B-45842, DECEMBER 11, 1944, 24 COMP. GEN. 445

B-45842, DECEMBER 11, 1944, 24 COMP. GEN. 445

COMPENSATION - DOUBLE - ADDITIONAL EMPLOYMENT OF FEDERAL PERSONNEL ON WORK IN CONNECTION WITH 1945 QUINQUENNIAL CENSUS OF AGRICULTURE THE SPECIAL AUTHORITY IN SECTION 3 OF THE ACT OF JUNE 18, 1929, FOR THE EMPLOYMENT AND COMPENSATION OF EMPLOYEES OF OTHER GOVERNMENT AGENCIES FOR FIELD WORK IN CONNECTION WITH "THE FIFTEENTH DECENNIAL CENSUS," BEING APPLICABLE ONLY TO THAT CENSUS, HAS NO REFERENCE TO THE 1945 QUINQUENNIAL CENSUS OF AGRICULTURE TO BE TAKEN PURSUANT TO SECTION 16 OF SAID ACT AND, HENCE, HAS NO APPLICATION TO AUTHORIZE THE EMPLOYMENT AND COMPENSATION OF A PERSON IN CONNECTION WITH SUCH AGRICULTURAL CENSUS WHILE HE IS SERVING UNDER A PERSONAL SERVICE CONTRACT FOR THE CONDUCT OF OF A POSTAL STATION AT A SALARY OF $2,100 PER ANNUM, IN CONTRAVENTION OF THE DUAL COMPENSATION STATUTES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, DECEMBER 11, 1944:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 14, 1944, RECEIVED HERE NOVEMBER 20, AS FOLLOWS:

IN PREPARING FOR THE TAKING OF THE 1945 QUINQUENNIAL CENSUS OF AGRICULTURE, AS AUTHORIZED BY THE ACT OF JUNE 18, 1929, 46 STAT. 21, AND BY PUBLIC LAW 365, 78TH CONGRESS, 2D SESSION, APPROVED JUNE 28, 1944, THE BUREAU OF THE CENSUS IS ACCEPTING APPLICATIONS FOR THE POSITION OF ASSISTANT LOCAL SUPERVISOR, AND IS SELECTING APPROVED APPLICANTS AS TRAINEES FOR SUCH POSITION, WITH APPOINTMENTS TO FOLLOW.

MR. HENRY WESTER, CONTRACT CLERK, AIR BASE POST OFFICE, MARIANNA, FLA., $2100 PER ANNUM, HAS MADE APPLICATION, FOR SUCH POSITION. THE DIRECTOR OF THE CENSUS IS INCLINED TO APPROVE SUCH APPLICATION, BUT BEFORE TAKING FINAL ACTION HE RESPECTFULLY REQUESTS YOUR DECISION RELATIVE TO HIS AUTHORITY TO APPOINT MR. WESTER, AND HE SUBMITS, THEREFORE, THE FOLLOWING QUESTION:

THE DIRECTOR OF THE CENSUS IS MINDFUL OF YOUR DECISION OF NOVEMBER 10, 1936, 16 COMP. GEN. 478, BUT AT THE SAME TIME HE INVITES ATTENTION TO THAT PART OF SECTION 3 OF THE ACT OF JUNE 18, 1929, SUPRA, WHICH READS AS FOLLOWS:

"* * * EMPLOYEES OF THE DEPARTMENT OF COMMERCE AND OTHER DEPARTMENTS AND INDEPENDENT OFFICES MAY, WITH THE CONSENT OF THE HEAD OF THE RESPECTIVE DEPARTMENT OF OFFICE, BE EMPLOYED AND COMPENSATED FOR FIELD WORK IN CONNECTION WITH THE FIFTEENTH DECENNIAL CENSUS. * * *"

THE DIRECTOR OF CENSUS HAS HERETOFORE BEEN ADVISED THAT THE PROVISIONS OF THE ACT OF JUNE 18, 1929, SUPRA, GOVERN THE TAKING OF THE 1945 CENSUS OF AGRICULTURE, EXCEPT AS LATER MODIFIED, AND THAT THE SENTENCE QUOTED ABOVE WAS INSERTED IN SAID ACT FOR THE EXPRESS PURPOSE OF PERMITTING THE EMPLOYEES DESIGNATED THEREIN TO ACCEPT CENSUS EMPLOYMENT FOR FIELD WORK WITHOUT VIOLATING THE PROVISIONS OF SAID SECTION 1765 OF THE REVISED STATUTES.

IN VIEW OF THE FACT THAT MR. WESTER CAN NOT BE ACCEPTED AS A TRAINEE FOR THE POSITION APPLIED FOR UNTIL THE DIRECTOR OF THE CENSUS IS ASSURED THAT HE HAS AUTHORITY TO APPOINT HIM TO SUCH POSITION, TOGETHER WITH THE FACT THAT THE TRAINING OF SELECTED APPLICANTS HAS ALREADY BEGUN, YOUR EARLY CONSIDERATION OF THE SUBMITTED QUESTION WILL BE APPRECIATED.

THE RECORDS OF THIS OFFICE SHOW THAT HENRY WESTER IS EMPLOYED BY THE POST OFFICE DEPARTMENT UNDER A PERSONAL SERVICE CONTRACT TO CONDUCT THE CONTRACT POSTAL STATION IN THE FEDERAL BUILDING AT THE AIR BASE AT MARIANNA, FLORIDA, FOR THE PERIOD OF JULY 1, 1944, TO AND INCLUDING JUNE 30, 1946, WITH COMPENSATION AT THE RATE OF $2,100 PER ANNUM. THE CONTRACT CONTAINS A PROVISION READING: " I HEREBY CERTIFY THAT I RECEIVE NO SALARY, PAY OR EMOLUMENTS FROM ANY DEPARTMENT OF OFFICE OF THE UNITED STATES.'

SECTION 161, TITLE 39, U.S. CODE, PROVIDES:

CONTRACTS FOR CONDUCT OF CONTRACT STATIONS.

THE POSTMASTER GENERAL MAY ENTER INTO CONTRACTS FOR THE CONDUCT OF CONTRACT STATIONS FOR A TERM NOT EXCEEDING TWO YEARS. ( MAY 18, 1916, CH. 126, SEC. 15, 39 STAT. 163.)

SECTION 403, POSTAL LAWS AND REGULATIONS, 1940, PROVIDES, IN PERTINENT PART, THAT:

* * * WHERE THE NEEDS OF THE SERVICE REQUIRE, CONTRACT STATIONS MAY BE ESTABLISHED IN GOVERNMENT BUILDINGS PROVIDED THE REQUIRED SPACE AND EQUIPMENT IS FURNISHED BY THE PROPER FEDERAL AUTHORITY, AND THE CONTRACTOR RECEIVES NO SALARY, PAY, OR EMOLUMENT FROM ANY DEPARTMENT OR OFFICE OF THE GOVERNMENT AND PROVIDED THAT THE RATE OF COMPENSATION WILL TAKE INTO CONSIDERATION THE FACT THAT THE CONTRACTOR IS NOT REQUIRED TO FURNISH SPACE OR EQUIPMENT.

THAT REGULATION IS FOUNDED UPON THE DECISIONS OF NOVEMBER 10, 1936, 16 COMP. GEN. 478, TO WHICH YOU REFER, AND OF APRIL 9, 1936, 15 COMP. GEN. 882. IN THE DECISION OF NOVEMBER 10, 1936, AFTER QUOTING FROM THE DECISION OF APRIL 9, 1936, IT WAS STATED:

THE DECISION INTENDED TO HOLD THAT THE CONDUCT OF A BRANCH POST OFFICE BY A FEDERAL EMPLOYEE UNDER ANOTHER DEPARTMENT OF OFFICE OF THE GOVERNMENT CONSTITUTES A PERSONAL SERVICE AND THAT PAYMENT UNDER THE CONTRACT ENTERED INTO BETWEEN THE POST OFFICE DEPARTMENT AND SUCH FEDERAL EMPLOYEE IS A VIOLATION NOT ONLY OF THE DUAL COMPENSATION ACT OF 1916, SUPRA, IF THE COMBINED RATE IS IN EXCESS OF $2,000 PER ANNUM, BUT, ALSO IN VIOLATION OF SECTION 1765, REVISED STATUTES, IF THE REGULAR POSITION OF THE EMPLOYEE IS ON THE BASIS OF FULL TIME, IRRESPECTIVE OF THE COMBINED RATE OF COMPENSATION. IF EITHER IS ON FULL-TIME BASIS THE TWO APPOINTMENTS OR EMPLOYMENTS WOULD APPEAR TO BE INCOMPATIBLE. IF, IN THE PRESENT CASES THE EMPLOYEES OF THE LEGISLATIVE BRANCH AND OF THE EXECUTIVE BRANCH OF THE GOVERNMENT ARE EMPLOYED AND PAID ON A FULL TIME BASIS UNDER THE APPROPRIATIONS FOR THOSE BRANCHES OF THE SERVICE, WHICH IS UNDERSTOOD TO BE THE FACT, PAYMENT OF ADDITIONAL COMPENSATION TO THEM BY THE POST OFFICE DEPARTMENT FOR THE CONDUCT OF A BRANCH POST OFFICE IS IN VIOLATION OF SECTION 1765, REVISED STATUTES, REGARDLESS OF WHETHER THE COMBINED COMPENSATION EXCEEDS THE RATE OF $2,000 PER ANNUM. HENCE, ALL SUCH CONTRACTS MUST BE CANCELED AND THERE IS NO ALTERNATIVE BUT TO RAISE A CHARGE AGAINST EACH EMPLOYEE FOR THE COMPENSATION RECEIVED UNDER THE CONTRACT FOR CONDUCT OF THE BRANCH POST OFFICE.

SUBSEQUENTLY, PRIVATE RELIEF LEGISLATION WAS ENACTED FOR THE BENEFIT OF THE INVOLVED CONTRACT EMPLOYEES OF THE POST OFFICE DEPARTMENT, BUT THERE HAS BEEN NO GENERAL LEGISLATION AUTHORIZING ANY MODIFICATION IN THE RULES STATED IN THE DECISIONS.

THE ACT OF JUNE 18, 1929, 46 STAT. 21, ENTITLED,"AN ACT TO PROVIDE FOR THE FIFTEENTH AND SUBSEQUENT DECENNIAL CENSUSES AND TO PROVIDE FOR APPORTIONMENT OF REPRESENTATIVES IN CONGRESS," FROM WHICH YOU QUOTE ONE SENTENCE IN THE THIRD PARAGRAPH OF YOUR LETTER, PROVIDES, ALSO, AS OLLOWS:

THAT A CENSUS OF POPULATION, AGRICULTURE, IRRIGATION, DRAINAGE, DISTRIBUTION, UNEMPLOYMENT, AND MINES SHALL BE TAKEN BY THE DIRECTOR OF THE CENSUS IN THE YEAR 1930 AND EVERY TEN YEARS THEREAFTER. * * * * * * *

SEC. 16. THAT THERE SHALL BE IN THE YEAR 1935, AND ONCE EVERY TEN YEARS THEREAFTER, A CENSUS OF AGRICULTURE AND LIVESTOCK, WHICH SHALL SHOW THE ACREAGE OF FARM LAND, THE ACREAGE OF THE PRINCIPAL CROPS, AND THE NUMBER AND VALUE OF DOMESTIC ANIMALS ON THE FARMS AND RANGES OF THE COUNTRY. THE SCHEDULE EMPLOYED IN THIS CENSUS SHALL BE PREPARED BY THE DIRECTOR OF THE CENSUS. SUCH CENSUS SHALL BE TAKEN AS OF THE ST DAY OF JANUARY AND SHALL RELATE TO THE CROP YEAR. THE DIRECTOR OF THE CENSUS MAY APPOINT ENUMERATORS OR SPECIAL AGENTS FOR THE PURPOSE OF THIS CENSUS IN ACCORDANCE WITH THE PROVISIONS OF THE PERMANENT CENSUS ACT. (ITALICS SUPPLIED.)

THERE IS FOR NOTING THAT THE TWO SECTIONS OF THE STATUTE JUST QUOTED, TAKEN TOGETHER, PROVIDE FOR A CENSUS OF AGRICULTURE EVERY FIVE YEARS. THIS IS RECOGNIZED IN THE APPROPRIATION ITEM APPEARING IN THE ACT OF JUNE 28, 1944, PUBLIC LAW 365, CITED IN YOUR LETTER," FOR ALL EXPENSES NECESSARY FOR PREPARING FOR, TAKING, COMPILING, AND PUBLISHING THE QUINQUENNIAL CENSUS OF AGRICULTURE OF THE UNITED STATES.' THE CENSUS ACT OF 1929, SUPRA, CONTAINS BOTH GENERAL PROVISIONS APPLICABLE TO ANY CENSUS, AND SPECIAL PROVISIONS APPLICABLE ONLY TO THE FIFTEENTH DECENNIAL CENSUS. THE SENTENCE IN SECTION 3 OF THE STATUTE QUOTED IN YOUR LETTER, PROVIDING THAT EMPLOYEES OF OTHER DEPARTMENTS OR OFFICES OF THE GOVERNMENT MAY "BE EMPLOYED AND COMPENSATED FOR FIELD WORK IN CONNECTION WITH THE FIFTEENTH DECENNIAL CENSUS" BY ITS EXPRESS TERMS IS A SPECIAL PROVISION APPLICABLE ONLY TO THE FIFTEENTH DECENNIAL CENSUS, AND REASONABLY MAY NOT BE REGARDED AS ONE OF ,THE PROVISIONS OF THE PERMANENT CENSUS ACT" WITHIN THE MEANING OF SECTION 16 OF THE STATUTE (ITALICIZED ABOVE), PROVIDING FOR THE EXTRA CENSUS OF AGRICULTURE AND LIVESTOCK. THAT IS, THE FIFTEENTH DECENNIAL CENSUS IS UNDERSTOOD TO HAVE BEEN THE 1940 (1930) CENSUS AND, IF SO, THE TERM MAY NOT BE BROADENED BY CONSTRUCTION TO APPLY TO THE 1945 QUINQUENNIAL CENSUS OF AGRICULTURE UNDER THE TERMS OF SECTION 16 OF THE STATUTE. ACCORDINGLY, I AM UNABLE TO AGREE WITH THE VIEW INDICATED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER.

IN THE ABSENCE OF ANY SPECIAL PROVISION OF LAW AUTHORIZING THE EMPLOYMENT IN CONNECTION WITH THE 1945 QUINQUENNIAL CENSUS OF AGRICULTURE OF OTHER FEDERAL PERSONNEL RECEIVING THE SALARY OR COMPENSATION OF OTHER FEDERAL POSITIONS, THE RULES STATED IN THE DECISIONS OF APRIL 9, 1936, 15 COMP. GEN. 882, AND NOVEMBER 10, 1936, 16 COMP. GEN. 478, ARE FOR APPLICATION HERE, AND THERE IS NO ALTERNATIVE BUT TO CONCLUDE THAT YOU ARE NOT AUTHORIZED TO EMPLOY AND COMPENSATE MR. HENRY WESTER AS AN ASSISTANT LOCAL SUPERVISOR IN CONNECTION WITH THE 1945 QUINQUENNIAL CENSUS OF AGRICULTURE WHILE HE IS SERVING UNDER HIS PERSONAL SERVICE CONTRACT WITH THE POST OFFICE DEPARTMENT WITH SALARY AT THE RATE OF $2,100 PER ANNUM.