B-16883, MAY 21, 1941, 20 COMP. GEN. 803

B-16883: May 21, 1941

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- SO THAT IT IS NOT NECESSARY THAT ANY OF THE CLASSES OF PERSONNEL FOR WHOM SPECIFIC AUTHORIZATION TO BE PAID COMPENSATION AT THE RATE OF $25 PER DIEM HAS BEEN PROVIDED IN THE ACT BE DISCHARGED WHEN THEY HAVE EARNED A TOTAL OF $5. SO THAT IF A POSITION WERE IN EXISTENCE ON OR PRIOR TO THAT DATE THE INCUMBENT MAY BE PAID A SALARY IN EXCESS OF $5. REGARDLESS OF WHETHER HE WAS. OR WAS NOT. 1941: I HAVE YOUR LETTER OF MAY 15. AS FOLLOWS: THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER FROM THE PAYMASTER GENERAL OF THE NAVY. IT IS REQUESTED THAT THE FOLLOWING QUESTIONS BE REFERRED TO THE COMPTROLLER GENERAL FOR DECISION: (1) WHERE THE NAVAL APPROPRIATION ACT SPECIFICALLY AUTHORIZES THE EMPLOYMENT OF SCIENTISTS.

B-16883, MAY 21, 1941, 20 COMP. GEN. 803

APPROPRIATIONS - NAVY DEPARTMENT - COMPENSATION AND PERSONNEL LIMITATIONS THE PROVISION IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1942 PROHIBITING THE USE OF THE APPROPRIATIONS REFERRED TO THEREIN FOR ADDITIONAL POSITIONS AT RATES IN EXCESS OF $5,000 PER ANNUM ,EXCEPT IN PURSUANCE OF SPECIFIC AUTHORIZATION HEREIN OR HEREAFTER GRANTED" REQUIRES FOR A POSITION TO COME WITHIN THE STATED EXCEPTION THAT THERE BE SPECIFIC AUTHORITY FOR PAYMENT OF COMPENSATION AT RATES IN EXCESS OF THE $5,000 LIMITATION FOR EITHER AN INDIVIDUAL POSITION OR CLASS OF POSITIONS, AND GENERAL AUTHORITY TO EMPLOY PART-TIME OR INTERMITTENT EXPERTS "AT SUCH RATES OF COMPENSATION AS MAY BE CONTRACTED FOR BY AND IN THE DISCRETION OF THE SECRETARY OF THE NAVY" DOES NOT CONSTITUTE SUCH SPECIFIC AUTHORITY. THE RESTRICTION IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1942 AGAINST PAYMENT OF SALARY IN EXCESS OF $5,000 IN THE ABSENCE OF SPECIFIC AUTHORIZATION THEREFOR RELATES ONLY TO RATES--- WITH THE PER DIEM EQUIVALENT OF THE SALARY RATE OF $5,000 PER ANNUM TO BE COMPUTED BY DIVIDING $5,000 BY 360, OR $13.88--- SO THAT IT IS NOT NECESSARY THAT ANY OF THE CLASSES OF PERSONNEL FOR WHOM SPECIFIC AUTHORIZATION TO BE PAID COMPENSATION AT THE RATE OF $25 PER DIEM HAS BEEN PROVIDED IN THE ACT BE DISCHARGED WHEN THEY HAVE EARNED A TOTAL OF $5,000 DURING A YEAR. THE RESTRICTION IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1942 AS TO THE PAYMENT OF SALARIES AT RATES IN EXCESS OF $5,000 HAS APPLICATION ONLY TO "ADDITIONAL POSITIONS"--- INCLUDING EMPLOYMENT OF ALL KINDS IN THE DEPARTMENTAL AND FIELD SERVICE UNDER THE NAVY DEPARTMENT OR NAVAL ESTABLISHMENT--- CREATED AFTER MARCH 13, 1941, SO THAT IF A POSITION WERE IN EXISTENCE ON OR PRIOR TO THAT DATE THE INCUMBENT MAY BE PAID A SALARY IN EXCESS OF $5,000 PER ANNUM, REGARDLESS OF WHETHER HE WAS, OR WAS NOT, THEN IN THE SERVICE, AND EVEN THOUGH HIS SALARY HAS BEEN INCREASED SUBSEQUENT TO MARCH 13, 1941, BY REASON OF A REALLOCATION OF THE POSITION OR OTHER ADJUSTMENT AUTHORIZED BY LAW. CONTRACTS FOR PART-TIME OR INTERMITTENT EMPLOYMENT IN OR UNDER THE NAVY DEPARTMENT IN POSITIONS CREATED ON OR PRIOR TO MARCH 13, 1941, MAY BE RENEWED OR EXTENDED AFTER THAT DATE AT RATES IN EXCESS OF $5,000 PER ANNUM, NOTWITHSTANDING THE RESTRICTION IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1942 AGAINST PAYMENT OF SALARIES IN EXCESS OF $5,000 AFTER THAT DATE, REGARDLESS OF WHETHER THE NEW RATE BE HIGHER OR LOWER THAN THE RATE PREVIOUSLY PAID IN THE SAME POSITION. THE PHRASE "FUNDS ALLOTTED TO THE NAVY DEPARTMENT" CONTAINED IN THE PROVISO OF THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1942 RESTRICTING THE PAYMENT OF SALARIES IN EXCESS OF $5,000 PER ANNUM REFER TO ANY FUND ALLOTTED TO THE NAVY DEPARTMENT UNDER ANY AUTHORITY OF LAW AVAILABLE FOR THE EMPLOYMENT OF PERSONNEL. THE LIMITATION CONTAINED IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1942 ON THE TOTAL NUMBER OF CIVILIAN OFFICERS AND EMPLOYEES AUTHORIZED TO BE EMPLOYED "IN THE NAVY DEPARTMENT PROPER, AT WASHINGTON," REFERS TO THE DEPARTMENTAL SERVICE AS DISTINGUISHED FROM THE FIELD SERVICE AND WOULD BE APPLICABLE TO DEPARTMENTAL EMPLOYEES TEMPORARILY STATIONED AT ARLINGTON, VA., OR AT ANY OTHER PLACE OUTSIDE OF THE DISTRICT OF COLUMBIA.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MAY 21, 1941:

I HAVE YOUR LETTER OF MAY 15, 1941, REFERENCE L1-11) (1942) ( EN (410512) K, AS FOLLOWS:

THERE IS FORWARDED HEREWITH FOR YOUR CONSIDERATION A LETTER FROM THE PAYMASTER GENERAL OF THE NAVY, DATED MAY 12, 1941, WITH ACCOMPANYING ENDORSEMENT, REQUESTING YOUR DECISION ON THE SPECIFIC QUESTIONS SET FORTH IN PARAGRAPH 3 OF THE PAYMASTER GENERAL'S LETTER, RELATIVE TO THE APPLICABILITY OF THE LIMITATIONS ON PAYMENT OF COMPENSATION AND THE NUMBER OF CIVILIAN OFFICERS AND EMPLOYEES OF THE NAVY DEPARTMENT FOR THE FISCAL YEARS 1941 AND 1942, APPEARING IN THE LANGUAGE OF THE APPROPRIATION FOR " MISCELLANEOUS EXPENSES" AS CONTAINED IN THE NAVAL APPROPRIATION ACT, 1942, APPROVED MAY 6, 1941 ( PUBLIC LAW 48, 77TH CONGRESS).

THE LETTER, DATED MAY 12, 1941, FROM THE PAYMASTER GENERAL OF THE NAVY, TO YOU READS:

SUBJECT: REQUEST FOR DECISION OF THE COMPTROLLER GENERAL RELATIVE TO INTERPRETATION OF PROVISION IN THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1942 LIMITING THE NUMBER AND PAY OF CIVILIAN OFFICERS AND EMPLOYEES

1.THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1942, APPROVED MAY 6, 1941 ( PUBLIC, NO. 48, 77TH CONGRESS), CONTAINS THE FOLLOWING PROVISOS UNDER THE APPROPRIATION " MISCELLANEOUS EXPENSES: "

"PROVIDED, THAT NO PART OF THIS OR ANY OTHER APPROPRIATION FOR THE NAVY DEPARTMENT OR THE NAVAL ESTABLISHMENT FOR THE FISCAL YEARS 1941 AND 1942, OR OF FUNDS ALLOTTED TO THE NAVY DEPARTMENT, SHALL BE AVAILABLE AFTER MARCH 13, 1941, FOR ANY ADDITIONAL POSITIONS IN THE DISTRICT OF COLUMBIA OR ELSEWHERE AT RATES OF COMPENSATION IN EXCESS OF $5,000 PER ANNUM, EITHER ON A PER DIEM OR PER ANNUM BASIS, EXCEPT IN PURSUANCE OF SPECIFIC AUTHORIZATION HEREIN OR HEREINAFTER GRANTED: PROVIDED FURTHER, THAT NO PART OF THIS OR ANY OTHER APPROPRIATION FOR THE NAVY DEPARTMENT OR THE NAVAL ESTABLISHMENT FOR THE FISCAL YEARS 1941 AND 1942, OR OF FUNDS ALLOTTED TO THE NAVY DEPARTMENT, SHALL BE AVAILABLE FOR THE EMPLOYMENT OF A GREATER NUMBER THAN EIGHT THOUSAND SEVEN HUNDRED AND FIFTY CIVILIAN OFFICERS AND EMPLOYEES IN THE NAVY DEPARTMENT PROPER, AT WASHINGTON, EXCEPT IN PURSUANCE OF SPECIFIC APPROPRIATIONS AS TO NUMBERS HEREINAFTER PROVIDED.'

2. THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1942 GRANTS AUTHORITY TO EMPLOY EXPERTS ON A PART-TIME OR INTERMITTENT BASIS AT PER DIEM RATES OF PAY AS FOLLOWS:

"/A) MISCELLANEOUS EXPENSES.--- * * * FOR THE PART-TIME OR INTERMITTENT EMPLOYMENT IN THE DISTRICT OF COLUMBIA OR ELSEWHERE OF SUCH EXPERTS AND AT SUCH RATES OF COMPENSATION AS MAY BE CONTRACTED FOR BY AND IN THE DISCRETION OF THE SECRETARY OF THE NAVY; * * *

"/B) MAINTENANCE, BUREAU OF SHIPS.--- * * * PAYMENT OF PART-TIME OR INTERMITTENT EMPLOYMENT IN THE DISTRICT OF COLUMBIA, OR ELSEWHERE, OF SUCH SCIENTISTS AND TECHNICISTS AS MAY BE CONTRACTED FOR BY THE SECRETARY OF THE NAVY, IN HIS DISCRETION, AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM FOR ANY PERSON SO EMPLOYED, * * *

"/C) ORDNANCE AND ORDNANCE STORES, NAVY.--- * * * FOR PAYMENT OF PART- TIME OR INTERMITTENT EMPLOYMENT IN THE DISTRICT OF COLUMBIA, OR ELSEWHERE, OF SUCH SCIENTISTS AND TECHNICISTS AS MAY BE CONTRACTED FOR BY THE SECRETARY OF THE NAVY IN HIS DISCRETION AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM FOR ANY PERSON SO EMPLOYED, * * * (FOR THE FISCAL YEAR 1941 THE RATE OF PAY MAY NOT EXCEED $20 PER DIEM.)

"/D) MAINTENANCE, BUREAU OF YARDS AND DOCKS.--- * * * AND PART TIME OR INTERMITTENT EMPLOYMENT IN THE DISTRICT OF COLUMBIA, OR ELSEWHERE, OF SUCH ENGINEERS AND ARCHITECTS AS MAY BE CONTRACTED FOR BY THE SECRETARY OF THE NAVY, IN HIS DISCRETION AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM FOR ANY PERSON SO EMPLOYED. * * *

"/E) PUBLIC WORKS, BUREAU OF YARDS AND DOCKS.--- * * * FOR PART TIME AND INTERMITTENT EMPLOYMENT BY CONTRACT OF SCIENTISTS, TECHNICISTS, AND OTHER PERSONNEL * * *.

"/F) AVIATION, NAVY.--- * * * INCLUDING THE PAYMENT OF PART-TIME OR INTERMITTENT EMPLOYMENT IN THE DISTRICT OF COLUMBIA OR ELSEWHERE OF SUCH SCIENTISTS AND TECHNICISTS AS MAY BE CONTRACTED FOR BY THE SECRETARY OF THE NAVY, IN HIS DISCRETION, AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM FOR ANY PERSON SO EMPLOYED * * *"

3. IN CONNECTION WITH THE LIMITATIONS CONTAINED IN THE PROVISOS UNDER " MISCELLANEOUS XPENSES" QUOTED SUPRA, IT IS REQUESTED THAT THE FOLLOWING QUESTIONS BE REFERRED TO THE COMPTROLLER GENERAL FOR DECISION:

(1) WHERE THE NAVAL APPROPRIATION ACT SPECIFICALLY AUTHORIZES THE EMPLOYMENT OF SCIENTISTS, TECHNICISTS, ENGINEERS, AND ARCHITECTS AT A RATE OF PAY NOT EXCEEDING $25 PER DIEM MAY THE SERVICES BE CONTRACTED FOR AT RATES NOT EXCEEDING THE $25 PER DIEM, NOTWITHSTANDING THE FIRST PROVISO NOW APPEARING UNDER " MISCELLANEOUS EXPENSES?

(2) IF THE LANGUAGE DOES PERMIT THE EMPLOYMENT OF SUCH EXPERTS AT $25 PER DIEM, WILL SUCH EXPERTS HAVE TO BE DISCHARGED WHEN THEY HAVE EARNED AN ACCUMULATED TOTAL OF $5,000 PER ANNUM? (THIS WOULD APPEAR TO INVOLVE A CONSIDERATION OF THE MEANING OF THE WORDS "RATES OF COMPENSATION IN EXCESS OF $5,000 PER ANNUM.''

(3) SHOULD AN EXISTING AUTHORIZED POSITION BE REALLOCATED TO A GRADE CARRYING A HIGHER RATE OF COMPENSATION THAN $5,000 PER ANNUM, WOULD THE ABOVE PROVISO PROHIBIT THE PAYMENT OF SUCH HIGHER RATE?

(4) WHAT DOES THE PHRASE "EXCEPT IN PURSUANCE OF SPECIFIC AUTHORIZATION HEREIN OR HEREAFTER GRANTED" IMPLY? DOES THIS LANGUAGE REQUIRE THAT EACH POSITION IN EXCESS OF THE $5,000 PER ANNUM RATE, EITHER ON A PER DIEM OR PER ANNUM BASIS, MUST BE SPECIFICALLY AUTHORIZED AND APPROPRIATED FOR?

(5) WHAT IS THE EFFECT OF THE LANGUAGE OF THE FIRST PROVISO UNDER THE APPROPRIATION " MISCELLANEOUS EXPENSES" WITH RESPECT TO APPOINTMENTS TO POSITIONS AT RATES OF COMPENSATION IN EXCESS OF $5,000 PER ANNUM SUBSEQUENT TO MARCH 13, 1941, BUT PRIOR TO MAY 6, 1941, THE DATE OF APPROVAL OF THE NAVAL APPROPRIATION ACT FOR THE FISCAL YEAR 1942?

(6) IS THE LIMITATION ON THE TOTAL NUMBER OF CIVILIAN OFFICERS AND EMPLOYEES AUTHORIZED TO BE EMPLOYED AND PAID FROM AVAILABLE APPROPRIATIONS FOR THE FISCAL YEARS 1941 AND 1942 APPLICABLE TO THOSE CIVILIAN OFFICERS AND EMPLOYEES WHO MAY BE DETAILED OR ASSIGNED FOR THE PERFORMANCE OF DUTY AT PLACES OUTSIDE THE NAVY DEPARTMENT PROPER, AT WASHINGTON, D. C., THAT IS, FOR EXAMPLE, IN TEMPORARY BUILDINGS WHICH MAY BE AUTHORIZED FOR THE NAVY DEPARTMENT AT ARLINGTON, VA. ?

(7) SINCE THE WORDS "ADDITIONAL POSITIONS" ARE NOT DEFINED IN THE FIRST PROVISO UNDER THE APPROPRIATION " MISCELLANEOUS EXPENSES," DO SUCH WORDS INCLUDE ANY AND EVERY KIND OF EMPLOYMENT IN OR UNDER THE NAVY DEPARTMENT OR THE NAVAL ESTABLISHMENT?

(8) DOES THE LANGUAGE IN THE FIRST PROVISO, QUOTED SUPRA, APPLY TO OR LIMIT THE COMPENSATION PAYABLE IN THE CASE OF PART-TIME AND INTERMITTENT EMPLOYMENT OF OTHER PERSONNEL BY THE SECRETARY, NAVAL RESEARCH LABORATORY, BUREAU OF YARDS AND DOCKS OR BUREAU OF SHIPS PURSUANT TO THE AUTHORITY GRANTED UNDER THE APPROPRIATIONS " MISCELLANEOUS EXPENSES" (EARLIER THAN QUOTED LANGUAGE)," NAVAL RESEARCH LABORATORY," " PUBLIC WORKS, BUREAU OF YARDS AND DOCKS" AND " INCREASE AND REPLACEMENT OF NAVAL VESSELS?

(9) IF THE ORIGINAL EMPLOYMENT IS "PART-TIME AND INTERMITTENT" BY REASON OF ITS BEING ON A PER DIEM BASIS FOR A SPECIFIED NUMBER OF DAYS, MAY THE EMPLOYMENT CONTRACT BE RENEWED OR EXTENDED?

(10) IN THOSE CASES WHERE THE LANGUAGE IN THE FIRST PROVISO, QUOTED SUPRA, IS APPLICABLE, ON WHAT NUMBER OF DAYS IS $5,000 PER ANNUM CALCULATED FOR THE PURPOSE OF DETERMINING THE PERMISSIBLE PER DIEM RATE OF COMPENSATION?

(11) TO WHAT FUNDS MAY THE PHRASE "FUNDS ALLOTTED TO THE NAVY DEPARTMENT" IN THE QUOTED LANGUAGE REFER?

THE SEVERAL QUESTIONS WILL BE ANSWERED IN THE ORDER PRESENTED.

QUESTION NO. 1

PURSUANT TO THE EXPRESS TERMS OF THE EXCEPTION TO THE APPROPRIATION RESTRICTION ON PAYMENT OF RATES OF COMPENSATION IN EXCESS OF $5,000 PER ANNUM CONTAINED IN THE APPROPRIATION ITEM " MISCELLANEOUS EXPENSES," TO WIT,"EXCEPT IN PURSUANCE OF SPECIFIC AUTHORIZATION HEREIN OR HEREAFTER GRANTED" ( ITALICS SUPPLIED), THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. COMPARE THE ANSWERS TO QUESTIONS NOS. 4 AND 8, INFRA.

QUESTION NO. 2

THE APPROPRIATION RESTRICTION CLEARLY IS UPON THE RATES OF COMPENSATION; THAT IS,"IN EXCESS OF $5,000 PER ANNUM, EITHER ON A PER DIEM OR PER ANNUM BASIS.' HENCE, THE EXCEPTION TO THE SALARY RESTRICTION RELATES, ALSO, TO RATES OF COMPENSATION, THAT IS, TO ANY SPECIFIC AUTHORIZATION FOR PAYMENT OF A HIGHER RATE OF COMPENSATION THAN $5,000 PER ANNUM EITHER ON A PER DIEM OR PER ANNUM BASIS, REGARDLESS OF THE TOTAL AMOUNT OF COMPENSATION EARNED DURING THE YEAR. COMPARE THE ANSWER TO QUESTION 10, INFRA. THE LAW DOES NOT REQUIRE THAT ANY OF THE CLASSES OF PERSONNEL FOR WHOM A SPECIFIC AUTHORIZATION TO BE PAID COMPENSATION AT THE RATE OF $25 PER DIEM HAS BEEN PROVIDED IN THE APPROPRIATION ACT FOR THE NAVY MUST BE DISCHARGED WHEN THEY HAVE EARNED A TOTAL OF $5,000 DURING A YEAR.

QUESTION NO. 3

IN THE HOUSE OF REPRESENTATIVES REPORT NO. 247, 77TH CONGRESS, ST SESSION, ON BILL H.R. 3981, APPROVED MAY 6, 1941, PUB. NO. 48, 55 STAT. 176 WHICH HAS BECOME THE " NAVAL APPROPRIATION ACT, 1942," AFTER STATING THE REASONS FOR LIMITING THE NUMBER OF TOTAL CIVILIAN POSITIONS IN THE NAVY DEPARTMENT, IT WAS STATED:

* * * THE COMMITTEE HAS GONE FURTHER AND HAS JOINED WITH SUCH LIMITATION A PROVISION BARRING ADDITIONAL POSITIONS AT PAY RATES IN EXCESS OF $5,000 PER ANNUM EXCEPT IN PURSUANCE OF SPECIFIC AUTHORIZATION IN THE BILL OR HEREAFTER GRANTED. THE COMMITTEE FEARS THAT THERE IS A DISPOSITION TO OVERSTAFF THE ADMINISTRATIVE OFFICES WITH PERSONNEL FOR DOING JOBS FOR WHICH APPROPRIATE TALENT ALREADY IS AVAILABLE AMONG REGULAR CIVIL AND NAVAL PERSONNEL. ( ITALICS SUPPLIED.) THE SALARY RESTRICTION RELATES ONLY TO "ADDITIONAL POSITIONS" CREATED AFTER MARCH 13, 1941, THE DATE BILL H.R. 3981 WAS INTRODUCED. BY THE STATEMENT "AN EXISTING AUTHORIZED POSITION" APPEARING IN THE QUESTION IT IS ASSUMED THAT SUCH STATEMENT HAS REFERENCE TO POSITIONS IN BEING ON AND PRIOR TO MARCH 13, 1941. THERE IS NO PURPOSE OR INTENT MANIFESTED IN THE LEGISLATION, OR IN ITS HISTORY, TO RESTRICT THE SALARY RATES OF POSITIONS UNDER THE NAVY DEPARTMENT WHICH WERE IN EXISTENCE ON MARCH 13, 1941. ACCORDINGLY, IF A POSITION WERE IN EXISTENCE ON MARCH 13, 1941, THE INCUMBENT THEREOF, REGARDLESS OF WHETHER HE WAS, OR WAS NOT, THEN IN THE SERVICE, MAY BE PAID A SALARY RATE IN EXCESS OF $5,000 PER ANNUM ON AND AFTER MAY 6, 1941 (DATE OF THE APPROPRIATION ACT), BY REASON OF THE REALLOCATION OF THE POSITION OR OTHER SALARY ADJUSTMENT AUTHORIZED BY LAW. HOWEVER, IF THE POSITION OR EMPLOYMENT WERE "ADDITIONAL," THAT IS, CREATED AFTER MARCH 13, 1941, A RATE OF COMPENSATION IN EXCESS OF $5,000 PER ANNUM MAY NOT BE PAID TO THE INCUMBENT AFTER MARCH 13, 1941, REGARDLESS OF THE FACT THAT THE POSITION MAY HAVE BEEN OR HEREAFTER MAY BE REALLOCATED TO A GRADE THE SALARY RANGE OF WHICH IS ABOVE $5,000 PER ANNUM, WHETHER OR NOT THE EMPLOYEE WAS IN THE SERVICE ON OR PRIOR TO MARCH 13, 1941.

QUESTION NO. 4

IN ORDER TO COME WITHIN THE TERMS OF THE EXCEPTION TO THE APPROPRIATION SALARY RESTRICTION, THE ,SPECIFIC AUTHORIZATION HEREIN OR HEREAFTER GRANTED" RELATES EITHER TO AN INDIVIDUAL POSITION OR TO A CLASS OF POSITIONS, PROVIDED THERE IS SPECIFIC AUTHORITY TO PAY A RATE OF COMPENSATION HIGHER THAN $5,000 PER ANNUM, SUCH AS THE AUTHORITY CONTAINED UNDER THE APPROPRIATION HEADINGS DESIGNATED IN THE PAYMASTER GENERAL'S LETTER, SUPRA, AS (B), (C), (D), AND (F).

QUESTION NO. 5

REFERENCE IS MADE TO THE ANSWER TO QUESTION 3, SUPRA. IF THE POSITIONS TO WHICH APPOINTMENTS OR PROMOTIONS WERE MADE BETWEEN MARCH 13, 1941, AND MAY 6, 1941, OR THEREAFTER, AT RATES OF COMPENSATION IN EXCESS OF $5,000 PER ANNUM WERE IN EXISTENCE ON THE PRIOR DATE, THE APPROPRIATION SALARY RESTRICTION IS NOT APPLICABLE AND THE SALARY NEED NOT BE REDUCED, BUT IF THE POSITIONS BE ,ADDITIONAL," THAT IS, CREATED AFTER MARCH 13, 1941, TO WHICH APPOINTMENTS OR PROMOTIONS WERE MADE BETWEEN MARCH 13, 1941, AND MAY 6, 1941, OR THEREAFTER, AT RATES OF COMPENSATION IN EXCESS OF $5,000 PER ANNUM, THE SALARY RATE OF THE INCUMBENT MUST BE REDUCED TO A RATE NOT IN EXCESS OF $5,000 PER ANNUM RETROACTIVELY EFFECTIVE TO MARCH 13, 1941.

QUESTION NO. 6

THE APPROPRIATION LIMITATION ON THE TOTAL NUMBER OF CIVILIAN EMPLOYEES "IN THE NAVY DEPARTMENT PROPER, AT WASHINGTON" REFERS TO THE DEPARTMENTAL SERVICE AS DISTINGUISHED FROM THE FIELD SERVICE. IN DECISION OF JANUARY 11, 1938, 17 COMP. GEN. 564, 565, IT WAS HELD:

IN DECISION OF OCTOBER 19, 1925, 5 COMP. GEN. 272, 273, IT WAS STATED:

"* * * WHAT IS KNOWN AS A "FIELD" FORCE IS ENGAGED, DIRECTLY OR INDIRECTLY, IN EXECUTING THE LAWS LOCALLY, WHILE A "DEPARTMENTAL" FORCE IS ENGAGED IN GENERAL SUPERVISORY AND ADMINISTRATIVE DIRECTION AND CONTROL OF THE VARIOUS FIELD FORCES. VARIOUS GENERAL LAWS, SUCH AS THE POSTAL LAWS, MUST BE EXECUTED IN THE DISTRICT OF COLUMBIA AS WELL AS ELSEWHERE. FORCE ENGAGED EXCLUSIVELY IN THE LOCAL EXECUTION OF SUCH LAWS IN THE DISTRICT OF COLUMBIA IS A FIELD FORCE AS MUCH SO AS A LIKE FORCE IN ANY OTHER SECTION OF THE COUNTRY. IT IS ONLY IN THIS SENSE THAT THE TERM "FIELD" FORCE MAY PROPERLY BE APPLIED TO THE DISTRICT. SEE DISCUSSION IN DECISIONS REPORTED IN 21 COMP. DEC. 709, AND 27 COMP. DEC. 631.' CONVERSELY, A FORCE ENGAGED EXCLUSIVELY IN DEPARTMENTAL WORK, THAT IS, IN GENERAL SUPERVISION AND ADMINISTRATIVE DIRECTION AND CONTROL OF THE VARIOUS FIELD FORCES, EVEN THOUGH WITH HEADQUARTERS OUTSIDE OF THE DISTRICT OF COLUMBIA--- IN THIS INSTANCE AT BALTIMORE--- IS NEVERTHELESS A DEPARTMENTAL FORCE AS MUCH SO AS THE DEPARTMENTAL FORCE IN THE DISTRICT OF COLUMBIA. SIMILARLY HERE, THE RESTRICTION UPON THE TOTAL NUMBER OF CIVILIAN EMPLOYEES IN THE DEPARTMENTAL SERVICE OF THE NAVY DEPARTMENT WOULD BE APPLICABLE EVEN THOUGH SUCH DEPARTMENTAL EMPLOYEES WERE TEMPORARILY STATIONED AT ARLINGTON OR ANY OTHER PLACE OUTSIDE OF THE DISTRICT OF COLUMBIA.

QUESTION NO. 7

THE WORDS "ADDITIONAL POSITIONS" AS USED IN THE FIRST PROVISO OF THE SALARY RESTRICTION PROVISION, WOULD APPEAR TO INCLUDE ANY AND EVERY KIND OF EMPLOYMENT IN OR UNDER THE NAVY DEPARTMENT OR NAVAL ESTABLISHMENT BOTH IN THE DEPARTMENTAL AND FIELD SERVICE, IN POSITIONS CREATED AFTER MARCH 13, 1941, EXCEPT SUCH AS COME WITHIN THE TERMS OF THE EXPRESS EXCEPTION.

QUESTION NO. 8

IN ORDER TO COME WITHIN THE EXCEPTION TO THE APPROPRIATION RESTRICTION ON THE PAYMENT OF SALARY RATES, THERE MUST BE A SPECIFIC AUTHORIZATION FOR A RATE IN EXCESS OF $5,000 PER ANNUM, EITHER ON A PER DIEM OR PER ANNUM BASIS.' GENERAL AUTHORITY TO EMPLOY PART-TIME OR INTERMITTENT EMPLOYEES, SUCH AS CONTAINED IN THE APPROPRIATION ITEM DESIGNATED IN THE LETTER OF THE PAYMASTER GENERAL AS (E), OR AUTHORITY TO EMPLOY SUCH PERSONNEL AND TO FIX RATES OF COMPENSATION "IN THE DISCRETION OF THE SECRETARY OF THE NAVY," SUCH AS CONTAINED IN THE APPROPRIATION ITEM DESIGNATED BY THE PAYMASTER GENERAL AS (A), DOES NOT CONSTITUTE "SPECIFIC" AUTHORIZATION TO PAY RATES IN EXCESS OF $5,000 PER ANNUM. COMPARE THE ANSWERS TO QUESTIONS 2 AND 4, SUPRA. AS ALL OF THE PART-TIME OR INTERMITTENT EMPLOYMENTS REFERRED TO IN THIS QUESTION ARE AUTHORIZED UNDER APPROPRIATION ITEMS WHICH DO NOT CONTAIN ANY SPECIFIC AUTHORIZATION NAMING A RATE OF COMPENSATION IN EXCESS OF $5,000 PER ANNUM, IT MUST BE HELD THAT THE APPROPRIATION SALARY RESTRICTION IN THE FIRST PROVISO IS APPLICABLE IN RESPECT OF ALL SUCH POSITIONS CREATED AFTER MARCH 13, 1941.

QUESTION NO. 9

IF THE PART-TIME OR INTERMITTENT EMPLOYMENT INVOLVES A POSITION CREATED ON OR PRIOR TO MARCH 13, 1941, THE EMPLOYMENT CONTRACTS MAY BE RENEWED OR INTENDED AFTER THAT DATE EVEN THOUGH THE RATE OF COMPENSATION BE IN EXCESS OF $5,000 PER ANNUM OR THE PER DIEM EQUIVALENT THEREOF, AND, ALSO, REGARDLESS OF THE FACT THAT THE RENEWED OR EXTENDED CONTRACT MAY PROVIDE FOR COMPENSATION AT A RATE HIGHER OR LOWER THAN THAT PREVIOUSLY PAID IN THE SAME POSITION.

QUESTION NO. 10

THE PER DIEM EQUIVALENT OF THE SALARY RATE OF $5,000 PER ANNUM IS CALCULATED BY DIVIDING $5,000 BY 360 AND IS $13.88. SEE SALARY TABLES, 1936; ALSO, SECTION 6 OF THE ACT OF JUNE 30, 1906, 34 STAT. 763; SECTION 5 (A) OF THE ACT OF JUNE 28, 1940, 54 STAT. 678; 20 COMP. GEN. 39; ID. 147; ID. 149; ID. 484, AND THE DECISIONS THEREIN CITED. AS THE APPROPRIATION SALARY RESTRICTION IS DEFINITELY MADE APPLICABLE TO A PER DIEM RATE EQUIVALENT TO THE ANNUAL RATE OF $5,000 PER ANNUM, THE RATE OF $13.88 PER DIEM IS THE MAXIMUM COMPENSATION RATE PAYABLE TO A PERSON OCCUPYING AN ,ADDITIONAL" PART-TIME OR INTERMITTENT POSITION CREATED AFTER MARCH 13, 1941, REGARDLESS OF THE NUMBER OF DAYS WORKED DURING THE YEAR. COMPARE 17 COMP. GEN. 249, 252, WHEREIN WAS CONSIDERED AN APPROPRIATION RESTRICTION ON COMPENSATION OF $5,000 OR MORE PER ANNUM.

QUESTION NO. 11

THE APPROPRIATION SALARY RESTRICTION IN THE FIRST PROVISO IS APPLICABLE TO ANY FUND ALLOTTED TO THE NAVY DEPARTMENT UNDER ANY AUTHORITY OF LAW AVAILABLE FOR THE EMPLOYMENT OF PERSONNEL, EXCEPT SUCH AS MAY CONTAIN SPECIFIC AUTHORITY FOR PAYMENT BY THE NAVY DEPARTMENT OF SALARY RATES IN EXCESS OF $5,000, EITHER ON A PER DIEM OR PER ANNUM BASIS. THIS OFFICE MAY NOT UNDERTAKE TO ENUMERATE SUCH ALLOTMENTS HEREIN, BUT SEE FOR INSTANCE, THE ITEM " EMERGENCY FUND FOR THE PRESIDENT," APPEARING IN THE ACT APPROVED JUNE 11, 1940, 54 STAT. 297.