A-44537, SEPTEMBER 20, 1932, 12 COMP. GEN. 368

A-44537: Sep 20, 1932

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WHOSE COMPENSATION IS REQUIRED TO BE PAID ENTIRELY BY THE PRIVATE INTERESTS. ARE NOT WITHIN THE DEFINITION OF THE TERMS "OFFICE" AND "EMPLOYEE" UNDER SECTION 104 OF THE ECONOMY ACT. THEIR COMPENSATION IS NOT SUBJECT TO FURLOUGH DEDUCTIONS OR IMPOUNDING. WHOSE COMPENSATION IS PAID PARTLY BY THE PRIVATE INTERESTS AND PARTLY FROM THE UNITED STATES TREASURY. ARE OFFICERS AND EMPLOYEES WITHIN THE MEANING OF TITLE I OF THE ECONOMY ACT AND SUBJECT TO THE RESTRICTIONS THEREOF. OFFICER" AND "EMPLOYEE" AS USED IN TITLE I AND LISTS CERTAIN CLASSES OF OFFICERS AND EMPLOYEES WHO ARE EXCLUDED FROM THAT DEFINITION. AMONG THOSE EXCLUDED ARE "PUBLIC OFFICERS AND EMPLOYEES WHOSE COMPENSATION IS DERIVED FROM ASSESSMENTS ON BANKS AND/OR IS NOT PAID FROM THE FEDERAL TREASURY.'.

A-44537, SEPTEMBER 20, 1932, 12 COMP. GEN. 368

ECONOMY ACT - EMPLOYEES PAID FROM PRIVATE SOURCES INSPECTORS UNDER THE ENGINEER DEPARTMENT OF THE ARMY, ENGAGED FULL TIME ON THE SUPERVISION AND INSPECTION OF PRIVATE WORKS IN NAVIGABLE WATERS, WHOSE COMPENSATION IS REQUIRED TO BE PAID ENTIRELY BY THE PRIVATE INTERESTS, ARE NOT WITHIN THE DEFINITION OF THE TERMS "OFFICE" AND "EMPLOYEE" UNDER SECTION 104 OF THE ECONOMY ACT, AND THEIR COMPENSATION IS NOT SUBJECT TO FURLOUGH DEDUCTIONS OR IMPOUNDING, BUT SUCH INSPECTORS ENGAGED ONLY PART TIME ON THE SUPERVISION AND INSPECTION OF PRIVATE WORKS, WHOSE COMPENSATION IS PAID PARTLY BY THE PRIVATE INTERESTS AND PARTLY FROM THE UNITED STATES TREASURY, ARE OFFICERS AND EMPLOYEES WITHIN THE MEANING OF TITLE I OF THE ECONOMY ACT AND SUBJECT TO THE RESTRICTIONS THEREOF, AND THE RESTRICTION ON LEAVE OF ABSENCE WITH PAY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, SEPTEMBER 20, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 7, 1932, AS FOLLOWS:

SECTION 104 (A) OF THE LEGISLATIVE APPROPRIATION ACT APPROVED JUNE 30, 1932, DEFINES THE TERMS ,OFFICER" AND "EMPLOYEE" AS USED IN TITLE I AND LISTS CERTAIN CLASSES OF OFFICERS AND EMPLOYEES WHO ARE EXCLUDED FROM THAT DEFINITION. AMONG THOSE EXCLUDED ARE "PUBLIC OFFICERS AND EMPLOYEES WHOSE COMPENSATION IS DERIVED FROM ASSESSMENTS ON BANKS AND/OR IS NOT PAID FROM THE FEDERAL TREASURY.'

(A) IN THE ENGINEER DEPARTMENT AT LARGE CERTAIN INSPECTORS ARE ENGAGED FULL TIME ON THE SUPERVISION AND INSPECTION OF PRIVATE WORKS IN NAVIGABLE WATERS UNDER WAR DEPARTMENT PERMITS TO VARIOUS PARTIES. THESE PERMITS CONTAIN THE FOLLOWING PROVISION: "THAT IF INSPECTIONS OR ANY OTHER OPERATIONS BY THE UNITED STATES ARE NECESSARY IN THE INTERESTS OF NAVIGATION, ALL EXPENSES CONNECTED THEREWITH SHALL BE BORNE BY THE PERMITTEE.' IN ACCORDANCE WITH THE PROVISION QUOTED, WHILE THE INSPECTORS ARE PAID ON GOVERNMENT PAY ROLLS, THE AMOUNTS OF THE SALARIES PAID THEM ARE BILLED TO THE PERMITTEE AND ARE REIMBURSED TO THE UNITED STATES BY THE PERMITTEE. RULING IS REQUESTED, THEREFORE, AS TO WHETHER THE INSPECTORS REFERRED TO ARE EXCLUDED FROM THE DEFINITION ,OFFICERS AND EMPLOYEES," AND THEIR COMPENSATION NOT SUBJECT TO FURLOUGH DEDUCTION OR IMPOUNDING?

(B) CERTAIN OTHER INSPECTORS ARE ENGAGED ON WORK OF THE SAME CLASS FOR A PART OF THEIR TIME, AND PERMITTEES ARE CHARGED WITH THAT PORTION OF THEIR COMPENSATION WHICH COVERS THE TIME SPENT ON THE INSPECTION OF THE WORK UNDER PERMIT. IN SOME OF THESE CASES THE EMPLOYEES ARE ASSIGNED ON THE PERMIT WORK FOR A CONTINUOUS PERIOD OF CONSIDERABLE LENGTH, OFTEN FOR SEVERAL MONTHS; IN OTHER CASES ASSIGNMENTS ON THE PERMIT WORK ALTERNATE FREQUENTLY WITH ASSIGNMENTS ON PURELY GOVERNMENT WORK. IS THAT PORTION OF THE COMPENSATION OF THESE EMPLOYEES FOR WHICH THE UNITED STATES IS REIMBURSED SUBJECT TO IMPOUNDING, AND SHALL DEDUCTIONS BE MADE AT THE RATE OF EIGHT AND ONE-THIRD PERCENT ONLY FROM THAT PORTION OF THEIR COMPENSATION WHICH PERTAINS TO THEIR EMPLOYMENT ON GOVERNMENT WORK? ALSO, MAY THIS GROUP OF EMPLOYEES BE ALLOWED ANNUAL LEAVE WITH PAY IN THE PROPORTION WHICH THEIR EMPLOYMENT ON THE PERMIT WORK BEARS TO THE TOTAL PERIOD OF THEIR EMPLOYMENT DURING THE CALENDAR YEAR?

IT IS THOUGHT FROM RULING OF THE COMPTROLLER GENERAL DATED JULY 20, 1932, A-43369, THAT THE EMPLOYEES, THE CONDITIONS OF WHOSE EMPLOYMENT ARE DESCRIBED IN PARAGRAPH (A) ABOVE, PROBABLY ARE TO BE CONSIDERED AS EMPLOYEES "WHOSE COMPENSATION IS DERIVED FROM ASSESSMENTS ON BANKS AND/OR IS NOT PAID FROM THE FEDERAL TREASURY.'

THE PORTION OF COMPENSATION OF EACH OF THE EMPLOYEES REFERRED TO IN PARAGRAPH (B) ABOVE, PAID BY THE PERMITTEE, IS NOT PAID FROM FUNDS CONTRIBUTED BY A STATE OR BY PRIVATE INTERESTS FOR THE PERFORMANCE OF A FEDERAL PROJECT, BUT IS REIMBURSED IN THE EXACT AMOUNT PAID THE INSPECTOR.

IN DECISION OF JULY 16, 1932, 12 COMP. GEN. 69, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

IN VIEW OF SECTION 104 (A) (7) OF THE ACT OF JUNE 30, 1932, 47 STAT. 400, EXCEPTING "PUBLIC OFFICERS AND EMPLOYEES WHOSE COMPENSATION IS * * * NOT PAID FROM THE FEDERAL TREASURY" FROM THE DEFINITION OF THE TERMS "OFFICER" AND "EMPLOYEE," THE RESTRICTIONS IN TITLE I OF THE ACT RELATIVE TO THE 5- DAY WEEK, LEGISLATIVE FURLOUGH, AND PERCENTAGE REDUCTION IN COMPENSATION ARE NOT APPLICABLE TO STOREKEEPERS IN THE CUSTOMS SERVICE, NOR TO CUSTOMS EMPLOYEES IN PUERTO RICO AND THE VIRGIN ISLANDS WHOSE SALARIES ARE NOT PAID FROM THE TREASURY, EVEN THOUGH FOR AN ACCOUNTING OR BOOKKEEPING PURPOSE THE FUNDS FOR PAYMENT OF SALARIES ARE PASSED THROUGH THE TREASURY, SO LONG AS THE ULTIMATE CHARGE IS NOT AGAINST THE TREASURY, * * *

SEE ALSO DECISION OF JULY 20, 1932, 12 COMP. GEN. 93, TO WHICH YOU REFER, AND DECISION OF AUGUST 26, 1932, A-44129, 12 COMP. GEN. 287.

ACCORDINGLY, THE INSPECTORS MENTIONED IN PARAGRAPH (A) OF YOUR LETTER, WHOSE ENTIRE SALARIES ULTIMATELY DO NOT CONSTITUTE A CHARGE AGAINST THE FEDERAL TREASURY, ARE NOT WITHIN THE DEFINITION OF THE TERMS "OFFICER" AND "EMPLOYEE," AND THEIR COMPENSATION IS NOT SUBJECT TO FURLOUGH DEDUCTION OR IMPOUNDING.

IN DECISION OF AUGUST 9, 1932, A-43819, 12 COMP. GEN. 220, IT WAS HELD AS FOLLOWS:

* * * HOWEVER, IF EMPLOYEES' SALARIES ARE NOT PAID WHOLLY FROM DONATED FUNDS, * * * IT COULD NOT BE SAID THAT SUCH EMPLOYEES ARE NOT PAID FROM THE FEDERAL TREASURY; HENCE, THEY WOULD BE SUBJECT TO THE APPLICABLE PROVISIONS OF TITLE I OF THE ECONOMY ACT.

SEE ALSO DECISION OF AUGUST 21, 1932, A-44259, 12 COMP. GEN. 312.

IN OTHER WORDS, THE CONDITIONS OF EXCEPTION (7) TO THE DEFINITION OF "OFFICER" AND "EMPLOYEE" CONTAINED IN SECTION 104 (A) OF THE ECONOMY ACT ARE NOT MET IF ANY PART OF THE SALARY OF AN OFFICER OR EMPLOYEE DURING THE FISCAL YEAR 1933 IS PAID FROM THE FEDERAL TREASURY. THEREFORE, THE INSPECTORS MENTIONED IN YOUR PARAGRAPH (B) ARE OFFICERS AND EMPLOYEES WITHIN THE MEANING OF TITLE I OF THE ECONOMY ACT, AND SUBJECT TO THE RESTRICTIONS THEREOF, INCLUDING DEDUCTION AND IMPOUNDING OF COMPENSATION AND RESTRICTION ON LEAVE OF ABSENCE WITH PAY.