B-73888, JUNE 15, 1948, 27 COMP. GEN. 750

B-73888: Jun 15, 1948

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CONCURRENT STATE EMPLOYMENT IN THE CASE OF AN EMPLOYEE APPOINTED AS A LOSS ADJUSTER BY THE FEDERAL CROP INSURANCE CORPORATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS AND CONCURRENTLY EMPLOYED BY THE POST OFFICE DEPARTMENT AS A SUBSTITUTE RURAL MAIL CARRIER WHEN THE REGULAR CARRIER IS ABSENT WITH PAY. THERE IS NO VIOLATION OF THE DUAL COMPENSATION PROVISIONS OF THE ACT OF MAY 10. UNLESS THE SERVICES OF SAID EMPLOYEE WERE TERMINATED PURSUANT TO THE PROVISIONS THEREOF. AS FOLLOWS: YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT I MAY PROPERLY CERTIFY FOR PAYMENT THE ATTACHED VOUCHERS IDENTIFIED BY CASE NUMBERS. IT IS THE POLICY OF THE CORPORATION TO SELECT MEN WHO HAVE HIGH INTEGRITY AND STANDING IN THE VARIOUS COMMUNITIES OF THE STATES AND WHO ALSO HAVE THE ABILITY TO PERFORM LOSS ADJUSTMENT DUTIES.

B-73888, JUNE 15, 1948, 27 COMP. GEN. 750

COMPENSATION - DOUBLE; POLITICAL ACTIVITY OF EMPLOYEES; CONCURRENT STATE EMPLOYMENT IN THE CASE OF AN EMPLOYEE APPOINTED AS A LOSS ADJUSTER BY THE FEDERAL CROP INSURANCE CORPORATION ON A PER DIEM WHEN ACTUALLY EMPLOYED BASIS AND CONCURRENTLY EMPLOYED BY THE POST OFFICE DEPARTMENT AS A SUBSTITUTE RURAL MAIL CARRIER WHEN THE REGULAR CARRIER IS ABSENT WITH PAY, THERE IS NO VIOLATION OF THE DUAL COMPENSATION PROVISIONS OF THE ACT OF MAY 10, 1906, AS AMENDED, IF THE EMPLOYEE DID NOT RECEIVE COMPENSATION AS A SUBSTITUTE RURAL CARRIER FOR ANY OF THE DAYS HE RECEIVED COMPENSATION AS A LOSS ADJUSTER. THE PAYMENT OF COMPENSATION FOR SERVICES RENDERED, PRIOR TO SEPARATION. BY AN EMPLOYEE WHO HELD AN EFFECTIVE STATE OR LOCAL TOWNSHIP OFFICE CONCURRENTLY WITH FEDERAL EMPLOYMENT WOULD NOT BE BARRED BY THE PROVISIONS OF SECTION 9 OF THE ACT OF AUGUST 2, 1939 ( HATCH ACT), PROHIBITING POLITICAL ACTIVITIES, UNLESS THE SERVICES OF SAID EMPLOYEE WERE TERMINATED PURSUANT TO THE PROVISIONS THEREOF, NOR DO THE PROVISIONS OF THE EXECUTIVE ORDER OF JANUARY 17, 1873, WHICH BAR FEDERAL EMPLOYEES FROM ACCEPTING OR HOLDING OFFICE UNDER A STATE OR TERRITORIAL GOVERNMENT, PURPORT TO PROHIBIT THE PAYMENT OF FEDERAL COMPENSATION.

COMPTROLLER GENERAL WARREN TO GLENN W. SITZ, DEPARTMENT OF AGRICULTURE, JUNE 15, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF FEBRUARY 20, 1948, AS FOLLOWS:

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT I MAY PROPERLY CERTIFY FOR PAYMENT THE ATTACHED VOUCHERS IDENTIFIED BY CASE NUMBERS, IN VIEW OF THE FACTS STATED BELOW.

IN THE ADMINISTRATION OF ITS CROP INSURANCE PROGRAMS, THE FEDERAL CROP INSURANCE CORPORATION HAS APPOINTED IN THE SEVERAL STATES A NUMBER OF LOSS ADJUSTERS ON A PER DIEM ( WAE) BASIS. IT IS THE POLICY OF THE CORPORATION TO SELECT MEN WHO HAVE HIGH INTEGRITY AND STANDING IN THE VARIOUS COMMUNITIES OF THE STATES AND WHO ALSO HAVE THE ABILITY TO PERFORM LOSS ADJUSTMENT DUTIES. THIS PRESENTS A DIFFICULT PROBLEM IN MANY COMMUNITIES, OFTEN NECESSARILY RESULTING IN THE APPOINTMENT OF MEN WHO ALREADY ARE EMPLOYED BY THE FEDERAL AND STATE GOVERNMENTS IN OTHER CAPACITIES.

THE APPOINTMENT GIVEN BY THE CORPORATION TO ITS LOSS ADJUSTERS IS TEMPORARY INDEFINITE BY AUTHORITY OF CIVIL SERVICE COMMISSION UNDER SCHEDULE A-9-XXIX WITH A CAF-5 CLASSIFICATION AT A SALARY OF $10.1723076 PER DIEM ( WAE). EMPLOYMENT UNDER THIS AUTHORITY MAY NOT EXCEED 120 WORKING DAYS IN ANY ONE YEAR. AS A GENERAL RULE, VERY FEW LOSS ADJUSTERS ARE EVER EMPLOYED THE MAXIMUM NUMBER OF DAYS. THE LOSS ADJUSTMENT WORK IS ENTIRELY OF A SEASONAL NATURE.

CASE 1.--- AS EVIDENCED BY THE ATTACHED VOUCHERS, CLAIMS ARE MADE BY MR. RAYMOND H. KELLY, ROUTE 1, ENNIS, TEXAS, FOR $233.95 AND $132.24, COVERING SERVICES PERFORMED IN JULY AND AUGUST 1947. CONCURRENT WITH HIS EMPLOYMENT IN THIS CORPORATION, MR. KELLY WAS EMPLOYED BY THE POST OFFICE DEPARTMENT AS A SUBSTITUTE RURAL MAIL CARRIER. FROM THE BEST INFORMATION THAT I AM ABLE TO OBTAIN, MR. KELLY SERVES ONLY WHEN THE REGULAR RURAL CARRIER IS ON LEAVE AND IS PAID FOR SUCH SERVICES UNDER THE USUAL TYPE OF APPOINTMENT GIVEN BY THE POST OFFICE DEPARTMENT TO ITS SUBSTITUTE RURAL MAIL CARRIERS. MY INFORMATION IS THAT SUCH APPOINTMENTS ARE ON A PER DIEM BASIS. A BLANK COPY OF FORM 4066," NOTICE OF APPOINTMENT OF SUBSTITUTE RURAL CARRIER," IS ATTACHED. MAY I PROPERLY CERTIFY FOR PAYMENT MR. KELLY'S VOUCHERS WITHOUT SUCH PAYMENT BEING IN VIOLATION OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582? THE DECISIONS RENDERED IN 15 COMPTROLLER GENERAL 751 AND 18 COMPTROLLER GENERAL 614 AND THE PROVISIONS OF TITLE 39, SECTIONS 201, 202, AND 203 OF THE U.S. CODE, HAVE BEEN NOTED.

CASE 2.--- AS ALSO EVIDENCED BY THE VOUCHERS ATTACHED, CLAIMS ARE MADE BY MR. JAMES W. O-BRIEN, ROUTE 2, STILLWATER, MINNESOTA, FOR $132.24 AND $101.72, COVERING SERVICES PERFORMED IN OCTOBER AND NOVEMBER 1947. CONCURRENT WITH HIS EMPLOYMENT IN THIS CORPORATION, HE WAS A MEMBER OF THE MINNESOTA STATE SENATE FOR WHICH COMPENSATION OF APPROXIMATELY $2,000.00 PER ANNUM WAS MADE. APPARENTLY SUCH POSITIONS ARE SECURED AS A RESULT OF AN ELECTION CAMPAIGN. MR. O-BRIEN'S EMPLOYMENT WITH THIS CORPORATION WAS TERMINATED ON JANUARY 5, 1948. MAY I PROPERLY CERTIFY FOR PAYMENT THESE CLAIMS, IN VIEW OF A POSSIBLE VIOLATION OF THE HATCH ACT?

CASE 3.--- AS ALSO EVIDENCED BY THE VOUCHERS ATTACHED, CLAIMS ARE MADE BY MR. GUS C. CHRISTENSEN, ROUTE 1, WAUBUN, MINNESOTA, FOR $91.55 AND $20.34, COVERING SERVICES PERFORMED IN OCTOBER AND NOVEMBER 1947. CONCURRENT WITH HIS EMPLOYMENT IN THIS CORPORATION, MR. CHRISTENSEN SERVED AS CHAIRMAN, BOARD OF SUPERVISORS, LAKE GROVE TOWNSHIP. I AM INFORMED THAT MR. CHRISTENSEN'S APPOINTMENT IS AN ELECTIVE POSITION, BUT THE NOMINATION AND ELECTION WAS MADE IN AN OPEN MEETING WITH NO CAMPAIGNING BEFORE ELECTION. MAY I PROPERLY CERTIFY FOR PAYMENT THESE CLAIMS, IN VIEW OF A POSSIBLE VIOLATION OF THE HATCH ACT?

IN 15 COMP. GEN. 751, IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582, IS NOT FOR APPLICATION TO PART TIME OR INTERMITTENT EMPLOYEES PERFORMING SERVICES FOR DIFFERENT GOVERNMENT AGENCIES ON DIFFERENT DAYS OR AT DIFFERENT TIMES IF PAYMENT IS ON A PER DIEM OR FEE BASIS FOR TIME ACTUALLY EMPLOYED.

SECTION 17 (A) OF THE POSTAL EMPLOYEES' PAY ACT OF 1945, PUBLIC LAW 134, 59 STAT. 455, PRESCRIBES THE COMPENSATION FOR RURAL CARRIERS AND SECTION 17 (B), 59 STAT. 456, PROVIDES THAT "A SUBSTITUTE RURAL CARRIER WHO PERFORMS SERVICE FOR A REGULAR CARRIER ABSENT WITH PAY SHALL BE PAID AT THE SAME RATE PAID THE REGULAR CARRIER FOR EACH DAY'S SERVICE, EXCLUSIVE OF SUNDAYS AND AUTHORIZED HOLIDAYS.' ACCORDINGLY, IN CASE NO. 1, IF MR. KELLY DID NOT RECEIVE COMPENSATION AS A SUBSTITUTE RURAL CARRIER FOR ANY OF THE DAYS IN JULY AND AUGUST, 1947, COVERED BY THE VOUCHERS CLAIMING COMPENSATION ON A WAE BASIS AS AN EMPLOYEE OF YOUR CORPORATION, THERE WOULD NOT BE INVOLVED ANY VIOLATION OF THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED, 39 STAT. 120, 582, AND THE VOUCHER PROPERLY COULD BE CERTIFIED FOR PAYMENT.

WITH RESPECT TO CASE NO. 2, SECTION 9 OF THE ACT OF AUGUST 2, 1939, 53 STAT. 1148, COMMONLY KNOWN AS THE HATCH ACT, PROVIDES:

SEC. 9. (A) IT SHALL BE UNLAWFUL FOR ANY PERSON EMPLOYED IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT, OR ANY AGENCY OR DEPARTMENT THEREOF, TO USE HIS OFFICIAL AUTHORITY OR INFLUENCE FOR THE PURPOSE OF INTERFERING WITH AN ELECTION OR AFFECTING THE RESULT THEREOF. NO OFFICER OR EMPLOYEE IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT, OR ANY AGENCY OR DEPARTMENT THEREOF, SHALL TAKE ANY ACTIVE PART IN POLITICAL MANAGEMENT OR IN POLITICAL CAMPAIGNS. ALL SUCH PERSONS SHALL RETAIN THE RIGHT TO VOTE AS THEY MAY CHOOSE AND TO EXPRESS THEIR OPINIONS ON ALL POLITICAL SUBJECTS. FOR THE PURPOSES OF THIS SECTION THE TERM "OFFICER" OR "EMPLOYEE" SHALL NOT BE CONSTRUED TO INCLUDE (1) THE PRESIDENT AND VICE PRESIDENT OF THE UNITED STATES; (2) PERSONS WHOSE COMPENSATION IS PAID FROM THE APPROPRIATION FOR THE OFFICE OF THE PRESIDENT; (3) HEADS AND ASSISTANT HEADS OF EXECUTIVE DEPARTMENTS; (4) OFFICERS WHO ARE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND WHO DETERMINE POLICIES TO BE PURSUED BY THE UNITED STATES IN ITS RELATIONS WITH FOREIGN POWERS OR IN THE NATION-WIDE ADMINISTRATION OF FEDERAL LAWS.

(B) ANY PERSON VIOLATING THE PROVISIONS OF THIS SECTION SHALL BE IMMEDIATELY REMOVED FROM THE POSITION OR OFFICE HELD BY HIM, AND THEREAFTER NO PART OF THE FUNDS APPROPRIATED BY ANY ACT OF CONGRESS FOR SUCH POSITION OR OFFICE SHALL BE USED TO PAY THE COMPENSATION OF SUCH PERSON.

IN 19 COMP. GEN. 834, IT WAS STATED, AT PAGE 835:

THE PROVISIONS OF SECTION 9 (B) OF THE STATUTE ARE NOT SELF EXECUTING, AND IT FOLLOWS THAT THERE IS REQUIRED ADMINISTRATIVE OR EXECUTIVE ACTION TO REMOVE AN OFFICER OR EMPLOYEE WHO VIOLATES SECTION 9 (A) OF THE STATUTE. THE INHIBITION OF THE STATUTE AGAINST THE USE "THEREAFTER" OF APPROPRIATED FUNDS FOR PAYMENT OF THE COMPENSATION OF "SUCH PERSON" ATTACHES UPON THE REMOVAL FROM OFFICE OR POSITION AS THEREIN PRESCRIBED THE WORD "THEREAFTER" AS USED IN THE STATUTE RELATING BACK TO THE PRESCRIBED ACTION OF REMOVAL, AND NOT TO THE DATE OF SOME ACTION ON THE PART OF AN OFFICER OR EMPLOYEE WHICH SUBSEQUENTLY MAY BE DETERMINED TO HAVE VIOLATED SECTION 9 (A) OF THE STATUTE. IN OTHER WORDS, THE STATUTE PRESCRIBES A CAUSE OF REMOVAL FROM THE SERVICE AND MAY NOT BE REGARDED AS WORKING A FORFEITURE OF ALL OR ANY PART OF THE ACCRUED UNPAID COMPENSATION OF AN OFFICER OR EMPLOYEE WHO HAS NOT BEEN REMOVED FROM HIS OFFICE OR POSITION PURSUANT TO SUCH STATUTE.

YOUR SUBMISSION DOES NOT STATE WHETHER THE TERMINATION OF MR. O BRIEN'S EMPLOYMENT WAS BECAUSE OF THE HATCH ACT. IF REMOVED BECAUSE OF SAID HATCH ACT, THAT ACT WOULD CONSTITUTE A BAR TO ANY PAYMENT THEREAFTER TO HIM FOR COMPENSATION IRRESPECTIVE OF WHETHER EARNED BEFORE OR AFTER REMOVAL. COMPARE 26 COMP. GEN. 853. IF NOT REMOVED BECAUSE OF THE HATCH ACT, THERE REMAINS FOR DECISION WHETHER THE HOLDING OF THE FEDERAL OFFICE WHILE HOLDING A STATE OFFICE WOULD BE IN VIOLATION OF THE PROVISIONS OF THE EXECUTIVE ORDER OF JANUARY 17, 1873, WHICH PROVIDES, IN MATERIAL PART:

* * * THAT FROM AND AFTER THE 4TH DAY OF MARCH A.D. 1873 (EXCEPT AS HEREIN SPECIFIED) PERSONS HOLDING ANY FEDERAL CIVIL OFFICE BY APPOINTMENT UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES, WILL BE EXPECTED, WHILE HOLDING SUCH OFFICE, NOT TO ACCEPT OR HOLD ANY OFFICE UNDER ANY STATE OR TERRITORIAL GOVERNMENT, OR UNDER THE CHARTER OR ORDINANCES OF ANY MUNICIPAL CORPORATION; AND FURTHER, THAT THE ACCEPTANCE OR CONTINUED HOLDING OF ANY SUCH STATE, TERRITORIAL, OR MUNICIPAL OFFICE, WHETHER ELECTIVE OR BY APPOINTMENT, BY ANY PERSON HOLDING CIVIL OFFICE AS AFORESAID UNDER THE GOVERNMENT OF THE UNITED STATES, OTHER THAN JUDICIAL OFFICES UNDER THE CONSTITUTION OF THE UNITED STATES, WILL BE DEEMED A VACATION OF THE FEDERAL OFFICE HELD BY SUCH PERSON, AND WILL BE TAKEN TO BE, AND WILL BE TREATED AS, A RESIGNATION BY SUCH FEDERAL OFFICER OF HIS COMMISSION OR APPOINTMENT IN THE SERVICE OF THE UNITED STATES.

* * * HEADS OF DEPARTMENTS AND OTHER OFFICERS OF THE GOVERNMENT WHO HAVE THE APPOINTMENT OF SUBORDINATE OFFICERS ARE REQUIRED TO TAKE NOTICE OF THIS ORDER AND TO SEE TO THE ENFORCEMENT OF ITS PROVISIONS AND TERMS WITHIN THE SPHERE OF THEIR RESPECTIVE DEPARTMENTS OR OFFICES AND AS RELATES TO THE SEVERAL PERSONS HOLDING APPOINTMENTS UNDER THEM RESPECTIVELY.

IN 16 COMP. GEN. 776, IT IS STATED:

THERE IS NO FEDERAL STATUTE PRECLUDING PAYMENT OF SALARY OR COMPENSATION OTHERWISE DUE TO AN OFFICER OR EMPLOYEE OF THE UNITED STATES FOR A PERIOD DURING WHICH HE MAY BE HOLDING AN OFFICE OR POSITION UNDER A STATE GOVERNMENT, ALSO; AND IT WILL BE NOTED THAT THE EXECUTIVE ORDER, SUPRA, DOES NOT PURPORT TO PROHIBIT SUCH PAYMENT BUT REQUIRES A RESIGNATION FROM THE FEDERAL OFFICE IF THE HOLDER THEREOF ELECTS TO ACCEPT OR CONTINUE TO HOLD THE STATE OFFICE. IN THE CASE HERE PRESENTED THE EMPLOYEE DID TENDER HIS RESIGNATION FROM THE FEDERAL POSITION ON THE SAME DAY THAT HE ACCEPTED EMPLOYMENT UNDER THE STATE GOVERNMENT.

ACCORDINGLY, IF MR. O-BRIEN WAS NOT REMOVED BECAUSE OF THE HATCH ACT, THERE WOULD APPEAR TO BE NO PROHIBITION AGAINST THE PAYMENT TO HIM OF HIS FEDERAL COMPENSATION COVERING THE PERIOD PRIOR TO HIS SEPARATION.

WITH RESPECT TO CASE NO. 3, AND AS INDICATED IN THE DISCUSSION OF CASE NO. 2, SUPRA, THE PROVISIONS OF THE HATCH ACT ARE NOT SELF EXECUTING, AND IF ACTION HAS NOT BEEN TAKEN TO TERMINATE MR. CHRISTENSEN'S SERVICES FOR VIOLATION OF THAT ACT, HE WOULD BE ENTITLED TO HIS COMPENSATION FOR SERVICES RENDERED SO FAR AS THE HATCH ACT IS CONCERNED. 19 COMP. GEN. 834. SEE, ALSO, DISCUSSION IN CASE NO. 2 WITH RESPECT TO THE APPLICATION OF EXECUTIVE ORDER OF JANUARY 17, 1873.

THE VOUCHERS ARE HEREWITH RETURNED, AND ACTION THEREON SHOULD BE IN ACCORDANCE WITH THE FOREGOING.

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