A-43615, AUGUST 2, 1932, 12 COMP. GEN. 159

A-43615: Aug 2, 1932

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WILL GIVE AN ANNUAL RATE IN EXCESS OF $1. PURSUANT TO THIS AUTHORITY CONTRACTS HAVE BEEN ENTERED INTO FOR THE SERVICES OF CERTAIN CIVILIANS. FOR CONVENIENT REFERENCE THERE IS ENCLOSED A COPY OF ONE OF SUCH CONTRACTS. AS WILL BE NOTED. THIS CONTRACT IS FOR A PERIOD OF 90 DAYS ON A FIXED PER DIEM BASIS AND CONTAINS THE PROVISION THAT. SEVERAL QUESTIONS HAVE BEEN PRESENTED BY THE DIRECTOR OF THE NAVAL RESEARCH LABORATORY AS TO THE APPLICABILITY TO THIS CLASS OF EMPLOYEES OF CERTAIN PROVISIONS OF THE LEGISLATIVE ACT APPROVED JUNE 30. THE MAJORITY OF WHICH HAVE BEEN COVERED BY VARIOUS DECISIONS OF YOUR OFFICE. DO NOT APPEAR TO HAVE BEEN PRESENTED AND YOUR DECISION IS ACCORDINGLY REQUESTED THEREON.

A-43615, AUGUST 2, 1932, 12 COMP. GEN. 159

ECONOMY ACT - TEMPORARY CONTRACT EMPLOYEES A SCIENTIST EMPLOYED UNDER A PERSONAL SERVICE CONTRACT EXECUTED JULY 14, 1932, AT A PER DIEM RATE OF COMPENSATION WHICH, MULTIPLIED BY 307, WILL GIVE AN ANNUAL RATE IN EXCESS OF $1,000 COMES WITHIN THE DEFINITION OF "OFFICERS" OR "EMPLOYEES" IN SECTION 104 OF THE ECONOMY ACT AND HIS COMPENSATION MUST BE REDUCED AS REQUIRED BY THAT ACT AND THE AMOUNT OF THE REDUCTION IMPOUNDED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, AUGUST 2, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 23, 1932, AS FOLLOWS:

THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1933, APPROVED JUNE 30, 1932 (PUBLIC NO. 216), CONTAINS AN AUTHORIZATION UNDER THE TITLE "NAVAL RESEARCH LABORATORY" FOR THE "TEMPORARY EMPLOYMENT OF CIVILIAN SCIENTISTS AND TECHNICISTS REQUIRED ON SPECIAL PROBLEMS.'

PURSUANT TO THIS AUTHORITY CONTRACTS HAVE BEEN ENTERED INTO FOR THE SERVICES OF CERTAIN CIVILIANS. FOR CONVENIENT REFERENCE THERE IS ENCLOSED A COPY OF ONE OF SUCH CONTRACTS, N173S-1640, ENTERED INTO WITH MR. BERTRAM M. HARRISON UNDER DATE OF JULY 14, 1932,"TO ASSIST IN THE ASSEMBLY, TEST, AND EXPERIMENT WITH MAGNETOSTRICTIVE ECHO SOUND APPARATUS.' AS WILL BE NOTED, THIS CONTRACT IS FOR A PERIOD OF 90 DAYS ON A FIXED PER DIEM BASIS AND CONTAINS THE PROVISION THAT---

"EMPLOYMENT TO BE AS DIRECTED BY THE DIRECTOR OF THE NAVAL RESEARCH LABORATORY WITHIN THE LIMIT SPECIFIED. CONTRACTS TO BE TERMINABLE AT ANY TIME WITHIN FULL PERIOD AFTER ONE WEEK'S NOTICE TO THAT EFFECT BY THE DIRECTOR OF THE NAVAL RESEARCH LABORATORY.'

SEVERAL QUESTIONS HAVE BEEN PRESENTED BY THE DIRECTOR OF THE NAVAL RESEARCH LABORATORY AS TO THE APPLICABILITY TO THIS CLASS OF EMPLOYEES OF CERTAIN PROVISIONS OF THE LEGISLATIVE ACT APPROVED JUNE 30, 1932 (PUBLIC NO. 212), THE MAJORITY OF WHICH HAVE BEEN COVERED BY VARIOUS DECISIONS OF YOUR OFFICE.

THE FOLLOWING QUESTIONS, HOWEVER, DO NOT APPEAR TO HAVE BEEN PRESENTED AND YOUR DECISION IS ACCORDINGLY REQUESTED THEREON, VIZ---

(A) ARE EMPLOYEES WHOSE SERVICES ARE ENGAGED UNDER SPECIFIC CONTRACTS BY THE NAVAL RESEARCH LABORATORY AFFECTED BY THE SO-CALLED ECONOMY PROVISIONS OF THE LEGISLATIVE ACT ABOVE CITED?

(B) IS ANY PART OF THE PAY OF SUCH EMPLOYEES IMPOUNDED?

(C) DO SUCH EMPLOYEES WORK ON A FIVE-DAY WEEK BASIS?

SECTION 104 OF THE ACT OF JUNE 30, 1932, 47 STAT. 400, PROVIDES:

SEC. 104. WHEN USED IN THIS TITLE---

(A) THE TERMS "OFFICER" AND "EMPLOYEE" MEAN ANY PERSON RENDERING SERVICES IN OR UNDER ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, BUT DO NOT INCLUDE * * * (11) ANY PERSON IN RESPECT OF ANY OFFICE, POSITION, OR EMPLOYMENT THE COMPENSATION OF WHICH IS PAID UNDER THE TERMS OF ANY CONTRACT IN EFFECT ON THE DATE OF THE ENACTMENT OF THIS ACT, IF SUCH COMPENSATION MAY NOT LAWFULLY BE REDUCED.

(C) IN THE CASE OF ANY OFFICE, POSITION, OR EMPLOYMENT, THE COMPENSATION FOR WHICH IS CALCULATED ON A PIECEWORK, HOURLY, OR PER DIEM BASIS, THE RATE OF COMPENSATION PER ANNUM SHALL BE HELD TO BE THE TOTAL AMOUNT WHICH WOULD BE PAYABLE FOR THE REGULAR WORKING HOURS AND ON THE BASIS OF THREE HUNDRED AND SEVEN WORKING DAYS, OR THE NUMBER OF WORKING DAYS ON THE BASIS OF WHICH SUCH COMPENSATION IS CALCULATED, WHICHEVER IS THE GREATER.

THE CONTRACT WITH BERTRAM M. HARRISON WAS NOT IN EFFECT PRIOR TO JUNE 30, 1932, AS IT WAS NOT EXECUTED UNTIL JULY 14, 1932, AND IT IS NOT FOR A LUMP SUM BUT FOR COMPENSATION AT A PER DIEM RATE OF $7.50, WHICH MULTIPLIED BY 307 DAYS AS IN PARAGRAPH 104 (C), SUPRA, WILL MAKE AN ANNUAL RATE OF $2,307.50. IT DOES NOT, THEREFORE, COME WITHIN THE EXCEPTION (11) OF PARAGRAPH 104 (A), AND AS THE SERVICES ARE STRICTLY PERSONAL AND THE CONTRACTOR COMES WITHIN THE DEFINITION OF "OFFICER" AND "EMPLOYEE," THE PROVISIONS OF EITHER SECTION 101 (A) OR 101 (B) OF THE ECONOMY ACT MUST BE APPLIED TO THE EMPLOYMENT OF MR. HARRISON, AND THE AMOUNT OF THE REDUCTION IN COMPENSATION MUST BE IMPOUNDED. SEE A 43204, JULY 14, 1932, 12 COMP. GEN. 37, TO THE SECRETARY OF WAR IN RE CONTRACT SURGEONS. THE QUESTION OF WHETHER SUCH EMPLOYEES SHALL WORK ON THE 5-DAY WEEK BASIS AND BE PAID AS PROVIDED FOR UNDER SECTION 101 (A) OR WORK ON SOME OTHER BASIS AND HAVE 8 1/3 PERCENT DEDUCTED FROM THEIR PAY AS PROVIDED FOR IN SECTION 105 (B) (6) IS A MATTER FOR ADMINISTRATIVE DETERMINATION.