B-29445, OCTOBER 16, 1942, 22 COMP. GEN. 362

B-29445, OCTOBER 16, 1942, 22 COMP. GEN. 362

STATUS OF FEDERAL ALLOTMENTS TO DISTRICT OF COLUMBIA AS APPROPRIATED FUNDS; "FEES" AND "PER DIEMS" AS CONSTITUTING SALARY UNDER DOUBLE COMPENSATION STATUTES WHILE FUNDS ALLOTTED TO AND ACCEPTED BY A STATE OR TERRITORY FROM THE LABOR - FEDERAL SECURITY APPROPRIATION ACT, 1943, FOR THE EDUCATION AND TRAINING OF DEFENSE WORKERS BECOME STATE OR TERRITORIAL FUNDS NOT SUBJECT TO FEDERAL DUAL COMPENSATION STATUTES, SUCH FUNDS WHEN ALLOTTED TO THE DISTRICT OF COLUMBIA REMAIN FEDERALLY APPROPRIATED FUNDS IN THE SAME MANNER AS OTHER FUNDS PROVIDED FOR USE OF THE DISTRICT OF COLUMBIA GOVERNMENT, AND, AS SUCH, ARE SUBJECT TO SUCH DUAL COMPENSATION STATUTES, EVEN THOUGH REGULATIONS ISSUED UNDER THE SAID APPROPRIATION ACT DEFINE " STATE" TO INCLUDE THE DISTRICT OF COLUMBIA. COMPENSATION PAID ON A PER DIEM BASIS, INVOLVING TIME AS A MEASURE OF PAYMENT--- AS DISTINGUISHED FROM PAYMENT ON A FEE BASIS--- CONSTITUTES "SALARY" WITHIN THE MEANING OF THE ACT OF MAY 10, 1916, AS AMENDED, PROHIBITING, UNDER CERTAIN CONDITIONS, THE PAYMENT FROM APPROPRIATED FUNDS OF MORE THAN ONE SALARY TO A PERSON. THE PAYMENT, FROM A FEDERAL ALLOTMENT TO THE DISTRICT OF COLUMBIA, TO A FULL TIME FEDERAL EMPLOYEE OF A PER DIEM, IN ADDITION TO HIS REGULAR SALARY, FOR DEFENSE-TRAINING TEACHING SERVICES, WHICH PER DIEM IS COMPUTED ON THE BASIS OF 1/360 OF THE ANNUAL SALARY OF A FULL TIME DISTRICT OF COLUMBIA TEACHER, CONSTITUTES PAYMENT OF ANOTHER SALARY FROM APPROPRIATED FUNDS AND, HENCE, IS PROHIBITED BY THE DUAL COMPENSATION STATUTE OF 1916, BUT THERE IS NO LEGAL OBJECTION TO THE PAYMENT OF FEES TO FEDERAL EMPLOYEES FOR SUCH TEACHING SERVICES, PROVIDED THE FEES ARE FIXED BY REGULATION AND ARE NOT COMPUTED ON A PER DIEM OR OTHER TIME BASIS.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, WAR MANPOWER COMMISSION, OCTOBER 16, 1942:

I HAVE YOUR LETTER OF OCTOBER 5, 1942, AS FOLLOWS:

IN ADMINISTERING THE "PROGRAM OF EDUCATION AND TRAINING OF DEFENSE WORKERS" (SEE PUBLIC LAW 647, 77TH CONGRESS, 2ND SESS., PP. 19-20) AN IMPORTANT QUESTION HAS ARISEN AS TO WHETHER OR NOT FEDERAL EMPLOYEES MAY BE EMPLOYED BY THE DISTRICT OF COLUMBIA AS TEACHERS AND INSTRUCTORS INTERMITTENTLY AND IRREGULARLY IN THE NATIONAL DEFENSE EMERGENCY WAR TRAINING PROGRAM AND BE COMPENSATED ON A PER-DIEM BASIS OUT OF GRANT IN- AID FUNDS FOR EMERGENCY DEFENSE-TRAINING.

THE NECESSITY FOR SUCH EMPLOYMENT IS EMPHASIZED BY THE FACT THAT THERE IS AN URGENT DEMAND FOR TEACHERS AND INSTRUCTORS IN THE NATIONAL DEFENSE EMERGENCY WAR- TRAINING PROGRAM FOR THE TRAINING ESPECIALLY OF WAR WORKERS FOR THE ARMY, NAVY, AND OTHER WAR AGENCIES IN AND ABOUT THE DISTRICT OF COLUMBIA. THESE WORKERS ARE NEEDED BOTH FOR SERVICE EXPANSION AND VACANCIES DEVELOPING IN THE EXISTING STAFF. THERE ARE AMPLE OCCUPATIONALLY COMPETENT AND QUALIFIED MEN IN THE FEDERAL SERVICE IN THE DISTRICT OF COLUMBIA SUCH AS THE NAVY YARD AND OTHER MECHANICAL PRODUCTION STATIONS WHO ARE WILLING TO SERVE. THESE FEDERAL EMPLOYEES ARE THE ONLY PERSONS AVAILABLE TO DO THIS TEACHING JOB.

AS YOU KNOW, CONGRESS HAS MADE SPECIAL GRANTS-IN-AID TO "STATES, SUB- DIVISIONS THEREOF, OR OTHER PUBLIC AGENCIES OPERATING PUBLIC EDUCATIONAL FACILITIES * * *" FOR THE TRAINING OF WAR-PRODUCTION WORKERS. LABOR - FEDERAL SECURITY APPROPRIATION ACT, 1943, PUBLIC LAW 647, 77TH CONG., 2ND SESS., TITLE II ( EDUCATION AND TRAINING, DEFENSE WORKERS ( NATIONAL DEFENSE) ). UNDER THE PROVISIONS OF THIS GRANT-IN AID, THE DISTRICT OF COLUMBIA SCHOOL AUTHORITIES HAVE PROJECTED A PROGRAM FOR THE TRAINING OF THOUSANDS OF WAR WORKERS ESSENTIAL TO THE SUCCESSFUL PROSECUTION OF THE WAR EFFORT. THIS LARGE AND IMPORTANT PROGRAM IS COMPLETELY CONTINGENT UPON THE AVAILABILITY OF PROPERLY QUALIFIED TEACHERS AND INSTRUCTORS, WHO, IN THE DISTRICT OF COLUMBIA, ARE AVAILABLE ONLY AMONG FEDERAL EMPLOYEES.

IN VIEW OF THE FACT THAT REFERENCE HAS BEEN MADE TO THE DUAL COMPENSATION STATUTE (39 STAT. 120, 5 U.S.C. 58), I TAKE THE LIBERTY OF ENCLOSING FOR WHATEVER USE YOU MAY SEE FIT TO MAKE OF IT, MEMORANDUM PREPARED BY OUR COUNSEL.

MAY I HAVE YOUR RULING ON THE SPECIFIC QUESTION POSED ABOVE?

THE MEMORANDUM FORWARDED WITH YOUR LETTER STATES THE QUESTION INVOLVED AND SUGGESTS AN AFFIRMATIVE ANSWER, AS FOLLOWS:

THE QUESTION IS WHETHER OR NOT REGULAR FEDERAL GOVERNMENT EMPLOYEES MAY BE EMPLOYED INTERMITTENTLY AND IRREGULARLY TO TEACH EMERGENCY DEFENSE- TRAINING COURSES OFFERED BY THE DISTRICT OF COLUMBIA PUBLIC SCHOOLS AND BE PAID ON A PER DIEM FEE BASIS OUT OF FUNDS GRANTED UNDER THE LABOR - FEDERAL SECURITY APPROPRIATION ACT OF 1943 ( PUBLIC LAW 647, 77TH CONGRESS, 2ND SESSION).

THE AFFIRMATIVE IS SUPPORTED BY TWO LINES OF AUTHORITY:

I. THAT GRANT-IN-AID FUNDS FOR EMERGENCY DEFENSE-TRAINING OF WAR WORKERS ARE NOT FEDERAL FUNDS SUBJECT TO THE RESTRICTIONS OF THE FEDERAL DUAL- 1COMPENSATION STATUTE; AND

II. THAT COMPENSATION PAID FOR INTERMITTENT, IRREGULAR EMPLOYMENT TO INSTRUCTORS IN THE DISTRICT OF COLUMBIA'S EMERGENCY DEFENSE TRAINING PROGRAM ON A PER DIEM FEE BASIS IS NOT "SALARY" WITHIN THE PURVIEW OF THE DUAL-1COMPENSATION STATUTE.

CONCLUSION TO PART I

SINCE BY LAW THE DISTRICT OF COLUMBIA IS IN PRECISELY THE SAME SITUATION AS THE STATES OF NEW MEXICO OR TEXAS UNDER THE PROVISIONS OF THE LAW PROVIDING FOR DISBURSEMENTS OF GRANTS FOR EMERGENCY DEFENSE TRAINING, AND SINCE BOTH THE COMPTROLLER GENERAL AND THE GENERAL COUNSEL FOR THE TREASURY HAVE RULED GRANT-IN-AID FUNDS BEYOND THE PURVIEW OF THE DUAL COMPENSATION STATUTE, IT IS RESPECTFULLY SUBMITTED THAT THE DUAL COMPENSATION STATUTE IS NOT APPLICABLE TO FEDERAL EMPLOYEES ACCEPTING EMPLOYMENT AS INSTRUCTORS OF THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA UNDER THE EMERGENCY DEFENSE TRAINING PROGRAM FINANCED BY SPECIAL GRANTS FOR THE PURPOSE OF EXPEDITING THE TRAINING OF ESSENTIAL WAR- WORKERS.

CONCLUSION TO PART II

IN COMPENSATING FEDERAL EMPLOYEES ON A PART-TIME FEE BASIS FOR IRREGULAR AND INTERMITTENT TEACHING IN THE DISTRICT OF COLUMBIA EMERGENCY DEFENSE- TRAINING PROGRAM, THE DISTRICT OF COLUMBIA IS IN THE SAME LEGAL STATUS AS IT WAS IN THE CASE OF THE EMPLOYMENT OF MR. MACLEOD, DEPARTMENT OF TREASURY EMPLOYEE, AS A TEACHER AND ORGANIST AT THE NATIONAL TRAINING SCHOOL FOR BOYS. IT IS RESPECTFULLY SUBMITTED THAT THE DUAL COMPENSATION STATUTE IS INAPPLICABLE TO THE FACTS AT HAND.

THE APPROPRIATION ITEM INVOLVED (ACT OF JULY 2, 1942, 56 STAT. 578, PUBLIC LAW 647) CONTAINS THE FOLLOWING PERTINENT PROVISIONS:

EDUCATION AND TRAINING, DEFENSE WORKERS ( NATIONAL DEFENSE)

PAYMENTS TO STATES, AND SO FORTH (NATIONAL DEFENSE): FOR PAYMENT TO STATES, SUBDIVISIONS THEREOF, OR OTHER PUBLIC AGENCIES OPERATING PUBLIC EDUCATIONAL FACILITIES * * * FOR THE FURTHERANCE OF THE EDUCATION AND TRAINING OF DEFENSE WORKERS, THROUGH CERTIFICATION FROM TIME TO TIME, IN ACCORDANCE WITH REGULATIONS PROMULGATED BY THE UNITED STATES COMMISSIONER OF EDUCATION (HEREINAFTER REFERRED TO AS THE " COMMISSIONER") UNDER THE SUPERVISION AND DIRECTION OF THE FEDERAL SECURITY ADMINISTRATOR AND APPROVED BY THE PRESIDENT * * *.

REFERRING TO THE " CONCLUSION TO PART I" STATED IN THE MEMORANDUM, SUPRA, AND TO THE ARGUMENT MADE IN SUPPORT THEREOF, WHILE IT IS TRUE THAT THE COURTS AND THIS OFFICE HAVE HELD THAT AFTER FEDERAL FUNDS HAVE BEEN ALLOTTED TO, AND ACCEPTED BY, A STATE OR TERRITORY, THE FUNDS BECOME STATE OR TERRITORIAL FUNDS AND CEASE TO BE FEDERAL FUNDS SO FAR AS CONCERNS THE APPLICATION OF THE PROHIBITORY DUAL COMPENSATION STATUTES, IT DOES NOT NECESSARILY FOLLOW THAT THE SAME IS TRUE IN RESPECT OF FEDERAL FUNDS ALLOTTED TO THE DISTRICT OF COLUMBIA, EVEN UNDER A LAW (OR REGULATION HAVING THE FORCE AND EFFECT OF LAW--- SEE FEDERAL REGISTER OF AUGUST 15, 1942, P. 6436, HERE APPLICABLE) WHICH DEFINES " STATE" TO INCLUDE THE DISTRICT OF COLUMBIA. THE REASON IS THAT THE RELATIONSHIP BETWEEN THE UNITED STATES AND THE STATES AND TERRITORIES, AND BETWEEN THE UNITED STATES AND THE DISTRICT OF COLUMBIA, IS ENTIRELY DIFFERENT IN RESPECT OF FUNDS PROVIDED TO CARRY ON THE FUNCTIONS OF THE RESPECTIVE GOVERNMENTS. THAT IS TO SAY, FUNDS FOR CARRYING ON THE FUNCTIONS OF THE STATES AND TERRITORIES, INCLUDING ALASKA, ARE PROVIDED FOR BY ENACTMENTS OF THE STATE OR TERRITORIAL LEGISLATURES AND ARE DERIVED FROM TAXES IMPOSED BY THE STATES AND TERRITORIES AND FROM OTHER SOURCES SEPARATE AND DISTINCT FROM THE SOURCES OF REVENUE FOR THE FEDERAL GOVERNMENT AND DO NOT CONSTITUTE FEDERAL OR FEDERALLY APPROPRIATED FUNDS IN ANY SENSE, WHEREAS FUNDS FOR CARRYING ON THE FUNCTIONS OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, WHILE DERIVED IN PART FROM TAXATION BY THE DISTRICT OF COLUMBIA GOVERNMENT AND IN PART FROM DIRECT APPROPRIATION FROM THE GENERAL FUND OF THE UNITED STATES TREASURY, ARE ALL PROVIDED FOR EXPENDITURE BY THE DISTRICT OF COLUMBIA GOVERNMENT ONLY THROUGH APPROPRIATIONS MADE BY THE CONGRESS OF THE UNITED STATES. THUS, IT WILL BE SEEN THAT FEDERAL ALLOTMENTS TO THE STATES AND TERRITORIES TAKE ON THE CHARACTER OF OTHER STATE FUNDS WHEN ACCEPTED BY THE STATES AND TERRITORIES, WHEREAS ALLOTMENTS UNDER ANY FEDERAL APPROPRIATION TO THE DISTRICT OF COLUMBIA REMAIN FEDERALLY APPROPRIATED FUNDS IN THE SAME MANNER AS OTHER FUNDS PROVIDED FOR THE USE OF THE DISTRICT OF COLUMBIA GOVERNMENT AND, AS SUCH, ARE SUBJECT TO THE FEDERAL DUAL COMPENSATION STATUTES. IN FACT, ONE OF THE DECISIONS--- 15 COMP. GEN. 1077, 1080--- CITED IN THE MEMORANDUM FORWARDED WITH YOUR LETTER IN SUPPORT OF " CONCLUSION TO PART I" THAT THE DUAL COMPENSATION STATUTES ARE NOT APPLICABLE TO FEDERAL FUNDS ALLOTTED TO THE DISTRICT OF COLUMBIA SPECIFICALLY HELD THAT FEDERAL FUNDS ALLOTTED TO THE DISTRICT WERE SUBJECT TO THE PROVISIONS OF SECTION 1765, REVISED STATUTES--- SAID STATUTE BEING ONE OF THE DUAL OR EXTRA COMPENSATION STATUTES.

IT HAS BEEN HELD CONSISTENTLY THAT FEDERAL EMPLOYEES WHO SERVE AS TEACHERS UNDER THE DISTRICT OF COLUMBIA GOVERNMENT ARE SUBJECT TO THE DUAL COMPENSATION STATUTES EXCEPT WHERE EXPRESSLY EXEMPTED BY LAW. SEE, GENERALLY, 21 COMP. GEN. 20, AND THE DECISIONS THEREIN CITED. IN APPLYING THAT RULE, THIS OFFICE AND THE DISTRICT OF COLUMBIA GOVERNMENT HAVE MADE NO DISTINCTION BETWEEN FUNDS APPROPRIATED DIRECTLY TO THE DISTRICT OF COLUMBIA AND FUNDS ALLOTTED FROM ANOTHER FEDERAL APPROPRIATION FOR USE OF THE DISTRICT OF COLUMBIA UNDER STATUTORY AUTHORITY WHICH MAY DEFINE THE DISTRICT OF COLUMBIA AS A " STATE.' ACCORDINGLY, I AM UNABLE TO CONCUR IN THE " CONCLUSION TO PART I," STATED IN THE MEMORANDUM IN SUPPORT OF AN AFFIRMATIVE ANSWER TO THE QUESTION PRESENTED.

RELATIVE TO THE " CONCLUSION TO PART II," STATED IN THE MEMORANDUM, IT IS UNDERSTOOD THAT PAYMENT TO FEDERAL FULL-TIME EMPLOYEES FOR TEACHING SERVICES UNDER THE INVOLVED ALLOTMENT OF FUNDS TO THE DISTRICT OF COLUMBIA IS PROPOSED TO BE MADE IN THE MANNER STATED IN THE SUBMITTED MEMORANDUM, AS FOLLOWS:

PART-TIME EMPLOYMENT OF SUCH TECHNICALLY-TRAINED TEACHERS ON THE DEFENSE- TRAINING PROGRAM IS COMPENSATED UPON THE BASIS OF A SPECIFIC FEE FOR EACH INDIVIDUAL TEACHING SESSION; IT IS PURELY UPON A PERFORMANCE BASIS, WITHOUT ANY BULK, ANNUAL OR PERIODIC BASIS. NO COMPENSATION WILL BE GIVEN WHEN THE TEACHER DOES NOT ATTEND, AND WHATEVER COMPENSATION IS PAID TO HIM FOR ANY ONE TEACHING SESSION IS NOT CONNECTED WITH OR DEPENDENT UPON HIS PERFORMANCE OF ANY OTHER TEACHING DUTIES.

THERE HAS BEEN CITED IN SUPPORT OF THE SECOND CONCLUSION A DECISION OF A COMPTROLLER OF THE TREASURY DATED JUNE 17, 1916, 22 COMP. DEC. 678, INVOLVING THE CASE OF A FULL-TIME EMPLOYEE OF THE TREASURY DEPARTMENT ( MACLEOD) WHO WAS EMPLOYED AS AN INSTRUCTOR OF MUSIC AND ORGANIST AT THE NATIONAL TRAINING SCHOOL FOR BOYS AND PAID, NOT ON A PER DIEM BASIS, BUT AT THE RATE OF $2.50 FOR EACH ATTENDANCE. THAT DECISION HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

PAYMENTS IN THE NATURE OF FEES, FOR SERVICES SEPARATE AND COMPLETE IN THEMSELVES, AS THE EMPLOYMENT, FROM TIME TO TIME, OF A MUSIC TEACHER AT THE NATIONAL TRAINING SCHOOL FOR BOYS, DO NOT CONSTITUTE SALARY WITHIN THE MEANING OF THE ACT OF MAY 10, 1916, PROHIBITING, UNDER CERTAIN CONDITIONS, THE PAYMENT OF MORE THAN ONE SALARY TO AN OFFICER OR EMPLOYEE.

IN MY DECISION OF OCTOBER 3, 1942, B-28864, 22 COMP. GEN. 312, A COPY OF WHICH IS ENCLOSED, IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE EMPLOYMENT BY ONE GOVERNMENT AGENCY OF A MEDICAL ADVISER ON AN ANNUAL SALARY BASIS WHO IS ALSO EMPLOYED, WHETHER BY CONTRACT OR OTHERWISE, BY ANOTHER GOVERNMENT AGENCY AS A CONSULTANT ON A FEE BASIS DOES NOT CONSTITUTE A VIOLATION OF THE RESTRICTION AGAINST THE HOLDING OF MORE THAN ONE OFFICE CONTAINED IN THE ACT OF JULY 31, 1894, AS AMENDED, (15 COMP. GEN. 828, MODIFIED), NOR DOES SUCH EMPLOYMENT CONSTITUTE A VIOLATION OF THE DUAL COMPENSATION RESTRICTIONS OF SECTION 1765, REVISED STATUTES, AND THE ACT OF MAY 16, 1916, AS AMENDED.

IT IS TO BE UNDERSTOOD IN CONNECTION WITH SAID DECISION THAT COMPENSATION PAID SOLELY ON A PER DIEM BASIS--- INVOLVING TIME AS A MEASURE OF PAYMENT- -- CONSTITUTES "SALARY" WITHIN THE MEANING OF THE DUAL COMPENSATION ACT OF MAY 10, 1916, 39 STAT. 120, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582, PROVIDING---

THAT UNLESS OTHERWISE SPECIFICALLY 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 * * *. SEE THE DECISION OF APRIL 6, 1939, 18 COMP. GEN. 768, AND THE NUMEROUS DECISIONS THEREIN CITED DISTINGUISHING THE TERMS "SALARY" AND "FEE"--- PARTICULARLY TO THAT PART THEREOF READING AS FOLLOWS (PP. 773, 774):

CONTRARY TO THE APPARENT UNDERSTANDING OF JUDGE ALEXANDER, THE ACCOUNTING OFFICERS OF THE UNITED STATES HAVE CONSISTENTLY APPLIED THE DUAL COMPENSATION STATUTE OF 1916, SUPRA, TO COMPENSATION COMPUTED ON THE BASIS OF A DAY, WHETHER FOR FULL TIME OR INTERMITTENT SERVICES. IN FACT, THE DECISIONS HOLD THAT COMPENSATION COMPUTED ON A TIME BASIS IS "SALARY" WHETHER THE MEASURE OF TIME IS THE YEAR, MONTH, DAY, OR HOUR. WHERE THE COMPENSATION IS COMPUTED ON ANY OTHER BASIS THAN THE YEAR, IT IS NECESSARY IN APPLYING THE STATUTE TO DETERMINE THE PER ANNUM EQUIVALENT OF THE RATE BASED ON ANY OTHER MEASURE OF TIME INCLUDING THE DAY. THIS RULE IS STATED AND APPLIED IN 8 COMP. GEN. 261; 17 ID. 238 * * *.

ACCORDINGLY, YOU ARE ADVISED THAT PAYMENT TO FULL-TIME FEDERAL EMPLOYEES OF ANOTHER "SALARY" FOR TEACHING SERVICES UNDER THE INVOLVED ALLOTMENT OF FUNDS TO THE DISTRICT OF COLUMBIA, COMPUTED ON THE BASIS OF A DAY--- 1/360 OF THE ANNUAL SALARY OF FULL-TIME TEACHERS PERFORMING SIMILAR WORK--- WOULD CONTRAVENE THE DUAL COMPENSATION ACT OF 1916, SUPRA, AND WOULD BE UNAUTHORIZED. HOWEVER, THERE WOULD BE NO LEGAL OBJECTION TO EMPLOYING AND PAYING FEDERAL EMPLOYEES FEES FOR TEACHING SERVICES UNDER THE INVOLVED ALLOTMENT OF FUNDS TO THE DISTRICT OF COLUMBIA IF SUCH FEES ARE FIXED BY REGULATION AND ARE NOT COMPUTED ON A PER DIEM OR OTHER TIME BASIS. IN THE EVENT OF THE ADOPTION OF SUCH A PLAN A COPY OF ANY SCHEDULE OF FEES FOR THE INVOLVED SERVICES SHOULD BE FILED IN THIS OFFICE FOR USE IN THE AUDIT OF THE ACCOUNTS.