Sidebilder
PDF
ePub
[ocr errors]

SIMULTANEOUS FEDERAL AND PRIVATE EMPLOYMENT

Opinion, November 19, 1941

FEDERAL EMPLOYEES SIMULTANEOUS PRIVATE EMPLOYMENT-SUPPLEMENTAL COM

PENSATION.

There is no express statutory prohibition against the holding of a Government position simultaneously with a position in private industry. The prohibition in the act of March 3, 1917 (39 Stat. 1106, 5 U. S. C. sec. 66), against the receipt of supplemental salary by a Government employee in connection with his official duties from any source other than the Government of the United States, with certain exceptions as to contributed funds, is applicable only when the salary from the private source is paid for duties which are performed pursuant to Federal employment.

FEDERAL EMPLOYEES DUAL EMPLOYMENT COMPENSATION.

The prohibition in section 1765, Revised Statutes (5 U. S. C. sec. 70), against dual employment is only against receiving extra or double compensation out of United States funds. In the absence of specific reason to the contrary, there is nothing to prevent an employee of the United States receiving compensation from outside sources and at the same time his salary from the Government.

FEDERAL EMPLOYEES-DUAL EMPLOYMENT-INCONSISTENCY.

The questions of conflict of duties of dual employments or of diminished efficiency, are ones of administration which do not affect the payment of salary so long as employment by the Government exists.

MARGOLD, Solicitor:

You [Secretary of the Interior] have requested my advice on the question whether an appointee to a proposed office to be established pursuant to the President's letter of November 5, 1941, in connection with solid fuels coordination for national defense, may accept appointment and pay from the Federal Government, and at the same time continue to occupy, and accept pay in, a position in private industry. It is my opinion that he legally may do so.

There appears to be no express statutory prohibition against the holding of a Government position simultaneously with a position in private employment.

The receipt of supplemental salary by a Government official or employee in connection with his services as such official or employee from any source other than the Government of the United States, with certain exceptions as to contributed funds, is prohibited by the act of March 3, 1917 (39 Stat. 1106, 5 U. S. C. sec. 66). The prohibition of this act is not applicable, unless it can be shown that the salary from the private source is paid for duties which are performed pursuant to Federal employment. Cf. 31 Op. Atty. Gen. 470 (1919).

Apart from the question of double payment for the same work, there is the question of whether the holding of a private and a public posi

1

November 19, 1941

tion involves any inconsistency. This has been answered in an opinion of the Comptroller of the Treasury, on May 25, 1905 (11 Comp. Dec. 702), dealing with section 1765 Revised Statutes, (5 U. S. C. sec. 70).1 In that opinion the Comptroller declared:

The prohibition in that section is only against receiving extra or double compensation out of United States funds, for in the absence of any specific reason to the contrary, there is nothing to prevent an officer or employee of the United States receiving compensation from outside sources and at the same time his salary from the Government. The question of conflict of duties or of diminished efficiency is one of administration and does not affect the payment of his salary so long as the employment by the Government exists. [Italics supplied.]

In United States v. Saunders, 120 U. S. 126, 129 (1887), it was held, in construing this section, that it has "no application to the case of two distinct offices, places, or employments, 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 separate and distinct, and, according to all the decisions, he is in such case entitled to recover the two compensations."

Dual employment in the Federal Service of Federal civil officers is prohibited by the act of July 31, 1894 (28 Stat. 205, as amended, 5 U. S. C. sec. 62).

The holding of State, Territorial, or municipal office by Federal civil officers is prohibited by Executive Order No. 9, approved January 17, 1873.

The act of July 31, 1894, supra, concerning dual employment in the Federal service, and the Executive Order of January 17, 1873, supra, clearly do not apply to a person holding a position as a Federal officer or employee who is also privately employed.

It is my conclusion therefore that there is no statutory prohibition or other legal objection to employing a person as a Federal officer or employee while he continues to hold a position in private industry and receive a salary therefor. An employee may accept appointment to perform duties in connection with solid fuels coordination for national defense, therefore, and continue to hold his private position and accept the salary for it.

1 This statute provides: "No officer in any branch of the public service, or any other person whose salary, pay or emoluments are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or for any other service or duty whatever, unless the same is authorized by law, and the appropriation therefor explicitly states that it is for such additional pay, extra allowance, or compensation."

593212-45- -28

S. J. GROVES AND SONS COMPANY

Decided December 1, 1941

CONTRACTS-MODIFICATION-UNKNOWN CONDITIONS OF AN UNUSUAL NATURE. During excavation in a borrow pit the contractor under a contract for the construction of a dam encountered rhyolite, a substance which, after extended examination by the Government engineers, was rejected as unsuitable for the earthfill required by the contract specifications, thereby necessitating the utilization of borrow pits farther removed from the construction site, with resultant increased costs. Geological data available prior to the execution of the contract had indicated with certainty to both the Government and the contractor that the area in question would yield adequate suitable material. Held, that the occurrence of rhyolite constituted an "unknown" condition “of an unusual nature materially differing from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the plans and specifications," within the meaning of article 4 of the contract, and that the contract therefore should be modified to provide for payment of the increased costs to the contractor.

BURLEW, Acting Secretary:

On October 5, 1936, a contract was entered into between S. J. Groves and Sons Company and the United States for the construction of Grassy Lake Dam, Upper Snake River project, Idaho, under items 1 to 55, inclusive, of the Schedule of Specifications No. 693. All work under the contract was satisfactorily completed on October 14, 1939. The contractor presented claims for additional compensation under the contract, the basis of which will be considered later in this finding, and on March 15, 1941, the contracting officer issued findings of fact denying the claims in their entirety. On March 21, 1941, an appeal was taken to the Secretary from this decision by the contractor, and on April 21, 1941, a supplement to the appeal was filed which includes a sworn statement by F. M. Groves, President of the contracting company, and a joint affidavit of Carleton Cravens, Superintendent of the contractor, and Henry Lobnitz, a partner in the Lobnitz Brothers Company, subcontractor for the earthwork at Grassy Lake Dam.

The contractor bases its claim for additional compensation upon two grounds: (1) that changed subsurface conditions entailed extra costs amounting to $28,057.70, and (2) that the Government misrepresented the length of working season to the damage of the contractor in the sum of $70,000.

Upon the receipt of the evidence submitted by the contractor in its appeal and supplement thereto, copies thereof were sent to the contracting officer who, in turn, sent the information on May 2, 1941, to Senior Engineer H. A. Parker, Construction Engineer of the Grassy Lake Dam, and to I. Donald Jerman, Resident Engineer and Acting Construction Engineer on the work, requesting that they examine the

December 1, 1941

matters set forth in the appeal and affidavits and submit their comments with respect thereto. The two engineers have submitted their reports and in many respects they substantiate the statements and claims made by the contractor and its several engineers.

On September 5, 1941, the contracting officer submitted, in a letter addressed to the Secretary of the Interior, a further report which is in fact a reconsideration of his original findings of fact as will appear from the letter of the Commissioner of the Bureau of Reclamation, dated September 20, 1941, in which he stated:

* As will appear from his report, the Chief Engineer as contracting officer, has reexamined the contractor's claim, has reconsidered his prior findings, and has concluded that the contractor is entitled to an adjustment in the sum of $23,615.70.

With respect to the claim of the contractor for damage on account of misrepresentation of the length of the working season in the amount of $70,000, the contracting officer in his reconsideration states that in his opinion the claim as to this item is not well founded and that the finding and decision originally rendered should stand. A careful examination of the original findings of fact and the contractor's claims with respect thereto, having in mind all of the circumstances and the provisions of the contract, including information furnished to bidders, would appear to indicate no error on the part of the contracting officer in this part of his finding, and no new evidence having been presented which is persuasive in support of the contractor's claim, his appeal as to that item accordingly is dismssed.

There remains the question of the contractor's right to recover additional compensation under article 4 of the contract, which provides:

ARTICLE 4. Changed conditions.-Should the contractor encounter, or the Government discover, during the progress of the work subsurface and (or) latent conditions at the site materially differing from those shown on the drawings or indicated in the specifications, or unknown conditions of an unusual nature differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the plans and specifications, the attention of the contracting officer shall be called immediately to such conditions before they are disturbed. The contracting officer shall thereupon promptly investigate the conditions, and if he finds that they do so materially differ the contract shall, with the written approval of the head of the department or his duly authorized representative, be modified to provide for any increase or decrease of cost and (or) difference in time resulting from such conditions.

The claim of the contractor with respect to this item may be summarized briefly as follows: It was expected by the contractor, by the geologist who submitted the geological data, and by the Government engineers, as a consequence of their several examinations of the test pit materials furnished and after an examination of the locus, that

borrow pit No. 1 would furnish adequate material for all of the earthfill required to be performed under this contract. Construction Engineer Parker states in his letter of May 7, 1941:

At the time prospective bidders were looking over the work, all of us, including Messrs. Savage and Berkey, confidently expected that the ridge on which test pits 7, 8 and 28 to 32 inclusive were located would yield sufficient material to complete the dam. * * If I were to testify on the matter, I would

admit that the contractor was advised that we expected the ridge in question would yield substantially all the required borrow material.

*

Assistant Geologist I. M. Murphy, who was in charge of the exploratory work at the dam site, furnished the following report:

It is believed that deposits of materials suitable for earthfill in amounts in excess of requirements have been exposed by exploration. The average length of haul from the dam site will be about a half a mile.

It developed, however, during the course of construction and after excavation had been made to a depth of 12 feet in the borrow pit, that the expectation as to the amount of usable earthfill which the pit would provide could not be realized. At that level a formation called rhyolite was encountered which, after extended examination by the Government engineers, was rejected as being unsuitable for the embankment fill.

It thereupon became necessary to utilize borrow pits further removed from the scene of operation with the resultant extra costs as set forth by the claimant.

The following excerpts from the findings of the contracting officer upon reconsideration are pertinent:

The existence of rhyolite under the surface of the borrow pit No. 1 area was unknown to the Government and the contractor. * * After a review of

all the facts it must be concluded that presence of the rhyolite in the borrow area was an unknown condition.

Drawing 42-D-474, attached to the specifications, shows the locations and logs of drill holes and test pits. Only one borrow area was explored. On the basis of the test pits that were dug in this area (referred to in the findings as borrow pit No. 1), it was believed that substantially all the required borrow material could be obtained from this location.

*

Drawing 42-D-474 shows the logs of 18 borrow area test pits. These pits are located south and east of the dam in the general area referred to in the findings and appeal as borrow pit No. 1. These pits, were carried down only to shallow depths, the deepest being 20 feet. None disclosed the presence of rhyolite, and the record indicates that these explorations were deemed sufficient to warrant the belief that sufficient suitable materials could be obtained from the prospected area. But, as quoted from page 16 of the findings of fact:

"The contractor's statement, in the appeal (exhibit 3), that rhyolite was encountered at depth of about 12 feet in borrow pit No. 1 and was also encountered in borrow pits Nos. 2 and 3, and that this rhyolite was rejected as being unsuitable for embankment is in accordance with the facts."

« ForrigeFortsett »