B-7895, APRIL 10, 1940, 19 COMP. GEN. 849

B-7895: Apr 10, 1940

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CLASSIFICATION - PART-TIME DENTISTS PART-TIME DENTISTS IN THE INDIAN FIELD SERVICE WHO ARE EMPLOYED TO FURNISH MATERIALS. ARE NOT REQUIRED TO BE CLASSIFIED PURSUANT TO THE PROVISIONS OF SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3. AS FOLLOWS: THERE IS ENCLOSED A COPY OF A LETTER OF SEPTEMBER 9. THIS EMPLOYEE IS SERVING UNDER AN APPOINTMENT BY THE SECRETARY OF THE INTERIOR ON A PART-TIME BASIS AT $1. FOR SOME YEARS DENTISTS IN THE INDIAN FIELD SERVICE WHO RENDER PART TIME SERVICE HAVE BEEN APPOINTED BY THE SECRETARY OF THE INTERIOR. AFTER PROPOSALS HAVE BEEN CIRCULATED AMONG LOCAL REPUTABLE DENTISTS WHO MIGHT BE INTERESTED IN SUCH EMPLOYMENT. THERE IS ATTACHED A COPY OF THE PROPOSAL BLANK ( FORM 5-454) WHICH IS FURNISHED THE PROSPECTIVE APPOINTEES BY THE SUPERINTENDENT OF THE AGENCY.

B-7895, APRIL 10, 1940, 19 COMP. GEN. 849

CLASSIFICATION - PART-TIME DENTISTS PART-TIME DENTISTS IN THE INDIAN FIELD SERVICE WHO ARE EMPLOYED TO FURNISH MATERIALS, SUPPLIES, EQUIPMENT, AND PRIVATE OFFICE FACILITIES, IN ADDITION TO THEIR SERVICES, ARE NOT REQUIRED TO BE CLASSIFIED PURSUANT TO THE PROVISIONS OF SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, APRIL 10, 1940:

CONSIDERATION HAS BEEN GIVEN THE MATTER SUBMITTED IN YOUR LETTER OF JANUARY 4, 1940, AS FOLLOWS:

THERE IS ENCLOSED A COPY OF A LETTER OF SEPTEMBER 9, 1939, ADDRESSED TO THE INDIAN OFFICE BY THE CIVIL PAY AND TRAVEL SECTION OF THE GENERAL ACCOUNTING OFFICE REQUESTING INFORMATION RELATIVE TO THE CLASSIFICATION STATUS OF THE POSITION OCCUPIED BY DR. FRED MULLER, DENTIST, IN THE INDIAN SERVICE AT THE TAOS HOSPITAL, UNITED PUEBLOS AGENCY, NEW MEXICO.

THIS EMPLOYEE IS SERVING UNDER AN APPOINTMENT BY THE SECRETARY OF THE INTERIOR ON A PART-TIME BASIS AT $1,200 PER ANNUM. HIS POSITION HAS NOT BEEN CLASSIFIED UNDER THE PROVISIONS OF THE CLASSIFICATION ACT. FOR THIS REASON THE GENERAL ACCOUNTING OFFICE HAS TAKEN EXCEPTION TO THE ACCOUNTS OF THE SUPERINTENDENT OF THE ABOVE-NAMED AGENCY.

FOR SOME YEARS DENTISTS IN THE INDIAN FIELD SERVICE WHO RENDER PART TIME SERVICE HAVE BEEN APPOINTED BY THE SECRETARY OF THE INTERIOR, AFTER PROPOSALS HAVE BEEN CIRCULATED AMONG LOCAL REPUTABLE DENTISTS WHO MIGHT BE INTERESTED IN SUCH EMPLOYMENT. THESE APPOINTEES TAKE THE REGULAR OATH OF OFFICE ( STANDARD FORM 8) IN THE SAME MANNER AS OTHER OFFICERS AND EMPLOYEES OF THE INDIAN SERVICE.

THERE IS ATTACHED A COPY OF THE PROPOSAL BLANK ( FORM 5-454) WHICH IS FURNISHED THE PROSPECTIVE APPOINTEES BY THE SUPERINTENDENT OF THE AGENCY, HOSPITAL OR SCHOOL, TOGETHER WITH A COPY OF INDIAN OFFICE LETTER SENDING THE FORMS TO THE SUPERINTENDENT FOR CIRCULATION AND EXECUTION. THIS LETTER IS NOT A STANDARD FORM, BUT VARIES FROM TIME TO TIME.

PRIOR TO FEBRUARY 1, 1939, DENTISTS WERE APPOINTED UNDER THE PROVISIONS OF SCHEDULE A-VIII-5 (D) OF THE CIVIL SERVICE RULES, WHICH READS AS FOLLOWS:

"PHYSICIANS AND DENTISTS EMPLOYED IN THE INDIAN SERVICE AND RECEIVING NOT MORE THAN $1,200 PER ANNUM SALARY, WHO MAY LAWFULLY PERFORM THEIR OFFICIAL DUTIES IN CONNECTION WITH THEIR PRIVATE PRACTICE, SUCH EMPLOYMENT, HOWEVER, TO BE SUBJECT TO THE APPROVAL OF THE COMMISSION.'

SINCE FEBRUARY 1, 1939, DENTISTS HAVE BEEN APPOINTED UNDER THE PROVISION OF SCHEDULE A-VIII-9, OF THE SAME RULES, WHICH IS QUOTED AS FOLLOWS:

"LOCAL PHYSICIANS AND DENTISTS EMPLOYED IN THE INDIAN SERVICE ON A PART- TIME OR FEE BASIS OR UNDER CONTRACT, WHEN, IN THE OPINION OF THE COMMISSION, THE ESTABLISHMENT OF REGISTERS IS IMPRACTICABLE.'

DR. MULLER WAS EMPLOYED ON A FIELD AGREEMENT AS DENTIST, $100 PER MONTH, AT THE UNITED PUEBLOS AGENCY, TAOS, NEW MEXICO, EFFECTIVE MAY 16, 1935, AFTER SUBMITTING A PROPOSAL IN THE FOLLOWING TERMS TO FURNISH DENTAL SERVICE AT $1,200 PER ANNUM. THESE TERMS WERE INCORPORATED IN THE FORMAL LETTER OF APPOINTMENT AT $1,200 PER ANNUM ISSUED TO HIM BY THE SECRETARY OF THE INTERIOR, SEPTEMBER 24, 1935:

"TO DEVOTE EITHER TWO AFTERNOONS OR ONE FULL DAY A WEEK TO THE DENTAL NEEDS OF THE SCHOOL CHILDREN OF THE TAOS PUEBLOS, AND TO RENDER ANY ADDITIONAL SERVICE AS EMERGENCIES DEMAND. I WILL INSTALL A DENTAL CHAIR, DENTAL ENGINE, AND OTHER NECESSARY EQUIPMENT AT THE TAOS HOSPITAL, AND WILL FURNISH PERSONAL TRANSPORTATION AND MATERIAL, SUCH MATERIAL BEING LIMITED TO AMALGAM, CEMENT, AND SILICATES.'

THE ENTRANCE SALARY RATE FOR A FULL-TIME DENTIST IN THE INDIAN SERVICE IS $2,600, GRADE FCS-11 (P-2). UNDER THE TERMS OF HIS PROPOSAL AND HIS APPOINTMENT, DR. MULLER WORKS ONE FULL DAY OR TWO AFTERNOONS EACH WEEK. ON THE BASIS OF MEASURABLE TIME GIVEN TO GOVERNMENT SERVICE WHICH DOES NOT INCLUDE ANY TIME ON EMERGENCY CASES, IT WOULD BE NECESSARY IN ORDER TO COMPLY WITH THE PRINCIPLES OF THE CLASSIFICATION ACT AND APPLICABLE DECISIONS TO FIX THE RATE OF COMPENSATION IN HIS CASE AT $433.33 WHICH REPRESENTS 1/6 OF FULL TIME AT $2,600 PER ANNUM. IT IS NOT BELIEVED, HOWEVER, THAT THE RATE OF COMPENSATION IN THIS INSTANCE IS DETERMINABLE ACCORDING TO THE PRINCIPLES OF CLASSIFICATION INASMUCH AS THE SALARY CALCULATION OF $433.33 PER ANNUM DOES NOT TAKE INTO CONSIDERATION THE COMPENSATION TO WHICH THE DENTIST IS REASONABLY ENTITLED FOR EMERGENCY WORK AND FOR NONPERSONAL SERVICE--- FURNISHING EQUIPMENT AND SUPPLIES; THE LATTER ARE EXTRANEOUS ITEMS FOREIGN TO CLASSIFICATION WHICH DEALS EXCLUSIVELY WITH ELEMENTS OF PERSONAL SERVICE, NAMELY DUTIES, RESPONSIBILITIES, AND QUALIFICATIONS. THE PROVISIONS OF THE PROPOSAL AND APPOINTMENT AS A WHOLE ARE REGARDED AS CONSTITUTING NONPERSONAL SERVICES, AND SUCH SERVICES HAVE BEEN DEFINED AS THOSE NECESSITATING THE FURNISHING OF BOTH PERSONAL SERVICE AND MATERIAL OR SUPPLIES. 6 C.G. 180.

IN THE DECISION CITED ABOVE THE MAKING OF A CONTRACT AFTER DUE COMPLIANCE WITH THE PROVISIONS OF SECTIONS 3709 AND 3744 OF THE REVISED STATUTES WAS SAID TO BE THE REQUIRED PROCEDURE, BUT IN A DECISION IN ANOTHER CASE SIMILAR TO THE ONE CONSIDERED HEREIN (11 C.G. 488), WHERE A PHYSICIAN WAS EMPLOYED BY THE VETERANS' ADMINISTRATION UNDER APPOINTMENT TO MAKE ALL X- RAY AND LABORATORY EXAMINATIONS FOR A REGIONAL OFFICE WITH COMPENSATION FIXED AT THE RATE OF $3,000 PER ANNUM FOR FOUR HOURS A DAY, USING HIS OWN EQUIPMENT AND ASSISTANTS, NO EXCEPTION WAS TAKEN TO THE SALARY RATE HAVING BEEN FIXED WITHOUT REGARD EITHER TO THE PROVISIONS OF THE CLASSIFICATION ACT OR SECTIONS 3709 AND 3744 OF THE REVISED STATUTES.

THE PRACTICE OF SECURING PROPOSALS OR BIDS FROM DENTISTS FOR PART TIME SERVICE IS INCOMPATIBLE WITH THE ALLOCATION OF POSITIONS ACCORDING TO THE PRINCIPLES OF CLASSIFICATION. IT CLEARLY SEEMS ANOMALOUS IN CONNECTION WITH APPOINTMENTS TO POSITIONS IN WHICH THE COMPENSATION IS TO BE FIXED ON THE BASIS OF AN EVALUATION OF DUTIES AND RESPONSIBILITIES UNDER THE CLASSIFICATION ACT.

THERE ARE A NUMBER OF DENTIST POSITIONS IN THE INDIAN FIELD SERVICE INVOLVING VARIOUSLY THE FURNISHING OF MATERIALS, SUPPLIES AND EQUIPMENT OR OTHER SERVICES IN ADDITION TO PERSONAL SERVICE. THERE ARE SET FORTH BRIEFLY BELOW TERMS OF THE DIFFERENT TYPES OF PROPOSALS WHICH SUBSEQUENTLY WERE INCORPORATED INTO APPOINTMENTS BY THE SECRETARY OF THE INTERIOR.

(1) IN THE SUBJECT CASE THE APPOINTEE FURNISHES, IN ADDITION TO HIS PERSONAL SERVICES, MATERIALS SUCH AS AMALGAM, CEMENT, AND SILICATES. ALL SERVICES ARE RENDERED IN A GOVERNMENT-OWNED DENTAL OFFICE BUT THE APPOINTEE WAS REQUIRED TO INSTALL THEREIN A DENTAL CHAIR, A DENTAL ENGINE, AND OTHER NECESSARY EQUIPMENT.

(2) THE APPOINTEE FURNISHES, IN ADDITION TO HIS PERSONAL SERVICE, ONLY NECESSARY OPERATING TOOLS. ALL SERVICES INCLUDING NECESSARY EMERGENCY WORK OUTSIDE OF THE REGULAR HOURS ARE RENDERED IN A GOVERNMENT-OWNED AND EQUIPPED DENTAL OFFICE. ALL MATERIALS ARE FURNISHED BY THE GOVERNMENT.

(3) THE APPOINTEE FURNISHES, IN ADDITION TO HIS PERSONAL SERVICES, HIS OWN INSTRUMENTS AND OPERATING TOOLS. EMERGENCY WORK IS PERFORMED EITHER IN THE GOVERNMENT-OWNED AND EQUIPPED DENTAL OFFICE OR IN THE DENTIST'S PRIVATE OFFICE. SUPPLIES AND MATERIALS ARE FURNISHED BY THE GOVERNMENT.

(4) THE APPOINTMENT OF THIS DENTIST REQUIRES NO SPECIFIED AMOUNT OF TIME ON THE PART OF THE APPOINTEE. IT PROVIDES A DEFINITE FEE FOR EACH OF SEVERAL DESCRIBED OPERATIONS AND LIMITS TOTAL FEES TO $1,200 PER ANNUM. LARGE PART OF THE WORK IS PERFORMED IN THE GOVERNMENT OFFICE BUT SOME IS PERFORMED IN THE DENTIST'S PRIVATE OFFICE.

(5) THE APPOINTEE FURNISHES, IN ADDITION TO HIS PERSONAL SERVICES, HIS OWN INSTRUMENTS, MATERIALS, AND OFFICE SPACE. THE APPOINTMENT REQUIRES THAT SERVICES BE PERFORMED TWO HOURS EACH DAY EXCEPT SATURDAYS AND SUNDAYS. EMERGENCY SERVICES ARE NOT REQUIRED.

(6) UNDER THIS APPOINTMENT THE EMPLOYEE, IN ADDITION TO TIME DEFINITELY SPECIFIED, IS REQUIRED TO TAKE CARE OF ALL EMERGENCY CASES AT HIS PRIVATE OFFICE. SUPPLIES AND EQUIPMENT NECESSARY FOR THE WORK DONE AT THE SCHOOL OR HOSPITAL ARE FURNISHED BY THE GOVERNMENT, BUT THE EMPLOYEE IS REQUIRED TO FURNISH ALL SUPPLIES NECESSARY FOR WORK DONE AT HIS OFFICE.

(7) UNDER THIS APPOINTMENT THE EMPLOYEE, IN ADDITION TO PERSONAL SERVICES, IS REQUIRED TO FURNISH HIS OWN SUPPLIES AND TO PERFORM SUCH EMERGENCY WORK OUTSIDE OF THE PRESCRIBED HOURS OF SERVICE AS MAY BE NECESSARY.

(8) IN ADDITION TO PERSONAL SERVICE PERFORMED AT THE HOSPITAL, THE EMPLOYEE IS REQUIRED TO TAKE CARE OF EMERGENCY PATIENTS WHEN BROUGHT TO HIS OFFICE, THE TIME SPENT ON THIS WORK TO BE DEDUCTED FROM THE TIME REQUIRED FOR WORK IN THE HOSPITAL AND THE MATERIALS FOR THIS WORK TO BE FURNISHED BY THE DENTIST AT COST PRICE. THE GOVERNMENT FURNISHES CHAIRS AND ALL OTHER EQUIPMENT AND MATERIALS AT THE HOSPITAL WITH THE EXCEPTION OF SMALL INSTRUMENTS WHICH ARE FURNISHED BY THE EMPLOYEE.

(9) UNDER THIS APPOINTMENT THE EMPLOYEE IS REQUIRED TO SPEND TWO DAYS A WEEK AT THE SCHOOL AND TO TREAT ANY EMERGENCY CASE WHICH MAY BE BROUGHT TO HIS OFFICE ON DAYS OTHER THAN THOSE STIPULATED IN THE APPOINTMENT; THE GOVERNMENT FURNISHES ALL EQUIPMENT AND SUPPLIES, EXCEPT EQUIPMENT USED IN EMERGENCY CASES TREATED AT THE DENTIST'S PRIVATE OFFICE.

NONE OF THESE EMPLOYEES IS ENTITLED TO ANNUAL OR SICK LEAVE NOR TO THE BENEFITS OF THE RETIREMENT ACT.

IT IS DESIRED THAT THE VARIOUS TYPES OF APPOINTMENTS REFERRED TO ABOVE BE CONSIDERED AND THAT THE DEPARTMENT BE ADVISED WHICH, IF ANY, OF THESE POSITIONS ARE PROPERLY ALLOCABLE UNDER THE PROVISIONS OF THE CLASSIFICATION ACT. IF IT BE HELD THAT ANY OF THEM ARE REQUIRED TO BE CLASSIFIED SHOULD THE RENDERING OF EMERGENCY SERVICES, THE AMOUNT OF WHICH CANNOT POSSIBLY BE ESTIMATED ACCURATELY IN ADVANCE, AND THE FURNISHING OF SUPPLIES OR EQUIPMENT BY THE APPOINTEE, BE TAKEN INTO CONSIDERATION IN DETERMINING THE APPROPRIATE CLASSIFICATION GRADE, AND, IF SO, HOW MAY PROPER WEIGHT BE GIVEN THESE ITEMS IN SUCH DETERMINATIONS.

IF COMPENSATION IN THESE AND SIMILAR CASES SHOULD BE FIXED STRICTLY ON THE BASIS OF THE MEASURABLE TIME SPECIFIED THE SALARIES WILL BE SO LOW THAT IN MOST CASES IT WILL BE IMPOSSIBLE TO OBTAIN THE SERVICES OF COMPETENT DENTISTS EXCEPT POSSIBLY ON A STRAIGHT-FEE BASIS OR THROUGH THE EXECUTION OF STANDARD CONTRACT FORMS. RESORT TO EITHER OF THESE ALTERNATIVES PROBABLY WOULD RESULT IN THE EXPENDITURE OF ADDITIONAL PUBLIC FUNDS WITHOUT PROVIDING THE INDIAN BENEFICIARIES MORE ADEQUATE DENTAL SERVICE.

SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, PROVIDES:

THE HEADS OF THE SEVERAL EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS ARE AUTHORIZED AND DIRECTED TO ADJUST THE COMPENSATION OF CERTAIN CIVILIAN POSITIONS IN THE FIELD SERVICES * * * TO CORRESPOND, SO FAR AS MAY BE PRACTICABLE, TO THE RATES ESTABLISHED BY THE ACT OF MAY 28, 1928 ( U.S.C. SUPP. 3, TITLE 5, SEC. 673), AND BY THIS ACT FOR POSITIONS IN THE DEPARTMENTAL SERVICES IN THE DISTRICT OF COLUMBIA: * * *

CONCERNING THE APPLICATION TO PART-TIME PHYSICIANS IN THE PUBLIC HEALTH SERVICE OF THE RULES RESPECTING SALARY CLASSIFICATION OF FIELD EMPLOYEES PURSUANT TO SAID SECTION 2 OF THE BROOKHART SALARY ACT, IT WAS SAID IN DECISION OF OCTOBER 5, 1937, 17 COMP. GEN. 303, IN PART:

THE DECISIONS OF THIS OFFICE WHERE THE RULES HAVE BEEN STATED FOR FIXING THE COMPENSATION RATES OF PART-TIME POSITIONS, HAVE HELD IN EFFECT (1) THE POSITIONS MUST BE CLASSIFIED IF THE CHARACTER OF THE DUTIES PERFORMED IS THE SAME OR SIMILAR TO THE DUTIES OF EMPLOYEES ON A FULL-TIME BASIS REQUIRED TO BE CLASSIFIED; (2) THE RATES OF COMPENSATION MUST BE FIXED ADMINISTRATIVELY ON AN ANNUAL BASIS HAVING SUBSTANTIALLY THE SAME RELATION TO THE RATES FIXED FOR FULL TIME IN THE SAME OR SIMILAR POSITIONS WHICH THE PART-TIME SERVICE REQUIRED TO BE PERFORMED BEARS TO FULL-TIME SERVICE; (3) THAT "SERVICE" OF PART TIME PROFESSIONAL AND SCIENTIFIC PERSONNEL AND THOSE SIMILARLY EMPLOYED MAY INCLUDE BOTH AVAILABILITY FOR DUTY AS WELL AS ACTUAL SERVICE; (4) THE LETTERS OF APPOINTMENT OR CONTRACTS OF EMPLOYMENT SHOULD SHOW THE BASIS OR METHOD USED IN DETERMINING THE PER ANNUM RATE OF COMPENSATION ON A PART-TIME BASIS; (5) THE PAY ROLL SHOULD REFLECT THE CLASSIFICATION GRADE, THE ANNUAL SALARY RATE, AND THE RATIO OR PERCENTAGE THAT THE PART-TIME COMPENSATION BEARS TO THE FULL-TIME COMPENSATION IN SIMILAR POSITIONS. 11 COMP. GEN. 105; ID. 211; ID. 217; ID. 260; ID. 362. AS TO PROFESSIONAL AND SCIENTIFIC PERSONNEL IT WAS STATED IN DECISION OF JANUARY 7, 1932, 11 COMP. GEN. 260, 262, AS FOLLOWS:

"IT IS UNDERSTOOD FROM THE STATEMENT MADE IN THE TWO LETTERS QUOTED THAT THE ANNUAL SALARY OF THESE TWO CONSULTANT OR PART-TIME PHYSICIANS HAS BEEN FIXED ON TWO PRIMARY ELEMENTS, TO WIT: (1) AVAILABILITY FOR DUTY AT ALL TIMES UPON THE CALL OF THE VETERANS' ADMINISTRATION, NECESSITATING THE PHYSICIANS SO TO ARRANGE THEIR PRIVATE PRACTICE AS TO MEET THE NEEDS OF THE GOVERNMENT; AND (2) THE MINIMUM TIME OF ACTUAL SERVICE ON GOVERNMENT WORK WITHOUT SPECIAL CALL.

"THE RIGHT OF AN EMPLOYEE OF THE GOVERNMENT TO COMPENSATION IS DEPENDENT UPON THE RENDERING OF SERVICE, 5 COMP. GEN. 566, AND, ORDINARILY, THERE IS NO AUTHORITY FOR THE PAYMENT OF A STIPULATED ANNUAL SALARY IN THE NATURE OF A RETAINER HAVING AN UNCERTAIN RELATION TO, AND POSSIBLY IN EXCESS OF, SERVICES ACTUALLY RENDERED. HOWEVER, IN VIEW OF THE PROFESSIONAL NATURE OF THE PART-TIME SERVICE RENDERED BY CONSULTING PHYSICIANS FOR THE VETERANS' ADMINISTRATION, INVOLVING IN ADDITION TO ACTUAL ATTENDANCE AT GOVERNMENT INSTITUTIONS, RESEARCH AND OTHER SIMILAR WORK DURING TIME NOT ACTUALLY SPENT AT THE GOVERNMENT INSTITUTIONS, AS WELL AS THE NECESSITY OF ADJUSTMENT IN PRIVATE PRACTICE WITH LITTLE OR NO NOTICE IN ORDER TO BE AVAILABLE UPON THE CALL OF THE GOVERNMENT, IT IS BELIEVED THAT BOTH OF THE ELEMENTS ABOVE STATED REASONABLY MAY BE CLASSED AS "SERVICE" AND PROPERLY ARE FOR CONSIDERATION IN FIXING THE PART-TIME COMPENSATION ON AN ANNUAL BASIS HAVING PROPER RELATION TO THE TIME SERVED BY FULL-TIME EMPLOYEES IN SIMILAR POSITIONS, THE SALARIES FOR WHICH HAVE BEEN FIXED IN ACCORDANCE WITH THE PRINCIPLES OF CLASSIFICATION.'

IN OTHER WORDS, THIS OFFICE HAS DEFINITELY RECOGNIZED THAT THE AVAILABILITY OF PROFESSIONAL AND SCIENTIFIC PERSONNEL ALSO ENGAGED IN PRIVATE PRACTICE OR COMMERCIAL PURSUITS FOR DUTY UPON CALL BY THE GOVERNMENT HAS A VALUE AND CONSTITUTES "SERVICE" WHICH MAY NOT IN ALL CASES BE MEASURED WITH MATHEMATICAL EXACTITUDE. THE EVALUATION OF SUCH PART-TIME SERVICE OF PROFESSIONAL AND SCIENTIFIC PERSONNEL AND OTHER EMPLOYEES WHOSE WORK IS OF A SIMILAR NATURE OR PERFORMED IN CONNECTION WITH THE WORK OF PROFESSIONAL AND SCIENTIFIC PERSONNEL IS OF NECESSITY AN ADMINISTRATIVE RESPONSIBILITY AND IT IS NOT THE PURPOSE OR INTENT OF THIS OFFICE IN MAKING REQUIREMENTS FOR AUDIT PURPOSES TO QUESTION THE ADMINISTRATIVE ACTION IN THIS REGARD, BUT SIMPLY TO HAVE A PRACTICAL BASIS ON WHICH IT MAY BE DETERMINED THAT NONE BUT LAWFUL EXPENDITURES ARE MADE.

IT HAS THUS BEEN RECOGNIZED THAT AVAILABILITY FOR EMERGENCY OR OTHER SERVICE IN ADDITION TO SERVICES OTHERWISE REQUIRED PROPERLY MAY BE TAKEN INTO CONSIDERATION IN DETERMINING THE COMPENSATION OF A PART-TIME PROFESSIONAL EMPLOYEE UNDER A FIELD CLASSIFICATION GRADE IN COMPARISON WITH FULL-TIME POSITIONS IN THE SAME GRADE, AND, CONSEQUENTLY, THAT SUCH ADDITIONAL SERVICE REQUIREMENTS DO NOT JUSTIFY EXCLUSION OF SUCH PART-TIME POSITIONS FROM CLASSIFICATION, OR AUTHORIZE FIXING COMPENSATION EXCEPT ON THE BASIS OF THE APPROPRIATE CLASSIFICATION GRADE. THE PRESENT MATTER, HOWEVER, INTRODUCES A FURTHER ELEMENT, NAMELY, PROVISIONS FOR PERSONS RENDERING PART-TIME PROFESSIONAL SERVICES, OTHERWISE PERSONAL IN CHARACTER, FURNISHING THEIR OWN EQUIPMENT AND SUPPLIES AND, ON OCCASION, THEIR PRIVATE OFFICE FACILITIES, FOR THE RENDITION OF SUCH SERVICES, THE NECESSITY FOR THE USE OF SUBSTANTIAL SPECIAL EQUIPMENT IN THIS RESPECT APPEARING TO BE MORE OR LESS PECULIAR TO FURNISHING DENTAL SERVICES. WHILE THE GOVERNMENT COULD PROVIDE IN ALL INSTANCES SUCH NECESSARY SPECIAL EQUIPMENT, SUPPLIES, AND FACILITIES, THERE APPEARS NO REQUIREMENT OF LAW THAT THIS BE DONE WHERE IT IS ADMINISTRATIVELY DETERMINED THAT BY REASON OF THE PART-TIME SERVICES REQUIRED LOCALLY AND THE COMPARATIVE COST OF PROVIDING GOVERNMENT EQUIPMENT AND FACILITIES FOR PART-TIME USE, THE INTERESTS OF THE GOVERNMENT WOULD BE BETTER SERVED BY PAYING A PART-TIME DENTIST SUFFICIENT TO COMPENSATE HIM FOR USING HIS OWN EQUIPMENT, SUPPLIES, AND FACILITIES. SUCH COMPENSATION FACTOR IS NOT REASONABLY SUBJECT TO EVALUATION BY COMPARISON ON A TIME BASIS OF THE PART-TIME SERVICES WITH THOSE OF CLASSIFIED FULL-TIME DENTISTS, WHO ARE NOT REQUIRED TO FURNISH THEIR OWN EQUIPMENT AND FACILITIES, AND, THEREFORE, IT WOULD NOT APPEAR PRACTICABLE TO FIX THE COMPENSATION OF SUCH PART-TIME POSITIONS ON THAT BASIS PURSUANT TO SECTION 2 OF THE BROOKHART SALARY ACT, SUPRA.

SINCE YOUR SUBMISSION OF THE PRESENT MATTER THE HOUSE OF REPRESENTATIVES HAS PASSED THE BILL, H.R. 960, NOW BEFORE THE SENATE, PROVIDING, IN TITLE II, FOR THE EXTENSION OF THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, TO THE GOVERNMENT FIELD SERVICE. SECTION 4 OF THE BILL, AS PASSED BY THE HOUSE OF REPRESENTATIVES, WOULD AUTHORIZE THE PRESIDENT, BY EXECUTIVE ORDER, UNDER CERTAIN CONDITIONS, TO EXCLUDE FROM SUCH CLASSIFICATION PROVISIONS, INTER ALIA,"OFFICES OR POSITIONS FILLED BY PERSONS EMPLOYED LOCALLY ON A FEE, CONTRACT, OR PIECE-WORK BASIS WHO MAY LAWFULLY PERFORM THEIR DUTIES CONCURRENTLY WITH THEIR PRIVATE PROFESSION, BUSINESS, OR OTHER EMPLOYMENT AND WHOSE DUTIES REQUIRE ONLY A PORTION OF THEIR TIME, WHERE IT IS IMPRACTICABLE TO ASCERTAIN OR ANTICIPATE THE PROPORTION OF TIME DEVOTED TO THE SERVICE OF THE FEDERAL GOVERNMENT.'

WHILE THIS PROVISION HAS NOT BEEN ENACTED INTO LAW, IT IS NOT WITHOUT SOME SIGNIFICANCE AS A LEGISLATIVE RECOGNITION THAT IT MAY NOT ALWAYS BE PRACTICABLE OR NECESSARY TO CLASSIFY PART-TIME PROFESSIONAL POSITIONS. SHOULD SUCH PROVISION BE ENACTED INTO LAW, AS PASSED BY THE HOUSE OF REPRESENTATIVES, THE MATTER OF WHETHER, AND TO WHAT EXTENT, SUCH POSITIONS SHOULD BE EXCLUDED FROM CLASSIFICATION WOULD, OF COURSE, BE FOR DETERMINATION BY THE PRESIDENT.

IN VIEW OF THESE CIRCUMSTANCES, I HAVE TO ADVISE THAT THERE APPEARS NO OBJECTION AT THIS TIME TO A CONTINUATION OF THE PROCEDURE OF EMPLOYING AND PAYING PART-TIME DENTISTS IN THE INDIAN SERVICE AS SET FORTH IN YOUR LETTER, WHERE SUCH EMPLOYMENT AND PAYMENTS ARE OTHERWISE LEGAL AND PROPER.