A-41824, MAY 11, 1932, 11 COMP. GEN. 426

A-41824: May 11, 1932

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AERNE WAS TEMPORARILY APPOINTED (DETAILED TO THE WAR DEPARTMENT) AS AN UNSKILLED LABORER. HE WAS PROMOTED FROM $1. HIS POSITION WAS ALLOCATED TO CU-3. WHICH IS HIS PRESENT GRADE AND SALARY. AERNE WAS APPOINTED POSTMASTER AT AMERICAN LAKE. AT WHICH TIME HE WAS HOLDING THE POSITION OF UNSKILLED LABORER UNDER THE VETERANS' BUREAU. THE ABOVE QUOTED STATUTE WAS HELD APPLICABLE TO THE CASE OF A FOURTH CLASS POSTMASTER WHO WAS SEEKING ANOTHER POSITION UNDER THE DEPARTMENT OF AGRICULTURE. IT WAS SAID: UNDER THIS STATUTE. AERNE OF THE SALARIES OF THE OFFICE OF FOURTH CLASS POSTMASTER AND THE POSITION OF UNSKILLED LABORER UNDER THE VETERANS' ADMINISTRATION FOR THE SAME PERIOD WAS IN DIRECT CONTRAVENTION OF THE PLAIN PROVISIONS OF THE ACT OF 1916.

A-41824, MAY 11, 1932, 11 COMP. GEN. 426

COMPENSATION - DOUBLE - FOURTH-CLASS POSTMASTERS IN APPLYING SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582, PROHIBITING ONE PERSON FROM RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT EXCEEDS THE SUM OF $2,000, THERE MAY NOT BE DEDUCTED IN COMPUTING THE TOTAL COMPENSATION OF A FOURTH-CLASS POSTMASTER THE AMOUNT PAID BY HIM TO HIS ASSISTANTS OR CLERKS.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 11, 1932:

THERE HAS BEEN BROUGHT TO THE ATTENTION OF THIS OFFICE BY THE CIVIL SERVICE COMMISSION THAT CHAUNCEY P. AERNE HAS BEEN HOLDING TWO POSITIONS, ONE AS FOURTH-CLASS POSTMASTER AT AMERICAN LAKE, WASH., AND THE OTHER AS UNSKILLED LABORER UNDER THE VETERANS' ADMINISTRATION IN A HOSPITAL AT THE SAME PLACE.

UNDER DATE OF APRIL 29, 1932, THE VETERANS' ADMINISTRATION REPORTED AS FOLLOWS:

THE RECORDS OF THIS ADMINISTRATION SHOW THAT MR. AERNE WAS TEMPORARILY APPOINTED (DETAILED TO THE WAR DEPARTMENT) AS AN UNSKILLED LABORER, UNCLASSIFIED, AT A SALARY OF $1,200, EFFECTIVE MAY 1, 1923, AT THE HOSPITAL, AMERICAN LAKE, WASHINGTON; APPOINTMENT CHANGED TO $4.00 PER DAY WHEN ACTUALLY EMPLOYED, EFFECTIVE NOVEMBER 1, 1923; RESIGNED DECEMBER 1, 1923, AND TEMPORARILY REAPPOINTED AT A SALARY OF $1,200, EFFECTIVE DECEMBER 3, 1923. HE WAS PROMOTED FROM $1,200 TO $1,260 EFFECTIVE JANUARY 16, 1927, AND FROM $1,260 TO $1,320 EFFECTIVE AS OF JULY 1, 1928, UNDER THE PROVISIONS OF THE WELCH ACT. EFFECTIVE DECEMBER 1, 1929, HIS POSITION WAS ALLOCATED TO CU-3, $1,320, WHICH IS HIS PRESENT GRADE AND SALARY.

THE RECORDS OF THIS OFFICE DISCLOSE THAT CHAUNCEY P. AERNE WAS APPOINTED POSTMASTER AT AMERICAN LAKE, WASH., A FOURTH-CLASS POST OFFICE, JULY 2, 1925, AT WHICH TIME HE WAS HOLDING THE POSITION OF UNSKILLED LABORER UNDER THE VETERANS' BUREAU; THAT IN HIS APPLICATION FOR POSTMASTER HE GAVE THE ANSWER "NONE" IN REPLYING TO THE QUESTION, "WHAT, IF ANY, PUBLIC OFFICE DO YOU HOLD? " AND THAT FOR PERIOD FROM MARCH 1, 1929, TO DECEMBER 31, 1931, HE HAS RECEIVED COMPENSATION AS POSTMASTER IN THE TOTAL AMOUNT OF $2,485.31, AS FOLLOWS:

MONTH OF MARCH, 1929, $63.62 (31/90 OF $184.70, TOTAL FOR QUARTER).

QUARTER ENDED:

JUNE 30, 1929 --------------------------------------- $ 184.38

SEPT. 30, 1929 -------------------------------------- 180.76

DEC. 31, 1929 ---------------------------------------270.46

MAR. 31, 1930 --------------------------------------- 198.20

JUNE 30, 1930 --------------------------------------- 198.45

SEPT. 30, 1930 -------------------------------------- 200.69

DEC. 31, 1930 --------------------------------------- 272.15

MAR. 31, 1931 --------------------------------------- 226.40

JUNE 30, 1931 --------------------------------------- 223.59

SEPT. 30, 1931 -------------------------------------- 196.95

DEC. 31, 1931 --------------------------------------- 268.66

2,485.31

(ACCOUNT FOR THE QUARTER ENDED MARCH 31, 1932, HAS NOT YET BEEN RECEIVED.)

THE TOTAL RATE OF COMPENSATION IN THE TWO POSITIONS FOR ALL PERIODS SINCE MARCH 1, 1929, EXCEEDS THE RATE OF $2,000 PER ANNUM.

SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582, PROVIDES IN PART AS FOLLOWS:

THAT UNLESS OTHERWISE SPECIALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM, * * *.

IN DECISION OF AUGUST 1, 1931, 11 COMP. GEN. 41, 42, THE ABOVE QUOTED STATUTE WAS HELD APPLICABLE TO THE CASE OF A FOURTH CLASS POSTMASTER WHO WAS SEEKING ANOTHER POSITION UNDER THE DEPARTMENT OF AGRICULTURE, AND IT WAS SAID:

UNDER THIS STATUTE, WHILE THE AMOUNT OF REMUNERATION PAID TO FOURTH CLASS POSTMASTERS VARIER DUE TO FLUCTUATION IN RECEIPTS AND THE BUSINESS TRANSACTED, THE PAYMENT TO THE POSTMASTERS FOR THEIR SERVICE CONSTITUTES "SALARY" WITHIN THE MEANING OF THE 1916 STATUTE, AND NOT FEES. SEE DECISION OF OCTOBER 26, 1927, A-19125, AND MAY 9,1931, A 36483.

THERE WOULD APPEAR TO BE NO ROOM FOR REASONABLE DOUBT THAT THE RECEIPT BY CHAUNCEY P. AERNE OF THE SALARIES OF THE OFFICE OF FOURTH CLASS POSTMASTER AND THE POSITION OF UNSKILLED LABORER UNDER THE VETERANS' ADMINISTRATION FOR THE SAME PERIOD WAS IN DIRECT CONTRAVENTION OF THE PLAIN PROVISIONS OF THE ACT OF 1916, SUPRA. IF CONTINUED IN THE SERVICE, HE MAY ELECT WHICH OF THE TWO POSITIONS HE WILL RETAIN HEREAFTER.

THERE IS NO MERIT IN HIS CONTENTION, IN LETTER FORWARDED BY THE VETERANS' ADMINISTRATION THAT HE SHOULD BE GIVEN CREDIT FOR AN AMOUNT PAID BY HIM OUT OF HIS COMPENSATION AS FOURTH-CLASS POSTMASTER FOR AN ASSISTANT POSTMASTER. WHILE THE POSTAL REGULATIONS, SECTION 331, REQUIRE FOURTH- CLASS POSTMASTERS TO DESIGNATE SOMEONE TO ACT IN THEIR ABSENCE, AND AUTHORIZE THEM TO EMPLOY CLERKS, IT IS SPECIFICALLY PROVIDED THAT THERE SHALL BE NO EXPENSE TO THE GOVERNMENT ON ACCOUNT THEREOF. ACCORDINGLY, IT MUST BE HELD THAT THERE MAY NOT BE DEDUCTED, IN COMPUTING THE TOTAL COMPENSATION OF A FOURTH-CLASS POSTMASTER, THE AMOUNT PAID BY HIM TO HIS ASSISTANTS OR CLERKS. FURTHERMORE, THE POST OFFICE DEPARTMENT ADVISES THAT IT HAS NO RECORD OF ANY APPOINTMENT AS ASSISTANT POSTMASTER AT AMERICAN LAKE, WASHINGTON.

AS SOON AS THE ACCOUNTS ARE AVAILABLE SHOWING THE TOTAL AMOUNT OF THE ILLEGAL PAYMENTS INVOLVED IN THIS CASE A SETTLEMENT WILL BE STATED IN FAVOR OF THE UNITED STATES CHARGING CHAUNCEY P. AERNE THE TOTAL AMOUNT OF COMPENSATION RECEIVED AS FOURTH-CLASS POSTMASTER FROM AND AFTER MARCH 1, 1929 (DATE OF RELIEF ACT, 45 STAT. 1442, RELATIVE TO DUAL EMPLOYMENTS IN THE POSTAL SERVICE), IT BEING ASSUMED THAT THIS EMPLOYEE WILL DESIRE TO BE CHARGED THE COMPENSATION OF THE POSITION IN WHICH HE RECEIVED THE SMALLER AMOUNT.