B-130578, APR. 1, 1957

B-130578: Apr 1, 1957

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BRYANT IS EMPLOYED BY YOUR DEPARTMENT AS A LABORER (CLEANER) AT THE RATE OF $1.63 PER HOUR. DURING THIS PERIOD HE WAS CARRIED IN A LEAVE-WITHOUT-PAY STATUS IN HIS REGULAR POSITION. HE DESIRES TO WORK OCCASIONALLY AT THE ORLEANS POST OFFICE UNTIL TWO VACANCIES IN THAT OFFICE ARE FILLED. OUR DECISION IS REQUESTED REGARDING THE FOLLOWING SPECIFIC QUESTIONS: "/A) WOULD IT BE PERMISSIBLE FOR MR. WHICH ARE DAYS OUTSIDE HIS NORMAL WEEK AT NAVAL AMMUNITION DEPOT. BRYANT BE CARRIED IN AN ANNUAL LEAVE STATUS WHILE WORKING OCCASIONALLY AS A SUBSTITUTE POSTAL CLERK DURING NORMAL WORKING HOURS? "/C) IF THE ANSWER TO (B) IS NEGATIVE. BRYANT BE PLACED IN A LEAVE-WITHOUT-PAY STATUS DURING THE TIME HE IS ACTUALLY EMPLOYED AS A SUBSTITUTE POSTAL CLERK? "/D) IF THE ANSWERS TO (B) AND (C) ARE NEGATIVE.

B-130578, APR. 1, 1957

TO THE SECRETARY OF THE NAVY:

ON JANUARY 31, 1957, THE ASSISTANT HEAD, CIVILIAN PERSONNEL BRANCH, ADMINISTRATIVE DIVISION, BUREAU OF ORDNANCE, BY DIRECTION OF THE CHIEF OF BUREAU, TRANSMITTED, BY LETTER BEARING THE FILE NUMBER AD2B-ALZ:EB, A REQUEST, FROM THE COMMANDING OFFICER, U.S. NAVAL AMMUNITION DEPOT, CRANE, INDIANA, FOR A DECISION CONCERNING VARIOUS QUESTIONS RELATING TO THE DUAL EMPLOYMENT OF MR. JAMES C. BRYANT, A CIVILIAN EMPLOYEE AT THAT INSTALLATION.

IT APPEARS THAT MR. BRYANT IS EMPLOYED BY YOUR DEPARTMENT AS A LABORER (CLEANER) AT THE RATE OF $1.63 PER HOUR, WITH A NORMAL WEEK OF MONDAY THROUGH FRIDAY. DURING THE WEEK FROM JANUARY 14 TO JANUARY 21, 1957, MR. BRYANT WORKED 40 HOURS STRAIGHT TIME AND 8 HOURS OVERTIME AS A SUBSTITUTE POSTAL CLERK IN THE POST OFFICE AT ORLEANS, INDIANA, AT THE RATE OF $1.82 PER HOUR. DURING THIS PERIOD HE WAS CARRIED IN A LEAVE-WITHOUT-PAY STATUS IN HIS REGULAR POSITION. HE DESIRES TO WORK OCCASIONALLY AT THE ORLEANS POST OFFICE UNTIL TWO VACANCIES IN THAT OFFICE ARE FILLED. OUR DECISION IS REQUESTED REGARDING THE FOLLOWING SPECIFIC QUESTIONS:

"/A) WOULD IT BE PERMISSIBLE FOR MR. BRYANT TO WORK AS A SUBSTITUTE POSTAL CLERK ON SATURDAYS AND SUNDAYS, WHICH ARE DAYS OUTSIDE HIS NORMAL WEEK AT NAVAL AMMUNITION DEPOT, CRANE, INDIANA?

"/B) SHOULD MR. BRYANT BE CARRIED IN AN ANNUAL LEAVE STATUS WHILE WORKING OCCASIONALLY AS A SUBSTITUTE POSTAL CLERK DURING NORMAL WORKING HOURS?

"/C) IF THE ANSWER TO (B) IS NEGATIVE, SHOULD MR. BRYANT BE PLACED IN A LEAVE-WITHOUT-PAY STATUS DURING THE TIME HE IS ACTUALLY EMPLOYED AS A SUBSTITUTE POSTAL CLERK?

"/D) IF THE ANSWERS TO (B) AND (C) ARE NEGATIVE, SHOULD MR. BRYANT DECLINE HIS APPOINTMENT AS SUBSTITUTE POSTAL CLERK AND REFUND ANY MONEY HE HAS RECEIVED?

SECTION 6 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, PROVIDES, SO FAR AS PERTINENT:

"THAT UNLESS OTHERWISE SPECIFICALLY 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 * * *.'

WE CONSISTENTLY HAVE HELD THAT COMPENSATION BASED UPON THE TIME WORKED CONSTITUTES SALARY WITHIN THE MEANING OF THE 1916 ACT. SEE 8 COMP. GEN. 261; 12 ID. 76; 13 ID. 248; 18 ID. 614; ID. 768; 19 ID. 716. ACCORDINGLY, MR. BRYANT'S COMPENSATION AS A SUBSTITUTE POSTAL CLERK ON AN HOURLY BASIS MUST BE CONSIDERED AS SALARY WITHIN THE MEANING OF THE STATUTE. MOREOVER, WE UNIFORMLY HAVE HELD THAT THE ACT HAS REFERENCE TO THE RATE OF THE COMBINED SALARIES RECEIVED DURING A YEAR, AND THAT NO PAYMENT OF ANY PART OF A SALARY IS AUTHORIZED IF THE WHOLE, WITH THE SALARY OF ANOTHER POSITION OR POSITIONS, EXCEEDS THE LIMITATIONS FIXED BY THE STATUTE. SEE 30 COMP. GEN. 525; 12 ID. 76, AND THE DECISIONS THEREIN CITED.

IN MR. BRYANT'S CASE, IT APPEARS THAT THE ANNUAL SALARY RATE FOR HIS REGULAR POSITION WITH THE DEPARTMENT OF THE NAVY ALONE EXCEEDS THE LIMITATION FIXED BY THE STATUTE. HE MAY THEREFORE NOT BE ALLOWED TO RECEIVE COMPENSATION FROM HIS REGULAR POSITION AND AS SUBSTITUTE POSTAL CLERK COVERING THE SAME PERIODS OF TIME, THAT IS, FOR CONCURRENT SERVICE.

PRIOR TO THE ENACTMENT OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, FEDERAL EMPLOYEES WERE PAID ON THE BASIS OF A 360-DAY YEAR, AND WERE CONSIDERED TO BE IN A PAY STATUS ON SATURDAYS AND SUNDAYS. SECTION 604 OF THAT ACT, AS AMENDED, 5 U.S.C. 944, REQUIRES THE ESTABLISHMENT OF BASIC ADMINISTRATIVE WORK WEEKS OF FORTY HOURS, TO BE PERFORMED WITHIN A PERIOD OF NOT MORE THAN SIX OF ANY SEVEN CONSECUTIVE DAYS. RATES OF PAY ARE COMPUTED ON THE BASIS OF FIFTY-TWO BASIC ADMINISTRATIVE WORK WEEKS OF FORTY HOURS. EMPLOYEES ARE NOT CONSIDERED TO BE IN A PAY STATUS ON DAYS OUTSIDE THIS NORMAL WORK WEEK. SINCE MR. BRYANT RECEIVES NO SALARY FROM HIS EMPLOYMENT WITH YOUR DEPARTMENT FOR SATURDAYS AND SUNDAYS, IT IS OUR OPINION THAT THE 1916 ACT DOES NOT PRECLUDE HIS EMPLOYMENT BY THE POST OFFICE DEPARTMENT ON THOSE DAYS, IF SUCH EMPLOYMENT IS ON A STRICTLY TEMPORARY BASIS. YOUR QUESTION (A) IS ANSWERED ACCORDINGLY.

REGARDING QUESTION (B), MR. BRYANT MAY NOT BE CARRIED IN AN ANNUAL LEAVE STATUS IN HIS REGULAR POSITION DURING ANY PERIOD OF TIME FOR WHICH HE RECEIVES COMPENSATION AS A SUBSTITUTE POSTAL CLERK.

AS TO QUESTION (C), WE HAVE HELD GENERALLY, THAT THE PROVISIONS OF THE ACT OF MAY 10, 1916, AS WELL AS THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, ARE NOT CONTRAVENED WHEN AN EMPLOYEE IS CARRIED IN A LEAVE-WITHOUT-PAY STATUS IN ONE POSITION WHILE ENGAGED IN EMPLOYMENT UPON A PROJECT OF SHORT DURATION NOT DEEMED TO CONSTITUTE A POSITION OR OFFICE. SEE 18 COMP. GEN. 1010; 30 ID. 386; 31 ID. 414; ID. 670, AND 33 ID. 528. IN THE FIRST-LISTED CASE, HOWEVER, THE EMPLOYEE'S INITIAL APPOINTMENT WAS ON A "WHEN ACTUALLY EMPLOYED" BASIS, AND HIS SECOND APPOINTMENT WAS ON A TEMPORARY BASIS TO A POSITION IN WHICH HE SERVED ONLY SIX WEEKS. IN THE OTHER CASES THE EMPLOYEES' SECOND APPOINTMENTS WERE TO STRICTLY TEMPORARY POSITIONS IN WHICH THEY WERE TO WORK REGULARLY FOR PERIODS OF LIMITED DURATION THE TERMINATION OF WHICH WAS READILY FORESEEABLE.

IN SUMMARY WE SHOULD LIKE TO EMPHASIZE THAT WHILE WE HAVE HELD THAT THE RECEIPT OF COMPENSATION FROM ONE EMPLOYMENT WHILE IN A LEAVE WITHOUT-PAY STATUS FROM ANOTHER IS NOT IN CONTRAVENTION OF THE 1916 STATUTE, THE CASES IN WHICH WE SO RULED INVOLVED DUAL EMPLOYMENT ONLY OF A TEMPORARY CHARACTER. ACCORDINGLY, IF MR. BRYANT'S APPOINTMENT AS SUBSTITUTE CLERK IS OF A STRICTLY TEMPORARY CHARACTER, IT IS OUR OPINION THAT THE ACT OF MAY 10, 1916, DOES NOT PRECLUDE HIS BEING CARRIED IN A LEAVE-WITHOUT-PAY STATUS BY YOUR DEPARTMENT FOR PERIODS OF TIME DURING WHICH HE IS SO EMPLOYED. IF, ON THE OTHER HAND, MR. BRYANT'S APPOINTMENT WITH THE POST OFFICE DEPARTMENT IS OF INDEFINITE DURATION OR OF SUCH NATURE THAT IS TERMINATION IS NOT READILY FORESEEABLE IT WOULD SEEM THAT THE GRANTING OF LEAVE WITHOUT PAY TO ENABLE HIM TO ENGAGE IN SUCH EMPLOYMENT, WHILE STILL A FULL-TIME EMPLOYEE OF YOUR DEPARTMENT, WOULD BE OF DOUBTFUL ADMINISTRATIVE PROPRIETY.

CONCERNING QUESTION (D), NO REFUND IS NECESSARY REGARDING WEEK ENDS OR PERIODS DURING WHICH MR. BRYANT IS CARRIED IN A LEAVE-WITHOUT-PAY STATUS BY YOUR DEPARTMENT.