B-72087, MARCH 24, 1948, 27 COMP. GEN. 547

B-72087, MARCH 24, 1948, 27 COMP. GEN. 547

FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED - CONSULTANTS EMPLOYED UNDER ACT OF FEBRUARY 28, 1929, AS AMENDED PERSONS APPOINTED AS CONSULTANTS ON RECLAMATION WORK AT THE RATE OF $50 PER DAY, BUT NOT TO EXCEED $5,000 DURING ANY FISCAL YEAR, PURSUANT TO SECTION 1 OF THE ACT OF FEBRUARY 28, 1929, AS AMENDED, ARE NOT TO BE REGARDED AS SUBJECT TO THE $10,000 PER ANNUM AGGREGATE COMPENSATION LIMITATION IMPOSED BY SECTION 603 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED. PERSONS APPOINTED AS CONSULTANTS ON RECLAMATION WORK AT RATES OF COMPENSATION NOT TO EXCEED $50 PER DAY, OR $5,000 DURING ANY FISCAL YEAR, UNDER SECTION 1 OF THE ACT OF FEBRUARY 28, 1929, AS AMENDED, ARE NOT TO BE REGARDED AS "FULL-TIME" OFFICERS AND EMPLOYEES ON WHOSE ACCOUNT A BASIC ADMINISTRATIVE WORKWEEK OF 40 HOURS IS REQUIRED TO BE ESTABLISHED PURSUANT TO SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, MARCH 24, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 15, 1947, REQUESTING DECISION UPON SEVERAL QUESTIONS RELATIVE TO THE APPLICATION OF CERTAIN PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 295, AS AMENDED, TO CONSULTANTS EMPLOYED BY YOUR DEPARTMENT PURSUANT TO THE AUTHORITY IN SECTION 1 OF THE ACT OF FEBRUARY 28, 1929, 45 STAT. 1406, AS AMENDED, 43 U.S.C. 411B, 1940 ED. SUPP. V. SAID SECTION READS AS FOLLOWS (QUOTING FROM THE CODE):

411B. EMPLOYMENT OF ENGINEERS, GEOLOGISTS, AND ECONOMISTS FOR RECLAMATION CONSULTATION WORK; COMPENSATION; RETIRED ARMY AND NAVY OFFICERS AS CONSULTING ENGINEERS; RETIRED DEPARTMENT OF INTERIOR PERSONNEL AS CONSULTANTS.

THE SECRETARY OF THE INTERIOR IS AUTHORIZED, IN HIS JUDGMENT AND DISCRETION, TO EMPLOY FOR CONSULTATION PURPOSES ON IMPORTANT RECLAMATION WORK TEN CONSULTING ENGINEERS, GEOLOGISTS, APPRAISERS, AND ECONOMISTS, AT RATES OF COMPENSATION TO BE FIXED BY HIM, BUT NOT TO EXCEED $50 PER DAY FOR ANY ENGINEER, GEOLOGIST, APPRAISER, OR ECONOMIST SO EMPLOYED: PROVIDED, THAT THE TOTAL COMPENSATION PAID TO ANY ENGINEER, GEOLOGIST, APPRAISER, OR ECONOMIST DURING ANY FISCAL YEAR SHALL NOT EXCEED $5,000: PROVIDED FURTHER, THAT NOTWITHSTANDING THE PROVISIONS OF ANY OTHER ACT, RETIRED OFFICERS OF THE ARMY OR NAVY MAY BE EMPLOYED BY THE SECRETARY OF THE INTERIOR AS CONSULTING ENGINEERS IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION: PROVIDED FURTHER, THAT, NOTWITHSTANDING THE PROVISIONS OF ANY OTHER ACT, RETIRED PERSONNEL OF THE DEPARTMENT OF THE INTERIOR MAY BE EMPLOYED BY THE SECRETARY OF THE INTERIOR AS CONSULTANTS IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION, WITHOUT DEDUCTIONS FROM COMPENSATION FOR RETIREMENT, WITHOUT LOSS OF OR REDETERMINATION OF RETIREMENT STATUS, AND WITHOUT LOSS OR REDUCTION OF RETIREMENT ANNUITY OR OTHER BENEFITS BY REASON OF SUCH EMPLOYMENT, EXCEPT THAT THERE SHALL BE DEDUCTED FROM THE COMPENSATION OTHERWISE PAYABLE TO ANY SUCH RETIRED EMPLOYEE SUMS EQUAL TO THE RETIREMENT ANNUITY OR BENEFIT ALLOCABLE TO THE DAYS OF ACTUAL EMPLOYMENT UNDER THIS SECTION.

THE SPECIFIC QUESTIONS PRESENTED IN YOUR LETTER ARE AS FOLLOWS:

1. MAY A CONSULTANT EMPLOYED PURSUANT TO THE ACT OF FEBRUARY 28, 1929, SUPRA, AS AMENDED, AT THE RATE OF $50 PER DAY BE PAID THE SUM OF $700 FOR FOURTEEN CONSECUTIVE DAYS' WORK?

(A) IF YOUR ANSWER IS IN THE NEGATIVE, WHAT IS THE MAXIMUM NUMBER OF CONSECUTIVE DAYS DURING WHICH SUCH A CONSULTANT MAY BE ENGAGED AND STILL RECEIVE COMPENSATION AT THE RATE OF $50 PER DAY?

2. DOES SECTION 604 (A) OF THE ACT OF JUNE 30, 1945, SUPRA, AS AMENDED, HAVE ANY APPLICATION TO SUCH CONSULTANTS?

THE PARTICULAR PROVISION OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, WHICH GIVES RISE TO QUESTION 1, IS NOT IDENTIFIED, BUT IT IS ASSUMED THAT IT IS THE ONE WHICH RELATES TO THE $10,000 MAXIMUM SALARY LIMITATION CONTAINED IN SECTION 603 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED BY SECTION 7 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 218, AND IN SECTION 7 (B) OF THE LATER ACT WHICH, SO FAR AS HERE MATERIAL, RESPECTIVELY PROVIDE:

(B) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ACT, NO OFFICER OR EMPLOYEE SHALL, BY REASON OF THE ENACTMENT OF THIS ACT, OR ANY AMENDMENT THERETO, BE PAID, WITH RESPECT TO ANY PAY PERIOD, BASIC COMPENSATION PLUS ANY ADDITIONAL COMPENSATION PROVIDED BY THIS ACT, AT A RATE IN EXCESS OF $10,000 PER ANNUM * * *.

7 (B) NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS ACT, NO OFFICER OR EMPLOYEE SHALL, BY REASON OF THE ENACTMENT OF THIS ACT, BE PAID WITH RESPECT TO ANY PAY PERIOD, BASIC COMPENSATION PLUS ANY ADDITIONAL COMPENSATION PROVIDED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AT A RATE IN EXCESS OF $10,000 PER ANNUM.

IN DECISION OF DECEMBER 11, 1946, 26 COMP. GEN. 402, THERE WAS CONSIDERED THE APPLICABILITY OF THE ABOVE-QUOTED STATUTORY PROVISIONS TO SECTION 8 OF THE MILITARY APPROPRIATION ACT, 1947, 60 STAT. 564, AUTHORIZING THE SECRETARY OF WAR, INTER ALIA, TO EMPLOY ARCHITECTS, ENGINEERS, ETC., BY CONTRACT OR OTHERWISE, AT RATES OF COMPENSATION NOT TO EXCEED $40 PER DAY, AND IT WAS THERE STATED AS FOLLOWS:

IT WILL BE NOTED THAT THE INHIBITION CONTAINED IN THE SECTIONS QUOTED ABOVE EXPRESSLY IS DIRECTED AGAINST THE PAYMENT OF BASIC COMPENSATION, OR BASIC COMPENSATION PLUS ANY ADDITIONAL COMPENSATION, FOR ANY PAY PERIOD, AT A RATE IN EXCESS OF $10,000 PER ANNUM "BY REASON OF THE ENACTMENT OF THIS ACT.' SO FAR AS CONCERNS THE MAXIMUM PER DIEM RATE OF BASIC COMPENSATION ($40) AUTHORIZED BY THE SAID SECTION 8 OF THE MILITARY APPROPRIATION ACT, 1947, IT IS CLEAR THAT, BY VIRTUE OF THE PROVISIONS OF SECTION 603 (B) AND 7 (B), SUPRA, SUCH BASIC RATE MAY NOT BE INCREASED UNDER THE PROVISIONS OF SECTION 602 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, 60 STAT. 216, AUTHORIZING PERCENTUM INCREASES IN BASIC RATES OF COMPENSATION "SPECIFICALLY PRESCRIBED BY STATUTE OF CONGRESS.' HENCE, THE BASIC COMPENSATION OF PERSONS EMPLOYED AT SUCH PER DIEM RATE, NOT HAVING BEEN INCREASED BY ANY PROVISION OF EITHER THE FEDERAL EMPLOYEES PAY ACT OF 1945 OR OF 1946 IS NOT SUBJECT TO THE $10,000 LIMITATION CONTAINED IN SECTION 603 (B) AND SECTION 7 (B) SUPRA. * * *

IN LINE WITH THE STATEMENTS CONTAINED IN THAT PORTION OF THE DECISION OF DECEMBER 11, 1946, QUOTED ABOVE, IT WILL BE SEEN THAT PERSONS APPOINTED AT THE RATE OF $50 PER DAY UNDER AUTHORITY OF SECTION 1 OF THE ACT OF FEBRUARY 28, 1929, AS AMENDED, ARE NOT SUBJECT TO THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946 REFERRED TO ABOVE, SO FAR AS LIMITING THEIR BASIC COMPENSATION IN ANY PAY PERIOD TO A RATE NOT IN EXCESS OF $10,000 PER ANNUM. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE SUBJECT TO THE $5,000 FISCAL YEAR LIMITATION PRESCRIBED IN THE 1929 STATUTE, AS AMENDED, THUS RENDERING UNNECESSARY ANY ANSWER TO QUESTION 1 (A).

SECTION 604 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 303 AS AMENDED, PROVIDES:

(A) IT SHALL BE THE DUTY OF THE HEADS OF THE SEVERAL DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS AND AGENCIES IN THE EXECUTIVE BRANCH, INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS, AND THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, TO ESTABLISH AS OF THE EFFECTIVE DATE OF THIS ACT, FOR ALL FULL-TIME OFFICERS AND EMPLOYEES IN THEIR RESPECTIVE ORGANIZATIONS, IN THE DEPARTMENTAL AND THE FIELD SERVICES, A BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS, AND TO REQUIRE THAT THE HOURS OF WORK IN SUCH WORKWEEK BE PERFORMED WITHIN A PERIOD OF NOT MORE THAN SIX OR ANY SEVEN CONSECUTIVE DAYS. ( ITALICS SUPPLIED.)

IT WILL BE NOTED THAT THE ABOVE-QUOTED SECTION SPECIFICALLY IS DIRECTED TO THE MATTER OF ESTABLISHING A BASIS ADMINISTRATIVE WORKWEEK FOR ALL "FULL-TIME OFFICERS AND EMPLOYEES" IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. PERSONS EMPLOYED PURSUANT TO THE AUTHORITY OF THE SAID SECTION 1 OF THE ACT OF FEBRUARY 28, 1929, AS AMENDED, CLEARLY ARE NOT "FULL-TIME" OFFICERS OR EMPLOYEES WITHIN THE MEANING OF THAT PHRASE AS USED IN SECTION 604 (A), SUPRA. ACCORDINGLY, QUESTION 2 IS ANSWERED IN THE NEGATIVE.

THE VIEW IS EXPRESSED IN YOUR LETTER THAT PERSONS TEMPORARILY EMPLOYED UNDER THE AUTHORITY OF SECTION 1 OF THE ACT OF FEBRUARY 28, 1929, AS AMENDED, SUPRA, ARE NOT "OFFICERS" OR "EMPLOYEES" WITHIN THE MEANING OF THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946, BUT ARE IN THE NATURE OF ,INDEPENDENT CONTRACTORS," AND, THEREFORE, THE HOLDING IN THE DECISION OF DECEMBER 11, 1946, REFERRED TO ABOVE, IS NOT FOR APPLICATION TO SUCH PERSONS. IN THAT CONNECTION IT MAY BE STATED THAT IT CONSISTENTLY HAS BEEN HELD BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT THAT CONSULTANTS, EXPERTS, ETC., RENDERING PURELY PERSONAL SERVICES UNDER THE GENERAL SUPERVISION OF GOVERNMENT OFFICIALS ARE WITHIN THE MEANING OF THE TERMS,"OFFICERS," AND "EMPLOYEES," AS THOSE WORDS HAVE BEEN USED AND UNDERSTOOD IN APPLICABLE COMPENSATION STATUTES. SEE 23 COMP. GEN. 17; 24 ID. 924; 25 ID. 86. THERE IS PERCEIVED NO SUBSTANTIAL DIFFERENCE BETWEEN THE CHARACTER OF THE EMPLOYMENT CONTEMPLATED UNDER THE STATUTORY PROVISIONS CONSIDERED IN THOSE DECISIONS AND THE CHARACTER OF EMPLOYMENT AUTHORIZED UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF FEBRUARY 28, 1929, AS AMENDED, SUPRA. OBVIOUSLY, SERVICES RENDERED UNDER THE PROVISIONS OF THE LAST MENTIONED ACT, ARE DISTINGUISHABLE FROM SERVICES RENDERED AS A WITNESS FOR THE GOVERNMENT AS WAS THE CIRCUMSTANCE CONSIDERED IN THE OPINION DATED NOVEMBER 15, 1909, OF THE ATTORNEY GENERAL, 28 OP. ATT. GEN. 75, OR THE SERVICES OF AN ATTORNEY TO HIS CLIENT AS WAS INVOLVED IN LOUISVILLE, ETC., R.R. CO. V. WILSON, 138 U.S. 501--- CITED IN YOUR LETTER AS SUPPORTING THE VIEW THAT PERSONS EMPLOYED UNDER AUTHORITY OF THE SAID 1929 STATUTE ARE NOT "OFFICERS" OR "EMPLOYEES" OF THE GOVERNMENT WITHIN THE PURVIEW OF THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946.