A-68787, JANUARY 2, 1936, 15 COMP. GEN. 580

A-68787: Jan 2, 1936

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TEMPORARY FEDERAL EMPLOYMENT OF PHILIPPINE ISLANDS EMPLOYEE WHILE IN NONPAY STATUS THERE IS NO LEGAL OBJECTION INSOFAR AS THE LAWS OF THE UNITED STATES ARE CONCERNED TO THE PROPOSED TEMPORARY EMPLOYMENT IN A FEDERAL POSITION OF A CITIZEN OF THE UNITED STATES WHILE IN A NONPAY STATUS AS A TEACHER OF THE PHILIPPINE ISLANDS GOVERNMENT. THERE IS FOR ADMINISTRATIVE CONSIDERATION WHETHER SUCH EMPLOYMENT MIGHT NOT CONTRAVENE THE SPIRIT OF THE DUAL COMPENSATION STATUTES. 1936: THERE WAS RECEIVED YOUR LETTER OF DECEMBER 11. AS FOLLOWS: THE COMMISSION IS CONSIDERING THE TEMPORARY APPOINTMENT ON ITS FORCE. MISS O-MALLEY IS NOW IN A LEAVE WITHOUT PAY STATUS. WHICH WILL EXPIRE JUNE 6. IT IS NOT HER DESIRE TO RESIGN FROM THE PHILIPPINE SERVICE UNLESS SHE IS ASSURED OF A PERMANENT POSITION ELSEWHERE.

A-68787, JANUARY 2, 1936, 15 COMP. GEN. 580

TEMPORARY FEDERAL EMPLOYMENT OF PHILIPPINE ISLANDS EMPLOYEE WHILE IN NONPAY STATUS THERE IS NO LEGAL OBJECTION INSOFAR AS THE LAWS OF THE UNITED STATES ARE CONCERNED TO THE PROPOSED TEMPORARY EMPLOYMENT IN A FEDERAL POSITION OF A CITIZEN OF THE UNITED STATES WHILE IN A NONPAY STATUS AS A TEACHER OF THE PHILIPPINE ISLANDS GOVERNMENT, THE SALARY AS TEACHER NOT BEING PAID FROM FEDERAL FUNDS, BUT THERE IS FOR ADMINISTRATIVE CONSIDERATION WHETHER SUCH EMPLOYMENT MIGHT NOT CONTRAVENE THE SPIRIT OF THE DUAL COMPENSATION STATUTES, THE EXECUTIVE ORDER PROHIBITING EMPLOYMENT OF STATE, TERRITORIAL, ETC., PERSONNEL BY THE FEDERAL GOVERNMENT, AND EMERGENCY LEGISLATION TO CREATE WORK RELIEF FOR THE UNEMPLOYED.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 2, 1936:

THERE WAS RECEIVED YOUR LETTER OF DECEMBER 11, 1935, AS FOLLOWS:

THE COMMISSION IS CONSIDERING THE TEMPORARY APPOINTMENT ON ITS FORCE, IN A CLERICAL CAPACITY, OF MISS HELEN T. O-MALLEY. MISS O MALLEY HAS BEEN EMPLOYED AS A TEACHER UNDER THE GOVERNMENT OF THE PHILIPPINE ISLANDS, BUREAU OF EDUCATION, FOR OVER TWENTY YEARS, HAVING RECEIVED ORIGINAL APPOINTMENT ON AUGUST 5, 1914.

ACCORDING TO INFORMATION SUPPLIED THIS OFFICE, MISS O-MALLEY IS NOW IN A LEAVE WITHOUT PAY STATUS, WHICH WILL EXPIRE JUNE 6, 1936. IT IS NOT HER DESIRE TO RESIGN FROM THE PHILIPPINE SERVICE UNLESS SHE IS ASSURED OF A PERMANENT POSITION ELSEWHERE. THE QUESTION THEREFORE ARISES AS TO WHETHER OR NOT SHE MAY LEGALLY BE APPOINTED IN A TEMPORARY CAPACITY ON THE FORCE OF THIS COMMISSION WHILE REMAINING IN A NON-PAY STATUS AS A TEACHER UNDER THE GOVERNMENT OF THE PHILIPPINE ISLANDS. IT IS THE UNDERSTANDING OF THIS OFFICE THAT THE STATUTES PROHIBITING DUAL EMPLOYMENT WOULD NOT APPLY UNDER SUCH CONDITIONS, SINCE MISS O-MALLEY'S SALARY AS A TEACHER IN THE PHILIPPINE SERVICE IS NOT PAID, WHOLLY OR IN PART, FROM FEDERAL APPROPRIATIONS.

MISS O-MALLEY'S SALARY AS AN EMPLOYEE OF THE PHILIPPINE GOVERNMENT IS AT THE RATE OF $2,250 PER ANNUM. HER TEMPORARY APPOINTMENT IN THIS OFFICE IS BEING CONSIDERED AT $1,620 PER ANNUM. IN VIEW OF THE STATUTES PROHIBITING DUAL EMPLOYMENT, THE COMMISSION REQUESTS A STATEMENT AS TO WHETHER IT WOULD BE PERMISSIBLE FOR THIS OFFICE TO EFFECT MISS O-MALLEY'S TEMPORARY APPOINTMENT, SO FAR AS SUCH STATUTES ARE CONCERNED, WHILE SHE IS ON LEAVE WITHOUT PAY FROM THE SERVICE OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS. IT WOULD BE APPRECIATED IF YOUR REPLY IS EXPEDITED.

THE DUAL COMPENSATION STATUTES ARE NOT INVOLVED HERE, FOR THE REASON YOU SUGGEST THE SALARY AS A TEACHER IN THE PHILIPPINE SERVICE NOT BEING PAID FROM FEDERAL APPROPRIATIONS. THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO THE PROPOSED TEMPORARY EMPLOYMENT OF MISS O-MALLEY IN A FEDERAL POSITION BY THE CIVIL SERVICE COMMISSION INSOFAR AS THE LAWS OF THE UNITED STATES ARE CONCERNED--- AND WITHOUT REFERENCE TO THE LAWS OF THE COMMONWEALTH OF THE PHILIPPINE ISLANDS--- ASSUMING SHE IS A CITIZEN OF THE UNITED STATES AND OTHERWISE QUALIFIED.

THERE IS FOR ADMINISTRATIVE CONSIDERATION, HOWEVER, WHETHER THE PROPOSED EMPLOYMENT WOULD NOT BE CONTRARY TO THE SPIRIT--- ALTHOUGH NOT THE LETTER- -- OF THE DUAL COMPENSATION STATUTES, THE PROVISIONS OF EXECUTIVE ORDER DATED JANUARY 17, 1873, PROHIBITING THE EMPLOYMENT OF THE PERSONNEL OF STATE, TERRITORIAL, AND MUNICIPAL GOVERNMENTS AS FEDERAL OFFICERS OR EMPLOYEES (25 COMP. DEC. 234; 11 COMP. GEN. 22), AND THE EMERGENCY LEGISLATION APPROPRIATING VAST SUMS TO CREATE WORK RELIEF FOR THE UNEMPLOYED.