A-95538, AUGUST 13, 1938, 18 COMP. GEN. 157

A-95538: Aug 13, 1938

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WHO WAS NOT REQUIRED TO HOLD HIMSELF IN READINESS FOR SERVICE AT ALL HOURS OF THE DAY AND WAS NOT ABSENT FROM HIS POST OF DUTY ON THE DAY FOR WHICH PAID FEES AS AN EXPERT WITNESS UNDER THE PROVISIONS OF THE WORLD WAR VETERANS' AMENDATORY ACT OF JULY 3. IS AS FOLLOWS: THE FOLLOWING INFORMAL EXCEPTION TO A SALARY PAYMENT APPEARING ON A VETERANS' ADMINISTRATION PAY ROLL WAS REPORTED BY THE GENERAL ACCOUNTING OFFICE. BROWN WAS PAID BY THE DEPARTMENT OF JUSTICE FOR ONE DAY'S SERVICE. IT WILL BE NECESSARY TO EFFECT COLLECTION FOR THE OVERPAYMENT IN ACCORDANCE WITH THE PROVISIONS OF 11 COMP. THE AMOUNT OF $6.50 WAS DEDUCTED FROM THE SALARY OF THE EMPLOYEE ON VOUCHER NO. 6-86900. IT IS NOTED THAT SAID DECISION CONTAINS THE FOLLOWING: "WHERE THE SALARY RATE OF A PART-TIME PHYSICIAN HAS BEEN PROPERLY FIXED ON AN ANNUAL BASIS.

A-95538, AUGUST 13, 1938, 18 COMP. GEN. 157

COMPENSATION AND EXPERT WITNESS FEES - PART-TIME VETERANS' ADMINISTRATION EMPLOYEES A PHYSICIAN APPOINTED BY THE VETERANS' ADMINISTRATION ON A PART-TIME (73 HOURS A MONTH) PER ANNUM SALARY RATE BASIS, WHO WAS NOT REQUIRED TO HOLD HIMSELF IN READINESS FOR SERVICE AT ALL HOURS OF THE DAY AND WAS NOT ABSENT FROM HIS POST OF DUTY ON THE DAY FOR WHICH PAID FEES AS AN EXPERT WITNESS UNDER THE PROVISIONS OF THE WORLD WAR VETERANS' AMENDATORY ACT OF JULY 3, 1930, 46 STAT. 993, AND WHO ACTUALLY RENDERED THE REQUIRED SERVICE FOR THE ADMINISTRATION ON THE DAY INVOLVED, MAY BE PAID THE PER ANNUM SALARY RATE FOR THAT DAY IN ADDITION TO THE FEE AS EXPERT WITNESS. COMP. GEN. 361, AND 11 ID. 260, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, AUGUST 13, 1938:

YOUR LETTER OF JUNE 4, 1938, IS AS FOLLOWS:

THE FOLLOWING INFORMAL EXCEPTION TO A SALARY PAYMENT APPEARING ON A VETERANS' ADMINISTRATION PAY ROLL WAS REPORTED BY THE GENERAL ACCOUNTING OFFICE, AUDIT DIVISION, CIVIL PAY TRAVEL SECTION, PAY GROUP, ARLINGTON BUILDING:

CHART "VOU. 6-119903, PAY ROLL MAY 1-15, 1937, D.O.SY. 11569 NO. 2,

ROBERT R. BROWN, PHYSICIAN ORTHOPEDICS ------------------- $6.50

PAID $1,628.58 PER ANNUM ----------------------------- $67.85

PAY $1,628.58 PER ANNUM, LESS 3 1/2 HRS. AT $1,857 P.H. 61.35

"DR. BROWN WAS PAID BY THE DEPARTMENT OF JUSTICE FOR ONE DAY'S SERVICE, MAY 12, 1937, AS AN EXPERT WITNESS IN THE JUNE QUARTER ACCOUNTS OF JAMES R. JETTON, MARSHAL FOR MIDDLE DIST. OF TENNESSEE, THE SUM OF $20.00.

"INASMUCH AS DR. BROWN ALSO RENDERED 3 1/2 HOURS OF SERVICE TO THE VETERANS' ADMINISTRATION UNDER HIS CONTRACT OF EMPLOYMENT AS PER STATEMENT FURNISHED BY THE MANAGER AT NASHVILLE, IT WILL BE NECESSARY TO EFFECT COLLECTION FOR THE OVERPAYMENT IN ACCORDANCE WITH THE PROVISIONS OF 11 COMP. GEN. 261 AND 46 STAT. 992. COLLECTION REQUESTED.'

IN ACCORDANCE WITH THE FOREGOING, THE AMOUNT OF $6.50 WAS DEDUCTED FROM THE SALARY OF THE EMPLOYEE ON VOUCHER NO. 6-86900, PAID IN FEBRUARY 1938 BY G. F. ALLEN, SYMBOL 11-569.

WITH REGARD TO THE DECISION OF THE COMPTROLLER GENERAL OF THE UNITED STATES (11 COMP. GEN. 261), CITED IN THE EXCEPTION, IT IS NOTED THAT SAID DECISION CONTAINS THE FOLLOWING:

"WHERE THE SALARY RATE OF A PART-TIME PHYSICIAN HAS BEEN PROPERLY FIXED ON AN ANNUAL BASIS, DEDUCTION FOR EACH DAY'S ABSENCE FROM DUTY, OR WHEN NOT AVAILABLE FOR DUTY UPON CALL, FOR WHATEVER REASON, SHOULD BE COMPUTED AS 1/360 OF THE ANNUAL PART-TIME RATE. ONE DAY'S SALARY ON THIS BASIS HAS BEEN DEDUCTED ADMINISTRATIVELY FROM THE TOTAL AMOUNT OF THE VOUCHERS PRESENTED BY DRS. READ AND HEIN COVERING REIMBURSEMENT FOR EXPENSES AND FEES OF $20 PER DIEM IN CONNECTION WITH SERVICES AS WITNESSES. HOWEVER, THERE IS CLAIMED IN EACH INSTANCE $60 AS WITNESS FEES FOR THREE DAYS. SALARY OF A PART-TIME EMPLOYEE MAY NOT BE PAID FOR ANY DAY ON WHICH THE FEE OF $20 PER DIEM IS AUTHORIZED TO BE PAID UNDER THE ACT OF JULY 3, 1930, SUPRA. ACCORDINGLY, IN EACH INSTANCE THERE WILL BE DEDUCTED AN ADDITIONAL TWO DAYS' SALARY FROM THE AMOUNT OF THE VOUCHER * * *.'

IN A PREVIOUS DECISION DATED FEBRUARY 10, 1931 (10 COMP. GEN. 361), IT WAS STATED:

"AS TO PART-TIME EMPLOYEES, SINCE THEY WILL NOT BE AVAILABLE TO RENDER THE PART-TIME SERVICES DURING SUCH PERIODS AS THEY ARE APPEARING AS WITNESSES, SO THAT IF ANY SERVICE SHOULD BE REQUIRED TO BE RENDERED BY THEM IT WOULD BE NECESSARY TO EMPLOY A SUBSTITUTE, AS INDICATED IN THE SECOND QUESTION, THEIR PART-TIME COMPENSATION SHOULD BE REDUCED ACCORDINGLY. THAT IS TO SAY, THEY WOULD NOT BE ENTITLED TO SALARY WHEN ABSENT TO APPEAR AS WITNESSES IN SUITS.'

THE PART-TIME EMPLOYEES WHOSE CASES WERE CONSIDERED IN 11 COMP. GEN. 261 WERE CONSULTANTS WHO WERE NOT REQUIRED TO PERFORM ANY DEFINITE NUMBER OF HOURS OF SERVICES DURING A DAY, WEEK, MONTH, OR YEAR, BUT WHO WERE PAID SALARY ON AN ANNUAL BASIS AND, BY THE TERMS OF THEIR CONTRACTS OF EMPLOYMENT, MUST HOLD THEMSELVES IN READINESS FOR CALL BY THE GOVERNMENT ON ANY DAY DURING WHICH THEIR SERVICES MAY BE REQUIRED. THOSE MEN, IT IS CONCEDED, WERE NOT AVAILABLE FOR DUTY ON DAYS FOR WHICH WITNESS FEES WERE CLAIMED.

IN THE CASE OF DR. ROBERT R. BROWN, HOWEVER, AN ENTIRELY DIFFERENT SITUATION OBTAINED, THAT IS, DR. BROWN IS AN ATTENDING SPECIALIST WHO IS REQUIRED BY THE TERMS OF HIS CONTRACT OF EMPLOYMENT TO RENDER SERVICES FOR 73 HOURS PER MONTH FOR AN ANNUAL COMPENSATION OF $1,628.58. THERE IS NO QUESTION BUT THAT DR. BROWN FULFILLED THE TERMS OF HIS CONTRACT, IN THAT HE RENDERED MORE THAN 73 HOURS OF SERVICE DURING THE MONTH IN WHICH HE ALSO SERVED AS EXPERT WITNESS FOR WHICH HE WAS PAID THE $20.00 WITNESS FEE. SINCE, AS INDICATED IN DECISIONS 10 COMP. GEN. 361 AND 11 COMP. GEN. 261, THE SOLE REASON FOR DENIAL OF SALARY FOR THOSE DAYS FOR WHICH WITNESS FEES ARE AUTHORIZED TO BE PAID IS THE NONAVAILABILITY OF THE PART-TIME EMPLOYEE FOR DUTY ON THOSE DAYS, AND SINCE NOT ONLY DID DR. BROWN PERFORM THE FULL NUMBER OF HOURS OF SERVICE REQUIRED BY THE TERMS OF HIS CONTRACT OF EMPLOYMENT, BUT PERFORMED 3 1/2 HOURS OF SERVICE FOR THE VETERANS' ADMINISTRATION ON THE DAY FOR WHICH HE WAS PAID THE $20.00 WITNESS FEE, IT IS BELIEVED THAT THE ACTION TAKEN BY YOUR OFFICE IN DR. BROWN'S CASE WAS NOT SUCH AS WAS REQUIRED BY THE TERMS OF THE DECISION CITED BY THE AUDIT DIVISION.

SIMILAR CASES OF PART-TIME EMPLOYEES WHO PERFORM THE FULL MEASURE OF REQUIRED SERVICES AND WHO ARE ALSO PAID WITNESS FEES MAY BE EXPECTED TO ARISE FROM TIME TO TIME. IT IS, THEREFORE, REQUESTED THAT THE ACTION OF THE AUDIT DIVISION IN THE CASE OF DR. BROWN'S SALARY FOR THE PERIOD FROM MAY 1 TO 15, 1937, BE REVIEWED AND THAT I BE INFORMED AS TO WHETHER THIS PART-TIME EMPLOYEE IS ENTITLED TO A REFUND OF $6.50 REPRESENTING THE AMOUNT DEDUCTED FROM HIS SALARY FOR THE PERIOD FEBRUARY 1-15, 1938.

A QUESTION ALSO ARISES AS TO THE PAY-ROLL ACTION REQUIRED, IF ANY, IN THE EVENT DR. BROWN HAD PERFORMED NO SERVICES FOR THE VETERANS' ADMINISTRATION ON THE DAY FOR WHICH HE RECEIVED THE $20.00 WITNESS FEE, BUT HAD, NEVERTHELESS, RENDERED THE FULL 73 HOURS OF SERVICE REQUIRED BY HIS EMPLOYMENT AGREEMENT.

THERE ARE IN THE EMPLOY OF THE VETERANS' ADMINISTRATION A NUMBER OF PART- TIME PHYSICIANS WHO ARE REQUIRED TO RENDER A DEFINITE NUMBER OF HOURS OF SERVICE EACH DAY. IT CAN AND DOES OCCUR THAT THESE PHYSICIANS ARE CALLED UPON TO ACT AS WITNESSES ENTITLED TO A FEE OF $20.00 FOR DAYS ON WHICH THEY ALSO PERFORM THE FULL MEASURE OF SERVICES REQUIRED BY THE TERMS OF THEIR EMPLOYMENT AGREEMENTS. IT WILL BE APPRECIATED IF YOU WILL ALSO INFORM ME AS TO WHETHER ANY ADJUSTMENT OF SALARY OF A PART-TIME PHYSICIAN IS REQUIRED IN THESE CIRCUMSTANCES.

YOUR LETTER STATES: "THERE IS NO QUESTION BUT THAT DR. BROWN FULFILLED THE TERMS OF HIS CONTRACT, IN THAT HE RENDERED MORE THAN 73 HOURS OF SERVICE DURING THE MONTH IN WHICH HE ALSO SERVED AS EXPERT WITNESS FOR WHICH HE WAS PAID THE $20.00 WITNESS FEE.' IT IS STATED, ALSO, THAT HE PERFORMED 3 1/2 HOURS' SERVICE FOR THE VETERANS' ADMINISTRATION ON THE DAY FOR WHICH HE WAS PAID THE $20 WITNESS FEE.

THE APPOINTMENT OF DR. BROWN DATED AUGUST 31, 1934, A COPY OF WHICH HAS BEEN FURNISHED THIS OFFICE, PROVIDES AS FOLLOWS:

YOU ARE HEREBY APPOINTED AS A PHYSICIAN (ORTHOPEDICS) SCHEDULE A, AT A SALARY AT THE RATE OF $1,628.58 PER ANNUM, PART TIME (73 HOURS A MONTH), S. AND E.VA. 1935 (C.S. AUTHORITY, SUBDIVISION XVIII, PARAGRAPH 9, LETTER OF AUGUST 25, 1934), EFFECTIVE AUGUST 25, 1934, BY CHANGE FROM TEMPORARY.

LETTER DATED MAY 2, 1935, FROM THE CHIEF OF PERSONNEL, VETERANS' ADMINISTRATION, TO THE MANAGER OF THE VETERANS' ADMINISTRATION FACILITY, NASHVILLE, TENN., IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 9, 1935, TO THE DIRECTOR OF FINANCE, CONCERNING THE CORRECT METHOD OF DETERMINING SALARY PAYMENTS TO DR. JERE W. CALDWELL AND DR. ROBERT R. BROWN, WHO ARE EMPLOYED ON A PART- TIME BASIS.

THE RECORDS INDICATE THAT DR. BROWN IS CARRIED ON YOUR ROLL AS A PART- TIME PHYSICIAN, 73 HOURS PER MONTH, AT A SALARY AT THE RATE OF $1,628.58 PER ANNUM, AND THAT DR. CALDWELL IS ALSO EMPLOYED AS A PART TIME PHYSICIAN FOR THE SAME NUMBER OF HOURS PER MONTH AND IS RECEIVING THE SAME SALARY.

PHYSICIANS ON DUTY WITHIN THE VETERANS' ADMINISTRATION, OTHER THAN THOSE ON FULL TIME, HAVE BEEN DESIGNATED AS CONSULTANTS, PART-TIME PHYSICIANS AND PHYSICIANS ON FEE BASIS. CONSULTANTS ARE NOT REQUIRED TO PUT IN ANY SPECIFIED NUMBER OF HOURS, BUT PART-TIME EMPLOYEES ARE REQUIRED TO DO SO IN ACCORDANCE WITH THE SUPPLY SERVICE LETTER, DATED APRIL 13, 1931, AND OF COURSE, FEE-BASIS MEN ARE PAID ACCORDING TO THE SCHEDULE OF FEES. WHILE THE PHYSICIANS MENTIONED ABOVE ARE ON A PART TIME BASIS AND ARE NOT REQUIRED TO PERFORM ANY SPECIFIED NUMBER OF HOURS EACH DAY, THEY MUST BE AVAILABLE FOR DUTY UPON CALL. WHEN NOT AVAILABLE, THEY MUST BE DEDUCTED ONE-DAY'S PAY FOR EACH DAY OF ABSENCE FROM DUTY, OR WHEN NOT AVAILABLE FOR CALL FOR ANY REASON WHATSOEVER.

THE METHOD TO BE USED IN KEEPING THE TIME OF THESE PART-TIME PHYSICIANS IS A MATTER TO BE DETERMINED BY THE HEAD OF THE STATION. WHEN THIS CLASS OF PERSONNEL WILL NOT BE AVAILABLE FOR CALL, THEY WILL BE EXPECTED TO NOTIFY THE STATION BUT NEED NOT BE REQUIRED TO FILE AN APPLICATION FOR LEAVE WITHOUT PAY, FORM 3227.

UNDER THE PART-TIME APPOINTMENT IN THIS CASE DR. BROWN WAS NOT REQUIRED TO HOLD HIMSELF IN READINESS FOR SERVICE THEREUNDER AT ALL HOURS OF THE DAY. THEREFORE, IN THIS AND SIMILAR CASES WHERE THE REQUIRED HOURS PER MONTH ARE SERVED DEDUCTION FROM THE ANNUAL SALARY BECAUSE OF PAYMENT OF THE AUTHORIZED WITNESS FEES WILL NOT BE REQUIRED EXCEPT FOR DAYS ON WHICH THE DOCTOR RENDERED NO SERVICE AND WAS NOT AVAILABLE TO RENDER SERVICE TO THE VETERANS' ADMINISTRATION.

IT IS UNDERSTOOD FROM YOUR LETTER THAT DR. BROWN WAS NOT ABSENT FROM HIS POST OF DUTY AS A PART-TIME PHYSICIAN FOR THE VETERANS' ADMINISTRATION ON THE DAY FOR WHICH THE WITNESS FEE WAS PAID, AND THAT HE ACTUALLY RENDERED ON THAT DAY 3 1/2 HOURS' SERVICE FOR THE VETERANS' ADMINISTRATION. SUCH ARE THE FACTS, PAYMENT TO HIM OF THE AMOUNT WITHHELD FROM HIS SALARY PAYMENT FOR FEBRUARY 1938 BECAUSE OF THE PAYMENT TO HIM FOR MAY 12, 1937, THE DAY FOR WHICH THE FEE WAS PAID, IS AUTHORIZED.

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