B-12503, SEPTEMBER 28, 1940, 20 COMP. GEN. 179

B-12503, SEPTEMBER 28, 1940, 20 COMP. GEN. 179

COMPENSATION - DOUBLE - CONCURRENT FEDERAL AND STATE EMPLOYMENT THE FEDERAL DUAL COMPENSATION STATUTES DO NOT PROHIBIT FEDERAL PERSONNEL FROM ACCEPTING EMPLOYMENT WITH A STATE INSTITUTION AS INSTRUCTORS OF COURSES UNDER THE NATIONAL DEFENSE PROGRAM FOR WHICH THE STATE RECEIVES A FEDERAL GRANT, PROVIDED NO CONDITION OF THE GRANT PROHIBITS SUCH EMPLOYMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, SEPTEMBER 28, 1940:

I HAVE YOUR LETTER OF SEPTEMBER 21, 1940, AS FOLLOWS:

THE SECRETARY OF STATE PRESENTS HIS COMPLIMENTS TO THE HONORABLE THE COMPTROLLER GENERAL OF THE UNITED STATES AND ENCLOSES A LETTER OF SEPTEMBER 11, 1940, FROM THE ACTING COMMISSIONER OF THE INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, TOGETHER WITH ITS ENCLOSURE, A LETTER OF SEPTEMBER 9, 1940, FROM BRICE H. SEWELL, STATE SUPERVISOR OF TRADE AND INDUSTRIAL EDUCATION, DEPARTMENT OF VOCATIONAL EDUCATION, SANTA FE, NEW MEXICO, IN WHICH INQUIRY IS MADE REGARDING THE STATUS, WITH RESPECT TO THE DUAL COMPENSATION LAW (39 STAT. 120, 582,) OF EMPLOYEES OF THE INTERNATIONAL BOUNDARY COMMISSION WHO ARE ALSO EMPLOYED AS INSTRUCTORS UNDER THE NATIONAL DEFENSE PROGRAM AT THE NEW MEXICO AGRICULTURAL AND MECHANICAL COLLEGE AT STATE COLLEGE, NEW MEXICO.

THE COMPTROLLER GENERAL'S ADVICE IN THIS CONNECTION IS RESPECTFULLY REQUESTED.

THE LETTER FROM THE ACTING COMMISSIONER OF THE INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, DATED SEPTEMBER 11, 1940, FORWARDED WITH YOUR LETTER, IS AS FOLLOWS:

THE NEW MEXICO A. AND M. COLLEGE AT STATE COLLEGE, NEW MEXICO HAS CONTACTED TWO EMPLOYEES OF THIS COMMISSION IN CONNECTION WITH CONDUCTING CLASSES OF INSTRUCTION UNDER THE NATIONAL DEFENSE PROGRAM. THE COMBINED SALARIES TO BE RECEIVED BY THESE EMPLOYEES FOR CONDUCTING THESE CLASSES AND FOR THEIR SERVICES WITH THIS COMMISSION ARE IN EXCESS OF $2,000 PER ANNUM. LETTER DATED SEPTEMBER 9, 1940, FROM THE STATE SUPERVISOR OF TRADE AND INDUSTRIAL EDUCATION FOR THE STATE OF NEW MEXICO, SUBMITTED HEREWITH, INDICATES THAT PAYMENT IS TO BE MADE BY THE COLLEGE, THE COLLEGE IS REIMBURSED FROM THE STATE TREASURY, AND THE STATE TREASURY IS REIMBURSED FROM FEDERAL NATIONAL DEFENSE FUNDS. YOUR DECISION IS REQUESTED AS TO WHETHER THE CONDUCTING OF THESE CLASSES AND THE CONTINUING IN THEIR EMPLOYMENT WITH THIS COMMISSION WOULD BE IN VIOLATION OF THE DUAL COMPENSATION STATUTE.

THE EMPLOYEES IN QUESTION ARE FREDERICK C. EICHHOLTZ, MECHANIC DIESEL ENGINE FOR THIS COMMISSION AT LAS CRUCES, NEW MEXICO, WITH COMPENSATION AT THE RATE OF $6.80 PER DAY, AND JESSE J. STOVALL, WELDER--- ACETYLENE AND ELECTRIC, AT $6.80 PER DAY AT LAS CRUCES. THE COMPENSATION THAT THEY ARE TO RECEIVE FROM THE STATE COLLEGE IS $1.50 PER HOUR, AND THE CLASSES ARE TO BE CONDUCTED 3 HOURS PER NIGHT, 3 NIGHTS PER WEEK.

IT HAS BEEN ADMINISTRATIVELY DETERMINED THAT THE EMPLOYMENT BY THE STATE COLLEGE DOES NOT INTERFERE WITH THE WORK OF THESE EMPLOYEES UNDER THEIR APPOINTMENTS WITH THIS COMMISSION.

IN ORDER TO PREVENT ANY DELAY IN THE DEFENSE PROGRAM THIS COMMISSION HAS ADVISED THE EMPLOYEES THAT THEY MAY ACCEPT EMPLOYMENT WITH THE STATE COLLEGE WITHOUT COMPENSATION UNTIL SUCH TIME AS THE LEGALITY OF THEIR RECEIVING COMPENSATION HAS BEEN DECIDED, AND THEY ARE NOW CONDUCTING THESE CLASSES.

YOUR EARLY DECISION TO THIS QUESTION WILL BE VERY MUCH APPRECIATED.

THE LETTER DATED SEPTEMBER 9, 1940, FROM BRICE H. SEWELL, TO WHICH YOU REFER, ALSO FORWARDED WITH YOUR LETTER, IS AS FOLLOWS:

YOUR LETTER OF SEPTEMBER 3, TO MRS. GRACE J. CORRIGAN, REQUESTING ADVICE AS TO THE SOURCE OF FUNDS FROM WHICH THE SALARIES OF INSTRUCTORS UNDER THE NATIONAL DEFENSE PROGRAM ARE DERIVED, HAS BEEN REFERRED TO THIS OFFICE FOR REPLY.

THE FEDERAL NATIONAL DEFENSE FUNDS ARE DEPOSITED BY THE FEDERAL GOVERNMENT WITH THE STATE TREASURER AND PAID OUT AS REIMBURSEMENTS TO STATE COLLEGE AFTER THEY HAVE MADE THE PROPER CLAIMS AND AFFIDAVITS THAT THE EXPENDITURES HAVE BEEN INCURRED. THE INSTRUCTORS ARE PAID FROM STATE COLLEGE FUNDS; THEREFORE, IN THE FINAL ANALYSIS, IT WOULD APPEAR THAT THE TEACHERS ARE PAID FROM STATE COLLEGE FUNDS INASMUCH AS THEY DO NOT RECEIVE A FEDERAL CHECK.

THE SECOND DEFICIENCY APPROPRIATION ACT, 1940, APPROVED JUNE 27, 1940, PUBLIC, NO. 668, CONTAINS THE FOLLOWING APPROPRIATION UNDER THE HEADING, FEDERAL SECURITY AGENCY, OFFICE OF EDUCATION:

VOCATIONAL EDUCATION OF DEFENSE WORKERS, OFFICE OF EDUCATION: FOR PAYMENT TO STATES, SUBDIVISIONS THEREOF, OR OTHER PUBLIC AUTHORITIES, THROUGH CERTIFICATION FROM TIME TO TIME MADE BY THE UNITED STATES COMMISSIONER OF EDUCATION TO THE SECRETARY OF THE TREASURY OF THE NAME OF SUCH AGENCY AND THE AMOUNT TO BE PAID, SUCH PAYMENT TO BE MADE PRIOR TO AUDIT AND SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE, FOR THE COST OF COURSES OF LESS THAN COLLEGE GRADE, PROVIDED BY SUCH AGENCIES IN VOCATIONAL SCHOOLS PURSUANT TO PLANS SUBMITTED BY SUCH AGENCIES AND APPROVED BY THE UNITED STATES COMMISSIONER OF EDUCATION, WHICH PLANS SHALL INCLUDE COURSES SUPPLEMENTARY TO EMPLOYMENT IN OCCUPATIONS ESSENTIAL TO THE NATIONAL DEFENSE AND PRE-EMPLOYMENT REFRESHER COURSES FOR WORKERS PREPARING FOR SUCH OCCUPATIONS SELECTED FROM THE PUBLIC EMPLOYMENT OFFICE REGISTERS; * *

IN DECISION OF JUNE 25, 1935, 14 COMP. GEN. 916, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):)

AFTER THE FEDERAL FUNDS LOANED OR GRANTED TO A STATE UNDER AUTHORITY OF SECTION 1 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, DATED APRIL 8, 1935, ARE RECEIPTED FOR BY THE STATE THEY BECOME STATE FUNDS, AND IN THE ABSENCE OF A CONDITION OF THE LOAN OR GRANT SPECIFICALLY PRESCRIBED TO THE CONTRARY, THERE WOULD BE NO FEDERAL LAW PRECLUDING A RETIRED MARINE CORPS OFFICER FROM HOLDING AN OFFICE OR POSITION CREATED BY A STATE, THE SALARY OF WHICH IS PAID FROM THE FUNDS LOANED OR GRANTED BY THE FEDERAL GOVERNMENT.

SEE, ALSO, DECISION OF APRIL 19, 1937, 16 COMP. GEN. 948, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):)

GRANTS TO A STATE OR TERRITORY UNDER THE SOCIAL SECURITY ACT, 49STAT. 620, BECOME FUNDS OF THE PARTICULAR STATE OR TERRITORY, AND, EXCEPT FOR COMPLIANCE WITH THE CONDITIONS UNDER WHICH THE GRANTS ARE MADE, ANY EXPENDITURE OF SUCH FUNDS FOR THE PURPOSE FOR WHICH GRANTED TO THE TERRITORY OF ALASKA IS SUBJECT TO THE LAWS AND REGULATIONS APPLICABLE TO THE EXPENDITURE OF TERRITORIAL FUNDS RATHER THAN FEDERAL LAWS APPLICABLE TO THE EXPENDITURE OF APPROPRIATED MONEYS BY THE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT.

EXECUTIVE ORDER NO. 8390, DATED APRIL 11, 1940, PROVIDES, AS FOLLOWS:

BY VIRTUE OF THE AUTHORITY VESTED IN ME BY SECTION 1753 OF THE REVISED STATUTES OF THE UNITED STATES ( U.S.C., TITLE 5, SEC. 631), AND AS PRESIDENT OF THE UNITED STATES, THE EXECUTIVE ORDER OF JANUARY 17, 1873, AS AMENDED, PROHIBITING, WITH CERTAIN EXPENDITURES, FEDERAL OFFICERS AND EMPLOYEES FROM HOLDING STATE, TERRITORIAL, AND MUNICIPAL OFFICES, IS HEREBY FURTHER AMENDED SO AS TO PERMIT OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT TO HOLD POSITIONS AS TEACHERS OR INSTRUCTORS IN ANY STATE, TERRITORIAL, OR MUNICIPAL SCHOOL OR UNIVERSITY: PROVIDED, THAT THEIR HOLDING OF SUCH POSITIONS SHALL NOT IN ANY MANNER INTERFERE OR CONFLICT WITH THE PERFORMANCE OF THEIR DUTIES DURING THEIR REGULAR HOURS OF DUTY AS OFFICERS OR EMPLOYEES OF THE FEDERAL GOVERNMENT.

ACCORDINGLY, IN THE ABSENCE OF A CONDITION IN THE FEDERAL GRANT TO THE STATE OF NEW MEXICO PROHIBITING THE EMPLOYMENT OF FEDERAL PERSONNEL AS INSTRUCTORS IN STATE INSTITUTIONS, THE FEDERAL DUAL COMPENSATION STATUTES ARE NOT APPLICABLE TO PROHIBIT THE EMPLOYMENT OF FREDERICK C. EICHHOLTZ AND JESSE J. STOVALL AS INSTRUCTORS BY THE NEW MEXICO STATE INSTITUTION IN ACCORDANCE WITH THE ARRANGEMENT INDICATED BY THE CORRESPONDENCE ENCLOSED WITH YOUR SUBMISSION.