Matter of: Ms. Silvia Klimicek and Major Edgar Terrazas File: B-251541 Date: July 21, 1993

B-251541: Jul 21, 1993

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Payment of the fee to the civilian employee for services performed while on leave from her position as a secretary is not precluded by 5 U.S.C. Payment to the officer under the contract is precluded. Neither may he be paid on a quantum meruit basis since a valid contract could not have been made with him for this service. DECISION The question in this case is whether a civilian employee and a military officer may be paid under governmental contracts for their services as interpreters performed while on leave from their regular assignments.[1] As explained below. Provided certain conditions are met. For which interpreter services were needed.[2] Since commercial interpreters were not thought to be available.

Matter of: Ms. Silvia Klimicek and Major Edgar Terrazas File: B-251541 Date: July 21, 1993

CIVILIAN PERSONNEL Compensation Outside employment Leave-without-pay MILITARY PERSONNEL Pay Civilian office prohibition The Coast Guard contracted with a civilian employee and an Air Force officer to provide interpreter services for a fee while on leave. Payment of the fee to the civilian employee for services performed while on leave from her position as a secretary is not precluded by 5 U.S.C. Sec. 5536. As to the Air Force officer, the contractual arrangement violates the rule prohibiting military members from holding government employment in addition to their military positions. Therefore, payment to the officer under the contract is precluded, and neither may he be paid on a quantum meruit basis since a valid contract could not have been made with him for this service.

DECISION The question in this case is whether a civilian employee and a military officer may be paid under governmental contracts for their services as interpreters performed while on leave from their regular assignments.[1] As explained below, provided certain conditions are met, the employee may be paid; but the officer may not.

BACKGROUND

The International Training Team of the United States Coast Guard held a Maritime Law Enforcement Seminar for Bolivian Navy officials in La Paz, Bolivia, September 13-21, 1991, for which interpreter services were needed.[2] Since commercial interpreters were not thought to be available, the Coast Guard arranged to procure these services from two individuals employed by the U.S. Department of Defense in La Paz. These individuals were a United States Air Force officer, Major Edgar L. Terrazas, on duty in La Paz, and a civilian secretary, Ms. Silvia Klimicek, employed with the Department of Defense in La Paz, neither of whom performed interpreter duties in their regular, government positions. They each took leave to perform the interpreter services. Major Terrazas obtained a prior written statement of no legal objection from his staff judge advocate to perform the interpreter services. The services were performed under oral agreements providing for each interpreter to receive a $1,700 fee for the services provided. However, when the Coast Guard requested that purchase orders be issued after the seminar authorizing payment on the oral agreements, the issue of whether 5 U.S.C. Sec. 5536 barred such payments arose.

DISCUSSION

Under 5 U.S.C. Sec. 5536, a civilian employee or a member of the uniformed services whose pay is fixed by statute or regulation is prohibited from receiving additional salary or pay for any other service or duty, unless specifically authorized by law. This prohibition has been held not to apply where two distinct offices or employments, each with its own compensation fixed by law or regulation, are held by one person at the same time. United States v. Saunders, 120 U. S. 126 (1887). Thus, we held that an attorney with a full-time job with the Federal Trade Commission could accept a "flat sum" on a fee basis in connection with a single project from the Federal Reserve Board which was separate and distinct from and did not interfere with his Federal Trade Commission job. B-102611, May 4, 1951. Similarly, we held that a full-time physician with the Federal Security Agency could accept a fee for a lecture from the Veterans' Administration which was separate and distinct from and did not interfere with his Federal Security Agency job. 28 Comp.Gen. 459 (1949). On this basis, we conclude that Ms. Klimicek was not precluded by 5 U.S.C. Sec. 5536 from receiving payment for her interpreter services at the seminar since they were separate and distinct from and did not interfere with her full-time secretarial job with the Department of Defense.

As to Major Terrazas, his status as an Air Force officer is different from that of an employee such as Ms. Klimicek. Regardless of whether 5 U.S.C. Sec. 5536 prohibits payment, he is subject to a separate long- established rule applicable to members of the uniformed services. That rule provides that, in the absence of specific statutory authority therefor, the performance of compensated services for the Government in another position or employment is incompatible with a uniformed member's military duties, actual or potential. See 64 Comp.Gen. 395 (1985); 47 Comp.Gen. 505 (1968), and cases cited therein. This rule, for example, has been held to prohibit a military physician from being paid fees from the Veterans Administration for providing services in his private practice after regular duty hours. 47 Comp.Gen. 505 supra. On this basis the agency could not enter into a valid contract with Major Terrazas to perform the interpreter services for a fee. Thus, payment to him under the contract may not be made.

Although the contract with Major Terrazas was invalid, the question arises whether he may be paid on a quantum meruit basis, which in some cases applies where an agent of the government procures goods or services without a valid written contract. In certain of these instances, under equitable principles, the government is obliged to pay the reasonable value of the services on an implied contract for quantum meruit. 71 Comp. Gen. 145 (1992); 64 Comp.Gen. 395, supra at p. 405.

To authorize payment on a quantum meruit basis, we first must determine that procurement of the services would have been permissible, or authorized, if proper procedures had been followed. Next, we must find that (1) the contractor acted in good faith, (2) the government received and accepted a benefit, and (3) the amount claimed represents the reasonable value of the benefit received. 64 Comp.Gen., supra at p. 405.

In Major Terrazas's case, although the latter three enumerated conditions appear to have been met, the preceding requirement could not be met since the procurement of the interpreter services from Major Terrazas on a fee basis would not have been permissible or authorized regardless of the procedures followed. See 64 Comp.Gen., supra at p. 405; Cf., 71 Comp. Gen., supra. That is, although it was permissible for the agency to procure interpreter services, procuring them under contract from Major Terrazas was unauthorized in view of the incompatibility rule discussed above.

Accordingly, Major Terrazas may not be paid the $1,700 fee.[3]

1. The question was submitted by the Assistant Legal Adviser, Buildings and Acquisitions, Department of State, as authorized by the certifying officer in the Embassy, La Paz, Bolivia.

2. The seminar, conducted by the Coast Guard was financed by funds from the State Department's International Narcotics Control Assistance Program.

3. It appears that the appropriate method of procuring these services from Major Terrazas would have been for the Coast Guard to request that the Air Force detail him to assist the Coast Guard training team, with the Coast Guard reimbursing the Air Force for the cost of his services. See 31 U.S.C. Sec. 1535 (1988). Although this would not provide any additional compensation to Major Terrazas, the services would have been provided in a duty status rather than in a leave status. If the Coast Guard and Air Force now approve Major Terrazas having provided the services on this basis, he may be recredited with the leave he took to provide the services.