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A-44187, OCTOBER 24, 1932, 12 COMP. GEN. 416

A-44187 Oct 24, 1932
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ECONOMY ACT - PERCENTAGE REDUCTION - CENSUS AGENTS ONLY THOSE SPECIAL AGENTS OF THE BUREAU OF THE CENSUS WHOSE COMPENSATION AS FIXED IN THEIR CONTRACTS OF EMPLOYMENT IS IN EXCESS OF $1. 000 PER ANNUM ARE SUBJECT TO THE 8 1/3 PERCENT REDUCTION UNDER THE ECONOMY ACT. OR SUCH PORTION THEREOF AS IS NECESSARY TO REDUCE THE COMPENSATION TO $1. ON THE BASIS OF THE FOLLOWING MEMORANDUM BY THE DIRECTOR OF THE BUREAU OF THE CENSUS: YOUR ATTENTION IS CALLED TO THE CONCLUSIONS OF THE COMPTROLLER GENERAL. THE COMPTROLLER GENERAL RULES (1) THAT THE POSITIONS ARE NOT SEASONAL AND VACANCIES OCCURRING IN THIS FORCE OF SPECIAL AGENTS CAN BE FILLED ONLY BY AN ORDER OF THE PRESIDENT. BECAUSE THE RATE OF PAY IS SUCH THAT IT WOULD BE POSSIBLE FOR AN AGENT TO EARN MORE THAN $1.

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A-44187, OCTOBER 24, 1932, 12 COMP. GEN. 416

ECONOMY ACT - PERCENTAGE REDUCTION - CENSUS AGENTS ONLY THOSE SPECIAL AGENTS OF THE BUREAU OF THE CENSUS WHOSE COMPENSATION AS FIXED IN THEIR CONTRACTS OF EMPLOYMENT IS IN EXCESS OF $1,000 PER ANNUM ARE SUBJECT TO THE 8 1/3 PERCENT REDUCTION UNDER THE ECONOMY ACT, OR SUCH PORTION THEREOF AS IS NECESSARY TO REDUCE THE COMPENSATION TO $1,000 PER ANNUM. 12 COMP. GEN. 304 MODIFIED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, OCTOBER 24, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 23, 1932, REQUESTING RECONSIDERATION OF THE DECISION OF AUGUST 30, 1932, 12 COMP. GEN. 304, ON THE BASIS OF THE FOLLOWING MEMORANDUM BY THE DIRECTOR OF THE BUREAU OF THE CENSUS:

YOUR ATTENTION IS CALLED TO THE CONCLUSIONS OF THE COMPTROLLER GENERAL, GIVEN IN HIS OPINION OF AUGUST 30 1932 (A-44187), CONCERNING THE STATUS, UNDER THE ECONOMY ACT, OF SPECIAL AGENTS EMPLOYED TO COLLECT STATISTICS OF THE QUANTITY OF COTTON GINNED, CONSUMED, AND ON HAND. THE COMPTROLLER GENERAL RULES (1) THAT THE POSITIONS ARE NOT SEASONAL AND VACANCIES OCCURRING IN THIS FORCE OF SPECIAL AGENTS CAN BE FILLED ONLY BY AN ORDER OF THE PRESIDENT; AND (2) THAT THE COMPENSATION RATE PAID THESE SPECIAL AGENTS FOR EACH REPORT, OR OTHER QUANTITY OF WORK, SHALL BE REDUCED BY 8 1/3 PERCENT DURING THE FISCAL YEAR 1933, BECAUSE THE RATE OF PAY IS SUCH THAT IT WOULD BE POSSIBLE FOR AN AGENT TO EARN MORE THAN $1,000 PER ANNUM.

I FEEL THAT THIS RULING WAS MADE WITHOUT FULL INFORMATION CONCERNING THE WORK PERFORMED AND THE COMPENSATION PAID, DUE TO THE FACT THAT THE BUREAU'S LETTER ASKING FOR THIS DECISION DID NOT GO INTO SUFFICIENT DETAIL.

FIVE-SIXTHS OF ALL OF THE COMPENSATION PAID FOR THIS WORK IS FOR SECURING THE REPORTS FROM THE COTTON GINNERIES OF THE AMOUNT OF COTTON GINNED TO CERTAIN DATES DURING THE GINNING SEASON, WHICH IS FROM SEPTEMBER 1 TO DECEMBER 15. THE ACT OF APRIL 2, 1924, SPECIFIES THE DATES TO WHICH THE REPORTS MUST RELATE AND THE DATES ON WHICH THE REPORTS SHALL BE PUBLISHED. THIS MAKES IT IMPOSSIBLE FOR THE WORK TO BE PERFORMED AT ANY OTHER TIME THAN DURING THE GINNING SEASON, AND THE GREATEST NUMBER OF DAYS ANY AGENT COULD POSSIBLY WORK COULD NOT EXCEED 100. THE OTHER ONE-SIXTH OF THE WORK CONSISTS OF MAKING MONTHLY REPORTS OF THE AMOUNT OF COTTON CONSUMED AND HELD AND OF THE WEIGHTS OF BALES OF COTTON. UNDER THESE CONDITIONS, IT IS THOUGHT THAT THE WORK SHOULD BE CONSIDERED AS SEASONAL WITHIN THE MEANING OF THE ECONOMY ACT.

WHILE THESE AGENTS RECEIVE APPOINTMENTS THROUGH THE CIVIL SERVICE COMMISSION, THE BASIS OF THEIR COMPENSATION IS A CONTRACT BY WHICH THE AGENT AGREES TO FURNISH A SPECIFIED NUMBER OF REPORTS AT AN AGREED PRICE.

THE PRICE PAID FOR EACH REPORT DOES NOT MERELY COVER THE PAYMENT FOR THE AGENT'S TIME BUT ALSO COVERS THE EXPENSES INCIDENT TO VISITING THE GINNERIES FROM WHICH THE REPORTS ARE SECURED, INCLUDING TRAVEL AND SUBSISTENCE. WHILE IT IS IMPOSSIBLE TO DETERMINE IN EACH CASE WHAT PART OF THE COMPENSATION COVERS SALARY AND WHAT PART OF IT COVERS TRAVEL AND SUBSISTENCE, THE EXPENSE OF MAKING THE CANVASS UNQUESTIONABLY IS MORE THAN 50 PERCENT OF THE TOTAL PAID. IT IS UNDERSTOOD FROM (B) OF SECTION 104 OF THE ECONOMY ACT, THAT NO DEDUCTION SHALL BE MADE FROM TRAVEL AND SUBSISTENCE. THE LOW RATE AT WHICH THIS WORK IS PERFORMED IS DUE TO THE FACT THAT THE AGENTS LIVE IN THE COUNTIES CANVASSED BY THEM AND THAT THEY CAN TAKE SUFFICIENT TIME FROM THEIR REGULAR EMPLOYMENT TO DO THIS WORK. TYPICAL CASE AS TO THE TRAVEL THAT IT IS NECESSARY FOR AN AGENT TO PERFORM IN MAKING HIS CANVASS OF THE GINNERIES, IS SHOWN IN THE FOLLOWING STATEMENT, GIVING THE LOCATION OF THE 35 GINNERIES IN CHEROKEE COUNTY, GEORGIA, EACH ONE OF WHICH MUST BE PERSONALLY VISITED FOR EACH CANVASS:

OF THE 761 COTTON AGENTS, ONLY THREE RECEIVE MORE THAN $1,000 PER YEAR. THE COMPENSATION RECEIVED BY THE OTHER 758 RANGES FROM $43, MINIMUM, TO $929, MAXIMUM, THE AVERAGE COMPENSATION OF THESE AGENTS BEING $337.

THE COMPENSATION IS FIXED IN THE YEARLY CONTRACT, AND, THEREFORE, AGENTS CAN RECEIVE FOR THE SERVICE (INCLUDING TRAVEL EXPENSES AND SUBSISTENCE) REQUIRED WITHIN THE YEAR COVERED BY THE CONTRACT, ONLY THE AMOUNT STIPULATED THEREIN. THEY CAN NOT RECEIVE "AS MUCH AS $1,136 PER NUM," AS STATED IN THE COMPTROLLER'S DECISION, EXCEPT WHERE THE CONTRACT CALLS FOR SUCH AN AMOUNT.

IN DECISION OF AUGUST 8, 1932, TO THE SECRETARY OF AGRICULTURE (A 43734), THE COMPTROLLER RULED THAT PER DIEM CHARWOMEN MAY NOT EARN "AS MUCH AS $1,000 PER ANNUM, ALTHOUGH WORKING THE ENTIRE YEAR, BECAUSE OF THE LIMITATION ON THE HOURS OF DAILY LABOR AS RECOGNIZED BY STATUTE OR REGULATIONS ISSUED PURSUANT THERETO.' AS PREVIOUSLY STATED, THE PERIODS IN WHICH THE COTTON REPORTS MAY BE SECURED ARE LIMITED BY STATUTE. IT IS BELIEVED THAT THESE FACTS BRING THE AGENTS WITHIN THE SCOPE OF THIS DECISION.

IT IS SUGGESTED THAT THIS ADDITIONAL INFORMATION BE SUBMITTED TO THE COMPTROLLER GENERAL WITH THE REQUEST THAT HE GIVE THE MATTER FURTHER CONSIDERATION. THERE IS INCLOSED A COPY OF THE APPOINTMENT CERTIFICATE AND CONTRACT OF THE AGENT MAKING THE REPORT FOR CHEROKEE COUNTY, GEORGIA.

THE FACTS NOW DISCLOSED DO NOT JUSTIFY ANY MODIFICATION IN THE FIRST CONCLUSION OF THE PRIOR DECISION THAT THE POSITIONS OCCUPIED BY THESE SPECIAL AGENTS ARE NOT SEASONAL WITHIN THE MEANING OF SECTION 203 OF THE ECONOMY ACT. DUTIES ARE REQUIRED TO BE PERFORMED FOR WHICH COMPENSATION IS PAID AT TIMES OTHER THAN DURING THE COTTON-GINNING SEASON, WHICH FACT IS SUFFICIENT TO EXCLUDE THEIR POSITIONS FROM THE TERM "SEASONAL.'

HOWEVER, ON THE BASIS OF THE ADDITIONAL FACTS, THE SECOND CONCLUSION OF THE PRIOR DECISION THAT THE COMPENSATION PAID THESE SPECIAL AGENTS IN ALL CASES SHOULD BE REDUCED BY 8 1/3 PERCENT MUST BE MODIFIED. THE FACTS WHICH WERE NOT CLEARLY DISCLOSED BEFORE ARE NOW STATED AS FOLLOWS:

THE COMPENSATION IS FIXED IN THE YEARLY CONTRACT, AND, THEREFORE, AGENTS CAN RECEIVE FOR THE SERVICE (INCLUDING TRAVEL EXPENSES AND SUBSISTENCE) REQUIRED WITHIN THE YEAR COVERED BY THE CONTRACT, ONLY THE AMOUNT STIPULATED THEREIN. THEY CAN NOT RECEIVE "AS MUCH AS $1,136 PER NUM," AS STATED IN THE COMPTROLLER'S DECISION, EXCEPT WHERE THE CONTRACT CALLS FOR SUCH AN AMOUNT.

THE COPY OF THE ANNUAL AGREEMENT NOW SUBMITTED SHOWS THAT THERE IS DEFINITELY FIXED IN SUCH CONTRACTS NOT ONLY THE RATE OF COMPENSATION FOR THE VARIOUS CLASSES OF REPORTS BUT ALSO THE NUMBER OF EACH TO BE FURNISHED DURING THE YEAR AND THE TOTAL COMPENSATION TO BE PAID FOR THE YEAR.

IN DECISION OF JULY 30, 1932, 12 COMP. GEN. 142, 146, IT WAS STATED:

THERE IS A QUESTION WHETHER THE SALARY RATES OF THESE PART-TIME PHYSICIANS IN THE FIELD SERVICE OF THE DEPARTMENT OF JUSTICE SHOULD NOT HAVE BEEN ADJUSTED ON THE BASIS OF PAYING ONLY FOR ACTUAL DUTY AT PER ANNUM RATES FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT. SEE 11 COMP. GEN. 260, AND CASES THEREIN CITED. HOWEVER, SINCE THAT QUESTION HAS NOT HERETOFORE BEEN RAISED, THE PROVISIONS OF THE ECONOMY ACT ARE TO BE APPLIED ON THE BASIS OF THE RATES AS HERETOFORE FIXED AND IN EFFECT JUNE 30, 1932. THE COMPENSATION OF THESE PHYSICIANS APPEARS TO HAVE BEEN FIXED AT STRAIGHT PER ANNUM SALARIES FOR THE PART TIME SERVICE, THE ENTIRE SALARY SO FIXED BEING PAID WITHOUT REFERENCE TO THE HOURS OF SERVICE PER DAY ACTUALLY RENDERED. IN THIS RESPECT THESE CASES WOULD SEEM TO BE ESSENTIALLY DIFFERENT FROM THE VETERANS' ADMINISTRATION CASE OF A PHYSICIAN WHOSE RATE OF COMPENSATION WAS FIXED AT $5,200 PER ANNUM OR A RATE PER HOUR FOR HIS PART-TIME SERVICES, WHICH, ON THE BASIS OF FULL TIME, WOULD AMOUNT TO $5,200 PER ANNUM. ACCORDINGLY, SUCH OF THE PHYSICIANS WHOSE ANNUAL SALARY, AS STATED IN THE MEMORANDUM ACCOMPANYING THE SUBMISSION, IS $1,000 PER ANNUM OR LESS, ARE EXEMPT FROM THE FURLOUGH AND PERCENTAGE REDUCTION IN COMPENSATION.

IN THE LIGHT OF THE FACTS NOW DISCLOSED, IT APPEARING THAT THE AMOUNT OF THE COMPENSATION POSSIBLE TO BE RECEIVED BY THESE SPECIAL AGENTS FOR THE ENTIRE YEAR ON WHAT IS EQUIVALENT TO A PIECE WORK BASIS IS DEFINITELY FIXED IN THE CONTRACT OF EMPLOYMENT AND WITHOUT REFERENCE TO ANY SCHEDULE OF ANNUAL RATES FOR FULL-TIME SERVICE, SUCH AS PROVIDED IN THE CLASSIFICATION ACT OR POSTAL RECLASSIFICATION ACT, I HAVE TO ADVISE THAT ONLY THOSE AGENTS WHOSE COMPENSATION AS THUS FIXED IN THE CONTRACT OF EMPLOYMENT IS IN EXCESS OF $1,000 PER ANNUM, ARE SUBJECT TO THE 8 1/3 PERCENT REDUCTION, OR SUCH PORTION THEREOF AS IS NECESSARY TO REDUCE THE COMPENSATION TO $1,000 PER ANNUM.

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