B-137899, DECEMBER 2, 1958, 38 COMP. GEN. 404

B-137899, DECEMBER 2, 1958, 38 COMP. GEN. 404

CIVILIAN PERSONNEL - COMPENSATION IN LIEU OF PREMIUM PAY - DURING TRAINING PROGRAMS ADDITIONAL ANNUAL COMPENSATION IN LIEU OF PREMIUM PAY WHICH IS AUTHORIZED UNDER 5 U.S.C. 926 AND RECEIVED BY EMPLOYEES WHO ARE TO PARTICIPATE IN TRAINING PROGRAMS UNDER THE GOVERNMENT EMPLOYEES TRAINING ACT IS CONSIDERED A TYPE OF PAY IN LIEU OF OVERTIME, HOLIDAY, AND NIGHT DIFFERENTIAL WITHIN THE PROHIBITION IN SECTION 10 OF THE ACT, 5 U.S.C. 2309, AND UNLESS THE PRESIDENT HAS MADE AN EXCEPTION UNDER AUTHORITY IN SECTION 4, 5 U.S.C. 2303, SUCH ADDITIONAL COMPENSATION MAY NOT BE PAID DURING TRAINING PROGRAMS; HOWEVER, WITH RESPECT TO EMPLOYEES WHO WERE IN RECEIPT OF ADDITIONAL COMPENSATION AND WERE PARTICIPATING IN PROGRAMS PRIOR TO JULY 7, 1958--- THE DATE THE TRAINING ACT WAS APPROVED--- NO OBJECTION WILL BE MADE TO THE CONTINUED PAYMENT UNTIL PROGRAMS ARE ESTABLISHED UNDER THE ACT.

TO THE ATTORNEY GENERAL, DECEMBER 2, 1958:

THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL'S LETTERS OF NOVEMBER 7, AND NOVEMBER 20, 1958, REFERENCE A7, REQUEST OUR DECISION WHETHER ADDITIONAL ANNUAL COMPENSATION MAY BE PAID TO DEPUTY UNITED STATES MARSHALS PARTICIPATING IN TRAINING COURSES UNDER THE GOVERNMENT EMPLOYEES TRAINING ACT, PUBLIC LAW 85-507, APPROVED JULY 7, 1958, 5 U.S.C. 2301 NOTE, NOTWITHSTANDING THE PROHIBITION OF SECTION 10 OF THAT ACT, 5 U.S.C. 2309.

IN OUR DECISION OF NOVEMBER 17, 1958, 38 COMP. GEN. 363, RENDERED ON THE BASIS OF A REQUEST FOR RECONSIDERATION AND ADDITIONAL INFORMATION FURNISHED, WE MODIFIED OUR EARLIER DECISION OF OCTOBER 1, 38 COMP. GEN. 262, REFERRED TO IN THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL'S LETTERS, BY CONCURRING IN THE VIEW THAT THE PRESIDENT, UNDER AUTHORITY OF SECTION 4 OF THE TRAINING ACT, 5 U.S.C. 2303, MAY EXCEPT ANY EMPLOYEE AND GROUP OF EMPLOYEES FROM THE LANGUAGE IN SECTION 10 PROHIBITING PAYMENT OF OVERTIME, HOLIDAY, AND NIGHT DIFFERENTIAL PAY FOR TIME SPENT IN TRAINING.

IN NEITHER DECISION DID WE CONSIDER A DISTINCTION BETWEEN THE OVERTIME, HOLIDAY, AND NIGHT DIFFERENTIAL PAY MENTIONED IN THE TRAINING ACT, AND ADDITIONAL ANNUAL COMPENSATION IN LIEU OF PREMIUM PAY. THE LATTER IS AUTHORIZED BY SECTION 208 (A) OF PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954, WHICH AMENDS THE FEDERAL EMPLOYEES PAY ACT OF 1945 BY ADDING SECTION 401, 5 U.S.C. 926. SECTION 401/2) 5 U.S.C. 926/2), READS IN PART AS FOLLOWS:

(2) ANY OFFICER OR EMPLOYEE IN A POSITION IN WHICH THE HOURS OF DUTY CANNOT BE CONTROLLED ADMINISTRATIVELY, AND WHICH REQUIRES SUBSTANTIAL AMOUNTS OF IRREGULAR, UNSCHEDULED, OVERTIME DUTY AND DUTY AT NIGHT AND ON HOLIDAYS WITH THE OFFICER OR EMPLOYEE GENERALLY BEING RESPONSIBLE FOR RECOGNIZING, WITHOUT SUPERVISION, CIRCUMSTANCES WHICH REQUIRE HIM TO REMAIN ON DUTY, SHALL RECEIVE PREMIUM COMPENSATION FOR SUCH DUTY ON AN ANNUAL BASIS IN LIEU OF PREMIUM COMPENSATION PROVIDED BY ANY OTHER PROVISIONS OF THIS ACT, EXCEPT FOR REGULARLY SCHEDULED OVERTIME DUTY. * *

WHILE THE TWO TYPES OF PAYMENT MIGHT BE DISTINGUISHED, ADDITIONAL ANNUAL COMPENSATION IS BY STATUTE PREMIUM PAY IN LIEU OF OVERTIME, HOLIDAY, AND NIGHT DIFFERENTIAL PAY OTHERWISE AUTHORIZED BY LAW. THE TWO METHODS OF COMPENSATION ARE DESIGNED TO ACCOMPLISH THE SAME PURPOSE AND IT WOULD BE DIFFICULT TO CONCLUDE THAT ADDITIONAL ANNUAL COMPENSATION IS NOT WITHIN THE PURVIEW OF THE PROHIBITION IN SECTION 10 OF THE TRAINING ACT.

THEREFORE, WE HOLD THAT ADDITIONAL ANNUAL COMPENSATION MAY NOT BE PAID TO EMPLOYEES FOR TIME SPENT IN COURSES OF TRAINING ESTABLISHED UNDER PROGRAMS INITIATED PURSUANT TO PUBLIC LAW 85-507, UNLESS AN EXCEPTION IS MADE BY THE PRESIDENT.

IN CONSIDERING THE FACTS PRESENTED IN THE LETTERS FROM THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, IT CLEARLY IS EVIDENT THAT THE PROGRAM UNDER WHICH THE TRAINING OF DEPUTY UNITED STATES MARSHALS PRESENTLY IS BEING CONDUCTED WAS ESTABLISHED AND WAS IN EFFECT IMMEDIATELY PRIOR TO THE ENACTMENT OF THE GOVERNMENT EMPLOYEES TRAINING ACT. THE QUESTION WHETHER THE EMPLOYEES CONCERNED NOW MAY BE PAID ADDITIONAL ANNUAL COMPENSATION WOULD THEREFORE BE FOR CONSIDERATION UNDER SECTION 20 OF THAT ACT, 5 U.S.C. 2301 NOTE.

SECTION 20 IS DESIGNED TO PERMIT AN ORDERLY TRANSITION FROM PRE EXISTING PROGRAMS OF TRAINING TO PROGRAMS ESTABLISHED UNDER AUTHORITY OF THE TRAINING ACT AND IT AUTHORIZED THE CONTINUATION OF PRE-EXISTING PROGRAMS FOR THE TIME LIMITED IN THAT SECTION WITHOUT REGARD TO ANY PROVISIONS OF THE ACT. WE WOULD NOT, THEREFORE, OBJECT TO THE CONTINUED PAYMENT OF ADDITIONAL ANNUAL COMPENSATION UNTIL SUCH TIME AS YOU ESTABLISH OR ARE REQUIRED TO ESTABLISH PROGRAMS OF TRAINING UNDER THE ACT.