B-8231, FEBRUARY 9, 1940, 19 COMP. GEN. 716

B-8231: Feb 9, 1940

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THERE IS NO REQUIREMENT OF LAW THAT THE PAY STATUS OF THE EMPLOYEE BE EXTENDED FOR THE PURPOSE OF GRANTING ANY OTHER FORM OF LEAVE OF ABSENCE WITH PAY. WHETHER THE APPLICATION FOR SUCH EXTENSION IS RECEIVED IN THE ADMINISTRATIVE OFFICE PRIOR OR SUBSEQUENT TO THE TERMINATION DATE PROPERLY FIXED ADMINISTRATIVELY. AN EMPLOYEE WAS FURLOUGHED WITHOUT PAY AFTER HE WAS GRANTED AND PAID FOR ALL THE ANNUAL LEAVE EARNED AND UNUSED DURING HIS EMPLOYMENT WITH THE FURLOUGHING AGENCY. IT NOW APPEARS THERE WAS AN ADMINISTRATIVE ERROR IN COMPUTING THE ANNUAL LEAVE TO THE CREDIT OF THE EMPLOYEE IN THAT THERE WAS OVERLOOKED THE TRANSFER OF LEAVE EARNED IN ANOTHER GOVERNMENT AGENCY FROM WHICH HE HAD BEEN TRANSFERRED WITHOUT A BREAK IN SERVICE.

B-8231, FEBRUARY 9, 1940, 19 COMP. GEN. 716

ADMINISTRATIVELY FURLOUGHED EMPLOYEES - RESTORATION TO, OR EXTENSION OF, PAY STATUS FOR GRANTING ANNUAL, SICK, MILITARY, AND COURT LEAVE; EFFECT OF REEMPLOYMENT ON FURLOUGH STATUS; RECEIPT OF SECURITY WAGE AS VIOLATION OF DUAL COMPENSATION ACT WHERE, DUE TO LACK OF APPROPRIATIONS OR WORK, THE DATE OF FURLOUGH WITHOUT PAY OF AN EMPLOYEE HAS ONCE BEEN FIXED ADMINISTRATIVELY SO AS TO PERMIT THE EMPLOYEE TO TAKE HIS ACCRUED UNUSED ANNUAL LEAVE AS CONTEMPLATED BY SECTIONS 8 AND 9 OF THE UNIFORM ANNUAL LEAVE REGULATIONS, AND THE EMPLOYEE HAS HAD NOTICE THEREOF, THERE IS NO REQUIREMENT OF LAW THAT THE PAY STATUS OF THE EMPLOYEE BE EXTENDED FOR THE PURPOSE OF GRANTING ANY OTHER FORM OF LEAVE OF ABSENCE WITH PAY, WHETHER FOR SICKNESS, OR MILITARY DUTY, OR FOR THE PURPOSE OF PERFORMING WITNESS OR JURY DUTY FOR THE GOVERNMENT, WHETHER THE APPLICATION FOR SUCH EXTENSION IS RECEIVED IN THE ADMINISTRATIVE OFFICE PRIOR OR SUBSEQUENT TO THE TERMINATION DATE PROPERLY FIXED ADMINISTRATIVELY. WHERE, DUE TO LACK OF APPROPRIATIONS OR WORK, AN EMPLOYEE WAS FURLOUGHED WITHOUT PAY AFTER HE WAS GRANTED AND PAID FOR ALL THE ANNUAL LEAVE EARNED AND UNUSED DURING HIS EMPLOYMENT WITH THE FURLOUGHING AGENCY, BUT IT NOW APPEARS THERE WAS AN ADMINISTRATIVE ERROR IN COMPUTING THE ANNUAL LEAVE TO THE CREDIT OF THE EMPLOYEE IN THAT THERE WAS OVERLOOKED THE TRANSFER OF LEAVE EARNED IN ANOTHER GOVERNMENT AGENCY FROM WHICH HE HAD BEEN TRANSFERRED WITHOUT A BREAK IN SERVICE, THE EMPLOYEE MAY BE RESTORED TO A PAY STATUS FOR THE PURPOSE OF PAYING HIM COMPENSATION FOR THE ADDITIONAL ANNUAL LEAVE, PROVIDED AN APPROPRIATION IS AVAILABLE AND THE PAYMENT WILL NOT BE IN CONTRAVENTION OF THE DUAL COMPENSATION ACT OF 1916 BY REASON OF PAYMENT TO THE EMPLOYEE OF ANOTHER SALARY FROM APPROPRIATED FUNDS DURING THE SAME PERIOD. IN APPLYING THE RULE THAT A PERMANENT APPOINTMENT IN ONE POSITION--- AS DISTINGUISHED FROM A TEMPORARY APPOINTMENT--- AUTOMATICALLY TERMINATES AN INVOLUNTARY ADMINISTRATIVE FURLOUGH FROM ANOTHER PERMANENT, OR EMERGENCY, POSITION, IT MAY BE CONSIDERED AS A GENERAL RULE THAT TEMPORARY EMPLOYMENT UNDER APPOINTMENTS FOR DEFINITE PERIODS OF TIME NOT EXCEEDING 6 MONTHS DOES NOT NECESSARILY EFFECT SUCH TERMINATION, AND THAT EMPLOYMENT OF AN INDEFINITE NATURE OR COVERING PERIODS OF TIME IN EXCESS OF 6 MONTHS DOES TERMINATE THE INVOLUNTARY FURLOUGH STATUS, BUT THE DEFINITIONS OF PERMANENT AND TEMPORARY EMPLOYEES APPEARING IN THE UNIFORM LEAVE REGULATIONS ARE NOT DETERMINATIVE OF SUCH TERMINATIONS, AN INVOLUNTARILY FURLOUGHED EMPLOYEE BEING PERMITTED TO SERVE UNDER A TEMPORARY APPOINTMENT WHETHER THE TENURE OF THE TEMPORARY APPOINTMENT MADE PURSUANT TO LAW BE MORE OR LESS THAN 6 MONTHS. THE ACCEPTANCE OF EMPLOYMENT AS A PROJECT WORKER UNDER THE APPLICABLE EMERGENCY RELIEF APPROPRIATION ACT, EVEN THOUGH UNLIMITED AS TO TIME, DOES NOT TERMINATE AN INVOLUNTARY ADMINISTRATIVE FURLOUGH STATUS AS AN EMPLOYEE OF THE FEDERAL WORKS AGENCY. PAYMENT OF SALARY TO AN INVOLUNTARILY FURLOUGHED EMPLOYEE FOR ANNUAL LEAVE AT THE SAME TIME HE IS BEING PAID A SECURITY WAGE OR A MONTHLY PAYMENT AS A PROJECT WORKER WOULD CONTRAVENE THE DUAL COMPENSATION ACT OF 1916, IF THE COMBINED RATE OF PAYMENTS, COMPUTED ON AN ANNUAL BASIS, EXCEEDS THE SUM OF $2,000, THE SECURITY WAGE OR MONTHLY PAYMENT BEING SALARY WITHIN THE MEANING OF THE PROHIBITION OF THE SAID ACT. DECISIONS WHEREIN PROJECT WORKERS WERE NOT CONSIDERED TO BE ,PERSONNEL" OR "CIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES" WITHIN THE MEANING OF CERTAIN STATUTES AND REGULATIONS, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE FEDERAL WORKS ADMINISTRATOR, FEBRUARY 9, 1940:

I HAVE YOUR LETTER OF JANUARY 24, 1940, AS FOLLOWS:

IN ORDER TO REDUCE ADMINISTRATIVE EXPENSES CONSISTENTLY WITH THE COMPLETION OF PROJECTS UNDER CONSTRUCTION AND TO KEEP WITHIN THE LIMITED FUNDS AVAILABLE FOR SUCH EXPENSES, A POLICY HAS BEEN ADOPTED BY THE PUBLIC WORKS ADMINISTRATION OF FURLOUGHING EMPLOYEES RATHER THAN SEPARATING THEM FROM THE SERVICE SO AS TO HAVE AVAILABLE FOR RECALL TO DUTY EXPERIENCED EMPLOYEES AT SUCH TIMES AS NEED FOR THEIR SERVICES ARISES. THE EMPLOYEES ARE NOTIFIED AS TO THEIR LAST DAY OF ACTIVE DUTY AND THEN CARRIED ON THE PAY ROLL IN A LEAVE WITH PAY STATUS UNTIL THE EXPIRATION OF ANY UNUSED ANNUAL LEAVE, AT WHICH TIME THEY ENTER ON FURLOUGH WITHOUT PAY. IN THIS CONNECTION YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS THAT HAVE ARISEN WITH RESPECT TO THE RIGHTS OF FURLOUGHED EMPLOYEES TO LEAVE AND COMPENSATION UNDER CERTAIN CONDITIONS:

1.AN EMPLOYEE IS NOTIFIED THAT HE WILL BE FURLOUGHED EFFECTIVE AT THE CLOSE OF BUSINESS NOVEMBER 30, 1939, PLUS ANNUAL LEAVE. ON NOVEMBER 28 HE REPORTS ON SICK LEAVE AND LATER FURNISHES A CERTIFICATE OF A REGISTERED PRACTICING PHYSICIAN SHOWING A BONA FIDE CASE OF ILLNESS COVERING A PERIOD OF 8 DAYS, NOVEMBER 29 TO DECEMBER 6, INCLUSIVE. CAN THIS EMPLOYEE BE ALLOWED SICK LEAVE WITH PAY THROUGH DECEMBER 6, WITH ANNUAL LEAVE PRELIMINARY TO LEAVE WITHOUT PAY STARTING TO RUN ON DECEMBER 7 INSTEAD OF DECEMBER 1?

2. IF THE ANSWER TO THE ABOVE QUESTION IS IN THE AFFIRMATIVE, IS THE DETERMINING FACTOR THE FACT THAT THE EMPLOYEE REPORTED ON SICK LEAVE PRIOR TO THE EFFECTIVE DATE OF THE FURLOUGH? IF THE EMPLOYEE HAD DEPARTED FROM AN ACTIVE DUTY STATUS AND ENTERED ON ANNUAL LEAVE DECEMBER 1, 1939, AND LATER FURNISHED THE CERTIFICATE OF A REGISTERED PRACTICING PHYSICIAN FOR ILLNESS COVERING A PERIOD OF 8 DAYS FROM DECEMBER 6 TO 13, INCLUSIVE, CAN THE SICK LEAVE BE SUBSTITUTED FOR ANNUAL LEAVE, AND THE CHARGE AGAINST ANNUAL LEAVE REDUCED ACCORDINGLY, AS PROVIDED BY SECTION 16 OF THE SICK LEAVE REGULATIONS?

3. SUBSEQUENT TO SEPARATION FROM AN ACTIVE DUTY STATUS BUT WHILE STILL IN A LEAVE WITH PAY STATUS, THE PERIOD COVERED BY ANNUAL LEAVE NOT HAVING EXPIRED, AN EMPLOYEE IS ORDERED TO REPORT FOR A REGULAR PERIOD OF 15 DAYS' TRAINING AS A MEMBER OF THE OFFICERS' RESERVE CORPS. IS HE ENTITLED TO MILITARY LEAVE OF ABSENCE RESTORING HIM TO A DUTY STATUS FOR THE REGULAR PERIOD OF TRAINING, AND EXTENDING THE PERIOD HE IS CARRIED ON THE PAY ROLL IN A LEAVE WITH PAY STATUS ACCORDINGLY?

4. IF THE ANSWER TO QUESTION NO. 3 IS IN THE AFFIRMATIVE, MAY IT BE CONSIDERED THAT THE SAME WILL APPLY TO ALL SERVICE COMING WITHIN THE PROVISIONS OF THE STATUTES AUTHORIZING ABSENCE FROM REGULAR DUTY WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING, AND TO TIME SPENT IN RESPONDING TO SUBPOENAS TO APPEAR IN FEDERAL COURTS AS WITNESSES FOR THE GOVERNMENT WHERE THE VALUE OF THE TESTIMONY ARISES FROM THE EMPLOYEE'S OFFICIAL CONNECTION WITH THE PUBLIC WORKS ADMINISTRATION.

5. AN EMPLOYEE HAS BEEN FURLOUGHED AND PAID FOR ALL OF THE ANNUAL LEAVE EARNED AND UNUSED DURING HIS EMPLOYMENT BY THE PUBLIC WORKS ADMINISTRATION. HE IS NOW IN A LEAVE WITHOUT PAY STATUS. IT HAS COME TO LIGHT THAT HE ENTERED ON DUTY WITH THE PUBLIC WORKS ADMINISTRATION FROM ANOTHER AGENCY OF THE GOVERNMENT WITHOUT BREAK IN SERVICE, AND IT HAS BEEN CERTIFIED BY THE SAID OTHER AGENCY THAT THE EMPLOYEE HAD 7 DAYS ANNUAL LEAVE EARNED AND UNUSED, THE TRANSFER OF WHICH WAS OVERLOOKED AT THE TIME THE EMPLOYEE RESIGNED FROM HIS PREVIOUS EMPLOYMENT. CAN THE EMPLOYEE BE RESTORED TO A PAY STATUS FOR THE PURPOSE OF PAYING HIM FOR THIS ANNUAL LEAVE?

6. MAY IT BE CONSIDERED TO BE A GENERAL RULE THAT TEMPORARY EMPLOYMENT BY ANOTHER AGENCY OF THE GOVERNMENT UNDER APPOINTMENTS FOR DEFINITE PERIODS OF TIME NOT EXCEEDING SIX MONTHS DOES NOT NECESSARILY TERMINATE AN EMPLOYEE'S FURLOUGH STATUS, AND THAT ANY EMPLOYMENT OF AN INDEFINITE NATURE OR COVERING PERIODS OF TIME IN EXCESS OF SIX MONTHS DOES TERMINATE SUCH STATUS?

7. IT HAS BEEN HELD IN SEVERAL OF YOUR DECISIONS THAT PROJECT WORKERS PAID SECURITY OR PREVAILING WAGES FROM FUNDS ALLOTTED BY THE WORK PROJECTS ADMINISTRATION ARE NOT CIVILIAN EMPLOYEES OF THE UNITED STATES. DOES THE PAYMENT OF SALARY TO A FURLOUGHED EMPLOYEE FOR ANNUAL LEAVE AT THE SAME TIME HE IS BEING PAID A SECURITY WAGE AS A PROJECT WORKER CONTRAVENE THE STATUTE PROHIBITING THE PAYMENT OF DUAL COMPENSATION IF THE COMBINED AMOUNT OF THE PAYMENTS EXCEEDS THE SUM OF $2,000 PER ANNUM? DOES THE ACCEPTANCE OF A POSITION AS A PROJECT WORKER NOT LIMIT AS TO TIME TERMINATE A FURLOUGH STATUS?

THE PURPOSE OF STATUTES GRANTING LEAVE OF ABSENCE WITH PAY WHETHER FOR VACATION, SICKNESS, OR MILITARY DUTY, IS TO AUTHORIZE AN EMPLOYEE WHO MEETS THE CONDITIONS PRESCRIBED BY THE STATUTE AND/OR REGULATIONS ISSUED PURSUANT THERETO, TO BE ABSENT FROM DUTY WITHOUT LOSS OF PAY WHILE RETAINING A STATUS AS AN EMPLOYEE. AS TO ANNUAL LEAVE GRANTED PURSUANT TO THE ANNUAL LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1161, SEE 16 COMP. GEN. 899, 900; AND AS TO SICK LEAVE GRANTED PURSUANT TO THE SICK LEAVE ACT OF MARCH 14, 1936, 49 STAT. 1162, SEE DECISION OF MARCH 11, 1938, A-90910. SECTION 80 OF THE ACT OF JUNE 3, 1916, 39 STAT. 166, 203, APPLICABLE TO EMPLOYEES WHO ARE MEMBERS OF THE NATIONAL GUARD, THE ACT OF MAY 12, 1917, 40 STAT. 72, APPLICABLE TO EMPLOYEES WHO ARE MEMBERS OF THE OFFICERS' RESERVE CORPS OF THE ARMY, AND THE ACT OF JUNE 25, 1938, 52 STAT. 1177, APPLICABLE TO EMPLOYEES WHO ARE MEMBERS OF THE NAVAL RESERVE, ALL GRANT MILITARY LEAVE OF ABSENCE UNDER THE CONDITIONS THEREIN SPECIFIED "WITHOUT LOSS OF PAY, TIME, OR EFFICIENCY RATING.' 17 COMP. GEN. 174. UNDER THE PROVISIONS OF SECTION 850, REVISED STATUTES, IT HAS BEEN HELD THAT A GOVERNMENT EMPLOYEE WHO IN OBEDIENCE TO A SUBPOENA OR DIRECTION BY PROPER AUTHORITY APPEARS AS A WITNESS FOR THE GOVERNMENT IN COURT PROCEEDINGS, IS NOT TO BE REGARDED AS ON LEAVE OF ABSENCE WITH PAY BUT SHOULD BE TREATED AS IN THE PERFORMANCE OF DUTY UNDER HIS EMPLOYMENT. 4 COMP. GEN. 91; COMPARE 7 ID. 690. SEE, ALSO, THE ACT OF AUGUST 22, 1935, 49 STAT. 682, PROVIDING THAT THE SALARIES OF EMPLOYEES "SHALL NOT BE DIMINISHED" DURING JURY SERVICE IN THE DISTRICT OF COLUMBIA. 18 COMP. GEN. 403, 405. WHEN THE TENURE OF CIVILIAN EMPLOYMENT OR AN APPOINTMENT HAS ONCE BEEN ADMINISTRATIVELY FIXED BY NOTICE TO THE EMPLOYEE OF THE TERMINATION OF HIS DUTY AND/OR PAY STATUS BY FURLOUGH WITHOUT PAY OR SEPARATION FROM THE SERVICE, THERE CAN BE NO LOSS TO THE EMPLOYEE EITHER IN PAY, TIME, OR EFFICIENCY, BY REFUSAL OF AN ADMINISTRATIVE OFFICE TO EXTEND THE PERIOD OF THE EMPLOYMENT OR APPOINTMENT BECAUSE OF SICKNESS, MILITARY DUTY, OR COURT DUTY OCCURRING DURING THE PERIOD OF LEAVE GRANTED PRIOR TO TERMINATION OF SERVICES BY FURLOUGH OR OTHERWISE.

ACCORDINGLY, REFERRING TO QUESTIONS NUMBERED FROM 1 TO 4, INCLUSIVE, YOU ARE ADVISED THAT WHERE, DUE TO LACK OF APPROPRIATIONS OR WORK, THE DATE OF FURLOUGH WITHOUT PAY OR SEPARATION FROM THE SERVICE OF AN EMPLOYEE HAS ONCE BEEN FIXED ADMINISTRATIVELY SO AS TO PERMIT THE EMPLOYEE TO TAKE HIS ACCRUED UNUSED ANNUAL LEAVE AS CONTEMPLATED BY SECTIONS 8 AND 9 OF THE ANNUAL LEAVE REGULATIONS, OF WHICH THE EMPLOYEE HAS HAD NOTICE, THERE IS NO REQUIREMENT OF LAW THAT THE PAY STATUS OF THE EMPLOYEE BE EXTENDED BEYOND THE DATE ALREADY FIXED FOR THE COMMENCEMENT OF THE FURLOUGH OR THE SEPARATION FROM THE SERVICE FOR THE PURPOSE OF GRANTING ANY OTHER FORM OF LEAVE OF ABSENCE WITH PAY, WHETHER FOR SICKNESS, OR MILITARY DUTY, OR FOR THE PURPOSE OF PERFORMING WITNESS OR JURY DUTY FOR THE GOVERNMENT. THE RULE IS THE SAME WHETHER THE APPLICATION FOR EXTENSION OF LEAVE ON ACCOUNT OF SUBPOENA FOR COURT DUTY, SICKNESS, ETC., IS RECEIVED IN THE ADMINISTRATIVE OFFICE PRIOR OR SUBSEQUENT TO THE TERMINATION DATE PROPERLY FIXED ADMINISTRATIVELY.

RELATIVE TO QUESTION 5, IF ADMINISTRATIVE ERROR WAS COMMITTED IN COMPUTING THE ANNUAL LEAVE TO THE CREDIT OF THE EMPLOYEE AND THERE WAS DUE THE EMPLOYEE 7 DAYS' ADDITIONAL LEAVE WHICH HE HAS NOT RECEIVED, THE EMPLOYEE ON FURLOUGH WITHOUT PAY MAY BE RESTORED TO A PAY STATUS FOR THE PURPOSE OF PAYING HIM COMPENSATION FOR THE 7 DAYS' ADDITIONAL ANNUAL LEAVE OF ABSENCE, PROVIDED AN APPROPRIATION IS AVAILABLE AND THE PAYMENT WILL NOT BE IN CONTRAVENTION OF THE DUAL COMPENSATION STATUTE BY REASON OF THE FACT THAT THE EMPLOYEE WAS PAID ANOTHER SALARY FROM APPROPRIATED FUNDS DURING THE SAME PERIOD. 16 COMP. GEN. 818.

WITH RESPECT TO QUESTION 6, ATTENTION IS INVITED TO DECISION OF MAY 29, 1939, 18 COMP. GEN. 893, WHEREIN THE FOLLOWING WAS STATED AT PAGE 894:

* * * IT HAS BEEN HELD THAT A PERMANENT APPOINTMENT IN ONE POSITION AUTOMATICALLY TERMINATES AN INVOLUNTARY ADMINISTRATIVE FURLOUGH FROM ANOTHER PERMANENT POSITION. 12 COMP. GEN. 76; ID. 501; 13 ID. 14. THIS RULE IS EQUALLY APPLICABLE TO TERMINATE AN ADMINISTRATIVE FURLOUGH FROM AN EMERGENCY POSITION. CF. 12 COMP. GEN. 403; 13 ID. 14; ID. 27, HOLDING IN EFFECT THAT DURING AN INVOLUNTARY FURLOUGH FROM A PERMANENT POSITION, EQUALLY APPLICABLE DURING A FURLOUGH FROM AN EMERGENCY POSITION, AN EMPLOYEE MAY SERVE UNDER A TEMPORARY APPOINTMENT, AS DISTINGUISHED FROM A PERMANENT APPOINTMENT, IN ANOTHER POSITION IN ANOTHER BRANCH OF THE SERVICE WITHOUT TERMINATING THE FURLOUGH FROM THE PERMANENT OR EMERGENCY POSITION. ACCORDINGLY, QUESTION 6 MAY BE ANSWERED IN THE AFFIRMATIVE, BUT THERE IS FOR NOTING THAT THE DEFINITIONS OF PERMANENT AND TEMPORARY EMPLOYEES APPEARING IN THE LEAVE REGULATIONS HAVE NOT BEEN APPLIED IN STATING THIS RULE. THAT IS TO SAY, AN INVOLUNTARILY FURLOUGHED EMPLOYEE MAY SERVE UNDER A TEMPORARY APPOINTMENT IN ANOTHER AGENCY OF THE GOVERNMENT WHETHER THE TENURE OF THE TEMPORARY APPOINTMENT MADE PURSUANT TO LAW IS MORE OR LESS THAN 6 MONTHS.

REGARDING QUESTION 7, THERE ARE FOR CONSIDERATION THE PROVISIONS OF SECTION 6 OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, AS FOLLOWS:

THAT UNLESS OTHERWISE SPECIALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY THIS OR ANY OTHER ACT SHALL BE AVAILABLE FOR PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM * * *.

THE STATUTE JUST QUOTED IS A RESTRICTION UPON THE USE OF APPROPRIATED FUNDS FOR THE PAYMENT OF MORE THAN ONE "SALARY" TO THE SAME PERSON DURING THE SAME PERIOD OF TIME. IN THE CASE OF BENEDICT V. UNITED STATES, 176 U.S. 357, THE SUPREME COURT OF THE UNITED STATES HELD, AT PAGE 360, THAT--

* * * THE WORD "SALARY" MAY BE DEFINED GENERALLY AS A FIXED ANNUAL OR PERIODICAL PAYMENT FOR SERVICES DEPENDING UPON TIME AND NOT UPON THE AMOUNT OF SERVICES RENDERED. * * *

WHILE IT HAS BEEN HELD THAT PROJECT WORKERS PAID UPON A SECURITY WAGE BASIS OR SUPERVISORY AND ADMINISTRATIVE WORKERS ENGAGED UPON PROJECTS AND PAID FROM PROJECT FUNDS UPON A MONTHLY BASIS WHO ARE NOT APPOINTED TO POSITIONS, ARE NOT REGARDED AS "CIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES" WITHIN THE MEANING OF THE ANNUAL AND SICK LEAVE ACTS AND REGULATIONS THEREUNDER (15 COMP. GEN. 1129; 16 ID. 181; ID. 394), OR ARE NOT REGARDED AS "PERSONNEL" WITHIN THE MEANING OF SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939 (19 COMP. GEN. 383), NEVERTHELESS, AS THEY ARE PAID FROM APPROPRIATED FUNDS A FIXED PERIODICAL PAYMENT FOR SERVICES DEPENDING UPON TIME AND NOT UPON THE AMOUNT OF SERVICES RENDERED, IT MUST BE CONCLUDED THAT SECURITY WAGES OR MONTHLY PAYMENTS TO PROJECT WORKERS IN A SUPERVISORY CAPACITY CONSTITUTES "SALARY" WITHIN THE MEANING OF THE DUAL COMPENSATION ACT OF 1916, QUOTED ABOVE. SEE DECISION OF SEPTEMBER 11, 1937, 17 COMP. GEN. 238, WHEREIN THE DUAL COMPENSATION STATUTE WAS APPLIED IN THE CASE OF AN ENROLLEE OF THE CIVILIAN CONSERVATION CORPS PAID ON A MONTHLY BASIS. CF. 16 COMP. GEN. 909.

REFERRING TO QUESTION 7, THEREFORE, YOU ARE ADVISED THAT THE PAYMENT OF SALARY TO A FURLOUGHED EMPLOYEE FOR ANNUAL LEAVE AT THE SAME TIME HE IS BEING PAID A SECURITY WAGE OR A MONTHLY PAYMENT AS A PROJECT WORKER WOULD CONTRAVENE THE DUAL COMPENSATION ACT OF 1916 IF THE COMBINED RATE OF PAYMENTS, COMPUTED ON AN ANNUAL BASIS, EXCEEDS THE SUM OF $2,000. IN VIEW OF THE PRIMARY PURPOSE OF THE EMERGENCY RELIEF APPROPRIATION ACT--- TO PROVIDE WORK FOR THE UNEMPLOYED--- IT MAY BE CONCLUDED THAT THE ACCEPTANCE OF EMPLOYMENT AS A PROJECT WORKER, UNLIMITED AS TO TIME, DOES NOT TERMINATE A FURLOUGH STATUS AS AN EMPLOYEE OF THE FEDERAL WORKS AGENCY.