B-126332, MAR. 7, 1956

B-126332: Mar 7, 1956

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MUNNECKE SIGNING AS ATTORNEY FOR THE UNITED STATES SOLDIERS' HOME BY DIRECTION OF THE JUDGE ADVOCATE GENERAL REQUESTS OUR DECISION WHETHER THE BOARD OF COMMISSIONERS OF THE HOME HAVE AUTHORITY TO CONTRACT WITH AN INDEPENDENT CONTRACTOR. WHILE THE OFFICER SIGNING THE SUBMISSION IS NOT QUALIFIED TO REQUEST A DECISION BY OUR OFFICE. - YET IN VIEW OF THE IMPORTANCE OF THE QUESTION PRESENTED THE SUBMISSION WILL BE CONSIDERED AS HAVING BEEN MADE AT YOUR DIRECTION. DECISION HEREBY IS RENDERED ACCORDINGLY. SUCH SERVICES HAVE BEEN RENDERED CONTINUOUSLY SINCE THAT TIME WITH INCREASES FROM TIME TO TIME IN THE RATE OF COMPENSATION AND PERSONNEL. WE HELD THAT ALL CIVILIAN POSITIONS AT THE SOLDIERS HOME WERE SUBJECT TO THE CLASSIFICATION ACT.

B-126332, MAR. 7, 1956

TO THE HONORABLE SECRETARY OF THE ARMY:

IN LETTER OF DECEMBER 9, 1955 (JAGAA), COLONEL CHARLES M. MUNNECKE SIGNING AS ATTORNEY FOR THE UNITED STATES SOLDIERS' HOME BY DIRECTION OF THE JUDGE ADVOCATE GENERAL REQUESTS OUR DECISION WHETHER THE BOARD OF COMMISSIONERS OF THE HOME HAVE AUTHORITY TO CONTRACT WITH AN INDEPENDENT CONTRACTOR, NAMELY, THE SISTERS OF CHARITY FOR THE FURNISHING OF NURSING SERVICES. WHILE THE OFFICER SIGNING THE SUBMISSION IS NOT QUALIFIED TO REQUEST A DECISION BY OUR OFFICE--- SEE 31 U.S. CODE 74 (THIRD PARAGRAPH), 82D, 82E--- YET IN VIEW OF THE IMPORTANCE OF THE QUESTION PRESENTED THE SUBMISSION WILL BE CONSIDERED AS HAVING BEEN MADE AT YOUR DIRECTION, AND DECISION HEREBY IS RENDERED ACCORDINGLY.

BY RESOLUTION ADOPTED DECEMBER 16, 1902, THE BOARD OF COMMISSIONERS OF THE HOME ACCEPTED THE OFFER OF THE SISTERS OF CHARITY AT THE PROVIDENCE HOSPITAL TO PROVIDE NURSING CARE AT THE SOLDIERS HOME HOSPITAL TO CONSIST OF A CHIEF NURSE AND 19 OTHERS AT A COST OF $101 PER MONTH. SUCH SERVICES HAVE BEEN RENDERED CONTINUOUSLY SINCE THAT TIME WITH INCREASES FROM TIME TO TIME IN THE RATE OF COMPENSATION AND PERSONNEL, THE CURRENT UNDERSTANDING PROVIDING FOR A CORPS OF 20 PERSONNEL AT A COST OF $24,300 A YEAR. NO FORMAL CONTRACT HAS BEEN EXECUTED WITH THE HOME FOR THE NURSING SERVICES--- SUCH SERVICES HAVING BEEN RENDERED UPON AN ORAL UNDERSTANDING CONFIRMED BY A RESOLUTION OF THE BOARD OF COMMISSIONERS. THE MATERIAL FURNISHED WITH THE LETTER ESTABLISHES THAT THERE HAS NEVER BEEN ANY ADMINISTRATIVE CONTROL EXERCISED BY ANY ONE REPRESENTING THE HOME OVER THE NURSES--- ALL ARRANGEMENTS BEING MADE THROUGH THE SISTER SUPERIOR OF THE ORDER SUBJECT TO CHANGE UPON REQUEST BY THE RESPONSIBLE OFFICERS OF THE HOME.

IN OUR DECISION OF JANUARY 16, 1937, 16 COMP. GEN. 650. WE HELD THAT ALL CIVILIAN POSITIONS AT THE SOLDIERS HOME WERE SUBJECT TO THE CLASSIFICATION ACT. SUBSEQUENT TO THAT DECISION, A PROVISION WAS ENACTED (ACT OF JULY 19, 1937, 57 STAT. 24 U.S.C. 46 (B) AS FOLLOWS:

"NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, THE ADMINISTRATION, CONTROL, PROCUREMENT, EXPENDITURE, ACCOUNTING, AUDIT, AND METHODS THEREOF, OF FUNDS APPROPRIATED FROM THE SOLDIERS' HOME PERMANENT FUND (TRUST FUND) SHALL BE ACCORDING TO THE LAWS GOVERNING AND IN EFFECT PRIOR TO JULY 1, 1935, RELATING SPECIFICALLY TO THE UNITED STATES SOLDIERS' HOME, AND IN ACCORDANCE WITH PROCEDURE FOLLOWED PRIOR TO SUCH DATE.'

THAT STATUTORY PROVISION WAS CONSIDERED PERMANENT LEGISLATION AND OUR OFFICE EXPRESSED THE OPINION THAT THAT LEGISLATION OVERCAME THE REQUIREMENT OF OUR DECISION IN 16 COMP. GEN. 650, THAT THE CIVILIAN POSITION AT THE HOME BE CLASSIFIED. A-63459, NOVEMBER 29, 1937; A 65935, NOVEMBER 9, 1937. CONSEQUENTLY, THE PROCEDURE FOLLOWED IN THE PROCUREMENT OF NURSING SERVICES AT THE HOME HOSPITAL WAS NOT OPEN TO QUESTION UNTIL THE PASSAGE OF THE CLASSIFICATION ACT OF 1949, SECTION 201 (B) OF WHICH ACT, 63 STAT. 954, PROVIDES:

"/B) SUBJECT TO THE EXEMPTIONS SPECIFIED IN SECTION 202, AND EXCEPT AS PROVIDED IN SECTIONS 204 AND 205, THIS ACT SHALL APPLY TO ALL CIVILIAN POSITIONS, OFFICERS, AND EMPLOYEES IN OR UNDER THE DEPARTMENTS.'

SECTION 203 OF THE CLASSIFICATION ACT VESTS IN THE CIVIL SERVICE COMMISSION THE AUTHORITY "TO DETERMINE FINALLY THE APPLICABILITY OF SECTIONS 201 AND 202 TO SPECIFIC POSITIONS, OFFICERS, AND EMPLOYEES.' A LEGAL OPINION DATED OCTOBER 6, 1955, FROM THE LAW OFFICE OF THE CIVIL SERVICE COMMISSION THE VIEW WAS STATED THAT "ALTHOUGH 24 U.S.C. SEC. 460 (THE 1937 ACT ABOVE QUOTED) WAS NOT REPEALED ENTIRELY, IT WAS MODIFIED INSOFAR AS IT MAY OTHERWISE LEAD TO ANY CONFLICT WITH THE CLASSIFICATION ACT. CONSEQUENTLY, SECTION 46B HAS NO APPLICATION TO THE CLASSIFICATION AND COMPENSATION OF EMPLOYEES.' THAT OPINION GOES ON TO CONCLUDE THAT "THE CLASSIFICATION ACT OF 1949 APPLIES TO THE CLASSIFICATION AND COMPENSATION OF EMPLOYEES AT THE UNITED STATES SOLDIERS HOME.'

WE TAKE THIS TO MEAN THAT PURSUANT TO SECTION 203 OF THE CLASSIFICATION ACT OF 1949 THE CIVIL SERVICE COMMISSION HAS DETERMINED THAT THE HOME IS WITHIN THE COVERAGE OF THE ACT AS PRESCRIBED BY SECTION 201 THEREOF, AND SUCH DETERMINATION IS, UNDER SECTION 203, FINAL AND CONCLUSIVE.

THERE NOW REMAINS FOR CONSIDERATION WHETHER THE SERVICES PERFORMED BY THE SISTERS OF CHARITY AT THE HOSPITAL OF THE HOME LEGALLY MAY BE CONTRACTED FOR UNDER AN INDEPENDENT CONTRACTOR BASIS. THE HOME CONTENDS THAT SINCE SUCH SERVICES HAVE BEEN RENDERED UNDER AN INDEPENDENT CONTRACTOR BASIS (FOR OVER FIFTY YEARS) THEY ARE EXPRESSLY EXCLUDED FROM THE OPERATION OF THE CLASSIFICATION ACT OF 1949 BY SECTION 202 (29) WHICH EXEMPTS "PERSONS EMPLOYED ON A FEE, CONTRACT, OR PIECE WORK SIS.'

THE RULE ESTABLISHED BY DECISION OF THE ACCOUNTING OFFICERS IS THAT PURELY PERSONAL SERVICES CANNOT BE OBTAINED ON A CONTRACTUAL BASIS BUT MUST BE PERFORMED BY REGULAR EMPLOYEES OF THE GOVERNMENT WHO ARE RESPONSIBLE TO IT AND SUBJECT TO ITS SUPERVISION. HOWEVER, IT IS RECOGNIZED THAT THE RULE IS ONE OF POLICY RATHER THAN POSITIVE LAW AND UNDER CERTAIN CIRCUMSTANCES EXCEPTIONS HAVE BEEN RECOGNIZED. SEE 31 COMP. GEN. 172. HAVING IN MIND THAT THE NURSING SERVICES IN QUESTION HAVE BEEN OBTAINED BY CONTRACT FOR OVER FIFTY YEARS AND IN VIEW OF THE SPECIFIC AUTHORITY OF THE BOARD OF COMMISSIONERS TO ISSUE REGULATIONS FOR THE GENERAL AND INTERNAL DIRECTION OF THE HOME (24 U.S.C. 41), WE WILL NOT OBJECT TO THE CONTINUED PROCUREMENT OF THE NURSING SERVICES BY INDEPENDENT CONTRACT.