B-123416, OCT. 3, 1955

B-123416, OCT. 3, 1955

TO KEATING, MUETHING AND KEATING, ATTORNEYS AT LAW:

YOUR LETTER OF FEBRUARY 14, 1955, CONCERNS THE CLAIM OF MR. JIP M. PRUDEN, FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE FOR OVERTIME SERVICES RENDERED DURING THE PERIOD FROM JANUARY 1, 1952, THROUGH NOVEMBER 30, 1953, WHILE AN EMPLOYEE OF THE BUREAU OF PUBLIC ROADS, DEPARTMENT OF COMMERCE, ASSIGNED TO DUTY IN ETHIOPIA.

THE RECORD SHOWS THAT MR. PRUDEN WAS EMPLOYED BY THE BUREAU OF PUBLIC ROADS IN THE POSITION OF EQUIPMENT PARTS SPECIALIST, GRADE GS 11, AT ISKENDERUN, TURKEY, WHEN HE WAS PROMOTED TO THE POSITION "EQUIPMENT SPECIALIST," GRADE GS-12, AND TRANSFERRED TO DUTY AS ADDIS ABABA, ETHIOPIA, EFFECTIVE DECEMBER 9, 1951. THE RECORD ALSO SHOWS THAT DURING THE PERIOD FROM JANUARY 1, 1952, TO NOVEMBER 30, 1953, MR. PRUDEN AND OTHER BUREAU EMPLOYEES OF THE ETHIOPIAN DIVISION PERFORMED CONSIDERABLE WORK IN EXCESS OF THE 40-HOUR REGULARLY ESTABLISHED WORKWEEK. SUBSEQUENTLY, AFTER HAVING COMPLETED THE FOREIGN ASSIGNMENT AGREED UPON, MR. PRUDEN REQUESTED ADDITIONAL COMPENSATION FOR 854 1/2 HOURS OF OVERTIME SERVICES AT THE RATE OF $1.51 PER HOUR, THE HOURLY OVERTIME RATE PRESCRIBED BY SECTION 201 OF THE ACT OF JUNE 30, 1945, 59 STAT. 296-297 (5 U.S.C. 911). HIS CLAIM WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED FEBRUARY 8, 1955. THE DISALLOWANCE WAS PREDICATED UPON AN ADMINISTRATIVE DETERMINATION THAT THE POSITION OF "EQUIPMENT SPECIALIST" WHICH THE CLAIMANT OCCUPIED DID NOT FALL WITHIN THE SCOPE OF THE DIRECTIVE ISSUED AUGUST 29, 1951, BY MR. JOHN L. HUMBARD, FORMER DIRECTOR OF THE IMPERIAL HIGHWAY AUTHORITY, UNITED STATES GOVERNMENT IN ETHIOPIA WHICH PLACED ALL "FIELD OPERATORS" ON A 50-HOUR WORKWEEK (9 HOURS A DAY MONDAY THROUGH FRIDAY AND 5 HOURS ON SATURDAY) EFFECTIVE SEPTEMBER 1, 1951.

YOUR LETTER OF FEBRUARY 14, 1955, PROTESTING THE SETTLEMENT, TOGETHER WITH COPY OF LETTER DATED FEBRUARY 8, 1955, SIGNED BY CHARLES H. KEATING, JR., AND A COPY OF THE AFFIDAVIT EXECUTED BY JOHN L. HUMBARD, WERE FORWARDED TO THE ADMINISTRATIVE OFFICE FOR FURTHER CONSIDERATION AND ADDITIONAL INFORMATION. IN A REPORT RECEIVED FROM THE BUREAU OF PUBLIC ROADS DATED AUGUST 22, 1955, IT WAS AGAIN ASSERTED THAT MR. PRUDEN'S ASSIGNMENT WAS CONSIDERED TO BE OF AN ADMINISTRATIVE AND SUPERVISORY NATURE RATHER THAN THAT OF A FIELD OPERATOR. ALSO, IT WAS STATED THAT MR. HUMBARD MADE NO REPORT PRIOR TO HIS AFFIDAVIT OF SEPTEMBER 22, 1954, THAT MR. PRUDEN WAS OFFICIALLY ORDERED TO PERFORM OVERTIME WORK, OR THAT HE WAS REQUIRED TO WORK OVERTIME AS A RESULT OF THE DIRECTIVE WHICH PLACED "FIELD OPERATORS" ON A 50-HOUR WEEK ON SEPTEMBER 1, 1951.

SECTION 201 OF THE ACT OF JUNE 30, 1945, SUPRA, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"OFFICERS AND EMPLOYEES SHALL, IN ADDITION TO THEIR BASIC COMPENSATION, BE COMPENSATED FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK, AT OVERTIME RATES * * *.'

THE FEDERAL EMPLOYEES PAY REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION PURSUANT TO THE STATUTE SPECIFICALLY PROVIDE THAT NO OVERTIME SHALL BE ORDERED OR APPROVED EXCEPT IN WRITING BY AN OFFICER OR EMPLOYEE TO WHOM SUCH AUTHORITY HAS BEEN APPROPRIATELY DELEGATED BY THE HEAD OF THE DEPARTMENT CONCERNED.

AN OFFICIAL DESCRIPTION OF MR. PRUDEN'S DUTIES FURNISHED TO OUR OFFICE SUBSTANTIATES THE VIEW OF THE BUREAU OF PUBLIC ROADS THAT SUCH DUTIES WERE ADMINISTRATIVE AS DISTINGUISHED FROM FIELD PROJECT ACTIVITY, AND COVERED SERVICES TO THE ENTIRE IMPERIAL HIGHWAY AUTHORITY RATHER THAN TO ANY INDIVIDUAL PROJECT OR GROUP OF PROJECTS. ACCORDINGLY, AND AS THERE IS NO RECORD TO SHOW THAT THE OVERTIME SERVICES RENDERED BY MR. PURDEN WERE OTHERWISE OFFICIALLY AUTHORIZED OR APPROVED AS REQUIRED BY THE ACT OF JUNE 30, 1945, NO BASIS EXISTS FOR PAYMENT OF THE CLAIM OR ANY PART THEREOF.

THE SETTLEMENT OF FEBRUARY 8, 1855, DISALLOWING OVERTIME COMPENSATION AS CLAIMED, MUST BE AND IS SUSTAINED.