A-39471, NOVEMBER 19, 1931, 11 COMP. GEN. 200

A-39471: Nov 19, 1931

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IS NOT IN CONTRAVENTION OF THE DUAL COMPENSATION ACT OF MAY 10. THIS PRINCIPLE IS NOT APPLICABLE WHERE ONE OF TWO POSITIONS OCCUPIED BY THE SAME PERSON IS FULL TIME WHETHER UNDER THE SAME OR DIFFERENT DEPARTMENT. WHEREIN CREDIT WAS DISALLOWED FOR AN AMOUNT OF $16 PAID ON VOUCHER 7 TO DEPUTY MARSHAL T. THE DISALLOWANCE WAS BASED ON THE PROVISIONS OF THE DUAL COMPENSATION ACT OF MAY 10. IT WAS HELD THAT THERE WOULD BE NO LEGAL OBJECTION TO THE EMPLOYMENT OF SUBSTITUTE POSTAL CLERKS AND CARRIERS AS SUBSTITUTE LABORERS WHEN NOT ON DUTY AS SUBSTITUTE CLERKS OR CARRIERS. THE FOLLOWING IS QUOTED FROM THAT DECISION: THE INSTANT CASE INVOLVES NEITHER THE HOLDING OF TWO POSITIONS NOR THE PAYMENT OF TWO SALARIES FOR THE SAME PERIOD OF TIME.

A-39471, NOVEMBER 19, 1931, 11 COMP. GEN. 200

COMPENSATION, DOUBLE - TWO PART-TIME POSITIONS UNDER DIFFERENT DEPARTMENTS THE EMPLOYMENT ON DIFFERENT DAYS OF THE SAME PERSON IN TWO PART-TIME POSITIONS UNDER DIFFERENT DEPARTMENTS OF THE GOVERNMENT, SUCH AS SUBSTITUTE LETTER CARRIER AND GUARD TO PRISONERS, WITH AN AGGREGATE COMPENSATION IN THE TWO POSITIONS NOT IN EXCESS OF THE RATE OF $2,000 PER ANNUM, IS NOT IN CONTRAVENTION OF THE DUAL COMPENSATION ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582. THIS PRINCIPLE IS NOT APPLICABLE WHERE ONE OF TWO POSITIONS OCCUPIED BY THE SAME PERSON IS FULL TIME WHETHER UNDER THE SAME OR DIFFERENT DEPARTMENT, NOR TO TWO PART-TIME POSITIONS UNDER THE SAME DEPARTMENT IF IN CONTRAVENTION OF THE PROVISIONS OF SECTION 1765, REVISED STATUTES. COMP. GEN. 261, DISTINGUISHED.

COMPTROLLER GENERAL MCCARL TO C. N. HILDRETH, JR. UNITED STATES MARSHAL, NOVEMBER 19, 1931:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 27, 1931, REQUESTING REVIEW, AS THE SUCCESSOR IN OFFICE TO UNITED STATES MARSHAL B. E. DYSON, DECEASED, OF SETTLEMENT F-17381-J OF MARSHAL DYSON'S ACCOUNTS FOR THE QUARTER ENDED DECEMBER 31, 1929, WHEREIN CREDIT WAS DISALLOWED FOR AN AMOUNT OF $16 PAID ON VOUCHER 7 TO DEPUTY MARSHAL T. J. BUNDRIX, REIMBURSEMENT FOR A PAYMENT MADE BY THE DEPUTY TO CARLISLE W. PINDER, SUBSTITUTE LETTER CARRIER, JACKSONVILLE, FLA., FOR 4 DAYS' SERVICE, DECEMBER 10 TO 13, 1929, INCLUSIVE AT $4 PER DIEM AS GUARD TO PRISONERS WHILE BEING TRANSPORTED FROM JACKSONVILLE, FLA., TO WILMINGTON, N.C., AND BROOKLYN, N.Y.

THE DISALLOWANCE WAS BASED ON THE PROVISIONS OF THE DUAL COMPENSATION ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, THE COMBINED ANNUAL RATES OF COMPENSATION OF A SUBSTITUTE CARRIER, EQUIVALENT TO 65 CENTS PER HOUR, OR $1,591.20 PER ANNUM (BASED ON 306 DAYS AND 8 HOURS PER DAY), AND OF A GUARD OF PRISONERS, EQUIVALENT OF $4 PER DAY, OR $1,460 PER ANNUM (BASED ON 365 DAYS), EXCEEDING THE RATE OF $2,000 PER ANNUM, THE MAXIMUM AUTHORIZED BY THE STATUTE FOR DUAL EMPLOYMENT, THERE HAVING BEEN CITED 8 COMP. GEN. 261, AND CASES THEREIN CITED.

IN DECISION OF JULY 16, 1925, 5 COMP. GEN. 39, IT WAS HELD THAT THERE WOULD BE NO LEGAL OBJECTION TO THE EMPLOYMENT OF SUBSTITUTE POSTAL CLERKS AND CARRIERS AS SUBSTITUTE LABORERS WHEN NOT ON DUTY AS SUBSTITUTE CLERKS OR CARRIERS. THE FOLLOWING IS QUOTED FROM THAT DECISION:

THE INSTANT CASE INVOLVES NEITHER THE HOLDING OF TWO POSITIONS NOR THE PAYMENT OF TWO SALARIES FOR THE SAME PERIOD OF TIME. IT INVOLVES ONLY THE QUESTION OF WHETHER A PERSON WHO HAS QUALIFIED FOR AND BEEN APPOINTED TO THE POSITION OF SUBSTITUTE CLERK OR CARRIER MAY BE ASSIGNED, WITH HIS CONSENT, TO TEMPORARY DUTY AS SUBSTITUTE LABORER--- A POSITION OF A LOWER GRADE THAN THAT FOR WHICH HE QUALIFIED AND WAS APPOINTED. A SUBSTITUTE IS ONE WHO IS EMPLOYED ONLY WHEN NEEDED AND IS PAID ONLY FOR TIME ACTUALLY EMPLOYED, THERE BEING NO CERTAINTY WHATEVER AS TO CONTINUITY OF EMPLOYMENT. THE PERIOD OF UNEMPLOYMENT OF A SUBSTITUTE IS NOT THE SAME AS THE PERIOD OF ABSENCE WITHOUT PAY OF A REGULAR AND PERMANENT EMPLOYEE IN APPLYING THE PROVISIONS OF THE ACT OF MAY 10, 1916, AS AMENDED, AND OTHER STATUTES, PROHIBITING DUAL EMPLOYMENT OR PAYMENT OF EXTRA COMPENSATION. IN THE FORMER CASE THE NAME REMAINS ON THE ROLL ONLY AS NEEDED, WHILE IN THE LATTER CASE THE NAME REMAINS ON THE ROLL AS AN EMPLOYEE HOLDING A POSITION UNDER THE GOVERNMENT.

ON OCTOBER 2, 1929, A-28885, THIS PRINCIPLE WAS APPLIED TO PERMIT THE EMPLOYMENT OF A SUBSTITUTE CLERK IN THE AUSTIN, TEX., POST OFFICE AS A TEMPORARY LABORER IN THE FIELD OFFICE OF THE DEPARTMENT OF AGRICULTURE AT AUSTIN, SUBJECT TO CALL FOR POST OFFICE WORK AT ANY TIME, THE SALARY LIMIT NOT TO EXCEED $2,000 PER ANNUM IN THE DUAL EMPLOYMENT. IN DECISION OF NOVEMBER 18, 1929, INVOLVING APPLICATION OF THIS SAME CASE, A-28885, THE POSTMASTER GENERAL WAS ADVISED THAT WHILE SUCH DUAL EMPLOYMENT OF SUBSTITUTES OR PART-TIME EMPLOYEES IN THE SAME DEPARTMENT MIGHT BE IN CONTRAVENTION OF SECTIONS 1764 AND 1765, REVISED STATUTES, IT WOULD BE PERMISSIBLE FOR A SUBSTITUTE POST OFFICE CLERK, SUBSTITUTE CITY CARRIER, SUBSTITUTE VILLAGE CARRIER, OR SUBSTITUTE POST OFFICE LABORER, TO PERFORM TEMPORARY SERVICE FOR SOME OTHER BRANCH OF THE FEDERAL SERVICE PROVIDED THE AGGREGATE SALARIES ACTUALLY RECEIVED IN THE DUAL EMPLOYMENT, NOT THE COMBINED RATES AS FOR FULL TIME SERVICE, WOULD NOT EXCEED THE RATE OF $2,000 PER ANNUM.

IN 8 COMP. GEN. 261 AND CASES THEREIN CITED, THERE WAS CONSIDERED ONE OR TWO FULL-TIME EMPLOYMENTS OR POSITIONS, OR TWO POSITIONS UNDER THE SAME DEPARTMENT, INVOLVING THE APPLICATION OF THE PROVISIONS OF SECTIONS 1764 AND 1765, REVISED STATUTES.

IN THE INSTANT CASE, AS CARLISLE W. PINDER COULD NOT HAVE SERVED DURING THE SAME PERIOD OF TIME BOTH AS SUBSTITUTE CARRIER AND GUARD FOR PRISONERS, AND COULD NOT POSSIBLY HAVE RECEIVED AN AGGREGATE OF COMPENSATION IN BOTH PART-TIME EMPLOYMENTS IN EXCESS OF $2,000 PER ANNUM, EVEN IF HE HAD BEEN EMPLOYED FULL TIME IN ONE OR THE OTHER OF SUCH CAPACITIES, CREDIT FOR THE ITEM IN QUESTION WILL BE ALLOWED IN THE ACCOUNTS IN THE ABSENCE OF OTHER OBJECTIONS.

THE FACTS IN THIS CASE DISTINGUISH IT FROM THE CASE CONSIDERED IN DECISION OF OCTOBER 26, 1927, A-19125, HOLDING THAT A FOURTH-CLASS POSTMASTER, WHO HELD A FULL-TIME POSITION, COULD NOT BE PAID FOR SERVICES AS A GUARD TO PRISONERS, AS THE COMBINED SALARIES EXCEEDED THE RATE OF $2,000 PER ANNUM.