B-102065, MARCH 28, 1951, 30 COMP. GEN. 386

B-102065: Mar 28, 1951

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500 OR MORE FROM HOLDING ANOTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED BY LAW. AN EMPLOYEE PLACED IN A LEAVE WITHOUT PAY STATUS FROM ONE GOVERNMENT AGENCY IS NOT PROHIBITED FROM EMPLOYMENT WITH ANOTHER AGENCY BY THE DUAL COMPENSATION ACT OF MAY 10. 1951: REFERENCE IS MADE TO YOUR UNDATED LETTER. IT IS REPRESENTED THAT YOUR COMMISSION'S ASSIGNMENT IS EXPECTED TO BE COMPLETED WITHIN A PERIOD OF SIX TO NINE MONTHS AT THE CONCLUSION OF WHICH ASSIGNMENT THE COMMISSION WILL GO OUT OF EXISTENCE. 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 AUTHORIZED THERETO BY LAW * * *.

B-102065, MARCH 28, 1951, 30 COMP. GEN. 386

OFFICERS AND EMPLOYEES - HOLDING TWO POSITIONS - EMPLOYMENT AS CONSTITUTING "OFFICE" AN EMPLOYEE ON LEAVE WITHOUT PAY FROM A GOVERNMENT DEPARTMENT MAY BE EMPLOYED BY A GOVERNMENT COMMISSION OF TEMPORARY CHARACTER WITHOUT CONTRAVENING THE ACT OF JULY 31, 1894, AS AMENDED, PROHIBITING PERSONS WHOSE ANNUAL COMPENSATION IN ONE OFFICE AMOUNTS TO $2,500 OR MORE FROM HOLDING ANOTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED BY LAW. AN EMPLOYEE PLACED IN A LEAVE WITHOUT PAY STATUS FROM ONE GOVERNMENT AGENCY IS NOT PROHIBITED FROM EMPLOYMENT WITH ANOTHER AGENCY BY THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED, WHICH PROHIBITS THE RECEIPT OF MORE THAN ONE SALARY IF THE COMBINED AMOUNT OF THE SALARIES EXCEEDS $2,000 PER ANNUM.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, PRESIDENT'S MATERIALS POLICY COMMISSION, MARCH 28, 1951:

REFERENCE IS MADE TO YOUR UNDATED LETTER, RECEIVED HERE MARCH 15, 1951, REQUESTING DECISION WHETHER YOUR COMMISSION MAY EMPLOY MR. HOLLIS W. PETER, AN EMPLOYEE OF THE DEPARTMENT OF STATE, UPON A PERSONAL SERVICE CONTRACT BASIS, TO ASSIST IN THE STUDY OF FOREIGN RESOURCES ASPECTS OF THE MATERIALS PROBLEM. IT IS REPRESENTED THAT YOUR COMMISSION'S ASSIGNMENT IS EXPECTED TO BE COMPLETED WITHIN A PERIOD OF SIX TO NINE MONTHS AT THE CONCLUSION OF WHICH ASSIGNMENT THE COMMISSION WILL GO OUT OF EXISTENCE. HENCE MR. PETER'S EMPLOYMENT WOULD NOT EXCEED NINE MONTHS AND DURING SUCH EMPLOYMENT HE WOULD BE PLACED ON LEAVE WITHOUT PAY FROM THE DEPARTMENT OF STATE.

THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, PROVIDES:

SEC. 62. HOLDING OTHER LUCRATIVE OFFICE. 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 AUTHORIZED THERETO BY LAW * * *.

THE QUESTION THAT ARISES HERE, THEREFORE, IS WHETHER MR. PETER WOULD BE HOLDING AN OFFICE"DURING HIS EMPLOYMENT WITH YOUR COMMISSION WITHIN THE MEANING OF THE ABOVE-QUOTED STATUTORY PROHIBITION. IT HAS BEEN HELD BY THIS OFFICE THAT SAID ACT OF 1894 DOES NOT PRECLUDE THE EMPLOYMENT IN A CIVILIAN POSITION WHEN THE EMPLOYMENT IS TEMPORARY BECAUSE OF A SPECIFIC TASK TO BE PERFORMED BY A COMMITTEE OR COMMISSION HAVING A TEMPORARY TENURE AND THE ORDER OR LETTER OF APPOINTMENT SO STATES THE NATURE OF THE EMPLOYMENT. 14 COMP. GEN. 68; 16 ID. 47.

IN VIEW OF THE TEMPORARY CHARACTER OF YOUR COMMISSION, IT DOES NOT APPEAR THAT MR. PETER WHILE EMPLOYED WITH THE COMMISSION WOULD BE HOLDING AN OFFICE WITHIN THE PURVIEW OF THE 1894 ACT, AND IF HE BE PLACED ON LEAVE WITHOUT PAY FROM THE DEPARTMENT OF STATE DURING SUCH EMPLOYMENT THERE WOULD BE NO VIOLATION OF THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582, 5 U.S.C. 58, WHICH STATUTE PROHIBITS THE RECEIPT OF MORE THAN ONE SALARY IF THE COMBINED AMOUNT OF THE SALARIES EXCEEDS $2,000 PER ANNUM.

WITH RESPECT TO THE FORM OF EMPLOYMENT, THAT IS, WHETHER IT WOULD BE PERMISSIBLE TO CONTRACT WITH THIS EMPLOYEE OR WHETHER HE WOULD BE APPOINTED IN ACCORDANCE WITH CIVIL-SERVICE LAWS AND REGULATIONS AND THE CLASSIFICATION ACT, INQUIRY SHOULD BE MADE AT THE CIVIL SERVICE COMMISSION. SEE SECTIONS 203 AND 501 OF THE CLASSIFICATION ACT OF 1949, PUBLIC LAW 429, 81ST CONGRESS, 63 STAT. 956, 958.

WITH RESPECT TO THE HANDLING OF MR. PETER'S LEAVE ACCOUNT, THE ANNUAL AND SICK LEAVE REGULATIONS PERMIT LEAVE TO TEMPORARY EMPLOYEES ONLY FOR EACH FULL MONTH OF SERVICE, AND ANY BREAK IN SERVICE PRIOR TO THE COMPLETION OF A FULL MONTH'S SERVICE BARS ANY CREDIT FOR LEAVE FOR THE FRACTIONAL MONTH AND REQUIRES THE STARTING OF A NEW MONTH FOR LEAVE PURPOSES. AS MR. PETER WILL BE ON LEAVE WITHOUT PAY FROM HIS POSITION WITH THE STATE DEPARTMENT, HIS LEAVE CREDITS WITH THAT DEPARTMENT CANNOT BE TRANSFERRED TO HIS CREDIT WITH YOUR COMMISSION AND HE COULD NOT BE PERMITTED TO USE ANY OF THE ANNUAL OR SICK LEAVE TO HIS CREDIT WITH THAT DEPARTMENT TO BRIDGE OVER ABSENCES DURING HIS TEMPORARY EMPLOYMENT WITH YOUR COMMISSION.