B-8984, MAY 14, 1940, 19 COMP. GEN. 926

B-8984: May 14, 1940

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1940: I HAVE YOUR LETTER OF MARCH 4. SZIKLAS WAS APPOINTED BY THIS ADMINISTRATION FEBRUARY 27. THIS APPOINTMENT WAS TERMINATED ON MARCH 29. SZIKLAS WAS GIVEN AN INDEFINITE APPOINTMENT AS AN ARCHITECTURAL INSPECTOR TO BE PAID ON THE BASIS OF $10.00 PER DIEM. WHICH APPOINTMENT WAS TERMINATED AT THE CLOSE OF BUSINESS DECEMBER 31. SZIKLAS WAS EMPLOYED AT THE BOSTON NAVY YARD ON NAVY W.P.A. HE WAS TAKEN ON THE ROLLS OF THE NAVY YARD. UNDER WHICH APPOINTMENT HE IS APPARENTLY STILL EMPLOYED. SZIKLAS' APPOINTMENT IN THIS ADMINISTRATION WAS CHANGED FROM A FEE ARCHITECT. STATED THAT HE WAS AT THAT TIME EMPLOYED IN THE BOSTON NAVY YARD AS PRINCIPAL ENGINEERING DRAFTSMAN. "NEITHER ONE OF THESE OCCUPATIONS WILL INTERFERE WITH MY DUTIES AS ARCHITECTURAL INSPECTOR OF THE FEDERAL HOUSING ADMINISTRATION.'.

B-8984, MAY 14, 1940, 19 COMP. GEN. 926

COMPENSATION - DOUBLE - FEDERAL HOUSING ADMINISTRATOR'S APPOINTMENT AUTHORITY COMPENSATION PAYMENTS TO A PERSON EMPLOYED BY THE FEDERAL HOUSING ADMINISTRATION DURING A PERIOD OF EMPLOYMENT UNDER ANOTHER GOVERNMENT AGENCY NEED NOT BE QUESTIONED AS IN VIOLATION OF THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED, IN VIEW OF THE BROAD PERSONNEL APPOINTMENT, ETC., AUTHORITY VESTED IN THE FEDERAL HOUSING ADMINISTRATOR BY SECTION 1 OF THE NATIONAL HOUSING ACT, 48 STAT. 1246.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE FEDERAL HOUSING ADMINISTRATOR, MAY 14, 1940:

I HAVE YOUR LETTER OF MARCH 4, 1940, AS FOLLOWS:

WE RESPECTFULLY SUBMIT HEREWITH THE FOLLOWING FACTS AND INFORMATION ON THE QUESTION OF PAYMENTS MADE TO MR. ADALBERT B. SZIKLAS APPARENTLY CONTRARY TO THE PROVISIONS OF THE ACT OF MAY 10, 1916 (39 STAT. 120), AS AMENDED BY THE ACT OF AUGUST 29, 1916 (39 STAT. 582; SEC. 58, TITLE 5, U.S.C.A.)

MR. SZIKLAS WAS APPOINTED BY THIS ADMINISTRATION FEBRUARY 27, 1935, AS A FEE ARCHITECT AND ASSIGNED TO THE BOSTON, MASSACHUSETTS, INSURING OFFICE. THIS APPOINTMENT WAS TERMINATED ON MARCH 29, 1939, AND ON MARCH 30, 1939, MR. SZIKLAS WAS GIVEN AN INDEFINITE APPOINTMENT AS AN ARCHITECTURAL INSPECTOR TO BE PAID ON THE BASIS OF $10.00 PER DIEM, WHEN ACTUALLY EMPLOYED, WHICH APPOINTMENT WAS TERMINATED AT THE CLOSE OF BUSINESS DECEMBER 31, 1939. FROM THE INFORMATION FURNISHED US BY THE COMMANDANT OF THE UNITED STATES NAVY YARD AT BOSTON, MASSACHUSETTS, IT APPEARS THAT MR. SZIKLAS WAS EMPLOYED AT THE BOSTON NAVY YARD ON NAVY W.P.A. PROJECTS, SUCH EMPLOYMENT DATING FROM AUGUST 9, 1935, AND ENDING ON AUGUST 19, 1938. AUGUST 20, 1938, HE WAS TAKEN ON THE ROLLS OF THE NAVY YARD, CHARGEABLE TO P.W.A. APPROPRIATION AT AN ANNUAL SALARY OF $2,200, TEMPORARY; AND ON NOVEMBER 15, 1938, HE TERMINATED THIS TEMPORARY APPOINTMENT TO ACCEPT A TEMPORARY APPOINTMENT NOVEMBER 16, 1938, AS PRINCIPAL ENGINEERING DRAFTSMAN, SP-7-801--- $2,300 PER ANNUM, UNDER WHICH APPOINTMENT HE IS APPARENTLY STILL EMPLOYED. AT THE TIME MR. SZIKLAS' APPOINTMENT IN THIS ADMINISTRATION WAS CHANGED FROM A FEE ARCHITECT, PAID ON THE BASIS OF FEES WHEN ACTUALLY EMPLOYED, TO AN INDEFINITE APPOINTMENT AT $10.00 PER DIEM, HIS APPLICATION DATED APRIL 6, 1939, STATED THAT HE WAS AT THAT TIME EMPLOYED IN THE BOSTON NAVY YARD AS PRINCIPAL ENGINEERING DRAFTSMAN, P.W.A. (EMERGENCY EMPLOYEE) AT $2,300 PER ANNUM. ON THE SAME DATE, HE SUBMITTED "AFFIDAVIT OF OUTSIDE ACTIVITIES" IN WHICH THE FOLLOWING STATEMENT APPEARS IN REGARD TO OUTSIDE ACTIVITIES:

"1. EMERGENCY EMPLOYEE IN THE BOSTON NAVY YARD; PUBLIC WORKS DEPARTMENT.

"2. CONTINUING PRIVATE PRACTICE OF ARCHITECT NOT IN ANY WAY CONNECTED WITH THE PROGRAM OF THE FEDERAL HOUSING ADMINISTRATION.

"NEITHER ONE OF THESE OCCUPATIONS WILL INTERFERE WITH MY DUTIES AS ARCHITECTURAL INSPECTOR OF THE FEDERAL HOUSING ADMINISTRATION.' SUBSEQUENTLY AND UNDER DATE OF APRIL 20, 1939, THIS OFFICE ADVISED THE CIVIL SERVICE COMMISSION THAT CONSIDERATION WAS BEING GIVEN TO THE APPOINTMENT OF MR. SZIKLAS WHO CLAIMED PREVIOUS SERVICE UNDER THE FEDERAL GOVERNMENT AND ADVICE WAS REQUESTED AS TO WHETHER OR NOT THE RECORD OF MR. SZIKLAS WAS CLEAR AND ANY PREVIOUS SEPARATIONS WITHOUT PREJUDICE. THE INFORMATION REQUESTED FROM THE CIVIL SERVICE COMMISSION DID NOT REACH THIS OFFICE UNTIL THE LATTER PART OF OCTOBER 1939. NO WORK WAS ASSIGNED TO MR. SZIKLAS BY THIS ADMINISTRATION AFTER THE RECEIPT OF THIS REPORT, PENDING OUR INVESTIGATION OF THE QUESTION OF POSSIBLE DUAL COMPENSATION, CONTRARY TO FEDERAL STATUTES.

ACCORDING TO OUR RECORDS AND THE INFORMATION SUBMITTED BY THE NAVY YARD, THE FOLLOWING PAYMENTS WERE MADE TO MR. SZIKLAS:

1935--- FEES WERE PAID IN THE AMOUNT OF $64 BY THE FEDERAL HOUSING ADMINISTRATION; AND $394.82 WAS RECEIVED BY MR. SZIKLAS FROM THE NAVY DEPARTMENT ( P.W.A.).

1936--- NO FEES RECEIVED FROM FEDERAL HOUSING ADMINISTRATION; $1,716.61 WAS PAID TO MR. SZIKLAS BY THE NAVY DEPARTMENT.

1937--- NO FEES PAID BY THE FEDERAL HOUSING ADMINISTRATION; $2,000.47 WAS PAID TO MR. SZIKLAS BY THE NAVY DEPARTMENT.

1938--- JANUARY 1 TO AUGUST 20 (THE LATTER DATE BEING THE DATE OF HIS APPOINTMENT IN THE NAVY DEPARTMENT AT $2,200 PER ANNUM), HE RECEIVED FEES FROM THE FEDERAL HOUSING ADMINISTRATION IN THE AMOUNT OF $108; AND FOR THE SAME PERIOD OF TIME HE RECEIVED $1,389.89 FROM THE NAVY DEPARTMENT.

1938--- AUGUST 20 TO DECEMBER 31, FEES FROM THE FEDERAL HOUSING ADMINISTRATION IN THE AMOUNT OF $287.36; AND FOR THE SAME PERIOD OF TIME HE RECEIVED FROM THE NAVY DEPARTMENT SALARY AT THE RATE OF $2,200 PER ANNUM TO NOVEMBER 15, 1938; AND AT THE RATE OF $2,300 PER ANNUM FROM NOVEMBER 16, 1938, TO DECEMBER 31, 1938.

1939--- FROM JANUARY 1, 1939, TO MARCH 30, 1939, HE RECEIVED FROM THE FEDERAL HOUSING ADMINISTRATION $56 AS FEES, AND FROM MARCH 30 (THE DATE OF HIS INDEFINITE APPOINTMENT IN THIS ADMINISTRATION AT $10 PER DIEM) THROUGH DECEMBER 31, 1939, HE RECEIVED $1,042.13 FROM THE FEDERAL HOUSING ADMINISTRATION; AND SALARY FROM THE NAVY DEPARTMENT FROM JANUARY 1, 1939, THROUGH DECEMBER 31, 1939, AT THE RATE OF $2,300 PER ANNUM. AS HERETOFORE STATED, HIS EMPLOYMENT WITH THIS ADMINISTRATION WAS TERMINATED EFFECTIVE DECEMBER 31, 1939, AND AS FAR AS WE ARE ADVISED, HE IS STILL EMPLOYED BY THE NAVY DEPARTMENT AT A SALARY OF $2,300 PER ANNUM.

THIS OFFICE IS NOT INFORMED AS TO THE NATURE OF MR. SZIKLAS' EMPLOYMENT IN THE NAVY DEPARTMENT FROM THE TIME HE WAS EMPLOYED ON AUGUST 9, 1935, TO AUGUST 20, 1938, THE DAY HE WAS GIVEN AN APPOINTMENT IN THE NAVY DEPARTMENT AT $2,200 PER ANNUM, EXCEPT THAT HIS APPOINTMENT WAS APPARENTLY DESIGNATED AS EMERGENCY AND TEMPORARY. WE CAN SAY,HOWEVER, THAT FROM FEBRUARY 27, 1935, THROUGH MARCH 29, 1939, HE WAS EMPLOYED BY THIS ADMINISTRATION ENTIRELY ON A FEE BASIS, WHEN ACTUALLY EMPLOYED. ASSUMING THAT HIS APPOINTMENT IN THE NAVY DEPARTMENT UP TO AUGUST 20, 1938, WAS NOT ON A PER ANNUM BASIS, IT WOULD APPEAR THAT THE DUAL COMPENSATION STATUTE WOULD NOT BE FOR APPLICATION AT LEAST FOR THIS PERIOD OF TIME UNDER YOUR DECISION DATED MARCH 2, 1936, APPEARING IN 15 COMP. GEN. 751, 752, HOLDING THAT THE DUAL COMPENSATION STATUTE WOULD NOT PROHIBIT ONE PERSON FROM RECEIVING COMPENSATION ON A PER DIEM OR FEE BASIS UNDER MORE THAN ONE PART -TIME OR INTERMITTENT EMPLOYMENT FOR SERVICES PERFORMED ON DIFFERENT DAYS OR DIFFERENT TIMES. IT IS UNDERSTOOD, HOWEVER, THAT THIS RULE WOULD NOT APPLY IF ONE OF THE EMPLOYMENTS WAS ON A PER ANNUM BASIS (15 COMP. GEN. 828). WE ALSO HAVE IN MIND YOUR DECISIONS THAT THE DUAL COMPENSATION STATUTE WOULD APPLY WHEN AN EMPLOYEE IS EMPLOYED OVER THE SAME PERIOD IN TWO POSITIONS, THE COMBINED SALARIES OF WHICH WOULD EXCEED $2,000 PER ANNUM (8 COMP. GEN. 487; 18 COMP. GEN. 615), AND THE EXCEPTIONS TO THIS GENERAL RULE THAT IF THERE IS A DEFINITE LIMITATION ON THE EMPLOYMENT TO A SPECIFIC NUMBER OF HOURS PER DAY OR DAYS PER WEEK, MONTH OR YEAR, AND COMPENSATION IS PAID ONLY WHEN ACTUALLY EMPLOYED, THE DUAL COMPENSATION STATUTE WOULD NOT APPLY "IF THE TOTAL AMOUNT OF COMPENSATION POSSIBLE TO BE PAID FOR THE YEAR DOES NOT EXCEED $2,000" (17 COMP. GEN. 250, 252; 11 COMP. GEN. 200, 202).

IT WOULD APPEAR, THEREFORE, THAT SINCE MR. SZIKLAS WAS UNDER A PER ANNUM APPOINTMENT IN THE NAVY YARD IN THE YEARS 1938 AND 1939 AT A SALARY IN EXCESS OF $2,000 PER ANNUM, THE RECEIPT BY HIM OF COMPENSATION FOR SERVICES RENDERED THE FEDERAL HOUSING ADMINISTRATION IN THE AMOUNT OF $395.36 FOR 1938 AND $1,098.13 FOR 1939 IS PROHIBITED UNDER THE PROVISIONS OF THE DUAL COMPENSATION STATUTES. IT MAY ALSO BE THAT PAYMENTS MADE TO HIM IN OTHER YEARS BY THIS ADMINISTRATION, ARE CONTRARY TO THE DUAL COMPENSATION STATUTES SINCE IT WOULD HAVE BEEN POSSIBLE FOR HIM TO HAVE RECEIVED FEES IN EXCESS OF $2,000 PER ANNUM.

IN VIEW OF THE FACTS AND CIRCUMSTANCES OUTLINED, YOUR OPINION IS RESPECTFULLY REQUESTED AS TO THE APPLICATION OF THE DUAL COMPENSATION STATUTES TO THE MONIES RECEIVED BY MR. SZIKLAS FROM THIS ADMINISTRATION AND THE STEPS WHICH SHOULD BE TAKEN TO OBTAIN COLLECTION IF YOUR DECISION IS THAT ALL OR PART OF THE MONIES PAID HIM WERE CONTRARY TO LAW.

WITH RESPECT TO THE MATTER THIS OFFICE IS IN RECEIPT OF A REPORT, DATED APRIL 24, 1940, FROM THE NAVY DEPARTMENT, AS FOLLOWS:

THERE IS TRANSMITTED HEREWITH A LETTER RECEIVED BY THE COMMANDANT OF THE BOSTON NAVY YARD FROM THE SPECIAL ASSISTANT TO THE ADMINISTRATOR OF THE FEDERAL HOUSING ADMINISTRATOR ( ADMINISTRATION) DATED JANUARY 18, 1940, INFORMING THAT ALL OR PART OF THE SERVICE OF MR. ADALBERT B. SZIKLAS DURING CERTAIN PERIODS UNDER THE FEDERAL HOUSING ADMINISTRATION FROM 1935 TO JANUARY 1940, WHILE HE WAS ALSO EMPLOYED UNDER THE NAVY DEPARTMENT, WAS IN CONTRAVENTION OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916.

MR. SZIKLAS HAS BEEN EMPLOYED IN AN EXCEPTED STATUS POSITION AT THE BOSTON NAVY YARD AS OLLOWS:

CHART TEMPORARY ( WPA) STRUCTURAL DESIGN. $94.00 MONTH. 8 9-35

AND DRAFTS. RESIGNED " " " " 12-17-35 TEMPORARY " DESIGNER (SP.) (A) 7 $2,000.00 YR. 2-17-36 PROMOTED " " "(C) 8 $2,200.00 YR. 11-16-37 TRANS. NAVY ( PWA) JR. ARCHITECT $2,200.00 YR. 8-20 38 PROMOTED " PR. ENG. DRAFTS., $2,300.00 YR. 11-16-38

SP-7-901 PROMOTED " ASSOCIATE ARCHITECT, $3,200.00 YR. 3-16-40

P-3 STILL EMPLOYED " "

MR. SZIKLAS' LETTER OF FEBRUARY 8, 1940, REGARDING THIS MATTER IS ALSO ENCLOSED FOR YOUR INFORMATION.

PAY ROLL INFORMATION AND CITATIONS ARE NOT FURNISHED IN THE ABSENCE OF THE SPECIFIC PERIODS OF THE APPARENT DUAL SERVICE INVOLVED.

THIS CASE IS, THEREFORE, SUBMITTED FOR VERIFICATION OF THE ACCOUNT AND ISSUANCE OF INSTRUCTIONS FOR ANY NECESSARY ADJUSTMENT.

WITH THE ABOVE-QUOTED REPORT THERE WAS FORWARDED TO THIS OFFICE A COMMUNICATION DATED FEBRUARY 8, 1940, FROM MR. A. B. SZIKLAS, TO HIS SUPERIOR, PROTESTING APPLICATION OF THE DUAL COMPENSATION STATUTE IN HIS CASE WHEREIN IT IS STATED:

IN REVIEWING THE HISTORY OF THE CASE I REFER TO THE EMPLOYMENT DATA GIVEN IN THE LETTER MENTIONED ABOVE. IT IS NOTED THAT THERE WERE TWO PHASES OF MY EMPLOYMENT BY THE FHA, WHICH MAY POSSIBLY BE DEALT WITH IN DIFFERENT WAYS. DURING MY EMPLOYMENT AS A FEE-ARCHITECT I WAS RECEIVING FEES, NOT WAGES AT A FIXED ANNUAL RATE, AND THE DUAL COMPENSATION ACT DOES NOT APPLY TO FEES. THE CHANGE IN MY STATUS TO BEING PAID ON A PER DIEM BASIS WAS DONE, HOWEVER, AT THE URGENT INITIATIVE OF MY SUPERIORS IN THE BOSTON OFFICE OF THE FHA FOR REASONS OF ECONOMY, AND THIS CHANGE WORKED ENTIRELY TO THE ADVANTAGE OF THE FHA AS IT REDUCED THE AMOUNT OF COMPENSATION I RECEIVED PER CASE BY 70 TO 80 PERCENT. AT THE TIME WHEN THIS CHANGE WAS MADE MY EMPLOYMENT IN THE NAVY YARD WAS FULLY KNOWN TO THESE SUPERIORS IN THE FHA, WHO WERE NOT AWARE, JUST AS I WAS NOT, OF ANY VIOLATION OF THE DUAL COMPENSATION ACT. THERE WAS NO ATTEMPT, NOT EVEN A TACIT ONE, TO CONCEAL MY TWO FOLD OCCUPATION. WHEN SIGNING THE OATH OF OFFICE FOR THE PER DIEM POSITION ON 30 MARCH 1939, I WROTE IN AFTER THE PHRASE STATING THAT I HAD NO INTEREST CONFLICTING WITH MY DUTIES "EXCEPT THAT I AM EMPLOYED IN THE BOSTON NAVY YARD.' SIMILARLY IN AN APPLICATION I MADE AT THE NAVY YARD IN FEBRUARY 1939 FOR A PERMANENT POSITION, I STATED THAT I WAS EMPLOYED BY THE FHA. THEREFORE, IT SEEMS PROVEN TO ME THAT IF THERE WERE ANY VIOLATION OF THE DUAL COMPENSATION ACT IT WAS DONE IN PARDONABLE IGNORANCE WHICH MY SUPERIORS AT THE FHA SHARED WITH ME.

SECTION 6 OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, PROVIDES, IN PERTINENT PART, 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. * * *

THIS OFFICE HAS HELD CONSISTENTLY THAT THE TERM "SALARY" AS USED IN THIS STATUTE DOES NOT INCLUDE COMPENSATION PAID ON A FEE BASIS HAVING NO RELATION TO THE TIME SERVED, BUT DOES INCLUDE PER DIEM COMPENSATION EITHER FOR FULL-TIME SERVICE OR FOR INTERMITTENT SERVICE. SEE THE DECISION OF APRIL 6, 1939, 18 COMP. GEN. 768, AND THE DECISIONS THEREIN CITED, WHEREIN THE DISTINCTION BETWEEN FEES AND PER DIEM COMPENSATION IS DISCUSSED.

HENCE, THE QUESTION WHETHER PAYMENT OF TWO SALARIES HAS BEEN MADE IN THIS CASE IN CONTRAVENTION OF THE 1916 STATUTE IS LIMITED TO THE PERIOD BEGINNING MARCH 30, 1939, EFFECTIVE DATE OF APPOINTMENT OF MR. SZIKLAS BY THE FEDERAL HOUSING ADMINISTRATION WITH COMPENSATION AT THE RATE OF $10 PER DIEM WHEN ACTUALLY EMPLOYED, AND ENDING DECEMBER 31, 1939, DATE OF SEPARATION FROM THE FEDERAL HOUSING ADMINISTRATION, DURING WHICH PERIOD HE WAS EMPLOYED, ALSO BY THE NAVY DEPARTMENT WITH COMPENSATION AT THE RATE OF $2,300 PER ANNUM.

SECTION 1 OF THE NATIONAL HOUSING ACT, APPROVED JUNE 27, 1934, 48 STAT. 1246, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * IN ORDER TO CARRY OUT THE PROVISIONS OF THIS TITLE AND TITLES II AND III, THE ADMINISTRATOR MAY * * * APPOINT SUCH OTHER OFFICERS AND EMPLOYEES AS HE MAY FIND NECESSARY, AND MAY PRESCRIBE THEIR AUTHORITIES, DUTIES, RESPONSIBILITIES, AND TENURE AND FIX THEIR COMPENSATION, WITHOUT REGARD TO THE PROVISIONS OF OTHER LAWS APPLICABLE TO THE EMPLOYMENT OR COMPENSATION OF OFFICERS OR EMPLOYEES OF THE UNITED STATES. THE ADMINISTRATOR * * * MAY MAKE SUCH EXPENDITURES (INCLUDING EXPENDITURES FOR PERSONAL SERVICES * * *) AS ARE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS TITLE AND TITLES II AND III, WITHOUT REGARD TO ANY OTHER PROVISIONS OF LAW GOVERNING THE EXPENDITURE OF PUBLIC FUNDS. * * * ( ITALICS SUPPLIED.) IN DECISION OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES DATED MAY 10, 1935, 14 COMP. GEN. 822, FOLLOWING HIS EARLIER DECISION OF JANUARY 9, 1935, 14 COMP. GEN. 527, THE VIEW WAS EXPRESSED THAT THE BROAD AUTHORITY VESTED BY SECTION 1 OF THE NATIONAL HOUSING ACT IN THE ADMINISTRATOR OF THE FEDERAL HOUSING ADMINISTRATION TO EMPLOY PERSONNEL "WITHOUT REGARD TO THE PROVISIONS OF OTHER LAWS APPLICABLE TO THE EMPLOYMENT OR COMPENSATION OF OFFICERS OR EMPLOYEES OF THE UNITED STATES," AND TO "MAKE SUCH EXPENDITURES (INCLUDING EXPENDITURES FOR PERSONAL SERVICES * * *) * * * WITHOUT REGARD TO ANY OTHER PROVISIONS OF LAW GOVERNING THE EXPENDITURE OF PUBLIC NDS," DID NOT JUSTIFY DISREGARD OF THE DUAL COMPENSATION STATUTES. SAID DECISIONS APPEAR TO HAVE BEEN BASED UPON THE PROPOSITION THAT A DISREGARD OF THE DUAL COMPENSATION STATUTES BY THE FEDERAL HOUSING ADMINISTRATION "CLEARLY DEFEATS ONE OF THE PRIME PURPOSES OF RECENT LEGISLATION AUTHORIZING EMPLOYMENT OF PERSONNEL, INCLUDING THE NATIONAL HOUSING ACT, VIZ, THE SPREAD OF EMPLOYMENT" (QUOTING FROM THE DECISION OF MAY 10, 1935).

IT IS UNDERSTOOD THE FEDERAL HOUSING ADMINISTRATION HAS ADOPTED, GENERALLY, THE POLICY SUGGESTED BY THE CITED DECISIONS; THAT IS TO SAY, HAS REFRAINED GENERALLY FROM EMPLOYING PERSONNEL WHO ARE IN RECEIPT OF ANOTHER SALARY OR AN ANNUITY FROM THE FEDERAL GOVERNMENT. HOWEVER, IN THE INSTANT CASE IT IS CLEARLY SHOWN THAT SUCH GENERAL PRACTICE OR POLICY OF THE ADMINISTRATION WAS NOT FOLLOWED.

IN MY DECISION OF APRIL 30, 1940, B-9113, TO THE FEDERAL SECURITY ADMINISTRATOR, THERE WAS CONSIDERED THE EMPLOYMENT OF DR. CHARLES S. JOHNSON BY THE OFFICE OF EDUCATION, FEDERAL SECURITY AGENCY, WITH A SALARY OF $2,300 PER ANNUM FOR HALF TIME, BASED ON $4,600 PER ANNUM FOR FULL TIME, AND ALSO AS A MEMBER OF THE RAILROAD CARRIER INDUSTRY COMMITTEE OF THE WAGE AND HOUR DIVISION OF THE DEPARTMENT OF LABOR, WITH COMPENSATION AT THE RATE OF $15 PER DIEM WHEN ACTUALLY EMPLOYED, PURSUANT TO SECTION 5 (B) OF THE FAIR LABOR STANDARDS ACT OF 1938, APPROVED JUNE 25, 1938, 52 STAT. 1062, AUTHORIZING THE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION TO APPOINT MEMBERS OF THE COMMITTEE "WITHOUT REGARD TO ANY OTHER PROVISIONS OF LAW REGARDING THE APPOINTMENT AND COMPENSATION OF EMPLOYEES OF THE UNITED STATES.' IN SAID DECISION IT WAS CONCLUDED AS FOLLOWS:

ACCORDINGLY, I HAVE TO ADVISE THAT THE LANGUAGE OF SECTION 5 (B) OF THE ACT OF JUNE 25, 1938, SUPRA, IS SUFFICIENTLY BROAD AND COMPREHENSIVE TO INCLUDE DUAL COMPENSATION STATUTES AND THAT THE EMPLOYMENT OF DR. JOHNSON AS A MEMBER OF THE RAILROAD CARRIER INDUSTRY COMMITTEE WITHOUT REGARD TO THE PROVISIONS OF THE ACT OF MAY 10, 1916, AS AMENDED, WAS AUTHORIZED.

WHILE THE EMPLOYMENT IN THAT CASE WAS IN TWO PART-TIME POSITIONS, AND EMPLOYMENT IN THE INSTANT CASE WAS IN ONE FULL-TIME AND ONE PART TIME POSITION, I HAVE TO ADVISE THAT, IN VIEW OF THE BROAD AUTHORITY VESTED IN THE ADMINISTRATOR OF THE FEDERAL HOUSING ADMINISTRATION BY SECTION 1 OF THE NATIONAL HOUSING ACT, THE EMPLOYMENT OF MR. SZIKLAS BY THE FEDERAL HOUSING ADMINISTRATION ON AND AFTER MARCH 30, 1939, DURING THE PERIOD HE WAS EMPLOYED BY THE NAVY DEPARTMENT, IS NOT SO CLEARLY ILLEGAL AS TO REQUIRE THAT THIS OFFICE FURTHER QUESTION THE SALARY PAYMENTS MADE TO HIM UNDER SAID EMPLOYMENTS.