B-170086, JUL. 31, 1970

B-170086: Jul 31, 1970

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IS NOT EXEMPT FROM THE DUAL COMPENSATION ACT OF 1964. WHILE EMPLOYED BY NAVY EXCHANGE A NONAPPROPRIATED FUND ACTIVITY IS APPOINTED AS LABORER ON FEB. 28. THE INDIVIDUAL IS INDEBTED IN AN AMOUNT COVERING THE DUAL EMPLOYMENT PERIOD IN EXCESS OF 40 HOURS PER WEEK. WAIVER UNDER 5 U.S.C. 5584 WILL BE CONSIDERED. HIS HOURS OF DUTY WERE FROM 4:30 P.M. JOHNSON WAS ALSO EMPLOYED UNTIL ABOUT 4:30 P.M. THAT IN 1969 IT WAS ADMINISTRATIVELY DETERMINED THAT MR. JOHNSON'S DUAL EMPLOYMENT WAS EXEMPT FROM THE PROVISIONS OF THE DUAL COMPENSATION ACT OF 1964 (CODIFIED IN TITLE 5. AN INDIVIDUAL IS NOT ENTITLED TO RECEIVE BASIC PAY FROM MORE THAN ONE POSITION FOR MORE THAN AN AGGREGATE OF 40 HOURS OF WORK IN ONE CALENDAR WEEK (SUNDAY THROUGH SATURDAY).".

B-170086, JUL. 31, 1970

COMPENSATION -- DOUBLE -- HOLDING TWO JOBS VOLUNTARY DECISION HOLDING THAT INDIVIDUAL EMPLOYED AS LABORER WITH NAVAL AIR STATION, SEATTLE, AND ALSO WITH NAVY EXCHANGE, A NONAPPROPRIATED FUND ACTIVITY, IS NOT EXEMPT FROM THE DUAL COMPENSATION ACT OF 1964, AND COLLECTION ACTION FOR THE INDEBTEDNESS SHOULD BE ACCOMPLISHED. EMPLOYEE WHO, WHILE EMPLOYED BY NAVY EXCHANGE A NONAPPROPRIATED FUND ACTIVITY IS APPOINTED AS LABORER ON FEB. 28, 1967, BY THE NAVY, SUCH DUAL EMPLOYMENT MAY NOT BE REGARDED AS A PERSON SERVING IN MORE THAN ONE POSITION ON DEC. 1, 1964, THE EFFECTIVE DATE OF THE DUAL COMPENSATION ACT, TO BE EXEMPT FROM THE ACT. THEREFORE, THE INDIVIDUAL IS INDEBTED IN AN AMOUNT COVERING THE DUAL EMPLOYMENT PERIOD IN EXCESS OF 40 HOURS PER WEEK. HOWEVER, WAIVER UNDER 5 U.S.C. 5584 WILL BE CONSIDERED.

TO MR. SECRETARY:

IT HAS COME TO THE ATTENTION OF THIS OFFICE THAT THE NAVAL AIR STATION (NAS), SEATTLE, WASHINGTON, AN APPROPRIATED FUND ACTIVITY, EMPLOYED MR. LEROY JOHNSON IN THE POSITION OF LABORER (CLEANER), WB 1 1, BY CAREER- CONDITIONAL APPOINTMENT EFFECTIVE FEBRUARY 28, 1967. IN THIS POSITION HE HAS WORKED 40 HOURS EACH WEEK FROM THAT DATE THROUGH APRIL 18, 1970, AND HAS RECEIVED GROSS PAY TOTALING $20,680 FOR THIS EMPLOYMENT. HIS HOURS OF DUTY WERE FROM 4:30 P.M. TO 1 A.M.

DURING THAT PERIOD MR. JOHNSON WAS ALSO EMPLOYED UNTIL ABOUT 4:30 P.M. EACH WORKDAY BY THE NAS NAVY EXCHANGE, SEATTLE, WASHINGTON, A NONAPPROPRIATED FUND ACTIVITY FOR 30 TO 36 HOURS A WEEK WITH ESTIMATED EARNINGS OF BETWEEN $9,300 AND $11,200. IT APPEARS THAT HE HAD BEEN EMPLOYED BY THE NAVY EXCHANGE SINCE MARCH 18, 1961, AND THAT IN 1969 IT WAS ADMINISTRATIVELY DETERMINED THAT MR. JOHNSON'S DUAL EMPLOYMENT WAS EXEMPT FROM THE PROVISIONS OF THE DUAL COMPENSATION ACT OF 1964 (CODIFIED IN TITLE 5, UNITED STATES CODE) ON THE BASIS THAT HIS NAVY EXCHANGE EMPLOYMENT PREDATED THE EFFECTIVE DATE OF THAT ACT.

SECTION 5531 OF TITLE 5, U.S.C. PROVIDES THAT THE TERM:

"(2) 'POSITION' MEANS A CIVILIAN OFFICE OR POSITION (INCLUDING A TEMPORARY, PART-TIME, OR INTERMITTENT POSITION), APPOINTIVE OR ELECTIVE, IN THE LEGISLATIVE, EXECUTIVE, OR JUDICIAL BRANCH OF THE GOVERNMENT OF THE UNITED STATES (INCLUDING A GOVERNMENT CORPORATION AND A NONAPPROPRIATED FUND INSTRUMENTALITY UNDER THE JURISDICTION OF THE ARMED FORCES) OR IN THE GOVERNMENT OF THE DISTRICT OF COLUMBIA."

SUBSECTION 5533(A) PROVIDES THAT:

"(A) EXCEPT AS PROVIDED BY SUBSECTIONS (B), (C), AND (D) OF THIS SECTION, AN INDIVIDUAL IS NOT ENTITLED TO RECEIVE BASIC PAY FROM MORE THAN ONE POSITION FOR MORE THAN AN AGGREGATE OF 40 HOURS OF WORK IN ONE CALENDAR WEEK (SUNDAY THROUGH SATURDAY)."

SECTION 301 OF THE DUAL COMPENSATION ACT OF 1964, PUBLIC LAW 88-448, 78 STAT. 488, SUBSECTION (E) (OMITTED FROM CODIFICATION) IS AS FOLLOWS:

"(E) WITH RESPECT TO THE COMPENSATION OF PERSONS SERVING ON THE EFFECTIVE DATE OF THIS SECTION IN MORE THAN ONE POSITION UNDER PROPERLY AUTHORIZED APPOINTMENTS, SUBSECTION (A) OF THIS SECTION SHALL NOT APPLY FOR THE DURATION OF THE APPOINTMENT OR APPOINTMENTS CONCERNED." SINCE MR. JOHNSON WAS NOT EMPLOYED IN MORE THAN ONE POSITION UNDER PROPERLY AUTHORIZED APPOINTMENTS ON DECEMBER 1, 1964, THE EFFECTIVE DATE OF SECTION 301 OF THE 1964 DUAL COMPENSATION ACT, THE EXEMPTION PROVIDED FOR IN SUBSECTION (E) OBVIOUSLY DID NOT APPLY TO HIS EMPLOYMENT. COMPARE DECISION OF OCTOBER 25, 1965, 45 COMP. GEN. 194.

ACCORDINGLY, HIS CONCURRENT EMPLOYMENT BY THE NONAPPROPRIATED FUND ACTIVITY OF THE NAVY AND EMPLOYMENT BY THE NAVAL AIR STATION, SEATTLE, WASHINGTON, AN APPROPRIATED FUND ACTIVITY, DURING THE PERIOD BEGINNING FEBRUARY 28, 1967, WAS PROHIBITED BY THE DUAL COMPENSATION PROVISION OF 5 U.S.C. 5533(A). ASSUMING THE AMOUNT (RATE OF PAY) RECEIVED FROM THE NONAPPROPRIATED FUND ACTIVITY WAS LESS THAN THAT RECEIVED FROM HIS REGULAR CIVIL SERVICE POSITION HE IS TO BE REGARDED AS INDEBTED IN THAT AMOUNT COVERING THE PERIOD OF DUAL EMPLOYMENT IN EXCESS OF 40 HOURS PER WEEK. HOWEVER, SUCH INDEBTEDNESS IS TO BE REGARDED AS ONE OWING TO THE UNITED STATES AS DISTINGUISHED FROM AN INSTRUMENTALITY OF THE UNITED STATES. THEREFORE THE INDEBTEDNESS IS FOR COLLECTION BY THE DEPARTMENT OF THE NAVY FOR CREDIT TO APPROPRIATED FUNDS.

THE INDEBTEDNESS HAVING ARISEN OUT OF AN ERRONEOUS PAYMENT OF PAY THE WAIVER PROVISIONS OF 5 U.S.C. 5584 ARE FOR CONSIDERATION. SINCE THE ESTIMATED AMOUNT OF THE ERRONEOUS PAYMENT HERE INVOLVED EXCEEDS $500, IT IS REQUESTED THAT WE BE FURNISHED A PROMPT REPORT IN THE MATTER ALONG THE LINES INDICATED IN OUR STANDARDS IMPLEMENTING THE WAIVER PROVISION OF 5 U.S.C. 5584, AS PUBLISHED IN 4 CFR 91. SUCH REPORT SHOULD INCLUDE THE EXACT AMOUNT OF THE ERRONEOUS PAYMENT. UPON RECEIPT THEREOF CONSIDERATION WILL BE GIVEN TO WAIVER OF THE ERRONEOUS PAYMENT AND YOU WILL BE ADVISED IN REGARD THERETO.