A-43425, JULY 23, 1932, 12 COMP. GEN. 105

A-43425: Jul 23, 1932

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000 IS SUBJECT TO AN 8 1/3 PERCENT REDUCTION UNDER THE TERMS OF SECTION 105 (D) (6) OF THE ACT OF JUNE 30. SHOULD BE BASED ON THE GROSS ANNUAL COMPENSATION RATE OF EMPLOYEES RECEIVING COMPENSATION PARTLY IN CASH AND PARTLY IN ALLOWANCES FURNISHED IN KIND THE VALUE OF WHICH IS REQUIRED BY THE TERMS OF THE ACT OF MARCH 5. ARE THE PROVISIONS OF THIS SECTION APPLICABLE TO A PART-TIME PHYSICIAN EMPLOYED ON A BASIS OF ONE HOUR'S SERVICE PER DAY. WHICH IS EQUIVALENT TO AN ANNUAL SALARY RATE OF $5. IS THERE REQUIRED TO BE INCLUDED IN COMPUTING THE SALARY RATE OF AN EMPLOYEE APPOINTED AT. IT WAS STATED: * * * YOU ARE ADVISED. IF IT IS ADMINISTRATIVELY IMPRACTICAL TO APPLY THE 5-DAY WEEK OR LEGISLATIVE FURLOUGH TO ANY PERSONS REGULARLY WORKING ONLY PART TIME.

A-43425, JULY 23, 1932, 12 COMP. GEN. 105

ECONOMY ACT - PART-TIME EMPLOYEES THE PART-TIME COMPENSATION OF PHYSICIANS UNDER THE VETERANS' ADMINISTRATION BASED ON AN ANNUAL RATE IN EXCESS OF $1,000 IS SUBJECT TO AN 8 1/3 PERCENT REDUCTION UNDER THE TERMS OF SECTION 105 (D) (6) OF THE ACT OF JUNE 30, 1932, 47 STAT. 401. THE LEGISLATIVE FURLOUGH AND PERCENTAGE REDUCTIONS IN COMPENSATION REQUIRED BY THE ACT OF JUNE 30, 1932, 47 STAT. 399, 401, SHOULD BE BASED ON THE GROSS ANNUAL COMPENSATION RATE OF EMPLOYEES RECEIVING COMPENSATION PARTLY IN CASH AND PARTLY IN ALLOWANCES FURNISHED IN KIND THE VALUE OF WHICH IS REQUIRED BY THE TERMS OF THE ACT OF MARCH 5, 1928, 45 STAT. 193, TO BE DETERMINED AND CONSIDERED A PART OF COMPENSATION.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JULY 23, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 15, 1932, AS FOLLOWS:

THE LEGISLATIVE ACT OF JUNE 30, 1932 (PUBLIC, NO. 212, 72D CONGRESS), UNDER PART II, TITLE I, RELATING TO FURLOUGH OF FEDERAL EMPLOYEES, DIRECTS IN ITS SECTION 101 (B) THAT---

"EACH OFFICER OR EMPLOYEE RECEIVING COMPENSATION ON AN ANNUAL BASIS AT THE RATE OF MORE THAN $1,000 PER ANNUM SHALL BE FURLOUGHED WITHOUT COMPENSATION FOR ONE CALENDAR MONTH, OR FOR SUCH PERIODS AS SHALL IN THE AGGREGATE BE EQUIVALENT TO ONE CALENDAR MONTH, FOR WHICH LATTER PURPOSE TWENTY-FOUR WORKING DAYS (COUNTING SATURDAY AS ONE-HALF DAY) SHALL BE CONSIDERED AS THE EQUIVALENT OF ONE CALENDAR MONTH: PROVIDED, THAT WHERE THE NATURE OF THE DUTIES OF ANY SUCH OFFICER OR EMPLOYEE RENDER IT ADVISABLE, THE PROVISIONS OF SUBSECTION (A) MAY BE APPLIED IN LIEU OF THE PROVISIONS OF THIS SUBSECTION: PROVIDED FURTHER, THAT NO OFFICER OR EMPLOYEE SHALL, WITHOUT HIS CONSENT, BE FURLOUGHED UNDER THIS SUBSECTION FOR MORE THAN FIVE DAYS IN ANY ONE CALENDAR MONTH: PROVIDED FURTHER, THAT THE RATE OF COMPENSATION OF ANY EMPLOYEE FURLOUGHED UNDER THE PROVISIONS OF THIS ACT SHALL NOT BE REDUCED BY REASON OF THE ACTION OF ANY WAGE BOARD DURING THE FISCAL YEAR 1933.'

ARE THE PROVISIONS OF THIS SECTION APPLICABLE TO A PART-TIME PHYSICIAN EMPLOYED ON A BASIS OF ONE HOUR'S SERVICE PER DAY, OR $742.86 PER ANNUM, WHICH IS EQUIVALENT TO AN ANNUAL SALARY RATE OF $5,200.00?

SECTION 104 (B) OF THE ACT PROVIDES:

"THE TERM "COMPENSATION" MEANS ANY SALARY, PAY, WAGE, ALLOWANCE (EXCEPT ALLOWANCES FOR SUBSISTENCE, QUARTERS, HEAT, LIGHT, AND TRAVEL), OR OTHER EMOLUMENT PAID FOR SERVICES RENDERED IN ANY CIVILIAN OR NONCIVILIAN OFFICE, POSITION, OR EMPLOYMENT; AND INCLUDES THE RETIRED PAY OF JUDGES, AND THE RETIRED PAY OF ALL COMMISSIONED AND OTHER PERSONNEL OF THE COAST AND GEODETIC SURVEY, THE LIGHTHOUSE SERVICE, AND THE PUBLIC HEALTH SERVICE, AND THE RETIRED PAY OF ALL COMMISSIONED AND OTHER PERSONNEL (EXCEPT ENLISTED) OF THE ARMY, NAVY, MARINE CORPS, AND COAST GUARD; BUT DOES NOT INCLUDE THE ACTIVE OR RETIRED PAY OF THE ENLISTED PERSONNEL OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD; AND DOES NOT INCLUDE PAYMENTS OUT OF ANY RETIREMENT, DISABILITY, OR RELIEF FUND MADE UP WHOLLY OR IN PART OF CONTRIBUTIONS OF EMPLOYEES.'

UNDER THE STATUTORY DEFINITION OF THE TERM "COMPENSATION," IN APPLYING THE FURLOUGH PROVISIONS OF SECTION 101 (B), IS THERE REQUIRED TO BE INCLUDED IN COMPUTING THE SALARY RATE OF AN EMPLOYEE APPOINTED AT, SAY, $1,450.00 PER ANNUM, THE DETERMINED VALUE OF ALLOWANCES OF QUARTERS,HEAT, LIGHT, SUBSISTENCE, AND LAUNDRY, AGGREGATING $450.00, FURNISHED IN KIND AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH EMPLOYEE UNDER SECTION 3 OF THE ACT OF MARCH 5, 1928 (45 STAT. 193/?

IN DECISION OF JULY 14, 1932, TO THE SECRETARY OF THE NAVY, A-43185, 12 COMP. GEN. 30, APPLYING THE PROVISIONS OF SECTION 101 (A) OF THE ECONOMY ACT OF JUNE 30, 1932, PUBLIC 212, 47 STAT. 399, AUTHORIZING A 5-DAY WEEK, TO PART-TIME PER DIEM EMPLOYEES UNDER THE NAVAL ESTABLISHMENT, WHO, PRIOR TO JULY 1, 1932 DID NOT REGULARLY WORK FIVE DAYS PER WEEK, IT WAS STATED:

* * * YOU ARE ADVISED, THEREFORE, THAT THE PROVISIONS OF SECTION 101 (A) DO NOT APPLY TO PART-TIME PER DIEM EMPLOYEES AS DISTINGUISHED FROM FULL- TIME EMPLOYEES ON AUTHORIZED LEAVE OR FURLOUGH WITH PAY A PORTION OF THE 5 -DAY WEEK. IF IT IS ADMINISTRATIVELY IMPRACTICAL TO APPLY THE 5-DAY WEEK OR LEGISLATIVE FURLOUGH TO ANY PERSONS REGULARLY WORKING ONLY PART TIME, WHO COME WITHIN THE TERMS "OFFICER" AND "EMPLOYEE," AS DEFINED IN SECTION 104 OF THE STATUTE, THEIR COMPENSATION RATE AS OF JUNE 30, 1932, IS SUBJECT TO 8 1/3 PERCENT REDUCTION. SEE SECTION 105 (D) (6).

THE SAME PRINCIPLE IS APPLICABLE TO PART-TIME PHYSICIANS OR OTHER PART- TIME EMPLOYEES UNDER THE VETERANS' ADMINISTRATION IN THE APPLICATION OF THE PROVISIONS OF SECTION 101 (B) OF THE ECONOMY ACT. THAT IS TO SAY, IF IT IS ADMINISTRATIVELY IMPRACTICABLE TO APPLY THE LEGISLATIVE FURLOUGH OF 30 CALENDAR DAYS TO PART-TIME PHYSICIANS OR OTHER EMPLOYEES, THE PART-TIME COMPENSATION RATE AS OF JUNE 30, 1932, IF IN EXCESS OF $1,000 PER ANNUM, IS SUBJECT TO THE PERCENTAGE REDUCTIONS REQUIRED BY SECTION 105 (D) OF THE ACT, IN THIS CASE 8 1/3 PERCENT.

IN DECISION OF JULY 16, 1932, TO THE SECRETARY OF WAR, A-43198, 12 COMP. GEN. 57, IT WAS TATED:

AS TO PER DIEM EMPLOYEES, IT IS THE REGULAR PER DIEM RATE OF COMPENSATION EQUIVALENT TO THE PER ANNUM RATE COMPUTED IN ACCORDANCE WITH SECTION 104 (C) OF THE ACT, WHICH CONTROLS, NOT THE TOTAL AMOUNT RECEIVED DURING THE YEAR OR DURING A PAY PERIOD. * * *

LIKEWISE, IN DETERMINING WHETHER A PART-TIME PHYSICIAN OR OTHER EMPLOYEE RECEIVES COMPENSATION IN EXCESS OF $1,000 PER ANNUM, IT IS THE RATE OF COMPENSATION, WHICH IN THE EXAMPLE GIVEN IS $5,200 PER ANNUM, NOT THE TOTAL AMOUNT RECEIVED DURING THE YEAR, OR $742.86. SINCE IT WOULD APPEAR TO BE IMPRACTICABLE TO APPLY THE LEGISLATIVE FURLOUGH TO THIS POSITION, THE PROVISIONS OF SECTION 105 (D) (6) ARE APPLICABLE AND THE COMPENSATION OF THE PART-TIME PHYSICIAN IN THE ILLUSTRATION GIVEN WILL BE REDUCED BY 8 1/3 PERCENT, WHICH MUST BE IMPOUNDED.

IT WILL BE NOTED THAT THE STATUTE DEFINES THE TERM "COMPENSATION" AS INCLUDING ANY SALARY, PAY, WAGE, ALLOWANCE, OR OTHER EMOLUMENT PAID FOR SERVICES, AND IT EXCEPTS FROM ALLOWANCE ONLY ,ALLOWANCES FOR SUBSISTENCE, QUARTERS, HEAT, LIGHT, AND TRAVEL.' UNDER THE WELL ESTABLISHED RULE FOR THE CONSTRUCTION OF STATUTES THE EXCEPTION IS TO BE STRICTLY CONSTRUED. THAT IS TO SAY, UNDER THIS BROAD DEFINITION, ANYTHING OF VALUE WHICH AN OFFICER OR EMPLOYEE RECEIVES FOR HIS SERVICES MUST BE REGARDED AS COMPENSATION UNLESS CLEARLY WITHIN THE EXCEPTION. THE EXCEPTION IS NOT TO BE ENLARGED BY CONSTRUCTION.

THERE ARE CERTAIN OFFICERS AND EMPLOYEES WHO RECEIVE, IN ADDITION TO THEIR SALARIES AS FIXED BY LAW, ONE OR MORE OF THE ALLOWANCES MENTIONED IN THE EXCEPTION, AND THERE WOULD APPEAR TO BE NO ROOM FOR REASONABLE DOUBT THAT THE EXCEPTION WAS INTENDED TO APPLY TO SUCH ALLOWANCES ONLY. THERE APPEARS NOTHING IN THE ENACTMENT TO INDICATE AN INTENT TO EXCEPT FROM THE TERM "COMPENSATION" THAT PART OF A SALARY AS FIXED BY OR PURSUANT TO LAW WHICH IS PAID NOT IN CASH, BUT BY FURNISHING CERTAIN BENEFITS OR ALLOWANCES IN KIND, THE REASONABLE VALUE OF WHICH THE ACT OF MARCH 5, 1928, 45 STAT. 193, SPECIFICALLY PROVIDES SHALL BE "CONSIDERED AS PART OF THE COMPENSATION.'

YOU ARE ADVISED, THEREFORE, THAT IN THE ILLUSTRATION GIVEN THE EMPLOYEE WHOSE TOTAL SALARY RATE, INCLUDING CASH AND VALUE OF ALLOWANCES FURNISHED IN KIND, IS $1,450 PER ANNUM RECEIVES COMPENSATION IN EXCESS OF $1,000 PER ANNUM AND IS SUBJECT TO THE TERMS OF SECTION 101 (B) OF THE ECONOMY ACT REQUIRING THE LEGISLATIVE FURLOUGH OF ONE CALENDAR MONTH.