A-67480, A-80892, NOVEMBER 10, 1936, 16 COMP. GEN. 478

A-67480,A-80892: Nov 10, 1936

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CONTRACTS ARE AUTHORIZED WITH PERSONS NOT IN THE FEDERAL SERVICE FOR THE CONDUCT OF BRANCH POST OFFICES IN GOVERNMENT-OWNED BUILDINGS. PROVIDED SPACE IS ALLOTTED BY THE PROPER AUTHORITY. THE CONTRACT FORM USED IS THAT OF A PERSONAL SERVICE CONTRACT. THE FURNISHING OF SPACE OR EQUIPMENT BY THE GOVERNMENT IS TAKEN INTO CONSIDERATION IN FIXING THE CONTRACT RATE. ARE. AS FOLLOWS: CERTAIN QUESTIONS HAVE ARISEN IN CONNECTION WITH THE ESTABLISHMENT OF CONTRACT STATIONS TO BE OPERATED BY PERSONS WHO ARE NOT IN THE CLASSIFIED SERVICE OF THE GOVERNMENT IN QUARTERS SET ASIDE FOR THE USE OF SUCH STATIONS IN GOVERNMENT BUILDINGS. YOU HELD THAT THE OPERATION OF CONTRACT STATIONS BY NAVY-YARD EMPLOYEES IN THE CLASSIFIED SERVICE WAS ILLEGAL.

A-67480, A-80892, NOVEMBER 10, 1936, 16 COMP. GEN. 478

POST OFFICES - CONTRACT BRANCHES - OPERATION BY GOVERNMENT EMPLOYEES AND PRIVATE PERSONS - SPACE IN FEDERALLY OWNED BUILDINGS CONTRACTS BETWEEN THE POST OFFICE DEPARTMENT AND FULL-TIME BASIS EMPLOYEES OF OTHER GOVERNMENT AGENCIES FOR THE CONDUCT OF BRANCH POST OFFICES, WHETHER OR NOT THE COMBINED COMPENSATION EXCEEDS THE RATE OF $2,000 PER ANNUM, SHOULD BE CANCELED AS BEING IN VIOLATION OF THE DUAL COMPENSATION STATUTES. CONTRACTS ARE AUTHORIZED WITH PERSONS NOT IN THE FEDERAL SERVICE FOR THE CONDUCT OF BRANCH POST OFFICES IN GOVERNMENT-OWNED BUILDINGS, PROVIDED SPACE IS ALLOTTED BY THE PROPER AUTHORITY, THE CONTRACT FORM USED IS THAT OF A PERSONAL SERVICE CONTRACT, AND THE FURNISHING OF SPACE OR EQUIPMENT BY THE GOVERNMENT IS TAKEN INTO CONSIDERATION IN FIXING THE CONTRACT RATE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, NOVEMBER 10, 1936:

YOUR LETTERS OF OCTOBER 1 AND 13, 1936, ARE, RESPECTIVELY, AS FOLLOWS:

CERTAIN QUESTIONS HAVE ARISEN IN CONNECTION WITH THE ESTABLISHMENT OF CONTRACT STATIONS TO BE OPERATED BY PERSONS WHO ARE NOT IN THE CLASSIFIED SERVICE OF THE GOVERNMENT IN QUARTERS SET ASIDE FOR THE USE OF SUCH STATIONS IN GOVERNMENT BUILDINGS.

IN YOUR DECISION OF APRIL 9, A-67480, TO THE SECRETARY OF THE NAVY, YOU HELD THAT THE OPERATION OF CONTRACT STATIONS BY NAVY-YARD EMPLOYEES IN THE CLASSIFIED SERVICE WAS ILLEGAL. AS A RESULT OF YOUR DECISION THE STATUS OF THE CONTRACT UNITS IN THE CHARLESTOWN, MASSACHUSETTS, AND BROOKLYN, NEW YORK, NAVY YARDS WAS CHANGED AND CLASSIFIED STATIONS WERE ESTABLISHED AT THOSE PLACES AS OF JUNE 1, 1936. THE POST OFFICE DEPARTMENT DIVISION OF YOUR OFFICE HAS NOW TAKEN EXCEPTION TO THE CONDUCT OF CONTRACT STATIONS AT THE JEFFERSON BARRACKS AT ST. LOUIS, MISSOURI, BY MRS. OPAL A. KIDER AND CONRAD CROEPPER; AT THE VETERANS' ADMINISTRATION FACILITY AT BILOXI, BY MRS. FERN S. WESTERFIELD; AND AT CAMP DIX AT WRIGHTSTOWN, NEW JERSEY, BY CLIFFORD R. BOWER.

INVESTIGATION BY THE DEPARTMENT HAS DISCLOSED THAT CONRAD GROEPPER, CLERK IN CHARGE OF CONTRACT STATION NO. 45 AT ST. LOUIS, IS A CLASSIFIED EMPLOYEE OF THE VETERANS' ADMINISTRATION AND CONSEQUENTLY HIS STATUS IS ANALOGOUS TO THAT OF THE EMPLOYEES COVERED IN YOUR DECISION ABOVE REFERRED TO. HOWEVER, THE OTHER THREE PERSONS NAMED ARE NOT EMPLOYEES OF THE GOVERNMENT AND THERE IS NO APPARENT REASON WHY THEY WOULD BE INELIGIBLE TO CONTRACT TO PERFORM SERVICES OF THE CHARACTER DESCRIBED.

UNDER THE PROVISIONS OF 39 U.S.C. 158 (SECTION 402, POSTAL LAWS AND REGULATIONS, 1932) THE POSTMASTER GENERAL IS AUTHORIZED TO "ESTABLISH WITHIN ANY POST-OFFICE DELIVERY ONE OR MORE BRANCH OFFICES (STATIONS OR SUBSTATIONS) FOR THE RECEIPT AND DELIVERY OF MAIL MATTER AND THE SALE OF STAMPS AND ENVELOPES; AND HE SHALL PRESCRIBE THE RULES AND REGULATIONS FOR THE GOVERNMENT EREOF.'

SECTION 403, PARAGRAPH 3 (B), OF THE POSTAL LAWS AND REGULATIONS PROVIDES THAT "CONTRACT STATIONS ARE THOSE USUALLY LOCATED IN DRUG STORES OR OTHER PLACES OF BUSINESS AND OPERATED UNDER CONTRACT BY PERSONS NOT IN THE CLASSIFIED SERVICE WHO ARE REQUIRED TO FURNISH QUARTERS AND EQUIPMENT, HEAT, LIGHT, AND THE NECESSARY CLERICAL ASSISTANCE.'

IN ESTABLISHING CONTRACT STATIONS IN GOVERNMENT BUILDINGS PRIMARY REGARD HAS BEEN HAD FOR THE NECESSITY OR CONVENIENCE TO THE GOVERNMENT ORGANIZATION THEREIN LOCATED OF THE POSTAL FACILITIES THUS MADE AVAILABLE. OF COURSE THE FACT THAT THE CLERK IN CHARGE OF SUCH A STATION IS NOT REQUIRED TO PROVIDE QUARTERS IS TAKEN INTO CONSIDERATION IN FIXING THE AMOUNT OF HIS/HER COMPENSATION. IT IS USUALLY TRUE THAT THE AMOUNT OF BUSINESS TRANSACTED WOULD NOT WARRANT THE EXPENSE INCIDENT TO THE OPERATION OF CLASSIFIED UNITS IN SUCH BUILDINGS.

YOUR DECISION IS ACCORDINGLY REQUESTED AS TO THE PROPRIETY OF CONTINUING THE EXISTING PRACTICE OF AUTHORIZING THE ESTABLISHMENT OF CONTRACT STATIONS TO BE CONDUCTED BY OTHER THAN CLASSIFIED EMPLOYEES IN GOVERNMENT BUILDINGS, IT BEING UNDERSTOOD THAT THE FAILURE OF THE CONTRACTOR TO FURNISH A BUILDING OR TO PAY RENT FOR SAME IS TAKEN INTO CONSIDERATION IN FIXING THE AMOUNT OF HIS/HER COMPENSATION.

IT IS FURTHER REQUESTED THAT YOU ADVISE WHETHER YOU CONCUR IN THE VIEW THAT THE STANDARD FORM (1459A) USED IN SUCH CASES SHOULD BE MODIFIED IN SUCH A MANNER AS TO DEFINITELY INDICATE THEREIN THAT THE CONTRACTOR IS NOT FURNISHING THE QUARTERS IN WHICH THE STATION IS TO BE LOCATED.

REFERENCE IS MADE TO YOUR COMMUNICATION OF SEPTEMBER 23, INVITING ATTENTION TO YOUR DECISION OF APRIL 9, 1936, AND CONCERNING AGREEMENTS FOR THE CONDUCT OF CERTAIN CONTRACT STATIONS LOCATED IN THE OLD AND NEW HOUSE OFFICE BUILDINGS AND THE SENATE AND UNITED STATES CAPITOL BUILDINGS.

WITH REFERENCE TO THE AGREEMENTS EXECUTED BY MESSRS. JOHN J. KEEGAN AND RICE A. INGRAM TO CONDUCT CONTRACT STATIONS IN THE OLD HOUSE OFFICE BUILDING AND THE NEW HOUSE OFFICE BUILDING, RESPECTIVELY, AT THE RATE OF $480 A YEAR, IT WAS NOT UNDERSTOOD AT THE TIME THE AGREEMENTS WERE EXECUTED THAT THE TOTAL COMPENSATION RECEIVED WOULD EXCEED THE $2,000 LIMIT, AND THE POSTMASTER OF WASHINGTON, D.C., HAS BEEN DIRECTED TO HAVE NEW AGREEMENTS EXECUTED SO THAT THE TOTAL AMOUNT AUTHORIZED WILL NOT EXCEED $2,000.

WITH REFERENCE TO AGREEMENTS EXECUTED BY ROBERT C. WHAYNE TO CONDUCT THE CONTRACT STATION IN THE UNITED STATES CAPITOL BUILDING AT $120 A YEAR, AND THOMAS O. MATHEWS TO CONDUCT THE CONTRACT STATION IN THE SENATE OFFICE BUILDING AT THE RATE OF $5.00 A YEAR, YOUR DECISION OF APRIL 9, 1936, WAS NOT CONSTRUED AS APPLYING IN THE CASES UNDER CONSIDERATION.

AS THERE ARE SEVERAL CONTRACT STATIONS THROUGHOUT THE COUNTRY LOCATED IN GOVERNMENT BUILDINGS WHICH ARE BEING CONDUCTED BY OTHER THAN CLASSIFIED EMPLOYEES, NO ACTION WILL BE TAKEN AT THIS TIME TO CHANGE THE STATUS OF ANY OF THE STATIONS INVOLVED PENDING REPLY TO THE DEPARTMENT'S COMMUNICATION OF OCTOBER 1, 1936, COPY HEREWITH.

SECTION 3871, REVISED STATUTES, PROVIDES AS FOLLOWS:

THE POSTMASTER GENERAL, WHEN THE PUBLIC CONVENIENCE REQUIRES IT, MAY ESTABLISH WITHIN ANY POST-OFFICE DELIVERY ONE OR MORE BRANCH OFFICES FOR THE RECEIPT AND DELIVERY OF MAIL MATTER AND THE SALE OF STAMPS AND ENVELOPES; AND HE SHALL PRESCRIBE THE RULES AND REGULATIONS FOR THE GOVERNMENT THEREOF. BUT NO LETTER SHALL BE SENT FOR DELIVERY TO ANY BRANCH OFFICE CONTRARY TO THE REQUEST OF THE PART TO WHOM IT IS ADDRESSED.

SECTION 15 OF THE ACT OF MAY 18, 1916, 39 STAT. 163, PROVIDES:

* * * THE POSTMASTER GENERAL MAY ENTER INTO CONTRACTS FOR THE CONDUCT OF CONTRACT STATIONS FOR A TERM NOT EXCEEDING TWO YEARS.

SECTION 403, POSTAL LAWS AND REGULATIONS, 1932, STATES:

(B) "CONTRACT," THOSE USUALLY LOCATED IN DRUG STORES OR OTHER PLACES OF BUSINESS AND OPERATED UNDER CONTRACT BY PERSONS NOT IN THE CLASSIFIED SERVICE WHO ARE REQUIRED TO FURNISH QUARTERS AND EQUIPMENT, HEAT, LIGHT, AND THE NECESSARY CLERICAL ASSISTANCE.

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 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 * * *.

SECTION 1765, REVISED STATUTES, PROVIDES:

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 9, 1936, 15 COMP. GEN. 882, 884, WHEREIN WERE QUOTED ALL BUT THE FIRST OF THE ABOVE QUOTED STATUTES, IT WAS HELD AS FOLLOWS:

IN THE ABSENCE OF AN EXPRESS STATUTE TO THE CONTRARY SUCH, AS FOR INSTANCE, SECTIONS 134 AND 135, TITLE 39 U.S.C. AUTHORIZING APPOINTMENT OF NAVY MAIL CLERKS, THE OPERATION OF A BRANCH POST OFFICE WOULD APPEAR TO BE THE EXCLUSIVE RESPONSIBILITY OF THE POST OFFICE DEPARTMENT AND THERE WOULD THUS BE NO AUTHORITY FOR THE ESTABLISHMENT OF BRANCH POST OFFICES IN THE GOVERNMENT DEPARTMENTS AND ESTABLISHMENTS TO BE SERVICED AND/OR SUPERVISED BY PERSONNEL OF THE DEPARTMENT OR ESTABLISHMENT IN WHICH ESTABLISHED, AND THE EXPENSES OF WHICH ARE CHARGED TO THE APPROPRIATION FOR SAID DEPARTMENT OR ESTABLISHMENT. NO EXPRESS STATUTORY AUTHORITY APPEARS TO EXIST SO FAR AS THE INSTANT CASE IS CONCERNED. YOU ARE ADVISED, THEREFORE, THAT THE APPROPRIATIONS FOR THE NAVAL ESTABLISHMENT MAY NO LONGER BE CHARGED WITH THE PERSONNEL EXPENSES OF OPERATING THE BRANCH POST OFFICE IN QUESTION. IF IT BE DESIRED TO CONTINUE THE OFFICE FOR THE CONVENIENCE OF THE DEPARTMENT AND THE PERSONNEL, THE POSTMASTER GENERAL SHOULD BE REQUESTED TO ASSUME FULL RESPONSIBILITY FOR ITS FUTURE OPERATION PURSUANT TO EXISTING STATUTES.

THE $1,000 PER ANNUM PAID MISS ANTHONY BY THE POST OFFICE DEPARTMENT CONSTITUTES AN ADDITIONAL ,SALARY" RECEIVED BY HER, WHICH, TOGETHER WITH THE SALARY OF $1,680 OR $1,800 PER ANNUM, EXCEEDED THE COMBINED RATE OF $2,000 PER ANNUM IN CONTRAVENTION OF THE DUAL COMPENSATION ACT OF 1916, SUPRA. IT CONSTITUTES, ALSO,"COMPENSATION" WITHIN THE INHIBITORY PROVISIONS OF SECTION 1765, REVISED STATUTES. FURTHERMORE, AS PREVIOUSLY STATED HEREIN, MISS ANTHONY DID NOT PROVIDE THE SPACE AND EQUIPMENT SPECIFIED BY THE CONTRACT AS A PART OF THE SERVICE TO BE PERFORMED FOR WHICH THE CONSIDERATION OF $1,000 PER ANNUM WAS FIXED. ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, A CHARGE WILL BE RAISED AGAINST HER ON THE BOOKS OF THIS OFFICE FOR SUCH AMOUNT AS SHE RECEIVED FROM THE POST OFFICE DEPARTMENT FOR THE OPERATION OF THE POST OFFICE STATION IN QUESTION. * * *

THE DECISION INTENDED TO HOLD THAT THE CONDUCT OF A BRANCH POST OFFICE BY A FEDERAL EMPLOYEE UNDER ANOTHER DEPARTMENT OR OFFICE OF THE GOVERNMENT CONSTITUTES A PERSONAL SERVICE AND THAT PAYMENT UNDER THE CONTRACT ENTERED INTO BETWEEN THE POST OFFICE DEPARTMENT AND SUCH FEDERAL EMPLOYEE IS A VIOLATION NOT ONLY OF THE DUAL COMPENSATION ACT OF 1916, SUPRA, IF THE COMBINED RATE IS IN EXCESS OF $2,000 PER ANNUM, BUT, ALSO IN VIOLATION OF SECTION 1765, REVISED STATUTES, IF THE REGULAR POSITION OF THE EMPLOYEE IS ON THE BASIS OF FULL TIME, IRRESPECTIVE OF THE COMBINED RATE OF COMPENSATION. IF EITHER IS ON A FULL-TIME BASIS THE TWO APPOINTMENTS OR EMPLOYMENTS WOULD APPEAR TO BE INCOMPATIBLE. IF, IN THE PRESENT CASES THE EMPLOYEES OF THE LEGISLATIVE BRANCH AND OF THE EXECUTIVE BRANCH OF THE GOVERNMENT ARE EMPLOYED AND PAID ON A FULL TIME BASIS UNDER THE APPROPRIATIONS FOR THOSE BRANCHES OF THE SERVICE, WHICH IS UNDERSTOOD TO BE THE FACT, PAYMENT OF ADDITIONAL COMPENSATION TO THEM BY THE POST OFFICE DEPARTMENT FOR THE CONDUCT OF A BRANCH POST OFFICE IS IN VIOLATION OF SECTION 1765, REVISED STATUTES, REGARDLESS OF WHETHER THE COMBINED COMPENSATION EXCEEDS THE RATE OF $2,000 PER ANNUM. HENCE, ALL SUCH CONTRACTS MUST BE CANCELED AND THERE IS NO ALTERNATIVE BUT TO RAISE A CHARGE AGAINST EACH EMPLOYEE FOR THE COMPENSATION RECEIVED UNDER THE CONTRACT FOR CONDUCT OF THE BRANCH POST OFFICE.

THERE WOULD BE NO LEGAL OBJECTION TO CONTRACTS ENTERED INTO WITH PERSONS NOT IN THE FEDERAL SERVICE FOR THE CONDUCT OF BRANCH POST OFFICES IN FEDERALLY-OWNED BUILDINGS, PROVIDED (1) SPACE IS ALLOTTED BY PROPER AUTHORITY, (2) THE CONTRACT FORM TO BE USED IS REVISED TO A PERSONAL AUTHORITY, (2) THAT CONTRACT FORM TO BE USED IS REVISED TO A PERSONAL SERVICE CONTRACT--- SECTION 3871, REVISED STATUTES, AND SECTION 15 OF THE ACT OF MAY 18, 1916, SUPRA, NOT PRECLUDING CONTRACTS ON A PERSONAL SERVICE BASIS--- AND (3) THE FACT THAT THE CONTRACTOR FURNISHES NO SPACE OR EQUIPMENT IS TAKEN INTO CONSIDERATION IN FIXING THE CONTRACT RATE. IF YOU SHOULD ADOPT THIS PROCEDURE IT IS SUGGESTED THAT SECTION 403 OF THE POSTAL LAWS AND REGULATIONS BE REVISED ACCORDINGLY. FOR THE CURRENT CALENDAR YEAR NO FURTHER OBJECTION WILL BE RAISED BY THIS OFFICE TO CONTRACTS ON FORM 1459A HERETOFORE ENTERED INTO WITH PERSONS NOT IN THE GOVERNMENT SERVICE FOR CONDUCT OF BRANCH POST OFFICES IN SPACE FURNISHED BY THE GOVERNMENT, IF OTHERWISE CORRECT.