A-28555, SEPTEMBER 7, 1929, 9 COMP. GEN. 108

A-28555: Sep 7, 1929

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CLASSIFICATION OF CIVILIAN EMPLOYEES - ADDITIONAL SERVICE - DUTIES UNDER TWO BUREAUS IN SAME DEPARTMENT WHERE THE FULL-TIME DUTIES OF THE POSITION OF A FIELD SERVICE EMPLOYEE UNDER ONE BUREAU OF A DEPARTMENT HAVE BEEN FIXED AND ADMINISTRATIVELY PLACED OR ALLOCATED IN A SALARY RANGE CORRESPONDING TO THE SALARY RANGE PRESCRIBED BY THE CLASSIFICATION ACT FOR SIMILAR POSITIONS IN THE DISTRICT OF COLUMBIA. AS FOLLOWS: REFERENCE IS MADE TO A RECENT DECISION OF YOUR OFFICE (A-27380) IN CONNECTION WITH THE PROPOSED INCREASE IN COMPENSATION OF THE MARINE GASOLINE ENGINEER WHO OPERATES THE CUSTOMS LAUNCH GADFLY AT PERTH AMBOY. IS FOR SUBMISSION BY THE SECRETARY OF THE TREASURY IF THERE BE DOUBT AS TO THE AUTHORITY TO GIVE THE PROPOSED INCREASE.'.

A-28555, SEPTEMBER 7, 1929, 9 COMP. GEN. 108

CLASSIFICATION OF CIVILIAN EMPLOYEES - ADDITIONAL SERVICE - DUTIES UNDER TWO BUREAUS IN SAME DEPARTMENT WHERE THE FULL-TIME DUTIES OF THE POSITION OF A FIELD SERVICE EMPLOYEE UNDER ONE BUREAU OF A DEPARTMENT HAVE BEEN FIXED AND ADMINISTRATIVELY PLACED OR ALLOCATED IN A SALARY RANGE CORRESPONDING TO THE SALARY RANGE PRESCRIBED BY THE CLASSIFICATION ACT FOR SIMILAR POSITIONS IN THE DISTRICT OF COLUMBIA, AS REQUIRED BY SECTION 3 OF THE ACT OF MAY 28, 1928, 45 STAT. 785, THE EMPLOYEE COULD BE REQUIRED TO WORK ON SUNDAYS AND HOLIDAYS PERFORMING THE SAME DUTIES FOR ANOTHER BUREAU OF THE SAME DEPARTMENT AS A PART OF HIS REGULAR DUTIES, AND CONSEQUENTLY, PAYMENT OF ADDITIONAL COMPENSATION FOR SUCH ADDITIONAL WORK UNDER APPROPRIATIONS FOR THE OTHER BUREAU WOULD BE PROHIBITED AS A DIRECT VIOLATION OF SECTION 1765 OF THE REVISED STATUTES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, SEPTEMBER 7, 1929:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 27, 1929, AS FOLLOWS:

REFERENCE IS MADE TO A RECENT DECISION OF YOUR OFFICE (A-27380) IN CONNECTION WITH THE PROPOSED INCREASE IN COMPENSATION OF THE MARINE GASOLINE ENGINEER WHO OPERATES THE CUSTOMS LAUNCH GADFLY AT PERTH AMBOY, N.J. IN THE LAST PARAGRAPH OF YOUR DECISION YOU STATE AS FOLLOWS:

"THE QUESTION AS TO WHETHER THE SALARY OF THE ENGINEER LEGALLY AND PROPERLY MAY BE INCREASED FROM $1,920 TO $2,400 ON THE BASIS OF THE ADDITIONAL SERVICES TO BE REQUIRED OF HIM, INCLUDING SERVICES ON SUNDAYS AND HOLIDAYS, WOULD DEPEND UPON THE STATUTORY AUTHORITY FOR HIS EMPLOYMENT, HIS STATUS WITH RESPECT TO CLASSIFICATION, ETC. THIS QUESTION, ALSO, IS FOR SUBMISSION BY THE SECRETARY OF THE TREASURY IF THERE BE DOUBT AS TO THE AUTHORITY TO GIVE THE PROPOSED INCREASE.'

THE POSITION OF MARINE GASOLINE ENGINEER IN QUESTION IS ALLOCATED IN GRADE CAF-4 ($1,800 TO $2,100 PER ANNUM), AND THE PRESENT INCUMBENT IS BEING PAID AT THE RATE OF $1,920 PER ANNUM, PAYABLE FROM THE APPROPRIATION "COLLECTING THE REVENUE FROM CUSTOMS.' HIS HOURS OF DUTY ARE FROM 8 A.M. TO 5 P.M. (SUNDAYS AND HOLIDAYS EXCLUDED). UNDER THE LAW THIS EMPLOYEE CAN NOT BE PAID ADDITIONAL COMPENSATION FOR OVERTIME SERVICE.

IT WOULD BE GREATLY APPRECIATED IF YOU WOULD MAKE A DECISION AS TO WHETHER THE COMPENSATION OF THIS EMPLOYEE MAY BE INCREASED FROM $1,920 TO $2,400 PER ANNUM, HIS ENTIRE SALARY TO BE PAID FROM THE APPROPRIATION, "COLLECTING THE REVENUE FROM CUSTOMS," THE PUBLIC HEALTH SERVICE TO REIMBURSE THE CUSTOMS APPROPRIATION IN AN AMOUNT NOT TO EXCEED $480 PER ANNUM IN RETURN FOR THE ADDITIONAL SERVICES REQUIRED OF THIS EMPLOYEE.

IF THE QUESTION INVOLVED WERE SIMPLY THE APPORTIONMENT OF THE SALARY OF AN EMPLOYEE TO APPROPRIATIONS PROVIDED UNDER MORE THAN ONE BUREAU IN A DEPARTMENT THERE WOULD BE NO OBJECTION. 5 COMP. GEN. 1036. BUT ON THE BASIS OF THE FACTS PRESENTED IT APPEARS THAT WHAT IS ACTUALLY SOUGHT TO BE ACCOMPLISHED IS THE PAYMENT FOR SUNDAY AND HOLIDAY WORK FOR ONE BUREAU OF EXACTLY THE SAME CHARACTER AS IS BEING PERFORMED BY A REGULAR FULL-TIME EMPLOYEE UNDER ANOTHER BUREAU IN THE SAME DEPARTMENT. IN OTHER WORDS, THERE IS NOT INVOLVED THE ADDITION OF NEW AND DIFFERENT DUTIES TO A POSITION WHICH WOULD BE TANTAMOUNT TO THE CREATION OF A NEW FIELD SERVICE POSITION WITH ITS POSSIBLE PLACEMENT OR ALLOCATION IN A HIGHER GRADE, BUT SIMPLY THE PROPOSITION OF REQUIRING THE EMPLOYEE TO WORK AT HIS REGULAR DUTIES ON SUNDAYS AND HOLIDAYS FOR THE BENEFIT OF A BUREAU OTHER THAN THE ONE IN WHICH HE IS REGULARLY EMPLOYED BUT UNDER THE SAME DEPARTMENT.

AS REQUIRED BY LAW, THE DUTIES OF THE POSITION HAVE BEEN FIXED AND ADMINISTRATIVELY PLACED IN A SALARY RANGE CORRESPONDING TO THE SALARY RANGE PRESCRIBED BY THE CLASSIFICATION ACT FOR SIMILAR POSITIONS IN THE DISTRICT OF COLUMBIA. SECTION 3 OF THE ACT OF MAY 28, 1928, 45 STAT. 785. THE EMPLOYMENT AND PAYMENT OF SALARY IS BY THE YEAR AND THE HOURS AND DAYS OF WORK ARE A MATTER FOR ADMINISTRATIVE DETERMINATION. AS THE EMPLOYEE COULD BE REQUIRED TO WORK ON SUNDAYS AND HOLIDAYS AS A PART OF HIS REGULAR DUTIES UNDER HIS PRESENT APPOINTMENT, PAYMENT OF ADDITIONAL COMPENSATION FOR SUCH ADDITIONAL WORK UNDER ANY APPROPRIATION WOULD BE PROHIBITED AS A DIRECT VIOLATION OF SECTION 1765, REVISED STATUTES, PROVIDING AS FOLLOWS:

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.

EVEN IF IT WERE POSSIBLE TO CONSIDER THE SUNDAY AND HOLIDAY WORK AS AN ADDITIONAL PART-TIME POSITION, THE PAYMENT OF SALARY FOR BOTH POSITIONS AT A RATE IN EXCESS OF $2,000 PER ANNUM WOULD BE PROHIBITED UNDER THE TERMS OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, 6 COMP. GEN. 359, 588.

ON THE BASIS OF THE FACTS PRESENTED, THE QUESTION SUBMITTED IS ANSWERED IN THE NEGATIVE.