B-46399, JANUARY 4, 1945, 24 COMP. GEN. 495

B-46399, JANUARY 4, 1945, 24 COMP. GEN. 495

COMPENSATION - ADDITIONAL - MAXIMUM LIMITATION - "WHEN ACTUALLY EMPLOYED" CONSULTANTS THE ADDITIONAL COMPENSATION OF 15 PERCENT OF SO MUCH OF EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900 PER ANNUM, TO WHICH A CONSULTANT EMPLOYED ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS IS ENTITLED AS AN INTERMITTENT OR IRREGULAR EMPLOYEE UNDER SECTION 3 (A) OF THE WAR OVERTIME PAY ACT OF 1943, SHOULD BE PRORATED ON A DAILY BASIS, AND, THERE BEING NOTHING IN HIS CONTRACT OF EMPLOYMENT, OR OTHERWISE, LIMITING THE NUMBER OF DAYS PER WEEK OR YEAR HE MIGHT BE REQUIRED TO SERVE, SUCH DAILY ADDITIONAL COMPENSATION MAY NOT EXCEED 1/360 (NOT 1/313) OF $2,900.

COMPTROLLER GENERAL WARREN TO CAPT. K. E. MCLAUGHLIN, U.S. ARMY, JANUARY 4, 1945:

BY INDORSEMENT DATED DECEMBER 15, 1944, FROM THE CHIEF OF ENGINEERS, WAR DEPARTMENT, THERE WAS FORWARDED TO THIS OFFICE FOR CONSIDERATION YOUR LETTER OF NOVEMBER 13, 1944 (FILE LMVKF 167 ( FISK, DR. HAROLD N) (, READING AS FOLLOWS:

REQUEST IS HEREBY MADE FOR ADVANCE DECISION AS TO WHETHER THE INCLOSED VOUCHER, IN FAVOR OF DR. HAROLD N. FISK, CONSULTANT, UNDER CONTRACT NO. W1104ENG.-326 FOR ADDITIONAL COMPENSATION CLAIMED UNDER SECTION 3 "C," 57 STAT. 77 OF THE WAR OVERTIME PAY ACT OF 1943, HAS BEEN PROPERLY COMPUTED AND WHETHER I AM LEGALLY AUTHORIZED TO PAY THE VOUCHER.

THERE ARE ALSO INCLOSED AUTHENTICATED COPIES OF LETTER DATED 24 OCTOBER 1944 FROM THE PRESIDENT, MISSISSIPPI RIVER COMMISSION, VICKSBURG, MISS; AND CONTRACT NO. W1104ENG.-326.

THE CONTRACT DOES NOT STIPULATE THE PERIOD FOR WHICH SERVICES WILL BE PAID AND THEREFORE NO REGULAR SCHEDULE OF PAYMENTS ARE IN EFFECT AND NO TOUR OF DUTY HAS BEEN ESTABLISHED. PAYMENTS ARE MADE FOR PERIODS OF 15 DAYS TO TWO MONTHS, BASED ON CLAIMS SUBMITTED BY THE CONSULTANT. THE INCLOSED VOUCHER HAS BEEN PREPARED COVERING A THREE MONTH PERIOD AND ADDITIONAL COMPENSATION COMPUTED BY THE CALENDAR MONTH AT 15 PERCENT OF SO MUCH OF EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF THE RATE OF $2,900.00 PER ANNUM OF $241.66 PER CALENDAR MONTH, ($2,900 DIVIDED BY 12).

IT IS ALSO REQUESTED THAT THE ANSWERS TO THE FOLLOWING QUESTIONS BE INCLUDED IN YOUR DECISION:

A. SHOULD A TOUR OF DUTY BE ESTABLISHED AND ADDITIONAL COMPENSATION BE COMPUTED ON A DAILY RATE?

B. IF THE TOTAL BASIC COMPENSATION PAID DURING THE FISCAL YEAR 1944 EXCEEDS $2,000.00 WOULD THE CONSULTANT BE ENTITLED TO ADDITIONAL COMPENSATION FOR THE FISCAL YEAR OF 15 PERCENT OF $2,900.00 OR $435.00 AND SHOULD ADJUSTMENT BE MADE ON THE VOUCHER COVERING THE FINAL PAYMENT FOR THE FISCAL YEAR FOR THE MONTHS DURING WHICH THE BASIC COMPENSATION DID NOT EQUAL ONE-TWELFTH OF $2,900.00 OR $241.66?

I AM A DISBURSING OFFICER OF THE VICKSBURG ENGINEER DISTRICT AND THE INCLOSED VOUCHER HAS BEEN PRESENTED TO ME FOR PAYMENT.

THE 2ND INDORSEMENT FROM THE CHIEF OF ENGINEERS READS:

1. IN VIEW OF W.D. CIVILIAN PERSONNEL CIRCULAR NO. 50 DATED 24 APRIL 1944 WHICH CLARIFIES THE METHOD OF COMPUTING BASIC COMPENSATION FOR EXPORTS AND CONSULTANTS PAID ON A PER DIEM BASIS "WHEN ACTUALLY EMPLOYED," IF AN INDIVIDUAL HAS BEEN ENGAGED TO PERFORM ACTUAL SERVICES OF A TECHNICAL OR PROFESSIONAL NATURE, COMPENSATION SHOULD BE PAID FOR EACH FULL DAY'S SERVICE WITH APPROPRIATE FRACTIONAL PAYMENT FOR PORTION OF DAYS SERVED. EXPERTS AND CONSULTANTS ARE TO BE REGARDED AS RENDERING INTERMITTENT SERVICE, NOTWITHSTANDING THE FACT THAT SUCH INDIVIDUALS MAY OCCASIONALLY WORK IN EXCESS OF 40 HOURS PER WEEK. THEREFORE IT DOES NOT APPEAR PROPER TO ATTEMPT TO ESTABLISH A WEEKLY, MONTHLY OR QUARTERLY TOUR OF DUTY FOR SUCH INDIVIDUALS.

2. THIS SAME CIRCULAR FURNISHES A CRITERION ON COMPUTATION WHEREBY THE ADDITIONAL COMPENSATION FOR SUCH INDIVIDUALS IS FIGURED AT THE DAILY RATE OF $1.38 OR 2900/313 X 15 PERCENT. IF AN AVERAGE WERE MADE OF THE 21 DAYS WORKED AND PAID IN THE AMOUNT OF $108.50, AS CONTEMPLATED BY THE INCLOSED VOUCHER, IT WOULD ESTABLISH AN OVERTIME PAYMENT OF APPROXIMATELY $5.17 PER DAY, AND IF THIS SAME AVERAGE WERE APPLIED TO 313 DAYS, IN EVENT THE CONSULTANT WERE TO BE EMPLOYED BY ANOTHER DEPARTMENT FOR INTERMITTENT PERIODS AND PAID THE SAME PROPORTIONATE ALLOWANCE, HE WOULD BE IN RECEIPT OF AN AMOUNT IN EXCESS OF THE MAXIMUM ALLOWED ANY EMPLOYEE FOR OVERTIME, VIZ: $435 PER ANNUM. THEREFORE IT APPEARS LOGICAL TO REIMBURSE THE EMPLOYEE ON A DAILY RATE FOR OVERTIME ON THE DAYS ON WHICH WORK WAS ACTUALLY PERFORMED FOR THE GOVERNMENT, OR 21 DAYS AT $1.38 WHICH EQUALS $28.98.

SECTION 3 (A) OF THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 76, PROVIDES, SO FAR AS HERE MATERIAL, AS FOLLOWS:

EXCEPT AS PROVIDED IN SUBSECTION (C) OFFICERS AND EMPLOYEES TO WHOM THIS ACT APPLIES AND WHOSE HOURS OF DUTY ARE INTERMITTENT OR IRREGULAR * * * SHALL BE PAID, IN LIEU OF THE OVERTIME COMPENSATION AUTHORIZED UNDER SECTION 2 OF THIS ACT, ADDITIONAL COMPENSATION AT THE RATE OF (1) $300 PER ANNUM IF THEIR EARNED BASIC COMPENSATION IS AT A RATE OF LESS THAN $2,000 PER ANNUM, OR (2) 15 PERCENTUM OF SO MUCH OF THEIR EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900 PER ANNUM IF THEIR EARNED BASIC COMPENSATION IS AT A RATE OF $2,000 PER ANNUM OR MORE.

SECTION 3 (C), 57 STAT. 77, PROVIDES:

ANY OFFICER OR EMPLOYEE TO WHOM THIS ACT APPLIES AND WHOSE HOURS OF DUTY ARE LESS THAN FULL TIME, OR WHOSE COMPENSATION IS BASED UPON OTHER THAN TIME PERIOD BASIS SHALL BE PAID, IN LIEU OF OVERTIME COMPENSATION OR ADDITIONAL COMPENSATION UNDER THE FOREGOING PROVISIONS OF THE ACT, ADDITIONAL COMPENSATION AT A RATE OF 15 PERCENTUM OF SO MUCH OF THEIR EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF A RATE OF $2,900 PER ANNUM.

THE CURRENT CONTRACT OF EMPLOYMENT WITH DR. FISK HAS NOT BEEN FORWARDED, BUT FROM THE STATEMENTS MADE IN THE CORRESPONDENCE IT IS UNDERSTOOD THAT DR. FISK WAS EMPLOYED DURING THE PERIOD COVERED BY THE VOUCHER--- JULY 1 TO SEPTEMBER 30, 1944--- UPON THE SAME TERMS AS WAS PROVIDED IN CONTRACT NO. W-1104-ENG-326 DATED MAY 22, 1941, WHICH EXPIRED JUNE 30, 1943, A COPY OF WHICH WAS FORWARDED. ASSUMING THAT TO BE CORRECT, DR. FISK WAS EMPLOYED AS A CONSULTANT AT THE RATE OF $40 PER DIEM WHEN ACTUALLY EMPLOYED "ON SUCH DAYS, CONTINUOUS OR INTERMITTENT, AS SUCH SERVICES ARE REQUIRED," NOTHING APPEARING IN THE CONTRACT OF EMPLOYMENT OR OTHERWISE LIMITING SERVICE TO ANY NUMBER OF DAYS PER WEEK OR YEAR, OR PROVIDING THAT THE EMPLOYEE WAS NOT REQUIRED TO WORK ON SUNDAYS, IF NECESSARY. THE VOUCHER SHOWS THAT HE SERVED 8 DAYS IN JULY, 7 DAYS IN AUGUST, AND 6 DAYS IN SEPTEMBER, A TOTAL OF 21 DAYS DURING THE PERIOD COVERED BY THE VOUCHER.

APPARENTLY, THE VOUCHER HAS BEEN COMPUTED IN ACCORDANCE WITH SECTION 3 (C) OF THE STATUTE ABOVE QUOTED UPON THE BASIS THAT COMPENSATION OF $40 PER DIEM IS A FEE OR THAT DR. FISK IS A PART-TIME EMPLOYEE. HOWEVER, COMPENSATION ON THE BASIS OF A TIME PERIOD--- $40 PER DIEM--- IS NOT A FEE, AND, FURTHERMORE, DR. FISK IS NOT TO BE REGARDED AS A PART-TIME EMPLOYEE WITHIN THE MEANING OF SECTION 3 (C) OF THE STATUTE, BUT HE IS AN INTERMITTENT OR IRREGULAR EMPLOYEE WITHIN THE MEANING OF SECTION 3 (A) OF THE STATUTE. SEE SECTIONS 3, 4, AND 5, PART II OF THE CIVIL SERVICE REGULATIONS, ISSUED UNDER THE OVERTIME LAW, DEPARTMENTAL CIRCULAR NO. 424, DATED MAY 8, 1943. COMPARE 23 COMP. GEN. 19.

NEITHER THE FORMULA USED FOR COMPUTING THE AMOUNT STATED IN THE VOUCHER, NOR THE ONE SUGGESTED BY THE CHIEF OF ENGINEERS IS CORRECT. IN THE ABSENCE OF ANY PROVISION IN THE CONTRACT OF EMPLOYMENT, OR OTHERWISE, LIMITING THE NUMBER OF DAYS PER WEEK OR YEAR DR. FISK MIGHT BE REQUIRED TO SERVE AS A CONSULTANT, THERE IS NO AUTHORITY TO PRORATE UPON THE BASIS OF 313 DAYS PER ANNUM THE $2,900 MAXIMUM PER ANNUM RATE UPON WHICH THE 15 PERCENT WARTIME ADDITIONAL COMPENSATION IS PAYABLE TO INTERMITTENT OR IRREGULAR EMPLOYEES UNDER SECTION 3 (A) OF THE STATUTE, AS SUGGESTED BY THE CHIEF OF ENGINEERS, BUT THE PRORATING MUST BE UPON THE BASIS OF 360 DAYS PER ANNUM, OR 15 PERCENT OF $8.05 FOR EACH DAY OF SERVICE. COMP 23 COMP. GEN. 13, 17, 195. HENCE, DR. FISK IS ENTITLED TO ADDITIONAL WARTIME COMPENSATION FOR THE 21 DAYS IN QUESTION IN THE AMOUNT OF $25.35, REPRESENTING 15 PERCENT OF $8.05 TIMES 21.

ACCORDINGLY, YOU ARE NOT AUTHORIZED TO PAY THE VOUCHER IN ITS PRESENT FORM.