B-28864, OCTOBER 3, 1942, 22 COMP. GEN. 312

B-28864, OCTOBER 3, 1942, 22 COMP. GEN. 312

COMPENSATION - DOUBLE - EMPLOYMENT ON BOTH AN ANNUAL SALARY AND A FEE BASIS THE EMPLOYMENT BY ONE GOVERNMENT AGENCY OF A MEDICAL ADVISER ON AN ANNUAL SALARY BASIS WHO IS ALSO EMPLOYED, WHETHER BY CONTRACT OR OTHERWISE, BY ANOTHER GOVERNMENT AGENCY AS A CONSULTANT ON A FEE BASIS DOES NOT CONSTITUTE A VIOLATION OF THE RESTRICTION AGAINST THE HOLDING OF MORE THAN ONE OFFICE CONTAINED IN THE ACT OF JULY 31, 1894, AS AMENDED, (15 COMP. GEN. 828, MODIFIED), NOR DOES SUCH EMPLOYMENT CONSTITUTE A VIOLATION OF THE DUAL COMPENSATION RESTRICTIONS OF SECTION 1765, REVISED STATUTES, AND THE ACT OF MAY 16, 1916, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, OCTOBER 3, 1942:

I HAVE YOUR LETTER OF SEPTEMBER 11, 1942, AS FOLLOWS:

BY LETTER DATED AUGUST 22, 1939 THE EMPLOYMENT OF DR. CHARLES F. JUMP AS A CONSULTANT ( EYE, EAR, NOSE AND THROAT) ON A FEE BASIS NOT TO EXCEED $300.00 PER ANNUM, WAS AUTHORIZED, EFFECTIVE AUGUST 2, 1939. ON APRIL 23, 1941, DR. JUMP INFORMED THE MANAGER OF THE VETERANS ADMINISTRATION FACILITY, FORT HARRISON, MONTANA, THAT ON OCTOBER 24, 1940 HE ENTERED ON FULL TIME DUTY WITH THE SELECTIVE SERVICE SYSTEM AS STATE MEDICAL ADVISER AT A SALARY OF $4,600.00 PER ANNUM. THE MANAGER IMMEDIATELY ADDRESSED A LETTERGRAM TO CENTRAL OFFICE INQUIRING WHETHER PAYMENT COULD BE MADE TO DR. JUMP, INASMUCH AS IT WOULD APPEAR THAT HE WOULD THEN BE RECEIVING INCOME FROM TWO GOVERNMENT DEPARTMENTS IN EXCESS OF $2,000.00 PER ANNUM. THE ATTACHED COPY OF THE CENTRAL OFFICE REPLY TO THIS INQUIRY DATED MAY 2, 1941 SHOWS THAT THE FORT HARRISON FACILITY WAS INFORMED THAT IT MIGHT CONTINUE TO UTILIZE THE PHYSICIAN'S SERVICES UNDER HIS FEE BASIS CONTRACT. BASED ON THE INFORMATION CONTAINED IN THE LETTER OF MAY 2, 1941 THE FACILITY CONTINUED TO UTILIZE THE SERVICES OF DR. JUMP AND TO AUTHORIZE PAYMENT FOR THE SAME.

BY COMMUNICATION DATED APRIL 13, 1942 THE NATIONAL HEADQUARTERS SELECTIVE SERVICE SYSTEM, WASHINGTON, D.C., BROUGHT THE CASE OF DR. JUMP TO THE ATTENTION OF THIS ADMINISTRATION, PARTICULAR REFERENCE BEING MADE TO THE SYLLABUS OF 15 C.G. 828 READING:

"THE RECEIPT OF FEES FOR SERVICES RENDERED A GOVERNMENT AGENCY WHILE EMPLOYED BY ANOTHER SUCH AGENCY ON A PER ANNUM BASIS IS PROHIBITED BY SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, BUT SAID STATUTE IS NOT FOR APPLICATION TO REIMBURSEMENT OF TRAVELING EXPENSES INCURRED ON BEHALF OF THE GOVERNMENT WHILE SO EMPLOYED.'

IN VIEW OF THE FOREGOING, BY LETTER OF APRIL 30, 1942, DR. JUMP WAS INFORMED THAT HIS SERVICES AS CONSULTANT ( EYE, EAR, NOSE AND THROAT) ON A FEE BASIS, WERE DISCONTINUED EFFECTIVE AT THE CLOSE OF BUSINESS OCTOBER 23, 1940. THE FORT HARRISON FACILITY WAS INSTRUCTED BY LETTER DATED JUNE 25, 1942 TO COLLECT THE FEES PAID DR. JUMP BY THE ADMINISTRATION SINCE OCTOBER 24, 1940, THE DATE ON WHICH HE ENTERED ON DUTY WITH THE SELECTIVE SERVICE SYSTEM AS STATE MEDICAL ADVISER. THE PHYSICIAN ACCORDINGLY REFUNDED ALL FEES PAID TO HIM BY THE ADMINISTRATION SUBSEQUENT TO OCTOBER 24, 1940. THE REFUND AMOUNTED TO $274.50, AND WAS DEPOSITED BY G. F. ALLEN, CHIEF DISBURSING OFFICER SYMBOL 891-824, UNDER CERTIFICATE OF DEPOSIT NO. 18-68 DATED JULY 10, 1942. THE APPROPRIATION SALARIES AND EXPENSES VA-1941, 3610100.001, WAS CREDITED WITH THE SUM OF $124.50, AND THE APPROPRIATION SALARIES AND EXPENSES VA-1942, 3620100.001, WAS CREDITED WITH THE SUM OF $150.

ON JULY 10, 1942, THE REMITTER PROTESTED PAYMENT OF THE AMOUNT OF $274.50 AND REQUESTED THAT SAME BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE FOR OPINION. THE PROTEST HEREWITH WAS SUPPLEMENTED BY A TELEPHONE CALL ON JULY 17, 1942, COPY OF THE REPORT THEREOF BEING ATTACHED HERETO. PROTEST IS ACCORDINGLY FORWARDED FOR YOUR CONSIDERATION.

THIS CASE DIFFERS FROM THAT OF DR. I. I. HIRSCHMAN ON WHICH YOU RENDERED DECISION NO. B-27457 UNDER DATE OF AUGUST 15, 1942, IN THAT DR. HIRSCHMAN WAS A CONSULTANT AT A SALARY AT THE RATE OF $1,000.00 PER ANNUM WHEN HE RENDERED SERVICE TO ROSALIE V. HULL ON A FEE BASIS; WHEREAS DR. JUMP WAS EMPLOYED FULL TIME BY THE SELECTIVE SERVICE SYSTEM DRAFT BOARD AT A SALARY OF $4,600.00 PER ANNUM WHEN HE RENDERED SERVICE FOR THE FORT HARRISON FACILITY ON A FEE BASIS.

SECTION 2 OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED (5 (5 U.S.C. 62), PROVIDES AS FOLLOWS (QUOTING FROM THE CODE):

HOLDING OTHER LUCRATIVE OFFICE. NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY OR NAVY WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. RETIRED ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT. ( JULY 31, 1894, C. 174, SEC. 2, 28 STAT. 205; MAY 31, 1924, C. 214, 43 STAT. 245.)

THE ENGAGING OF THE SERVICES OF A PHYSICIAN AS A CONSULTANT BY CONTRACT OR OTHERWISE ON A FEE BASIS, FOR SERVICES ACTUALLY PERFORMED IS NOT AN APPOINTMENT TO AN "OFFICE TO WHICH COMPENSATION IS ATTACHED," WITHIN THE MEANING OF THE ABOVE-QUOTED STATUTE. SEE 1 COMP. DEC. 286; 2 ID. 271; ID. 467; 14 COMP. GEN. 68; 16 ID. 909, 910; AND DECISION OF AUGUST 15, 1942, B -27457, TO WHICH YOU CALL ATTENTION IN THE CONCLUDING PARAGRAPH OF YOUR LETTER.

NEITHER WOULD PAYMENTS BY THE VETERANS' ADMINISTRATION OF FEES TO A DOCTOR DURING THE TIME HE WAS EMPLOYED AS A MEDICAL ADVISER ON AN ANNUAL SALARY BASIS BY ANOTHER GOVERNMENT AGENCY CONTRAVENE THE PROVISIONS OF THE ACT OF MAY 16, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, BECAUSE FEES DO NOT CONSTITUTE "SALARY" WITHIN THE MEANING OF SAID STATUTE. SEE 18 COMP. GEN. 768, 773, AND THE DECISIONS THEREIN CITED.

SECTION 1765, REVISED STATUTES (5 U.S.C. 70), PROVIDES AS FOLLOWS:

NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

THE LAW DOES NOT PROHIBIT A PERSON FROM HOLDING, AND RECEIVING THE COMPENSATION OF, TWO SEPARATE AND DISTINCT OFFICES, POSITIONS, OR EMPLOYMENTS, THE SALARY OR COMPENSATION OF EACH OF WHICH IS FIXED BY LAW OR REGULATION, WHERE THE TWO SERVICES ARE NOT INCOMPATIBLE WITH EACH OTHER. UNITED STATES V. SAUNDERS, 120 U.S. 126; 1 COMP. DEC. 366; 3 ID. 183; 16 COMP. GEN. 909, 910. SEE, ALSO, CONVERSE V. UNITED STATES, 21 HOW. 463; UNITED STATES V. BRINDLE, 110 U.S. 688; UNITED STATES V. KING, 147 U.S. 676, 681. WOODWELL V. UNITED STATES, 214 U.S. 82; UNITED STATES V. STOWE, ET AL., 19 FED. 807; 15 OP. ATTY. GEN. 608; 17 ID. 321.

REFERRING TO THE DECISION, 15 COMP. GEN. 828, THE SYLLABUS OF WHICH IS QUOTED IN YOUR LETTER, IT MAY BE STATED THAT WHILE THE CONCLUSION IN THAT CASE WAS CORRECT IT APPEARS TO HAVE BEEN BASED UPON THE WRONG STATUTE. THAT IS TO SAY, INSTEAD OF RELYING UPON THE 1894 STATUTE, THE DECISION SHOULD HAVE RELIED UPON SECTION 1765, REVISED STATUTES--- THERE HAVING BEEN INVOLVED IN THAT CASE A FULL-TIME SALARY FIXED BY LAW OR REGULATION AND AN APPRAISAL FEE NOT SO FIXED. THUS, IN THE LIGHT OF THE DISCUSSION HEREIN, IT WILL BE SEEN THAT THE RULE STATED IN THE SYLLABUS OF SAID DECISION IS ERRONEOUS AND SHOULD BE DISREGARDED.

AS THE POSITION OF MEDICAL ADVISER UNDER THE SELECTIVE SERVICE SYSTEM AND THE EMPLOYMENT AS A CONSULTANT ON A FEE BASIS FOR SERVICES ACTUALLY PERFORMED UNDER THE VETERANS' ADMINISTRATION WERE SEPARATE AND DISTINCT AND NOT INCOMPATIBLE WITH EACH OTHER, AND AS THE SALARY OR COMPENSATION FOR EACH IS FIXED BY LAW OR REGULATION, THE PAYMENT OF AUTHORIZED FEES EARNED BY DOCTOR JUMP UNDER THE VETERANS' ADMINISTRATION WERE NOT UNLAWFUL.

AS IT IS STATED IN YOUR LETTER THAT DOCTOR JUMP HAS REFUNDED TO THE GOVERNMENT THE FEES PAID TO HIM, HE MAY FILE IN THIS OFFICE A CLAIM FOR THE AMOUNT THEREOF CITING THIS DECISION AS AUTHORITY FOR SUCH ACTION.