B-45630, NOVEMBER 17, 1944, 24 COMP. GEN. 384

B-45630, NOVEMBER 17, 1944, 24 COMP. GEN. 384

OFFICERS AND EMPLOYEES - STATUS OF EMPLOYEES OF UNITED STATES-BRITISH COMMISSION PERSONS WHO ARE EMPLOYED AND SUPERVISED JOINTLY BY THE UNITED STATES AND BRITISH GOVERNMENTS ON WORK OF THE ANGLO-AMERICAN CARIBBEAN COMMISSION AND WHO DEVOTE NO PARTICULAR PERIOD OF THEIR EMPLOYMENT EXCLUSIVELY TO THE WORK OF EITHER GOVERNMENT ARE NOT "OFFICERS" OR "EMPLOYEES" OF THE UNITED STATES WITHIN THE MEANING OF SUCH STATUTES AS THE CLASSIFICATION ACT, THE WAR OVERTIME PAY ACT OF 1943, ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, NOVEMBER 17, 1944:

I HAVE YOUR LETTER OF NOVEMBER 9, 1944, REF. BF, AS FOLLOWS:

THE ANGLO-AMERICAN CARIBBEAN COMMISSION WAS CREATED MARCH 9, 1942 AS A RESULT OF AN EXCHANGE OF NOTES BETWEEN THE GOVERNMENTS OF GREAT BRITAIN AND THE UNITED STATES. THE COMMISSION IS COMPOSED OF TWO SECTIONS, THE BRITISH SECTION AND THE UNITED STATES SECTION. IT IS OPERATED AS AN INTEGRAL UNIT OF THE DEPARTMENT OF STATE BY DEPARTMENTAL ORDER.

THE UNITED STATES GOVERNMENT PORTION OF THE OPERATING COST OF THE COMMISSION IS FINANCED FROM FUNDS ALLOCATED FROM THE EMERGENCY FUND FOR THE PRESIDENT. THE FIRST ALLOCATION WAS NO. 42/3-21 DATED JULY 22, 1942. SUBSEQUENT ALLOCATIONS FOR THIS PURPOSE HAVE BEEN CONSOLIDATED WITH THE ORIGINAL ONE. THE CURRENT ALLOCATION, NO. 45-6 DATED JULY 5, 1944, MAKES FUNDS AVAILABLE UNTIL DECEMBER 31, 1944.

THE FUNDS THUS MADE AVAILABLE ARE "* * * TO BE EXPENDED BY THE DEPARTMENT OF STATE IN CONNECTION WITH EMERGENCIES AFFECTING THE NATIONAL SECURITY AND DEFENSE, FOR EXPENSES INCIDENT TO THE MEMBERSHIP OF THE UNITED STATES IN THE ANGLO-AMERICAN CARIBBEAN COMMISSION, ESTABLISHED BY THE PRESIDENT IN MARCH 1942 * * *.' ALLOCATION NO. 44 14 DATED JULY 16, 1943, CONTAINED THE FOLLOWING PROVISION: "* * * PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE WITHOUT REGARD TO CIVIL SERVICE AND CLASSIFICATION LAWS UNTIL DECEMBER 31, 1943, SUCH LAWS APPLYING THEREAFTER; * * *.'

UNDER THE GENERAL AUTHORITY CITED ABOVE, THE AMERICAN SECTION OF THE COMMISSION, IN COOPERATION WITH THE BRITISH SECTION, HAS FOUND IT DESIRABLE TO JOINTLY EMPLOY PERSONS ON THE BASIS THAT 50 PERCENT OF THEIR SALARIES WILL BE PAID DIRECTLY BY THE UNITED STATES GOVERNMENT AND 51 PERCENT PAID DIRECTLY BY THE BRITISH GOVERNMENT. SUPERVISION IS ADMINISTERED JOINTLY BY TWO OFFICERS, ONE FROM EACH OF THE TWO GOVERNMENTS.

THE EMPLOYMENT ARRANGEMENT OUTLINED PRESENTS SEVERAL QUESTIONS UPON YOUR ADVICE AND OPINION ARE SOLICITED:

1. IS AN EMPLOYEE WHOSE SALARY IS PAID JOINTLY BY THE BRITISH AND UNITED STATES GOVERNMENTS, CONSIDERED TO BE A CIVIL SERVICE EMPLOYEE OF THIS GOVERNMENT WITHIN THE PURVIEW OF THE CLASSIFICATION ACT OF 1923, AS AMENDED?

2. IS SUCH AN EMPLOYEE ENTITLED TO THE BENEFITS OF THE WAR OVERTIME PAY ACT OF 1943 ( PUBLIC LAW 49-78TH CONGRESS, APPROVED MAY 7, 1943/?

3. IF AN AFFIRMATIVE REPLY IS GIVEN TO THE PRECEDING QUESTION, SHOULD THE AMOUNT OF OVERTIME BE COMPUTED IN ACCORDANCE WITH SECTION 2 OR SECTION 3 OF THE ABOVE-CITED ACT?

4. ASSUMING AN AFFIRMATIVE REPLY TO QUESTION 2, WOULD THE OVERTIME PAY BE COMPUTED ON THE ENTIRE BASIC COMPENSATION OF THE EMPLOYEE OR ONLY ON THAT PORTION PAID DIRECTLY BY THE UNITED STATES GOVERNMENT (22 C.G. 702; 22 C.G. 745/?

5. WOULD SUCH EMPLOYEES BE SUBJECT TO (A) THE CIVIL SERVICE RETIREMENT ACT APPROVED MAY 29, 1920, AS AMENDED (5 U.S.C., CHAPTER 14), (B) " ANNUAL AND SICK LEAVE LAWS AND REGULATIONS FOR GOVERNMENT EMPLOYEES (REVISED, JANUARY 1, 1944)" PROMULGATED BY THE UNITED STATES CIVIL SERVICE COMMISSION, AND (C) THE LAW RELATING TO AUTOMATIC PAY INCREASES (5 U.S.C. 667--- SUPPLEMENT III/?

PHOTOSTATS OF THE NOTICES OF APPOINTMENT TO MR. ERIC WILLIAMS AND MISS MILADA ALSER, WHO WERE APPOINTED ON THIS BASIS, ARE ATTACHED FOR YOUR INFORMATION AND CONVENIENCE.

SINCE THE ANGLO-AMERICAN CARIBBEAN COMMISSION PERCEIVED NO OBJECTION TO THE JOINT EMPLOYMENT OF PERSON IN THE MANNER HEREINBEFORE DESCRIBED AND, THEREFORE, MADE CERTAIN APPOINTMENTS IN THIS MANNER, IT IS IMPORTANT THAT THE EMPLOYMENT AND PAY STATUS OF THESE APPOINTEES BE DETERMINED AT THE EARLIEST POSSIBLE TIME.

I WOULD APPRECIATE, THEREFORE, RECEIVING A REPLY AT YOUR EARLIEST CONVENIENCE.

IN DECISION OF JULY 18, 1938, 18 COMP. GEN. 59, IT WAS STATED, AT PAGE 60, AS FOLLOWS:

PERSONNEL EMPLOYED AND PAID FROM A JOINT FUND TO WHICH CONTRIBUTIONS ARE MADE BY MORE THAN ONE COUNTRY, PROVIDED TO CARRY OUT INTERNATIONAL AGREEMENTS, TREATIES, ETC., INVOLVING AN UNDERTAKING COMMON TO MORE THAN ONE GOVERNMENT OF WHICH THE UNITED STATES GOVERNMENT IS ONLY ONE, ARE NOT TO BE REGARDED AS OFFICERS OR EMPLOYEES OF THE " GOVERNMENT OF THE UNITED STATES," WITHIN THE MEANING OF THE STATUTORY RESTRICTION IN QUESTION. COMP. GEN. 69; ID. 112. * * *

IN DECISION, 6 COMP. GEN. 69, ONE OF THOSE CITED IN THE DECISION, SUPRA, THERE WAS CONSIDERED THE STATUS OF EMPLOYEES OF A MIXED CLAIMS COMMISSION, UNITED STATES AND GERMANY, AND A DISTINCTION WAS MADE THEREIN BETWEEN EMPLOYEES OF THE UNITED STATES AGENCY UNDER THE COMMISSION AND THE JOINT EMPLOYEES OF THE COMMISSION--- THE LATTER NOT BEING REGARDED AS EMPLOYEES OF THE UNITED STATES. CF. 23 COMP. GEN. 564, 744.

ALSO, IT HAS BEEN HELD CONSISTENTLY THAT PERSONNEL EMPLOYED AND PAID PURSUANT TO COOPERATIVE AGREEMENTS BETWEEN THE UNITED STATES AND A COOPERATING AGENCY, SUCH AS A STATE OR OTHER POLITICAL SUBDIVISION, ARE EMPLOYEES OF THE UNITED STATES AND SUBJECT TO FEDERAL LAWS CONTROLLING THE RIGHTS AND BENEFITS OF FEDERAL PERSONNEL, ONLY IN THE EVENT AND DURING THE PARTICULAR PERIOD OF THE YEAR THAT THEIR DUTIES AND TIME OF WORK ARE SUPERVISED AND CONTROLLED BY FEDERAL OFFICERS. 17 COMP. GEN. 362; 22 ID. 718; 23 ID. 277.

WHILE IT IS NOT ENTIRELY CLEAR FROM YOUR LETTER THAT A JOINT FUND HAS BEEN ESTABLISHED FROM WHICH THE SALARIES OF THE JOINT EMPLOYEES OF THE ANGLO-AMERICAN CARIBBEAN COMMISSION ARE PAID, IT IS UNDERSTOOD THAT THE INVOLVED EMPLOYEES ARE EMPLOYED AND THEIR DUTIES AND TIME OF WORK SUPERVISED AND CONTROLLED JOINTLY, BY REPRESENTATIVES OF EACH OF THE GOVERNMENTS, AND THAT NO PARTICULAR PERIOD OF THEIR TIME IS DEVOTED EXCLUSIVELY TO THE WORK OF EITHER GOVERNMENT. IF SUCH ARE THE FACTS, THE UNITED STATES GOVERNMENT COULD NO MORE APPLY ITS PERSONNEL LAWS THAN THE BRITISH GOVERNMENT COULD APPLY ITS PERSONNEL LAWS, IN CONNECTION WITH THE EMPLOYMENT, LEAVE OF ABSENCE, OR PAYMENT OF COMPENSATION OF SUCH JOINT PERSONNEL.

IT WOULD SEEM TO FOLLOW, THEREFORE, THAT NOTWITHSTANDING THE WORDING OF THE PRESIDENT'S ALLOCATION LETTER NO. 44-14, DATED JULY 16, 1943--- WHICH LETTER APPARENTLY WAS INTENDED TO RELATE ONLY TO EMPLOYEES OF THE AMERICAN SECTION OF THE COMMISSION--- A PERSON EMPLOYED AND SUPERVISED JOINTLY BY THE UNITED STATES AND BRITISH GOVERNMENTS FOR WORK OF THE ANGLO-AMERICAN CARIBBEAN COMMISSION IS NOT AN "EMPLOYEE" OF THE UNITED STATES, OCCUPYING A "POSITION" WITHIN THE MEANING OF THE DEFINITIONS OF THOSE TERMS APPEARING IN SECTION 2 OF THE CLASSIFICATION ACT OF 1923, APPROVED MARCH 4, 1923, 42 STAT. 1488, AND THAT SUCH JOINT PERSONNEL ARE NOT "CIVILIAN OFFICERS AND EMPLOYEES * * * IN OR UNDER THE UNITED STATES GOVERNMENT" WITHIN THE MEANING OF SECTION 1 OF THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 75, OR "CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES" WITHIN THE MEANING OF SECTIONS 1 OF THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936, 49 STAT. 1161 AND 1162.

ACCORDINGLY, IN THE LIGHT OF THE FOREGOING, QUESTIONS 1, 2, 5 (B) AND 5 (C) ARE ANSWERED IN THE NEGATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTIONS 3 AND 4. QUESTION 5 (A) IS ONE PRIMARILY FOR CONSIDERATION AND DETERMINATION BY THE UNITED STATES CIVIL SERVICE COMMISSION, RATHER THAN THIS OFFICE. SEE, IN THAT CONNECTION, 18 COMP. GEN. 955; 19 ID. 352.