B-128885, SEP. 17, 1956

B-128885: Sep 17, 1956

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WHITE WAS REINSTATED. WHITE WAS GIVEN AN EXCEPTED APPOINTMENT EFFECTIVE MAY 28. YOUR QUESTION IS WHETHER PART-TIME AND W.A.E. EMPLOYMENT WITH OTHER AGENCIES OF THE FEDERAL GOVERNMENT AND RECEIVE COMPENSATION FOR THEIR EMPLOYMENT AS LONG AS THERE IS NO CONFLICT OF DUTIES OR HOURS OF EMPLOYMENT. * * * " THE BASIC RULE TO BE APPLIED IS WELL STATED IN 8 COMP. THAT NO PAYMENT OF A PART OF A SALARY IS AUTHORIZED IF THE ANNUAL RATE TAKEN WITH THE SALARY OF ANY OTHER POSITION OR POSITIONS HELD BY THE EMPLOYEE EXCEEDS THE LIMITS FIXED BY THE STATUTE. IT IS IMMATERIAL ON WHAT MEASURE OF TIME THE SALARY IS BASED. WHERE A SALARY IS THE METHOD OF COMPENSATION. IS PART-TIME OR INTERMITTENT EMPLOYMENT WHERE THE COMPENSATION IN BOTH POSITIONS IS PAYABLE ONLY "WHEN ACTUALLY EMPLOYED.'.

B-128885, SEP. 17, 1956

TO LIEUTENANT GENERAL LEWIS B. HERSHEY, DIRECTOR, SELECTIVE SERVICE SYSTEM:

YOUR LETTER OF AUGUST 8, 1956, REQUESTS OUR DECISION WHETHER, IN THE CIRCUMSTANCES DESCRIBED HEREINAFTER, EMPLOYMENT OF MRS. BETH G. WHITE BY LOCAL BOARD NO. 33, PROVO, UTAH, AND PAYMENT OF COMPENSATION FOR HER SERVICES CONSTITUTES A VIOLATION OF THE DUAL COMPENSATION PROHIBITION OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, 5 U.S.C. 58.

YOU SAY THAT BY NOTIFICATION OF PERSONNEL ACTION DATED JANUARY 5, 1956, ISSUED BY THE DEPARTMENT OF AGRICULTURE, FARMERS HOME ADMINISTRATION, SALT LAKE CITY, UTAH, MRS. WHITE WAS REINSTATED, EFFECTIVE THAT DATE, AS A PART -TIME EMPLOYEE AS A CLERK-TYPIST GS-2 (ASSISTANT COUNTY OFFICE CLERK), $1.67 PER HOUR $3,470 PER ANNUM), WITH A TOUR OF DUTY OF 20 HOURS PER WEEK TO BE PERFORMED FROM 1 P.M. TO 5 P.M. EACH DAY, MONDAY THROUGH FRIDAY. SUBSEQUENTLY, MRS. WHITE WAS GIVEN AN EXCEPTED APPOINTMENT EFFECTIVE MAY 28, 1956, AS A CERK UNCLASSIFIED, $2,960 PER NUM,"WHEN ACTUALLY EMPLOYED" WITH LOCAL BOARD NO. 33, UTAH COUNTY, PROVO, UTAH; "AGGREGATE COMPENSATION NOT TO EXCEED $1,100 PER ANNUM.' YOUR QUESTION IS WHETHER PART-TIME AND W.A.E. EMPLOYEES OF THE SELECTIVE SERVICE SYSTEM MAY ALSO SECURE PART TIME OR W.A.E. EMPLOYMENT WITH OTHER AGENCIES OF THE FEDERAL GOVERNMENT AND RECEIVE COMPENSATION FOR THEIR EMPLOYMENT AS LONG AS THERE IS NO CONFLICT OF DUTIES OR HOURS OF EMPLOYMENT.

SECTION 6 OF THE ACT OF MAY 10, 1916, SUPRA, PROVIDES IN PART AS FOLLOWS:

"THAT UNLESS OTHERWISE SPECIALLY AUTHORIZED BY LAW NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM, * * * "

THE BASIC RULE TO BE APPLIED IS WELL STATED IN 8 COMP. GEN. 261:

"* * * THE LIMITATION IN THE STATUTES OF 916, SUPRA, HAS REFERENCE TO THE RATE OF THE COMBINED SALARIES RATHER THAN TO THE AGGREGATE AMOUNT RECEIVED DURING THE YEAR, AND THAT NO PAYMENT OF A PART OF A SALARY IS AUTHORIZED IF THE ANNUAL RATE TAKEN WITH THE SALARY OF ANY OTHER POSITION OR POSITIONS HELD BY THE EMPLOYEE EXCEEDS THE LIMITS FIXED BY THE STATUTE. IT IS IMMATERIAL ON WHAT MEASURE OF TIME THE SALARY IS BASED, WHETHER PER ANNUM, PER DIEM, PER HOUR, OR PIECEWORK IF THE REMUNERATION CONSTITUTES SALARY AS DISTINGUISHED FROM FEES. * * *"

THE ONLY CLASSIFICATION OF EMPLOYMENT NOT SUBJECT TO THE PROHIBITION OF THE 1916 ACT, WHERE A SALARY IS THE METHOD OF COMPENSATION, IS PART-TIME OR INTERMITTENT EMPLOYMENT WHERE THE COMPENSATION IN BOTH POSITIONS IS PAYABLE ONLY "WHEN ACTUALLY EMPLOYED.' SEE 15 COMP. GEN. 751; A-92859, DATED MARCH 4, 1938.

AN APPOINTMENT TO A POSITION WITH PART-TIME EMPLOYMENT, BUT WITH A REGULAR TOUR OF DUTY, AND COMPENSATION NOT LIMITED TO "WHEN ACTUALLY EMPLOYED" IS SUBJECT TO THE LIMITATION OF THE 1916 ACT EVEN THOUGH THE OTHER POSITION IS ON A W.A.E. BASIS. SEE DECISION B-55503 DATED MARCH 28, 1946; 18 COMP. GEN. 614.

IN 11 COMP. GEN. 200 WE HELD THAT THE EMPLOYMENT ON DIFFERENT DAYS OF THE SAME PERSON IN TWO PART-TIME POSITIONS UNDER DIFFERENT DEPARTMENTS OF THE GOVERNMENT DOES NOT VIOLATE THE 1916 ACT IF THE EMPLOYEE CANNOT POSSIBLY RECEIVE AN AGGREGATE COMPENSATION IN EXCESS OF $ 2,000. LATER DECISIONS ADHERE TO THE SAME PRINCIPLE. SEE 18 COMP. GEN. 614, 20 COMP. GEN. 407. IN THE FORMER CASE, THE RULE THAT IS DETERMINATIVE OF MRS. WHITE'S SITUATION IS SET FORTH:

"* * * UNLESS THE TERMS OF THE APPOINTMENTS * * * SO LIMITED THE NUMBER OF HOURS OF SERVICE PER DAY OR DAYS OF SERVICE PER YEAR AS TO FIX THE ANNUAL RATE OF COMPENSATION AT AN AMOUNT WHICH, TOGETHER WITH THE RATE OF COMPENSATION FOR THE (OTHER) POSITION * * * WOULD NOT EXCEED $2,000, PAYMENT OF SALARY OR COMPENSATION UNDER BOTH POSITIONS IS NOT AUTHORIZED.'

APPLYING THE PRINCIPLES OF THE ABOVE-QUOTED DECISIONS TO THE FACTS AS REPORTED HERE, THERE SEEMS NO DOUBT BUT THAT PAYMENTS TO MRS. WHITE FOR WORK PERFORMED AS A CLERK FOR LOCAL BOARD NO. 33 IN ADDITION TO HER SALARY AS ASSISTANT COUNTY OFFICE CLERK, COVERING THE SAME PERIOD, WOULD CONSTITUTE DUAL SALARIES AT A COMBINED RATE OF MORE THAN $2,000 PER ANNUM AND, AS SUCH, WOULD BE IN CONTRAVENTION OF THE 1916 ACT.