DUAL COMPENSATION RESTRICTIONS APPLIED TO EMPLOYMENT BY CIA OF AN INDIVIDUAL WORKING OUTSIDE REGULAR HOURS OF NON-CONFLICTING EMPLOYMENT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP60-00442R000100030070-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 9, 2016
• Document Release Date: June 6, 2001
• Sequence Number: 70
• Content Type: MEMO

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Dual Compensation'eestrictions plied to jtnployment by CIA of an
Individual working v ttside ftgular lfpurs of lion-pnflicting
IInployment.
1. This Agency is presently planning to obtain the services of
a Government employee for work to be performed outside his normal
working hours. There is no anticipated or forseeable conflict be-
tween the two types of employment, and, although the employee is
presently receiving an annual salary, we wish to enlist him on either
a salary or per diem or fee basis. The question of conflict with the
various dual compensation statutes thus presents itself.
2. The present law has evolved from a series of statutes dating
back to 1839. The provisions are found in Sections 58, 62, 69 and 70
of Title 5 USCA and are to be construed in pars materia. Generally,
- unless expressly authorized bylaw ---they prohibit: compensation
for extra service (Section 69), additional pay, extra allowances,
or compensation to a
fficer or other person, whose salary, etc. is
fixed by law or other regulations (Section 70),holding a double
office (Section 62), avail4.bility of money for more than one salary
(its a further limitation of Section 62)(Section 58). There are some
`additional exceptions relating to retired military and naval personnel
Qxtr~ ~~
which are clearly defined in the statute and are to a
general discussion of the topic.
3. The interpretation and understanding of these statutes has
been a source of continual disagreement among both jurists and
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been resolved, the cases present a chain of conclusions which is
lacking in any unequiv*ca1 uniformity.
!i.. The purpose of these statutes and the conflicting interpre-
tation of them is well stated in Title 5 USDA Section 581j ote 3:
"The evil intended to be guarded against by these statutes
was not so much of office as it was additional pay
car compensation to an officer hooding but one office for per-
forming,?additional duties or the duties properly belonging to
another. If he actually and rightfully holds two commissions
and does the duties of two distinct offices he may, in so far
as this section is concerned, receive the salary which has been
appropr aced to each office. (1878) 16 Op. Atty. Gen.7; (1877)
15 Op. Atty. Gen.3O6.
"On the other hand it has been said that the Acts are
intended not only to destroy double or extra compensation,
but to prevent the holding of more than one office or employ-
ment under the Government by one person at the same time,
without explicit authority of law. ***** (1857) 9 Op. Atty.
Gen. 123;1
Alleading case on subject is U.S. v. Saunders, 120 US 128 (1887).
The question here arise from employment of an individual as a clerk
eom re
of a in the House of Representatives -,t the same time he
held the position of a clerk in the Office of the President. The
court held #, erir (in regard to Section 58, 69 and 70)1 4r y
"We are of the opinion that taking these sections alt?ither,
the purpose of this legislation was to prevent a person holding
an office or appointment, for which the law provides a definite
compensation by way of salary or otherwise, which is intended
to cover all the services which as such officer he may be called
upon to render, from receiving extra compensation, additional allow-
anceso or pay for other services which may be required of him,
either by Act of Congress or by order of the head of his depart-
ment, or in any other mode, added to or connected with the regular
duties of the place which he holds; but that they have no appli-
cation to the case of two distinct offices, places, or employ-
ments, each of which has its own duties and its own compensation,
which offices may both be held by one person at the same time.
In the latter case, he is, in the eye of the law, two officers,
or holds two places or appointments, the functions of which are
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he is in such ease entitled to recover the two compensations.
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The case was cited with approval by the Atty. Gen. in 19 Op. Atty.
Gen. 121 (1888) as thelatest authority ! t should be noted that
the decision was handed down prior to the passage of the Act of 1894
which has been construed by some judges as a distinct renunciation of
the theory of double office for which the Saunders case stood. The
Saunders case wascc.ted in Pack v. U.S.141 Court of Claims 414 (1906))
but the L t. Cn.u, j I . d , * rid 110,~ Gk.') at .')'.
"If the distinct offices -+ authorized by
law to be held by the same person, as in the tpt provided, then
the compensation attached to both may be paid to the incumbent,**"
The claim arose through employment by the Navy Department ai& at the
&w k4P.
same time ,= an appointment as a Notary Public. In reviewing
the pertinent statutes, the court-old thatt 3t would be difficult
to conceive of statutes more explicit for the purpose indicated,
I
but as they would not permit the holding by the same person, of two
distinct offices, places or employments, eajch with its own compensation
r ~ ' I i f u , . -~- C P let r d d 1140 5
and duties, the Congress passed the 1c t of July
31,
1894 ** which, so far has applied to this case,, reads.
RSection 2 No person who holds an office the salary or
annual compensation attached to which amounts to the sum of
two thousand five hundred dollars shall be appointed to or
hold any other office to which compensation is attached unless
specially authorized there to by law; but this shall not apply to
retired officers**.* h
This understanding of the Actiof 1$94 is 'supported by the Attorney
General 34 Op. Atty. Gen. L925J1
"There is little doubt that the Act of 1894 was enacted to
prevent an employee of the Government from he Lng tf~j positions
and receiving the salary provided for each by law."
In US v. Shea 55 382 (1932) t a ,District court accepted the
e
dro 1
kR-
interpretion of Section 58 as overcoming the previous of
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The court, however, did not find that employment as a court messWiger
at a fixed salary was incompatible to a positionnheld as court crier
at a per diem. In Woodwell v. B.S.)214 US 82 (1908)/the doctrine'
that one person may hold two separate and distinct offices was re-
affirmed but the additional compensation was prohibited by the extra
TeX t
allowance restrictions of Section70. lp engineer in the Treasure
Department performed his full time job during the same period that
he was providing engineering assistance to the Department of the Interior.
There was no appropriation provided for the engineer's services by
the Department of the Interior nor was there a personal contract
)
between the engineer and Interior. He had simply been designated
by Treasury to perform the additional services and the court found
that he was not called upon to render a service required by law for
which there was any fixed remuneration.
5. At this point it seems necessary to distinguish between
Sections 69 and 70 which prohibit payment of extra compensation and
allowancess and Sections 58 and 62 which restrict the use of money,
o the appointment of individuals for arty office carrying a fixed
salary. Under Sections69 and 70 the prhhibition only applie$
~o
to extra compensation for services incompatible with tgr
the compensation is fixed. Offices are incompatible
when the performance of the duties of one will prevent or conflict
with the performance of the duties of the other, or when the holding
of the two is contrary to the policy of the law. (Title 5 1 USCA)Section
V7#. 16 ,i4, ~
58,-Npte 3). Section 58yelatez only to the payment of double
ta, is
salaries,l a sal has been defined as
"**a fixed periodi compensation paid for services rendered;
a stated compensation, amounting to Lsc ;much by the year, month,
Ap~~`dif o a ~P 6 1 +: A-F J~44 10~a 41 duties -*&-
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or the rendering of services of a particular kind,more or less
~
definitely described n ?
~; i,ae 6 ? t st a $ ra Ga t
In Section 62, the prohibition explicitly applies to a holding of an
01.r
"officer In definitions a public station or employ-
ment "" by the appointment of -,die government. The term
embraces the idea of tenure, duration, emolument, and duties,'US b.
Hartwell Oass. 18686 Wall 38571% 18 L. Ed,8A. In summary,
it t sfe appears that the prohibitio4contained in 69 and 70
It W) rA
_, primarily the incompatibility of the two types of employ-
I's i1", Cat t cic
ment and in Sections 58 and 622tipon wether or not an additional office
and fixed salary is involved, Section 58 restricts the appropriation
of money for payment to any person receiving more than one salary
when the combined amount of such salary exceeds two thousand dollars
a year. Section 62 provides that no person holding an office with
a fixed salary of two thousand tive hundred dollars may be appointed
to or hold any other office with a fixed compensation. Section 69 and
70 restrict the payment of and receipt of extra compensation for work
already established by law,f f~ 1i - xa
6. It would thus appear that the prohibitions of Sections 69
and 70 would not apply to any work performed in a temporary capacity
by an individual who held a position at a fixed salary in an entirely
dissimilar line of endeavor. Nor would Sections 58 and 62 be restrictive
4rc
ifrwas o such insufficient tenure that it would not fulfill the
definition of an ttoffice", and would not carry any compensation at
a fixed or consistent rate which be considered afsalary. An
indication of the type of compensation required to escape the prohibitions
of Sections 58 and 62 is indicated in an opinion of the Comptroller
General to the Secretary of the Navy on December 29, 19b (B-80106).
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as a consultant on an intermittant basis. The appropriate statute
5 USCA59A} restricted the compensation to be paid a retired
military officer holding a civilian office. The Comptroller stated
"that Ore the nature of the tiesjpurely advisory, generally,
at infrequent intervals
perform XMIMAN and the compensation payable
therefor, is 'on a fee basis, as distinguished from a purely time basis,
the statue of the employee is not such as would confute the holding
of an office or position within contemplation of" the statute. Since
the officer in this situation was employed at a stipulated per diem
when acutally working, with proportionate deductions for Ib ss than a
full dayfs employment, it was held that he was paid on a time basis
as distinguished from a fee basis and was therefore subject to the
restrictions of the Act. This is somewhat more limited than the inter-
pretation given in the Shea case where additional compensation at
per diem was not considered dp ohibit by Section 58.
that there is sufficient diversity
in the interpretation of these statutes to warrant any reasonable
~tOAXX lb 74 terms of employment provided the add Iona won I& not Q;6 i d
T
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