B-37315, OCTOBER 16, 1943, 23 COMP. GEN. 275

B-37315, OCTOBER 16, 1943, 23 COMP. GEN. 275

COMPENSATION - DOUBLE - EMPLOYMENT ON PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS AS CONSTITUTING HOLDING "OFFICE" REGARDLESS OF WHETHER COMPENSATION BE FIXED ON A FEE BASIS OR ON A PER DIEM BASIS, THE APPOINTMENT OF A PERSON AS AN EXPERT OR CONSULTANT ON A "WHEN ACTUALLY EMPLOYED" BASIS DOES NOT CONSTITUTE AN APPOINTMENT TO AN "OFFICE TO WHICH COMPENSATION IS ATTACHED," WITHIN THE MEANING OF THE ACT OF JULY 31, 1894, AS AMENDED, PROHIBITING THE APPOINTMENT OF A PERSON HOLDING AN OFFICE WITH AN ANNUAL SALARY OF $2500 TO ANOTHER OFFICE TO WHICH COMPENSATION IS ATTACHED. THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED, IS NOT FOR APPLICATION IN THE CASE OF A CONSULTANT EMPLOYED BY ONE BRANCH OF AN EXECUTIVE DEPARTMENT OF THE GOVERNMENT ON A "WHEN ACTUALLY EMPLOYED" BASIS WHO IS ALSO EMPLOYED IN A SIMILAR POSITION IN ANOTHER BRANCH OF THE SAME EXECUTIVE DEPARTMENT ON DIFFERENT DAYS OR AT DIFFERENT TIMES, PROVIDED COMPENSATION IS PAID ON A PER DIEM OR FEE BASIS FOR TIME ACTUALLY EMPLOYED. THE EMPLOYMENT OF A PERSON UNDER AUTHORITY OF THE MILITARY APPROPRIATIONS ACT, 1944, AS A CONSULTANT TO THE SECRETARY OF WAR WITHOUT COMPENSATION, OTHER THAN REIMBURSEMENT FOR ACTUAL TRANSPORTATION EXPENSES AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE, WHILE ALSO EMPLOYED AS CONSULTANT IN ANOTHER OFFICE OF THE WAR DEPARTMENT ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS UNDER SECTION 9 OF THE SAID ACT, DOES NOT CONSTITUTE A VIOLATION OF THE DUAL COMPENSATION RESTRICTIONS OF SECTION 1765, REVISED STATUTES, AND THE ACT OF MAY 10, 1916, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, OCTOBER 16, 1943:

I HAVE YOUR LETTER OF SEPTEMBER 27, 1943, AS FOLLOWS:

THE DEPARTMENT ENGAGES THE SERVICES OF EXPERTS OR CONSULTANTS UNDER AUTHORITY OF SECTION 9 OF THE MILITARY APPROPRIATIONS ACT OF 1944, ( PUBLIC LAW 108, 78TH CONGRESS) AND THE AUTHORITY CONTAINED UNDER SALARIES, WAR DEPARTMENT, OFFICE OF THE SECRETARY OF WAR, QUOTED RESPECTIVELY AS FOLLOWS:

"SECTION 9. WHENEVER DURING THE FISCAL YEAR ENDING JUNE 30, 1944, THE SECRETARY OF WAR SHOULD DEEM IT TO BE ADVANTAGEOUS TO THE NATIONAL DEFENSE, AND IF IN HIS OPINION THE EXISTING FACILITIES OF THE WAR DEPARTMENT ARE INADEQUATE, HE IS HEREBY AUTHORIZED TO EMPLOY, BY CONTRACT OR OTHERWISE, WITHOUT REFERENCE TO SECTION 3709, REVISED STATUTES, CIVIL SERVICE OR CLASSIFICATION LAWS, OR SECTION 5 OF THE ACT OF APRIL 6, 1914 (38 STAT. 335), AND AT SUCH RATES OF COMPENSATION (NOT TO EXCEED $25 PER DAY FOR INDIVIDUALS) AS HE MAY DETERMINE, THE SERVICES OF ARCHITECTS, ENGINEERS, OR FIRMS OR CORPORATIONS THEREOF, AND OTHER TECHNICAL AND PROFESSIONAL PERSONNEL AS MAY BE NECESSARY.' AND,

"* * * FOR THE PAYMENT OF ACTUAL TRANSPORTATION EXPENSES AND NOT TO EXCEED $10 PER DIEM IN LIEU OF SUBSISTENCE AND OTHER EXPENSES OF PERSONS SERVING WHILE AWAY FROM THEIR HOMES, WITHOUT OTHER COMPENSATION FROM THE UNITED STATES, IN AN ADVISORY CAPACITY TO THE SECRETARY OF WAR, AND FOR THE TEMPORARY EMPLOYMENT OF PERSONS (AT NOT TO EXCEED $25 PER DAY) OR ORGANIZATIONS, BY CONTRACT OR OTHERWISE, WITHOUT REGARD TO SECTION 3709 OF THE REVISED STATUTES OR THE CIVIL SERVICE OR CLASSIFICATION LAWS. * * *"

IN DECISION 18 COMPTROLLER GENERAL 1010 IT WAS HELD AS FOLLOWS:

"NO PAYMENT OF COMPENSATION MAY BE REGARDED AS 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--- PROHIBITING PAYMENT TO ANY PERSON RECEIVING MORE THAN ONE SALARY WHEN THE COMBINED AMOUNT OF SAID SALARIES EXCEEDS THE SUM OF $2,000 PER ANNUM--- UNLESS THERE BE INVOLVED PAYMENTS OF MORE THAN ONE SALARY DURING THE SAME PERIOD OF TIME, THE COMBINED RATE OF WHICH WAS MORE THAN $2,000 PER ANNUM.'

IN DECISION 16 COMPTROLLER GENERAL 813 IT WAS HELD AS FOLLOWS:

"THE ACT OF JUNE 31, 1894 * * * PROHIBITS ANY OFFICER OF THE UNITED STATES * * * WHOSE SALARY AMOUNTS TO $2,500 PER ANNUM FROM HOLDING ANY OTHER GOVERNMENT OFFICE TO WHICH COMPENSATION IS ATTACHED. SUCH ACT WOULD NOT BE APPLICABLE IF THE ADDITIONAL OFFICE CARRIES NO COMPENSATION.'

ALSO IN DECISION 15 COMPTROLLER GENERAL 828 IT WAS HELD:

"PAYMENT OF TRAVELING EXPENSES IS A REIMBURSEMENT OF EXPENSES INCURRED ON BEHALF OF THE GOVERNMENT TO WHICH THE PROVISION OF THE STATUTE DOES NOT APPLY.'

IN DECISION 4 COMPTROLLER GENERAL 84 IT WAS HELD:

"SECTION 1765, REVISED STATUTES, DOES NOT PROHIBIT THE PAYMENT OF COMPENSATION IN TWO DISTINCT COMPATIBLE EMPLOYMENTS THE PAY OF EACH OF WHICH IS FIXED BY LAW OR REGULATION.'

THE DEPARTMENT CONCLUDES IN THE LIGHT OF THE ABOVE QUOTED DECISIONS THAT EMPLOYMENT OF AN EXPERT CONSULTANT WHO IS EMPLOYED IN ONE OFFICE OF THE DEPARTMENT AT A RATE NOT IN EXCESS OF $25 PER DIEM UNDER AUTHORITY OF SECTION 9 OF THE MILITARY APPROPRIATIONS ACT OF 1944, IN ANOTHER SUCH POSITION IN A DIFFERENT OFFICE OF THE DEPARTMENT, IS NOT PROHIBITED BY THE ACT OF MAY 10, 1916 (39 STAT) 120), IF PAYMENTS OF MORE THAN ONE SALARY DURING THE SAME PERIOD OF TIME BE NOT INVOLVED, NOR BY SECTION 1765, REVISED STATUTES. HOWEVER, YOUR DECISION IS REQUESTED REGARDING THE FOLLOWING QUESTIONS:

A. MAY EXPERTS AND CONSULTANTS PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS IN ONE OFFICE OF THE WAR DEPARTMENT AT A PER DIEM RATE OF $25 BE EMPLOYED IN ANOTHER SUCH POSITION IN A DIFFERENT OFFICE OF THE DEPARTMENT WITHOUT VIOLATION OF THE ACT OF JULY 31, 1894, (28 STAT. 205/?

B. MAY THE PROVISIONS UNDER SALARIES, WAR DEPARTMENT, SECRETARY OF WAR, OF THE MILITARY APPROPRIATIONS ACT OF 1914, (VIZ * * * "OF PERSONS SERVING AWAY FROM THEIR HOMES WITHOUT OTHER COMPENSATION FROM THE U.S. * * *)" BE CONSTRUED TO PERMIT EMPLOYMENT UNDER THAT SECTION OF A PERSON WHO RECEIVES COMPENSATION FOR SERVICES RENDERED IN ANOTHER CAPACITY AND AT DIFFERENT TIMES IN THE WAR DEPARTMENT OR IN ANOTHER GOVERNMENT AGENCY?

C. MAY A PERSON WHO IS EMPLOYED AS AN EXPERT IN ONE OFFICE OF THE WAR DEPARTMENT UNDER AUTHORITY OF SECTION 9 OF THE MILITARY APPROPRIATIONS ACT OF 1944, BE ALSO EMPLOYED AS A CONSULTANT TO THE SECRETARY OF WAR WITHOUT COMPENSATION OTHER THAN REIMBURSEMENT FOR TRAVELING EXPENSES AND SUBSISTENCE.

IN ADDITION TO THE DECISION OF JUNE 30, 1939, 18 COMP. GEN. 1010, CITED IN YOUR LETTER, REGARDING APPLICATION OF SECTION 6 OF THE ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED, REFERENCE IS MADE TO DECISION OF MARCH 2, 1936, 15 COMP. GEN. 751, WHEREIN IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE DUAL COMPENSATION ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 120, 582, IS NOT FOR APPLICATION TO PART TIME OR INTERMITTENT EMPLOYEES PERFORMING SERVICES FOR DIFFERENT GOVERNMENT AGENCIES ON DIFFERENT DAYS OR AT DIFFERENT TIMES IF PAYMENT IS ON A PER DIEM OR FEE BASIS FOR TIME ACTUALLY EMPLOYED.

THAT RULE IS EQUALLY APPLICABLE IN A SITUATION WHERE THE TWO EMPLOYMENTS ARE IN DIFFERENT BRANCHES OF THE SAME EXECUTIVE DEPARTMENT.

REGARDING THE ACT OF JULY 31, 1894, 28 STAT. 205, AS AMENDED (5 U.S.C. 62), EMPLOYMENT AS AN EXPERT OR CONSULTANT ON A "WHEN ACTUALLY EMPLOYED" BASIS, WHETHER COMPENSATION BE FIXED ON A FEE BASIS OR A PER DIEM BASIS, WOULD NOT BE AN APPOINTMENT TO AN "OFFICE TO WHICH COMPENSATION IS ATTACHED," WITHIN THE MEANING OF THAT STATUTE. SEE THE DECISION OF OCTOBER 3, 1942, 22 COMP. GEN. 312, AND THE DECISIONS THEREIN CITED. WHILE THE SAID DECISION OF OCTOBER 3, 1942, DEALT MORE PARTICULARLY WITH AN EMPLOYMENT AS A CONSULTANT ON A FEE BASIS, THERE IS PERCEIVED NO SOUND REASON WHY THE SAME RULE MAY NOT BE APPLIED IN THE CASE OF EXPERTS AND CONSULTANTS EMPLOYED ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" WHEN THEY ARE PAID ON A PER DIEM BASIS, RATHER THAN ON A FEE BASIS. SEE 14 COMP. GEN. 68, 289.

REGARDING THE APPLICATION OF SECTION 1765, REVISED STATUTES, REFERENCE IS MADE--- IN ADDITION TO 4 COMP. GEN. 84, CITED IN YOUR LETTER--- TO THE DECISION OF OCTOBER 3, 1942, 22 COMP. GEN. 312, 314, WHEREIN IT WAS STATED:

THAT LAW DOES NOT PROHIBIT A PERSON FROM HOLDING, AND RECEIVING THE COMPENSATION OF, TWO SEPARATE AND DISTINCT OFFICES, POSITIONS, OR EMPLOYMENTS, THE SALARY OR COMPENSATION OF EACH OF WHICH IS FIXED BY LAW OR REGULATION, WHERE THE TWO SERVICES ARE NOT INCOMPATIBLE WITH EACH OTHER. UNITED STATES V. SAUNDERS, 120 U.S. 126; 1 COMP. DEC. 366; 3ID. 183; 16 COMP. GEN. 909, 910. SEE, ALSO, CONVERSE V. UNITED STATES, 21 HOW. 463; UNITED STATES V. BRINDLE, 110 U.S. 688; UNITED STATES V. KING, 147 U.S. 676, 681. WOODWELL V. UNITED STATES, 214 U.S. 82; UNITED STATES V. STOWE, ET. AL., 19 FED. 807; 15 OP. ATTY. GEN. 608; 17 ID. 321.

ON THE BASIS OF THE RULES STATED IN THE DECISIONS CITED IN YOUR LETTER AND THE ADDITIONAL DECISIONS REFERRED TO HEREIN, QUESTIONS A, B, AND C, ARE ANSWERED IN THE AFFIRMATIVE.