B-14007, DECEMBER 30, 1940, 20 COMP. GEN. 335

B-14007, DECEMBER 30, 1940, 20 COMP. GEN. 335

COMPENSATION - SEASONAL EMPLOYEES IN OTHER POSITIONS BETWEEN SEASONS FOREST GUARDS WHO HAVE CONTINUING APPOINTMENTS BUT WHOSE ACTUAL EMPLOYMENT IN THAT CAPACITY IS SEASONAL MAY BE CONSIDERED AS ON INVOLUNTARY FURLOUGH WITHOUT PAY DURING PERIODS BETWEEN SEASONS OF EMPLOYMENT (EXCEPT ON SUCH DAYS AS THEY ARE INTERMITTENTLY EMPLOYED AS GUARDS) AND THEIR EMPLOYMENT, DURING SUCH PERIODS, IN SEPARATE AND DISTINCT POSITIONS IN THE SAME OR DIFFERENT DEPARTMENTS WOULD NOT CONTRAVENE THE DUAL COMPENSATION STATUTES IF NOT MORE THAN ONE SALARY BE PAID FOR ANY DAY. FOREST GUARDS WHOSE ACTUAL SERVICE IN THAT CAPACITY UNDER CONTINUING APPOINTMENTS IS SEASONAL MAY BE TEMPORARILY EMPLOYED, DURING PERIODS BETWEEN THE EMPLOYMENT SEASONS, IN SEPARATE AND DISTINCT POSITIONS HAVING CLASSIFIED RATES EITHER ON THE BASIS OF PER ANNUM RATE OR THE EQUIVALENT PER DIEM OR HOURLY RATE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, DECEMBER 30, 1940:

I HAVE YOUR LETTER OF DECEMBER 13, 1940, AS FOLLOWS:

REFERENCE IS MADE TO DECISION 18 COMP. GEN. 1010, HOLDING THAT NO PAYMENT OF COMPENSATION IS IN CONTRAVENTION OF THE DUAL COMPENSATION ACT UNLESS THERE BE INVOLVED PAYMENTS OF MORE THAN ONE SALARY DURING THE SAME PERIOD OF TIME; ALSO, 15 COMP. GEN. 751 TO THE EFFECT THAT THE DUAL COMPENSATION ACT DOES NOT APPLY TO PART-TIME OR INTERMITTENT EMPLOYEES "PERFORMING SERVICES FOR DIFFERENT GOVERNMENT AGENCIES ON DIFFERENT DAYS OR AT DIFFERENT TIMES IF PAYMENT IS ON A PER DIEM OR FEE BASIS FOR TIME ACTUALLY EMPLOYED," QUOTING FROM THE SYLLABUS.

WHILE THE FIRST CITED DECISION SUGGESTS THAT AN EMPLOYEE WHOSE SERVICE IS INTERMITTENT MAY BE EMPLOYED IN A DIFFERENT CAPACITY ON DAYS DURING WHICH HE IS NOT EMPLOYED IN THE INTERMITTENT POSITION, THE SECOND CITED DECISION INDICATES THAT THIS RULE WOULD NOT APPLY IF THE INTERMITTENT EMPLOYMENT AND THE SECOND EMPLOYMENT WERE IN THE SAME BUREAU. ON THE NATIONAL FORESTS THE EMPLOYMENT OF FOREST GUARDS, WITH SOME EXCEPTIONS IS CONTINUOUS DURING THE FIRE SEASON BUT INTERMITTENT NEED FOR GUARD SERVICES MAY ARISE PRIOR TO OR FOLLOWING THE MAJOR FIRE SEASON. BECAUSE OF THIS SITUATION FOREST GUARDS HAVE BEEN APPOINTED AT A PER ANNUM RATE APPLICABLE TO THE PERIOD OF CONTINUOUS EMPLOYMENT WITH A CORRESPONDING PER DIEM RATE FOR INTERMITTENT EMPLOYMENT BETWEEN FIRE SEASONS. (SEE DEPARTMENT LETTER OF AUGUST 20, QUOTED IN DECISION B-11963, DATED SEPTEMBER 4, 1940). MANY CASES THERE IS NO INTERMITTENT EMPLOYMENT AS GUARD BETWEEN SEASONS AND THE GUARDS ARE ESSENTIALLY IN FURLOUGH STATUS, BUT WITH THE UNDERSTANDING THAT THEY MAY BE CALLED TO DUTY SHOULD THEIR SERVICES BE NEEDED, THE PER DIEM RATE FOR WHICH IS FIXED BY THE APPOINTMENT.

MANY OF THE FOREST GUARD POSITIONS PROVIDE CONTINUOUS EMPLOYMENT ONLY FROM FOUR TO SIX MONTHS AND THIS IS DURING THE PERIOD OF THE YEAR WHEN EMPLOYMENT IS MOST READILY OBTAINABLE ELSEWHERE. CONSEQUENTLY, TO MAKE THE GUARD POSITIONS AS ATTRACTIVE AS POSSIBLE TO COMPETENT AND DEPENDABLE MEN FOREST SERVICE IN THE PAST (PRIOR TO THE FORMAL APPOINTMENT PROCEDURE INCIDENT TO TRANSFER OF GUARD POSITIONS TO THE CLASSIFIED SERVICE) HAS EMPLOYED THE GUARD PERSONNEL ON MISCELLANEOUS WORK WHENEVER POSSIBLE, SUCH AS LABORER, STRAW BOSS, ETC; IN CONNECTION WITH CONSTRUCTION OR MAINTENANCE OF IMPROVEMENTS, REFORESTATION, AND OTHER ACTIVITIES. SINCE THESE MEN ARE NOW UNDER CONTINUING APPOINTMENT (FOR CONTINUOUS AND INTERMITTENT SERVICE) QUESTION ARISES WHETHER, WITHOUT ISSUANCE OF A FORMAL NOTICE OF FURLOUGH FROM THE GUARD POSITION, THEY MAY BE EMPLOYED ON MISCELLANEOUS JOBS AT PREVAILING HOURLY OR PER DIEM WAGE RATES BETWEEN FIRE SEASONS. THE WAGES FOR THE MISCELLANEOUS JOBS USUALLY ARE AT RATES EITHER LOWER OR HIGHER THAN THE GUARD SCALE AND EMPLOYMENT FOR SUBSTANTIAL PERIODS AT THE GUARD SALARY MAY BE UNFAIR EITHER TO THE GOVERNMENT OR TO THE MEN. IF THE GUARDS COULD BE CONSIDERED AS IN FURLOUGH SERVICE BETWEEN FIRE SEASONS, EXCEPT ON SUCH DAYS AS THEY ARE INTERMITTENTLY EMPLOYED AS GUARDS, SO AS TO PERMIT THEIR EMPLOYMENT ON OTHER WORK WHEN AVAILABLE, IT WOULD MAKE POSSIBLE A MORE SATISFACTORY EMPLOYMENT PLAN WITHOUT ISSUANCE OF FURLOUGH AND RESTORATION NOTICES WITH RESPECT TO THE GUARD POSITION.

I SHOULD APPRECIATE YOUR DECISION WHETHER UNDER THE APPOINTMENTS ABOVE MENTIONED THE PERIODS BETWEEN THE CONTINUOUS-SERVICE FIRE SEASONS MAY BE CONSIDERED AS FURLOUGH PERIODS AND EMPLOYMENT PERMITTED IN OTHER JOBS SUBJECT TO LOCAL WAGE SCALES AT PER DIEM OR PER HOUR RATES APPLICABLE TO THE PARTICULAR JOB TO WHICH ASSIGNED.

ASSUMING AN AFFIRMATIVE ANSWER TO THE ABOVE QUESTION, FURTHER DECISION IS DESIRED WHETHER BETWEEN-SEASON TEMPORARY EMPLOYMENT MAY BE PERMITTED SUBJECT TO CIVIL SERVICE REQUIREMENTS, IN POSITIONS HAVING CLASSIFIED RATES EITHER ON THE BASIS OF (A) THE PER ANNUM RATE OR (B) THE EQUIVALENTPER DIEM OR HOURLY RATE.

THE DECISION OF APRIL 23, 1937, 16 COMP. GEN. 951, HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE DUAL COMPENSATION STATUTES--- SECTION 1765, REVISED STATUTES; SECTION 2, ACT OF JULY 31, 1894, 28 STAT. 205; AND SECTION 6, ACT OF MAY 10, 1916, AS AMENDED BY ACT OF AUGUST 29, 1916, 39 STAT. 120, 582-- DO NOT PRECLUDE AN EMPLOYEE FROM OCCUPYING A TEMPORARY POSITION WHILE ON INVOLUNTARY FURLOUGH WITHOUT PAY, AS DISTINGUISHED FROM VOLUNTARY FURLOUGH OR LEAVES OF ABSENCE WITHOUT PAY, FROM A PERMANENT STATUS EITHER IN THE SAME OR DIFFERENT DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT, REGARDLESS OF THE INDIVIDUAL OR TOTAL AMOUNT OF THE COMPENSATION ATTACHED TO THE POSITIONS INVOLVED, AND, TERMINATION OF THE FURLOUGH STATUS IN SUCH CASES IS NOT REQUIRED. 16 COMP. GEN. 720, AMPLIFIED.

IN DECISION OF JUNE 30, 1939, 18 COMP. GEN. 1010, CITED IN YOUR LETTER, SUPRA, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

NO PAYMENT OF COMPENSATION MAY BE REGARDED AS IN CONTRAVENTION OF THE DUAL COMPENSATION ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582--- PROHIBITING PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM--- UNLESS THERE BE INVOLVED PAYMENTS OF MORE THAN ONE SALARY DURING THE SAME PERIOD OF TIME, THE COMBINED RATE OF WHICH WAS MORE THAN $2,000 PER ANNUM.

THE PERIOD DURING WHICH SEASONAL EMPLOYEES ARE NOT REQUIRED TO WORK MAY WELL BE VIEWED AS THE EQUIVALENT OF AN INVOLUNTARY FURLOUGH WITHOUT PAY WITHIN THE MEANING OF THE RULE FIRST ABOVE STATED. HENCE, THERE WOULD BE NO LEGAL OBJECTION TO EMPLOYMENT OF SEASONAL PERSONNEL IN OTHER SEPARATE AND DISTINCT POSITIONS OR EMPLOYMENTS IN THE SAME OR DIFFERENT DEPARTMENTS --- WITH THE APPROVAL, OF COURSE, OF THE CIVIL SERVICE COMMISSION WHERE SUCH OTHER POSITIONS OR EMPLOYMENTS ARE SUBJECT TO THE CIVIL SERVICE LAWS AND REGULATIONS. IF NOT MORE THAN ONE SALARY BE PAID FOR ANY DAY, THE EMPLOYMENT PLAN PROPOSED IN THE THIRD AND FOURTH PARAGRAPHS OF YOUR LETTER WOULD NOT APPEAR TO CONTRAVENE THE DUAL COMPENSATION STATUTES.

ACCORDINGLY, BOTH QUESTIONS (A) AND (B), IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, ARE ANSWERED IN THE AFFIRMATIVE.