A-43350, JULY 19, 1932, 12 COMP. GEN. 76

A-43350: Jul 19, 1932

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A CIVILIAN EMPLOYEE WHOSE COMPENSATION IS AT A RATE LESS THAN $2. IF THE COMBINED RATE OF COMPENSATION UNDER THE TWO POSITIONS IS IN EXCESS OF $2. IT WILL PROBABLY BE NECESSARY FOR THIS COMMISSION TO ADMINISTRATIVELY FURLOUGH WITHOUT PAY SOME OR ALL OF ITS EMPLOYEES IN ORDER TO KEEP WITHIN THE APPROPRIATIONS FOR THE FISCAL YEAR 1933. SOME OF THE COMMISSION'S EMPLOYEES SO FURLOUGHED COULD BE USED TO CONSIDERABLE ADVANTAGE IN OTHER DEPARTMENTS OR OFFICES FOR WHICH APPROPRIATIONS ARE SUFFICIENT TO CARRY ON THE WORK OF THE DEPARTMENT WITHOUT ANY FURLOUGH OTHER THAN THAT REQUIRED BY SECTION 101 OF THE ABOVE-CITED ACT. YOUR RULING IS REQUESTED ON THE FOLLOWING QUESTIONS: (1) IS THERE ANY PROHIBITION IN LAW ON THE EMPLOYMENT BY ANOTHER DEPARTMENT OR OFFICE OF AN EMPLOYEE OF THIS COMMISSION DURING THE TIME SUCH EMPLOYEE IS ON A FURLOUGH WITHOUT PAY STATUS BUT WHOSE NAME IS STILL BORNE ON THE ROLLS OF THE COMMISSION AND WHOSE ANNUAL COMPENSATION AS AN EMPLOYEE OF THIS COMMISSION IS AT A RATE IN EXCESS OF $2.

A-43350, JULY 19, 1932, 12 COMP. GEN. 76

ECONOMY ACT - HOLDING TWO POSITIONS DURING ADMINISTRATIVE FURLOUGH IN VIEW OF THE TERMS OF SECTION 1765, REVISED STATUTES, AND THE ACT OF JULY 31, 1894, 28 STAT. 205, A CIVILIAN EMPLOYEE OF THE GOVERNMENT HOLDING A POSITION THE SALARY ATTACHED TO WHICH AMOUNTS TO $2,500 PER ANNUM OR MORE MAY NOT BE EMPLOYED IN ANY OTHER POSITION UNDER THE GOVERNMENT WITH COMPENSATION ATTACHING DURING THE PERIOD OF ADMINISTRATIVE FURLOUGH WITHOUT PAY REQUIRED UNDER THE TERMS OF SECTION 216 OF THE ACT OF JUNE 30, 1932, 47 STAT. 407. IN VIEW OF THE TERMS OF SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, A CIVILIAN EMPLOYEE WHOSE COMPENSATION IS AT A RATE LESS THAN $2,500 PER ANNUM MAY NOT BE EMPLOYED IN A POSITION UNDER ANOTHER DEPARTMENT OR OFFICE OF THE GOVERNMENT DURING THE PERIOD OF ADMINISTRATIVE FURLOUGH WITHOUT PAY REQUIRED BY SECTION 216 OF THE ACT OF JUNE 30, 1932, 47 STAT. 407, IF THE COMBINED RATE OF COMPENSATION UNDER THE TWO POSITIONS IS IN EXCESS OF $2,000 PER ANNUM.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT OF THE CIVIL SERVICE COMMISSION, JULY 19, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 11, 1932, AS FOLLOWS:

UNDER SECTION 216 OF THE ACT APPROVED JUNE 30, 1932, PUBLIC, NO. 212, IT WILL PROBABLY BE NECESSARY FOR THIS COMMISSION TO ADMINISTRATIVELY FURLOUGH WITHOUT PAY SOME OR ALL OF ITS EMPLOYEES IN ORDER TO KEEP WITHIN THE APPROPRIATIONS FOR THE FISCAL YEAR 1933. BECAUSE OF THEIR SPECIAL TRAINING AND QUALIFICATIONS, SOME OF THE COMMISSION'S EMPLOYEES SO FURLOUGHED COULD BE USED TO CONSIDERABLE ADVANTAGE IN OTHER DEPARTMENTS OR OFFICES FOR WHICH APPROPRIATIONS ARE SUFFICIENT TO CARRY ON THE WORK OF THE DEPARTMENT WITHOUT ANY FURLOUGH OTHER THAN THAT REQUIRED BY SECTION 101 OF THE ABOVE-CITED ACT. YOUR RULING IS REQUESTED ON THE FOLLOWING QUESTIONS:

(1) IS THERE ANY PROHIBITION IN LAW ON THE EMPLOYMENT BY ANOTHER DEPARTMENT OR OFFICE OF AN EMPLOYEE OF THIS COMMISSION DURING THE TIME SUCH EMPLOYEE IS ON A FURLOUGH WITHOUT PAY STATUS BUT WHOSE NAME IS STILL BORNE ON THE ROLLS OF THE COMMISSION AND WHOSE ANNUAL COMPENSATION AS AN EMPLOYEE OF THIS COMMISSION IS AT A RATE IN EXCESS OF $2,500 PER ANNUM?

(2) UNDER THE SAME CONDITIONS AS THOSE MENTIONED IN (1), IS THERE ANY PROHIBITION ON THE EMPLOYMENT BY ANOTHER DEPARTMENT OR OFFICE OF SUCH AN EMPLOYEE OF THIS COMMISSION WHOSE ANNUAL COMPENSATION IS AT A RATE OF LESS THAN $2,500 BUT WHOSE COMBINED COMPENSATION FROM THE TWO OFFICES WOULD BE IN EXCESS OF $2,000 PER ANNUM?

IN THIS CONNECTION THE COMMISSION WOULD CALL ATTENTION TO THE FACT THAT, BY REASON OF ITS RELATION TO THE ENTIRE EXECUTIVE BRANCH OF THE GOVERNMENT AS A PERSONNEL AGENCY, SUCH EMPLOYMENT BY OTHER OFFICES WOULD SEEM TO BE IN THE PUBLIC INTEREST IN THAT FIRST-HAND KNOWLEDGE OF THE PROBLEMS AND WORK CONFRONTING THE SERVICE WOULD BE IN THE POSSESSION OF THE COMMISSION'S EMPLOYEES WHEN ENGAGED IN THE PERFORMANCE OF THEIR DUTIES FOR THE COMMISSION PROPER.

IT IS ALSO PRESENTED FOR CONSIDERATION THAT SECTION 2 OF THE ACT OF JULY 31, 1894 (28 STAT. 205), AND SECTION 6 OF THE ACT OF AUGUST 29, 1916 (39 STAT. 582), SEEM TO CONTEMPLATE THE RECEIPT OF TWO SALARIES COVERING THE SAME PERIOD OF TIME. IN THE CASES HERE UNDER CONSIDERATION THE PERSONS EMPLOYED BY OTHER DEPARTMENTS OR OFFICES WILL BE IN RECEIPT OF NO SALARY OR COMPENSATION OF ANY KIND FROM THIS COMMISSION DURING SUCH EMPLOYMENT.

YOUR QUESTION INVOLVES THE APPLICATION OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AND SECTION 1765, REVISED STATUTES, PROVIDING AS FOLLOWS:

* * * NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY HERETOFORE OR HEREAFTER SPECIALLY AUTHORIZED THERETO BY LAW; * * *

SEC. 1765. 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.

IN DECISION OF APRIL 12, 1923, 2 COMP. GEN. 649, WHEREIN THESE STATUTORY RESTRICTIONS WERE APPLIED, IT WAS STATED (QUOTING FROM THE SYLLABUS):

A CIVILIAN EMPLOYEE OF THE GOVERNMENT HOLDING A POSITION THE SALARY ATTACHED TO WHICH AMOUNTS TO $2,500 OR MORE MAY NOT BE EMPLOYED IN ANY OTHER POSITION UNDER THE GOVERNMENT WITH COMPENSATION ATTACHED, IT BEING IMMATERIAL THAT HE WAS IN A LEAVE-WITHOUT-PAY STATUS FROM THE FIRST POSITION FOR THE PERIOD COVERED BY THE SECOND POSITION.

YOUR SECOND QUESTION INVOLVES THE APPLICATION OF SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, AS FOLLOWS:

SEC. 6. 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 JUNE 4, 1924, 3 COMP. GEN. 913, 916, WHEREIN THIS STATUTORY RESTRICTION WAS APPLIED, IT WAS STATED:

IT WAS STATED IN THE DECISION OF APRIL 12, 1923, THAT THE FACT THAT YOU WERE AWAY FROM YOUR PERMANENT POSITION AS SUPERVISING CHIEF ENGINEER ON LEAVE OF ABSENCE WITHOUT PAY DOES NOT TAKE YOUR CASE OUT OF THE INHIBITION CONTAINED IN SECTION 1765, REVISED STATUTES, AND THE ACT OF AUGUST 29, 1916, 39 STAT. 582, AND THAT WHETHER ACTUALLY IN RECEIPT OF SALARY AS SUPERVISING CHIEF ENGINEER DURING THE PERIOD IN QUESTION IS IMMATERIAL. THAT OPINION MUST BE AND IS ADHERED TO. AS YOU APPEAR TO HAVE BEEN GRANTED LEAVE FROM THE TREASURY TO PERMIT YOU TO PERFORM A CERTAIN SERVICE FOR THE WAR DEPARTMENT, YOUR SERVICES WERE IN EFFECT LOANED BY THE TREASURY DEPARTMENT TO THE WAR DEPARTMENT, AND THEREFORE YOU WERE ENTITLED TO BE ALLOWED THE PAY OF THE POSITION LEGALLY HELD BY YOU UNDER THE TREASURY DEPARTMENT WHILE PERFORMING THE SERVICE FOR THE WAR DEPARTMENT. 14 COMP. DEC. 294; 15 ID., 692; 21 ID., 66; 23 ID., 242.

THE LOANING OF EMPLOYEES FROM ONE DEPARTMENT TO ANOTHER, WITH CERTAIN EXCEPTIONS, DOES NOT RELIEVE THE APPROPRIATION PROVIDING FOR THE SALARY OF THE LOANED EMPLOYEE, NOR AUTHORIZE A CHARGE AGAINST THE APPROPRIATION OF A DEPARTMENT TO WHICH THE EMPLOYEES ARE LOANED. SEE 6 COMP. GEN. 217; 7 ID., 709, 710; 10 ID., 131, 193, 275.

REFERRING TO THE SUGGESTION MADE IN YOUR CONCLUDING PARAGRAPH, IN DECISION OF MARCH 6, 1925, 4 COMP. GEN. 736, 737, IT WAS STATED:

IT HAS BEEN HELD UNIFORMLY THAT THE ACT CITED REFERS TO SALARIES AND NOT TO PAYMENTS OR AMOUNTS ACTUALLY RECEIVED, AND TO RATE OF THE COMBINED SALARIES RATHER THAN THE AGGREGATE AMOUNT RECEIVED DURING A YEAR, AND THAT NO PAYMENT OF A PART OF A SALARY IS AUTHORIZED IF THE WHOLE TAKEN WITH THE SALARY OF ANOTHER POSITION OR POSITIONS EXCEEDS THE LIMITATION FIXED BY THE STATUTE. 3 COMP. GEN. 260. IN OTHER WORDS, IF THE SALARIES OF THE POSITIONS, COMPUTED ON THE BASIS OF THE NUMBER OF HOURS PER DAY ORDINARILY WORKED, AND THE USUAL NUMBER OF DAYS PER ANNUM, AMOUNT TO MORE THAN $2,000, THE PROHIBITION IN THE ACT OF MAY 10, 1916, APPLIES.

AND IN DECISION OF NOVEMBER 19, 1928, 8 COMP. GEN. 261, 263, IT WAS STATED:

IT HAS BEEN UNIFORMLY HELD THAT THE LIMITATION IN THE STATUTES OF 1916, SUPRA, HAS REFERENCE TO THE RATE OF THE COMBINED SALARIES RATHER THAN TO THE AGGREGATE AMOUNT RECEIVED DURING THE YEAR, AND THAT NO PAYMENT OF A PART OF A SALARY IS AUTHORIZED IF THE ANNUAL RATE TAKEN WITH THE SALARY OF ANY OTHER POSITION OR POSITIONS HELD BY THE EMPLOYEE EXCEEDS THE LIMITS FIXED BY STATUTE. IT IS IMMATERIAL ON WHAT MEASURE OF TIME THE SALARY IS BASED, WHETHER PER ANNUM, PER DIEM, PER HOUR, OR PIECEWORK IF THE REMUNERATION CONSTITUTES SALARY AS DISTINGUISHED FROM FEES. THE SALARY IN EACH INSTANCE MUST BE REDUCED TO OR COMPUTED ON AN ANNUAL BASIS TO DETERMINE WHETHER THERE HAS BEEN A VIOLATION OF THE STATUTE. FOR INSTANCE, IN DECISION OF OCTOBER 26, 1923, 3 COMP. GEN. 260, IT WAS HELD (QUOTING FROM THE SYLLABUS):

"EMPLOYMENT OF THE SAME PERSON AS LABORER AND AS CLERK AT THE SAME TIME WHEN THE COMBINED SALARIES EXCEED AN AGGREGATE RATE OF $2,000 PER ANNUM IS PROHIBITED BY THE ACT OF MAY 10, 1916, 39 STAT. 120, IT BEING IMMATERIAL THAT BY REASON OF THE INTERMITTENT CHARACTER OF THE EMPLOYMENT THE TOTAL PAY ACTUALLY RECEIVED PER ANNUM DOES NOT AMOUNT TO $2,000.'

SEE, ALSO, 4 COMP. GEN. 521. THE RULE HAS BEEN APPLIED AS LATE AS SEPTEMBER 20, 1928, IN DECISION ADDRESSED TO THE CIVIL SERVICE COMMISSION, A-24419, IN A CASE INVOLVING A PERSON RECEIVING COMBINED SALARY RATE OF A SUBSTITUTE RAILWAY MAIL CLERK AT $1,850 PER ANNUM AND A SUBSTITUTE LETTER CARRIER AT 65 CENTS PER HOUR, BOTH RATES HAVING BEEN ESTABLISHED BY LAW.

THE RULE AS TO EMPLOYMENT UNDER DIFFERENT DEPARTMENTS OF THE SAME PERSON IN TWO PART-TIME POSITIONS IS STATED IN DECISION OF NOVEMBER 19, 1931, 11 COMP. GEN. 200 (QUOTING FROM THE SYLLABUS):

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.

IN THE ABSENCE OF ANY PROVISION IN THE STATUTE, EXPRESSED OR IMPLIED TO THE CONTRARY, ADMINISTRATIVE FURLOUGHS WITHOUT PAY REQUIRED UNDER SECTION 216 OF THE ACT OF JUNE 30, 1932, PUBLIC, NO. 212, 47 STAT. 407, TO KEEP WITHIN APPROPRIATIONS MADE FOR THE FISCAL YEAR 1933, ARE TO BE CONSIDERED THE SAME AS LEAVE OF ABSENCE WITHOUT PAY IN APPLYING THE WELL-SETTLED PRINCIPLES HERETOFORE ANNOUNCED IN THE INTERPRETATION OF THE DUAL COMPENSATION STATUTES.

YOU ARE ADVISED, THEREFORE, THAT THE LAW PROHIBITS DUAL EMPLOYMENT UNDER THE CONDITIONS SET FORTH IN PARAGRAPHS (1) AND (2) OF YOUR LETTER.