B-14983, FEBRUARY 27, 1941, 20 COMP. GEN. 488

B-14983: Feb 27, 1941

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OFFICERS AND EMPLOYEES - PRIVATE EMPLOYMENT DURING ANNUAL LEAVE AND FURLOUGH WITHOUT PAY THE GENERAL ACCOUNTING OFFICE IS WITHOUT JURISDICTION TO DETERMINE WHAT CONSTITUTES A VIOLATION OF SECTION 113 OF THE CRIMINAL CODE RELATIVE TO RECEIPT BY OFFICERS AND CLERKS OF THE UNITED STATES OF COMPENSATION FOR SERVICES RENDERED TO ANY PERSON IN CONNECTION WITH ANY CONTRACT. 1941: I HAVE YOUR LETTER OF FEBRUARY 12. AS FOLLOWS: IT HAS COME TO THE ATTENTION OF MY OFFICE THAT CERTAIN OF THE EMPLOYEES OF THE PUBLIC WORKS ADMINISTRATION WHO HAVE BEEN INVOLUNTARILY FURLOUGHED BECAUSE OF A NECESSARY REDUCTION IN FORCE MAY HAVE ACCEPTED EMPLOYMENT WITH PRIVATE COMPANIES HAVING CONTRACTS WITH THE GOVERNMENT FOR THE CONSTRUCTION OF DEFENSE PROJECTS.

B-14983, FEBRUARY 27, 1941, 20 COMP. GEN. 488

GENERAL ACCOUNTING OFFICE - JURISDICTION - CRIMINAL CODE VIOLATIONS; OFFICERS AND EMPLOYEES - PRIVATE EMPLOYMENT DURING ANNUAL LEAVE AND FURLOUGH WITHOUT PAY THE GENERAL ACCOUNTING OFFICE IS WITHOUT JURISDICTION TO DETERMINE WHAT CONSTITUTES A VIOLATION OF SECTION 113 OF THE CRIMINAL CODE RELATIVE TO RECEIPT BY OFFICERS AND CLERKS OF THE UNITED STATES OF COMPENSATION FOR SERVICES RENDERED TO ANY PERSON IN CONNECTION WITH ANY CONTRACT, CLAIM, ETC., IN WHICH THE UNITED STATES HAS AN INTEREST. A FEDERAL EMPLOYEE MAY BE PAID THE COMPENSATION OF HIS POSITION DURING A PERIOD OF ANNUAL LEAVE EVEN THOUGH DURING SUCH PERIOD HE WORKED FOR AND RECEIVED COMPENSATION FROM A PRIVATE EMPLOYER ENGAGED ON WORK UNDER A CONTRACT WITH THE GOVERNMENT, PROVIDED THE SALARY IN THE PRIVATE EMPLOYMENT DOES NOT CONSTITUTE A CONTRIBUTION TOWARD FEDERAL SALARY IN CONTRAVENTION OF THE ACT OF MARCH 3, 1917. THE ACCEPTANCE OF PRIVATE EMPLOYMENT BY A FEDERAL EMPLOYEE DURING A PERIOD OF FURLOUGH WITHOUT PAY DOES NOT AUTOMATICALLY TERMINATE HIS FURLOUGH STATUS.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORKS ADMINISTRATOR, FEBRUARY 27, 1941:

I HAVE YOUR LETTER OF FEBRUARY 12, 1941, AS FOLLOWS:

IT HAS COME TO THE ATTENTION OF MY OFFICE THAT CERTAIN OF THE EMPLOYEES OF THE PUBLIC WORKS ADMINISTRATION WHO HAVE BEEN INVOLUNTARILY FURLOUGHED BECAUSE OF A NECESSARY REDUCTION IN FORCE MAY HAVE ACCEPTED EMPLOYMENT WITH PRIVATE COMPANIES HAVING CONTRACTS WITH THE GOVERNMENT FOR THE CONSTRUCTION OF DEFENSE PROJECTS. IN AT LEAST ONE INSTANCE IT APPEARS THAT SUCH EMPLOYMENT WAS ACCEPTED BY A FURLOUGHED EMPLOYEE PRIOR TO THE EXHAUSTION OF HIS ACCUMULATED AND ACCRUED ANNUAL LEAVE.

SECTION 113 OF THE CRIMINAL CODE ( FED. CODE ANN., TITLE 18, SECTION 203) PROVIDES:

"WHOEVER * * * BEING THE HEAD OF A DEPARTMENT, OR OTHER OFFICER OR CLERK IN THE EMPLOY OF THE UNITED STATES, SHALL, DIRECTLY OR INDIRECTLY, RECEIVE, OR AGREE TO RECEIVE, ANY COMPENSATION WHATEVER FOR ANY SERVICES RENDERED OR TO BE RENDERED TO ANY PERSON, EITHER BY HIMSELF OR ANOTHER, IN RELATION TO ANY PROCEEDING, CONTRACT, CLAIM, CONTROVERSY, CHARGE, ACCUSATION, ARREST, OR OTHER MATTER OR THING IN WHICH THE UNITED STATES IS A PARTY OR DIRECTLY OR INDIRECTLY INTERESTED, BEFORE ANY DEPARTMENT, COURT MARTIAL, BUREAU, OFFICER, OR ANY CIVIL, MILITARY, OR NAVAL COMMISSION WHATEVER, SHALL BE FINED NOT MORE THAN $10,000 AND IMPRISONED NOT MORE THAN TWO YEARS; AND SHALL MOREOVER, THEREAFTER BE INCAPABLE OF HOLDING ANY OFFICE OF HONOR, TRUST, OR PROFIT UNDER THE GOVERNMENT OF THE UNITED STATES.'

THE QUESTION ARISES AS TO WHETHER AN EMPLOYEE ON INVOLUNTARY FURLOUGH IS AN "OFFICER OR CLERK IN THE EMPLOY OF THE UNITED STATES" WITHIN THE MEANING OF THE ABOVE CITED STATUTE, AND YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT APPROPRIATED FUNDS ARE LEGALLY AVAILABLE TO PAY FOR THE ANNUAL LEAVE OF SUCH FURLOUGHED EMPLOYEE AFTER HE HAS ACCEPTED EMPLOYMENT WITH A COMPANY HOLDING A CONTRACT WITH THE UNITED STATES; AND ALSO, IN CASES WHERE THE ANNUAL LEAVE HAS BEEN EXHAUSTED IF THE ACCEPTANCE OF SUCH EMPLOYMENT AUTOMATICALLY TERMINATES A FURLOUGH WITHOUT PAY STATUS.

IT IS NOT WITHIN THE JURISDICTION OF THIS OFFICE TO DETERMINE WHAT DOES OR DOES NOT CONSTITUTE A VIOLATION OF THE LAW QUOTED IN YOUR LETTER. HOWEVER, YOUR ATTENTION IS INVITED TO 14 OP. ATTY. GEN. 482. COMPARE 4 COMP. GEN. 925; 16 ID. 127. ALSO, SEE, GENERALLY, 16 COMP. GEN. 613; 17 ID. 123; 20 ID. 46.

THERE IS KNOWN NO LAW OR REGULATION PROHIBITING PAYMENT OF THE COMPENSATION OF A FEDERAL POSITION TO THE INCUMBENT THEREOF FOR A PERIOD OF AUTHORIZED ANNUAL LEAVE OF ABSENCE WITH PAY SOLELY BECAUSE THE EMPLOYEE DURING SUCH PERIOD WORKED FOR, AND RECEIVED COMPENSATION FROM, A PRIVATE EMPLOYER, EVEN THOUGH THE PRIVATE EMPLOYER WAS ENGAGED ON WORK UNDER A CONTRACT WITH THE GOVERNMENT, PROVIDED THE SALARY IN THE PRIVATE EMPLOYMENT DOES NOT CONSTITUTE A CONTRIBUTION TOWARD THE FEDERAL SALARY IN CONTRAVENTION OF THE ACT OF MARCH 3, 1917, 39 STAT. 1106 (5 U.S.C. 66).

ANSWERING YOUR QUESTIONS SPECIFICALLY, YOU ARE ADVISED THAT APPROPRIATED FUNDS, OTHERWISE AVAILABLE THEREFOR, LEGALLY MAY BE USED TO PAY THE SALARY, DURING AUTHORIZED ANNUAL LEAVE, OF A FURLOUGHED EMPLOYEE AFTER HE HAS ACCEPTED EMPLOYMENT WITH A COMPANY HOLDING A CONTRACT WITH THE UNITED STATES; AND THAT THE ACCEPTANCE OF SUCH EMPLOYMENT DOES NOT AUTOMATICALLY TERMINATE A FURLOUGH WITHOUT PAY STATUS. COMPARE 12 COMP. GEN. 403; 13 ID. 14; ID. 27; 18 ID. 893, 894; 20 ID. 335.