B-124439, JUL. 25, 1955

B-124439: Jul 25, 1955

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EDUCATION AND WELFARE: REFERENCE IS MADE TO LETTER OF JUNE 17. IN WHICH OUR DECISION IS REQUESTED AS TO WHETHER PAYMENT MAY BE MADE TO DOCTOR ERVING GEEVER UNDER CONTRACT SA 43PH-326 WITHOUT REQUIRING AN ELECTION UNDER SECTION 212 OF THE ACT OF JUNE 30. IS AN OFFICER OF THE ARMY NOW RETIRED FOR DISABILITY INCURRED IN LINE OF DUTY. UNDER THE CONTRACT DOCTOR GEEVER IS TO EXAMINE. ADVISE AND REPORT ON SUCH SPECIMENS AS ARE SUBMITTED TO HIM BY THE NATIONAL INSTITUTE OF DENTAL RESEARCH WITH THE VIEW TO THE DETERMINATION OF THE EFFECTS ON THE HEALTH OF A SELECTED COMMUNITY OF LONG TERM EXPOSURE TO KNOWN LEVELS OF FLUORIDE IN ITS WATER SUPPLY. IT IS STATED THAT DOCTOR GEEVER WILL NOT BE SUBJECT TO GOVERNMENT SUPERVISION AND WILL NOT BE REQUIRED TO DEVOTE ANY GIVEN NUMBER OF HOURS TO THE PROJECT OR TO WORK AT ANY GIVEN TIME.

B-124439, JUL. 25, 1955

TO THE HONORABLE SECRETARY OF HEALTH, EDUCATION AND WELFARE:

REFERENCE IS MADE TO LETTER OF JUNE 17, 1955, FROM THE ACTING SECRETARY, IN WHICH OUR DECISION IS REQUESTED AS TO WHETHER PAYMENT MAY BE MADE TO DOCTOR ERVING GEEVER UNDER CONTRACT SA 43PH-326 WITHOUT REQUIRING AN ELECTION UNDER SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, 5 U.S.C. 59 (A), BETWEEN HIS RETIRED PAY AND THE CONTRACT CONSIDERATION. DR. GEEVER, A PATHOLOGIST, IS AN OFFICER OF THE ARMY NOW RETIRED FOR DISABILITY INCURRED IN LINE OF DUTY, BUT APPARENTLY NOT IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR CAUSED BY AN INSTRUMENTALITY OF WAR.

UNDER THE CONTRACT DOCTOR GEEVER IS TO EXAMINE, ADVISE AND REPORT ON SUCH SPECIMENS AS ARE SUBMITTED TO HIM BY THE NATIONAL INSTITUTE OF DENTAL RESEARCH WITH THE VIEW TO THE DETERMINATION OF THE EFFECTS ON THE HEALTH OF A SELECTED COMMUNITY OF LONG TERM EXPOSURE TO KNOWN LEVELS OF FLUORIDE IN ITS WATER SUPPLY. THE CONTRACT COVERS PERIOD FROM FEBRUARY 1, 1955, TO JUNE 30, 1955, WITH THE CONSIDERATION OF $2,000 TO BE PAID IN NOT MORE THAN 3 INSTALLMENTS. IT IS STATED THAT DOCTOR GEEVER WILL NOT BE SUBJECT TO GOVERNMENT SUPERVISION AND WILL NOT BE REQUIRED TO DEVOTE ANY GIVEN NUMBER OF HOURS TO THE PROJECT OR TO WORK AT ANY GIVEN TIME. ALSO, HE MAY USE HIS OWN EQUIPMENT OR THE FACILITIES OF THE NATIONAL INSTITUTE OF HEALTH. THE SURGEON GENERAL HAS ADVISED YOU THAT THE TYPE OF SKILL AND EXPERIENCE REQUIRED OF THE PATHOLOGIST WHO WILL EXAMINE AND REPORT ON THE SPECIMENS CANNOT BE SECURED THROUGH THE USE OF AVAILABLE OFFICERS OR EMPLOYEES OF THE GOVERNMENT.

THE QUESTION FOR DETERMINATION IS WHETHER, AS A RESULT OF HIS CONTRACT WITH THE PUBLIC HEALTH SERVICE, DR. GEEVER IS HOLDING A "CIVILIAN OFFICE OR POSITION" AND WHETHER THE PAYMENTS UNDER THE CONTRACT WOULD CONSTITUTE "COMPENSATION" OR "PAY" WITHIN THE MEANING OF SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED.

IN 26 COMP. GEN. 501. IT WAS HELD AS FOLLOWS:

"RETIRED OFFICERS WHO, UNDER AUTHORITY OF SECTION 14 (A) OF THE ACT OF JANUARY 3, 1946, ARE EMPLOYED IN THE DEPARTMENT OF MEDICINE AND SURGERY, VETERANS' ADMINISTRATION, ON A FEE BASIS AS CONSULTANTS, THAT IS, TO ACT IN AN ADVISORY CAPACITY AS TO PROBLEMS AND QUESTIONS PRESENTED BY ADMINISTRATIVE OFFICERS RATHER THAN TO PERFORM DUTIES IMPOSED BY LAW OR TO BE UNDER THE CONTROL OF ADMINISTRATIVE OFFICIALS, ARE NOT TO BE REGARDED AS OCCUPYING A CIVILIAN "OFFICE OR POSITION" AS USED IN SECTION 212 OF THE ACT OF JUNE 30, 1932, AS AMENDED, LIMITING TO $3,000 PER ANNUM THE COMBINED AMOUNT OF RETIRED PAY AND CIVILIAN COMPENSATION NOTWITHSTANDING THAT THE TERM ,COMPENSATION" AS USED THEREIN INCLUDES FEES.'

THE CIRCUMSTANCES UNDER WHICH DR. GEEVER IS TO PERFORM SERVICES FOR THE PUBLIC HEALTH SERVICE UNDER THE CONTRACT HERE INVOLVED BRINGS HIM WITHIN THE SCOPE OF THE SAID DECISION. ACCORDINGLY, IT IS CONCLUDED THAT IN PERFORMING THE CONTRACT DR. GEEVER DOES NOT HOLD A CIVILIAN OFFICE OR POSITION WITHIN THE PURVIEW OF THE ACT OF JUNE 30, 1932, AND HE MAY RECEIVE THE CONSIDERATION STIPULATED IN THE CONTRACT WITHOUT FOREGOING HIS RETIRED PAY.