B-31619, JANUARY 13, 1943, 22 COMP. GEN. 649

B-31619, JANUARY 13, 1943, 22 COMP. GEN. 649

ADDITIONAL COMPENSATION IN LIEU OF OVERTIME COMPENSATION - LIBRARY OF CONGRESS EMPLOYEES - RIGHT AS AFFECTED BY ADDITIONAL COMPENSATION FROM TRUST FUNDS THE ADDITIONAL COMPENSATION PAID UNDER AUTHORITY OF 2 U.S.C. 162 TO EMPLOYEES OF THE LIBRARY OF CONGRESS FROM TRUST FUNDS--- AS DISTINGUISHED FROM APPROPRIATED FUNDS--- FOR PERFORMANCE OF SPECIAL FUNCTIONS OR IN CONNECTION WITH COOPERATIVE UNDERTAKINGS IN WHICH THE LIBRARY IS ENGAGED IS NOT A PART OF THE EMPLOYEE'S "AGGREGATE COMPENSATION" RECEIVED FOR SERVICES AS A "CIVILIAN EMPLOYEE IN OR UNDER THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF THE ACT OF DECEMBER 22, 1942, WHICH, IN AUTHORIZING 10 PERCENT ADDITIONAL COMPENSATION, IN LIEU OF OVERTIME COMPENSATION, FOR EMPLOYEES IN OR UNDER THE LEGISLATIVE BRANCH, PROVIDES THAT AN EMPLOYEE SHALL BE PAID ONLY SUCH ADDITIONAL COMPENSATION AS WILL NOT CAUSE HIS "AGGREGATE COMPENSATION" TO EXCEED THE RATE OF $5,000 PER ANNUM.

COMPTROLLER GENERAL WARREN TO THE LIBRARIAN OF CONGRESS, JANUARY 13, 1943:

I HAVE YOUR LETTER OF JANUARY 7, 1943, AS FOLLOWS:

YOUR DECISION IS REQUESTED ON THE QUESTION PRESENTED BY THE FOLLOWING CIRCUMSTANCES:

1. THE ACT CREATING THE LIBRARY OF CONGRESS TRUST FUND BOARD PROVIDES THAT EMPLOYEES OF THE LIBRARY OF CONGRESS WHO PERFORM SPECIAL FUNCTIONS, FOR THE PERFORMANCE OF WHICH FUNDS HAVE BEEN ENTRUSTED TO THE BOARD OR TO THE LIBRARIAN, SHALL NOT BE SUBJECT TO THE LAW FORBIDDING ANY GOVERNMENT OFFICER OR EMPLOYEE FROM RECEIVING ANY SALARY IN CONNECTION WITH THEIR SERVICES AS SUCH OFFICERS OR EMPLOYEES FROM ANY SOURCE OTHER THAN THE GOVERNMENT OF THE UNITED STATES; AND THAT ADDITIONAL COMPENSATION SO PAID TO SUCH EMPLOYEES SHALL NOT BE CONSTRUED AS A DOUBLE SALARY (2 U.S.C. 162).

2. UNDER THIS AUTHORIZATION OF LAW ENDOWMENTS HAVE BEEN ACCEPTED BY THE LIBRARY OF CONGRESS TRUST FUND BOARD PROVIDING THAT HONORARIA SHALL BE PAID TO CERTAIN OFFICERS OF THE LIBRARY OF CONGRESS, IN ADDITION TO THE COMPENSATION PAID THEM FOR APPROPRIATED FUNDS UNDER THE CLASSIFICATION ACT OF 1923 AS AMENDED.

3. PUBLIC LAW 821, 77TH CONGRESS, PROVIDES THAT ADDITIONAL COMPENSATION, AMOUNTING TO 10 PERCENT OF SO MUCH OF EARNED BASIC COMPENSATION AS IS NOT IN EXCESS OF $2900 PER ANNUM, SHALL BE PAID TO EMPLOYEES IN THE LEGISLATIVE BRANCH,"AND EACH SUCH EMPLOYEE SHALL BE PAID ONLY SUCH ADDITIONAL COMPENSATION OR PORTION THEREOF AS WILL NOT CAUSE HIS AGGREGATE COMPENSATION TO EXCEED A RATE OF $5000 PER ANNUM.'

4. TWO OF THE OFFICERS OF THE LIBRARY OF THE CLASS DESCRIBED IN PARAGRAPH 2 ABOVE RECEIVED SALARIES UNDER THE CLASSIFICATION ACT AMOUNTING TO $4800 PER ANNUM. UNDER THE OPERATION OF PUBLIC LAW 821 THEY SHOULD NOW RECEIVE ADDITIONAL COMPENSATION AMOUNTING TO $200 PER ANNUM. HOWEVER, THESE EMPLOYEES ALSO RECEIVE ADDITIONAL PAYMENTS FOR PERSONAL SERVICES UNDER AUTHORITY OF 2 U.S.C. 162 WHICH CAUSE THE TOTAL COMPENSATION OF EACH TO EXCEED $5000 WITHOUT THE PAYMENT OF ANY ADDITIONAL COMPENSATION UNDER PUBLIC LAW 821.

5. THE QUESTION HERE RAISED IS WHETHER THE HONORARIA OR OTHER ADDITIONAL SUMS PAID UNDER AUTHORITY OF 2 U.S.C. 162 ARE TO BE COUNTED PART OF THE "AGGREGATE COMPENSATION" WITHIN THE MEANING OF PUBLIC LAW 821.

SECTION 162, TITLE 2, U.S.C. PROVIDES:

EMPLOYEES OF THE LIBRARY OF CONGRESS WHO PERFORM SPECIAL FUNCTIONS FOR THE PERFORMANCE OF WHICH FUNDS HAVE BEEN ENTRUSTED TO THE BOARD OR THE LIBRARIAN, OR IN CONNECTION WITH COOPERATIVE UNDERTAKINGS IN WHICH THE LIBRARY OF CONGRESS IS ENGAGED, SHALL NOT BE SUBJECT TO SECTION 66 OF TITLE 5; NOR SHALL ANY ADDITIONAL COMPENSATION SO PAID TO SUCH EMPLOYEES BE CONSTRUED AS A DOUBLE SALARY UNDER THE PROVISIONS OF SECTION 58 OF TITLE 5. ( MAR. 3, 1925, CH. 423, SEC. 6, 43 STAT. 1108; JAN. 27, 1926, CH. 6, SEC. 2, 44 STAT. 2.) ALSO, SEE 5 U.S.C., 60 AND 65.

SECTION 66, TITLE 5, U.S.C. FROM THE PROVISIONS OF WHICH THE EMPLOYEES OF THE LIBRARY OF CONGRESS ARE EXCEPTED UNDER THE TERMS AND CONDITIONS OF THE ABOVE-QUOTED STATUTE, PROHIBITS FEDERAL OFFICERS AND EMPLOYEES FROM RECEIVING FROM ANY OTHER SOURCE ANY SALARY OR COMPENSATION IN CONNECTION WITH THEIR SERVICES FOR THE UNITED STATES, WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL. SECTION 58, TITLE 5, U.S.C. FROM THE PROVISIONS OF WHICH, ALSO, THE INVOLVED EMPLOYEES ARE EXCEPTED, PROVIDES:

UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, NO MONEY APPROPRIATED BY ANY 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. ( MAY 10, 1916, CH. 117, SEC. 6, 39 STAT. 20; AUG. 29, 1916, CH. 417, 39 STAT. 582.)

CONSIDERING THE ABOVE-CITED STATUTES, AND HAVING REGARD FOR THE FACT THAT THE CEILINGS STIPULATED IN THE NEW OVERTIME COMPENSATION STATUTE APPEAR TO BE AIMED AT "AN EMPLOYEE'S BASIC COMPENSATION," THERE APPEARS WARRANTED THE CONCLUSION THAT THE CONGRESS INTENDED BY THE STATUTE FIRST ABOVE QUOTED TO PROVIDE THAT ANY AMOUNT RECEIVED BY AN EMPLOYEE OF THE LIBRARY OF CONGRESS FOR PERFORMANCE OF A SPECIAL FUNCTION OR IN CONNECTION WITH A COOPERATIVE UNDERTAKING IN WHICH THE LIBRARY OF CONGRESS IS ENGAGED--- WHICH IS NOT PAID FOR FROM APPROPRIATED FUNDS BUT FROM A TRUST FUND--- IS NOT TO BE REGARDED AS SALARY OR COMPENSATION RECEIVED FROM SERVICES AS AN EMPLOYEE OF THE UNITED STATES. THE TERM "AGGREGATE COMPENSATION" AS USED IN THAT PORTION OF THE NEW OVERTIME COMPENSATION STATUTE APPROVED DECEMBER 22, 1942, 56 STAT. 1068, PUBLIC LAW 821, WHICH PROVIDES THAT THE ADDITIONAL COMPENSATION ON A 10 PERCENT BASIS IS PAYABLE ONLY IF SUCH PAYMENT "WILL NOT CAUSE HIS AGGREGATE COMPENSATION TO EXCEED $5,000 PER ANNUM," WOULD APPEAR TO MEAN COMPENSATION RECEIVED FOR HIS SERVICES AS A "CIVILIAN EMPLOYEE IN OR UNDER THE UNITED STATES GOVERNMENT" (QUOTING FROM THE STATUTE), AND WOULD NOT INCLUDE THE HONORARIA OR OTHER ADDITIONAL AMOUNTS PAID TO EMPLOYEES OF THE LIBRARY OF CONGRESS OUT OF TRUST FUNDS UNDER AUTHORITY OF SECTION 162, TITLE 2, UNITED STATES CODE, AND WOULD IN NOWISE CONSTITUTE IT AS ANY PART OF AN EMPLOYEE'S BASIC COMPENSATION.