A-84484, APRIL 1, 1937, 16 COMP. GEN. 909

A-84484: Apr 1, 1937

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COMPENSATION - DOUBLE - PART-TIME ANNUAL PAY BASIS EMPLOYEE EMPLOYED ALSO ON A FEE BASIS THE EMPLOYMENT BY ONE FEDERAL AGENCY ON A CONTRACT FEE BASIS OF A PERSON SERVING UNDER ANOTHER GOVERNMENT AGENCY IN A PART-TIME POSITION ON A PER ANNUM PAY BASIS IS NOT PROHIBITED BY THE DUAL COMPENSATION STATUTES. IS AS FOLLOWS: REFERENCE IS MADE TO DECISION 15 COMP. IN WHICH IT IS STATED THAT IF ONE EMPLOYMENT OF AN INDIVIDUAL IS ON A PER ANNUM BASIS THE DUAL COMPENSATION STATUTE IS APPLICABLE. IN CONNECTION WITH THE HANDLING OF THE EMERGENCY CONSERVATION WORK IN ALASKA IT IS NECESSARY FOR THE FOREST SERVICE TO FURNISH MEDICAL ATTENTION TO ENROLLEES. THE AMOUNT OF SUCH SERVICE IN ANY ONE PLACE IS NOT SUFFICIENTLY CONSTANT TO MAKE FEASIBLE DETERMINATION OF TIME PERCENTAGE AS A BASIS FOR FIXING THE SALARY RATE.

A-84484, APRIL 1, 1937, 16 COMP. GEN. 909

COMPENSATION - DOUBLE - PART-TIME ANNUAL PAY BASIS EMPLOYEE EMPLOYED ALSO ON A FEE BASIS THE EMPLOYMENT BY ONE FEDERAL AGENCY ON A CONTRACT FEE BASIS OF A PERSON SERVING UNDER ANOTHER GOVERNMENT AGENCY IN A PART-TIME POSITION ON A PER ANNUM PAY BASIS IS NOT PROHIBITED BY THE DUAL COMPENSATION STATUTES--- SECTION 1765, REVISED STATUTES; SECTION 2, ACT OF JULY 31, 1894, 28 STAT. 205; AND SECTION 6, ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 29 STAT. 120, 582--- NOTWITHSTANDING THE COMBINED COMPENSATION OF THE TWO EMPLOYMENTS EXCEEDS $2,000, OR EITHER OF THEM EXCEEDS $2,500 PER ANNUM, AND A LOW BID FOR SUCH CONTRACT SERVICES ON A FEE BASIS MAY NOT BE REJECTED BECAUSE OF SUCH OTHER PART TIME EMPLOYMENT. 15 COMP. GEN. 751; ID. 828, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, APRIL 1, 1937:

YOUR LETTER OF MARCH 10, 1937, IS AS FOLLOWS:

REFERENCE IS MADE TO DECISION 15 COMP. GEN. 751, IN WHICH IT IS STATED THAT IF ONE EMPLOYMENT OF AN INDIVIDUAL IS ON A PER ANNUM BASIS THE DUAL COMPENSATION STATUTE IS APPLICABLE.

IN CONNECTION WITH THE HANDLING OF THE EMERGENCY CONSERVATION WORK IN ALASKA IT IS NECESSARY FOR THE FOREST SERVICE TO FURNISH MEDICAL ATTENTION TO ENROLLEES. THE AMOUNT OF SUCH SERVICE IN ANY ONE PLACE IS NOT SUFFICIENTLY CONSTANT TO MAKE FEASIBLE DETERMINATION OF TIME PERCENTAGE AS A BASIS FOR FIXING THE SALARY RATE, THE MOST SATISFACTORY PLAN BEING SERVICE ON A FEE BASIS. IN SOME OF THE SMALLER PLACES THE ONLY PHYSICIAN IS ONE UNDER APPOINTMENT FOR PART TIME SERVICE IN THE PUBLIC HEALTH SERVICE OR SOME OTHER AGENCY AT A RATE IN EXCESS OF $2,000.00, AND IN OTHER PLACES WHERE THERE ARE TWO OR MORE DOCTORS IT IS POSSIBLE THAT ALL ARE EMPLOYED UNDER PART-TIME APPOINTMENT BY SOME AGENCY.

A SPECIFIC CASE IS THAT OF DR. NICHOLSON, AT SITKA, WHO, IT IS UNDERSTOOD, RECEIVES ON PART-TIME BASIS A SALARY OF $900 A YEAR FROM THE PUBLIC HEALTH SERVICE. UNDER THE ABOVE CITED DECISION HIS EMPLOYMENT BY THAT SERVICE WOULD RENDER IT IMPOSSIBLE FOR THE FOREST SERVICE TO PAY HIM ON A FEE BASIS FOR SERVICES NECESSARY IN THE VICINITY OF SITKA, THE PRACTICAL EFFECT BEING THAT MEDICAL SERVICE CANNOT BE OBTAINED THERE AND COULD BE PROVIDED ONLY BY SENDING IN PHYSICIANS FROM A DISTANCE OR SENDING PATIENTS TO A DISTANT PHYSICIAN, EITHER OF WHICH IS UNSATISFACTORY, BECAUSE, ASIDE FROM THE RENTAL OF AIRPLANES, THE ONLY MEANS OF TRANSPORTATION IS BY VESSEL, RESULTING IN CONSIDERABLE LAPSE OF TIME BETWEEN THE NEEDS FOR SERVICES AND THE PROCURING THEREOF. AT TIMES MEDICAL SERVICE TO C.C.C. ENROLLEES IN A PARTICULAR LOCALITY IS HEAVY AND AT OTHER TIMES IT MAY BE NEGLIGIBLE OR NONEXISTENT, MAKING IT IMPRACTICABLE TO ARRANGE FOR A SALARY INCREASE BY THE PUBLIC HEALTH SERVICE UNDER ITS APPOINTMENT, WITH REIMBURSEMENT BY THE FOREST SERVICE. AN INCREASE OF $600, FOR EXAMPLE, TO COVER THE ADDITIONAL WORK MIGHT BE EITHER ENTIRELY INADEQUATE OR VERY EXCESSIVE. IT MAY BE THAT IN SOME INSTANCES A FEE PAYMENT TO A PART-TIME EMPLOYEE PHYSICIAN ADDED TO THE AMOUNT PAID UNDER THE APPOINTMENT MAY EXCEED $2,000, OR A FEE SERVICE MAY BE DESIRABLE BY A PHYSICIAN HOLDING A PART-TIME POSITION PAYING IN EXCESS OF $2,000.

IN KETCHIKAN BIDS WERE SOLICITED FOR FURNISHING OF SERVICES ON A FEE BASIS AND THREE SATISFACTORY BIDS RECEIVED, THE LOWEST TWO BEING FROM PHYSICIANS HOLDING APPOINTMENTS FROM SOME OTHER GOVERNMENT AGENCY.

OUR PROBLEM IS (1) TO PROVIDE MEDICAL SERVICE AT PLACES WHERE THE ONLY AVAILABLE PHYSICIAN (OR PHYSICIANS) IS EMPLOYED ON PART-TIME BASIS BY ANOTHER GOVERNMENT AGENCY, AND (2) THE AWARD OF BIDS WHERE THE LOWEST BID IS BY A PHYSICIAN WHO HOLDS SUCH PART-TIME APPOINTMENT. DECISION IS REQUESTED ON THE FOLLOWING POINTS:

(1) WHERE THE ONLY AVAILABLE PHYSICIAN IS UNDER APPOINTMENT BY ANOTHER AGENCY FOR PART-TIME SERVICE, MAY THE FOREST SERVICE EMPLOY HIM ON A FEE BASIS SO LONG AS THE TOTAL PAYMENTS FROM BOTH AGENCIES IN A YEAR DO NOT EXCEED $2,000?

(2) UNDER SUCH CIRCUMSTANCES MAY THE SERVICES OF THE PHYSICIAN BE UTILIZED EVEN WHEN THE PART-TIME APPOINTMENT OR THE TOTAL PAYMENT OF THE TWO AGENCIES EXCEEDS $2,000?

(3) WHEN IN THE SOLICITATION OF BIDS FOR MEDICAL SERVICE THE LOWEST BID IS FROM A PART-TIME EMPLOYED PHYSICIAN, SHOULD HIS BID BE REJECTED AND AWARD MADE TO THE LOWEST BIDDER WHO DOES NOT HAVE A PART-TIME GOVERNMENT POSITION?

OUR SITUATION WITH RESPECT TO MEDICAL ATTENTION IN ALASKA IS CRITICAL, AND IT IS HOPED THAT YOUR DECISION CAN BE RENDERED PROMPTLY.

IN CONNECTION WITH THE QUESTION SUBMITTED THERE ARE FOR CONSIDERATION THREE DIFFERENT STATUTES PLACING LIMITATIONS UPON THE RECEIPT OF ADDITIONAL OR DUAL COMPENSATION. 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.

SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, PROVIDES:

* * * 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; * * *.

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

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, DOES NOT PROHIBIT THE PAYMENT OF COMPENSATION IN TWO DISTINCT COMPATIBLE EMPLOYMENTS, THE PAY OF EACH OF WHICH IS FIXED BY LAW OR REGULATION. 4 COMP. GEN. 84. LIKEWISE, SAID STATUTE HAS NO APPLICATION WHEN THE COMPENSATION OF NEITHER EMPLOYMENT IS FIXED BY LAW OR REGULATION. 1 COMP. DEC. 366; 3 ID. 183; 4 ID. 696; 5 ID. 935.

IT HAS BEEN HELD BY THIS OFFICE THAT THE PAYMENT OF AN INDEFINITE AND UNDETERMINED AGGREGATE PER ANNUM MADE UP OF CHARGES FOR SEPARATE SERVICES DEPENDENT ENTIRELY UPON CONTINGENCIES BEYOND THE CONTROL OF THE GOVERNMENT OR THE EMPLOYEE, SUCH AS ARE ORDINARILY DESCRIBED AS "FEES," DOES NOT CONSTITUTE SALARY WITHIN THE PURVIEW OF THE ACT OF MAY 10, 1916, AS AMENDED, SUPRA. 3 COMP. GEN. 563. THE DECISION OF MARCH 2, 1936, 15 COMP. GEN. 751, IS NOT TO BE REGARDED AS HOLDING THAT THE SAID ACT OF 1916 PRECLUDES A PERSON EMPLOYED IN A PART-TIME POSITION ON AN ANNUAL BASIS FROM RECEIVING COMPENSATION FIXED BY CONTRACT OR AGREEMENT ON A FEE BASIS UNDER A SEPARATE AND DISTINCT EMPLOYMENT.

THE ENGAGING OF THE SERVICES OF A PHYSICIAN BY CONTRACT ON A COMPETITIVE BASIS DOES NOT VEST HIM WITH "AN OFFICE TO WHICH COMPENSATION IS ATTACHED" WITHIN THE PURVIEW OF SECTION 2 OF THE ACT OF JULY 31, 1894, SUPRA. 1 COMP. DEC. 286.

QUESTIONS 1 AND 2 ACCORDINGLY ARE ANSWERED IN THE AFFIRMATIVE.

IN ANSWER TO THE THIRD QUESTION, THE AWARD SHOULD BE MADE TO THE LOWEST QUALIFIED BIDDER NOTWITHSTANDING HE MAY ALREADY BE HOLDING A PART-TIME POSITION OF THE NATURE STATED IN YOUR SUBMISSION.