A-49978, JULY 25, 1933, 13 COMP. GEN. 21

A-49978: Jul 25, 1933

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THERE IS FOR CONSIDERATION THE TOTAL OR BASIC RATE OF SALARY RATHER THAN THE RATE AS TEMPORARILY REDUCED BY THE ACT OF MARCH 20. NUMBER OF THESE EMPLOYEES ARE REGULARLY EMPLOYED IN OTHER BRANCHES OF THE GOVERNMENT SERVICE AND IN THESE CASES THE COMPENSATION. IN DETERMINING WHETHER AN EMPLOYEE'S COMPENSATION IS IN EXCESS OF $2. 200 PER ANNUM IS SUBJECT TO A 15 PERCENT REDUCTION. ASSUMING THAT HIS APPOINTMENT WAS ISSUED BY PROPER AUTHORITY. AN ERROR IS NOTED IN THE AMOUNT STATED IN THE EXAMPLE GIVEN AS REPRESENTING THE COMBINED NET SALARY RATE. IT WAS STATED: IT HAS BEEN HELD UNIFORMLY THAT THE ACT CITED REFERS TO SALARIES AND NOT TO PAYMENTS OR AMOUNTS ACTUALLY RECEIVED. 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.

A-49978, JULY 25, 1933, 13 COMP. GEN. 21

COMPENSATION - DOUBLE - ECONOMY ACT DEDUCTIONS THE TERM "SALARY" AS USED IN THE DUAL COMPENSATION ACT OF AUGUST 29, 1916, 39 STAT. 582, REFERS TO THE REGULAR RATE OF SALARY OR COMPENSATION OF AN OFFICE OR POSITION, AND IN DETERMINING DURING THE FISCAL YEAR 1934 WHETHER AN EMPLOYEE WOULD RECEIVE THE COMBINED RATE OF $2,000 PER ANNUM IN TWO POSITIONS, THERE IS FOR CONSIDERATION THE TOTAL OR BASIC RATE OF SALARY RATHER THAN THE RATE AS TEMPORARILY REDUCED BY THE ACT OF MARCH 20, 1933, AND THE EXECUTIVE ORDER ISSUED PURSUANT THERETO.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, JULY 25, 1933:

CONSIDERATION HAS BEEN GIVEN TO THE FOLLOWING LETTER DATED JULY 13, 1933, FROM THE ASSISTANT COMMISSIONER GENERAL OF IMMIGRATION (NO. 54600/411):

THE IMMIGRATION SERVICE HAS OCCASION TO EMPLOY PART-TIME INSPECTORS AT A NUMBER OF PORTS IN THE CONTINENTAL UNITED STATES, ALASKA, HAWAII, AND PUERTO RICO. IT HAS BEEN CUSTOMARY TO GIVE THESE EMPLOYEES A REASONABLE COMPENSATION FOR THEIR SERVICES, USUALLY NOT TO EXCEED $300 PER ANNUM. NUMBER OF THESE EMPLOYEES ARE REGULARLY EMPLOYED IN OTHER BRANCHES OF THE GOVERNMENT SERVICE AND IN THESE CASES THE COMPENSATION, IF ANY, PAID BY THE IMMIGRATION SERVICE, HAS BEEN FIXED SO THAT THE COMBINED SALARIES OF THE EMPLOYEES WOULD NOT EXCEED $2,000 PER ANNUM, IN CONFORMITY WITH THE PROVISIONS OF THE ACT OF MAY 10, 1916 (39 STAT. 120), AS AMENDED BY THE ACT OF AUGUST 29, 1916 (39 STAT. 582).

IN DETERMINING WHETHER AN EMPLOYEE'S COMPENSATION IS IN EXCESS OF $2,000 PER ANNUM, A QUESTION HAS ARISEN AS TO WHETHER THE BASIC SALARY OR THE NET SALARY ACTUALLY RECEIVED BY THE EMPLOYEE UNDER EXECUTIVE ORDER NO. 6188, DATED JULY 3, 1933, ISSUED PURSUANT TO THE ACT OF MARCH 20, 1933, CONTROLS. FOR EXAMPLE, AN EMPLOYEE OF ANOTHER BRANCH OF THE GOVERNMENT SERVICE, WHOSE BASIC SALARY OF $2,200 PER ANNUM IS SUBJECT TO A 15 PERCENT REDUCTION, RECEIVED A NET SALARY OF $1,870. WOULD IT BE POSSIBLE FOR THE IMMIGRATION SERVICE TO PAY THIS EMPLOYEE, ASSUMING THAT HIS APPOINTMENT WAS ISSUED BY PROPER AUTHORITY, FOR PERFORMING IMMIGRATION WORK? IF SO, COULD HE BE APPOINTED AT A BASIC SALARY OF $200 PER ANNUM, LESS 15 PERCENT, WHICH WOULD MAKE HIS NET SALARY IN THE IMMIGRATION SERVICE $170, AND HIS COMBINED NET SALARIES $2,000 PER ANNUM?

AN ERROR IS NOTED IN THE AMOUNT STATED IN THE EXAMPLE GIVEN AS REPRESENTING THE COMBINED NET SALARY RATE. THE AMOUNT SHOULD BE $2,040 INSTEAD OF 2,000 PER ANNUM.

SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, PROVIDED AS FOLLOWS:

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 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 MORE THAN $2,000, THE PROHIBITION IN THE ACT OF MAY 10, 1916, APPLIES.

THE TERM "SALARY" AS USED IN THE 1916 STATUTE REFERS TO THE REGULAR RATE OF SALARY OR COMPENSATION OF AN OFFICE OR POSITION. HENCE, IN APPLYING THE PROVISIONS OF SAID STATUTE DURING THE FISCAL YEAR 1934, IT IS THE REGULAR RATE OF SALARY RATHER THAN THE RATE AS TEMPORARILY REDUCED BY THE ACT OF MARCH 30, 1933, AND THE EXECUTIVE ORDER ISSUED PURSUANT THERETO, THAT IS FOR CONSIDERATION. IN THIS CONNECTION SEE DECISION OF JULY 10, 1933, A-48741, IN WHICH IT WAS STATED:

* * * THE ESTABLISHED RATE OF COMPENSATION FOR THESE EMPLOYEES HAS NOT BEEN REDUCED, THE 15 PERCENT DEDUCTION BEING RATHER IN THE NATURE OF A SPECIAL TAX ASSESSED AGAINST THE EMPLOYEES FOR THE BENEFIT OF THE GOVERNMENT OF THE UNITED STATES, * * *.

SEE, ALSO, DECISION OF JUNE 28, 1933, A-49578, 12 COMP. GEN. 663. THIS VIEW IS FURTHER STRENGTHENED BY THE FACT THAT SECTION 5 OF THE ACT OF MARCH 20, 1933, SPECIFICALLY PROVIDES THAT RETIREMENT DEDUCTIONS ARE TO BE BASED ON "THE REGULAR RATE OF SALARY" INSTEAD OF THE RATE AS TEMPORARILY REDUCED BY SAID ACT.

ACCORDINGLY, IN THE ILLUSTRATION GIVEN IN THE SUBMISSION, THE TOTAL OR BASIC SALARY RATES OF $2,200 AND $200 PER ANNUM, AND NOT THE NET RATES OF $1,870 AND $170 PER ANNUM, WOULD BE FOR CONSIDERATION IN APPLYING THE ACT OF 1916, AND SINCE THE COMBINED TOTAL OR BASIC SALARY RATE WOULD BE $2,400 PER ANNUM, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.