B-362, JANUARY 17, 1939, 18 COMP. GEN. 614

B-362, JANUARY 17, 1939, 18 COMP. GEN. 614

COMPENSATION - DOUBLE - SUBSTITUTE RURAL MAIL CARRIER HOLDING ANOTHER FEDERAL POSITION - STATUTORY PROHIBITION APPLICABILITY A SUBSTITUTE RURAL CARRIER WHO HOLDS ANOTHER POSITION UNDER A DEPARTMENT OTHER THAN THE POST OFFICE DEPARTMENT IS SUBJECT TO THE GENERAL RULE THAT WHEN AN EMPLOYEE IS EMPLOYED OVER THE SAME PERIOD IN TWO POSITIONS, THE COMBINED SALARIES OF WHICH EXCEED THE RATE OF $2,000 PER ANNUM, PAYMENT OF MORE THAN ONE OF THE SALARIES IS PROHIBITED BY THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, NOTWITHSTANDING WORK IS PERFORMED IN THE SUBSTITUTE CAPACITY BUT A FEW DAYS A YEAR, UNLESS THE TERMS OF THE APPOINTMENT AS SUBSTITUTE CARRIER SO LIMIT THE NUMBER OF HOURS OF SERVICE PER DAY OR DAYS OF SERVICE PER YEAR AS TO FIX THE ANNUAL RATE OF COMPENSATION AT AN AMOUNT WHICH TOGETHER WITH THE RATE OF THE OTHER POSITION WOULD NOT EXCEED $2,000 PER ANNUM.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE POSTMASTER GENERAL, JANUARY 17, 1939:

YOUR LETTER OF DECEMBER 30, 1938, IS AS FOLLOWS:

REFERENCE IS MADE TO THE DECISION OF NOVEMBER 19, 1931 (11 COMP. GEN. 200), IN WHICH IT WAS HELD THAT A PERSON MAY NOT BE PERMITTED TO OCCUPY AND RECEIVE PAY FOR SERVICE IN TWO POSITIONS IF THE COMBINED RATE OF PAY IS IN EXCESS OF $2,000 PER ANNUM EVEN THOUGH ONE OF THE POSITIONS IS ONLY PART TIME.

INASMUCH AS SUBSTITUTE CARRIERS IN THE RURAL DELIVERY SERVICE DO NOT HAVE A CIVIL SERVICE STATUS AND ORDINARILY ARE EMPLOYED ONLY FIFTEEN OR TWENTY DAYS A YEAR, A DECISION IS REQUESTED WHETHER THE DUAL EMPLOYMENT PROVISION APPLIES IN THE CASE OF A SUBSTITUTE RURAL CARRIER WHO HOLDS ANOTHER POSITION UNDER A DEPARTMENT OTHER THAN THE POST OFFICE DEPARTMENT IF THE TOTAL AMOUNT OF SALARY RECEIVED IN THE TWO POSITIONS DOES NOT EXCEED $2,000 DURING THE SAME FISCAL YEAR.

A CASE IN POINT IS A SUBSTITUTE RURAL CARRIER AT JACKSON, GEORGIA, WHO ALSO IS EMPLOYED BY THE CIVIL AERONAUTICS AUTHORITY AS CARETAKER OF AIRPORT SITE 57 MA AT A SALARY OF $240 PER ANNUM. THE SALARY FOR SERVICE OVER THE RURAL ROUTE, EXCLUSIVE OF THE EQUIPMENT MAINTENANCE ALLOWANCE, IS $2,360 PER ANNUM.

ANOTHER CASE IN POINT IS THAT OF A SUBSTITUTE RURAL CARRIER AT FLORENCE, SOUTH CAROLINA, WHO ALSO HOLDS A TEMPORARY POSITION AS ASSISTANT RURAL REHABILITATION SUPERVISOR, FARM SECURITY ADMINISTRATION, AT A SALARY OF $1,260 PER ANNUM. THE SALARY FOR SERVICE OVER THE RURAL ROUTE, EXCLUSIVE OF THE EQUIPMENT MAINTENANCE ALLOWANCE IS $2,500 PER ANNUM.

IN BOTH CASES THE SALARY STATED IS THE AMOUNT RECEIVED BY THE REGULAR CARRIER. A SUBSTITUTE SERVES ONLY WHEN THE REGULAR CARRIER IS ABSENT ON ANNUAL OR SICK LEAVE AND THEY RARELY GET MORE THAN FIFTEEN OR TWENTY DAYS' WORK IN A YEAR. SUBSTITUTES ARE PAID AT THE SAME RATE, HOWEVER, AS THE REGULAR CARRIER FOR THE TIME SERVED BY THEM.

IT WILL BE APPRECIATED IF YOU WILL GIVE US A RULING ON THIS QUESTION AS PROMPTLY AS POSSIBLE.

EXCEPT IN CASES COMING WITHIN THE PROVISIONS OF SECTION 1 OF THE ACT OF MARCH 1, 1929, 45 STAT. 1441 (SEE DECISION OF MARCH 13, 1929, 8 COMP. GEN. 487), WHICH SECTION IS APPLICABLE ONLY WHERE THE TWO POSITIONS ARE IN THE POSTAL SERVICE, THE GENERAL RULE IS THAT WHEN AN EMPLOYEE IS EMPLOYED OVER THE SAME PERIOD IN TWO POSITIONS THE COMBINED SALARIES OF WHICH EXCEED THE RATE OF $2,000 PER ANNUM, PAYMENT OF MORE THAN ONE OF THE SALARIES IS PROHIBITED BY THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582.

HOWEVER, IN DECISION OF SEPTEMBER 14, 1937, 17 COMP. GEN. 250, 252, IT WAS SAID:

* * * THIS OFFICE HAS HELD THAT WHEN A DEFINITE LIMITATION ON EMPLOYMENT IS MADE IN THE APPOINTMENT OR CONTRACT OF EMPLOYMENT TO A SPECIFIC NUMBER OF HOURS PER DAY, OR DAYS PER WEEK, MONTH, OR YEAR, AND THE APPOINTMENT OR CONTRACT OF EMPLOYMENT PROVIDES FOR PAYMENT OF COMPENSATION ONLY "WHEN ACTUALLY EMPLOYED," THE DUAL COMPENSATION STATUTE OF 1916 (SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582) IS NOT APPLICABLE IF THE TOTAL AMOUNT OF COMPENSATION POSSIBLE TO BE PAID FOR THE YEAR DOES NOT EXCEED $2,000. 24 COMP. DEC. 350, 351; 11 COMP. GEN. 200; 12 ID. 583; 15 ID. 751; DECISION OF JUNE 5, 1937, A- 86713 AND DECISION OF APRIL 22, 1937, A-85168. * * *

WITH REFERENCE TO THE TWO CASES PRESENTED BY YOU IT MAY BE SAID THAT UNLESS THE TERMS OF THE APPOINTMENTS AS SUBSTITUTE RURAL CARRIERS SO LIMITED THE NUMBER OF HOURS OF SERVICE PER DAY OR DAYS OF SERVICE PER YEAR AS TO FIX THE ANNUAL RATE OF COMPENSATION AT AN AMOUNT WHICH, TOGETHER WITH THE RATE OF COMPENSATION FOR THE POSITION NOT UNDER THE POSTAL SERVICE, WOULD NOT EXCEED $2,000, PAYMENT OF SALARY OR COMPENSATION UNDER BOTH POSITIONS IS NOT AUTHORIZED.