B-129634, OCTOBER 30, 1956, 36 COMP. GEN. 348

B-129634: Oct 30, 1956

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REGARDLESS OF THE ACTUAL NUMBER OF DAYS ON WHICH TEMPORARY OR INTERMITTENT SERVICES ARE PERFORMED. SECTION 2 (C) IS. - THE PERIOD DURING WHICH THE INDIVIDUAL IS SUBJECT TO SERVICE UPON AN INTERMITTENT BASIS. WE DO NOT AGREE THAT SECTION 2 (C) IS SUBJECT TO THAT INTERPRETATION. WE HAVE FOUND NOTHING IN THE LEGISLATIVE HISTORY OF THE SECTION TO INDICATE A CONTRARY INTENT. HAVE HELD THAT THE LIMITATION. SECTION 2 (C) IS DIFFERENT FROM SECTION 15 OF THE ACT OF AUGUST 2. AT THE TIME OF ENACTMENT OF SECTION 2 (C) THE CONGRESS WAS AWARE OF THE SIMILAR RESTRICTION IN SECTION 15 OF THE ACT OF AUGUST 2. " AS WAS DONE IN SECTION 15 OF THE ACT OF AUGUST 2. IS PRESUMED TO HAVE BEEN INTENTIONAL. WE HAVE CONSIDERED YOUR LETTER CAREFULLY AND RECOGNIZE THE PRACTICAL CONSIDERATIONS CONFRONTING YOUR COMMISSION.

B-129634, OCTOBER 30, 1956, 36 COMP. GEN. 348

TEMPORARY AND INTERMITTENT SERVICES - EMPLOYMENT TIME LIMITATION THE RESTRICTION "NOT IN EXCESS OF ONE YEAR" ON INTERMITTENT OR TEMPORARY EMPLOYMENT BY THE NATIONAL CAPITAL PLANNING COMMISSION CONTAINED IN THE ACT OF JULY 19, 1952, PRECLUDES THE EXTENSION OF THE PERIOD OF EMPLOYMENT BEYOND ONE CALENDAR YEAR, REGARDLESS OF THE ACTUAL NUMBER OF DAYS ON WHICH TEMPORARY OR INTERMITTENT SERVICES ARE PERFORMED.

TO THE CHAIRMAN, NATIONAL CAPITAL PLANNING COMMISSION, OCTOBER 30, 1956:

YOUR LETTER OF OCTOBER 25, 1956, REQUESTS OUR DECISIONS CONCERNING THE PERIOD OF TIME WHICH CONSTITUTES A YEAR OF INTERMITTENT EMPLOYMENT UNDER SECTION 2 (C) OF THE ACT OF JUNE 6, 1924, AS ADDED BY THE ACT OF JULY 19, 1952, 66 STAT. 783, 40 U.S.C. 71A (C). SECTION 2 (C) IS, IN PART, AS FOLLOWS: * * * FURTHER, WITHOUT REGARD TO SECTION 3709 OF THE REVISED STATUTES, AS AMENDED, THE CIVIL SERVICE AND CLASSIFICATION LAWS, OR SECTION 15 OF THE ACT OF AUGUST 2, 1946 (5 U.S.C. 55A), THE COMMISSION MAY EMPLOY, BY CONTRACT OR OTHERWISE, THE TEMPORARY OR INTERMITTENT (NOT IN EXCESS OF ONE YEAR) SERVICES OF CITY PLANNERS, ARCHITECTS, ENGINEERS, APPRAISERS, AND OTHER EXPERTS OR ORGANIZATIONS THEREOF, AS MAY BE NECESSARY TO CARRY OUT ITS FUNCTIONS, AND IN ANY SUCH CASE THE RATE OF COMPENSATION SHALL BE FIXED BY THE COMMISSION SO AS NOT TO EXCEED THE RATE USUAL FOR SIMILAR SERVICES.

YOU SUGGEST THAT THE TERM "INTERMITTENT EMPLOYMENT" AS USED IN SECTION 2 (C), AND AS MODIFIED BY THE PHRASE "NOT IN EXCESS OF ONE YEAR" SHOULD BE CONSTRUED TO MEAN ACTUAL DAYS OF SERVICE RENDERED SUBJECT TO THE FURTHER LIMITATION THAT SUCH EMPLOYMENT MAY NOT EXCEED 130 DAYS IN ANY YEAR--- THE CIVIL SERVICE COMMISSION REGULATIONS PROVIDING INTERMITTENT EMPLOYMENT IN ANY YEAR AGGREGATING 130 DAYS AUTOMATICALLY BEING CONVERTED TO TEMPORARY. (FEDERAL PERSONNEL MANUAL A7-39.) AS WE UNDERSTAND YOUR POSITION, THE RESTRICTION " (NOT IN EXCESS OF ONE YEAR)" IN SECTION 2 (C) WOULD BE SATISFIED SO LONG AS THE ACTUAL INTERMITTENT SERVICE RENDERED DOES NOT EXCEED 130 DAYS, ALTHOUGH THE ENTIRE PERIOD COVERED BY THE INTERMITTENT EMPLOYMENT--- THE PERIOD DURING WHICH THE INDIVIDUAL IS SUBJECT TO SERVICE UPON AN INTERMITTENT BASIS--- MAY EXTEND OVER SEVERAL YEARS. WE DO NOT AGREE THAT SECTION 2 (C) IS SUBJECT TO THAT INTERPRETATION. THE WORD "YEAR" AS USED IN STATUTES ORDINARILY MEANS "CALENDAR YEAR" UNLESS THEIR CONTEXT DENOTES OTHERWISE. SEE 45 W AND P, PERM. USED., " YEAR," AND 45 W AND P, -56 P.P., " YEAR.' THE CONTEXT OF SECTION (2) (C) DOES NOT INDICATE THAT THE WORD "YEAR" SHOULD BE CONSTRUED IN ANY BUT ITS ORDINARY SENSE, NAMELY,"CALENDAR YEAR.' MOREOVER, WE HAVE FOUND NOTHING IN THE LEGISLATIVE HISTORY OF THE SECTION TO INDICATE A CONTRARY INTENT. HENCE, WE FEEL REQUIRED TO CONSTRUE THE TERM "ONE YEAR" AS USED IN THE RESTRICTION CONTAINED IN SECTION 2 (C) AS ONE CALENDAR YEAR.

AS POINTED OUT IN YOUR LETTER, OUR DECISION CONSTRUING A SIMILAR PROVISION IN SECTION 15 OF THE ACT OF AUGUST 2, 1946, AS AMENDED, 5 U.S.C. 55A, HAVE HELD THAT THE LIMITATION,"NOT IN EXCESS OF ONE YEAR)," IMMEDIATELY FOLLOWING THE WORD "TEMPORARY," APPEARING IN THAT SECTION, LIMITS THE EMPLOYMENT OF EXPERTS OR CONSULTANTS APPOINTED ON A TEMPORARY BASIS TO A PERIOD OF ONE YEAR. SECTION 2 (C) IS DIFFERENT FROM SECTION 15 OF THE ACT OF AUGUST 2, 1946, IN THAT THE STRICTION,"NOT IN EXCESS OF ONE YEAR)," FOLLOWS THE TERM "TEMPORARY OR INTERMITTENT" AND, THEREFORE, APPLIES ALIKE TO EMPLOYMENT UPON A TEMPORARY BASIS AND EMPLOYMENT UPON AN INTERMITTENT BASIS. AGAIN WE MAY SAY THAT AN EXAMINATION OF THE LEGISLATIVE HISTORY OF SECTION 2 (C) REVEALS NOTHING INDICATING THE LANGUAGE SHOULD BE INTERPRETED IN OTHER THAN ITS ORDINARY MEANING. MOREOVER, AT THE TIME OF ENACTMENT OF SECTION 2 (C) THE CONGRESS WAS AWARE OF THE SIMILAR RESTRICTION IN SECTION 15 OF THE ACT OF AUGUST 2, 1946, SINCE BY ITS TERMS SECTION 2 (C) AUTHORIZES THE EMPLOYMENT OF EXPERTS AND CONSULTANTS WITHOUT REGARD TO SECTION 15 OF THE ACT OF AUGUST 2, 1946. THEREFORE, THE PLACING OF THE RESTRICTION,"NOT IN EXCESS OF ONE YEAR)," AFTER THE TERM ,TEMPORARY OR INTERMITTENT" RATHER THAN IMMEDIATELY AFTER THE WORD "TEMPORARY," AS WAS DONE IN SECTION 15 OF THE ACT OF AUGUST 2, 1946, IS PRESUMED TO HAVE BEEN INTENTIONAL.

WE HAVE CONSIDERED YOUR LETTER CAREFULLY AND RECOGNIZE THE PRACTICAL CONSIDERATIONS CONFRONTING YOUR COMMISSION. HOWEVER, WE FEEL THAT, AS A MATTER OF LAW, THE RESTRICTION,"NOT IN EXCESS OF ONE YEAR)," APPEARING IN SECTION 2 (C) PRECLUDES EXTENDING A PERIOD OF INTERMITTENT EMPLOYMENT OVER ONE CALENDAR YEAR REGARDLESS OF THE ACTUAL NUMBER OF DAYS AN INDIVIDUAL MAY BE CALLED UPON TO PERFORM SERVICE IN THAT YEAR.