A-54434, MARCH 22, 1934, 13 COMP. GEN. 248

A-54434: Mar 22, 1934

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

100 PER ANNUM IN A PERMANENT OR TEMPORARY POSITION UNDER THE DEPARTMENT OF LABOR AND SALARY AT THE RATE OF $35 PER WEEK IN A TEMPORARY POSITION UNDER THE CIVIL WORKS ADMINISTRATION TO THE SAME PERSON FOR THE SAME PERIOD OF TIME IS IN EXCESS OF THE RATE OF $2. 000 PER ANNUM AND IS PROHIBITED BY THE ACT OF MAY 10. A PERSON WHO IS ESPECIALLY QUALIFIED TO PERFORM CERTAIN CONFIDENTIAL DUTIES WHICH ARE DEEMED NECESSARY TO THE PROPER ENFORCEMENT OF THE IMMIGRATION AND NATURALIZATION LAWS. THIS POSITION IS NOT SUBJECT TO CIVIL SERVICE AND THE SALARY HAS BEEN FIXED AT THE RATE OF $2. THAT THE APPOINTEE IS ALSO EMPLOYED ON THE NURSERY PROJECT IN NEW YORK CITY WITH A SALARY OF $35 PER WEEK. THIS PROJECT WAS ORIGINALLY UNDER THE CIVIL WORKS SERVICES BUT HAS NOW BEEN TRANSFERRED TO THE CIVIL WORKS ADMINISTRATION.

A-54434, MARCH 22, 1934, 13 COMP. GEN. 248

DOUBLE COMPENSATION PAYMENT OF SALARY AT THE RATE OF $2,100 PER ANNUM IN A PERMANENT OR TEMPORARY POSITION UNDER THE DEPARTMENT OF LABOR AND SALARY AT THE RATE OF $35 PER WEEK IN A TEMPORARY POSITION UNDER THE CIVIL WORKS ADMINISTRATION TO THE SAME PERSON FOR THE SAME PERIOD OF TIME IS IN EXCESS OF THE RATE OF $2,000 PER ANNUM AND IS PROHIBITED BY THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, MARCH 22, 1934:

THERE HAS BEEN RECEIVED FROM THE COMMISSIONER OF IMMIGRATION AND NATURALIZATION LETTER DATED MARCH 17, 1934, AS FOLLOWS:

THE IMMIGRATION AND NATURALIZATION SERVICE HAS EMPLOYED TEMPORARILY FOR A PERIOD NOT EXCEEDING TWO MONTHS, IN THE CITY OF NEW YORK, A PERSON WHO IS ESPECIALLY QUALIFIED TO PERFORM CERTAIN CONFIDENTIAL DUTIES WHICH ARE DEEMED NECESSARY TO THE PROPER ENFORCEMENT OF THE IMMIGRATION AND NATURALIZATION LAWS. THIS POSITION IS NOT SUBJECT TO CIVIL SERVICE AND THE SALARY HAS BEEN FIXED AT THE RATE OF $2,100 PER ANNUM, LESS THE 15 PERCENT REDUCTION REQUIRED BY THE ECONOMY ACT.

IT APPEARS, HOWEVER, THAT THE APPOINTEE IS ALSO EMPLOYED ON THE NURSERY PROJECT IN NEW YORK CITY WITH A SALARY OF $35 PER WEEK. THIS PROJECT WAS ORIGINALLY UNDER THE CIVIL WORKS SERVICES BUT HAS NOW BEEN TRANSFERRED TO THE CIVIL WORKS ADMINISTRATION.

THE PURPOSE OF THIS LETTER IS TO INQUIRE WHETHER THE PROHIBITION AGAINST THE EMPLOYMENT OF A PERSON IN TWO OR MORE POSITIONS UNDER THE UNITED STATES WITH A COMBINED SALARY IN EXCESS OF $2,000 PER ANNUM IS APPLICABLE TO THIS CASE. AS THE SALARY CHECKS OF THE EMPLOYEE CONCERNED ARE BEING HELD IN THIS OFFICE PENDING YOUR DECISION, IT WILL BE APPRECIATED IF YOUR REPLY IS EXPEDITED.

THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582, PROVIDES IN PART 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 NOVEMBER 19, 1928, 8 COMP. GEN. 261, 263, IT WAS SAID:

IT HAS BEEN UNIFORMLY HELD THAT THE LIMITATION IN THE STATUTES OF 1916, SUPRA, HAS REFERENCE TO THE RATE OF THE COMBINED SALARIES RATHER THAN TO THE AGGREGATE AMOUNT RECEIVED DURING THE YEAR, AND THAT NO PAYMENT OF A PART OF A SALARY IS AUTHORIZED IF THE ANNUAL RATE TAKEN WITH THE SALARY OF ANY OTHER POSITION OR POSITIONS HELD BY THE EMPLOYEE EXCEEDS THE LIMITS FIXED BY THE STATUTE. IT IS IMMATERIAL ON WHAT MEASURE OF TIME THE SALARY IS BASED, WHETHER PER ANNUM, PER DIEM, PER HOUR, OR PIECEWORK, IF THE REMUNERATION CONSTITUTES SALARY AS DISTINGUISHED FROM FEES. THE SALARY IN EACH INSTANCE MUST BE REDUCED TO OR COMPUTED ON AN ANNUAL BASIS TO DETERMINE WHETHER THERE HAS BEEN A VIOLATION OF THE STATUTE. * * *

SEE ALSO, 3 COMP. GEN. 260, AND 4 ID. 521. THEREFORE, THE FACT THAT ONE OR BOTH OF THE POSITIONS ARE TEMPORARY DOES NOT TAKE THE CASE OUT OF THE STATUTE. FURTHERMORE, THE STATUTE IS NOT LIMITED TO POSITIONS SUBJECT TO THE CIVIL SERVICE LAWS AND REGULATIONS.

AS THE "MONEY" FOR PAYMENT OF THE SALARY OF THE POSITION UNDER THE DEPARTMENT OF LABOR, AS WELL AS FOR PAYMENT OF SALARY AT THE RATE OF $35 PER WEEK UNDER THE CIVIL WORKS ADMINISTRATION IS DERIVED FROM "APPROPRIATED" FUNDS, AND AS THE DUAL PAYMENT IS NOT "OTHERWISE SPECIALLY AUTHORIZED BY LAW," THERE IS NOTHING DISCLOSED WHICH WOULD EXCEPT THIS CASE FROM THE RESTRICTIONS OF THE QUOTED STATUTE.