B-18322, JULY 14, 1941, 21 COMP. GEN. 20

B-18322, JULY 14, 1941, 21 COMP. GEN. 20

DUAL COMPENSATION ACT OF 1916 - APPLICABILITY TO DISTRICT OF COLUMBIA TEACHERS THE FIRST PORTION OF 5 U.S.C. 61, TO THE EFFECT THAT THE DUAL COMPENSATION ACT OF 1916 SHALL NOT APPLY TO TEACHERS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA WHEN EMPLOYED BY ANY OF THE EXECUTIVE DEPARTMENTS OR INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT, WAS TEMPORARY LEGISLATION APPEARING IN ANNUAL APPROPRIATION ACTS DURING AND IMMEDIATELY AFTER THE WORLD WAR PERIOD AND IS NO LONGER IN FORCE. THE FACT THAT PUBLIC SCHOOL TEACHERS OF THE DISTRICT OF COLUMBIA ARE PAID THEIR ANNUAL SALARY IN TEN EQUAL INSTALLMENTS AND THAT THE SCHOOL YEAR STARTS IN SEPTEMBER AND ENDS IN JUNE DOES NOT ALTER THE FACT THAT THEIR SALARIES COVER THE ENTIRE YEAR, SO THAT SUCH A TEACHER MAY NOT BE EMPLOYED BY A FEDERAL AGENCY DURING THE SUMMER VACATION PERIOD WHERE THE RATE OF ANNUAL COMPENSATION AS A PUBLIC SCHOOL TEACHER, WHEN COMBINED WITH THAT RECEIVED AS A FEDERAL EMPLOYEE, EXCEEDS THE $2,000 LIMITATION OF THE DUAL COMPENSATION ACT OF 1916.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, JULY 14, 1941:

I HAVE YOUR LETTER OF JUNE 25, 1941, AS FOLLOWS:

THE SUPERINTENDENT OF SCHOOLS HAS SUBMITTED TO THE COMMISSIONERS A REQUEST FOR ADVICE AS TO WHETHER PUBLIC SCHOOL TEACHERS, CLERKS, AND OTHER EMPLOYEES OF THE PUBLIC SCHOOLS SYSTEM ARE SUBJECT TO THE PROVISIONS OF THE ACT OF MAY 10, 1916 (39 STAT. 120), AS AMENDED, COMMONLY KNOWN AS THE DUAL EMPLOYMENT STATUTE. THE LETTER RECEIVED FROM THE SUPERINTENDENT OF SCHOOLS DATED JUNE 19, 1941, IS AS FOLLOWS:

"AS YOU ARE AWARE, PUBLIC SCHOOL TEACHERS ARE PAID THEIR ANNUAL SALARIES IN TEN EQUAL PAYMENTS EXCLUSIVE OF THE MONTHS OF JULY AND AUGUST. THE WORK OF TEACHERS WILL BE COMPLETED BY FRIDAY, JUNE 20, AT WHICH TIME IT IS CONTEMPLATED, IN ACCORDANCE WITH USUAL PRACTICE, THEY WILL RECEIVE THEIR CHECKS FOR THE COMPLETE MONTH OF JUNE.

"LIKEWISE, THE WORK OF TEACHERS WILL ACTUALLY BEGIN ON FRIDAY, SEPTEMBER 19. BY REPORTING FOR DUTY ON THE OPENING DAY FOR TEACHERS AND CONTINUING IN SERVICE DURING THE MONTH OF SEPTEMBER THE TEACHERS HAVE, IN ACCORDANCE WITH PREVIOUS PRACTICE, BEEN GIVEN THEIR FULL MONTHLY CHECK FOR SERVICES IN SEPTEMBER.

"IT WILL BE CLEAR, THEREFORE, THAT THESE TEACHERS ARE NEITHER ON ACTIVE DUTY FROM ABOUT THE 20TH OF JUNE UNTIL THE 19TH OF SEPTEMBER AND THAT THEY ARE NOT ON THE PAYROLL BETWEEN THOSE PERIODS HAVING BEEN PAID FOR THEIR SERVICES ON JUNE 20 AND NOT BEING REQUIRED TO REPORT FOR DUTY UNTIL SEPTEMBER 19.

"THE QUESTION IS WHETHER OR NOT SUCH TEACHERS MAY BE EMPLOYED IN THE UNITED STATES NAVY YARD OR IN THE BUREAU OF STANDARDS.

"ONE OF OUR SHOP TEACHERS WHO TEACHES WOODWORKING AT THE ANACOSTIA JUNIOR -SENIOR HIGH SCHOOL, MR. C. F. FOSTER, WILL COMPLETE HIS SERVICES ON JUNE 20 AND WISHES TO BE EMPLOYED IN THE NAVY YARD AS A WOOD PATTERN MAKER. THIS TEACHER IS A SKILLED WOODWORKER AND HIS PRACTICAL WORK IN THE NAVY YARD WILL BE HELPFUL TO HIM AS A TEACHER IN THE PUBLIC SCHOOLS OF WASHINGTON. ON THE OTHER HAND HIS SKILL WILL BE USEFUL TO THE NAVY YARD WHERE SKILLED WOOD PATTERN MAKERS ARE NEEDED.

"THE SECOND CASE RELATES TO THE BUREAU OF STANDARDS. THE BUREAU OF STANDARDS HAS ASKED THE SUPERINTENDENT OF SCHOOLS TO AUTHORIZE DR. RALPH B. KENNARD, OF THE PHYSICS DEPARTMENT OF THE WILSON TEACHERS COLLEGE, TO ACCEPT TEMPORARY EMPLOYMENT FOR A PERIOD OF THREE MONTHS BEGINNING JULY 1. DR. KENNARD'S SERVICE IS DESIRED ON A PROBLEM SUPPORTED BY THE BUREAU OF AERONAUTICS OF THE NAVY DEPARTMENT INVOLVING THE REDESIGN OF AIRCRAFT CARBON MONOXIDE INDICATORS WHICH AT PRESENT ARE OF INADEQUATE ACCURACY.

"IN THIS CONNECTION YOUR ATTENTION IS INVITED TO THE FACT THAT ON MAY 1 DR. KENNARD WAS ELECTED TO THE FELLOWSHIP OF THE AMERICAN PHYSICAL SOCIETY IN CONSIDERATION OF THE WORK WHICH HE DID ON HEAT TRANSFER AT THE BUREAU OF STANDARDS TEN YEARS AGO. DR. KENNARD'S CASE WOULD BE ANSWERED BY THE ANSWER GIVEN TO THE FIRST CASE CITED.

"AN ADDITIONAL QUESTION, HOWEVER, IS RAISED RESPECTING EACH OF THESE CASES: NAMELY, WOULD IT MODIFY THE SITUATION IF THE BOARD OF EDUCATION, UNDER THE AUTHORITY WHICH THEY HAVE UNDER THE LAW, GRANTED EACH OF THESE TEACHERS FORMAL LEAVE OF ABSENCE FROM SERVICE IN THE PUBLIC SCHOOLS, ONE FOR THE PERIOD OF TWO MONTHS WHILE THE SCHOOLS ARE NOT IN SESSION; THE OTHER FOR A PERIOD OF THREE MONTHS, ONE MONTH OF WHICH IS WITHIN THE PERIOD OF TIME WHEN THE SCHOOLS ARE IN SESSION AND FOR WHICH THE TEACHER WOULD RECEIVE NO PAY IF HE WERE ON LEAVE OF ABSENCE.'

IN YOUR DECISION TO THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ON JANUARY 13, 1923 (2 C.G. 437) IT WAS HELD THAT TEACHERS IN THE NIGHT SCHOOLS OF THE PROVISIONS OF THE DUAL EMPLOYMENT STATUTE. LIKEWISE, UNDER DATE OF JUNE ( JULY) 17, 1923 (3 C.G. 24) YOUR OFFICE HELD THAT TEACHERS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA ARE NOT IN THE FEDERAL SERVICE AND MAY, THEREFORE, BE EMPLOYED DURING SCHOOL VACATION AS EXPERT EXAMINERS AT THE UNITED STATES CIVIL SERVICE COMMISSION, THE SPECIAL APPROPRIATION FOR SUCH EXAMINERS EXEMPTING THEM FROM THE REQUIREMENT OF THE DUAL EMPLOYMENT STATUTE.

THERE IS SOME QUESTION, IN THE OPINION OF THE COMMISSIONERS, AS TO WHETHER PUBLIC SCHOOL TEACHERS AND OTHER SCHOOL EMPLOYEES MAY DURING VACATION PERIOD OR OTHERWISE BE EMPLOYED IN FEDERAL SERVICE, IN THE ABSENCE OF A COMPLETE SEPARATION FROM THE DISTRICT SERVICE. IN YOUR DECISION OF APRIL 23, 1937, (16 C.G. 951) AND CASES CITED THEREIN, YOU MADE A DISTINCTION BETWEEN VOLUNTARY FURLOUGH AND INVOLUNTARY FURLOUGH, AND CONCLUDED THAT,"THIS RULE IS NOT APPLICABLE DURING PERIODS OF VOLUNTARY FURLOUGH OR LEAVE OF ABSENCE WITHOUT PAY WHEN FUNDS REMAIN AVAILABLE FOR PAYMENT OF THE SALARY OF THE PERMANENT POSITION.'

ANOTHER IMPORTANT POINT FOR CONSIDERATION HERE IS WHETHER OR NOT THE ACT OF MAY 26, 1908 (35 STAT. 291) PERMITTING SALARY OF TEACHERS, CLERKS, AND LIBRARIANS IN THE HIGH AND MANUAL-TRAINING SCHOOLS TO BE PAID IN TEN MONTHLY INSTALLMENTS, WOULD PLACE THEM IN A FURLOUGH OR NONPAY STATUS DURING THE OTHER TWO MONTHS OF THE YEAR, SUCH AS WOULD PERMIT THEM TO BE EMPLOYED IN OTHER DISTRICT OR FEDERAL SERVICES. THE ACT REFERRED TO PROVIDES IN PERTINENT PART:

"THAT THE SALARIES OF ALL TEACHERS, AND CLERKS, AND LIBRARIANS IN THE HIGH AND MANUAL-TRAINING SCHOOLS, DULY ELECTED, WHOSE SERVICES COMMENCE WITH THE OPENING DAY OF SCHOOL AND WHO SHALL PERFORM THEIR DUTIES, SHALL BEGIN ON THE FIRST DAY OF SEPTEMBER AND SHALL BE PAID IN TEN MONTHLY INSTALLMENTS, THE FIRST PAYMENT TO BE MADE ON THE FIRST DAY OF OCTOBER, OR AS NEAR THAT DATE AS PRACTICABLE, AND THE PAYMENT FOR THE MONTH OF JUNE TO BE MADE UPON THE COMPLETION OF THE SCHOOL TERM IN JUNE: PROVIDED, THAT THE SALARIES OF OTHER TEACHERS SHALL BEGIN WHEN THEY ENTER UPON THEIR DUTIES.'

IN YOUR DECISION OF DECEMBER 27, 1940, B-13843, TO LIEUTENANT COLONEL W. M. DIXON, F.D., U.S. ARMY, FINANCE OFFICE, WASHINGTON, D.C., THE QUESTION WAS WHETHER THE CUSTODIAL AND JANITOR SERVICES OF THE DISTRICT SCHOOLS TO WHOM IT WAS PROPOSED TO PAY ADDITIONAL COMPENSATION FOR SERVICES PERFORMED AFTER THEIR REGULAR WORK DAY IN CONNECTION WITH THE SELECTIVE SERVICE SYSTEM, CHARGEABLE TO THE APPROPRIATION " SELECTIVE SERVICE SYSTEM ( TRANSFER TO WAR), 1941 1942" MAY NOT RECEIVE ADDITIONAL PAY WHILE SO EMPLOYED. UNDER THE CIRCUMSTANCES, THESE EMPLOYEES WERE HELD TO BE SUBJECT TO THE PROVISIONS OF THE DUAL EMPLOYMENT STATUTE.

THE COMMISSIONERS WOULD APPRECIATE ADVICE FROM YOU AS TO WHETHER (1) A TEACHER ENGAGED IN INSTRUCTION OF WOODWORKING AT THE ANACOSTIA JUNIOR HIGH SCHOOL MAY BE EMPLOYED AT THE UNITED STATES NAVY YARD DURING THE MONTHS OF JULY, AUGUST, AND PART OF SEPTEMBER 1941, UNDER THE CIRCUMSTANCES OUTLINED IN THE SUPERINTENDENT'S LETTER; (2) WHETHER THERE WOULD BE ANY OBJECTION TO THE EMPLOYMENT BY THE BUREAU OF STANDARDS OF A TEACHER AT THE WILSON TEACHERS' COLLEGE FOR A TEMPORARY PERIOD OF THREE MONTHS BEGINNING JULY 1, 1941, UNDER THE CIRCUMSTANCES OUTLINED IN THE LETTER OF THE SUPERINTENDENT OF SCHOOLS; (3) IF THE EMPLOYMENT IS PERMISSIBLE, WHAT EFFECT, IF ANY, WILL IT HAVE UPON THE TEN-MONTH PAY INSTALLMENTS.

SECTION 6 OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, PROVIDES IN PERTINENT PART, AS FOLLOWS:

THAT UNLESS OTHERWISE SPECIALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM, BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OR ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR TO OFFICERS AND ENLISTED MEN OF THE ORGANIZED MILITIA AND NAVAL MILITIA IN THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA: * * *

THE ABOVE-QUOTED STATUTE IS CARRIED IN THE U.S.C. UNDER SECTIONS 58 AND 59 OF TITLE 5.

SECTION 61, TITLE 5, U.S. CODE, PROVIDES, AS FOLLOWS:

SECTION 58 OF THIS TITLE SHALL NOT APPLY TO TEACHERS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA WHEN EMPLOYED BY ANY OF THE EXECUTIVE DEPARTMENTS OR INDEPENDENT ESTABLISHMENTS OF THE UNITED STATES GOVERNMENT; NOR TO TEACHERS IN THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA WHO ARE ALSO EMPLOYED AS TEACHERS OF NIGHT SCHOOLS AND VACATION SCHOOLS, NOR TO EMPLOYEES OF THE SCHOOL GARDEN DEPARTMENT OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA; NOR TO EMPLOYEES OF THE COMMUNITY CENTER DEPARTMENT OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA. ( OCT. 6, 1917, C. 79, SEC. 9, 40 STAT. 384; JULY 8, 1918, C. 139, SEC. 1, 40 STAT. 823; JUNE 5, 1920, C. 253, SEC. 1, 41 STAT. 1017.)

THE FIRST PORTION OF THIS SECTION 61 WAS TEMPORARY LEGISLATION AND IS NO LONGER IN FORCE. THAT IS TO SAY, FOR SEVERAL FISCAL YEARS, DURING THE WORLD WAR PERIOD AND IMMEDIATELY THEREAFTER, THE ANNUAL APPROPRIATION ACTS FOR THE DISTRICT OF COLUMBIA CONTAINED A PROVISION AS FOLLOWS (QUOTING FROM THE ACT OF JULY 8, 1918, 40 STAT. 821, 822):

SECTION SIX OF THE LEGISLATIVE, EXECUTIVE, AND JUDICIAL APPROPRIATION ACT, APPROVED MAY TENTH, NINETEEN HUNDRED AND SIXTEEN, AS AMENDED, SHALL NOT APPLY FROM JULY FIFTEENTH TO SEPTEMBER FIFTEENTH, NINETEEN HUNDRED AND EIGHTEEN, TO TEACHERS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA WHEN EMPLOYED BY ANY OF THE EXECUTIVE DEPARTMENTS OR INDEPENDENT ESTABLISHMENTS OF THE UNITED STATES GOVERNMENT.

NO SUCH EXCEPTION TO THE DUAL COMPENSATION ACT OF 1916 APPEARS IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1942, APPROVED JULY 1, 1941, PUBLIC LAW 148.

TEACHERS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA ARE PAID FROM APPROPRIATED FUNDS UPON AN ANNUAL SALARY BASIS. THE FACT THAT THEY ARE PAID THEIR ANNUAL SALARY IN TEN EQUAL INSTALLMENTS AND THAT THE SCHOOL YEAR STARTS IN SEPTEMBER AND ENDS IN JUNE IN NOWISE ALTERS THE FACT THAT THE SALARIES SO PAID COVER THE ENTIRE YEAR. THE PERIOD BETWEEN THE CLOSING AND OPENING OF THE SCHOOLS IS A VACATION WITH PAY.

IT HAS BEEN HELD THAT THE DUAL COMPENSATION STATUTE OF 1916 IS APPLICABLE TO THE TEACHERS OF THE DISTRICT OF COLUMBIA FOR PERIODS OF SERVICE NOT EXPRESSLY EXCEPTED BY OTHER STATUTES. SEE DECISION OF AUGUST 14, 1936 A- 76187; (COMPARE 2 COMP. GEN. 436; 3 ID. 24, CITED BY YOU); ALSO, 4 COMP. GEN. 521; 19 ID. 501, 503, INVOLVING EMPLOYMENT DURING LEAVE OF ABSENCE WITH PAY; AND 13 COMP. GEN. 248 INVOLVING TEMPORARY EMPLOYMENTS OR POSITIONS.

ACCORDINGLY, QUESTIONS (1) AND (2) ARE ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION (3).