B-133659, NOVEMBER 18, 1957, 37 COMP. GEN. 343

B-133659: Nov 18, 1957

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NATIONAL GUARD - CIVILIAN EMPLOYEES - INCENTIVE AWARDS PROGRAM ALTHOUGH CIVILIAN CLERKS AND CARETAKERS OF THE ARMY NATIONAL GUARD OF THE STATES AND TERRITORIES ARE NOT CONSIDERED FEDERAL EMPLOYEES WITHIN THE PURVIEW OF THE GOVERNMENT EMPLOYEES' INCENTIVE AWARDS ACT. AN INCENTIVE AWARD MAY BE REGARDED AS AN ELEMENT OF COMPENSATION WHICH THE SECRETARY OF THE ARMY IS AUTHORIZED BY 32 U.S.C. 709 TO FIX FOR CLERKS AND CARETAKERS. IS AUTHORIZED BY 32 U.S.C. 709. THE PROGRAM IS TO BE FINANCED WITH APPROPRIATED FUNDS. THE QUESTION IS SUBMITTED BECAUSE CARETAKERS AND CLERKS HIRED UNDER SECTION 709. ARE NOT CONSIDERED FEDERAL EMPLOYEES WITH REFERENCE TO FEDERAL PAY. THE QUESTION ARISES WHETHER THEY ARE TO BE DEEMED WITHIN THE PURVIEW OF THE GOVERNMENT EMPLOYEE'S INCENTIVE AWARDS ACT (5 U.S.C. 2121 ET SEQ.).

B-133659, NOVEMBER 18, 1957, 37 COMP. GEN. 343

NATIONAL GUARD - CIVILIAN EMPLOYEES - INCENTIVE AWARDS PROGRAM ALTHOUGH CIVILIAN CLERKS AND CARETAKERS OF THE ARMY NATIONAL GUARD OF THE STATES AND TERRITORIES ARE NOT CONSIDERED FEDERAL EMPLOYEES WITHIN THE PURVIEW OF THE GOVERNMENT EMPLOYEES' INCENTIVE AWARDS ACT, 5 U.S.C. 2121, AN INCENTIVE AWARD MAY BE REGARDED AS AN ELEMENT OF COMPENSATION WHICH THE SECRETARY OF THE ARMY IS AUTHORIZED BY 32 U.S.C. 709 TO FIX FOR CLERKS AND CARETAKERS, AND, THEREFORE, THE SECRETARY OF THE ARMY MAY, BY REGULATION, ESTABLISH AN INCENTIVE AWARDS PROGRAM FOR SUCH EMPLOYEES AND USE FUNDS APPROPRIATED FOR THEIR COMPENSATION TO FINANCE THE PROGRAM.

TO THE SECRETARY OF THE ARMY, NOVEMBER 18, 1957:

ON AUGUST 29, 1957, THE ASSISTANT SECRETARY OF THE ARMY REQUESTED OUR DECISION WHETHER THE SECRETARY OF THE ARMY MAY, BY REGULATION, ESTABLISH AN INCENTIVE AWARDS PROGRAM FOR THE FULL-TIME CIVILIAN CARETAKERS AND CLERKS OF THE ARMY NATIONAL GUARD WHOSE EMPLOYMENT, WITH THE USE OF FEDERAL FUNDS, IS AUTHORIZED BY 32 U.S.C. 709. THE PROGRAM IS TO BE FINANCED WITH APPROPRIATED FUNDS, AVAILABLE FOR THE COMPENSATION OF SUCH PERSONNEL.

THE QUESTION IS SUBMITTED BECAUSE CARETAKERS AND CLERKS HIRED UNDER SECTION 709, WHILE PAID FROM FUNDS APPROPRIATED BY THE CONGRESS FOR THE ARMY NATIONAL GUARD, ARE NOT CONSIDERED FEDERAL EMPLOYEES WITH REFERENCE TO FEDERAL PAY, LEAVE, RETIREMENT AND CIVIL SERVICE LAWS (27 COMP. DEC. 344; 21 COMP. GEN. 305; FEDERAL PERSONNEL MANUAL, R-5-24; 5 U.S.C. 84D). THEREFORE, THE QUESTION ARISES WHETHER THEY ARE TO BE DEEMED WITHIN THE PURVIEW OF THE GOVERNMENT EMPLOYEE'S INCENTIVE AWARDS ACT (5 U.S.C. 2121 ET SEQ.). AN EXCEPTION, HOWEVER, IS RECOGNIZED IN THE CASE OF EMPLOYEES OF THE DISTRICT OF COLUMBIA NATIONAL GUARD, THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA BEING SPECIFICALLY INCLUDED WITHIN THE SCOPE OF THE INCENTIVE AWARDS ACT.

WHAT HAS BEEN SAID DOES NOT NECESSARILY PRECLUDE THE ESTABLISHMENT OF AN INCENTIVE AWARD SYSTEM BY APPROPRIATE REGULATION OF THE SECRETARY OF THE ARMY. SECTION 709 OF TITLE 32, UNITED STATES CODE, SO FAR AS HERE PERTINENT PROVIDES:

(A) UNDER SUCH REGULATIONS AS THE SECRETARY OF THE ARMY MAY PRESCRIBE, FUNDS ALLOTTED BY HIM FOR THE ARMY NATIONAL GUARD MAY BE SPENT FOR THE COMPENSATION OF COMPETENT PERSONS TO CARE FOR MATERIAL, ARMAMENT, AND EQUIPMENT OF THE ARMY NATIONAL GUARD.

(E) FUNDS APPROPRIATED BY CONGRESS FOR THE NATIONAL GUARD ARE IN ADDITION TO FUNDS APPROPRIATED BY THE SEVERAL STATES AND TERRITORIES, PUERTO RICO, THE CANAL ZONE, AND THE DISTRICT OF COLUMBIA FOR THE NATIONAL GUARD, AND ARE AVAILABLE FOR THE HIRE OF CARETAKERS AND CLERKS.

(F) THE SECRETARY CONCERNED SHALL FIX THE SALARIES OF CLERKS AND CARETAKERS AUTHORIZED TO BE EMPLOYED UNDER THIS SECTION, AND SHALL DESIGNATE THE PERSON TO EMPLOY THEM.

IN 27 COMP. DEC. 344 ( OCTOBER 12, 1920), INVOLVING SECTION 90 OF THE NATIONAL DEFENSE ACT, AS AMENDED, A STATUTORY SOURCE OF THE PRESENT CODE SECTION 709, WE HELD THAT THE SECRETARY OF WAR, IN FIXING THE RATE OF COMPENSATION TO BE PAID CARETAKERS, MAY PRESCRIBE SUCH REASONABLE REGULATIONS AS HE SHALL DEEM PROPER RELATIVE TO PAY FOR HOLIDAYS, VACATIONS, AND SICK LEAVE.

AND IN A DECISION OF OCTOBER 23, 1950, 30 COMP. GEN. 166, 168, APPROVING A REGULATION AUTHORIZING PAYMENT FOR LEAVE NOT TAKEN WHEN THE SERVICES OF A CARETAKER ARE TERMINATED BY DEATH OR OTHERWISE, WE SAID:

* * * WHILE THE AUTHORITY OF THE SECRETARY UNDER THE STATUTE TO FIX THE COMPENSATION OF NATIONAL GUARD CARETAKERS HAS NOT CHANGED, THE ELEMENTS COMPRISING SUCH COMPENSATION ARE NOT STATIC UNDER THE STATUTE BUT PROPERLY MAY BE VARIED WITH CHANGING CONCEPTS OF APPROPRIATE COMPENSATION RECOGNIZED BY LAW.

AS, IN THE LIGHT OF THE GOVERNMENT EMPLOYEES' INCENTIVE AWARDS ACT, PREVIOUSLY REFERRED TO, AN AWARD IN CONNECTION WITH OR RELATED TO EMPLOYMENT MAY REASONABLY BE CONSIDERED AN ELEMENT OF COMPENSATION, WE DEEM IT WITHIN THE AUTHORITY GRANTED BY SECTION 709 FOR THE SECRETARY OF THE ARMY TO ESTABLISH, BY REGULATION, AN INCENTIVE AWARDS PROGRAM FOR THE FULL-TIME CIVILIAN CARETAKERS AND CLERKS OF THE ARMY NATIONAL GUARD OF THE STATES AND TERRITORIES WHO ARE EMPLOYED PURSUANT TO THE SECTION, USING THE FUNDS APPROPRIATED FOR THEIR COMPENSATION TO FINANCE THE PROGRAM. SEE 33 COMP. GEN. 128.