B-41950, MAY 27, 1944, 23 COMP. GEN. 900

B-41950: May 27, 1944

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TO FULL TIME FEDERAL EMPLOYEES WHILE THEY ARE SERVING AS NURSES' AIDES IN GOVERNMENT HOSPITALS OUTSIDE OF THEIR REGULAR HOURS OF WORK DOES NOT CONSTITUTE "SALARY" WITHIN THE MEANING OF THE PROHIBITION IN THE ACT OF MAY 10. NOR IS IT TO BE REGARDED AS PAYMENT OF SALARY OR ALLOWANCES WITHIN THE MEANING OF THE OTHER DUAL COMPENSATION STATUTES (SECTION 1764 AND 1765. PART TIME OR INTERMITTENT EMPLOYMENT OF A REGULAR FULL TIME FEDERAL EMPLOYEE AS A NURSES' AIDE IN A GOVERNMENTAL HOSPITAL DOES NOT CONSTITUTE THE "HOLDING OF AN OFFICE TO WHICH COMPENSATION IS ATTACHED" WITHIN THE MEANING OF THE ACT OF JULY 31. 500 OR MORE FROM HOLDING ANOTHER OFFICE TO WHICH COMPENSATION IS ATTACHED. A NURSES' AIDE EMPLOYED IN A GOVERNMENT HOSPITAL ON A PART TIME OR INTERMITTENT BASIS IS NOT AN .

B-41950, MAY 27, 1944, 23 COMP. GEN. 900

DOUBLE COMPENSATION, ETC. - FEDERAL EMPLOYEES SERVING AS NURSES' AIDS IN THE CASE OF FULL TIME FEDERAL EMPLOYEE RECEIVING $2,000 OR MORE PER ANNUM, THE PAYMENT OF $1 PER ANNUM COMPENSATION FOR SERVICES UNDER APPOINTMENTS AS NURSES' AIDES OUTSIDE OF THEIR REGULAR HOURS OF WORK WOULD CONSTITUTE PAYMENT OF "SALARY" IN CONTRAVENTION OF THE PROHIBITION IN THE DUAL COMPENSATION STATUTE OF MAY 10, 1916, AS AMENDED, AGAINST THE PAYMENT OF MORE THAN ONE SALARY TO A PERSON IF THE COMBINED AMOUNT OF THE SALARIES EXCEEDS $2,000 PER ANNUM. THE FURNISHING OF SUBSISTENCE AND LODGING IN KIND, WHEN NECESSARY FOR THE BENEFIT OF THE GOVERNMENT, TO FULL TIME FEDERAL EMPLOYEES WHILE THEY ARE SERVING AS NURSES' AIDES IN GOVERNMENT HOSPITALS OUTSIDE OF THEIR REGULAR HOURS OF WORK DOES NOT CONSTITUTE "SALARY" WITHIN THE MEANING OF THE PROHIBITION IN THE ACT OF MAY 10, 1916, AS AMENDED, AGAINST THE PAYMENT OF MORE THAN ONE SALARY TO A PERSON IF THE COMBINED AMOUNT OF THE SALARIES EXCEEDS $2,000 PER ANNUM; NOR IS IT TO BE REGARDED AS PAYMENT OF SALARY OR ALLOWANCES WITHIN THE MEANING OF THE OTHER DUAL COMPENSATION STATUTES (SECTION 1764 AND 1765, REVISED STATUTES, AND THE ACT OF JULY 31, 1894, AS AMENDED). PART TIME OR INTERMITTENT EMPLOYMENT OF A REGULAR FULL TIME FEDERAL EMPLOYEE AS A NURSES' AIDE IN A GOVERNMENTAL HOSPITAL DOES NOT CONSTITUTE THE "HOLDING OF AN OFFICE TO WHICH COMPENSATION IS ATTACHED" WITHIN THE MEANING OF THE ACT OF JULY 31, 1894, AS AMENDED, PROHIBITING PERSONS WHOSE ANNUAL COMPENSATION IN ONE OFFICE AMOUNTS TO $2,500 OR MORE FROM HOLDING ANOTHER OFFICE TO WHICH COMPENSATION IS ATTACHED. A NURSES' AIDE EMPLOYED IN A GOVERNMENT HOSPITAL ON A PART TIME OR INTERMITTENT BASIS IS NOT AN ,OFFICER OR CLERK," AND, THEREFORE, WHERE REGULARLY EMPLOYED FEDERAL PERSONNEL ARE ENGAGED, OUTSIDE THEIR REGULAR HOURS, ON A PART TIME OR INTERMITTENT BASIS AS SUCH NURSES' AIDES, THE "ADDITIONAL SERVICES" PROHIBITION IN SECTION 1764, REVISED STATUTES, WITH RESPECT TO OFFICERS AND CLERKS HAS NO APPLICATION. EMPLOYMENT OF FULL TIME FEDERAL EMPLOYEES AS NURSES' AIDES IN GOVERNMENT HOSPITALS OUTSIDE OF THEIR REGULAR HOURS OF WORK WOULD NOT BE INCOMPATIBLE WITH SERVICES PERFORMED IN THE REGULAR POSITION AND, HENCE, WOULD NOT BE IN CONTRAVENTION OF THE ADDITIONAL COMPENSATION RESTRICTIONS OF SECTION 1765, REVISED STATUTES, WHICH HAVE NO APPLICATION IN THE CASE OF SEPARATE AND DISTINCT COMPATIBLE EMPLOYMENTS. THE PRACTICE OF AUTHORIZING THE PAYMENT OF COMPENSATION AT THE RATE OF $1 PER ANNUM IS UNNECESSARY UNLESS REQUIRED BY SOME STATUTE OR APPROPRIATION ACT OTHER THAN SECTION 3679, REVISED STATUTES, AS AMENDED, PROHIBITING THE ACCEPTANCE OF VOLUNTARY SERVICE FOR THE GOVERNMENT, SO THAT THE PAYMENT OF $1 PER ANNUM TO FEDERAL EMPLOYEES SERVING AS VOLUNTEER NURSES' AIDES IN GOVERNMENT HOSPITALS OUTSIDE OF THEIR REGULAR HOURS OF WORK IS NOT REQUIRED.

ACTING COMPTROLLER GENERAL YATES TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, MAY 27, 1944:

I HAVE YOUR LETTER OF MAY 10, 1944, AS FOLLOWS:

AS YOU ARE AWARE, ONE OF THE MAJOR FUNCTIONS OF THE VETERANS ADMINISTRATION IS THE CARE AND TREATMENT OF DISABLED AND ILL WAR VETERANS. SINCE THE OUTSET OF THE PRESENT EMERGENCY, THE PROCUREMENT OF MEDICALLY TRAINED PERSONNEL HAS BECOME PROGRESSIVELY MORE DIFFICULT WITH THE RESULT THAT IT HAS BEEN NECESSARY TO REALIGN NURSING DUTIES SO AS TO MEET THE DESPERATE SHORTAGE OF REGISTERED NURSES. FORCE OF CIRCUMSTANCES COMPELLED THIS REARRANGEMENT OF RESPONSIBILITIES SINCE A SUFFICIENT NUMBER OF REGISTERED NURSES WERE AVAILABLE ONLY TO DISCHARGE THE MORE EXACTING AND HIGHLY PROFESSIONALIZED REQUIREMENTS; THUS IT HAS BEEN FOUND NECESSARY TO UTILIZE THE SERVICES OF AMERICAN RED CROSS VOLUNTEER NURSES' AIDES IN NURSING WORK OF A LESS TECHNICAL CHARACTER.

THESE AIDES ARE EXTENSIVELY TRAINED, THOUGH OF COURSE THEY DO NOT POSSESS THE HIGHLY SPECIALIZED BACKGROUND OF THE REGISTERED NURSES. THE VETERANS ADMINISTRATION HAS BEEN UTILIZING THE SERVICE OF RED CROSS VOLUNTEER NURSES' AIDES FOR A CONSIDERABLE PERIOD, AND EXPERIENCE HAS INDICATED THEIR SERVICES TO BE OF INESTIMABLE VALUE; IN FACT, UNDER EXISTING CONDITIONS THEY ARE INDISPENSABLE. APPOINTMENTS TO THE POSITIONS OF NURSES AIDES HAVE BEEN MADE UNDER THE FOLLOWING CONDITIONS: AT A RATE OF $1.00 PER ANNUM, PLUS SUBSISTENCE AND QUARTERS WHEN NECESSARY, TO RENDER SERVICE FOR PERIODS OF TIME DURING A DAY, OR A WEEK, WHEN IT WOULD NOT CONFLICT WITH THEIR OTHER EMPLOYMENT.

IT HAS NOW DEVELOPED THAT IN SOME CASES THESE AMERICAN RED CROSS VOLUNTEER NURSES' AIDES HAVE BEEN REGULAR FULL TIME EMPLOYEES OF THE FEDERAL GOVERNMENT RENDERING SERVICE AS NURSES' AIDES AT TIMES OUTSIDE OF THEIR REGULARLY PRESCRIBED HOURS OF DUTY. A QUESTION NOW HAS BEEN RAISED AS TO WHETHER THERE IS ANY CONFLICT BETWEEN THE ARRANGEMENTS ABOVE STATED AND THE FOLLOWING STATUTES: ACT OF MAY 10, 1916, AS AMENDED (5 U.S.C. 58); ACT OF JULY 31, 1894, AS AMENDED (5 U.S.C. 62); SECTIONS 1764 AND 1765, R.S. (5 U.S.C.69; 70); SECTION 3679, R.S. (31 U.S.C. 665).

WILL YOU PLEASE ADVISE ME WHETHER OR NOT THERE IS ANY OBJECTION IN REGARD TO THE PRESENT ARRANGEMENT. IF THE METHOD OUTLINED DOES NOT MEET WITH YOUR APPROVAL, I WOULD APPRECIATE YOUR ADVISING ME AS TO THE PROPER PROCEDURE TO BE FOLLOWED, AS IT IS ABSOLUTELY IMPERATIVE THAT SERVICES OF ALL AVAILABLE NURSES' AIDES, WITHOUT REGARD TO THEIR OTHER EMPLOYMENT, BE FULLY UTILIZED SO THAT PATIENTS IN VETERANS ADMINISTRATION HOSPITALS BE PROPERLY CARED FOR.

SECTION 58, TITLE 5, U.S. CODE, PROVIDES:

DOUBLE SALARIES.

UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY ANY 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. ( MAY 10, 1916, CH. 117, SEC. 6, 39 STAT. 20; AUG. 29, 1916, CH. 417, 39 STAT. 582.)

THE $1 PER ANNUM COMPENSATION WHICH YOU STATE IS AUTHORIZED TO BE PAID TO NURSES' AIDES UNDER THEIR EXISTING APPOINTMENTS, MUST BE REGARDED AS "SALARY" WITHIN THE MEANING OF THE ABOVE-QUOTED STATUTE. SEE 22 COMP. GEN. 743, 745; 23 ID. 630. HENCE, PAYMENT OF $1 PER ANNUM FOR SERVICE AS NURSES' AIDE TO REGULAR FULL TIME FEDERAL EMPLOYEES RECEIVING $2,000 OR MORE PER ANNUM IN THEIR REGULAR FULL TIME POSITIONS WOULD BE UNAUTHORIZED. THE FURNISHING OF SUBSISTENCE AND LODGING IN KIND TO NURSES' AIDES WHEN NECESSARY FOR THE BENEFIT OF THE GOVERNMENT WHILE THEY ARE ON THE JOB--- AS DISTINGUISHED FROM FURNISHING SUCH ALLOWANCES IN KIND AS A PART OF THE TOTAL COMPENSATION OF A REGULAR POSITION OF NURSE (SECTION 3, ACT OF MARCH 5, 1928, 45 STAT. 193/--- PROPERLY IS NOT FOR REGARDING AS "SALARY" WITHIN THE MEANING OF THE ABOVE-QUOTED STATUTE.

SECTION 62, TITLE 5, U.S. CODE, PROVIDES:

SEC. 62. 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 SPECIFICALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD 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 RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS 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, CH. 174, SEC. 2, 28 STAT. 205; MAY 31, 1924, CH. 214, 43 STAT. 245; JULY 30, 1937, CH. 545, SEC. 6, 50 STAT. 549; JUNE 25, 1938, CH. 694, 52 STAT. 1194.)

IT IS UNDERSTOOD THAT EMPLOYMENT OF THE INVOLVED EMPLOYEES AS NURSES' AIDES IS FOR PART-TIME OR INTERMITTENT SERVICE, ONLY. THIS OFFICE HAS HELD THAT PART-TIME, INTERMITTENT, OR TEMPORARY EMPLOYMENT DOES NOT CONSTITUTE THE HOLDING OF AN OFFICE TO WHICH COMPENSATION IS ATTACHED WITHIN THE MEANING OF THE ABOVE-QUOTED STATUTE. SEE 14 COMP. GEN. 68, AND THE AUTHORITIES THEREIN CITED; 22 ID. 312; 23 ID. 275. HENCE, THE EMPLOYMENT OF REGULAR FULL TIME FEDERAL EMPLOYEES AS NURSES' AIDES IS NOT IN CONTRAVENTION OF THE STATUTE LAST ABOVE QUOTED.

SECTION 69, TITLE 5, U.S. CODE, PROVIDES:

SEC. 69. EXTRA SERVICES.

NO ALLOWANCE OR COMPENSATION SHALL BE MADE TO ANY OFFICER OR CLERK, BY REASON OF THE DISCHARGE OF DUTIES WHICH BELONG TO ANY OTHER OFFICER OR CLERK IN THE SAME OR ANY OTHER DEPARTMENT; AND NO ALLOWANCE OR COMPENSATION SHALL BE MADE FOR ANY EXTRA SERVICES WHATEVER, WHICH ANY OFFICER OR CLERK MAY BE REQUIRED TO PERFORM, UNLESS EXPRESSLY AUTHORIZED BY LAW. ( R.S. SEC. 1764).

AS A NURSES' AIDE IS NOT AN "OFFICER OR CLERK" THAT STATUTE HAS NO APPLICATION HERE.

SECTION 70, TITLE 5, U.S. CODE, PROVIDES:

SEC. 70. EXTRA ALLOWANCES.

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 ALLOWANCES, 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. ( R.S. SEC. 1765).

IN DECISION OF OCTOBER 3, 1942, 22 COMP. GEN. 312, 314, IT WAS STATED WITH REFERENCE TO SAID STATUTE:

THAT 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; 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. STONE, ET AL., 19 FED. 807; 15 OP. ATTY. GEN. 608; 17 ID. 321. SEE, ALSO, 23 COMP. GEN. 275.

EMPLOYMENT AS A NURSES-AIDE WOULD NOT BE INCOMPATIBLE WITH THE SERVICES PERFORMED BY FEDERAL EMPLOYEES IN THEIR REGULAR POSITIONS. HENCE, 5 U.S.C. 70 (SECTION 1765 REVISED STATUTES) WOULD NOT BE CONTRAVENED BY THE CLASS OF EMPLOYMENT DESCRIBED IN YOUR LETTER.

REFERRING TO THE LAST STATUTE CITED BY YOU--- SECTION 3679, REVISED STATUTES, AS AMENDED (31 U.S.C. 665/--- IT IS UNDERSTOOD THAT YOUR CONCERN RELATES PARTICULARLY TO THE PROHIBITION AGAINST VOLUNTARY SERVICES, THE PERTINENT PORTION OF THE STATUTE PROVIDING AS FOLLOWS:

* * * NOR SHALL ANY DEPARTMENT OR ANY OFFICER OF THE GOVERNMENT ACCEPT VOLUNTARY SERVICE FOR THE GOVERNMENT * * * EXCEPT IN CASES OF SUDDEN EMERGENCY INVOLVING THE LOSS OF HUMAN LIFE OR THE DESTRUCTION OF PROPERTY. * * *

THERE HAS BEEN CONSIDERABLE MISUNDERSTANDING REGARDING THE PROPER APPLICATION OF THAT STATUTORY PROVISION--- THE PRACTICE HAVING BEEN ADOPTED, IT SEEMS, OF AUTHORIZING THE PAYMENT OF SALARY AT THE RATE OF $1 PER ANNUM IN ORDER TO PREVENT A VIOLATION OF SAID STATUTE. SUCH A PRACTICE IS UNNECESSARY UNLESS SOME OTHER STATUTE OR APPROPRIATION ACT REQUIRES THE PAYMENT OF $1 PER ANNUM. IN THAT CONNECTION, SEE THE DECISION OF JUNE 26, 1928, 7 COMP. GEN. 810, 811, WHEREIN IT WAS TATED:

THE VOLUNTARY SERVICE REFERRED TO IN SAID STATUTE IS NOT NECESSARILY SYNONYMOUS WITH GRATUITOUS SERVICE, BUT CONTEMPLATES SERVICE FURNISHED ON THE INITIATIVE OF THE PARTY RENDERING THE SAME WITHOUT REQUEST FROM OR AGREEMENT WITH, THE UNITED STATES THEREFOR. SERVICES FURNISHED PURSUANT TO A FORMAL CONTRACT ARE NOT VOLUNTARY WITHIN THE MEANING OF SAID SECTION. 3 COMP. GEN. 117; 4 ID. 967; 27 COMP. DEC. 131. SEE, ALSO, 30 OP. ATTY GEN. 51; ID. 129, THE LATTER OPINION STATING AT PAGE 131:

THE PROVISION OF SECTION 3679, REVISED STATUTES, AS AMENDED BY SECTION 3 OF THE ACT OF FEBRUARY 27, 1906 (34 STAT. 48), PROHIBITING THE ACCEPTANCE OF VOLUNTARY SERVICE FOR THE GOVERNMENT, HAS NO APPLICATION TO THE PERFORMANCE OF ADDITIONAL SERVICE BY A CLERK IN EXECUTIVE DEPARTMENT WITHOUT ADDITIONAL COMPENSATION, BUT REFERS TO VOLUNTARY SERVICES RENDERED BY PRIVATE PERSONS WITHOUT AUTHORITY OF LAW. * * *

YOU ARE ADVISED, THEREFORE, THAT WHILE PAYMENT OF $1 PER ANNUM IS NOT REQUIRED TO BE PAID TO A FEDERAL EMPLOYEE SERVING AS A NURSES' AIDE IN ANY CASE, AND WHICH PAYMENT WOULD NOT BE AUTHORIZED TO BE PAID TO FEDERAL EMPLOYEES ALREADY RECEIVING $2,000 OR MORE PER ANNUM IN THEIR REGULAR POSITIONS, THERE WOULD BE NO LEGAL OBJECTION TO THE EMPLOYMENT OF FEDERAL EMPLOYEES AS NURSES' AIDES UNDER AN AGREEMENT WITH THEM TO SERVE WITHOUT COMPENSATION--- THE FURNISHING OF NECESSARY SUBSISTENCE AND LODGING IN KIND WHILE THEY ARE ON DUTY FOR THE BENEFIT OF THE GOVERNMENT NOT TO BE REGARDED AS PAYMENT OF SALARY OR ALLOWANCES WITHIN THE MEANING OF THE DUAL COMPENSATION STATUTES.