A-63402, SEPTEMBER 9, 1935, 15 COMP. GEN. 184

A-63402: Sep 9, 1935

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FEDERAL LAND-BANK APPRAISERS ARE "REQUIRED BY LAW TO BE EXCLUSIVELY ENGAGED UPON SOME SPECIFIC WORK" WITHIN THE MEANING OF SECTION 3. 1935: THERE WAS RECEIVED YOUR LETTER OF JUNE 28. THE LAND BANK APPRAISERS ARE APPOINTED BY THE LAND BANK COMMISSIONER AND. DEPENDING UPON WHETHER THE SERVICE TO BE RENDERED IS TO BE CONTINUOUS OR INTERMITTENT. THE SALARY RATE IS FIXED ON AN ANNUAL BASIS OR A PER DIEM BASIS. THE POSITIONS OF LAND BANK APPRAISERS WERE PLACED UNDER THE CLASSIFIED CIVIL SERVICE. IT WILL BE NECESSARY FOR THE FARM CREDIT ADMINISTRATION TO EMPLOY PERSONS. THESE EMPLOYMENTS WILL BE COVERED BY APPOINTMENTS MADE BY THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION. THE COMPENSATION CONNECTED WITH WHICH WILL BE PAYABLE FROM THE ADMINISTRATIVE APPROPRIATION FOR SALARIES AND EXPENSES OF THE FARM CREDIT ADMINISTRATION.

A-63402, SEPTEMBER 9, 1935, 15 COMP. GEN. 184

COMPENSATION, DOUBLE - LAND BANK APPRAISERS - FARM CREDIT ADMINISTRATION THE AUTHORITY CONTAINED IN THE ACT OF MAY 17, 1935, 49 STAT. 247, MAKING APPROPRIATION FOR THE FARM CREDIT ADMINISTRATION FOR "SPECIAL REPORTS BY PERSONAL SERVICE WITHOUT REGARD TO THE PROVISIONS OF ANY OTHER ACT; * * *," DOES NOT AUTHORIZE THE EMPLOYMENT OF TEMPORARY PERSONAL SERVICES WITHOUT REGARD TO THE STATUTES RELATING TO DUAL EMPLOYMENT AND FEDERAL LAND-BANK APPRAISERS, APPOINTED ON A PERMANENT BASIS WITH ANNUAL SALARIES IN EXCESS OF $2,000 PER ANNUM, MAY NOT, DURING LEAVE OF ABSENCE WITHOUT PAY, HOLD ANY OTHER PERMANENT OR TEMPORARY OFFICE OR POSITION UNDER THE ADMINISTRATIVE APPROPRIATION FOR THE FARM CREDIT ADMINISTRATION. FEDERAL LAND-BANK APPRAISERS ARE "REQUIRED BY LAW TO BE EXCLUSIVELY ENGAGED UPON SOME SPECIFIC WORK" WITHIN THE MEANING OF SECTION 3, ACT OF MAY 28, 1896, 29 STAT. 179, AND WHEN EMPLOYED FULL TIME ON AN ANNUAL BASIS MAY NOT BE TEMPORARILY DETAILED OR ASSIGNED TO OTHER DUTIES.

COMPTROLLER GENERAL MCCARL TO THE GOVERNOR, FARM CREDIT ADMINISTRATION, SEPTEMBER 9, 1935:

THERE WAS RECEIVED YOUR LETTER OF JUNE 28, 1935, AS FOLLOWS:

THE FEDERAL FARM LOAN ACT, APPROVED JULY 17, 1916, AS AMENDED, PROVIDES (SEC. 3) THAT THE FARM CREDIT ADMINISTRATION SHALL APPOINT ONE OR MORE LAND BANK APPRAISERS FOR EACH FEDERAL LAND BANK DISTRICT; THAT SUCH LAND BANK APPRAISERS SHALL BE PUBLIC OFFICIALS; SHALL RECEIVE SUCH COMPENSATION AS THE FARM CREDIT ADMINISTRATION SHALL FIX AND SHALL BE PAID BY THE FEDERAL LAND BANKS, JOINT STOCK LAND BANKS, AND THE FEDERAL INTERMEDIATE CREDIT BANKS THEY SERVE, IN SUCH PROPORTION AND IN SUCH MANNER AS THE FARM CREDIT ADMINISTRATION SHALL ORDER.

IN ACCORDANCE WITH THE FOREGOING, THE LAND BANK APPRAISERS ARE APPOINTED BY THE LAND BANK COMMISSIONER AND, DEPENDING UPON WHETHER THE SERVICE TO BE RENDERED IS TO BE CONTINUOUS OR INTERMITTENT, THE SALARY RATE IS FIXED ON AN ANNUAL BASIS OR A PER DIEM BASIS.

UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 6758 OF JUNE 29, 1934, THE POSITIONS OF LAND BANK APPRAISERS WERE PLACED UNDER THE CLASSIFIED CIVIL SERVICE.

FROM TIME TO TIME, IT WILL BE NECESSARY FOR THE FARM CREDIT ADMINISTRATION TO EMPLOY PERSONS, TEMPORARILY, TO MAKE SPECIAL INVESTIGATIONS AND STUDIES FOR THE PURPOSE OF DEVELOPING FACTS AND RECOMMENDATIONS FOR USE AS THE BASIS FOR DETERMINING REGULATIONS AND POLICIES TO BE PURSUED IN THE DISCHARGE OF ITS OFFICIAL WORK. THESE EMPLOYMENTS WILL BE COVERED BY APPOINTMENTS MADE BY THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION, THE COMPENSATION CONNECTED WITH WHICH WILL BE PAYABLE FROM THE ADMINISTRATIVE APPROPRIATION FOR SALARIES AND EXPENSES OF THE FARM CREDIT ADMINISTRATION, THE SALARY RATES TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, OR EXECUTIVE ORDER NO. 6746 OF JUNE 21, 1934. IN MOST OF THESE CASES, IT WILL PROBABLY BE FOUND THAT THE BEST QUALIFIED PERSONS TO PERFORM THE REQUIRED SERVICES ARE SERVING UNDER APPOINTMENTS AS LAND BANK APPRAISERS, AND THIS OFFICE IS CONFRONTED WITH THE PROBLEM OF DETERMINING THE PROCEDURE TO BE FOLLOWED IN ARRANGING FOR THIS TEMPORARY SERVICE WITH THE MINIMUM OF INTERFERENCE TO THE REGULAR DUTIES OF THE LAND BANK APPRAISER. IN EACH CASE, THE TEMPORARY SERVICE TO BE PERFORMED WILL COVER EITHER A DEFINITE CONTINUOUS PERIOD, FOLLOWED BY INTERMITTENT SERVICE AS THE NECESSITY FOR SUCH SERVICE ARISES, OR INTERMITTENT SERVICE THROUGHOUT, AND IT WOULD BE MOST DESIRABLE, FROM A PRACTICAL STANDPOINT AS WELL AS A MATTER OF GOOD ADMINISTRATION, TO TREAT LAND BANK APPRAISERS SELECTED FOR THIS SPECIAL TEMPORARY WORK AS CONTINUING UNDER THEIR APPOINTMENTS AS LAND BANK APPRAISERS, BUT IN A "WITHOUT-PAY" STATUS DURING SUCH TIME AS THEY RENDER SERVICE UNDER THE TEMPORARY APPOINTMENT GIVEN TO THEM FOR THE SPECIAL WORK. IN SOME CASES, THE RATE OF PAY FOR THE TEMPORARY POSITION WILL BE AT A HIGHER RATE THAN THAT PROVIDED FOR BY THE APPOINTMENT AS LAND BANK APPRAISER, SUCH HIGHER RATE BEING DETERMINED IN ACCORDANCE WITH THE CLASSIFICATION ACT OR EXECUTIVE ORDER SALARY SCHEDULES.

IF THE GENERAL ACCOUNTING OFFICE IS IN A POSITION TO APPROVE THE ARRANGEMENT SUGGESTED, THE PAYMENT OF DUPLICATE SALARY OR TRAVEL EXPENSE WILL BE AVOIDED BY CLEARING ALL SALARY AND TRAVEL EXPENSE VOUCHERS THROUGH THE FEDERAL LAND BANK, TO WHICH THE EMPLOYEE IS ASSIGNED AS A LAND BANK APPRAISER, BEFORE THEY ARE CLEARED FOR PAYMENT FROM FUNDS APPROPRIATED TO THE FARM CREDIT ADMINISTRATION. THE PROCEDURE SUBMITTED HEREIN FOR YOUR APPROVAL APPEARS TO BE IN CONFORMITY WITH THE PRACTICE APPROVED IN YOUR DECISION OF JANUARY 19, 1933 (12 COMP. GEN. 501), PERMITTING PERSONS WHO WERE GIVEN ADMINISTRATIVE FURLOUGHS FROM THEIR PERMANENT POSITIONS UNDER THE PROVISIONS OF THE ECONOMY ACT, TO ACCEPT TEMPORARY POSITIONS WITHOUT TERMINATING THEIR APPOINTMENTS IN THE PERMANENT POSITIONS. OUR PROPOSAL WOULD CONTINUE THE PERMANENT APPOINTMENT OF THE LAND BANK APPRAISER, AND CARRY HIM IN A "WITHOUT-PAY" STATUS DURING SUCH TIME AS HE RENDERED SERVICE UNDER THE SPECIAL TEMPORARY APPOINTMENT, AND IN THIS WAY THE EMPLOYEE WOULD BE IN A POSITION, ESPECIALLY WHEN HE MIGHT BE REQUIRED TO SERVE ON A GIVEN DAY AS A LAND BANK APPRAISER AND THE FOLLOWING DAY UNDER HIS SPECIAL TEMPORARY APPOINTMENT, TO RENDER THESE SERVICES TO THE BEST ADVANTAGE, WITHOUT THE HINDRANCE AND DELAY THAT WOULD BE OCCASIONED IF IN EACH CASE HIS APPOINTMENT AS A LAND BANK APPRAISER WERE REQUIRED TO BE TERMINATED BY HIS FORMAL TRANSFER TO THE SPECIAL TEMPORARY POSITION AND, IN TURN, BY FORMAL TRANSFER FROM THE LATTER POSITION TO THAT OF LAND BANK APPRAISER, EFFECTED AT FREQUENT INTERVALS.

THE STATUTORY PROVISION MENTIONED IN THE FIRST PARAGRAPH OF THE LETTER QUOTED ABOVE IS SECTION 3 OF THE FEDERAL FARM LOAN ACT OF JULY 17, 1916, 39 STAT. 361, AS AMENDED BY THE ACT OF APRIL 20, 1920, 41 STAT. 570. IS UNDERSTOOD FROM THE SECOND PARAGRAPH OF YOUR LETTER THAT THE LAND BANK APPRAISERS ARE APPOINTED BOTH UNDER PERMANENT AND TEMPORARY, INTERMITTENT APPOINTMENTS, THE FORMER ON AN ANNUAL SALARY AND THE LATTER ON A PER DIEM SALARY WHEN ACTUALLY EMPLOYED AND THAT ALL RECEIVE A SALARY IN EXCESS OF THE RATE OF $2,000 PER ANNUM AND THE MAJORITY IN EXCESS OF $2,500 PER ANNUM. THESE SALARIES ARE PAID FROM SUMS ASSESSED AGAINST THE FEDERAL LAND BANKS.

THE APPROPRIATION ACT OF MAY 17, 1935, 49 STAT. 247, TITLE II, FARM CREDIT ADMINISTRATION, PROVIDES, AMONG OTHER THINGS,"FOR SALARIES AND EXPENSES OF THE FARM CREDIT ADMINISTRATION IN THE DISTRICT OF COLUMBIA AND THE FIELD; * * *; PURCHASE OF MANUSCRIPTS, DATA, AND SPECIAL REPORTS BY PERSONAL SERVICE WITHOUT REGARD TO THE PROVISIONS OF ANY OTHER ACT; * * *; EMPLOYMENT OF PERSONS, FIRMS, AND OTHERS FOR THE PERFORMANCE OF SPECIAL SERVICES, INCLUDING LEGAL SERVICES, AND OTHER MISCELLANEOUS EXPENSES; * * *.' THIS APPROPRIATION WOULD BE AVAILABLE FOR THE EMPLOYMENT OF TEMPORARY PERSONAL SERVICES FOR THE WORK MENTIONED IN THE FOURTH PARAGRAPH OF YOUR LETTER, BUT THE AUTHORITY FOR "SPECIAL REPORTS BY PERSONAL SERVICES WITHOUT REGARD TO THE PROVISIONS OF ANY OTHER ACT," WOULD NOT AUTHORIZE THE EMPLOYMENT OF SUCH TEMPORARY PERSONAL SERVICES WITHOUT REGARD TO THE STATUTES RELATING TO DUAL EMPLOYMENT, ETC.

SECTION 6 OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, PROVIDES IN PART AS FOLLOWS:

SEC. 6. 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, * * *.

SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AND SECTION 1765, REVISED STATUTES, PROVIDE AS FOLLOWS:

* * * NO PERSON WHO HOLDS AN OFFICE, THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY HERETOFORE OR HEREAFTER SPECIALLY AUTHORIZED THERETO BY LAW; * * *

SEC. 1765. NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

IN DECISION OF APRIL 12, 1923, 2 COMP. GEN. 649, IT WAS HELD (QUOTING FROM THE SYLLABUS):

A CIVILIAN EMPLOYEE OF THE GOVERNMENT HOLDING A POSITION THE SALARY ATTACHED TO WHICH AMOUNTS TO $2,500 OR MORE MAY NOT BE EMPLOYED IN ANY OTHER POSITION UNDER THE GOVERNMENT WITH COMPENSATION ATTACHED, IT BEING IMMATERIAL THAT HE WAS IN A LEAVE-WITHOUT-PAY STATUS FROM THE FIRST POSITION FOR THE PERIOD COVERED BY THE SECOND POSITION.

IN DECISION OF JUNE 4, 1924, 3 COMP. GEN. 913, 916, IT WAS HELD AS FOLLOWS:

IT WAS STATED IN THE DECISION OF APRIL 12, 1923, THAT THE FACT THAT YOU WERE AWAY FROM YOUR PERMANENT POSITION AS SUPERVISING CHIEF ENGINEER ON LEAVE OF ABSENCE WITHOUT PAY DOES NOT TAKE YOUR CASE OUT OF THE INHIBITION CONTAINED IN SECTION 1765, REVISED STATUTES, AND THE ACT OF AUGUST 29, 1916, 39 STAT. 582, AND THAT WHETHER ACTUALLY IN RECEIPT OF SALARY AS SUPERVISING CHIEF ENGINEER DURING THE PERIOD IN QUESTION IS IMMATERIAL. THAT OPINION MUST BE AND IS ADHERED TO. AS YOU APPEAR TO HAVE BEEN GRANTED LEAVE FROM THE TREASURY TO PERMIT YOU TO PERFORM A CERTAIN SERVICE FOR THE WAR DEPARTMENT, YOUR SERVICES WERE IN EFFECT LOANED BY THE TREASURY DEPARTMENT TO THE WAR DEPARTMENT, AND THEREFORE YOU WERE ENTITLED TO BE ALLOWED THE PAY OF THE POSITION LEGALLY HELD BY YOU UNDER THE TREASURY DEPARTMENT WHILE PERFORMING THE SERVICE FOR THE WAR DEPARTMENT. * * *

THE DECISION OF JANUARY 19, 1933, 12 COMP. GEN. 501, CITED BY YOU AND THE DECISION THEREIN CITED, 12 COMP. GEN. 403, RELATE ONLY TO EMPLOYEES ON ADMINISTRATIVE FURLOUGH WITHOUT PAY, IMPOSED UNDER THE PROVISIONS OF THE ECONOMY ACT TO KEEP WITHIN APPROPRIATION LIMITS, WHO WERE TEMPORARILY APPOINTED IN OTHER POSITIONS, AND HAVE NO APPLICATION HERE.

LAND-BANK APPRAISERS HOLD STATUTORY OFFICES OR POSITIONS AND THE AMOUNTS ASSESSED AGAINST FEDERAL LAND BANKS CHARGEABLE WITH THEIR SALARIES ARE PUBLIC FUNDS. 14 COMP. GEN. 822, 825, AND CASES THEREIN CITED. ACCORDINGLY, IN VIEW OF THE STATUTES HEREINBEFORE CITED, THOSE LAND-BANK APPRAISERS APPOINTED ON A PERMANENT BASIS WITH AN ANNUAL SALARY WOULD BE PROHIBITED DURING LEAVE OF ABSENCE WITHOUT PAY FROM HOLDING ANY OTHER PERMANENT OR TEMPORARY OFFICE OR POSITION, INCLUDING THOSE TEMPORARY, INTERMITTENT POSITIONS CONTEMPLATED UNDER THE ADMINISTRATIVE APPROPRIATION FOR THE FARM CREDIT ADMINISTRATION. THE RULE STATED IN DECISION OF JULY 25, 1934, 13 COMP. GEN. 68, RELATIVE TO THE APPLICATION OF THE ACT OF JULY 31, 1894, SUPRA, TO CERTAIN TEMPORARY, INTERMITTENT POSITIONS OR EMPLOYMENTS HAS NO APPLICATION HERE.

IN DECISION OF NOVEMBER 19, 1931, 11 COMP. GEN. 200, IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE EMPLOYMENT ON DIFFERENT DAYS OF THE SAME PERSON IN TWO PART-TIME POSITIONS UNDER DIFFERENT DEPARTMENTS OF THE GOVERNMENT, SUCH AS SUBSTITUTE LETTER CARRIER AND GUARD TO PRISONERS, WITH AN AGGREGATE COMPENSATION IN THE TWO POSITIONS NOT IN EXCESS OF THE RATE OF $2,000 PER ANNUM, IS NOT IN CONTRAVENTION OF THE DUAL COMPENSATION ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582. THIS PRINCIPLE IS NOT APPLICABLE WHERE ONE OF TWO POSITIONS OCCUPIED BY THE SAME PERSON IS FULL TIME WHETHER UNDER THE SAME OR DIFFERENT DEPARTMENT, NOR TO TWO PART-TIME POSITIONS UNDER THE SAME DEPARTMENT IF IN CONTRAVENTION OF THE PROVISIONS OF SECTION 1765, REVISED STATUTES. COMP. GEN. 261, DISTINGUISHED.

SECTION 166, REVISED STATUTES, AS AMENDED BY SECTION 3 OF THE ACT OF MAY 28, 1896, 29 STAT. 179, PROVIDES AS FOLLOWS:

SEC. 166. EACH HEAD OF A DEPARTMENT MAY, FROM TIME TO TIME, AFTER THE DISTRIBUTION AMONG THE VARIOUS BUREAUS AND OFFICES OF HIS DEPARTMENT, OF THE CLERKS AND OTHER EMPLOYEES ALLOWED BY LAW, EXCEPT SUCH CLERKS OR EMPLOYEES AS MAY BE REQUIRED BY LAW TO BE EXCLUSIVELY ENGAGED UPON SOME SPECIFIC WORK, AS HE MAY FIND IT NECESSARY AND PROPER TO DO, BUT ALL DETAILS HEREUNDER SHALL BE MADE BY WRITTEN ORDER OF THE HEAD OF THE DEPARTMENT, AND IN NO CASE BE FOR A PERIOD OF TIME EXCEEDING ONE HUNDRED AND TWENTY DAYS, PROVIDED, THAT DETAILS SO MADE MAY, ON EXPIRATION, BE REMOVED FROM TIME TO TIME BY WRITTEN ORDER OF THE HEAD OF THE DEPARTMENT, IN EACH PARTICULAR CASE, FOR PERIODS OF NOT EXCEEDING ONE HUNDRED AND TWENTY DAYS. ALL DETAILS HERETOFORE MADE ARE HEREBY REVOKED, BUT MAY BE RENEWED AS PROVIDED HEREIN.

INCUMBENTS OF OFFICES CREATED BY STATUTE, SUCH AS LAND-BANK APPRAISERS, ARE "REQUIRED BY LAW TO BE EXCLUSIVELY ENGAGED UPON SOME SPECIFIC WORK" WITHIN THE MEANING OF THIS STATUTE, AND WHEN EMPLOYED FULL TIME ON AN ANNUAL BASIS MAY NOT BE TEMPORARILY DETAILED OR ASSIGNED TO OTHER DUTIES.