B-83536, DECEMBER 15, 1949, 29 COMP. GEN. 277

B-83536: Dec 15, 1949

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NOR IS THE LATTER EMPLOYMENT INCOMPATIBLE WITH THE FORMER SO AS TO CONSTITUTE A VIOLATION OF THE ADDITIONAL COMPENSATION PROHIBITIONS OF SECTION 1765. REQUESTING ADVANCE DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A SUPPLEMENTAL VOUCHER. - ALSO IS A FULL TIME EMPLOYEE OF THE POST OFFICE DEPARTMENT AS A REGULAR MAIL CARRIER UNDER CIVIL-SERVICE APPOINTMENT. PERTAINING TO ACCOUNTING CLERKS AND CARETAKERS WILL APPLY TO ADMINISTRATIVE ASSISTANTS. PART TIME EMPLOYMENT OF ADMINISTRATIVE ASSISTANTS AT PROPORTIONALLY REDUCED RATES OF COMPENSATION IS CONTEMPLATED BY PARAGRAPH 4B OF THE SAID LETTER. GEN. 305 IT WAS HELD. QUOTING FROM THE SYLLABUS: ACCOUNTING AND CUSTODIAL EMPLOYEES SERVING IN THE OFFICE OF THE UNITED STATES PROPERTY AND DISBURSING OFFICER FOR A STATE WHO ARE EMPLOYED BY THE STATE MILITARY AUTHORITIES.

B-83536, DECEMBER 15, 1949, 29 COMP. GEN. 277

COMPENSATION - DOUBLE - FULL TIME GOVERNMENT EMPLOYEE HOLDING PART TIME POSITION WITH STATE NATIONAL GUARD THE APPOINTMENT OF A FULL TIME FEDERAL EMPLOYEE WITH A SALARY IN EXCESS OF $2,500 TO A POSITION AS PART TIME ADMINISTRATIVE ASSISTANT IN A STATE NATIONAL GUARD WOULD NOT RESULT IN THE HOLDING OF MORE THAN ONE OFFICE UNDER THE FEDERAL GOVERNMENT IN VIOLATION OF THE DUAL EMPLOYMENT RESTRICTIONS OF THE ACT OF JULY 31, 1894, AS AMENDED, OR OF THE DUAL COMPENSATION LIMITATIONS OF SECTION 1763, REVISED STATUTES; NOR IS THE LATTER EMPLOYMENT INCOMPATIBLE WITH THE FORMER SO AS TO CONSTITUTE A VIOLATION OF THE ADDITIONAL COMPENSATION PROHIBITIONS OF SECTION 1765, REVISED STATUTES.

ASSISTANT COMPTROLLER GENERAL YATES TO LT. COL. E. KEMP, DEPARTMENT OF THE ARMY, DECEMBER 15, 1949:

BY EIGHTH INDORSEMENT DATED SEPTEMBER 7, 1949, THE CHIEF OF FINANCE REFERRED TO THIS OFFICE YOUR SEVENTH INDORSEMENT OF AUGUST 8, 1949, REQUESTING ADVANCE DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A SUPPLEMENTAL VOUCHER--- PAY ROLL FOR PERSONAL SERVICES ( STANDARD FORM NO. 1128/--- SUBMITTED THEREWITH COVERING THE CLAIM OF BURLEY D. TENNANT, PART TIME ADMINISTRATIVE ASSISTANT, FOR A NET AMOUNT OF $177.85, REPRESENTING CIVILIAN PAY ACCRUED DURING THE PERIOD FROM JULY 1 TO 31, 1949.

IT APPEARS THAT MR. TENNANT--- A FIRST SERGEANT, BATTERY A, 201ST FIELD ARTILLERY BATTALION, WEST VIRGINIA NATIONAL GUARD--- ALSO IS A FULL TIME EMPLOYEE OF THE POST OFFICE DEPARTMENT AS A REGULAR MAIL CARRIER UNDER CIVIL-SERVICE APPOINTMENT. THE DOUBT IN THE MATTER APPARENTLY ARISES IN VIEW OF THE PROVISIONS OF THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED, 5 U.S.C. 62, WHICH PROHIBITS, GENERALLY, ANY PERSON WHO HOLDS AN OFFICE UNDER THE UNITED STATES GOVERNMENT THE SALARY OR COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF $2,500 FROM BEING APPOINTED TO OR HOLDING ANY OTHER POSITION UNDER THE UNITED STATES GOVERNMENT, AND, ALSO, THE PROVISIONS OF SECTION 1763, REVISED STATUTES, AS AMENDED, 5 U.S.C. 52, WHICH PROHIBITS THE PAYMENT OF ANY MONEY TO ANY PERSON RECEIVING MORE THAN ONE SALARY FROM THE UNITED STATES GOVERNMENT WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM.

THE MILITARY FUNCTIONS APPROPRIATIONS ACT FOR 1949, APPROVED JUNE 24, 1948, 62 STAT. 662, INCLUDED AN APPROPRIATION UNDER " NATIONAL GUARD, 1949," FOR PAYMENT OF ADMINISTRATIVE ASSISTANTS. SEE, ALSO, THE APPROPRIATIONS FOR THE FISCAL YEAR 1950 FOR " ARMY NATIONAL GUARD," PUBLIC LAW 434, APPROVED OCTOBER 29, 1949 (63 STAT. 999). CSNGB LETTER DATED AUGUST 17, 1949, UNDER PARAGRAPH 5, PROVIDES, INTER ALIA, THAT PENDING PUBLICATION OF APPROPRIATE NATIONAL GUARD REGULATIONS COVERING THE EMPLOYMENT OF ADMINISTRATIVE ASSISTANTS, PARAGRAPH 1 OF NGR 75-16, DATED DECEMBER 29, 1947, PERTAINING TO ACCOUNTING CLERKS AND CARETAKERS WILL APPLY TO ADMINISTRATIVE ASSISTANTS. PART TIME EMPLOYMENT OF ADMINISTRATIVE ASSISTANTS AT PROPORTIONALLY REDUCED RATES OF COMPENSATION IS CONTEMPLATED BY PARAGRAPH 4B OF THE SAID LETTER.

PARAGRAPH 1, NGR 75-16, DECEMBER 29, 1947, AS CHANGED BY CHANGES NO. 1, APRIL 16, 1948, PROVIDES, IN PART, THAT---

* * * THE SECRETARY OF THE ARMY HAS DELEGATED TO THE SEVERAL ADJUTANTS GENERAL OF STATES * * * AUTHORITY TO EMPLOY * * * WITHIN THE PURVIEW OF THIS REGULATION; SUBJECT TO THE PROVISIONS OF LAW AND SUCH INSTRUCTIONS AS MAY * * * BE ISSUED BY THE CHIEF, NATIONAL GUARD BUREAU.

IN 21 COMP. GEN. 305 IT WAS HELD, QUOTING FROM THE SYLLABUS:

ACCOUNTING AND CUSTODIAL EMPLOYEES SERVING IN THE OFFICE OF THE UNITED STATES PROPERTY AND DISBURSING OFFICER FOR A STATE WHO ARE EMPLOYED BY THE STATE MILITARY AUTHORITIES, ALTHOUGH A PART OF THEIR COMPENSATION IS PAID FROM FEDERAL FUNDS, ARE NOT "EMPLOYEES OF THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, AND THEY MAY NOT BE PAID UNDER SAID ACT, CONCURRENTLY WITH ACTIVE MILITARY OR NAVAL SERVICE, FOR ANNUAL LEAVE ACCRUED IN THEIR CIVILIAN POSITIONS.

SEE, ALSO, 27 COMP. DEC. 344; 19 COMP. GEN. 326; AND 26 COMP. GEN. 205, TO THE GENERAL EFFECT THAT CARETAKERS AND OTHER CIVILIAN EMPLOYEES OF THE NATIONAL GUARD ARE STATE, NOT FEDERAL, EMPLOYEES.

IN VIEW OF THE FOREGOING, THE APPOINTMENT OF A FULL TIME EMPLOYEE OF THE POST OFFICE DEPARTMENT EMPLOYED AS A REGULAR MAIL CARRIER UNDER CIVIL SERVICE BY THE AUTHORITY OF THE ADJUSTANT GENERAL OF THE STATE OF WEST VIRGINIA AS A PART TIME ADMINISTRATIVE ASSISTANT IN BATTERY A, 201ST FIELD ARTILLERY BATTALION, WEST VIRGINIA NATIONAL GUARD, WOULD NOT RESULT IN THE PERSON HOLDING MORE THAN ONE OFFICE UNDER THE FEDERAL GOVERNMENT AND, THEREFORE, WOULD NOT BE IN CONTRAVENTION OF THE ACT OF JULY 31, 1894, SUPRA. NOR WOULD HIS RIGHT TO COMPENSATION THEREUNDER BE SUBJECT TO THE PROVISIONS OF THE SAID SECTION 1763, REVISED STATUTES.

THERE ALSO MAY BE NOTED THE PROVISIONS OF SECTION 1765, REVISED STATUTES, 5 U.S.C. 70, WHICH READS:

NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATION, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

HOWEVER, THAT SECTION OF THE REVISED STATUTES HAS BEEN HELD BY THE COURTS AS NOT APPLICABLE TO THE HOLDING OF TWO SEPARATE AND DISTINCT OFFICES OR POSITIONS WHICH ARE NOT INCOMPATIBLE WITH EACH OTHER, WHERE THE SALARY OF EACH IS FIXED BY LAW OR REGULATIONS, UNITED STATES V. SAUNDERS, 120 U.S. 126, AND, ACCORDINGLY, SAID SECTION IS NOT APPLICABLE TO THE PRESENT CASE. SEE 19 COMP. GEN. 751 AND 26 COMP. GEN. 205.

THEREFORE, THE SUPPLEMENTAL VOUCHER ( STANDARD FORM NO. 1128) IS RETURNED HEREWITH, AND YOU ARE ADVISED THAT PAYMENT MAY BE MADE THEREON TO BURLEY D. TENNANT, IF THE SAID VOUCHER IS OTHERWISE CORRECT.