A-44084, AUGUST 23, 1932, 12 COMP. GEN. 271

A-44084: Aug 23, 1932

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FOR DETERMINING THE ANNUAL RATE OF COMPENSATION UNDER TITLE I OF THE ECONOMY ACT IS FOR APPLICATION WHENEVER AN EMPLOYEE UPON A PER DIEM BASIS IS SUBJECT TO INTERMITTENT OR PART-TIME EMPLOYMENT WHICH MAY OR MAY NOT EQUAL A FULL YEAR. IS NOT NECESSARILY FOR APPLICATION WHEN THERE IS SOME DEFINITE LIMITATION FIXED BY STATUTE TO THE AMOUNT OF COMPENSATION WHICH MAY BE RECEIVED DURING THE YEAR. - (D) IN THE CASE OF THE FOLLOWING PERSONS THE RATE OF COMPENSATION IS REDUCED AS FOLLOWS: IF MORE THAN $1. THESE EMPLOYEES ARE CLASSED AS OCCUPYING POSITIONS THE NATURE AND DUTIES OF WHICH MAKE IT IMPRACTICABLE TO APPLY THE PROVISIONS OF SUBSECTIONS (A) AND (B) OF SECTION 101 OF THE ACT OF JUNE 30. IF THE RATE OF COMPENSATION ALONE IS THE DETERMINING FACTOR TO ARRIVE AT THE TOTAL ANNUAL COMPENSATION.

A-44084, AUGUST 23, 1932, 12 COMP. GEN. 271

ECONOMY ACT - ANNUAL RATE OF COMPENSATION THE METHOD PRESCRIBED BY SECTION 104 (C) OF THE ECONOMY ACT OF JUNE 30, 1932, FOR DETERMINING THE ANNUAL RATE OF COMPENSATION UNDER TITLE I OF THE ECONOMY ACT IS FOR APPLICATION WHENEVER AN EMPLOYEE UPON A PER DIEM BASIS IS SUBJECT TO INTERMITTENT OR PART-TIME EMPLOYMENT WHICH MAY OR MAY NOT EQUAL A FULL YEAR, BUT IS NOT NECESSARILY FOR APPLICATION WHEN THERE IS SOME DEFINITE LIMITATION FIXED BY STATUTE TO THE AMOUNT OF COMPENSATION WHICH MAY BE RECEIVED DURING THE YEAR.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, AUGUST 23, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 12, 1932, AS FOLLOWS:

THE ACT OF JUNE 30, 1932 (PUBLIC NO. 212, 72D CONGRESS), UNDER PART II, TITLE I, RELATING TO FURLOUGH OF FEDERAL EMPLOYEES, PROVIDES IN SECTION 105 (D) (6) AS FOLLOWS:

"SEC. 105. DURING THE FISCAL YEAR ENDING JUNE 30, 1933--- (D) IN THE CASE OF THE FOLLOWING PERSONS THE RATE OF COMPENSATION IS REDUCED AS FOLLOWS: IF MORE THAN $1,000 PER ANNUM BUT LESS THAN $10,000 PER ANNUM, 8 1/3 PERCENTUM; IF $10,000 PER ANNUM OR MORE BUT LESS THAN $15,000 PER ANNUM, 12 PERCENTUM; IF $15,000 PER ANNUM OR MORE BUT LESS THAN $20,000 PER ANNUM, 15 PERCENTUM; IF $20,000 PER ANNUM OR MORE, 20 PERCENTUM.

"/6) OFFICERS AND EMPLOYEES (AS DEFINED IN SECTION 104 (A) (, OCCUPYING POSITIONS THE NATURE OF THE DUTIES AND PERIOD OF WORK OF WHICH MAKE IT IMPRACTICABLE TO APPLY THE PROVISIONS OF SUBSECTIONS (A) AND (B) OF SECTION 101.'

UNDER THE PROVISIONS OF THE ACTS OF MAY 29, 1928 (45 STAT. 1011) AND FEBRUARY 28, 1929 (45 STAT. 1406) CONSULTING ENGINEERS, ETC., HOLD APPOINTMENTS AT THE RATE OF $50 PER DIEM WHEN ACTUALLY EMPLOYED. THESE EMPLOYEES ARE CLASSED AS OCCUPYING POSITIONS THE NATURE AND DUTIES OF WHICH MAKE IT IMPRACTICABLE TO APPLY THE PROVISIONS OF SUBSECTIONS (A) AND (B) OF SECTION 101 OF THE ACT OF JUNE 30, 1932. IF THE RATE OF COMPENSATION ALONE IS THE DETERMINING FACTOR TO ARRIVE AT THE TOTAL ANNUAL COMPENSATION, IT IS APPARENT THAT THE DAILY RATE OF COMPENSATION OF THESE EMPLOYEES WOULD BE SUBJECT TO A REDUCTION OF 15 PERCENTUM BASED ON 307 WORKING DAYS. THERE IS, HOWEVER, A RESTRICTION PLACED IN THE APPOINTMENT NOTICE OF EACH OF THE CONSULTANTS APPOINTED PURSUANT TO THE ACT OF FEBRUARY 28, 1929, AS FOLLOWS: "COMPENSATION NOT TO EXCEED $5,000 DURING ANY FISCAL YEAR," WHICH IN FACT LIMITS EMPLOYMENT TO 100 DAYS, AND THIS LIMITATION IS IN ACCORDANCE WITH THE ACT OF FEBRUARY 28, 1929 (PUBLIC NO. 851, 70TH CONGRESS), AUTHORIZING THE EMPLOYMENT OF FIVE CONSULTANTS IN THE DEPARTMENT OF THE INTERIOR.

IN CONNECTION WITH THE ABOVE THE FOLLOWING QUESTIONS ARE RESPECTFULLY SUBMITTED FOR YOUR CONSIDERATION AND DETERMINATION, ASSUMING THAT THE CLASSIFICATION OF THESE CONSULTING ENGINEERS IS PROPER UNDER THE PROVISIONS OF SEC. 105 (D) (6).

Q.1. IS THE COMPENSATION OF THE EMPLOYEES APPOINTED PURSUANT TO THE ACT OF FEBRUARY 28, 1929, SUBJECT TO A REDUCTION OF 8 1/3 PERCENT OR 15 PERCENT?

Q.2. IS THE PER DIEM RATE OF COMPENSATION THE DETERMINING FACTOR IN ORDER TO ASCERTAIN THE TOTAL ANNUAL COMPENSATION WHEN AN EMPLOYEE IS ENGAGED ONLY INTERMITTENTLY OR IN PART-TIME SERVICE?

Q.3. WHAT EFFECT HAS THE LIMITATION CITED IN THE ACT OF FEBRUARY 28, 1929 (PUBLIC NO. 851, 70TH CONGRESS) IN DETERMINING WHAT THE TOTAL ANNUAL COMPENSATION MAY BE, IN REGARD TO THE PROVISIONS OF SECTION 105 (D) (6/?

Q.4. BY AUTHORITY OF JOINT RESOLUTION OF MAY 29, 1928 (45 STAT. 1011), THE SECRETARY OF THE INTERIOR IS DIRECTED TO APPOINT A BOARD OF FIVE ENGINEERS AND GEOLOGISTS AS CONSULTANTS IN CONNECTION WITH THE CONSTRUCTION OF THE BOULDER CANYON PROJECT, AT A RATE OF COMPENSATION NOT TO EXCEED $50.00 PER DAY. NO LIMITATION OR RESTRICTION IS PLACED IN THIS RESOLUTION AS TO THE AMOUNT THAT MAY BE PAID TO THESE CONSULTANTS DURING ANY ONE YEAR. HOWEVER, DUE TO THE INTERMITTENT AND PART-TIME SERVICE OF THESE CONSULTANTS, IT HAS BEEN DETERMINED THAT THE TOTAL ANNUAL COMPENSATION OF EACH WILL NOT EXCEED $10,000. IN VIEW THEREOF WHAT PER CENTUM OF COMPENSATION REDUCTION WILL APPLY?

Q.5. IN CASE ANY OF THE CONSULTANTS ABOVE REFERRED TO ARE RECEIVING RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN THE PAY ADJUSTMENT ACT OF 1922 (U.S.C. TITLE 37), ARE THEY SUBJECT TO THE PROVISIONS OF SECTION 212 (A/?

IT IS THE "RATE" OF COMPENSATION RATHER THAN THE ACTUAL AMOUNT RECEIVED WHICH DETERMINES THE EXTENT TO WHICH THE ECONOMY ACT IS TO BE APPLIED. SECTION 104 (C) OF THE ECONOMY ACT, 47 STAT. 400, PRESCRIBES THE METHOD BY WHICH THE ANNUAL RATE SHALL BE COMPUTED WHEN THE COMPENSATION IS ON A PIECEWORK, PER HOUR, OR PER DIEM BASIS, AS FOLLOWS:

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 METHOD PRESCRIBED BY THE QUOTED SECTION IS FOR APPLICATION WHENEVER THE EMPLOYEE UPON A PER HOUR OR PER DIEM BASIS IS SUBJECT TO INTERMITTENT OR PART-TIME EMPLOYMENT WHICH MAY OR MAY NOT COVER A FULL YEAR, BUT IS NOT NECESSARILY FOR APPLICATION WHEN THERE IS SOME DEFINITE LIMITATION FIXED BY STATUTE TO THE AMOUNT OF COMPENSATION WHICH MAY BE RECEIVED DURING ANY ONE YEAR. SEE A-43500, JULY 26, 1932. ACCORDINGLY, EMPLOYEES APPOINTED PURSUANT TO THE ACT OF FEBRUARY 28, 1929, 45 STAT. 1406, WHICH LIMITS THE AGGREGATE THAT MAY BE PAID TO ANY ONE PERSON TO $5,000 PER YEAR, AND TO WHOM IT IS NOT PRACTICABLE TO APPLY SECTION 101 (B) OF THE ECONOMY ACT, ARE SUBJECT TO 8 1/3 PERCENT REDUCTION PRESCRIBED BY SECTION 105 (D) FOR PERSONS WHOSE RATE OF COMPENSATION IS BETWEEN $1,000 AND $10,000. THIS ANSWERS QUESTIONS 1, 2, AND 3.

WITH RESPECT TO PERSONS EMPLOYED UNDER THE ACT OF MAY 29, 1928, 45 STAT. 1011, AT A DAILY COMPENSATION OF $50, THERE BEING NO STATUTORY LIMIT ON THE AGGREGATE AMOUNT WHICH THEY MAY RECEIVE DURING THE YEAR, IT MUST BE HELD THAT THEIR ANNUAL RATE OF COMPENSATION IS TO BE COMPUTED IN ACCORDANCE WITH SECTION 104 (D); THAT IS, THE DAILY RATE MULTIPLIED BY 307, WHICH GIVES AN ANNUAL RATE OF $15,350. THEREFORE, THESE EMPLOYEES ARE SUBJECT TO A 15 PERCENT REDUCTION AS REQUIRED BY SECTION 105 (D) OF THE ACT FOR SALARIES OF $15,000 OR MORE BUT LESS THAN $20,000. QUESTION 4 IS ANSWERED ACCORDINGLY.

SECTIONS 212 AND 803 OF THE ECONOMY ACT, 47 STAT. 400 AND 419, PROVIDE:

SEC. 212. (A) AFTER THE DATE OF THE ENACTMENT OF THIS ACT, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN THE PAY ADJUSTMENT ACT OF 1922 (U.S.C., TITLE 37), AT A RATE IN EXCESS OF AN AMOUNT WHICH, WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY PLUS CIVILIAN PAY AMOUNTS TO LESS THAN $3,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES.

SEC. 803. THE PROVISIONS OF PART 2 HEREIN ARE HEREBY MADE APPLICABLE TO THE APPROPRIATIONS AVAILABLE FOR THE FISCAL YEAR 1933, WHETHER CONTAINED IN THIS ACT OR IN ACTS PRIOR OR SUBSEQUENT TO THE DATE OF THE APPROVAL OF THIS ACT.

AS THE RATE OF PAY OF THE POSITIONS AUTHORIZED BY THE TWO STATUTES WILL EXCEED $3,000 PER ANNUM, SUCH EMPLOYEES WOULD NOT BE ENTITLED, DURING THE PRESENT FISCAL YEAR, TO RECEIVE ANY PAY AS RETIRED ARMY OFFICERS UNLESS THE RETIRED PAY AMOUNTS TO $3,000 OR MORE, IN WHICH CASE THEY MAY ELECT TO RECEIVE EITHER THE CIVILIAN OR THE RETIRED PAY.