B-129618, NOV. 8, 1956

B-129618, NOV. 8, 1956

TO HONORABLE H. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:

ON OCTOBER 24, 1956, YOUR DEPUTY ADMINISTRATOR REQUESTED OUR DECISION REGARDING THE APPLICABILITY OF THE DUAL COMPENSATION AND DUAL EMPLOYMENT STATUTES TO THE CASE OF MR. FELIX KROWINSKI UNDER THE FACTS HEREINAFTER RELATED.

MR. KROWINSKI, A SUPERVISORY NURSE IN THE VETERANS ADMINISTRATION NEUROPSYCHIATRIC HOSPITAL AT MONTROSE, NEW YORK, HAS BEEN AWARDED A TRAINEESHIP IN PSYCHIATRIC AND MENTAL HEALTH NURSING UNDER A PUBLIC HEALTH SERVICE GRANT TO NEW YORK UNIVERSITY, AS AUTHORIZED BY SECTION 303 (B) OF THE PUBLIC HEALTH SERVICE ACT OF JULY 1, 1944, AS ADDED BY SECTION 7 (C) OF THE NATIONAL MENTAL HEALTH ACT, 60 STAT. 423, 42 U.S.C. 242A (B). THE AMOUNT OF THE GRANT IS $2,400, AND THE PERIOD OF SCHOLASTIC TRAINING COMMENCED ON SEPTEMBER 24, 1956, AND WILL BE CONCLUDED ON AUGUST 13, 1957. FROM THE AMOUNT SO GRANTED, THE UNIVERSITY IS TO PAY MR. KROWINSKI $140 PER MONTH FOR PERSONAL MAINTENANCE EXPENSES AND RETAIN THE BALANCE OF THE GRANT WHICH WILL BE USED AS REIMBURSEMENT OF TUITION AND FEES ASSOCIATED WITH THE TRAINING PROGRAM. WHILE NOT SO STATED IN THE DEPUTY ADMINISTRATOR'S LETTER, MR. KROWINSKI APPARENTLY DISCONTINUED HIS SERVICES AT THE VETERANS ADMINISTRATION HOSPITAL ON OR BEFORE THE DATE HE COMMENCED HIS TRAINEESHIP AT THE UNIVERSITY. MR. KROWINSKI'S SCHEDULE OF CLASSES AT THE UNIVERSITY IS FROM MONDAY THROUGH THURSDAY OF EACH WEEK, AND WE UNDERSTAND THAT THE HOSPITAL AT MONTROSE PRESENTLY DESIRES TO EMPLOY HIM ON A PART-TIME BASIS--- TWO DAYS PER WEEK, FRIDAY AND SATURDAY--- AT AN ANNUAL SALARY OF $1,936, THAT BEING THE PRORATED AMOUNT OF HIS FULL-TIME SALARY OF $4,840 PER ANNUM. THE QUESTION PRESENTED IS WHETHER SUCH EMPLOYMENT WILL CONTRAVENE THE DUAL EMPLOYMENT AND DUAL COMPENSATION STATUTES.

SECTION 303 (B) OF THE PUBLIC HEALTH SERVICES ACT IS AS FOLLOWS:

"/B) (1) TO PROVIDE TRAINING AND INSTRUCTION, IN MATTERS RELATING TO PSYCHIATRIC DISORDERS, TO PERSONS FOUND BY HIM TO HAVE PROPER QUALIFICATIONS, AND TO FIX AND PAY TO ANY OF SUCH PERSONS AS HE MAY DESIGNATE A PER DIEM ALLOWANCE DURING SUCH TRAINING AND INSTRUCTION OF NOT TO EXCEED $10, THE NUMBER OF SUCH PERSONS RECEIVING SUCH TRAINING AND INSTRUCTION TO BE FIXED BY THE NATIONAL ADVISORY MENTAL HEALTH COUNCIL; AND (2) TO PROVIDE SUCH TRAINING AND INSTRUCTION, AND DEMONSTRATIONS, THROUGH GRANTS, UPON RECOMMENDATION OF THE NATIONAL ADVISORY MENTAL HEALTH COUNCIL, TO PUBLIC AND OTHER NONPROFIT INSTITUTIONS, BUT ONLY TO THE EXTENT NECESSARY FOR THE PURPOSES OF SUCH TRAINING AND INSTRUCTION.'

THE DUAL OFFICE STATUTE--- ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62- -- PRECLUDES A PERSON WHO HOLDS AN OFFICE, THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO $2,500, FROM HOLDING ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIFICALLY AUTHORIZED BY LAW. THE APPARENT PURPOSE OF SECTION 303 (B) OF THE PUBLIC HEALTH SERVICE ACT IS TO INDUCE AND ASSIST QUALIFIED PERSONS TO UNDERGO TRAINING AND INSTRUCTION IN MATTERS RELATING TO PSYCHIATRIC DISORDERS IN ORDER TO INCREASE THE SUPPLY OF PERSONS SKILLED IN THAT FIELD OR PROFESSION. HOWEVER, WO DO NOT CONSIDER THAT THE FURNISHING OF TRAINING AND INSTRUCTION UNDER SECTION 303 (B) CONFERS UPON THE RECIPIENT OF SUCH TRAINING AND INSTRUCTION AN OFFICE UNDER THE UNITED STATES. IN ANY EVENT, IT IS NOT AN OFFICE TO WHICH COMPENSATION IS ATTACHED, SINCE SECTION 303 (B) PROVIDES FOR THE PAYMENT OF A PER DIEM ALLOWANCE ONLY--- NOT COMPENSATION.

THE ACT OF MAY 10, 1916, AS AMENDED, 5 U.S.C. 58, IS A PROHIBITION AGAINST THE RECEIPT OF DOUBLE SALARIES. SINCE THE PER DIEM ALLOWANCE THAT IN THE DISCRETION OF THE SURGEON GENERAL MAY BE FIXED AND PAID DURING A PERIOD OF INSTRUCTION AND TRAINING PROVIDED UNDER SECTION 303 (B) DOES NOT CONSTITUTE SALARY, WE ARE OF THE OPINION THAT THE 1916 STATUTE IS NOT APPLICABLE IN THE INSTANT CASE.

ACCORDINGLY, THE EMPLOYMENT OF MR. KROWINSKI ON A PART-TIME PER ANNUM BASIS IN THE VETERANS ADMINISTRATION HOSPITAL AT MONTROSE, WHILE HE IS UNDERGOING TRAINING AND INSTRUCTION UNDER A TRAINEESHIP AWARD AT NEW YORK UNIVERSITY, WOULD NOT VIOLATE ANY DUAL EMPLOYMENT OR DUAL COMPENSATION STATUTES OF WHICH WE ARE AWARE EVEN THOUGH HE RECEIVES A PERSONAL MAINTENANCE ALLOWANCE ($140 PER MONTH) FROM THE GRANT FUNDS AWARDED THE UNIVERSITY UNDER THE AUTHORITY OF SECTION 303 (B) OF THE PUBLIC HEALTH SERVICE ACT.