B-129856, DECEMBER 20, 1956, 36 COMP. GEN. 471

B-129856, DECEMBER 20, 1956, 36 COMP. GEN. 471

EXPERTS AND CONSULTANTS - COMPENSATION - OVERTIME - EMPLOYMENT CONTRACT CONTRACT PROVIDING OVERTIME A CONSULTANT EMPLOYED UNDER A CONTRACT WHICH WAS EXECUTED PURSUANT TO THE AUTHORITY IN SECTION 530 (A) OF THE MUTUAL SECURITY ACT OF 1954 AND WHICH PROVIDED COMPENSATION AT THE RATE OF $50 A DAY AND ADDITIONAL COMPENSATION FOR SERVICES IN EXCESS OF EIGHT HOURS A DAY MAY BE PAID OVERTIME PROVIDED THE AGGREGATE COMPENSATION FOR ANY DAY (REGULAR AND OVERTIME) DOES NOT EXCEED THE $75 LIMITATION IN 5 U.S.C. 55A.

TO MARGARET A. REEDER, INTERNATIONAL COOPERATION ADMINISTRATION, DECEMBER 20, 1956:

IN YOUR LETTER OF NOVEMBER 19, 1956, YOU REQUEST A DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF JOHN G. CLAYBOURN, A FORMER EMPLOYEE OF THE INTERNATIONAL COOPERATION ADMINISTRATION, COLOMBIAN MISSION. THE AMOUNT SHOWN ON THE VOUCHER REPRESENTS FINAL COMPENSATION AND LUMP SUM PAYMENT FOR ANNUAL LEAVE DUE MR. CLAYBOURN UPON SEPARATION FROM HIS POSITION WITH THE MISSION IN COLOMBIA.

MR. CLAYBOURN WAS EMPLOYED BY THE FOREIGN OPERATIONS ADMINISTRATION AS A CONSULTANT AT THE RATE OF $50 PER DAY UNDER THE AUTHORITY CONTAINED IN SECTION 530 (A) OF THE MUTUAL SECURITY ACT OF 1954, AS AMENDED, 22 U.S.C. 1790, WHICH AUTHORIZED THE EMPLOYMENT OF EXPERTS AND CONSULTANTS AS AUTHORIZED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946, AS AMENDED, 5 U.S.C. 55A, AT PER DIEM RATES NOT IN EXCESS OF $75. HE SERVED IN THE POSITION OF CONSULTANT FOR A PERIOD OF ONE YEAR--- MAY 2, 1955, TO MAY 1, 1956.

YOUR SOLE DOUBT AS TO THE PROPRIETY OF CERTIFYING THE VOUCHER FOR PAYMENT ARISES FROM THE FACT THAT, DURING THE COURSE OF HIS EMPLOYMENT BY THE MISSION AS A CONSULTANT, MR. CLAYBOURN WAS PAID ADDITIONAL COMPENSATION FOR SERVICES PERFORMED IN EXCESS OF 8 HOURS A DAY WHICH WAS CONTRARY TO THE RULING IN OUR DECISION OF JUNE 24, 1948, 27 COMP. GEN. 776. THAT DECISION HELD THAT EXPERTS AND CONSULTANTS APPOINTED ON A TEMPORARY BASIS AS AUTHORIZED BY SECTION 15 OF THE ACT OF AUGUST 2, 1946, PUBLIC LAW 600, 5 U.S.C. 55A, ARE NOT SUBJECT TO THE OVERTIME PROVISIONS OF SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 296, 5 U.S.C. 911, BUT THAT SUCH EMPLOYEES ARE ENTITLED FOR EACH DAY OF SERVICE TO THE PER DIEM RATES SPECIFIED IN THEIR CONTRACTS OF EMPLOYMENT REGARDLESS OF THE TOTAL NUMBER OF HOURS WORKED. DISTINGUISH 28 COMP. GEN. 328.

IN YOUR LETTER YOU RELATE THAT YOU ARE AWARE OF OUR DECISION IN 27 COMP. GEN. 776, BUT YOU REQUEST, IN VIEW OF THE PECULIAR CIRCUMSTANCES IN MR. CLAYBOURN'S EMPLOYMENT, THAT AN EXCEPTION TO THE GENERAL RULE STATED IN THE ABOVE CITED DECISION BE PERMITTED IN HIS CASE. YOU SAY THAT THE OVERPAYMENTS ARE A RESULT OF THE MISINTERPRETATION BY THE MISSION OFFICE IN COLOMBIA OF THE LANGUAGE USED ON MR. CLAYBOURN'S APPOINTMENT JOURNAL, THE PERTINENT PART OF WHICH READS AS FOLLOWS:

REGULAR TOUR OF DUTY. EMPLOYEE IS SCHEDULED TO WORK FORTY HOURS PER WEEK DURING THE REGULARLY SCHEDULED WORK WEEK OF THE MISSION TO WHICH ASSIGNED. PAYMENTS OF COMPENSATION LIMITED TO THE REGULARLY AUTHORIZED WORK WEEK UNLESS EXCESS IS FOR DAYS ON WHICH TRAVEL IS PERFORMED, OR AS A RESULT OF PRIOR AUTHORIZATION IN WRITING BY THE MISSION DIRECTOR. ITALICS SUPPLIED.)

THIS LANGUAGE WAS INTERPRETED BY THE MISSION DIRECTOR TO SUPPORT AN AUTHORIZATION TO MR. CLAYBOURN, READING IN PART AS FOLLOWS:

THE CONDITIONS OF YOUR EMPLOYMENT AS SET FORTH IN PERSONNEL ACTION DATED APRIL 18, 1955, COVERING YOUR APPOINTMENT AS RIVER NAVIGATION ADVISER, ASSIGNED TO THIS MISSION, PROVIDE FOR A REGULARLY SCHEDULED FORTY HOUR TOUR OF DUTY PER WEEK WITH ADDITIONAL DUTY BEYOND FORTY HOURS SUBJECT TO THE PRIOR AUTHORIZATION OF THE DIRECTOR OF THE MISSION.

THIS WILL SERVE AS YOUR AUTHORITY TO PERFORM SERVICES BEYOND THE REGULARLY AUTHORIZED WORK WEEK WHENEVER NECESSARY AND COMPATIBLE WITH THE REQUIREMENTS OF THE VARIOUS ENTITIES OF THE HOST GOVERNMENT WITH WHICH YOU WILL SERVE.

THE LANGUAGE OF THE APPOINTMENT JOURNAL AND THAT OF THE MISSION DIRECTOR'S AUTHORIZATION TO MR. CLAYBOURN REASONABLY IS SUBJECT TO THE CONSTRUCTION THAT HE WAS AUTHORIZED TO PERFORM SERVICES IN EXCESS OF 8 HOURS IN ANY DAY AND TO BE COMPENSATED THEREFORE IN ADDITION TO THE RATE OF $50 PER DAY ESTABLISHED IN HIS APPOINTMENT FOR SERVICES RENDERED DURING THE REGULARLY SCHEDULED WORKWEEK OF 40 HOURS, FOLLOWED BY THE MISSION.

WE HAVE BEEN INFORMALLY ADVISED BY REPRESENTATIVES OF THE INTERNATIONAL COOPERATION ADMINISTRATION THAT ADDITIONAL DUTY OVER AND ABOVE THE SCHEDULED WORKWEEK WAS REQUIRED OF MR. CLAYBOURN TO COMPLETE THE PROJECT WITHIN ONE YEAR. IN THAT REGARD, IT APPEARS IT FREQUENTLY WAS NECESSARY FOR THE EMPLOYEE TO WORK AT NIGHTS WITH REPRESENTATIVES OF THE GOVERNMENT OF COLOMBIA. ALSO, WE HAVE BEEN ASSURED THAT, HAD THE FACTS RELATING TO MR. CLAYBOURN'S HOURS OF DUTY BEEN KNOWN AT THE TIME OF HIS APPOINTMENT, A HIGHER PER DIEM RATE OF COMPENSATION--- NOT EXCEEDING THE LIMITATION OF $75--- WOULD HAVE BEEN FIXED IN HIS APPOINTMENT TO COMPENSATE HIM FOR THE LONGER HOURS.

THERE SEEMS TO BE NOTHING IN THE AGREEMENT BETWEEN THE THEN FOREIGN OPERATIONS ADMINISTRATION AND THE GOVERNMENT OF COLOMBIA WHICH WOULD PRECLUDE THE GOVERNMENT OF COLOMBIA FROM REIMBURSING THE UNITED STATES FOR THE HOURLY EQUIVALENT OF $50 A DAY FOR WORK PERFORMED BY MR. CLAYBOURN IN EXCESS OF 8 HOURS, AND THE LATTER GOVERNMENT HAS REIMBURSED THE UNITED STATES ON THAT BASIS. THE PROCEEDS OF THE REIMBURSEMENT REPORTEDLY HAVE BEEN DEPOSITED INTO THE TREASURY. THEREFORE, NO LOSS WILL RESULT TO THE UNITED STATES IF THE VOUCHER IS PAID AND THERE IS NO EVIDENCE THAT THE GOVERNMENT OF COLOMBIA, HAVING ACQUIESCED IN THE REIMBURSEMENT, WILL INTERPOSE AN OBJECTION THERETO.

THE DECISION IN 27 COMP. GEN. 776 CITED IN YOUR LETTER RELATES SOLELY TO THE PAYMENT OF OVERTIME COMPENSATION UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. AS INDICATED ABOVE, WHILE THE CONTRACT OF EMPLOYMENT IS SOMEWHAT AMBIGUOUS, IT REASONABLY MAY BE CONSTRUED IN A MANNER FAVORABLE TO THE EMPLOYEE. IN VIEW THEREOF, THE PAYMENT OF OVERTIME COMPENSATION UNDER SUCH CONTRACT WILL NOT BE QUESTIONED IN ANY CASE WHERE THE AGGREGATE COMPENSATION (REGULAR COMPENSATION PLUS OVERTIME) ON ANY DAY DID NOT EXCEED $75.

SUBJECT TO THE FOREGOING, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.