B-174274, NOV 22, 1971

B-174274: Nov 22, 1971

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OUR DECISION HAS BEEN REQUESTED AS TO THE APPLICABLE DUAL PAY LIMITATION WHERE THE PAY OF ONE OF THE POSITIONS INVOLVED IS PAID BY THE CLERK OF THE HOUSE OF REPRESENTATIVES. OR IS UNDER THE ARCHITECT OF THE CAPITOL. IT IS STATED THAT MR. DIENSTFREY WAS APPOINTED TO A POSITION IN THE OFFICE OF THE ARCHITECT OF THE CAPITOL ON JULY 1. HIS EMPLOYMENT WAS TERMINATED ON SEPTEMBER 17. ALSO IT IS SAID THAT MR. DIENSTFREY DID NOT INDICATE THAT HE WAS ON THE HOUSE PAYROLL AT THE TIME OF HIS APPOINTMENT WITH THE OFFICE OF THE ARCHITECT OF THE CAPITOL. THE PROVISION OF 5 U.S.C. 5533(C)(1) AS AMENDED BY SECTION 477(D) OF PUBLIC LAW 91-510 - LEGISLATIVE REORGANIZATION ACT OF 1970 - IS AS FOLLOWS: "UNLESS OTHERWISE AUTHORIZED BY LAW AND EXCEPT AS OTHERWISE PROVIDED BY PARAGRAPH (2) OF THIS SUBSECTION.

B-174274, NOV 22, 1971

DUAL PAY LIMITATIONS - RATE FOR DETERMINING - SUMMER INTERN DECISION CONCERNING THE CORRECT AGGREGATE RATE FOR USE IN DETERMINING THE AMOUNT OF OVERPAYMENTS TO MR. STEPHEN J. DIENSTFREY INCIDENT TO HIS EMPLOYMENT BY THE CLERK OF THE HOUSE OF REPRESENTATIVES AS A SUMMER INTERN WHILE ALSO AN EMPLOYEE IN THE OFFICE OF THE ARCHITECT OF THE CAPITOL AS AN ELEVATOR OPERATOR. SINCE THE AGGREGATE AMOUNT OF $7,724 A YEAR CONTAINED IN SECTION 477(D) OF PUB. L. 91-510, AMENDING 5 U.S.C. 5533(C)(1) HAS BEEN CHANGED TO $8,187 BY PUB. L. 91-656 AND SUCH AMOUNT HAS BEEN ADOPTED BY THE CLERK OF THE HOUSE, THEN $8,187 SHOULD BE USED IN DETERMINING THE AMOUNT OF ANY OVERPAYMENTS SUBJECT TO APPLICABLE DUAL PAY LIMITATIONS.

TO MR. GEORGE M. WHITE:

WE REFER FURTHER TO LETTER OF OCTOBER 4, 1971, FROM THE ACTING ARCHITECT OF THE CAPITOL CONCERNING THE COMPUTATION OF THE AMOUNT OF OVERPAYMENT TO MR. STEPHEN J. DIENSTFREY DURING 1971 BECAUSE OF DUAL EMPLOYMENT. OUR DECISION HAS BEEN REQUESTED AS TO THE APPLICABLE DUAL PAY LIMITATION WHERE THE PAY OF ONE OF THE POSITIONS INVOLVED IS PAID BY THE CLERK OF THE HOUSE OF REPRESENTATIVES, OR IS UNDER THE ARCHITECT OF THE CAPITOL.

IT IS STATED THAT MR. DIENSTFREY WAS APPOINTED TO A POSITION IN THE OFFICE OF THE ARCHITECT OF THE CAPITOL ON JULY 1, 1971, AS AN ELEVATOR OPERATOR AT $6,291 A YEAR. HIS EMPLOYMENT WAS TERMINATED ON SEPTEMBER 17, 1971, AFTER THE ASSISTANT FINANCE OFFICER, OFFICE OF THE CLERK OF THE UNITED STATES HOUSE OF REPRESENTATIVES HAD ADVISED THAT MR. DIENSTFREY HAD BEEN EMPLOYED AS A SUMMER INTERN ON THE HOUSE OF REPRESENTATIVES PAYROLL DURING THE PERIOD JUNE 15 THROUGH AUGUST 29, 1971, AT THE RATE OF $300 A MONTH - $3600 A YEAR - AND HAD BEEN REAPPOINTED ON THE HOUSE PAYROLL ON SEPTEMBER 1 AT A SALARY OF $1,893 A YEAR. ALSO IT IS SAID THAT MR. DIENSTFREY DID NOT INDICATE THAT HE WAS ON THE HOUSE PAYROLL AT THE TIME OF HIS APPOINTMENT WITH THE OFFICE OF THE ARCHITECT OF THE CAPITOL.

IT APPEARS THAT THE CONCURRENT EMPLOYMENT OF MR. DIENSTFREY RESULTED IN HIS RECEIPT OF COMPENSATION AT THE AGGREGATE GROSS RATE OF $9,891 A YEAR DURING THE PERIOD OF JULY 1 TO AUGUST 29, 1971, AND AT THE AGGREGATE GROSS RATE OF $8,184 DURING THE PERIOD SEPTEMBER 1 THROUGH SEPTEMBER 17, 1971.

THE PROVISION OF 5 U.S.C. 5533(C)(1) AS AMENDED BY SECTION 477(D) OF PUBLIC LAW 91-510 - LEGISLATIVE REORGANIZATION ACT OF 1970 - IS AS FOLLOWS:

"UNLESS OTHERWISE AUTHORIZED BY LAW AND EXCEPT AS OTHERWISE PROVIDED BY PARAGRAPH (2) OF THIS SUBSECTION, APPROPRIATED FUNDS ARE NOT AVAILABLE FOR PAYMENT TO AN INDIVIDUAL OF PAY FROM MORE THAN ONE POSITION IF THE PAY OF ONE OF THE POSITIONS IS PAID BY THE SECRETARY OF THE SENATE OR THE CLERK OF THE HOUSE OF REPRESENTATIVES, OR ONE OF THE POSITIONS IS UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL, AND IF THE AGGREGATE GROSS PAY FROM THE POSITIONS EXCEEDS $7,724 A YEAR."

IN THE LETTER OF OCTOBER 4, 1971, IT IS STATED THAT THE ABOVE DUAL PAY LIMITATION RATE FOR INDIVIDUALS WHOSE PAY IS DISBURSED BY THE SECRETARY OF THE SENATE HAS BEEN CHANGED TO $8,187 EFFECTIVE FEBRUARY 1, 1971, UNDER THE AUTHORITY OF SECTION 4(B) OF PUBLIC LAW 91-656 - FEDERAL PAY COMPARABILITY ACT OF 1970. IN THIS CONNECTION FPM SUPPLEMENT 990-1 OF THE FEDERAL PERSONNEL MANUAL SYSTEM AT PAGE I-128 OF BOOK I, VOLUME B IS CITED. ALSO, IT IS STATED THAT THE ASSISTANT FINANCE OFFICER HAS ADVISED THAT THE AGGREGATE GROSS PAY LIMITATION IS THE SAME FOR THE HOUSE AND SENATE AND THAT THE LIMITATION FOR POSITIONS PAID BY THE CLERK OF THE HOUSE WAS ADJUSTED UNDER AUTHORITY OF SECTION 5 OF PUBLIC LAW 91-656 ALTHOUGH NO WRITTEN ORDER HAS BEEN ISSUED TO THIS EFFECT BY THE CLERK.

WE HAVE BEEN ADVISED INFORMALLY THAT THE CLERK OF THE HOUSE OF REPRESENTATIVES UNDER HIS AUTHORITY SET FORTH IN SECTION 5 OF PUBLIC LAW 91-656 ADOPTS THE RATE DETERMINATIONS REACHED BY THE PRESIDENT PRO TEMPORE OF THE SENATE UNDER SECTION 4 THEREOF. SUCH ACTION APPEARS TO BE WITHIN THE AUTHORITY GRANTED THE CLERK OF THE HOUSE.

ACCORDINGLY, THE AGGREGATE RATE FOR USE IN DETERMINING THE AMOUNT OF THE OVERPAYMENT WOULD BE $8,187 A YEAR.