A-82335, APRIL 23, 1937, 16 COMP. GEN. 951

A-82335, APRIL 23, 1937, 16 COMP. GEN. 951

OFFICERS AND EMPLOYEES - TEMPORARY EMPLOYMENT DURING PERIOD OF ADMINISTRATIVE FURLOUGH - APPLICABILITY OF DUAL COMPENSATION STATUTES AND EFFECT ON FURLOUGH STATUS THE DUAL COMPENSATION STATUTES--- SECTION 1765, REVISED STATUTES; SECTION 2, ACT OF JULY 31, 1894, 28 STAT. 205; AND SECTION 6, ACT OF MAY 10, 1916, AS AMENDED BY ACT OF AUGUST 29, 1916, 39 STAT. 120, 582-- DO NOT PRECLUDE AN EMPLOYEE FROM OCCUPYING A TEMPORARY POSITION WHILE ON INVOLUNTARY FURLOUGH WITHOUT PAY, AS DISTINGUISHED FROM VOLUNTARY FURLOUGH OR LEAVES OF ABSENCE WITHOUT PAY, FROM A PERMANENT STATUS EITHER IN THE SAME OR DIFFERENT DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT, REGARDLESS OF THE INDIVIDUAL OR TOTAL AMOUNT OF THE COMPENSATION ATTACHED TO THE POSITIONS INVOLVED, AND, TERMINATION OF THE FURLOUGH STATUS IN SUCH CASES IS NOT REQUIRED. 16 COMP. GEN. 720, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, APRIL 23, 1937:

YOUR LETTER OF APRIL 9, 1937, IS AS FOLLOWS:

I HAVE GIVEN CONSIDERATION TO THE DECISION CONTAINED IN YOUR LETTER DATED FEBRUARY 3, 1937 (A-82335) TO THE PRESIDENT, U.S. CIVIL SERVICE COMMISSION, IN PARAGRAPH 4 OF WHICH IT IS STATED THAT A TEMPORARY APPOINTMENT MAY, BUT DOES NOT NECESSARILY, TERMINATE AN ADMINISTRATIVE FURLOUGH, AND IN WHICH IT IS INDICATED THAT IN THE ABSENCE OF FACTS AND FURTHER INFORMATION AS TO THE AUTHORITY FOR MAKING TEMPORARY APPOINTMENTS OF EMPLOYEES ON ADMINISTRATIVE FURLOUGH IN THE SAME OR DIFFERENT OFFICE, A MORE DEFINITE RULING CAN NOT BE GIVEN.

BECAUSE OF THE FACT THAT THE NUMBER OF ADMINISTRATIVE FURLOUGHS GRANTED IN THE ENGINEER DEPARTMENT IN THE COURSE OF A YEAR IS VERY LARGE, AND BECAUSE IN MANY CASES THE FURLOUGHED EMPLOYEES SECURE TEMPORARY APPOINTMENTS IN THE ENGINEER DEPARTMENT AND ELSEWHERE IN THE GOVERNMENT SERVICE, IT IS IMPORTANT THAT THE DEPARTMENT HAVE INFORMATION AS TO THE CASES IN WHICH SUCH TEMPORARY APPOINTMENTS MAY BE PERMITTED WITHOUT TERMINATING THE FURLOUGH STATUS, AND AS TO THOSE IN WHICH TERMINATION OF THE FURLOUGH IS REQUIRED.

IT IS CONSIDERED ADVISABLE TO STATE AT THE OUTSET THAT WHILE AN EMPLOYEE ON ADMINISTRATIVE FURLOUGH FROM A POSITION IN THE ENGINEER DEPARTMENT HOLDS HIS STATUS AS AN EMPLOYEE OF THE ENGINEER DEPARTMENT AND IS ELIGIBLE FOR REEMPLOYMENT AT ANY TIME WITHIN ONE YEAR, THE PERIOD FOR WHICH A FURLOUGH MAY BE GRANTED UNDER THE REGULATIONS, HE DOES NOT HOLD A CLAIM ON ANY PARTICULAR POSITION IN THE SENSE THAT A POSITION IS BEING HELD OPEN FOR HIM, AS WOULD BE THE CASE WERE HE ON LEAVE WITHOUT PAY. HIS REEMPLOYMENT WILL DEPEND ON THE OCCURRENCE OF A SUITABLE OPENING, AND IF NO SUCH OPENING OCCURS, HE BECOMES ABSOLUTELY SEPARATED FROM THE SERVICE UPON THE COMPLETION OF THE FURLOUGH PERIOD OF ONE YEAR.

WITH THIS IN MIND, A RULING IS REQUESTED AS TO WHETHER AN EMPLOYEE WHO HAS BEEN FURLOUGHED WITHOUT PAY FROM A POSITION OF SURVEYMAN, SP 8, AT $2,600 PER ANNUM, MAY BE REEMPLOYED IN TEMPORARY STATUS AS INSPECTOR, SP- 5, AT $1,800 PER ANNUM, OR WHETHER SUCH EMPLOYMENT WOULD BE IN VIOLATION OF SECTION 1765, R.S., AND THE ACT OF JULY 31, 1894, 28 STAT. 205, PROHIBITING THE EMPLOYMENT OF A CIVILIAN EMPLOYEE OF THE GOVERNMENT HOLDING A POSITION, THE SALARY ATTACHED TO WHICH AMOUNTS TO $2,500 PER ANNUM OR MORE, IN ANY OTHER POSITION UNDER THE GOVERNMENT WITH COMPENSATION ATTACHED.

SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, PROVIDES THAT UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY THAT 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, EXCEPT IN THE CASE OF CERTAIN RETIRED OFFICERS OR ENLISTED MEN. INFORMATION IS REQUESTED AS TO WHETHER THIS STATUTE OPERATES TO REQUIRE TERMINATION OF THE FURLOUGH STATUS IN THE CASES INDICATED BELOW:

(A) AN EMPLOYEE OF THE ENGINEER DEPARTMENT WAS ADMINISTRATIVELY FURLOUGHED WITHOUT PAY FROM THE POSITION OF INSPECTOR, SP-5, AT $1,800 PER ANNUM, IN THE ENGINEER DEPARTMENT, EFFECTIVE NOVEMBER 30, 1936. UNDER THE REGULATIONS THIS FURLOUGH WILL TERMINATE NOVEMBER 30, 1937. HE WAS GIVEN TEMPORARY EMPLOYMENT IN ANOTHER DEPARTMENT OF THE GOVERNMENT AS CLERK, CAF -2, AT $1,440 PER ANNUM, FOR A PERIOD OF SIX MONTHS, EFFECTIVE JANUARY 1, 1937.

(B) AN EMPLOYEE OF THE ENGINEER DEPARTMENT WAS ADMINISTRATIVELY FURLOUGHED WITHOUT PAY FROM THE POSITION OF SURVEYMAN, SP-3, AT $1,440 PER ANNUM, ON DECEMBER 7, 1936. ON JANUARY 15, 1937, HE WAS APPOINTED WITHOUT REFERENCE TO CIVIL-SERVICE RULES TO A TEMPORARY POSITION OF DRAFTSMAN AT $0.58 PER HOUR, ON WORK FINANCED FROM EMERGENCY FUNDS (RATE OF PAY SET BY THE STATE WORKS PROGRESS ADMINISTRATOR IN ACCORDANCE WITH RULES OF THE WORKS PROGRESS ADMINISTRATION). EMPLOYMENT IS ON A 44-HOUR WEEK BASIS AND THE COMBINED RATES OF THE TWO POSITIONS, THEREFORE, ARE IN EXCESS OF $2,000 PER ANNUM.

IN DECISION OF JULY 11, 1933, 13 COMP. GEN. 14, IT WAS HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

EMPLOYEES ADMINISTRATIVELY FURLOUGHED UNDER THE TERMS OF SECTION 9 (A) OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1934, APPROVED JUNE 16, 1933, 48 STAT. 306, MAY BE TEMPORARILY EMPLOYED EITHER IN THE SAME OR ANOTHER DEPARTMENT OR OFFICE OF THE GOVERNMENT, BUT THIS RULE IS LIMITED TO EMPLOYEES INVOLUNTARILY FURLOUGHED AND CANNOT BE EXTENDED TO APPLY TO EMPLOYEES ON VOLUNTARY LEAVE OF ABSENCE WITHOUT PAY. AN EMPLOYEE CANNOT BE GIVEN A PERMANENT OR INDEFINITE APPOINTMENT AND CONTINUE TO HOLD HIS STATUS AS AN ADMINISTRATIVELY FURLOUGHED EMPLOYEE FROM ANOTHER POSITION.

SEE ALSO 12 COMP. GEN. 403; ID. 501, 13 ID. 27.

IN THE CITED DECISIONS THE DUAL COMPENSATION STATUTES WERE NOT SPECIFICALLY REFERRED TO BUT THE RULE WAS STATED IN THE LIGHT THEREOF. THAT IS TO SAY, IT WAS CONCLUDED THAT THE DUAL COMPENSATION STATUTES DO NOT PRECLUDE AN EMPLOYEE FROM OCCUPYING A TEMPORARY POSITION DURING THE SAME PERIOD HE IS ON INVOLUNTARY FURLOUGH WITHOUT PAY FROM A PERMANENT STATUS EITHER IN THE SAME OR DIFFERENT DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT. THE REQUIREMENT FOR ADMINISTRATIVE FURLOUGH, EITHER PURSUANT TO THE STATUTORY PROVISIONS SINCE REPEALED, OR BECAUSE OF A DEFICIENCY IN APPROPRIATED FUNDS, IS TANTAMOUNT TO THE ABOLISHMENT OF THE POSITION FROM WHICH AN EMPLOYEE IS FURLOUGHED FOR THE SALARY OF WHICH THERE ARE NO FUNDS AVAILABLE. WHILE HE MAY BE REGARDED AS REMAINING ON THE ROLLS IN THE SENSE OF RETAINING A PERMANENT ELIGIBILITY FOR REEMPLOYMENT, HE DOES NOT ACTUALLY HOLD TWO POSITIONS WITHIN THE MEANING OF THE DUAL EMPLOYMENT STATUS DURING THE PERIOD OF THE INVOLUNTARY FURLOUGH.

THIS RULE IS NOT APPLICABLE DURING PERIODS OF VOLUNTARY FURLOUGH OR LEAVE OF ABSENCE WITHOUT PAY WHEN FUNDS REMAIN AVAILABLE FOR PAYMENT OF THE SALARY OF THE PERMANENT POSITION.

YOU ARE ADVISED THEREFORE THAT IN THE FIRST CASE PRESENTED IN YOUR LETTER THE EMPLOYEE MAY BE REEMPLOYED IN A TEMPORARY STATUS, AND THAT TERMINATION OF THE FURLOUGH STATUS IS NOT REQUIRED IN EITHER CASE (A) OR (B).