B-57844, JUNE 13, 1946, 25 COMP. GEN. 868

B-57844: Jun 13, 1946

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IS NOT FOR APPLICATION. 1946: REFERENCE IS MADE TO YOUR LETTER OF MAY 13. AS FOLLOWS: IT WILL BE APPRECIATED IF YOU WILL RENDER AN OPINION IN CONNECTION WITH A CLAIM FOR ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT NOW PENDING IN THE COMMISSION RELATIVE TO DUAL PAYMENT OF SALARIES FROM FUNDS MADE AVAILABLE BY THE FEDERAL GOVERNMENT FOR COOPERATIVE AGRICULTURAL EXTENSION WORK PURSUANT TO THE SMITH-LEVER ACT OF MAY 8. WAS EMPLOYED AS DIRECTOR OF AGRICULTURAL EXTENSION DIVISION. HE WAS PAID FROM SMITH-LEVER FUNDS GRANTED TO THE UNIVERSITY OF MINNESOTA AND SALARY CHECKS WERE ISSUED BY THE STATE TREASURER. HE ALSO WAS APPOINTED AS EDUCATIONIST W.A.E. PECK RECEIVED SALARY FROM THE EXTENSION SERVICE DURING THE FOLLOWING PERIODS WHEN HE WAS APPARENTLY ALSO EMPLOYED BY THE BUREAU OF EDUCATION.

B-57844, JUNE 13, 1946, 25 COMP. GEN. 868

APPLICABILITY OF FEDERAL DUAL COMPENSATION AND EMPLOYMENT STATUTES TO STATE AGRICULTURAL EXTENSION SERVICE EMPLOYEES FEDERAL FUNDS GRANTED TO A STATE UNDER THE ACT OF MAY 8, 1914, FOR COOPERATIVE AGRICULTURE EXTENSION WORK, UPON BEING PROPERLY RECEIPTED FOR BY THE STATE, LOSE THEIR IDENTITY AS FEDERAL FUNDS AND BECOME FUNDS OF THE STATE, AND, THEREFORE, THE CONCURRENT EMPLOYMENT BY THE FEDERAL GOVERNMENT OF A STATE EMPLOYEE PAID FROM SUCH FUNDS NEED NOT BE REGARDED AS IN CONTRAVENTION OF THE DUAL COMPENSATION AND EMPLOYMENT STATUTES (5 U.S.C. 58, 62 AND 69,) PROVIDED THE DUAL FEDERAL AND STATE EMPLOYMENT PROHIBITION OF EXECUTIVE ORDER NO. 9, DATED JANUARY 17, 1873, IS NOT FOR APPLICATION.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 13, 1946:

REFERENCE IS MADE TO YOUR LETTER OF MAY 13, 1946, AS FOLLOWS:

IT WILL BE APPRECIATED IF YOU WILL RENDER AN OPINION IN CONNECTION WITH A CLAIM FOR ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT NOW PENDING IN THE COMMISSION RELATIVE TO DUAL PAYMENT OF SALARIES FROM FUNDS MADE AVAILABLE BY THE FEDERAL GOVERNMENT FOR COOPERATIVE AGRICULTURAL EXTENSION WORK PURSUANT TO THE SMITH-LEVER ACT OF MAY 8, 1914, 38 STAT. 372, FOR SERVICE AS A COOPERATIVE EMPLOYEE, DEPARTMENT OF AGRICULTURE, AND APPROPRIATED FUNDS PAID FOR SERVICE AS AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR.

THE DEAN AND DIRECTOR OF THE UNIVERSITY OF MINNESOTA, ST. PAUL, MINNESOTA, CERTIFIED TO THE COMMISSION THAT FRANCIS W. PECK, WAS EMPLOYED AS DIRECTOR OF AGRICULTURAL EXTENSION DIVISION, DEPARTMENT OF AGRICULTURE, UNIVERSITY OF MINNESOTA, FROM JULY 1, 1921 TO SEPTEMBER 30, 1930. HE WAS PAID FROM SMITH-LEVER FUNDS GRANTED TO THE UNIVERSITY OF MINNESOTA AND SALARY CHECKS WERE ISSUED BY THE STATE TREASURER. MR. PECK ALSO RECEIVED AN EXCEPTED APPOINTMENT AS SR. EDUCATIONIST, DEPARTMENT OF THE INTERIOR, BUREAU OF EDUCATION, $5,200 PER ANNUM, FROM AUGUST 8, 1927 AND VOLUNTARILY RESIGNED WITHOUT PREJUDICE ON SEPTEMBER 30, 1927. HE ALSO WAS APPOINTED AS EDUCATIONIST W.A.E. SALARY $3,800 PER ANNUM, DEPARTMENT OF THE INTERIOR, BUREAU OF EDUCATION, EFFECTIVE APRIL 16, 1928. HIS WORK TERMINATED ON DECEMBER 9, 1932.

THE DEPARTMENT OF AGRICULTURE, EXTENSION SERVICE, ADVISED THE COMMISSION ON MARCH 19, 1946 THAT IT REQUESTED THE DIRECTOR OF EXTENSION SERVICE IN MINNESOTA TO FURNISH A REPORT AS TO WHETHER MR. PECK RECEIVED SALARY FROM THE EXTENSION SERVICE DURING THE FOLLOWING PERIODS WHEN HE WAS APPARENTLY ALSO EMPLOYED BY THE BUREAU OF EDUCATION, DEPARTMENT OF THE INTERIOR; MAY 13 TO MAY 20, 1928, MAY 29 TO JUNE 1, 1928, JUNE 5 TO JUNE 8, 1928, JUNE 13 TO JUNE 16, 1928, JUNE 15 TO JULY 13, 1929, JULY 16 TO JULY 31, 1929, AUGUST 1 TO AUGUST 10, 1929 AND NOVEMBER 28 TO DECEMBER 9, 1929. THE REPLY WAS THAT THE PAYROLL RECORDS OF THE MINNESOTA EXTENSION SERVICE INDICATED MR. PECK WAS PAID FULL SALARY FROM EXTENSION FUNDS FROM AUGUST 8, 1927, TO SEPTEMBER 30, 1927, AND ALSO DURING THE PERIOD IN 1928 AND 1929 WHEN HE STATES HE WAS EMPLOYED AS AN EDUCATIONIST WITH THE DEPARTMENT OF THE INTERIOR. ACCORDING TO THE RETIREMENT ACCOUNT CERTIFIED BY THE DEPARTMENT OF THE INTERIOR, MR. PECK WAS PAID A SALARY OF $913.06 FOR THE FISCAL YEAR 1928, $118.75 FOR 1929, AND $588.49 FOR 1930.

PLEASE ADVISE THE COMMISSION WHETHER MR. PECK'S EMPLOYMENT IN THE TWO POSITIONS VIOLATE THE DUAL COMPENSATION STATUTES.

IN DETERMINING THE APPLICABILITY OF THE DUAL COMPENSATION STATUTES TO MR. PECK'S EMPLOYMENT WITH THE EXTENSION DIVISION, DEPARTMENT OF AGRICULTURE, UNIVERSITY OF MINNESOTA, CONCURRENTLY WITH HIS EMPLOYMENT BY THE DEPARTMENT OF THE INTERIOR, BUREAU OF EDUCATION, THE SOLE QUESTION PRESENTED IS WHETHER THE COMPENSATION ATTACHED TO HIS POSITION IN THE AGRICULTURAL EXTENSION SERVICE WAS PAID FROM FEDERAL FUNDS. IN THAT CONNECTION FUNDS USED FOR THAT PURPOSE WERE GRANTED TO THE UNIVERSITY OF MINNESOTA PURSUANT TO THE PROVISIONS OF THE ACT OF MAY 8, 1914 ( SMITH- LEVER ACT, 38 STAT. 372), AND WERE DISBURSED BY THE TREASURER OF THE STATE OF MINNESOTA. THE PURPOSE OF THE SAID ACT WAS TO ESTABLISH COOPERATIVE AGRICULTURAL EXTENSION WORK AMONG THE AGRICULTURAL COLLEGES IN THE SEVERAL STATES AND PROVIDES THAT WHEN A STATE HAS COMPLIED WITH THE PROVISIONS UNDER WHICH THE FUNDS APPROPRIATED THEREBY ARE ALLOTTED TO THE STATES, PAYMENT SHALL BE APPROPRIATED THEREBY ARE ALLOTTED TO THE STATES, PAYMENT SHALL BE MADE IN SEMI-ANNUAL INSTALLMENTS TO THE STATE TREASURER OR OTHER OFFICER DULY AUTHORIZED TO RECEIVE THE SAME. THE PAYMENT TO THE STATE IS OUTRIGHT AND DEPENDS ONLY UPON A PROPER SHOWING THAT THE STATE HAS COMPLIED WITH THE LAW DURING THE PREVIOUS FISCAL YEAR AND THAT THE PLAN OF EXPENDITURE OF FUNDS DURING THE CURRENT FISCAL YEAR IS IN CONFORMITY WITH THE ACT. ACCORDINGLY, HAVING MET THE CONDITIONS IMPOSED BY THE ACT THE GRANT MADE TO A STATE PURSUANT THERETO, UPON BEING RECEIPTED FOR BY THE DULY AUTHORIZED RECEIVING OFFICER, LOSES ITS IDENTITY AS FEDERAL FUNDS AND BECOMES FUNDS OF THAT STATE. SEE 14 COMP. GEN. 916.

IN THE LIGHT OF THE FOREGOING, IT APPEARS THAT MR. PECK WAS AN EMPLOYEE OF THE STATE OF MINNESOTA DURING THE PERIOD OF HIS SERVICES AS DIRECTOR OF THE AGRICULTURAL EXTENSION DIVISION, UNIVERSITY OF MINNESOTA, AND AS SUCH HIS CONCURRENT EMPLOYMENT BY THE FEDERAL GOVERNMENT--- DEPARTMENT OF THE INTERIOR, BUREAU OF EDUCATION--- WAS NOT IN CONTRAVENTION OF THE DUAL COMPENSATION STATUTES. (5 U.S.C. 58, 62 AND 69.) THEREFORE, HIS CLAIM FOR RETIREMENT ANNUITY WOULD NOT APPEAR TO BE AFFECTED THEREBY, PROVIDED IT IS DETERMINED THAT EXECUTIVE ORDER NO. 9 OF JANUARY 17, 1873, IS NOT FOR APPLICATION IN HIS CASE. THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED ACCORDINGLY.