B-77964, OCTOBER 8, 1948, 28 COMP. GEN. 226

B-77964: Oct 8, 1948

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" PROVIDED THAT THE TYPES OF SERVICE REQUIRED OF SUCH PHYSICIANS HAVE BEEN DETERMINED ADMINISTRATIVELY AS NOT CONSTITUTING THEM "EXPERTS.'. WITH THE PROVISION THAT NO EXPENDITURES FOR SUCH TEMPORARY EMPLOYMENT SHALL BE MADE UNLESS PROVISION IS MADE THEREFOR IN THE APPLICABLE APPROPRIATION AND THE COST IS NOT IN EXCESS OF LIMITATIONS PRESCRIBED IN SUCH APPROPRIATION. LIMITS THE RATE TO THE HIGHEST RATE PAYABLE UNDER THE CLASSIFICATION ACT UNLESS OTHER RATES ARE SPECIFICALLY PROVIDED BY LAW. IT IS NOTED THAT SECTION 15. IS NOT CLEAR THAT IT HAS THE SAME EFFECT ON SERVICES OTHER THAN EXPERTS AND CONSULTANTS AS AUTHORIZED BY SECTION 706 (A) SINCE SECTION 15 MAKES NO REFERENCE TO THESE OTHER SERVICES.

B-77964, OCTOBER 8, 1948, 28 COMP. GEN. 226

PERSONAL SERVICES - EXPERTS - APPLICABILITY OF MAXIMUM COMPENSATION LIMITATION OF ACT OF AUGUST 2, 1946 THE MAXIMUM COMPENSATION LIMITATION PRESCRIBED BY SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, WITH RESPECT TO THE PROCUREMENT OF THE TEMPORARY OR INTERMITTENT SERVICES OF "EXPERTS AND CONSULTANTS" HAS APPLICATION TO SUCH PERSONS EMPLOYED BY THE DEPARTMENT OF AGRICULTURE UNDER THE AUTHORITY OF SECTION 706 (A) OF THE ACT OF SEPTEMBER 21, 1944, AND THE CURRENT APPROPRIATION FOR SALARIES AND EXPENSES OF THE FOREST SERVICE AS PROPERLY COME WITHIN THE MEANING OF THE PHRASE "EXPERTS AND CONSULTANTS.' UNDER THE PROVISIONS OF SECTION 706 (A) OF THE ACT OF SEPTEMBER 21, 1944, AUTHORIZING THE DEPARTMENT OF AGRICULTURE TO EMPLOY PERSONS ON A TEMPORARY BASIS WITHOUT REGARD TO THE CLASSIFICATION ACT, THE FOREST SERVICE MAY EMPLOY PHYSICIANS WITHOUT REGARD TO THE MAXIMUM COMPENSATION LIMITATION PRESCRIBED BY SECTION 15 OF THE ADMINISTRATIVE EXPENSE STATUTE OF AUGUST 2, 1946, WITH RESPECT TO THE PROCUREMENT OF THE TEMPORARY SERVICES OF "EXPERTS," PROVIDED THAT THE TYPES OF SERVICE REQUIRED OF SUCH PHYSICIANS HAVE BEEN DETERMINED ADMINISTRATIVELY AS NOT CONSTITUTING THEM "EXPERTS.'

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, OCTOBER 8, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 30, 1948, AS FOLLOWS:

I SHOULD APPRECIATE YOUR EARLY CONSIDERATION OF QUESTIONS HEREINAFTER RAISED CONCERNING EMPLOYMENT OF PERSONS OR SERVICES WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923.

SECTION 706 (A) OF ACT APPROVED SEPTEMBER 21, 1944 (5 U.S.C. 574), AUTHORIZES THIS DEPARTMENT TO EMPLOY PERSONS OR ORGANIZATIONS ON A TEMPORARY BASIS, BY CONTRACT OR OTHERWISE, WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, WITH THE PROVISION THAT NO EXPENDITURES FOR SUCH TEMPORARY EMPLOYMENT SHALL BE MADE UNLESS PROVISION IS MADE THEREFOR IN THE APPLICABLE APPROPRIATION AND THE COST IS NOT IN EXCESS OF LIMITATIONS PRESCRIBED IN SUCH APPROPRIATION. THE FOREST SERVICE SECTION OF THE DEPARTMENT APPROPRIATION ACT FOR THE CURRENT FISCAL YEAR AUTHORIZES "NOT TO EXCEED $10,000 FOR EMPLOYMENT PURSUANT TO THE SECOND SENTENCE OF SECTION 706 (A) OF THE ORGANIC ACT OF 1944 (5 U.S.C. 574), AS AMENDED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946 (PUBLIC LAW 600).' SECTION 15 OF PUBLIC LAW 600 (5 U.S.C. 55A) PERMITS THE HEAD OF ANY DEPARTMENT, WHEN AUTHORIZED IN AN APPROPRIATION OR OTHER ACT, TO PROCURE THE TEMPORARY OR INTERMITTENT SERVICES OF "EXPERTS OR CONSULTANTS OR ORGANIZATIONS THEREOF, INCLUDING STENOGRAPHIC REPORTING SERVICES, BY CONTRACT". THIS SECTION, AS TO AGENCIES SUBJECT TO THE CLASSIFICATION ACT, LIMITS THE RATE TO THE HIGHEST RATE PAYABLE UNDER THE CLASSIFICATION ACT UNLESS OTHER RATES ARE SPECIFICALLY PROVIDED BY LAW.

IT IS NOTED THAT SECTION 15, WHICH CONTAINS THE CLASSIFICATION ACT RATE LIMITATION, RELATES ONLY TO SERVICES OF EXPERTS OR CONSULTANTS WHILE SECTION 706 (A) PERMITS EMPLOYMENT OF PERSONS OR ORGANIZATIONS FOR ANY KIND OF SERVICE WITHOUT REGARD TO THE CLASSIFICATION ACT. IT SEEMS CLEAR THAT THE REFERENCE IN THE FOREST SERVICE SECTION OF THE APPROPRIATION ACT TO SECTION 15 OF PUBLIC LAW 600 RESTRICTS THE RATE FOR EXPERTS AND CONSULTANTS TO THE HIGHEST RATE AUTHORIZED BY THE CLASSIFICATION ACT. IS NOT CLEAR THAT IT HAS THE SAME EFFECT ON SERVICES OTHER THAN EXPERTS AND CONSULTANTS AS AUTHORIZED BY SECTION 706 (A) SINCE SECTION 15 MAKES NO REFERENCE TO THESE OTHER SERVICES. YOUR DECISION IS DESIRED, THEREFORE, AS TO WHETHER THE HIGHEST RATE SPECIFIED BY THE CLASSIFICATION ACT IS THE HIGHEST THAT MAY BE PAID FOR SERVICES OTHER THAN EXPERTS OR CONSULTANTS, UNDER THE AUTHORIZATION IN THE FOREST SERVICE SECTION OF THE APPROPRIATION ACT.

IF IT IS HELD THAT OTHER SERVICES ARE NOT LIMITED TO THE HIGHEST RATE IN THE CLASSIFICATION ACT, THE SITUATION HEREINAFTER DISCUSSED COULD BE ARRANGED FOR UNDER THE AUTHORITY OF SECTION 706 (A). IF LIMITED TO THE HIGHEST CLASSIFICATION ACT RATE, FURTHER CONSIDERATION IS DESIRED OF THE SPECIFIC CASE NOW UNDER CONSIDERATION.

SECTION 6 OF AN ACT APPROVED MARCH 3, 1925 (16 U.S.C. 557), PROVIDES THAT MONEYS APPROPRIATED FOR THE "GENERAL EXPENSES" OF THE FOREST SERVICE MAY BE EXPENDED FOR MEDICAL ATTENTION FOR EMPLOYEES OF THE FOREST SERVICE LOCATED AT ISOLATED SITUATIONS, INCLUDING THEIR MOVEMENT TO HOSPITALS OR OTHER PLACES WHERE MEDICAL ASSISTANCE IS AVAILABLE. OCCASIONALLY, BECAUSE OF A SERIOUS INJURY OR SERIOUS ILLNESS IN A REMOTE SECTION NOT READILY ACCESSIBLE BY VEHICULAR MEANS, IT IS DESIRABLE THAT A PHYSICIAN BE BROUGHT TO THE LOCATION AS QUICKLY AS POSSIBLE, WHICH MAY BE BY MEANS OF AIRPLANE AND PARACHUTE. IN MONTANA DURING THE PAST FEW YEARS WE HAVE HAD AN ARRANGEMENT WITH A PHYSICIAN TRAINED IN PARACHUTING UNDER WHICH HE ATTENDED A FEW OF THESE CASES, USUALLY FROM ONE TO THREE A YEAR. PAYMENT WAS MADE AT A CLASSIFIED RATE; HOWEVER, BECAUSE OF THE RISK INVOLVED THE COST TO HIM FOR LIFE AND ACCIDENT INSURANCE FOR SUCH TRAVEL IS VERY HIGH, RESULTING IN A PERSONAL FINANCIAL LOSS TO HIM BECAUSE OF THIS SERVICE. UNDERSTAND HIS INSURANCE COST ON ACCOUNT OF THE AIRPLANE AND PARACHUTE TRAVEL HAS BEEN APPROXIMATELY $300 A YEAR. BECAUSE OF THIS HE IS UNWILLING TO CONTINUE THE PREVIOUS ARRANGEMENT BUT IS WILLING TO CONTINUE THIS CLASS OF SERVICE WHEN NEEDED IF HE CAN BE PAID A RETAINER FEE OF $500 (WHICH WILL MORE THAN COVER THE ANNUAL INSURANCE COST TO HIM) PLUS A SPECIFIED AMOUNT FOR EACH SUCH FLIGHT; NORMALLY WE WOULD EXPECT FROM ONE TO THREE SUCH FLIGHTS A YEAR. IT WOULD NOT BE POSSIBLE TO ADEQUATELY COMPENSATE HIM ON THE BASIS OF PART-TIME EMPLOYMENT IN A CLASSIFIED POSITION SINCE THE PERCENTAGE OF HIS TIME ACTUALLY DEVOTED TO THIS SERVICE WOULD BE SO SMALL AS NOT TO RESULT IN ANY SUBSTANTIAL EARNINGS.

IF THE EMPLOYMENT ARRANGEMENT CANNOT BE MADE BY CONTRACT OR APPOINTMENT WITHOUT CLASSIFICATION RATE RESTRICTION UNDER SECTION 706 (A) OF THE 1944 ACT, YOUR FURTHER DECISION IS DESIRED AS TO WHETHER HE MAY BE PAID ON A FEE BASIS WITHOUT RESTRICTION AS TO AMOUNT, HAVING IN MIND A RETAINER FEE OF $500 AND SUCH AMOUNT AS MAY BE AGREED UPON FOR EACH FLIGHT, OR PERHAPS DIFFERENT RATES FOR VARIOUS TYPES OF FLIGHT CONSIDERING HAZARD, LENGTH OF TIME CONSUMED, NUMBER OF PERSONS TREATED, ETC. IN ORDER THAT SUCH ARRANGEMENT AS IS POSSIBLE MAY BE MADE BEFORE A SERIOUS FIRE SITUATION DEVELOPS IN THAT REGION, I SHOULD APPRECIATE YOUR EARLY DECISION AS TO THESE QUESTIONS.

THE FOLLOWING QUESTIONS CONCERN ASSISTANCE TO PERSONS OTHER THAN EMPLOYEES. SECTION 3 OF AN ACT APPROVED MAY 27, 1930 (16 U.S.C. 575), AUTHORIZES INCURRENCE OF SUCH EXPENSES AS MAY BE NECESSARY IN TRANSPORTING PERSONS SERIOUSLY ILL OR INJURED WITHIN THE NATIONAL FORESTS TO THE NEAREST PLACE WHERE THE SICK OR INJURED PERSON MAY BE TRANSFERRED TO INTERESTED PARTIES OR LOCAL AUTHORITIES. THE PATIENT'S CONDITION MAY BE SUCH AS TO REQUIRE MEDICAL ATTENDANCE FOR SAFE TRANSPORTATION. IT HAS BEEN OUR ASSUMPTION THAT SHOULD SUCH ATTENDANCE BE ESSENTIAL AND THE PATIENT, BECAUSE OF HIS CONDITION OR LACK OF FUNDS, IS UNABLE TO ASSUME THE COST, THE FOREST SERVICE APPROPRIATION COULD BE EXPENDED FOR A MEDICAL ATTENDANT. I SHOULD APPRECIATE YOUR DECISION AS TO WHETHER THIS ASSUMPTION IS CORRECT.

FURTHER, IF IT IS DECIDED THAT A PHYSICIAN'S SERVICES MAY BE OBTAINED BY EMPLOYMENT WITHOUT REGARD TO CLASSIFICATION OR ON A FEE BASIS, AS PREVIOUSLY DISCUSSED, DECISION IS DESIRED AS TO WHETHER THE SAME RULING WOULD APPLY FOR EMPLOYMENT OF THE PHYSICIAN TO ATTEND A PATIENT, NOT AN EMPLOYEE, BEING TRANSPORTED UNDER THE AUTHORITY OF THE 1930 ACT.

SECTION 706 (A) OF THE ACT OF SEPTEMBER 21, 1944 (CODIFIED AS 5 U.S.C. 574), PROVIDES:

THE DEPARTMENT OF AGRICULTURE MAY EMPLOY PERSONS OR ORGANIZATIONS, ON A TEMPORARY BASIS, BY CONTRACT OR OTHERWISE, WITHOUT REGARD TO SECTIONS 661- 663, 664-669, 670-672, 673, AND 674 OF THIS TITLE: PROVIDED, THAT NO EXPENDITURES FOR SUCH TEMPORARY EMPLOYMENT SHALL BE MADE UNLESS PROVISION IS MADE THEREFOR IN THE APPLICABLE APPROPRIATION AND THE COST THEREOF IS NOT IN EXCESS OF LIMITATIONS PRESCRIBED THEREIN.

THE DEPARTMENT OF AGRICULTURE APPROPRIATION ACT, 1949, PUBLIC LAW 712, 62 STAT. 520, UNDER THE HEADING,"FOREST SERVICE," PROVIDES:

FOR EXPENSES NECESSARY, INCLUDING NOT TO EXCEED $1,097,582 FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA, NOT TO EXCEED $10,000 FOR EMPLOYMENT PURSUANT TO THE SECOND SENTENCE OF SECTION 706 (A) OF THE ORGANIC ACT OF 1944 (5 U.S.C. 574), AS AMENDED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946 (5 U.S.C. 55A) * * *.

SECTION 15 OF THE ACT OF AUGUST 2, 1946, 60 STAT. 810, REFERRED TO IN YOUR LETTER, SUPRA, READS AS FOLLOWS:

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 AUTHORITY CONFERRED UPON THE DEPARTMENT OF AGRICULTURE UNDER THE ABOVE-QUOTED PROVISION OF THE ACT OF SEPTEMBER 21, 1944, IS SUFFICIENTLY BROAD TO INCLUDE THE TEMPORARY HIRE OF EXPERTS AND CONSULTANTS, BUT, AS POINTED OUT IN YOUR LETTER, SECTION 15 OF THE ACT OF AUGUST 2, 1946, SUPRA, SPECIFICALLY REFERS TO "EXPERTS OR CONSULTANTS OR ORGANIZATIONS THEREOF.' HENCE, IN ORDER TO GIVE EFFECT TO THE PROVISIONS OF SECTION 15, SUPRA, IT REASONABLY APPEARS THAT, SO FAR AS CONCERNS PERSONS APPOINTED UNDER THE AUTHORITY CONTAINED IN THE 1949 APPROPRIATION FOR SALARIES AND EXPENSES, FOREST SERVICE, ONLY SUCH PERSONS AS PROPERLY COME WITHIN THE MEANING OF THE PHRASE, ,CONSULTANTS OR EXPERTS," AS USED IN THE SAID SECTION 15 OF THE 1946 STATUTE, ARE SUBJECT TO THE SALARY LIMITATION PRESCRIBED IN THAT SECTION. YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY.

SECTION 6 OF THE ACT OF MARCH 3, 1925, 43 STAT. 1133 (16 U.S.C. 557), AND SECTION 3 OF THE ACT OF MAY 27, 1930, 46 STAT. 387 (16 U.S.C. 575), PROVIDE, RESPECTIVELY, AS FOLLOWS (QUOTING FROM THE CODE):

THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO FURNISH SUBSISTENCE TO EMPLOYEES OF THE FOREST SERVICE, TO PURCHASE PERSONAL EQUIPMENT AND SUPPLIES FOR THEM, AND TO MAKE DEDUCTIONS THEREFOR FROM MONEYS APPROPRIATED FOR SALARY PAYMENTS OR OTHERWISE DUE SUCH EMPLOYEES. HE IS ALSO AUTHORIZED, IN HIS DISCRETION, TO PROVIDE OUT OF MONEYS APPROPRIATED FOR THE GENERAL EXPENSES OF THE FOREST SERVICE MEDICAL ATTENTION FOR EMPLOYEES OF THE FOREST SERVICE LOCATED AT ISOLATED SITUATIONS, INCLUDING THE MOVING OF SUCH EMPLOYEES TO HOSPITALS OR OTHER PLACES WHERE MEDICAL ASSISTANCE IS AVAILABLE, AND IN CASE OF DEATH TO REMOVE THE BODIES OF DECEASED EMPLOYEES TO THE NEAREST PLACE WHERE THEY CAN BE PREPARED FOR SHIPMENT OR FOR BURIAL.

THE SECRETARY OF AGRICULTURE IS AUTHORIZED IN CASES OF EMERGENCY TO INCUR SUCH EXPENSES AS MAY BE NECESSARY IN SEARCHING FOR PERSONS LOST IN THE NATIONAL FORESTS AND IN TRANSPORTING PERSONS SERIOUSLY ILL, INJURED, OR WHO DIE WITHIN THE NATIONAL FORESTS TO THE NEAREST PLACE WHERE THE SICK OR INJURED PERSON, OR THE BODY, MAY BE TRANSFERRED TO INTERESTED PARTIES OR LOCAL AUTHORITIES.

SECTION 557 OF TITLE 16 OF THE U.S.C. SUPRA, EXPRESSLY AUTHORIZES THE FURNISHING OF MEDICAL ATTENTION TO EMPLOYEES OF THE FOREST SERVICE UNDER THE CONDITIONS THEREIN SET FORTH; AND WHILE MEDICAL ATTENTION IS NOT SPECIFICALLY MENTIONED IN SECTION 575 RESPECTING PERSONS SERIOUSLY ILL, INJURED, OR WHO DIE WITHIN THE NATIONAL FOREST, IT WOULD APPEAR THAT THE FURNISHING OF SUCH ATTENTION AND ASSISTANCE IS A NECESSARY ADJUNCT TO THE SERVICES PARTICULARLY AUTHORIZED. THE TEMPORARY EMPLOYMENT OF PHYSICIANS TO RENDER MEDICAL ASSISTANCE AS CONTEMPLATED BY THE STATUTORY PROVISIONS HERE CONSIDERED, IN THE ABSENCE OF ANY SPECIFIC APPROPRIATION THEREFOR, APPEARS TO COME WITHIN THE PURVIEW OF THE 1949 APPROPRIATION PROVISION QUOTED ABOVE. CONSEQUENTLY, IF, AS HEREINBEFORE STATED, THE TYPES OF SERVICE REQUIRED OF PHYSICIANS SO EMPLOYED HAVE BEEN DETERMINED AS NOT CONSTITUTING THEM "EXPERTS" , SUCH PHYSICIANS MAY BE EMPLOYED UPON SUCH BASIS AS ADMINISTRATIVELY DETERMINED, WITHIN THE APPROPRIATION LIMITATION, WITHOUT REGARD TO THE MAXIMUM SALARY RATE PRESCRIBED IN SECTION 15 OF THE SAID ACT OF AUGUST 2, 1946. YOUR ADDITIONAL QUESTIONS ARE ANSWERED ACCORDINGLY.