B-126941, AUG. 15, 1956

B-126941: Aug 15, 1956

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TO THE SECRETARY OF LABOR: IN A RECENT AUDIT OF CIVILIAN COMPENSATION PAYMENTS IN YOUR OFFICE CERTAIN QUESTIONS HAVE ARISEN CONCERNING THE EMPLOYMENT OF FREDERICK H. SONTAG WAS APPOINTED (EFFECTIVE MARCH 24. HE WAS PAID SALARY FOR SERVICES TOTALING 129 DAYS AND 5 HOURS. HIS SERVICES WERE UTILIZED FOR A NUMBER OF DAYS ON A WITHOUT COMPENSATION BASIS DURING WHICH HE PERFORMED TRAVEL AT THE EXPENSE OF THE GOVERNMENT. SONTAG'S EMPLOYMENT THERE WAS IN EFFECT THE FOLLOWING PROVISION PROMULGATED BY THE CIVIL SERVICE COMMISSION AND APPEARING IN CHAPTER A7-39 OF THE FEDERAL PERSONNEL MANUAL: "INTERMITTENT EMPLOYMENT OF AN EXPERT OR CONSULTANT IS EMPLOYMENT WHICH (A) OCCURS OCCASIONALLY OR IRREGULARLY AND (B) IS LIMITED TO WORK ON PROGRAMS.

B-126941, AUG. 15, 1956

TO THE SECRETARY OF LABOR:

IN A RECENT AUDIT OF CIVILIAN COMPENSATION PAYMENTS IN YOUR OFFICE CERTAIN QUESTIONS HAVE ARISEN CONCERNING THE EMPLOYMENT OF FREDERICK H. SONTAG, CONSULTANT.

THE RECORDS INDICATE THAT MR. SONTAG WAS APPOINTED (EFFECTIVE MARCH 24, 1954) AS AN INTERMITTENT CONSULTANT, $45.36 PER DIEM WAE, UNDER AUTHORITY OF SECTION 15 OF PUBLIC LAW 600, 5 U.S.C. 55A. DURING THE PERIOD MARCH 24, 1954, THROUGH MARCH 23, 1955, HE WAS PAID SALARY FOR SERVICES TOTALING 129 DAYS AND 5 HOURS. HOWEVER, DURING THIS SAME YEAR, AND IN PARTICULAR THE LATTER PART THEREOF, HIS SERVICES WERE UTILIZED FOR A NUMBER OF DAYS ON A WITHOUT COMPENSATION BASIS DURING WHICH HE PERFORMED TRAVEL AT THE EXPENSE OF THE GOVERNMENT, INCLUDING PAYMENT OF PER DIEM IN LIEU OF SUBSISTENCE.

SECTION 15 OF PUBLIC LAW 600, 60 STAT. 810, 5 U.S.C. 55A, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"THE HEAD OF ANY DEPARTMENT, WHEN AUTHORIZED IN AN APPROPRIATION OR OTHER ACT, MAY PROCURE THE TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS * * *.'

DURING MR. SONTAG'S EMPLOYMENT THERE WAS IN EFFECT THE FOLLOWING PROVISION PROMULGATED BY THE CIVIL SERVICE COMMISSION AND APPEARING IN CHAPTER A7-39 OF THE FEDERAL PERSONNEL MANUAL:

"INTERMITTENT EMPLOYMENT OF AN EXPERT OR CONSULTANT IS EMPLOYMENT WHICH (A) OCCURS OCCASIONALLY OR IRREGULARLY AND (B) IS LIMITED TO WORK ON PROGRAMS, PROJECTS, PROBLEMS, OR PHASES THEREOF, REQUIRING INTERMITTENT SERVICES. THE COMMISSION HOLDS THAT EMPLOYMENT WHICH AGGREGATES, IN THE COURSE OF THE FIRST YEAR OF SERVICE OR IN ANY SUCCEEDING YEAR OF SERVICE, MORE THAN ONE-HALF OF FULL-TIME EMPLOYMENT, I.E., MORE THAN 130 WORKING DAYS, CEASES TO BE INTERMITTENT EMPLOYMENT AND BECOMES AUTOMATICALLY CONVERTED TO TEMPORARY EMPLOYMENT WHICH MAY NOT BE CONTINUED BEYOND THE CLOSE OF THE YEAR OF SERVICE IN WHICH THE LIMIT WAS EXCEEDED.'

IT IS OUR VIEW THAT THE SERVICES PERFORMED BY MR. SONTAG WITHOUT COMPENSATION UNDER HIS APPOINTMENT OF MARCH 24, 1954, MUST BE ADDED TO THE DAYS FOR WHICH HE ACTUALLY RECEIVED SALARY TO ASCERTAIN WHETHER THE 130 DAY LIMITATION FOR INTERMITTENT EMPLOYMENT AS FIXED BY THE CIVIL SERVICE COMMISSION WAS EXCEEDED. AS PREVIOUSLY INDICATED, THE TOTAL OF MR. SONTAG'S SERVICES, INCLUDING SERVICES PERFORMED WITHOUT COMPENSATION EXCEEDED SUCH LIMITATION. ACCORDINGLY, EXCEPTIONS WERE TAKEN TO PAYMENTS OF SALARY AND TRAVELING EXPENSES TO MR. SONTAG SUBSEQUENT TO MARCH 23, 1955, ON THE BASIS THAT HIS EMPLOYMENT AUTOMATICALLY WAS CONVERTED TO TEMPORARY DURING THE FIRST YEAR OF HIS EMPLOYMENT AND UNDER SECTION 15 OF PUBLIC LAW 600 HIS SERVICES AS A TEMPORARY CONSULTANT WERE PRECLUDED AFTER THE END OF SUCH FIRST YEAR OF EMPLOYMENT (MAY 23, 1955).

IN REPLY TO THE EXCEPTION THE APPROPRIATE ADMINISTRATIVE OFFICIALS HAVE REQUESTED THE REMOVAL OF SUCH EXCEPTIONS UPON THE GROUND THAT THE ADMINISTRATIVE INTERPRETATION OF THE 130 DAY LIMITATION COVERING THE EMPLOYMENT OF INTERMITTENT CONSULTANTS WAS MADE IN GOOD FAITH, IN THAT IT WAS NOT CONCEIVED THAT TIME WORKED WITHOUT COMPENSATION SHOULD RUN AGAINST THE LIMITATION ESTABLISHED BY CHAPTER A7-39 OF THE FEDERAL PERSONNEL MANUAL.

SINCE THE PROVISION IN CHAPTER A7-39 DOES NOT SPECIFICALLY REFER TO SERVICES WITHOUT COMPENSATION AND AS NO PREVIOUS DECISIONS EXIST ON THIS SUBJECT MATTER WE PROPOSE TO REMOVE THE EXCEPTIONS WHICH WERE STATED FOR THE REASONS PREVIOUSLY INDICATED. HOWEVER, IT IS TO BE UNDERSTOOD THAT SUCH ACTION IS BEING PREDICATED ON THE UNDERSTANDING THAT THE PRACTICE OF UTILIZING THE SERVICES OF AN INTERMITTENT EXPERT OR CONSULTANT ON A WITHOUT COMPENSATION BASIS AFTER HIS SERVICES HAVE BEEN PAID FOR TO THE EXTENT OF 130 DAYS IN AN EMPLOYMENT YEAR WILL BE DISCONTINUED.