B-77331, JUNE 24, 1948, 27 COMP. GEN. 776

B-77331, JUNE 24, 1948, 27 COMP. GEN. 776

EXPERTS AND CONSULTANTS - ENTITLEMENT TO OVERTIME COMPENSATION EXPERTS AND CONSULTANTS APPOINTED PURSUANT TO SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, PROVIDING FOR THE PROCUREMENT, IF OTHERWISE AUTHORIZED, OF TEMPORARY OR INTERMITTENT SERVICES OF SUCH PERSONNEL BY CONTRACT, ARE NOT "FULL-TIME" OFFICERS OR EMPLOYEES WITHIN THE CONTEMPLATION OF SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 SO AS TO BE ENTITLED UNDER THE OVERTIME COMPENSATION PROVISIONS OF SECTION 201 OF SUCH ACT TO THE COMPENSATION PRESCRIBED THEREIN IN ADDITION TO THAT ALLOWED UNDER THEIR CONTRACTS OF EMPLOYMENT FOR HOURS WORKED IN EXCESS OF THE BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, JUNE 24, 1948:

I HAVE YOUR LETTER OF JUNE 10, 1948, AS FOLLOWS:

A CONSULTANT WAS APPOINTED IN THE OFFICE OF THE SECRETARY PURSUANT TO SECTION 15 OF THE ACT OF AUGUST 2, 1946 (5 U.S.C. 1946 ED., SEC. 55A), FOR A PERIOD OF NOT TO EXCEED SIXTY DAYS, AND AT A SALARY FIXED AT $35 PER DAY IN ACCORDANCE WITH THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1948 ( PUBLIC LAW 247, 80TH CONG., P. 1).

THIS EMPLOYEE WAS GIVEN AN ASSIGNMENT AWAY FROM HIS HEADQUARTERS, THE NATURE OF WHICH REQUIRED ACTIVE DUTY FOR 23 1/2 CONSECUTIVE DAYS. IT IS PROPOSED TO PAY HIM FOR 23 1/2 CONSECUTIVE DAYS AT THE RATE OF $35 PER DAY, OR $822.50, PLUS PER DIEM FOR THE SAME PERIOD AND TRAVELING EXPENSES. THIS ACTION SEEMS TO BE PROPER AND IN ACCORDANCE WITH YOUR DECISION B-72087, DATED MARCH 24, 1948. IT SEEMS CLEAR THAT THE CONSULTANT WAS NOT A FULL-TIME OFFICER OR EMPLOYEE WITHIN THE MEANING OF SECTION 604 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (5 U.S.C. 1946 ED., SEC. 944), AND THAT THE OVERTIME PROVISIONS OF SECTION 201 OF THAT ACT (5 U.S.C. 1946 ED., SEC. 911), THEREFORE, WERE INAPPLICABLE TO HIM. MOREOVER, THE CONSULTANT'S SALARY WAS FIXED AT A FLAT RATE OF $35 PER DAY PER PURSUANT TO THE PROVISIONS OF THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1948, CITED ABOVE.

ADVICE AS TO WHETHER YOUR OFFICE WOULD BE COMPELLED TO OBJECT TO THE PAYMENT WHICH THIS DEPARTMENT PROPOSES TO MAKE IN THIS CASE IS REQUESTED.

SECTION 1 OF THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1948, PUBLIC LAW 247, APPROVED JULY 25, 1947, 61 STAT. 460, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

OFFICE OF THE SECRETARY

SALARIES

SALARIES.--- FOR THE SECRETARY OF THE INTERIOR HEREAFTER IN THIS ACT REFERRED TO AS THE SECRETARY), AND OTHER PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE, INCLUDING TEMPORARY SERVICES AS AUTHORIZED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946 ( PUBLIC LAW 600), BUT AT RATES FOR INDIVIDUALS NOT IN EXCESS OF $35 PER DIEM, $1,103,000 * * *.

SECTION 15 OF PUBLIC LAW 600, 60 STAT. 810, REFERRED TO IN THE APPROPRIATION ACT JUST QUOTED, PROVIDES:

SEC. 15.--- THE HEAD OF ANY DEPARTMENT, WHEN AUTHORIZED IN AN APPROPRIATION OR OTHER ACT, MAY PROCURE THE TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS OR ORGANIZATIONS THEREOF, INCLUDING STENOGRAPHIC REPORTING SERVICES, BY CONTRACT, AND IN SUCH CASES SUCH SERVICE SHALL BE WITHOUT REGARD TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS (BUT AS TO AGENCIES SUBJECT TO THE CLASSIFICATION ACT AT RATES NOT IN EXCESS OF THE PER DIEM EQUIVALENT OF THE HIGHEST RATE PAYABLE UNDER THE CLASSIFICATION ACT, UNLESS OTHER RATES ARE SPECIFICALLY PROVIDED IN THE APPROPRIATION OR OTHER LAW) AND, EXCEPT IN THE CASE OF STENOGRAPHIC REPORTING SERVICES BY ORGANIZATIONS, WITHOUT REGARD TO SECTION 3709, REVISED STATUTES, AS AMENDED BY THIS ACT.

THE QUESTION WHETHER EXPERTS OR CONSULTANTS EMPLOYED PURSUANT TO THE PROVISIONS OF SECTION 15, SUPRA, UNDER STATUTORY AUTHORITY SUCH AS THAT CONTAINED IN THE ABOVE-QUOTED PORTION OF THE INTERIOR DEPARTMENT APPROPRIATION ACT ARE ENTITLED TO THE PER DIEM RATE FIXED IN THEIR CONTRACTS OR TO OVERTIME COMPENSATION AT THE RATES PRESCRIBED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, FOR ALL HOURS OF EMPLOYMENT IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK ARISES BY VIRTUE OF THE LANGUAGE CONTAINED IN SECTION 201, TITLE II, OF THE SAID 1945 STATUTE, 59 STAT. 296, WHICH READS:

SEC. 201. OFFICERS AND EMPLOYEES TO WHOM THIS TITLE APPLIES SHALL, IN ADDITION TO THEIR BASIC COMPENSATION, BE COMPENSATED FOR ALL HOURS OF EMPLOYMENT, OFFICIALLY ORDERED OR APPROVED, IN EXCESS OF FORTY HOURS IN ANY ADMINISTRATIVE WORKWEEK, AT OVERTIME RATES AS FOLLOWS: (ITALICS SUPPLIED.) WITH RESPECT TO THE REQUIREMENT CONTAINED IN SAID QUOTED SECTION 201 THAT OVERTIME BE PAID FOR HOURS OF EMPLOYMENT IN EXCESS OF 40 "IN ANY ADMINISTRATIVE WORKWEEK" IT WILL BE NOTED THAT SECTION 604 (A) OF THE SAID FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 303, SPECIFICALLY PROVIDES THAT:

IT SHALL BE THE DUTY OF THE HEADS OF THE SEVERAL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS AND AGENCIES IN THE EXECUTIVE BRANCH, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, AND THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, TO ESTABLISH AS OF THE EFFECTIVE DATE OF THIS ACT, FOR ALL FULL-TIME OFFICERS AND EMPLOYEES IN THEIR RESPECTIVE ORGANIZATIONS, IN THE DEPARTMENTAL AND THE FIELD SERVICES, A BASIC ADMINISTRATIVE WORKWEEK OF FORTH HOURS, AND TO REQUIRE THAT THE HOURS OF WORK IN SUCH WORKWEEK BE PERFORMED WITHIN A PERIOD OF NOT MORE THAN SIX OF ANY SEVEN CONSECUTIVE DAYS. (ITALICS SUPPLIED.)

FROM THE ITALICIZED PORTION OF SECTION 604 (A), SUPRA, IT WILL BE SEEN THAT A BASIS ADMINISTRATIVE WORKWEEK OF 40 HOURS IS REQUIRED TO BE ESTABLISHED ONLY FOR "FULL-TIME" OFFICERS AND EMPLOYEES. HENCE, THERE SEEMS LITTLE DOUBT THAT THE OVERTIME COMPENSATION PROVISIONS OF THE SAID SECTION 201 OF THE 1945 STATUTE ARE FOR APPLICATION ONLY TO "FULL TIME" OFFICERS AND EMPLOYEES.

IT MAY BE STATED THAT, GENERALLY, WHERE LEGISLATION AUTHORIZES THE APPOINTMENT OF "EXPERTS" OR ,CONSULTANTS" APPOINTMENTS THEREUNDER, WHILE PREDOMINANTLY FOR TEMPORARY OR INTERMITTENT SERVICES, ARE NOT NECESSARILY SO LIMITED AND, IN PROPER CASES, MAY BE MADE UPON A PERMANENT, FULL-TIME BASIS. SEE 16 COMP. GEN. 703, ANSWER TO QUESTION 8. HOWEVER, IT SEEMS CLEAR FROM A READING OF THE LANGUAGE IN SECTION 15 OF PUBLIC LAW 600, HEREIN REFERENCE SPECIFICALLY IS MADE TO "TEMPORARY * * * OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS," THAT THE EMPLOYMENT THEREIN CONTEMPLATED IS OF A TEMPORARY OR IRREGULAR AND INTERMITTENT NATURE. ANY DOUBT THAT SUCH WAS THE LEGISLATIVE INTENT IN THE MATTER WOULD SEEM TO BE DISPELLED OR RESOLVED BY REFERENCE TO THE REPORT OF THE HEARINGS HELD FEBRUARY 13, 1946, BEFORE THE COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS, HOUSE OF REPRESENTATIVES, CONSIDERING H.R. 4586, THE PROVISIONS OF WHICH, AS AMENDED, SUBSEQUENTLY BECAME PUBLIC LAW 600, WHEREIN THE FOLLOWING STATEMENTS, INTER ALIA, APPEAR RESPECTING THE EMPLOYMENT OF EXPERTS AND CONSULTANTS:

MR. LAWTON. THERE ARE AUTHORITIES IN APPROPRIATION BILLS SCATTERED ALL THROUGH BILLS FOR THE APPOINTMENT OF EXPERTS.

MR. WHITTINGTON. THEY ARE PER DIEM PEOPLE GENERALLY?

MR. LAWTON. THEY ARE PER DIEM, OR PERSONS PAID AT THE SALARY RATE WHICH IS IN EXCESS OF THE CIVIL-SERVICE RATE. THEY MAY BE HIRED FOR A MONTH AT A GIVEN SALARY RATE. GENERALLY, I WOULD SAY THAT BETTER THAN 90 PERCENT OF THEM WOULD BE PERSONS PAID ON A PER DIEM RATE OF PAY.

MR. LAWTON. THIS BILL SIMPLY PROVIDES THAT THE HEAD OF A DEPARTMENT, WHEN SPECIFICALLY AUTHORIZED IN AN APPROPRIATION OR OTHER ACT, MAY PROCURE THE SERVICES OF TEMPORARY EXPERTS, OR THE TEMPORARY SERVICES OF EXPERTS *

IN THE LIGHT OF THE FOREGOING, IT APPEARS REASONABLE TO CONCLUDE THAT THE LANGUAGE CONTAINED IN SECTION 15 OF PUBLIC LAW 600, REFERRING SPECIFICALLY, AS IT DOES, TO "TEMPORARY" OR "INTERMITTENT" EXPERTS AND CONSULTANTS, CONTEMPLATES ONLY THE EMPLOYMENT OF SUCH PERSONS FOR BRIEF PERIODS, OR INTERMITTENTLY, AS DISTINGUISHED FROM A FULL-TIME OR PERMANENT BASIS. HENCE, EXPERTS AND CONSULTANTS APPOINTED UNDER AUTHORITY SUCH AS THAT CONTAINED IN SECTION 1 OF THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1948, QUOTED ABOVE, PROPERLY MAY NOT BE APPOINTED FOR FULL-TIME SERVICE AS CONTEMPLATED BY SECTION 604 (A) OF THE 1945 ACT, AND, CONSEQUENTLY, THEY ARE NOT SUBJECT TO THE OVERTIME PROVISIONS OF SECTION 201 OF THAT ACT. ACCORDINGLY, SUCH EMPLOYEES, IF EMPLOYED ON A PER DIEM BASIS, ARE ENTITLED, FOR EACH DAY OF SERVICE, TO THE PER DIEM RATE PRESCRIBED IN THEIR CONTRACTS OF EMPLOYMENT REGARDLESS OF THE TOTAL NUMBER OF HOURS WORKED OR THEIR DAILY RATE OF COMPENSATION.

THEREFORE, THE QUESTION PRESENTED IN YOUR LETTER IS ANSWERED IN THE NEGATIVE.