A-36931, JANUARY 7, 1932, 11 COMP. GEN. 260

A-36931: Jan 7, 1932

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THAT IS. IN ANY CASE WHERE A PART-TIME PHYSICIAN IS REQUIRED UNDER HIS APPOINTMENT OR CONTRACT OF EMPLOYMENT TO GIVE THE GOVERNMENT ONLY A DEFINITE NUMBER OF DAYS OR HOURS OF SERVICE. IS NOT OTHERWISE SUBJECT TO CALL BY THE GOVERNMENT. THE DAILY RATE BEING 1/360TH OF THE FULL-TIME ANNUAL SALARY RATE AND THE HOURLY RATE BEING THE DAILY RATE DIVIDED BY THE NUMBER OF HOURS THE REGULAR FULL-TIME EMPLOYEES IN SIMILAR POSITIONS ARE REQUIRED TO WORK. THE SALARY OF A PART-TIME CONSULTING PHYSICIAN UNDER THE VETERANS' ADMINISTRATION MAY NOT BE PAID FOR ANY DAY ON WHICH THE WITNESS FEE OF $20 PER DIEM IS AUTHORIZED TO BE PAID UNDER THE PROVISIONS OF THE ACT OF JULY 3. 1932: REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 24.

A-36931, JANUARY 7, 1932, 11 COMP. GEN. 260

COMPENSATION - PART - TIME EMPLOYEES - CONSULTING PHYSICIANS THE ANNUAL SALARY RATE OF CONSULTING PHYSICIANS UNDER THE VETERANS' ADMINISTRATION MAY BE FIXED ON TWO PRIMARY ELEMENTS, (1) AVAILABILITY FOR DUTY AT ALL TIMES UPON THE CALL OF THE VETERANS' ADMINISTRATION, AND, (2) THE MINIMUM TIME OF ACTUAL SERVICE ON GOVERNMENT WORK WITHOUT SPECIAL CALL. THE LETTERS OF APPOINTMENT OR CONTRACTS OF EMPLOYMENT SHOULD SPECIFY THE SERVICE REQUIRED, THAT IS, THE ELEMENTS OF SERVICE ON THE BASIS OF WHICH THE PART-TIME SALARY RATE HAS BEEN FIXED. IN ANY CASE WHERE A PART-TIME PHYSICIAN IS REQUIRED UNDER HIS APPOINTMENT OR CONTRACT OF EMPLOYMENT TO GIVE THE GOVERNMENT ONLY A DEFINITE NUMBER OF DAYS OR HOURS OF SERVICE, AND IS NOT OTHERWISE SUBJECT TO CALL BY THE GOVERNMENT, HIS PART-TIME ANNUAL SALARY MAY NOT EXCEED AN AMOUNT PROPERLY PAYABLE FOR THE NUMBER OF DAYS AND/OR HOURS OF ACTUAL SERVICE COMPUTED ON THE BASIS OF THE ANNUAL FULL-TIME SALARY FIXED FOR A SIMILAR POSITION IN ACCORDANCE WITH THE PRINCIPLES OF CLASSIFICATION, THE DAILY RATE BEING 1/360TH OF THE FULL-TIME ANNUAL SALARY RATE AND THE HOURLY RATE BEING THE DAILY RATE DIVIDED BY THE NUMBER OF HOURS THE REGULAR FULL-TIME EMPLOYEES IN SIMILAR POSITIONS ARE REQUIRED TO WORK. WHERE THE SALARY RATE OF A PART-TIME EMPLOYEE HAS BEEN PROPERLY FIXED ON AN ANNUAL BASIS, DEDUCTION FOR EACH DAY'S ABSENCE FROM DUTY, OR WHEN NOT AVAILABLE FOR DUTY UPON CALL, FOR WHATEVER REASON, SHOULD BE COMPUTED AS 1/360TH OF THE ANNUAL PART-TIME RATE. THE SALARY OF A PART-TIME CONSULTING PHYSICIAN UNDER THE VETERANS' ADMINISTRATION MAY NOT BE PAID FOR ANY DAY ON WHICH THE WITNESS FEE OF $20 PER DIEM IS AUTHORIZED TO BE PAID UNDER THE PROVISIONS OF THE ACT OF JULY 3, 1930, 46 STAT. 992.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JANUARY 7, 1932:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 24, 1931, AND NOVEMBER 14, 1931, RELATIVE TO THE ADMINISTRATIVELY APPROVED CLAIMS OF DRS. JAY M. READ AND GORDON E. HEIN, PART-TIME PHYSICIANS OF THE VETERANS' ADMINISTRATION, FOR $71.80 AND $71.88, RESPECTIVELY, AS REIMBURSEMENTS FOR TRAVEL EXPENSES, PER DIEM IN LIEU OF SUBSISTENCE, AND A FEE OF $20 PER DAY FOR THE PERIOD MARCH 23 TO 25, 1931, INCLUSIVE, INCIDENT TO THE APPEARANCE OF THE SAID PHYSICIANS IN COURT AT PORTLAND, OREG., AS GOVERNMENT WITNESSES.

THE CLAIMS IN QUESTION ARE BEFORE THIS OFFICE FOR PREAUDIT, AND THE LETTERS ABOVE MENTIONED WERE IN RESPONSE TO LETTER OF AUGUST 13, 1931, WHEREIN YOU WERE REQUESTED TO ADVISE THIS OFFICE AS TO THE BASIS USED IN DETERMINING THE COMPENSATION OF THE SAID EMPLOYEES, FOR USE IN DETERMINING THE AMOUNT OF THE SALARY TO BE DEDUCTED ON ACCOUNT OF FAILURE TO RENDER THE REQUIRED SERVICE WHILE ABSENT IN CONNECTION WITH THEIR APPEARANCE IN COURT AS GOVERNMENT WITNESSES, PURSUANT TO SECTION 19 OF THE ACT OF JULY 3, 1930, 46 STAT. 992. IN APPLYING SAID STATUTE DECISION OF FEBRUARY 10, 1931, A-35191, HELD THAT PART-TIME EMPLOYEES "WOULD NOT BE ENTITLED TO SALARY WHEN ABSENT TO APPEAR AS WITNESSES IN SUITS.'

WITH YOUR LETTER OF AUGUST 24, 1931, THERE WERE SUBMITTED COPIES OF LETTERS OF APPOINTMENT OF DOCTORS READ AND HEIN DATED APRIL 18, 1929, WHICH READ, RESPECTIVELY, AS FOLLOWS:

YOU ARE HEREBY APPOINTED AS A CONSULTANT IN ENDOCRINOLOGY, SCHEDULE A, AT A SALARY AT THE RATE OF $2,000 PER ANNUM, PART-TIME, S. AND E. 1929 (C.S. AUTHORITY OF APRIL 13, 1929, SUBDIVISION XVIII, PARAGRAPH 7), EFFECTIVE APRIL 13, 1929, BY CHANGE FROM TEMPORARY.

YOU ARE HEREBY APPOINTED AS A CONSULTANT IN CARDIOLOGY AND INTERNAL MEDICINE, SCHEDULE A, AT A SALARY AT THE RATE OF $2,400 PER ANNUM, PART- TIME, S. AND E. 1929 (C.S. AUTHORITY OF APRIL 13, 1929, SUBDIVISION XVIII, PARAGRAPH 7), EFFECTIVE APRIL 13, 1929, BY CHANGE FROM TEMPORARY.

AND THE FOLLOWING EXPLANATION OR COMMENT WAS MADE WITH REFERENCE TO SAID APPOINTMENTS:

IN CONNECTION WITH THE FACT THAT THE LETTERS OF APPOINTMENT DO NOT SPECIFY THE AMOUNT OF TIME REQUIRED TO BE SERVED UNDER THE APPOINTMENTS, IT MAY BE STATED THAT THE AMOUNT OF COMPENSATION SPECIFIED IS IN THE NATURE OF A RETAINING FEE AND THAT IT WOULD BE PRACTICALLY IMPOSSIBLE FOR THIS ADMINISTRATION TO SECURE THE SERVICES OF SPECIALISTS OF THIS TYPE UNDER A CONTRACT OF EMPLOYMENT REQUIRING A SPECIFIED NUMBER OF HOURS' SERVICE. SUCH AN ARRANGEMENT WOULD NOT ONLY MAKE IT IMPOSSIBLE TO SECURE THE SERVICES OF PHYSICIANS OF THIS CALIBER BUT WOULD BE IMPRACTICABLE FROM THE STANDPOINT OF THE NEEDS OF THE DIAGNOSTIC CENTER, BECAUSE IN THEIR CAPACITY AS CONSULTANTS IT IS ESSENTIAL THAT THEIR SERVICES BE AVAILABLE WHENEVER NEEDED IN THE OBSERVATION AND DIAGNOSIS OF THE PARTICULAR TYPES OF CASES IN WHICH THEY SPECIALIZE.

TRANSMITTED WITH YOUR LETTER OF NOVEMBER 14, 1931, IS A LETTER DATED NOVEMBER 6, 1931, FROM DR. R. E. BAKER, CHIEF OF THE DIAGNOSTIC CENTER, PALO ALTO, CALIF., WHICH IS, IN PART, AS FOLLOWS:

IN THIS CONNECTION YOU ARE ADVISED THAT IN THE BEGINNING OF THE DIAGNOSTIC CENTER AT THIS STATION, WHEN THE PART-TIME CONSULTING SPECIALISTS WERE APPOINTED FOR DUTY AT THE DIAGNOSTIC CENTER, IT WAS DEFINITELY AGREED BY THE CONTRACTING PARTIES THAT THE CONSULTANTS WOULD VISIT THE DIAGNOSTIC CENTER AT LEAST ONE DAY EACH WEEK TO EXAMINE AND REPORT UPON SUCH PATIENTS AS WERE DESIGNATED FOR THEM. LATER, WHEN THE BUREAU DECIDED TO CONDUCT A POSTGRADUATE SCHOOL FOR CERTAIN OF ITS FULL- TIME PHYSICIANS, AND THIS STATION WAS SELECTED AS ONE OF THE CENTERS TO ASSIST IN CARRYING OUT THIS PROGRAM, AND SINCE A DEFINITE PART OF THE POSTGRADUATE WORK WAS TO BE INTENSIVE WORK TO BE GIVEN IN THE CLINICS OF CIVILIAN HOSPITALS AND DISPENSARIES IN SAN FRANCISCO, CALIFORNIA, UNDER THE JURISDICTION OF HIGHLY SPECIALIZED AND TRAINED MEDICAL MEN, IT WAS NECESSARY TO MAKE DEFINITE ARRANGEMENTS WITH THE CONSULTING SPECIALISTS ABOUT THE AMOUNT OF TIME THEY WERE TO DEVOTE TO THIS WORK.

THE LENGTH OF THE POSTGRADUATE COURSE IS FOUR MONTHS. THE FIRST MONTH OF THIS TIME IS CONSUMED AT VETERANS' ADMINISTRATION HOSPITAL, LIVERMORE, CALIFORNIA, AND AT THIS HOSPITAL. AT THE TIME OF THIS ARRANGEMENT IT WAS DEFINITELY AGREED BY THE CONTRACTING PARTIES THAT THE CONSULTING SPECIALISTS, INCLUDING DOCTORS HEIN AND READ, WERE TO HAVE CHARGE OF THE POSTGRADUATE CLASS IN THE CIVILIAN HOSPITALS AND CLINICS AT SAN FRANCISCO FIVE DAYS OF EACH WEEK FOR THE REMAINING THREE MONTHS OF THE COURSE. THE AMOUNT OF TIME DEVOTED TO THIS WORK, INCLUDING THE VISIT OF ONE DAY EACH WEEK TO THE DIAGNOSTIC CENTER, WAS FOR DR. HEIN APPROXIMATELY 42 HOURS AND FOR DR. READ 32 HOURS OF EACH MONTH. THIS AMOUNT OF TIME FOR THESE DOCTORS IS DESIGNATED BY THE PRINTED PROGRAM FOR THE POSTGRADUATE CLASS OF EACH MONTH, FURNISHED THIS HOSPITAL BY DR. BARNETT, DEAN OF THE CONSULTING TEACHING STAFF.

IT IS UNDERSTOOD FROM THE STATEMENTS MADE IN THE TWO LETTERS QUOTED THAT THE ANNUAL SALARY OF THESE TWO CONSULTANT OR PART-TIME PHYSICIANS HAS BEEN FIXED ON TWO PRIMARY ELEMENTS, TO WIT, (1) AVAILABILITY FOR DUTY AT ALL TIMES UPON THE CALL OF THE VETERANS' ADMINISTRATION, NECESSITATING THE PHYSICIANS SO TO ARRANGE THEIR PRIVATE PRACTICE AS TO MEET THE NEEDS OF THE GOVERNMENT; AND (2) THE MINIMUM TIME OF ACTUAL SERVICE ON GOVERNMENT WORK WITHOUT SPECIAL CALL.

THE RIGHT OF AN EMPLOYEE OF THE GOVERNMENT TO COMPENSATION IS DEPENDENT UPON THE RENDERING OF SERVICE, 5 COMP. GEN. 566, AND, ORDINARILY, THERE IS NO AUTHORITY FOR THE PAYMENT OF A STIPULATED ANNUAL SALARY IN THE NATURE OF A RETAINER HAVING AN UNCERTAIN RELATION TO, AND POSSIBLY IN EXCESS OF, SERVICES ACTUALLY RENDERED. HOWEVER, IN VIEW OF THE PROFESSIONAL NATURE OF THE PART-TIME SERVICE RENDERED BY CONSULTING PHYSICIANS FOR THE VETERANS' ADMINISTRATION, INVOLVING, IN ADDITION TO ACTUAL ATTENDANCE AT GOVERNMENT INSTITUTIONS, RESEARCH AND OTHER SIMILAR WORK DURING TIME NOT ACTUALLY SPENT AT THE GOVERNMENT INSTITUTIONS, AS WELL AS THE NECESSITY OF ADJUSTMENT IN PRIVATE PRACTICE WITH LITTLE OR NO NOTICE IN ORDER TO BE AVAILABLE UPON THE CALL OF THE GOVERNMENT, IT IS BELIEVED THAT BOTH OF THE ELEMENTS ABOVE STATED REASONABLY MAY BE CLASSED AS "SERVICE" AND PROPERLY ARE FOR CONSIDERATION IN FIXING THE PART-TIME COMPENSATION ON AN ANNUAL BASIS HAVING PROPER RELATION TO THE TIME SERVED BY FULL-TIME EMPLOYEES IN SIMILAR POSITIONS, THE SALARIES FOR WHICH HAVE BEEN FIXED IN ACCORDANCE WITH THE PRINCIPLES OF CLASSIFICATION.

THE LETTERS OF APPOINTMENT OR CONTRACTS OF EMPLOYMENT OF ALL PART TIME OFFICERS AND EMPLOYEES SHOULD SPECIFY THE SERVICE REQUIRED, THAT IS, THE ELEMENTS OF SERVICE ON THE BASIS OF WHICH THE PART-TIME SALARY RATE HAS BEEN FIXED, IN ORDER THAT THERE WILL BE A DEFINITE RECORD AS TO THE SERVICES TO BE PERFORMED AS WELL AS THE SALARY TO BE PAID. IT IS UNDERSTOOD TO BE THE ADMINISTRATIVE PRACTICE TO PAY FEES FOR IRREGULAR OR INTERMITTENT SERVICES WHERE SUCH A SYSTEM OF PAYMENT IS MORE ECONOMICAL AND ADVANTAGEOUS TO THE GOVERNMENT.

IN ANY CASE WHERE A PART-TIME PHYSICIAN IS REQUIRED UNDER HIS APPOINTMENT OR CONTRACT OF EMPLOYMENT TO GIVE THE GOVERNMENT ONLY A DEFINITE NUMBER OF DAYS OR HOURS OF SERVICE, AND IS NOT OTHERWISE SUBJECT TO CALL BY THE GOVERNMENT, HIS PART-TIME ANNUAL SALARY MAY NOT EXCEED AN AMOUNT PROPERLY PAYABLE FOR THE NUMBER OF DAYS AND/OR HOURS OF ACTUAL SERVICE COMPUTED ON THE BASIS OF THE ANNUAL FULL-TIME SALARY FIXED FOR A SIMILAR POSITION IN ACCORDANCE WITH THE PRINCIPLES OF CLASSIFICATION, THE DAILY RATE BEING 1/360 OF THE FULL-TIME ANNUAL SALARY RATE, AND THE HOURLY RATE BEING THE DAILY RATE DIVIDED BY THE NUMBER OF HOURS THE REGULAR FULL-TIME EMPLOYEES IN SIMILAR POSITIONS ARE REQUIRED TO WORK. UNDER THIS RULE, THE MAXIMUM DAILY RATE AUTHORIZED BY THE CLASSIFICATION ACT, BASED ON THE MAXIMUM RATE OF $9,000, WOULD BE $25. FOR INSTANCE, IF DOCTORS READ AND HEIN WERE TO BE REQUIRED TO PERFORM SERVICES ONLY ON THE NUMBER OF DAYS MENTIONED IN THE SECOND LETTER ABOVE QUOTED, AND WERE NOT OTHERWISE SUBJECT TO CALL, AND PERFORMED NO OTHER SERVICE (THE FIRST LETTER ABOVE QUOTED INDICATING THEY ARE SUBJECT TO CALL AT ANY TIME), THE ACTUAL NUMBER OF DAYS ON WHICH SERVICE IS REQUIRED TOTALS ONLY 78 DURING THE YEAR, AND WITHOUT FURTHER SUBDIVIDING THE TIME INTO THE ACTUAL NUMBER OF HOURS SERVICE REQUIRED, IT WOULD APPEAR THAT THE ANNUAL PART-TIME SALARY WOULD BE IN EXCESS OF $1,950 PER ANNUM ( 78/360 OF $9,000) THE PROPER PROPORTION OF THE MAXIMUM SALARY AUTHORIZED BY THE CLASSIFICATION ACT, AND POSSIBLY GREATLY IN EXCESS OF THE MAXIMUM SALARY AUTHORIZED FOR SIMILAR FULL-TIME PHYSICIANS IF THEIR POSITIONS WERE ALLOCATED IN GRADES CARRYING SALARY RANGES LESS THAT $9,000 PER ANNUM. SEE 5 COMP. GEN. 302. PART-TIME SALARY RATES HERETOFORE FIXED CONTRARY TO THE PRINCIPLES HEREIN ANNOUNCED WILL NOT NOW BE DISTURBED, BUT IN SO FAR AS SUCH ACTION HAS NOT BEEN TAKEN, PROPER ADJUSTMENTS IN SUCH SALARY RATES SHOULD BE MADE AS SOON AS POSSIBLE.

HOWEVER WITH THE UNDERSTANDING, AS ABOVE INDICATED, THAT THE PART TIME SALARY RATES FOR THESE PHYSICIANS HAVE BEEN FIXED ON THE BASIS OF THE TWO ELEMENTS ABOVE STATED, NO OBJECTION WILL BE RAISED BY THIS OFFICE, AT THIS TIME, TO THE PART-TIME RATES OF $2,000 AND $2,400 PER ANNUM.

WHERE THE SALARY RATE OF A PART-TIME EMPLOYEE HAS BEEN PROPERLY FIXED ON AN ANNUAL BASIS, DEDUCTION FOR EACH DAY'S ABSENCE FROM DUTY, OR WHEN NOT AVAILABLE FOR DUTY UPON CALL, FOR WHATEVER REASON, SHOULD BE COMPUTED AS 1/360 OF THE ANNUAL PART-TIME RATE. ONE DAY'S SALARY ON THIS BASIS HAS BEEN DEDUCTED ADMINISTRATIVELY FROM THE TOTAL AMOUNT OF THE VOUCHERS PRESENTED BY DOCTORS READ AND HEIN COVERING REIMBURSEMENT FOR EXPENSES AND FEES OF $20 PER DIEM IN CONNECTION WITH SERVICES AS WITNESSES. HOWEVER, THERE IS CLAIMED IN EACH INSTANCE $60 AS WITNESS FEES FOR THREE DAYS. SALARY OF A PART-TIME EMPLOYEE MAY NOT BE PAID FOR ANY DAY ON WHICH THE FEE OF $20 PER DIEM IS AUTHORIZED TO BE PAID UNDER THE ACT OF JULY 3, 1930, SUPRA. ACCORDINGLY, IN EACH INSTANCE THERE WILL BE DEDUCTED AN ADDITIONAL TWO DAYS' SALARY FROM THE AMOUNT OF THE VOUCHER, AND THERE WILL BE CERTIFIED BY THIS OFFICE FOR PAYMENT IN THE CASE OF DOCTOR READ THE REDUCED AMOUNT OF $60.70, AND IN THE CASE OF DOCTOR HEIN, THE REDUCED AMOUNT OF $58.54.

ACTION WILL BE TAKEN, ACCORDINGLY, AS TO ALL SIMILAR ADMINISTRATIVELY APPROVED VOUCHERS NOW BEFORE THIS OFFICE OR HEREAFTER PRESENTED FOR PREAUDIT, BUT OTHERWISE PROPER PAYMENTS HERETOFORE MADE ON A DIFFERENT BASIS WILL NOT NOW BE DISTURBED.