B-118117, FEBRUARY 19, 1954, 33 COMP. GEN. 368

B-118117: Feb 19, 1954

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NO OBJECTION WILL BE INTERPOSED TO PROPER PAYMENTS ARISING UNDER SUCH COMMITMENTS. 1954: REFERENCE IS MADE TO THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER OF DECEMBER 21. TO THE EMPLOYMENT OF EMERGENCY PICK-UP LABOR WHICH IS USED IN THE SUPPRESSION AND PREVENTION OF FOREST AND RANGE FIRES UPON OR THREATENING LANDS IN ALASKA UNDER THE JURISDICTION OF THE DEPARTMENT OF THE INTERIOR. CONTRACTS FOR THE EMERGENCY PICK-UP LABOR ARE EXECUTED ON FORM NO. 1-530. NO INQUIRY IS MADE OF THE PERSONS EMPLOYED AS TO THEIR CITIZENSHIP. THESE PERSONS ARE HIRED ON AN HOUR TO HOUR. FOR THE PERIOD OF THE EMERGENCY AND THEIR EMPLOYMENT IS TERMINATED WHEN THE EMERGENCY IS TERMINATED. ANY PERSONS AVAILABLE WHO ARE WILLING TO DO THE WORK MUST BE EMPLOYED.

B-118117, FEBRUARY 19, 1954, 33 COMP. GEN. 368

OFFICERS AND EMPLOYEES - MILITARY AND CIVILIAN PERSONNEL EMPLOYED AS EMERGENCY FIRE FIGHTERS - INCOMPATABILITY OF POSITIONS; DOUBLE COMPENSATION PROHIBITION ENLISTED MEN ON FURLOUGH, OR OTHER FEDERAL EMPLOYEES, MAY NOT BE EMPLOYED AS EMERGENCY PICK-UP LABOR FOR USE IN THE SUPPRESSION OF FOREST AND RANGE FIRES UPON OR THREATENING LANDS IN ALASKA WITHOUT REGARD TO THE QUESTION OF COMPATIBILITY OF CONCURRENT CIVILIAN AND MILITARY EMPLOYMENT AND THE DUAL COMPENSATION STATUTES; HOWEVER, WITH RESPECT TO ANY CONTRACTS HERETOFORE ENTERED INTO WITH ENLISTED MEN ON FURLOUGH, NO OBJECTION WILL BE INTERPOSED TO PROPER PAYMENTS ARISING UNDER SUCH COMMITMENTS.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE INTERIOR, FEBRUARY 19, 1954:

REFERENCE IS MADE TO THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER OF DECEMBER 21, 1953, REQUESTING A DECISION AS TO THE APPLICATION OF THE ACT OF MAY 10, 1916, AS AMENDED, 5 U.S.C. 58, AND RULINGS OF THIS OFFICE, TO THE EMPLOYMENT OF EMERGENCY PICK-UP LABOR WHICH IS USED IN THE SUPPRESSION AND PREVENTION OF FOREST AND RANGE FIRES UPON OR THREATENING LANDS IN ALASKA UNDER THE JURISDICTION OF THE DEPARTMENT OF THE INTERIOR.

THE ASSISTANT SECRETARY'S LETTER READS, IN PART, AS FOLLOWS:

* * * SECTION 104 OF THE DEPARTMENT OF THE INTERIOR APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1954 (67 STAT. 275, PUBLIC LAW 172, 83D CONGRESS), AUTHORIZES THE USE OF CURRENT APPROPRIATIONS FOR THIS PURPOSE. CONTRACTS FOR THE EMERGENCY PICK-UP LABOR ARE EXECUTED ON FORM NO. 1-530, COPY ENCLOSED. NO INQUIRY IS MADE OF THE PERSONS EMPLOYED AS TO THEIR CITIZENSHIP, PAST OR PRESENT EMPLOYMENT, OR OTHER QUALIFICATIONS. THESE PERSONS ARE HIRED ON AN HOUR TO HOUR, OR DAY TO DAY, BASIS, FOR THE PERIOD OF THE EMERGENCY AND THEIR EMPLOYMENT IS TERMINATED WHEN THE EMERGENCY IS TERMINATED.

EMERGENCY WORK OF THIS KIND ORDINARILY DOES NOT PERMIT THE EMPLOYMENT OF LABOR ON A SELECTIVE BASIS. ANY PERSONS AVAILABLE WHO ARE WILLING TO DO THE WORK MUST BE EMPLOYED. WHEN TIME AND CIRCUMSTANCES PERMIT, MEMBERS OF THE ARMED SERVICES MAY BE OBTAINED UNDER COOPERATIVE AGREEMENTS WITH THOSE SERVICES. WHEN THE LABOR MUST BE OBTAINED FROM OTHER SOURCES, ANY PERSONS FOUND WHO ARE WILLING TO UNDERTAKE THE WORK ARE EMPLOYED AND PAID THE USUAL FIRE FIGHTER WAGE SCALE. THIS DEPARTMENT ORDINARILY DOES NOT KNOW WHETHER SUCH PERSONS ARE OR ARE NOT MEMBERS OF THE ARMED SERVICES ON FURLOUGH, OR OTHERWISE IN THE SERVICE OF OR EMPLOYED BY THE FEDERAL GOVERNMENT. THE TERRITORIAL LAW MAKES IT A MISDEMEANOR FOR AN INDIVIDUAL TO REFUSE TO ASSIST IN THIS WORK, ON A PROPER REQUEST ( ALASKA COMPILED LAWS, ANNOTATED, 1949, ED., SECTION 65-5-15).

RECENTLY, OUR ATTENTION WAS CALLED TO A DECISION OF THE COMPTROLLER GENERAL, B-73409, OF MARCH 11, 1948 (27 COMP. GEN. 510), WHICH HELD, IN EFFECT, THAT PAYMENT COULD NOT BE MADE FOR SERVICES PERFORMED BY A FIRE FIGHTER CREW BOSS ON THE TOIYABE NATIONAL FOREST BECAUSE (1) THE COMBINED RATE OF COMPENSATION TO THE EMPLOYEE EXCEEDED THE $2,000 LIMIT PRESCRIBED BY THE ACT OF MAY 10, 1916, AND (2) OF RULINGS OF YOUR OFFICE "THAT THE HOLDING OF A CIVILIAN FEDERAL POSITION WHILE RECEIVING ACTIVE DUTY PAY AS A MEMBER OF THE ARMED FORCES IS INCOMPATIBLE WITH MILITARY DUTY, ACTUAL OR POTENTIAL, AND THAT IT WAS IMMATERIAL THAT THE INDIVIDUAL MAY HAVE BEEN ON FURLOUGH FROM THE ARMED FORCES DURING THE INVOLVED PERIODS.'

IT IS RELATED THAT THE DECISION REFERRED TO RAISES THE QUESTION AS TO WHETHER EMPLOYMENT OF EMERGENCY PICK-UP LABOR IS PROPER. IT IS UNDERSTOOD THAT THE SAID QUESTION PRIMARILY IS DIRECTED TO THE EMPLOYMENT OF ENLISTED PERSONNEL WHILE ON FURLOUGH ALTHOUGH NOT EXCLUDING FEDERAL CIVILIAN EMPLOYEES.

CAREFUL CONSIDERATION HAS BEEN GIVEN TO THE VIEWS ADVANCED UPON THE BASIS OF DECISIONS OF THE COURTS AND OF THE ACCOUNTING OFFICERS CITED IN THE ASSISTANT SECRETARY'S LETTER AND IN THE BRIEF OF THE REGIONAL COUNSEL OF THE BUREAU OF LAND MANAGEMENT. WITH RESPECT TO THE QUESTIONS (1) WHETHER PER HOUR OR PER DIEM COMPENSATION IS "SALARY" WITHIN THE PURVIEW OF THE ACT OF MAY 10, 1916, AS AMENDED, AND (2) WHETHER CIVILIAN EMPLOYMENT WITH THE GOVERNMENT IS COMPATIBLE WITH THE ENLISTED STATUS OF MILITARY PERSONNEL, IT MAY BE STATED THAT SUCH MATTERS HAVE BEEN REVIEWED BY THIS OFFICE AND BY THE FORMER OFFICE OF THE COMPTROLLER OF THE TREASURY ON NUMEROUS OCCASIONS. THE SETTLED VIEW OF THIS OFFICE WITH RESPECT TO THE CASE OF UNITED STATES V. GORMAN, 76 F.1SUPP. 218, AND TO THAT OF UNITED STATES V. SHEA, 55 F.2D 382, THEREIN CITED, REFERRED TO IN THE LETTER OF THE ASSISTANT SECRETARY, IS THAT THE RULINGS EXPRESSED IN THOSE CASES THAT PER DIEM COMPENSATION IS NOT "SALARY" WITHIN THE MEANING OF THE 1916 STATUTE ARE SO AT VARIANCE WITH THE UNIFORM PRACTICES OF THE GOVERNMENT IN CONSIDERING COMPENSATION FIXED BY THE HOUR OR DAY AS "SALARY," THAT THEY CANNOT BE ACCEPTED AS CONTROLLING IN THE AUDIT AND SETTLEMENT OF ACCOUNTS. A SIMILAR SITUATION EXISTS WITH RESPECT TO THE ELEMENT OF COMPATIBILITY, IT HAVING BEEN HELD THAT MILITARY SERVICE IS COMPATIBLE WITH FEDERAL CIVILIAN SERVICE. 27 COMP. GEN. 510 AND CASES CITED THEREIN. FROM TIME TO TIME PRIVATE BILLS HAVE BEEN INTRODUCED IN THE CONGRESS SEEKING RELIEF FOR ENLISTED PERSONNEL WHO HAVE CONCURRENTLY RECEIVED COMPENSATION AS CIVILIAN EMPLOYEES OF THE GOVERNMENT. SITUATIONS INVOLVING BOTH THE 1916 STATUTE AND THE ELEMENT OF COMPATIBILITY, SOME OF SUCH BILLS HAVE FAILED OF ENACTMENT, SOME HAVE BEEN VETOED BY THE PRESIDENT AND STILL OTHERS HAVE BEEN ENACTED INTO LAW. HOWEVER, IN NO CASE COMING TO THE ATTENTION OF THIS OFFICE HAS THE CONGRESS FAILED TO GIVE RECOGNITION TO THE ESTABLISHED RULES AFFECTING SUCH EMPLOYMENT--- RELIEF, IF GRANTED, BEING ON THE GROUNDS THAT NOTWITHSTANDING PROVISIONS OF LAW TO THE CONTRARY, THE EQUITIES IN PARTICULAR CASES ARE SUCH AS TO WARRANT ACTION FAVORABLE TO THE CLAIMANTS.

UNDER THE CIRCUMSTANCES, THIS OFFICE MAY NOT AUTHORIZE THE EMPLOYMENT OF ENLISTED MEN ON FURLOUGH OR OF OTHER FEDERAL EMPLOYEES AS PICK-UP LABOR WITHOUT REGARD TO THE QUESTIONS OF COMPATIBILITY AND THE DUAL COMPENSATION STATUTES. HOWEVER, WITH RESPECT TO ANY CONTRACTS HERETOFORE ENTERED INTO WITH ENLISTED MEN ON FURLOUGH NO OBJECTION WILL BE INTERPOSED TO PROPER PAYMENTS ARISING UNDER SUCH COMMITMENTS.