B-160280, NOV. 30, 1966

B-160280: Nov 30, 1966

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THE RATES ARE REQUIRED TO CONFORM WITH SPECIFIED GENERAL SCHEDULE GRADES (GS). THE QUESTION PRESENTED BY THE ASSISTANT DIRECTOR REGARDING THE APPOINTMENT OF INTERMITTENTLY EMPLOYED SECRETARIES TO JUDGES IS: "SHOULD ONLY THE TOTAL DOLLAR AMOUNT PAID TO SUCH A SECRETARY BE CHARGED AGAINST THE STATUTORY AGGREGATE LIMITATION. THE PROBLEM IS. BOOK V-27) AN EMPLOYEE IS DEFINED AS: "/B) INTERMITTENT IF EMPLOYED ON LESS THAN A FULL TIME BASIS WITH NO PRESCHEDULED REGULAR TOUR OF DUTY.'. INTERMITTENT EMPLOYMENT THUS IS DISTINGUISHED FROM FULL-TIME AND PART- TIME EMPLOYMENT AND IN OUR VIEW THE DEFINITION REASONABLY MAY BE APPLIED TO THE JUDICIAL BRANCH. THE COMPENSATION RATES OF SECRETARIES AND LAW CLERKS TO JUDGES ARE ASSIMILATED TO CERTAIN GRADES (GS) OF THE GENERAL SCHEDULE.

B-160280, NOV. 30, 1966

TO DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS:

WE REFER TO YOUR ASSISTANT DIRECTOR'S LETTER OF OCTOBER 19, 1966, CONCERNING THE LIMITATION IN THE APPROPRIATION ACT FOR THE JUDICIARY, 1967, APPROVED NOVEMBER 8, 1966, PUB.L. 89-797, FOR SALARIES OF SUPPORTING PERSONNEL.

THE ASSISTANT DIRECTOR POINTS OUT THAT THE ANNUAL APPROPRIATION ACTS FOR THE JUDICIARY ESTABLISH THE GRADES AND SALARIES WHICH MAY BE PAID LAW CLERKS AND SECRETARIES OF FEDERAL CIRCUIT AND DISTRICT JUDGES. THE RATES ARE REQUIRED TO CONFORM WITH SPECIFIED GENERAL SCHEDULE GRADES (GS).

THE APPROPRIATION SO FAR AS IT RELATES TO THE MONETARY LIMITATION, READS IN PART AS FOLLOWS:

"* * * PROVIDED FURTHER, THAT (EXCLUSIVE OF STEP INCREASES CORRESPONDING WITH THOSE PROVIDED FOR BY TITLE VII OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, AND OF COMPENSATION PAID FOR TEMPORARY ASSISTANCE NEEDED BECAUSE OF AN EMERGENCY) THE AGGREGATE SALARIES PAID TO SECRETARIES AND LAW CLERKS APPOINTED BY ONE JUDGE SHALL NOT EXCEED $18,803 PER ANNUM, EXCEPT IN THE CASE OF THE CHIEF JUDGE OF EACH CIRCUIT AND THE CHIEF JUDGE OF EACH DISTRICT COURT HAVING FIVE OR MORE DISTRICT JUDGES, IN WHICH CASE THE AGGREGATE SALARIES SHALL NOT EXCEED $25,072 PER ANNUM.'

THE QUESTION PRESENTED BY THE ASSISTANT DIRECTOR REGARDING THE APPOINTMENT OF INTERMITTENTLY EMPLOYED SECRETARIES TO JUDGES IS:

"SHOULD ONLY THE TOTAL DOLLAR AMOUNT PAID TO SUCH A SECRETARY BE CHARGED AGAINST THE STATUTORY AGGREGATE LIMITATION, OR MUST THE ANNUAL RATE OF COMPENSATION BE CHARGED?

CONCERNING THAT QUESTION THE ASSISTANT DIRECTOR COMMENTS, AS FOLLOWS:

"THIS OFFICE HAS BEEN UNABLE TO FIND A PRECEDENT THAT MAY BE USED IN ANSWERING THE QUESTION. THE PROBLEM IS, OF COURSE, THAT USING THE TOTAL DOLLAR AMOUNT PAID WOULD KEEP THE AGGREGATE SALARIES WITHIN THE LIMITATION IN THE APPROPRIATION ACT LANGUAGE, WHEREAS USING AN ANNUAL RATE OF COMPENSATION WOULD BRING THE AGGREGATE OVER THE LIMITATION.'

IN THE UNITED STATES CIVIL SERVICE REGULATION (FPM SUPPLEMENT296-31, BOOK V-27) AN EMPLOYEE IS DEFINED AS:

"/B) INTERMITTENT IF EMPLOYED ON LESS THAN A FULL TIME BASIS WITH NO PRESCHEDULED REGULAR TOUR OF DUTY.'

INTERMITTENT EMPLOYMENT THUS IS DISTINGUISHED FROM FULL-TIME AND PART- TIME EMPLOYMENT AND IN OUR VIEW THE DEFINITION REASONABLY MAY BE APPLIED TO THE JUDICIAL BRANCH.

WE NOTE THAT THE PROVISO IN THE APPROPRIATION ACT USES THE TERM "AGGREGATE SALARIES" WHICH, IN A TECHNICAL SENSE, COULD BE INTERPRETED TO EXCLUDE OTHER KINDS OF COMPENSATION SUCH AS DAILY OR HOURLY WAGES. SEE 37 COMP. GEN. 64. HOWEVER, THE COMPENSATION RATES OF SECRETARIES AND LAW CLERKS TO JUDGES ARE ASSIMILATED TO CERTAIN GRADES (GS) OF THE GENERAL SCHEDULE.

UNDER 5 U.S.C. 5504 (B) (FORMERLY 5 U.S.C. 944C), THE SO-CALLED PER ANNUM RATES OF THE GENERAL SCHEDULE ARE DEEMED TO BE PAYMENT FOR EMPLOYMENT DURING 52 BASIC ADMINISTRATIVE WORKWEEKS OF 40 HOURS. FURTHER, THAT SECTION PRESCRIBES THE FORMULA FOR DETERMINING THE DAILY AND HOURLY RATES EQUIVALENT TO THE SO-CALLED PER ANNUM RATES. THUS, THE GENERAL SCHEDULE RATES NO LONGER MUST BE REGARDED AS SALARY COVERING A TRUE ANNUAL PERIOD.

WE ARE AWARE OF NO LAW OR REGULATION WHICH PRECLUDES JUDGES FROM HIRING SECRETARIES OR LAW CLERKS COMPENSATED ON AN INTERMITTENT (WHEN ACTUALLY- EMPLOYED) BASIS. FOR ADMINISTRATIVE CONTROL PURPOSES AND SO THAT ALL PARTIES TO THE TRANSACTION MAY BE INFORMED OF THE LIMITED NATURE OF THE EMPLOYMENT THE EMPLOYMENT DOCUMENTS SHOULD SHOW THE MAXIMUM DAYS OR HOURS THE INTERMITTENT SECRETARY MAY BE EMPLOYED, THE DAILY OR HOURLY RATE TO BE PAID AND THE ANNUAL AGGREGATE COMPENSATION THAT LAWFULLY MAY BE PAID DURING THE ANNUAL PERIOD. SUCH COMPENSATION, TOGETHER WITH THE AMOUNTS OBLIGATED ON AN ANNUAL BASIS FOR ANY FULL-TIME SECRETARY AND LAW CLERK EMPLOYED BY A JUDGE, SHOULD NOT EXCEED THE APPLICABLE APPROPRIATION ACT LIMITATION.

IN ANSWER TO THE EXPRESS QUESTION PRESENTED BY THE ASSISTANT DIRECTOR'S LETTER, ONLY THE TOTAL DOLLAR AMOUNT PAID TO SUCH AN EMPLOYEE, NOT TO EXCEED THE DOLLAR LIMITATION IN THE APPOINTMENT, SHOULD BE CHARGED AGAINST THE AGGREGATE LIMITATION IN THE APPROPRIATION ACT.