B-122986, MAY 16, 1955, 34 COMP. GEN. 607

B-122986: May 16, 1955

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PER DIEM EMPLOYEES - COMPENSATION RIGHTS AND LIMITATIONS THE MAXIMUM COMPENSATION LIMITATION IN SECTION 603 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IS NOT APPLICABLE TO EMPLOYEES WHO OCCUPY POSITIONS WHICH ARE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1949. UNCLASSIFIED EMPLOYEES ON A WHEN-ACTUALLY-EMPLOYED PER DIEM BASIS WHO DO NOT HAVE A PRESCRIBED TOUR OF DUTY MAY BE PAID AT STRAIGHT PER DIEM RATES FOR ALL DAYS WORKED. REGARDLESS OF TOTAL NUMBER OF HOURS WORKED AND NO ADDITIONAL COMPENSATION IS PAYABLE FOR WORK IN EXCESS OF EIGHT HOURS PER DAY. THE PROPOSED PAYMENTS ARE BASED UPON THE FACTS REPORTED IN YOUR LETTER AS FOLLOWS: THE RECORDS DISCLOSE THAT MR. KEEFFE WAS GIVEN AN EXCEPTED APPOINTMENT ( INDEFINITE/.

B-122986, MAY 16, 1955, 34 COMP. GEN. 607

EMPLOYEES NOT SUBJECT TO CLASSIFICATION ACT OF 1949 - WHEN ACTUALLY EMPLOYED, PER DIEM EMPLOYEES - COMPENSATION RIGHTS AND LIMITATIONS THE MAXIMUM COMPENSATION LIMITATION IN SECTION 603 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 IS NOT APPLICABLE TO EMPLOYEES WHO OCCUPY POSITIONS WHICH ARE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1949. UNCLASSIFIED EMPLOYEES ON A WHEN-ACTUALLY-EMPLOYED PER DIEM BASIS WHO DO NOT HAVE A PRESCRIBED TOUR OF DUTY MAY BE PAID AT STRAIGHT PER DIEM RATES FOR ALL DAYS WORKED, REGARDLESS OF TOTAL NUMBER OF HOURS WORKED AND NO ADDITIONAL COMPENSATION IS PAYABLE FOR WORK IN EXCESS OF EIGHT HOURS PER DAY.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LESTER H. THOMPSON, FEDERAL HOUSING ADMINISTRATION, MAY 16, 1955:

YOUR LETTER OF FEBRUARY 16, 1955, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE VOUCHER THEREWITH TRANSMITTED, COVERING PROPOSED PAYMENTS TOTALLING $535.95. THAT TOTAL INCLUDES 56 HOURS BASIC PAY FOR ARTHUR JON KEEFFE, AMOUNTING TO $317.27; 6 HOURS BASIC PAY FOR WILLIAM F. CAMPBELL, JR., AMOUNTING TO $27; AND 40 HOURS BASIC PAY FOR STANLEY BERMAN, AMOUNTING TO $184.80. THE PROPOSED PAYMENTS ARE BASED UPON THE FACTS REPORTED IN YOUR LETTER AS FOLLOWS:

THE RECORDS DISCLOSE THAT MR. KEEFFE WAS GIVEN AN EXCEPTED APPOINTMENT ( INDEFINITE/--- WHEN ACTUALLY EMPLOYED, AS A SUPERVISORY ATTORNEY IN GRADE GS-910-15 AT A SALARY OF $45.36 PER DIEM, WAE, WHICH IS EQUIVALENT TO THE TOP STEP IN CSC CLASSIFICATION GRADE GS-15 AT A RATE OF $11,800 PER ANNUM. MR. CAMPBELL WAS ALSO GIVEN AN EXCEPTED APPOINTMENT ( INDEFINITE/- -- WHEN ACTUALLY EMPLOYED, BUT AS AN ATTORNEY-ADVISOR ( GENERAL) IN GRADE GS-970-13 AT A SALARY OF $36.00 PER DIEM, WAE, WHICH IS EQUIVALENT TO THE TOP STEP IN CSC CLASSIFICATION GRADE GS-13 AT A RATE OF $9360 PER ANNUM. MR. BERMAN WAS GIVEN AN EXCEPTED APPOINTMENT ( INDEFINITE/--- WHEN ACTUALLY EMPLOYED, AS A LITIGATION ATTORNEY IN GRADE GS-910-14 AT A SALARY OF $36.96 PER DIEM, WAE, WHICH IS EQUIVALENT TO THE FIRST STEP IN CSC CLASSIFICATION GRADE GS-14 AT A RATE OF $9600 PER ANNUM.

EFFECTIVE JANUARY 29, 1955 COB THE ABOVE APPOINTMENTS WERE TERMINATED BY NOTIFICATION OF PERSONNEL ACTIONS, STANDARD FORM 50, NOS. 55-1548, 55- 1550, AND 55-1628 AND THE EMPLOYEES WERE GIVEN EXCEPTED APPOINTMENTS (NOT TO EXCEED 6/30/55 COB) EFFECTIVE JANUARY 30, 1955. MR. KEEFFE WAS REAPPOINTED AS A SUPERVISORY ATTORNEY IN GRADE GS-910-15 AT A SALARY OF $10,800 PER ANNUM, MR. CAMPBELL WAS REAPPOINTED AS AN ATTORNEY-ADVISOR ( GENERAL) IN GRADE GS-970-13 AT A SALARY OF $8360 PER ANNUM, AND MR. BERMAN WAS REAPPOINTED AS A LITIGATION ATTORNEY IN GRADE GS-910-15 AT A SALARY OF $9600 PER ANNUM.

DURING THE PERIOD BEGINNING WITH THE DATES OF THEIR ORIGINAL APPOINTMENTS AND ENDING JANUARY 29, 1955, THE EMPLOYEES PERFORMED THE FOLLOWING NUMBER OF HOURS OF WORK FOR THE FEDERAL HOUSING ADMINISTRATION DURING THE PAY PERIODS SHOWN.

CHART

PAY PERIOD KEEFFE CAMPBELL

BERMAN *

HOURS HOURS HOURS DEC. 5, 1954 TO DEC. 18, 1954 104 NONE

NONE DEC. 19, 1954 TO JAN. 1, 1955 80 80 64 JAN. 2, 1955 TO JAN 15, 1955 100 86 104 JAN. 16, 1955 TO JAN. 29, 1955 92 80

96

TOTALS 376 246 264

UPON RECEIPT IN THIS OFFICE OF MR. KEEFE'S PER DIEM TIME REPORT, COVERING THE PAY PERIOD FROM DECEMBER 5, 1954, THROUGH DECEMBER 18, 1954, IT WAS NOTED THAT HE HAD WORKED, AND WAS CLAIMING COMPENSATION FOR, 104 HOURS. IN VIEW OF THE FACT THAT COMPENSATION FOR 104 HOURS WORK AT THE RATE OF $45.36 PER DIEM, WOULD CAUSE THE AGGREGATE COMPENSATION FOR THIS BIWEEKLY PAY PERIOD TO EXCEED THE RATE OF $11,800 PER ANNUM OR $453.85 PER BIWEEKLY PAY PERIOD MR. KEEFFE WAS PAID ONLY THE GROSS AMOUNT OF $453.60 PURSUANT TO SECTION 603 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED. MR. KEEFE WORKED, AND CLAIMED COMPENSATION FOR 100 HOURS DURING THE PAY PERIOD FROM JANUARY 2, 1955 THROUGH JANUARY 15, 1955, AND 92 HOURS DURING THE PAY PERIOD FROM JANUARY 16, 1955, THROUGH JANUARY 29, 1955; HOWEVER, FOR THE REASON SET FORTH ABOVE HE WAS PAID ONLY FOR 80 HOURS IN EACH INSTANCE.

MR. CAMPBELL WORKED, AND CLAIMED COMPENSATION, FOR 86 HOURS DURING THE PAY PERIOD FROM JANUARY 2, 1955, THROUGH JANUARY 15, 1955. IN VIEW OF THE FACT THAT COMPENSATION FOR 86 HOURS AT THE RATE OF $36.00 PER DIEM WOULD CAUSE HIS AGGREGATE COMPENSATION FOR THIS BIWEEKLY PAY PERIOD TO EXCEED THE RATE OF $9,360 PER ANNUM OR $360.00 PER BIWEEKLY PAY PERIOD, MR. CAMPBELL WAS PAID ONLY THE AMOUNT OF $360.00.

MR. BERMAN WORKED, AND CLAIMED COMPENSATION FOR 104 HOURS DURING THE PAY PERIOD FROM JANUARY 2, 1955, THROUGH JANUARY 15, 1955, AND 96 HOURS DURING THE PAY PERIOD FROM JANUARY 16, 1955, THROUGH JANUARY 29, 1955. INASMUCH AS COMPENSATION FOR 104 AND 96 HOURS AT THE RATE OF $36.96 PER DIEM WOULD CAUSE HIS AGGREGATE COMPENSATION FOR EACH BIWEEKLY PAY PERIOD TO EXCEED THE RATE OF $9,600 PER ANNUM OR $369.23 PER BIWEEKLY PAY PERIOD, MR. BERMAN WAS PAID ONLY $369.60 FOR EACH OF THESE BIWEEKLY PAY PERIODS.

TITLE I, SECTION 1, OF THE NATIONAL HOUSING ACT AS AMENDED, 12 U.S.C. 1702, PROVIDES IN PERTINENT PART, AS FOLLOWS:

* * * IN ORDER TO CARRY OUT THE PROVISIONS OF THIS SUBCHAPTER AND SUBCHAPTERS II, III, VI-VIII, AND X OF THIS CHAPTER, THE COMMISSIONER MAY ESTABLISH SUCH AGENCIES, ACCEPT AND UTILIZE SUCH VOLUNTARY AND UNCOMPENSATED SERVICES, UTILIZE SUCH FEDERAL OFFICERS AND EMPLOYEES, AND, WITH THE CONSENT OF THE STATE, SUCH STATE AND LOCAL OFFICERS AND EMPLOYEES, AND APPOINT SUCH OTHER OFFICERS AND EMPLOYEES AS HE MAY FIND NECESSARY, AND MAY PRESCRIBE THEIR AUTHORITIES, DUTIES, RESPONSIBILITIES, AND TENURE AND FIX THEIR COMPENSATION, WITHOUT REGARD TO THE PROVISIONS OF OTHER LAWS APPLICABLE TO THE EMPLOYMENT OR COMPENSATION OF OFFICERS OR EMPLOYEES OF THE UNITED STATES. * * *

COPIES OF LETTERS OF JANUARY 13, 1955, AND JANUARY 27, 1955, FROM THE ACTING DIRECTOR OF PERSONNEL, AND OF LETTER OF FEBRUARY 2, 1955, TO THE ACTING DIRECTOR OF PERSONNEL FROM THE UNITED STATES CIVIL SERVICE COMMISSION, ALL EXPRESS THE OPINION THAT THE APPOINTMENTS ON A WAE PER DIEM BASIS WERE NOT SUBJECT TO THE CLASSIFICATION ACT. THE LETTER FROM THE CIVIL SERVICE COMMISSION STATES THAT IT WAS THE RESPONSIBILITY OF THE FEDERAL HOUSING ADMINISTRATION TO MAKE THE INITIAL DETERMINATION CONCERNING THE EXCLUSION OF THE POSITIONS FROM THE CLASSIFICATION ACT, 63 STAT. 954. IN VIEW THEREOF, AND NOTWITHSTANDING THE DESIGNATION OF THE RESPECTIVE POSITIONS BY REFERENCE TO CLASSIFICATION ACT GRADES, OUR OFFICE ACCEPTS THE ADMINISTRATIVE DETERMINATION THAT SUCH APPOINTMENTS ARE EXCLUDED FROM THE PROVISIONS OF THE CLASSIFICATION ACT. IN THAT CONNECTION, HOWEVER, WE FEEL IT IMPROPER TO ASSIGN CLASSIFICATION ACT GRADES IN SITUATIONS THAT DO NOT FALL WITHIN THE CLASSIFICATION ACT. THE ASSIGNMENT OF CLASSIFICATION ACT GRADES IN SUCH CASES LEADS TO CONFUSION.

IN LIGHT OF THE FOREGOING STATEMENT OF FACTS WE HOLD, THEREFORE, THAT THE MAXIMUM LIMITATION PRESCRIBED BY SECTION 603 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 302, AS AMENDED, UPON COMPENSATION, PAYABLE IS NOT FOR APPLICATION TO THE INVOLVED CASES. 27 COMP. GEN. 46.

WE HAVE HELD THAT UNCLASSIFIED EMPLOYEES ON A WAE PER DIEM BASIS WITH NO PRESCRIBED TOUR OF DUTY MAY BE PAID STRAIGHT PER DIEM RATE FOR ALL DAYS WORKED, REGARDLESS OF THE TOTAL NUMBER OF HOURS WORKED. 27 COMP. GEN. 776, AND 28 COMP. GEN. 328. UNDER THAT RULING THE COMPENSATION OF THE EMPLOYEES, BEFORE THEIR BEING PLACED UNDER THE CLASSIFICATION ACT, SHOULD BE COMPUTED AT A FULL DAY'S PER DIEM FOR EACH DAY WORKED BUT WITH NO ADDITIONAL COMPENSATION FOR WORKING IN EXCESS OF EIGHT HOURS A DAY.

WHEN THE EMPLOYEES WERE PLACED UNDER THE CLASSIFICATION ACT THEY BECAME SUBJECT TO ALL THE BENEFITS AS WELL AS THE LIMITATIONS OF THE CLASSIFICATION ACT, AS AMENDED. CF. 34 COMP. GEN. 471.

THE VOUCHER, WHICH IS RETURNED HEREWITH AND WHICH IS NOT COMPUTED IN ACCORDANCE WITH THE FOREGOING VIEW, MAY NOT BE CERTIFIED FOR PAYMENT.