A-87390, OCTOBER 5, 1937, 17 COMP. GEN. 303

A-87390: Oct 5, 1937

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CONSTITUTES "SERVICE" THE EVALUATION OF WHICH IS AN ADMINISTRATIVE RESPONSIBILITY AND MAY BE INCLUDED IN DETERMINING THE ANNUAL SALARY RATE OF SUCH PART-TIME PERSONNEL. THE POSITION INVOLVED TO BE CLASSIFIED IF THE DUTIES THEREOF ARE SIMILAR TO THOSE OF FULL TIME POSITIONS. THE RATE FIXED TO HAVE SUBSTANTIALLY THE SAME RELATION TO THE RATES FIXED FOR FULL TIME SIMILAR POSITIONS AS THE PART TIME SERVICE BEARS TO THE FULL TIME SERVICE. EXCEPTIONS WERE TAKEN TO PAYMENTS OF COMPENSATION ON VOUCHER NO. 4 1322. - FOR THE REASON THAT SUCH POSITIONS ARE REQUIRED TO BE CLASSIFIED WITH COMPENSATION FIXED AT A RATE HAVING THE SAME RELATION TO THE RATE FIXED FOR FULL TIME IN A POSITION WHICH THE TIME GIVEN TO THE SERVICE BEARS TO THE TIME SERVED BY A FULL-TIME EMPLOYEE.

A-87390, OCTOBER 5, 1937, 17 COMP. GEN. 303

COMPENSATION AND CLASSIFICATION - PART TIME PER ANNUM EMPLOYEES - EVALUATION OF SERVICES AND PUBLIC HEALTH SERVICE APPROPRIATION LIMITATIONS THE AVAILABILITY FOR DUTY, UPON CALL BY THE GOVERNMENT, OF PROFESSIONAL, SCIENTIFIC, ETC., PERSONNEL ALSO ENGAGED IN PRIVATE OR COMMERCIAL PURSUITS, CONSTITUTES "SERVICE" THE EVALUATION OF WHICH IS AN ADMINISTRATIVE RESPONSIBILITY AND MAY BE INCLUDED IN DETERMINING THE ANNUAL SALARY RATE OF SUCH PART-TIME PERSONNEL; THE CONTRACTS OF EMPLOYMENT TO SHOW THE METHOD USED IN DETERMINING THE RATE; THE POSITION INVOLVED TO BE CLASSIFIED IF THE DUTIES THEREOF ARE SIMILAR TO THOSE OF FULL TIME POSITIONS; AND THE RATE FIXED TO HAVE SUBSTANTIALLY THE SAME RELATION TO THE RATES FIXED FOR FULL TIME SIMILAR POSITIONS AS THE PART TIME SERVICE BEARS TO THE FULL TIME SERVICE, BUT IN VIEW OF THE TREASURY DEPARTMENT APPROPRIATION ACT OF MAY 14, 1937, 50 STAT. 148, RELATIVE TO PART TIME FIELD EMPLOYEES OF THE PUBLIC HEALTH SERVICE, THEIR CLASSIFICATION MUST BE ON THE BASIS OF THE CLASSIFICATION ACT AND NOT ON EXECUTIVE ORDER SALARY GRADES, AND THERE MUST BE SHOWN ON, OR ATTACHED TO THE PAY ROLL, INFORMATION AS TO ANY FEES PAID TO ENABLE A PROPER AUDIT WITH REGARD TO THE SALARY LIMITATIONS IMPOSED BY THE ACT OF MAY 14, 1937.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, OCTOBER 5, 1937:

IN THE AUDIT OF THE ACCOUNTS OF G. F. ALLEN, CHIEF DISBURSING OFFICER, TREASURY DEPARTMENT, FOR THE MONTH OF FEBRUARY 1935, EXCEPTIONS WERE TAKEN TO PAYMENTS OF COMPENSATION ON VOUCHER NO. 4 1322, TO VARIOUS PART-TIME FIELD EMPLOYEES OF THE UNITED STATES PUBLIC HEALTH SERVICE---ACTING ASSISTANT SURGEONS--- FOR THE REASON THAT SUCH POSITIONS ARE REQUIRED TO BE CLASSIFIED WITH COMPENSATION FIXED AT A RATE HAVING THE SAME RELATION TO THE RATE FIXED FOR FULL TIME IN A POSITION WHICH THE TIME GIVEN TO THE SERVICE BEARS TO THE TIME SERVED BY A FULL-TIME EMPLOYEE.

ON MARCH 21, 1936, IN ANSWER TO THE EXCEPTIONS, IT WAS STATED THAT THE PHYSICIANS WERE APPOINTED AT A NOMINAL PER ANNUM SALARY WITHOUT SPECIFYING THE AMOUNT OF TIME REQUIRED TO BE SERVED UNDER THE APPOINTMENTS; THAT THE PHYSICIANS WERE SUBJECT TO CALL AT ANY TIME; AND THAT IT WAS IMPOSSIBLE TO SECURE PHYSICIANS OF THE TYPE SOUGHT UNDER A CONTRACT OF EMPLOYMENT REQUIRING A SPECIFIC NUMBER OF HOURS OF SERVICE. IN THE AUDIT SUCH EXPLANATIONS WERE NOT CONSIDERED SATISFACTORY FOR THE REASON THAT THE RIGHT OF AN EMPLOYEE OF THE GOVERNMENT TO COMPENSATION IS DEPENDENT UPON THE RENDERING OF SERVICE COMMENSURATE TO THE COMPENSATION PAID.

UNDER DATE OF APRIL 20, 1937, THE SURGEON GENERAL ADVISED AS FOLLOWS:

HOWEVER, AS THIS OFFICE READILY REALIZES THE DIFFICULTY OF YOUR BEING ABLE TO OBTAIN THE SERVICE OF COMPETENT PRIVATE PHYSICIANS FOR SERVICES AS HERE INVOLVED, FURTHER ACTION WITH REGARD TO THIS PARTICULAR PHASE OF THE EXCEPTION WILL BE HELD IN ABEYANCE, PENDING THE RECEIPT OF A SHOWING OF FACTS ESTABLISHING THE RELATION BETWEEN THE RATE FIXED FOR THE SERVICES PERFORMED AND THE ANNUAL SALARY RATE FOR A FULL-TIME EMPLOYEE OF THE GRADE. IT APPEARS THAT A MORE LOGICAL METHOD OF SECURING SUCH SERVICES WOULD BE ON A FEE BASIS.

IN LETTER OF JUNE 1, 1937, THE SURGEON GENERAL DISCUSSED THE MATTER IN DETAIL AND STATED THAT THE ANNUAL COMPENSATION FOR THE SERVICES RENDERED BY THE PHYSICIANS IS NOT BASED ON ANY REQUIREMENT OF A STATED NUMBER OF HOURS OR DAYS OF SERVICE BUT UPON "WHAT, FOR LACK OF A BETTER TERM, MAY BE CALLED THE EXPERIENCE UNDER THE EMPLOYMENT," AND THAT THE LETTERS OF APPOINTMENT DID NOT SPECIFY THE SERVICE REQUIRED. FURTHERMORE, THAT EMPLOYMENT ON AN ANNUAL BASIS WHEN COMPARED TO THE SAME SERVICE ON A FEE BASIS WAS SO OBVIOUSLY TO THE ADVANTAGE OF THE GOVERNMENT THAT IT WOULD BE WHOLLY ILLOGICAL TO SECURE SUCH SERVICES ON A FEE BASIS. A REPORT ON THE ACTIVITIES OF A NUMBER OF ATTENDING SPECIALISTS AT THE UNITED STATES PUBLIC HEALTH SERVICE RELIEF STATION, PHILADELPHIA, PA., AND A COMPARISON OF THE ANNUAL SALARY WITH THE CORRESPONDING AMOUNT REQUIRED TO BE PAID ON A FEE BASIS WAS CITED IN SUPPORT OF SUCH CONTENTION. SAID LETTER OF JUNE 1 FURTHER STATED:

APROPOS TO THE SUBJECT OF PART-TIME FIELD EMPLOYEES OF THE PUBLIC HEALTH SERVICE GENERALLY, YOUR ATTENTION IS INVITED TO THE FOLLOWING LEGISLATION, APPEARING IN THE TREASURY DEPARTMENT APPROPRIATION BILL FOR 1938 (PUBLIC, NO. 77, APPROVED MAY 14, 1937):

"HEREAFTER FIELD EMPLOYEES OF THE PUBLIC HEALTH SERVICE, EXCEPT THOSE EMPLOYED ON A PER DIEM OR FEE BASIS, WHO RENDER PART-TIME DUTY AND ARE ALSO SUBJECT TO CALL AT ANY TIME FOR OTHER SERVICES, MAY BE PAID ANNUAL COMPENSATION FOR SUCH PART-TIME DUTY AND, IN ADDITION, SUCH FEES FOR SUCH OTHER SERVICES AS THE SECRETARY OF THE TREASURY MAY DETERMINE: PROVIDED, THAT THE TOTAL AMOUNT PAID TO ANY SUCH EMPLOYEE FOR ANY FISCAL YEAR SHALL IN NO CASE EXCEED THE AMOUNT OF THE MINIMUM ANNUAL SALARY RATE OF THE CLASSIFICATION GRADE OF THE EMPLOYEE.'

THE USE OF THE WORD "HEREAFTER" IN THE LEGISLATION IS UNDERSTOOD TO MAKE IT PERMANENT LEGISLATION, AND ALTHOUGH IT HAS NO DIRECT BEARING ON THINGS WHICH ARE IN THE PAST, IT WOULD BE MOST ILLOGICAL FOR THE GENERAL ACCOUNTING OFFICE TO INSIST ON THE PUBLIC HEALTH SERVICE REVAMPING ITS ENTIRE PART-TIME PERSONNEL SET-UP FOR THE SHORT TIME THAT WOULD INTERVENE BEFORE THE LEGISLATION BECOMES EFFECTIVE.

THERE IS NOT INVOLVED HEREIN THE STATUS OF PERSONNEL PAID ON A FEE OR A PER DIEM BASIS.

THE DECISIONS OF THIS OFFICE WHERE THE RULES HAVE BEEN STATED FOR FIXING THE COMPENSATION RATES OF PART-TIME POSITIONS, HAVE HELD IN EFFECT (1) THE POSITIONS MUST BE CLASSIFIED IF THE CHARACTER OF THE DUTIES PERFORMED IS THE SAME OR SIMILAR TO THE DUTIES OF EMPLOYEES ON A FULL-TIME BASIS REQUIRED TO BE CLASSIFIED; (2) THE RATES OF COMPENSATION MUST BE FIXED ADMINISTRATIVELY ON AN ANNUAL BASIS HAVING SUBSTANTIALLY THE SAME RELATION TO THE RATES FIXED FOR FULL TIME IN THE SAME OR SIMILAR POSITIONS WHICH THE PART-TIME SERVICE REQUIRED TO BE PERFORMED BEARS TO FULL-TIME SERVICE; (3) THAT "SERVICE" OF PART TIME PROFESSIONAL AND SCIENTIFIC PERSONNEL AND THOSE SIMILARLY EMPLOYED MAY INCLUDE BOTH AVAILABILITY FOR DUTY AS WELL AS ACTUAL SERVICE; (4) THE LETTERS OF APPOINTMENT OR CONTRACTS OF EMPLOYMENT SHOULD SHOW THE BASIS OR METHOD USED IN DETERMINING THE PER ANNUM RATE OF COMPENSATION ON A PART-TIME BASIS; (5) THE PAY ROLL SHOULD REFLECT THE CLASSIFICATION GRADE, THE ANNUAL SALARY RATE, AND THE RATIO OR PERCENTAGE THAT THE PART-TIME COMPENSATION BEARS TO THE FULL-TIME COMPENSATION IN SIMILAR POSITIONS. 11 COMP. GEN. 105; ID. 11; ID. 217; ID. 260; ID. 362. AS TO PROFESSIONAL AND SCIENTIFIC PERSONNEL IT WAS STATED IN DECISION OF JANUARY 7, 1932, 11 COMP. GEN. 260, 262, AS FOLLOWS:

IT IS UNDERSTOOD FROM THE STATEMENT MADE IN THE TWO LETTERS QUOTED THAT THE ANNUAL SALARY OF THESE TWO CONSULTANT OR PART-TIME PHYSICIANS HAS BEEN FIXED ON TWO PRIMARY ELEMENTS, TO WIT: (1) AVAILABILITY FOR DUTY AT ALL TIMES UPON THE CALL OF THE VETERANS' ADMINISTRATION, NECESSITATING THE PHYSICIANS SO TO ARRANGE THEIR PRIVATE PRACTICE AS TO MEET THE NEEDS OF THE GOVERNMENT; AND (2) THE MINIMUM TIME OF ACTUAL SERVICE ON GOVERNMENT WORK WITHOUT SPECIAL CALL.

THE RIGHT OF AN EMPLOYEE OF THE GOVERNMENT TO COMPENSATION IS DEPENDENT UPON THE RENDERING OF SERVICE, 5 COMP. GEN. 566, AND, ORDINARILY, THERE IS NO AUTHORITY FOR THE PAYMENT OF A STIPULATED ANNUAL SALARY IN THE NATURE OF A RETAINER HAVING AN UNCERTAIN RELATION TO, AND POSSIBLY IN EXCESS OF, SERVICES ACTUALLY RENDERED. HOWEVER, IN VIEW OF THE PROFESSIONAL NATURE OF THE PART-TIME SERVICE RENDERED BY CONSULTING PHYSICIANS FOR THE VETERANS' ADMINISTRATION, INVOLVING, IN ADDITION TO ACTUAL ATTENDANCE AT GOVERNMENT INSTITUTIONS, RESEARCH AND OTHER SIMILAR WORK DURING TIME NOT ACTUALLY SPENT AT THE GOVERNMENT INSTITUTIONS, AS WELL AS THE NECESSITY OF ADJUSTMENT IN PRIVATE PRACTICE WITH LITTLE OR NO NOTICE IN ORDER TO BE AVAILABLE UPON THE CALL OF THE GOVERNMENT, IT IS BELIEVED THAT BOTH OF THE ELEMENTS ABOVE STATED REASONABLY MAY BE CLASSED AS ,SERVICE" AND PROPERLY ARE FOR CONSIDERATION IN FIXING THE PART-TIME COMPENSATION ON AN ANNUAL BASIS HAVING PROPER RELATION TO THE TIME SERVICED BY FULL-TIME EMPLOYEES IN SIMILAR POSITIONS, THE SALARIES FOR WHICH HAVE BEEN FIXED IN ACCORDANCE WITH THE PRINCIPLES OF CLASSIFICATION.

IN OTHER WORDS, THIS OFFICE HAS DEFINITELY RECOGNIZED THAT THE AVAILABILITY OF PROFESSIONAL AND SCIENTIFIC PERSONNEL ALSO ENGAGED IN PRIVATE PRACTICE OR COMMERCIAL PURSUITS FOR DUTY UPON CALL BY THE GOVERNMENT HAS A VALUE AND CONSTITUTES "SERVICE" WHICH MAY NOT IN ALL CASES BE MEASURED WITH MATHEMATICAL EXACTITUDE. THE EVALUATION OF SUCH PART-TIME SERVICE OF PROFESSIONAL AND SCIENTIFIC PERSONNEL AND OTHER EMPLOYEES WHOSE WORK IS OF A SIMILAR NATURE OR PERFORMED IN CONNECTION WITH THE WORK OF PROFESSIONAL AND SCIENTIFIC PERSONNEL IS OF NECESSITY AN ADMINISTRATIVE RESPONSIBILITY AND IT IS NOT THE PURPOSE OR INTENT OF THIS OFFICE IN MAKING REQUIREMENTS FOR AUDIT PURPOSES TO QUESTION THE ADMINISTRATIVE ACTION IN THIS REGARD, BUT SIMPLY TO HAVE A PRACTICAL BASIS ON WHICH IT MAY BE DETERMINED THAT NONE BUT LAWFUL EXPENDITURES ARE MADE.

THE REQUIREMENTS FOR AUDIT PURPOSES WILL BE SATISFIED IF THE LETTERS OF APPOINTMENT OR CONTRACTS OF EMPLOYMENT ARE PROPERLY EXECUTED AS ABOVE INDICATED AND MADE AVAILABLE TO THIS OFFICE IN THE ADMINISTRATIVE OFFICE IF DEEMED NECESSARY, AND THERE ARE SHOWN ON THE PAY ROLLS THE CLASSIFICATION ACT GRADE, AND THE ANNUAL SALARY RATE AT NOT TO EXCEED THE MINIMUM SALARY RATE OF THE CLASSIFICATION ACT GRADE IN WHICH THE PART-TIME POSITIONS HAVE BEEN ADMINISTRATIVELY ALLOCATED, THE ACT OF MAY 14, 1937, 50 STAT. 148, APPARENTLY PRECLUDING THE SALARY RATE OF PART-TIME FIELD POSITIONS IN THE PUBLIC HEALTH SERVICE TO BE BASED ON EXECUTIVE ORDER SALARY GRADES WHICH ARE FIXED AT ONE RATE AND DO NOT HAVE A SALARY RANGE. UNLESS FACTS ARE DISCLOSED SHOWING THE NECESSITY FOR FURTHER INVESTIGATION, IT WILL BE ASSUMED THAT THE ANNUAL SALARY RATES STATED ON THE PAY ROLLS REFLECT THE RATIO OR PERCENTAGE THAT PART TIME COMPENSATION BEARS TO THE MINIMUM SALARY RATE FOR SIMILAR FULL-TIME POSITIONS.

IN VIEW OF THE LIMITATION OF THE PROVISO TO THE PARAGRAPH QUOTED FROM THE ACT OF MAY 14, 1937, IT BECOMES NECESSARY FOR THIS OFFICE IN THE AUDIT OF ACCOUNTS TO DETERMINE THAT NO PART-TIME FIELD EMPLOYEES OF THE PUBLIC HEALTH SERVICE, EXCEPT THOSE ON A PER DIEM OR FEE BASIS, ARE PAID IN ANNUAL SALARY AND FEES DURING A FISCAL YEAR AN AMOUNT IN EXCESS OF THE AMOUNT OF THE MINIMUM ANNUAL SALARY RATES OF THE CLASSIFICATION GRADE OF THE EMPLOYEE. THEREFORE, ON EACH PAY ROLL, OR ATTACHED THERETO, THERE SHOULD BE SHOWN THE AMOUNT OF FEES PAID DURING THE PERIOD COVERED BY THE PAY ROLL TO EACH SUCH PART-TIME EMPLOYEE ALSO PAID A SALARY ON AN ANNUAL BASIS, TOGETHER WITH A REFERENCE TO VOUCHERS BY NUMBERS ON WHICH THE PAYMENTS WERE MADE. WITH THE LAST PAY ROLL FOR THE FISCAL YEAR THERE SHOULD BE FURNISHED THE TOTAL AMOUNT OF FEES, WITH REFERENCE TO VOUCHER NUMBERS, PAID EACH OF SUCH EMPLOYEES DURING THE FISCAL YEAR.

THE EXCEPTIONS HERETOFORE TAKEN BY THIS OFFICE IN THE AUDIT OF ACCOUNTS OF THE CHARACTER HERE INVOLVED WILL BE REMOVED AND OTHERWISE PROPER PAYMENTS HERETOFORE MADE WILL NOT NOW BE DISTURBED.