B-21279, NOVEMBER 14, 1941, 21 COMP. GEN. 453

B-21279, NOVEMBER 14, 1941, 21 COMP. GEN. 453

COMPENSATION - DOUBLE - POSTAL EMPLOYEES IN VIEW OF THE PROVISIONS OF THE ACT OF MARCH 1, 1929, LIMITING TO $2,000 THE TOTAL AMOUNT THAT POSTAL EMPLOYEES SERVING IN A DUAL CAPACITY MAY RECEIVE IN ANY ONE FISCAL YEAR, THE TOTAL SALARY OF A SUBSTITUTE POSTAL CLERK WHO IS ASSIGNED, ALSO, TO PERFORM THE DUTIES OF A SUBSTITUTE LABORER IN A FIRST- OR SECOND-CLASS POST OFFICE DURING DIFFERENT PERIODS OF TIME MAY NOT EXCEED $2,000 PER ANNUM, AND THE SAME LIMITATION IS APPLICABLE TO THE DUAL EMPLOYMENT OF SUBSTITUTE CLERKS AS SUBSTITUTE CARRIERS AND VICE VERSA.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, NOVEMBER 14, 1941:

I HAVE YOUR LETTER OF OCTOBER 18, 1941, AS FOLLOWS:

ATTENTION IS INVITED TO THE CASE OF SUBSTITUTE CLERK NICHOLAS F. CUCUKOVICH OF THE GALVESTON, TEXAS, POST OFFICE. MR. CUCUKOVICH WAS FORMERLY A POST OFFICE LABORER AND ON MARCH 1, 1940, HE WAS TRANSFERRED TO THE POSITION OF SUBSTITUTE CLERK. IN HIS CAPACITY AS SUBSTITUTE CLERK HE WAS PAID AT THE RATE OF SIXTY-FIVE CENTS AN HOUR. ON OCCASIONS HE WAS EMPLOYED ON DUTIES CLASSED AS LABORER WORK. FOR SUCH SERVICE THE POSTMASTER PAID HIM AS A SUBSTITUTE LABORER AT THE RATE OF FIFTY-FIVE CENTS AN HOUR. IT MIGHT BE EXPLAINED THAT THE WORK OF BOTH JOBS IS ALL PART OF THE WORK PERFORMED IN A POST OFFICE.

ON SEPTEMBER 4, 1941, THE POSTAL ACCOUNTS DIVISION ADVISED THE POSTMASTER THAT THEY HAD SUSPENDED FROM HIS ACCOUNTS THE SUM OF $362.83 FOR THE REASON THAT DURING THE FISCAL YEAR ENDED JUNE 30 TOTAL CREDIT WAS CLAIMED IN THE SUM OF $2,362.83 WHICH WAS IN EXCESS OF THE $2,000.00 LIMIT AS PRESCRIBED IN 39 U.S.C. 136.

SITUATIONS FREQUENTLY ARISE IN POST OFFICES WHERE IT IS NECESSARY TO UTILIZE THE SERVICES OF SUBSTITUTES IN A DUAL CAPACITY IN ORDER TO KEEP THE MAILS MOVING. ATTENTION IS INVITED TO THE FACT THAT SUBSTITUTE CLERKS AND SUBSTITUTE LABORERS ARE BOTH PAID FROM THE SAME APPROPRIATION ONLY AT DIFFERENT RATES OF PAY. IT HAS LONG BEEN THE PRACTICE TO UTILIZE THE SERVICES OF SUBSTITUTE CLERKS AS SUBSTITUTE CARRIERS, AND THE REVERSE, WHERE SUCH A COURSE IS NECESSARY TO MAINTAIN GOOD POSTAL SERVICE. IN SUCH CASES THE SUBSTITUTES ARE PAID FROM SEPARATE APPROPRIATIONS. AS THERE HAS BEEN NO RESTRICTION ON THE DEPARTMENT WITH RESPECT TO THE EMPLOYMENT OF SUBSTITUTE CLERKS AND SUBSTITUTE CARRIER INTERCHANGEABLY IT IS BELIEVED THAT THE SAME LATITUDE SHOULD BE ALLOWED IN THE CASE OF THE EMPLOYMENT OF SUBSTITUTE LABORERS.

IF THE DEPARTMENT IS RESTRICTED IN THIS MATTER IT WOULD BE NECESSARY TO PAY SUBSTITUTE CLERKS WHILE ENGAGED ON LABORER DUTIES AT THE CLERICAL RATE, WHICH WOULD BE MORE EXPENSIVE THAN THE PRESENT ARRANGEMENT. IN THE INTEREST OF GOOD POSTAL SERVICE AND ECONOMY THE DEPARTMENT BELIEVES THAT AUTHORITY SHOULD BE GIVEN TO EMPLOY THESE SUBSTITUTES WITHOUT RESTRICTION TO THE $2,000 LIMIT. IT IS THEREFORE REQUESTED THAT THE AMOUNT DEBITED THE POSTMASTER AT GALVESTON BE RESTORED.

THE RECORDS OF THIS OFFICE SHOW THAT MR. CUCUKOVICH WAS APPOINTED A REGULAR LABORER IN THE POST OFFICE AT GALVESTON, TEX., SEPTEMBER 16, 1936, AT THE RATE OF $1,500 PER ANNUM, AND WAS PROMOTED OCTOBER 1, 1937, TO $1,600 PER ANNUM, AND THAT, EFFECTIVE MARCH 1, 1940, HE WAS TRANSFERRED TO THE CLERICAL ROLL IN THE GALVESTON POST OFFICE AS A REGULAR SUBSTITUTE WITH COMPENSATION AT THE RATE OF 65 CENTS AN HOUR ON THE 96 1/2-PERCENT BASIS.

DURING THE FISCAL YEAR ENDED JUNE 30, 1941, THE POSTMASTERS CLAIMED CREDIT FOR PAYMENTS TO CUCUKOVICH IN THE TOTAL AMOUNT OF $2,366.35 AS FOLLOWS:

* * * * (CHART OMITTED) * * * *

IN THE AUDIT OF THE POSTMASTER'S POSTAL ACCOUNT FOR THE QUARTER ENDED JUNE 30, 1941, A CHARGE WAS MADE IN THE SUM OF $362.83 FOR THE REASON THAT THE LAW LIMITS TO $2,000 PER ANNUM THE PAYMENTS WHICH MAY BE MADE TO ONE PERSON RECEIVING MORE THAN ONE SALARY. ACT OF MARCH 1, 1929, 45 STAT. 1441. IT IS NOW FOUND THAT THE TOTAL AMOUNT OF PAYMENTS WAS INCORRECTLY STATED AS $2,362.83, INSTEAD OF $2,366.35 AND THAT AN ADDITIONAL CHARGE OF $3.52 SHOULD HAVE BEEN MADE IN THE ACCOUNT OF RAYMOND A. STEWART, POSTMASTER AT GALVESTON, TEXAS.

SECTION 1 OF THE ACT OF MARCH 1, 1929, 45 STAT. 1441 (39 U.S.C. 136), PURSUANT TO WHICH THE AUDIT ACTION WAS TAKEN IN THIS CASE, PROVIDES AS FOLLOWS:

THAT POSTMASTERS AND ACTING POSTMASTERS ARE AUTHORIZED, WHEN IN THE JUDGMENT OF THE POSTMASTER GENERAL THE NEEDS AND INTERESTS OF THE POSTAL SERVICE REQUIRE, TO EMPLOY MAIL MESSENGERS AND OTHER POSTAL EMPLOYEES IN A DUAL CAPACITY, OR TO ASSIGN EXTRA DUTIES TO SUCH MAIL MESSENGERS AND OTHER EMPLOYEES; AND, NOTWITHSTANDING THE PROVISIONS OF SECTIONS 1763, 1764, AND 1765 OF THE REVISED STATUTES, AS AMENDED ( U.S.C. TITLE 5, SECTIONS 58, 69, AND 70), COMPENSATION SHALL BE PAID TO SUCH MAIL MESSENGERS AND OTHER EMPLOYEES FOR SUCH SERVICES IF THE TOTAL COMPENSATION ACTUALLY PAID FOR ALL SERVICES DOES NOT EXCEED $2,000 FOR ANY ONE FISCAL YEAR.

SECTIONS 1763, 1764, AND 1765, REVISED STATUTES, REFERRED TO IN THE ABOVE -QUOTED STATUTE, PROVIDE:

SEC. 1763. NO PERSON WHO HOLDS AN OFFICE, THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS, SHALL RECEIVE COMPENSATION FOR DISCHARGING THE DUTIES OF ANY OTHER OFFICE, UNLESS EXPRESSLY AUTHORIZED BY LAW.

SEC. 1764. NO ALLOWANCE OR COMPENSATION SHALL BE MADE TO ANY OFFICER OR CLERK, BY REASON OF THE DISCHARGE OF DUTIES WHICH BELONG TO ANY OTHER OFFICER OR CLERK IN THE SAME OR ANY OTHER DEPARTMENT; AND NO ALLOWANCE OR COMPENSATION SHALL BE MADE FOR ANY EXTRA SERVICES WHATEVER, WHICH ANY OFFICER OR CLERK MAY BE REQUIRED TO PERFORM, UNLESS EXPRESSLY AUTHORIZED BY LAW.

SEC. 1765. NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582, PROVIDES IN PERTINENT PART AS FOLLOWS:

THAT UNLESS OTHERWISE SPECIALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY THIS 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, * * *

APPOSITE TO THE ACT OF MARCH 1, 1929, SUPRA, ARE THE PROVISIONS OF 39 U.S.C. 128, AS FOLLOWS:

POSTMASTERS ARE AUTHORIZED, WITH THE APPROVAL OF THE POSTMASTER GENERAL, TO ASSIGN AT ANY TIME ANY CLERK OR EMPLOYEE OF THEIR RESPECTIVE POST OFFICES TO DUTY IN ANY BRANCH THEREOF: PROVIDED ALWAYS, THAT ANY EMPLOYEE SHALL BE PAID FROM MONEY-ORDER FUNDS FOR SUCH TIME AS HE IS ENGAGED IN MONEY-ORDER WORK. ( MAR. 3, 1885, C. 342, SEC. 1, 23 STAT. 385.)

IN DECISION OF JULY 16, 1925, 5 COMP. GEN. 39, 40, TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, IT WAS HELD AS FOLLOWS:

THE DECISION OF THIS OFFICE DATED MARCH 6, 1925, TO WHICH YOU REFER, AND THE PRIOR DECISION OF APRIL 30, 1924, THEREIN CITED, HAD REFERENCE MORE PARTICULARLY TO THE EMPLOYMENT OF REGULAR AND PERMANENT EMPLOYEES IN THE CAPACITY AS SUBSTITUTE POSTAL CLERKS OR CARRIERS BY THE METHOD OF GRANTING LEAVE OF ABSENCE WITHOUT PAY TO ENABLE THE REGULAR AND PERMANENT EMPLOYEE TO SERVE AS SUBSTITUTE, AND IT WAS HELD THAT SAME WAS PROHIBITED BY LAW.

THE INSTANT CASE INVOLVES NEITHER THE HOLDING OF TWO POSITIONS NOR THE PAYMENT OF TWO SALARIES FOR THE SAME PERIOD OF TIME. IT INVOLVES ONLY THE QUESTION OF WHETHER A PERSON WHO HAS QUALIFIED FOR AND BEEN APPOINTED TO THE POSITION OF SUBSTITUTE CLERK OR CARRIER MAY BE ASSIGNED, WITH HIS CONSENT, TO TEMPORARY DUTY AS SUBSTITUTE LABORER--- A POSITION OF A LOWER GRADE THAN THAT FOR WHICH HE QUALIFIED AND WAS APPOINTED. A SUBSTITUTE IS ONE WHO IS EMPLOYED ONLY WHEN NEEDED AND IS PAID ONLY FOR TIME ACTUALLY EMPLOYED, THERE BEING NO CERTAINTY WHATEVER AS TO CONTINUITY OF EMPLOYMENT. THE PERIOD OF UNEMPLOYMENT OF A SUBSTITUTE IS NOT THE SAME AS THE PERIOD OF ABSENCE WITHOUT PAY OF A REGULAR AND PERMANENT EMPLOYEE IN APPLYING THE PROVISIONS OF THE ACT OF MAY 10, 1916, AS AMENDED, AND OTHER STATUTES, PROHIBITING DUAL EMPLOYMENT OR PAYMENT OF EXTRA COMPENSATION. IN THE FORMER CASE THE NAME REMAINS ON THE ROLL ONLY AS SHOWING HIS AVAILABILITY FOR EMPLOYMENT IN THE POSITION AS SUBSTITUTE IF NEEDED, WHILE IN THE LATTER CASE THE NAME REMAINS ON THE ROLL AS AN EMPLOYEE HOLDING A POSITION UNDER THE GOVERNMENT.

THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO THE PROCEDURE PROPOSED.

WHILE UNDER THAT DECISION, THERE WOULD HAVE BEEN EXEMPTED THE EMPLOYMENT OF SUBSTITUTE CLERKS IN FIRST AND SECOND CLASS POST OFFICES AS SUBSTITUTE LABORERS IN THE SAME OFFICES DURING DIFFERENT PERIODS OF TIME, NOT ONLY FROM THE PROVISIONS OF THE DUAL COMPENSATION ACT OF 1916, BUT ALSO, FROM THE PROVISIONS OF SECTIONS 1763, 1764, AND 1765, REVISED STATUTES, THERE IS PARTICULARLY FOR NOTING THAT SAID DECISION WAS RENDERED PRIOR TO THE ACT OF MARCH 1, 1929, SUPRA. HOWEVER, IN A DECISION DATED NOVEMBER 18, 1929, A-28885, TO THE POSTMASTER GENERAL, RENDERED AFTER THE ACT OF MARCH 1, 1929, SUPRA, IT WAS STATED:

YOU REQUEST TO BE ADVISED WHETHER IT IS PERMISSIBLE FOR A SUBSTITUTE POST OFFICE CLERK, SUBSTITUTE CITY CARRIER, SUBSTITUTE VILLAGE CARRIER, OR SUBSTITUTE POST OFFICE LABORER TO PERFORM TEMPORARY SERVICE FOR SOME OTHER BRANCH OF THE FEDERAL SERVICE. YOU ARE ADVISED THAT SUCH TEMPORARY SERVICE IS PERMISSIBLE PROVIDED THE AGGREGATE SALARIES DO NOT EXCEED THE RATE OF $2,000 PER ANNUM. SUCH TEMPORARY SERVICE IN A POST OFFICE OTHER THAN THE DUTIES REQUIRED OF THE CLASSES OF EMPLOYEES NAMED UNDER THEIR OFFICIAL TITLES, IS AUTHORIZED BY SECTION 1 OF THE ACT OF MARCH 1, 1929, 45 STAT. 1441, SUBJECT TO THE SALARY LIMITATION THEREIN STATED. THE STATUTE CITED ALSO PERMITS SUBSTITUTE EMPLOYEES TO PERFORM SERVICES AS TEMPORARY RURAL LETTER CARRIERS PROVIDED THE SALARY LIMIT OF $2,000 IN ANY ONE FISCAL YEAR IS NOT EXCEEDED. ( ITALICS SUPPLIED.)

SAID DECISION WAS DISCUSSED IN THE DECISION OF NOVEMBER 19, 1931, 11 COMP. GEN. 200, WHERE IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE EMPLOYMENT ON DIFFERENT DAYS OF THE SAME PERSON IN TWO PART-TIME POSITIONS UNDER DIFFERENT DEPARTMENTS OF THE GOVERNMENT, SUCH AS SUBSTITUTE LETTER CARRIER AND GUARD TO PRISONERS, WITH AN AGGREGATE COMPENSATION IN THE TWO POSITIONS NOT IN EXCESS OF THE RATE OF $2,000 PER ANNUM, IS NOT IN CONTRAVENTION OF THE DUAL COMPENSATION ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582. THIS PRINCIPLE IS NOT APPLICABLE WHERE ONE OF TWO POSITIONS OCCUPIED BY THE SAME PERSON IS FULL TIME WHETHER UNDER THE SAME OR DIFFERENT DEPARTMENT, NOR TO TWO PART-TIME POSITIONS UNDER THE SAME DEPARTMENT IF IN CONTRAVENTION OF THE PROVISIONS OF SECTION 1765, REVISED STATUTES. COMP. GEN. 261, DISTINGUISHED.

THE ACT OF MARCH 1, 1929, SUPRA, CLEARLY AUTHORIZES THE POSTMASTER GENERAL TO EMPLOY POSTAL EMPLOYEES IN A DUAL CAPACITY OR TO ASSIGN THEM TO EXTRA DUTIES AND TO PAY THEM COMPENSATION THEREFOR "NOTWITHSTANDING THE PROVISIONS OF SECTIONS 1763, 1764, AND 1765 OF THE REVISED STATUTES" BUT WITH THE EXPRESS CONDITION THAT "THE TOTAL COMPENSATION ACTUALLY PAID FOR ALL SERVICES DOES NOT EXCEED $2,000 FOR ANY ONE FISCAL YEAR.' IN THE LIGHT OF THE PROVISIONS OF THE SAID ACT OF MARCH 1, 1929, PURSUANT TO WHICH THE AUDIT ACTION IN THIS CASE WAS TAKEN, AND IN THE LIGHT, ALSO, OF THE DECISIONS, SUPRA, RENDERED SINCE THE PASSAGE OF SAID ACT, IT MUST BE HELD, UNDER EXISTING LAW, THAT THE TOTAL SALARY OF A SUBSTITUTE POSTAL CLERK WHO IS ASSIGNED, ALSO, TO PERFORM THE DUTIES OF A SUBSTITUTE LABORER IN A FIRST- OR SECOND-CLASS POST OFFICE DURING DIFFERENT PERIODS OF TIME MAY NOT EXCEED $2,000 PER ANNUM, THAT IS, THE TOTAL AMOUNT PAYABLE TO THE SAME PERSON IN THE TWO CAPACITIES MAY NOT EXCEED $2,000 IN ANY ONE FISCAL YEAR. COMPARE 21 COMP. GEN. 146.

REFERRING TO YOUR STATEMENT THAT THERE HAS BEEN NO RESTRICTION ON THE DEPARTMENT WITH RESPECT TO THE DUAL EMPLOYMENT OF THE SAME PERSON AS A SUBSTITUTE CLERK AND SUBSTITUTE CARRIER AND VICE VERSA, YOU ARE ADVISED THAT THE SAME LIMITATION OF $2,000 PER ANNUM PRESCRIBED BY THE ACT OF MARCH 1, 1929, IS APPLICABLE TO SUCH DUAL EMPLOYMENT AND THE ADMINISTRATIVE PRACTICE SHOULD BE ADJUSTED ACCORDINGLY FOR THE CURRENT FISCAL YEAR; AND, IN THE ABSENCE OF ANY CHANGE IN EXISTING LAW, AUDIT ACTION BY THIS OFFICE WILL BE TAKEN ON THAT BASIS. IN VIEW OF THE ADMINISTRATIVE MISUNDERSTANDING IN THIS MATTER CREDIT WILL BE ALLOWED IN THE ACCOUNTS OF THE POSTMASTER AT GALVESTON, TEX., FOR THE TOTAL PAYMENTS OF COMPENSATION MADE TO NICHOLAS F. CUCUKOVICH IN THE DUAL CAPACITY OF SUBSTITUTE POSTAL CLERK AND SUBSTITUTE LABORER FOR THE FISCAL YEAR ENDED JUNE 30, 1941.