A-17761, APRIL 20, 1927, 6 COMP. GEN. 683

A-17761: Apr 20, 1927

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ARE IN VIOLATION OF THE PROVISIONS OF SECTION 1765. 1927: THERE IS FOR CONSIDERATION IN CONNECTION WITH THE SETTLEMENT OF THE ACCOUNTS OF MAJ. OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS. UNLESS THE SAME IS AUTHORIZED BY LAW. THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY. FOR EACH OF WHICH A MAXIMUM OF TEN TO BE SO COMPENSATED IS HEREBY AUTHORIZED. WHILE IT IS PROVIDED THAT ENLISTED MEN OF THE NATIONAL GUARD MAY BE EMPLOYED AS CARETAKERS. IT APPEARS THAT SUCH EMPLOYMENT IS IN THE CAPACITY OF CIVILIANS AND THE DUTIES REQUIRED OF THEM AS SUCH ARE SEPARATE AND DISTINCT FROM THE PERFORMANCE OF THEIR TRAINING AS MEMBERS OF THE NATIONAL GUARD FOR WHICH FEDERAL PAY IS PROVIDED.

A-17761, APRIL 20, 1927, 6 COMP. GEN. 683

COMPENSATION, DOUBLE - CARETAKERS, NATIONAL GUARD THE EMPLOYMENT OF ENLISTED MEN OF THE NATIONAL GUARD IN THE DUAL CAPACITY OF CARETAKERS OF MATERIAL, ANIMALS, AND EQUIPMENT OF THE NATIONAL GUARD AND CARETAKERS OF TARGET RANGES, AND THE PAYMENT OF COMPENSATION FOR BOTH EMPLOYMENTS, ARE IN VIOLATION OF THE PROVISIONS OF SECTION 1765, REVISED STATUTES.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 20, 1927:

THERE IS FOR CONSIDERATION IN CONNECTION WITH THE SETTLEMENT OF THE ACCOUNTS OF MAJ. ARTHUR W. MCMORRIS, UNITED STATES PROPERTY AND DISBURSING OFFICER, PAYMENTS MADE BY HIM TO CERTAIN ENLISTED MEN OF THE NATIONAL GUARD OF WASHINGTON FOR SERVICES IN THE MONTHS OF MAY AND JUNE, 1926, BOTH AS CARETAKERS OF MATERIAL AND AS CARETAKERS OF TARGET RANGES.

SECTION 1765, REVISED STATUTES, PROVIDES:

NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

SECTION 90 OF THE ACT OF JUNE 3, 1916, 39 STAT. 205, 206, AS AMENDED BY THE ACT OF MAY 28, 1926, 44 STAT. 673, 674, PROVIDES:

THAT FUNDS ALLOTTED BY THE SECRETARY OF WAR FOR THE SUPPORT OF THE NATIONAL GUARD SHALL BE AVAILABLE * * * FOR THE COMPENSATION OF COMPETENT HELP FOR THE CARE OF MATERIAL, ANIMALS, ARMAMENT, AND EQUIPMENT OF ORGANIZATIONS OF ALL KINDS, UNDER SUCH REGULATIONS AS THE SECRETARY OF WAR MAY PRESCRIBE: PROVIDED, THAT THE MEN TO BE SO COMPENSATED SHALL NOT EXCEED FIVE FOR EACH ORGANIZATION, EXCEPT HEAVIER-THAN-AIR SQUADRONS, FOR EACH OF WHICH A MAXIMUM OF TEN TO BE SO COMPENSATED IS HEREBY AUTHORIZED, AND SHALL, SAVE AS OTHERWISE PROVIDED IN THE NEXT SUCCEEDING PROVISO, BE DULY ENLISTED THEREIN AND DETAILED BY THE ORGANIZATION COMMANDER, AND SHALL BE PAID BY THE UNITED STATES DISBURSING OFFICER IN EACH STATE, TERRITORY, AND THE DISTRICT OF COLUMBIA: PROVIDED FURTHER, THAT IN EACH HEAVIER-THAN-AIR SQUADRON ONE CARETAKER MAY BE A COMMISSIONED OFFICER NOT ABOVE THE GRADE OF FIRST LIEUTENANT, AND THAT IN ANY ORGANIZATION WHENEVER IT SHALL BE FOUND IMPRACTICABLE TO SECURE THE NECESSARY COMPETENT CARETAKERS FOR THE MATERIAL, ANIMALS, ARMAMENT, OR EQUIPMENT THEREOF FROM THE PERSONNEL OF SUCH ORGANIZATION, THE ORGANIZATION COMMANDER MAY EMPLOY ONE CIVILIAN CARETAKER THEREFOR WHO SHALL BE ENTITLED TO SUCH COMPENSATIONS AS MAY BE FIXED BY THE SECRETARY OF WAR: * * *.

NATIONAL GUARD REGULATIONS, NO. 79, JUNE 13, 1925, IN EFFECT DURING THE PERIOD UNDER CONSIDERATION CONTAINS PROVISIONS AS TO THE EMPLOYMENT OF CARETAKERS OF MATERIAL, ANIMALS, AND EQUIPMENT OF THE NATIONAL GUARD, AND SPECIFIES A MAXIMUM MONTHLY COMPENSATION THEREFOR.

SECTION 67 OF THE ACT OF JUNE 3, 1916, 39 STAT. 199, AS AMENDED BY SECTION 3 OF THE ACT OF SEPTEMBER 22, 1922, 42 STAT. 1034, PROVIDES:

* * * THAT THE SUM SO APPORTIONED AMONG THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA SHALL BE AVAILABLE UNDER SUCH RULES AS MAY BE PRESCRIBED BY THE SECRETARY OF WAR * * * FOR THE PROMOTION OF RIFLE PRACTICE, INCLUDING THE ACQUISITION, CONSTRUCTION, MAINTENANCE, AND EQUIPMENT OF SHOOTING GALLERIES, AND SUITABLE TARGET RANGES; * * *.

PARAGRAPH 593, NATIONAL GUARD REGULATIONS, AS AMENDED BY CHANGE NO. 3, MARCH 22, 1923, PROVIDES FOR THE EMPLOYMENT OF MEMBERS OF THE NATIONAL GUARD OR CIVILIANS AS CARETAKERS OF TARGET RANGES DURING THE RANGE PRACTICE SEASON, AND SPECIFIES A MAXIMUM MONTHLY RATE OF COMPENSATION TO BE PAID FROM THE APPORTIONMENT SET ASIDE FOR "RIFLE PRACTICE AND TARGET RANGES.' WHILE IT IS PROVIDED THAT ENLISTED MEN OF THE NATIONAL GUARD MAY BE EMPLOYED AS CARETAKERS, IT APPEARS THAT SUCH EMPLOYMENT IS IN THE CAPACITY OF CIVILIANS AND THE DUTIES REQUIRED OF THEM AS SUCH ARE SEPARATE AND DISTINCT FROM THE PERFORMANCE OF THEIR TRAINING AS MEMBERS OF THE NATIONAL GUARD FOR WHICH FEDERAL PAY IS PROVIDED.

WHILE SECTION 1765, REVISED STATUTES, IS ADDRESSED PRIMARILY TO OFFICERS AND EMPLOYEES OF THE UNITED STATES, AND THE EMPLOYEES HEREIN QUESTION ARE PROPERLY EMPLOYEES OF THE STATE, STATE V. JOHNSON ET AL., 202 N.W. 191, THEY ARE PAID IN BOTH CAPACITIES FROM FUNDS APPROPRIATED BY THE UNITED STATES FOR THE PURPOSE OF TRAINING THE NATIONAL GUARD, AND THE RULES APPLICABLE TO FEDERAL APPROPRIATIONS GENERALLY MUST CONTROL. OBVIOUSLY IF IN THE CONDUCT OF FEDERAL ACTIVITIES THE PAYMENT OF ADDITIONAL COMPENSATION FOR OTHER SERVICES OR DUTY WITHOUT EXPRESS AUTHORIZATION OF LAW IS PROHIBITED, THE PRACTICE PROHIBITED IS EQUALLY OBJECTIONABLE WHERE STATE EMPLOYEES ARE PAID IN BOTH CAPACITIES FROM FUNDS APPROPRIATED BY THE CONGRESS FOR THE USE OF THE STATE IN THE MAINTENANCE AND TRAINING OF ITS NATIONAL GUARD.

PAYMENT FOR SUCH DUAL EMPLOYMENT IS IN VIOLATION OF THE PROVISIONS OF SECTION 1765, REVISED STATUTES. SUCH PAYMENTS AS HAVE BEEN MADE BY THE DISBURSING OFFICER FOR THE TWO EMPLOYMENTS IF OTHERWISE CORRECT WILL NOT BE DISTURBED, BUT CREDIT WILL NOT BE ALLOWED FOR ANY PAYMENT MADE CONTRARY TO THE VIEW HEREIN EXPRESSED AFTER MAY 31, 1927.