITH HIS STATION AT ROCK ISLAND ARSENAL AT THE LARGER COMPENSATION. COPY OF THE APPOINTMENT OF MR. KNOX BY THE SECRETARY OF WAR AS OF JULY 25, 1923, IS INCLOSED. THIS APPOINTMENT, IT IS SUBMITTED, CONSTITUTES A CONTRACT FOR PART SERVICE AT A COMPENSATION OF $20.00 PER DAY NOT TO EXCEED A TOTAL OF $5,000 PER ANNUM. UNDER THIS CONTRACT HIS COMPENSATION NECESSARILY VARIES FROM MONTH TO MONTH, DEPENDING ON THE DAYS OF SERVICE RENDERED, UNTIL THE TOTAL OF 250 DAYS IS REACHED, WHEN PAYMENTS CEASE FOR THE FISCAL YEAR CURRENT AT THE TIME. MR. KNOX'S COMPENSATION WAS CONTINUED ON THE PER DIEM BASIS IN ACCORD WITH THE CONTRACT SET UP BY HIS APPOINTMENT AND ITS ACCEPTANCE, THE MAXIMUM OF THIS CONTRACT, $5,000, BEING ALL THE DEPARTMENT DESIRED TO EXPEND FOR THIS CHARACTER OF SERVICE, IN THE INTEREST OF ECONOMY AND IN VIEW OF THE FACT THAT THE PART SERVICE ACCOMPLISHED PRACTICALLY THE SAME PURPOSE AS FULL SERVICE.

IT FURTHER APPEARS THAT THE POSITION HELD BY MR. KNOX WAS ALLOCATED TO GRADE P. AND S. 5, WITH SALARY RANGE FROM $5,200 TO $6,000 PER ANNUM, PRIOR TO JULY 1, 1924, THE EFFECTIVE DATE OF THE CLASSIFICATION ACT. THERECORDS OF THIS OFFICE DISCLOSE THAT MR. KNOX WAS PAID FROM SEPTEMBER 1, 1923, TO JUNE 30, 1924, THE SUM OF $5,000 LESS RETIREMENT DEDUCTIONS, AND WAS ALSO PAID THE SUM OF $5,000, LESS RETIREMENT DEDUCTIONS, FOR THE FISCAL YEAR ENDED JUNE 30, 1925. COMPENSATION AT THE RATE OF $20 PER DAY WAS PAID FOR DAYS THE EMPLOYEE WAS ACTUALLY ON DUTY UNTIL MAY 15, 1925, A TOTAL OF 250 DAYS, AND THE EMPLOYEE CONSIDERED AS ON LEAVE OF ABSENCE WITHOUT PAY FOR THE REMAINDER OF THE TIME, INCLUDING THE PERIOD FROM MAY 16 TO JUNE 30, 1925.

ALL CIVILIAN POSITIONS IN THE DISTRICT OF COLUMBIA, UNLESS EXPRESSLY EXCEPTED, INCLUDING BOTH FULL AND PART-TIME POSITIONS, ARE SUBJECT TO THE PROVISIONS OF THE CLASSIFICATION ACT. AS THE POSITION HELD BY MR. KNOXDOES NOT FALL WITHIN ANY OF THE EXPRESS EXCEPTIONS, THE PROVISIONS OF THE ACT ARE APPLICABLE THERETO. THE EXPRESS PROVISIONS OF THE CLASSIFICATION ACT FOR PER ANNUM AND PER HOUR BASES OF PAYMENT NEGATIVED APPLICATION OF THE PER DIEM BASIS OF PAYMENT, UNLESS OTHER STATUTORY PROVISION, EFFECTIVE ON AND AFTER JULY 1, 1924, SO PROVIDED. NO SUCH EXPRESS PROVISION OF LAW APPLICABLE TO THIS CASE EXISTS. THIS RULE WAS CLEARLY AND DEFINITELY STATED IN DECISION OF THIS OFFICE, DATED JUNE 16, 1924, 3 COMP. GEN. 964, PRIOR TO THE EFFECTIVE DATE OF THE CLASSIFICATION ACT, AND HAS SINCE BEEN REITERATED IN PUBLISHED DECISIONS OF AUGUST 30, 1924, 4 COMP. GEN. 242, AND OCTOBER 13, 1924, ID. 374. ACCORDINGLY, THE CONTINUATION OF THE PER DIEM RATE OF $20 PER DAY FOR THE POSITION HELD BY MR. KNOX ON AND AFTER JULY 1, 1924, WAS IN DIRECT CONTRAVENTION OF LAW.

THE INITIAL RATE OF COMPENSATION FOR THE POSITION UNDER THE CLASSIFICATION ACT SHOULD HAVE BEEN ADJUSTED TO THE PER ANNUM SALARY RATE PRESCRIBED FOR GRADE P. AND S. 5 THAT WOULD HAVE COMPLIED WITH THE RULES OF SECTION 6 OF THE ACT. THE RULES OF SECTION 6 CONTEMPLATED A FULL-TIME EMPLOYMENT. THE BASIS FOR COMPUTING THE COMPENSATION UNDER THE CLASSIFICATION ACT OF EMPLOYEES PREVIOUSLY PAID ON A PER DIEM BASIS WAS THE TOTAL AMOUNT TO WHICH THE EMPLOYEE WOULD HAVE BEEN ENTITLED HAD HE WORKED FULL TIME. WHETHER THE FULL TIME FOR THE POSITION HELD BY MR. KNOX, PRIOR TO JULY 1, 1924, WOULD HAVE BEEN CONSIDERED AS 313 DAYS OR 360 DAYS PER YEAR IS NOT NOW MATERIAL. ON THE BASIS OF 313 DAYS AT $20 PER DAY THE ANNUAL RATE WOULD HAVE BEEN $6,360, AND ON THE BASIS OF 360 DAYS AT $20 PER DAY THE ANNUAL RATE WOULD HAVE BEEN $7,200, BOTH OF WHICH ARE IN EXCESS OF $6,000 PER ANNUM, THE MAXIMUM SALARY RATE PRESCRIBED FOR GRADE P. AND S. 5. UNDER RULE 5 OF SECTION 6 OF THE CLASSIFICATION ACT, THE INITIAL SALARY RATE TO WHICH MR. KNOX WAS ENTITLED ON JULY 1, 1924, WAS $6,000 PER ANNUM, THE MAXIMUM SALARY RATE OF THE GRADE. THE PER DIEM EQUIVALENT OF THIS PER ANNUM RATE IS DETERMINED BY A DIVISION OF THE RATE PER ANNUM BY 12 TO DETERMINE THE MAXIMUM RATE PER MONTH, AND THE DIVISION OF SUCH RATE BY 30 TO DETERMINE THE MINIMUM RATE PER DIEM, WHICH IN THIS CASE RESULTS IN A PER DIEM RATE OF $16.66 2/3. DECISION OF MAY 21, 1924, 3 COMP. GEN. 877. IT WILL BE NOTED THAT THIS DECISION WAS RENDERED PRIOR TO THE EFFECTIVE DATE OF THE CLASSIFICATION ACT. SEE ALSO 4 COMP. GEN. 374; ID. 755; 5 ID. 73.

ON THIS BASIS THE DISBURSING OFFICER WOULD BE CONSIDERED AS HAVING OVERPAID THE EMPLOYEE AT THE RATE OF $3.33 1/3 PER DIEM ON AND AFTER JULY 1, 1924. THE CONFUSION OF THE ADMINISTRATIVE OFFICE RESULTING IN THE OVERPAYMENT BY THE DISBURSING OFFICER THUS INDICATED APPARENTLY AROSE BY CONSIDERING $5,000 A PER ANNUM RATE OF COMPENSATION IN REPORTING THE POSITION TO THE PERSONNEL CLASSIFICATION BOARD FOR ORIGINAL ALLOCATION EFFECTIVE JULY 1, 1924. IT HAS NOW BEEN EXPLAINED THAT THAT AMOUNT WAS A LIMITATION ON THE AMOUNT OF APPROPRIATED FUNDS DETERMINED BY THE ADMINISTRATIVE OFFICE TO BE AVAILABLE FOR THE POSITION AND WAS NOT THE PER ANNUM RATE OF COMPENSATION. HAD THE MATTER BEEN PROPERLY UNDERSTOOD IT IS POSSIBLE THAT THE POSITION WOULD HAVE BEEN ALLOCATED TO A HIGHER GRADE. IN ANY EVENT ALL THE FACTS AND CIRCUMSTANCES DISCLOSED JUSTIFY ALLOWING CREDIT IN THE DISBURSING OFFICER'S ACCOUNTS FOR ALL PAYMENTS OF SALARY HERETOFORE MADE ON THE BASIS OF $20 PER DAY, SO THAT PAST PAYMENTS BE NOT DISTURBED. PAYMENTS OF SALARY BEGINNING APRIL 1, 1926, MUST BE MADE TO THIS EMPLOYEE AT A RATE IN THE GRADE IN WHICH THE POSITION IS ALLOCATED.

REGARDLESS OF THE PER DIEM RATE OF COMPENSATION PAID IN THIS CASE, THE METHOD OF PART-TIME EMPLOYMENT DISCLOSED IS NOT PROPER. A PART TIME POSITION WAS DEFINED IN DECISION OF JANUARY 26, 1926, 5 COMP. GEN. 537, AS FOLLOWS:

* * * A "PART-TIME" POSITION WITHIN THE MEANING OF THE CLASSIFICATION ACT, IS ONE THE DUTIES OF WHICH REQUIRE ONLY A PORTION OF THE EMPLOYEE'S TIME BASED ON THE REGULAR WORKING HOURS FOR THE GOVERNMENT SERVICE. * *

THE BASIS FOR THE COMPENSATION THEREOF IS SET FORTH IN DECISION OF OCTOBER 30, 1925, 5 COMP. GEN. 302, 305, AS FOLLOWS:

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 ARATE 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.

THERE IS NO AUTHORITY TO CREATE A PART-TIME POSITION ON THE BASIS OF A SUFFICIENT NUMBER OF DAYS DURING A FISCAL YEAR TO PERMIT THE EXPENDITURE OF A CERTAIN MAXIMUM AMOUNT PER ANNUM AND TO ALLOW PERFORMANCE OF THE DUTIES OF SUCH POSITION UNTIL THAT NUMBER OF DAYS ARE COMPLETED AND THEN GRANT THE EMPLOYEE LEAVE OF ABSENCE WITHOUT PAY UNTIL THE END OF THE FISCAL YEAR. THE PERIOD OF DUTY OF A PART-TIME POSITION HAS RELATION TO THE PERIOD OF DUTY REQUIRED IN FULL-TIME POSITIONS OF SIMILAR CHARACTER AND REGULAR THROUGHOUT THE FISCAL YEAR. EMPLOYMENTS FOR CONTINUOUS SERVICE FOR A PORTION OF AN ENTIRE FISCAL YEAR SHOULD BE ACCOMPLISHED BY MEANS OF TEMPORARY APPOINTMENTS AND CAN NOT BE REGARDED AS PART-TIME EMPLOYMENTS.

FURTHER, THE NECESSITY FOR CREATION OF PART-TIME POSITIONS HAS RELATION TO THE CHARACTER OF THE WORK TO BE PERFORMED, SUCH AS DUTIES THE NATURE OF WHICH DO NOT NECESSARILY REQUIRE FULL-TIME SERVICE. LACK OF APPROPRIATED FUNDS FOR APPOINTMENT OF FULL-TIME EMPLOYEES ALONE SHOULD NOT BE THE BASIS FOR CREATING PART-TIME POSITIONS IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY THEREFOR.

IT DOES NOT APPEAR THAT THE NATURE OF THE DUTIES REQUIRED OF MR. KNOX ARE SUCH AS TO AUTHORIZE THE CREATION OF A "PART-TIME" POSITION FOR THE PERFORMANCE OF SUCH DUTIES. UPON THE FACTS DISCLOSED IN THIS RECORD, THERE WOULD APPEAR TO BE NO AUTHORITY FOR HIS EMPLOYMENT ON A PART-TIME BASIS MERELY BECAUSE THE DEPARTMENT HAS ALLOTTED ONLY $5,000 PER ANNUM FOR THE SALARY OF THE POSITION. HOWEVER, THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO HIS EMPLOYMENT FOR REGULAR FULL-TIME SERVICE WITH SALARY AT A RATE PER ANNUM AUTHORIZED UNDER THE CLASSIFICATION ACT. THEN IF AVAILABLE FUNDS ARE INADEQUATE TO PAY SAID SALARY FOR THE FULL YEAR, HE COULD BE GRANTED LEAVE WITHOUT PAY FOR SUCH PERIOD AS MIGHT BE FOUND NECESSARY OR ADVISABLE. THE MATTER SHOULD BE ADJUSTED ACCORDINGLY.