for unusual flexibility in rates of pay for the types of services concerned. In keeping with the purpose of these statutory provisions, the following guides are necessarily general and do not attempt to provide a specific formula for every

case.

In negotiating a rate of compensation with a person whose services as an expert or consultant are desired, an agency should consider a number of factors. The principal factors are:

(a) The value of the assignment to the Government in terms of normal salary levels as represented by pay schedules of the Classification Act. This requires an estimate of the grade in which the duties would be placed if under the Classification Act. Because of the nature of the assignments and the qualifications required, few if any positions properly established as those of experts and consultants would be of less than grade GS-13 value,

(b) The stature of the individual in his field and the extent to which his unique personal qualifications increase the value of his services.

(c) Any unusually burdensome and otherwise uncompensated aspects of his assignment, such as a necessity for frequently working more than 8 hours a day without pay beyond the regular daily rate.

(d) The compensation he receives in his regular occupation.

(e) The rate paid by any other Federal agency for his services as an expert or consultant, together with similarities and differences in the services required by the two agencies and the programs and circumstances under which they are rendered.

(f) Whether the expert or consultant continues to receive full compensation in his regular occupation.

(g) Whether any nonmonetary rewards figure in the assignment.

In determining the weight to be given each of these factors in any instance, the primary consideration is the general objective of establishing a rate of compensation that is fair to the individual and to the Government and consistent with rates of other experts and consultants on an agency's rolls.

As a general rule, it is desirable to fix the daily rates of pay for experts and consultants in multiples of $5; that is, at such rates as $30, $35, $40, or $45 a day. Use of odd daily rates is often difficult to explain to the individuals concerned and generally serves no particular purpose.

Experts and consultants employed temporarily should be paid only for the hours they are actually on duty, with periods of less than 8 hours in a day compensated at the rate of one-eighth of a day's pay for each hour of duty. This is the method of computing pay of other temporary employees, both full time and part time.

The situation of experts and consultants employed intermittently is in contrast to the continuity of employment during a period covered by a temporary appointment and the ability of the temporary employee to arrange his affairs accordingly. It is appropriate in the case of experts and consultants employed intermittently to pay the full daily rate for each day on which services are performed which effectively interrupt the individual's ordinary pursuits for substantially the entire day. This is the normal condition. It is true, for example, whenever the time the individual spends at his place of duty and in traveling occupies most of the morning and afternoon, or when the duration of an assignment cannot be determined in advance and does not permit the individual to plan other activities during the day. A full day's pay is not warranted, however, when an individual attends, for example, a brief afternoon meeting, of a duration known in advance, in the city in which he lives, and can follow his usual business or profession during the rest of the day. In such a case, a consultant or expert should be paid for a period, e. g., one-half day, approximating the number of hours he is kept from his regular occupation.

As a general rule, an expert or consultant employed intermittently does not receive pay for days on which no services are performed but which are spent in traveling between his home or regular place of business and his place of Federal employment. Pay for such days can be justified by unusual circumstances in individual cases, as agreed upon at the time of appointment.

A ruling of the Comptroller General permits agencies to provide in contracts that experts and consultants, under certain conditions, will be paid for holidays not worked. Because experts and consultants appointed under section 15 of Public Law 600 are not regular employees for purposes of the 1938 holiday pay resolution, and because temporary employees who are not appointed under contracts are not eligible for such benefits, contracts with experts and consultants should not provide pay for holidays on which no work is performed.

B. Travel expenses

Section 5, Public Law 600, authorizes payment of travel expenses for experts and consultants employed intermittently and compensated on a per diem whenactually-employed basis, whenever they are away from their homes or regular places of business, including per diem in lieu of subsistence while at their place of Federal employment, in accordance with standard Government regulations and general statutory authorities.' Experts or consultants employed temporarily are in the same status as far as travel expenses are concerned as other civilian employees of the Government (27 Comp. Gen. 695).

Thus, special problems of travel expenses for experts and consultants occur only in connection with those appointed intermittently. When intermittently employed experts and consultants perform only occasional or irregular service, it is logical that they should receive the full benefits granted by Congress. Agencies should provide administratively, however, that whenever such employment becomes substantially continuous, the expert or consultant concerned becomes subject to general agency regulations on such matters as reduction in rate of per diem during extended duty at one location.

IV. TOURS OF DUTY AND LEAVE RIGHTS

Experts and consultants who are appointed on an "intermittent" or other basis for which no regular tour of duty is contemplated are not entitled to annual and sick leave benefits.

Experts and consultants who are appointed on any basis which provides for a regular tour of duty, either full-time or part-time are entitled to earn annual and sick leave pursuant to the provisions of the Annual and Sick Leave Act of 1951. However, with respect to annual leave, entitlement thereto occurs only after the employee has completed 90 days of continuous service.

Therefore, in determining whether an individual is to be entitled to earn annual and sick leave benefits, the controlling factor is whether the person is engaged under an appointment which establishes, or contemplates the establishment of a regular tour of duty. In view of this, it is important that careful consideration be given to the circumstances and conditions under which service will be rendered and that a determination be made prior to the appointment, whenever possible, which will clearly indicate whether a regular tour of duty is being prescribed. It is also advisable that the appointment document be marked to indicate whether the individual is entitled to, or excluded from, the annual and sick leave benefits.

V. DUAL COMPENSATION AND DUAL EMPLOYMENT RESTRICTIONS

There are five provisions of law regarding dual compensation and dual employment which must be considered in relation to the temporary or intermittent employment of experts and consultants. They are taken up in chronological order.

A. Sections 1764 and 1765 of the Revised Statutes (5 U. S. C. 69 and 70)

"No allowance or compensation shall be made to any officer or clerk, by reason of the discharge of duties which belong to any other officer or clerk in the same or any other department; and no allowance or compensation shall be made for any extra services whatever, which any officer or clerk may be required to perform, unless expressly authorized by law."

"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."

These sections were enacted to prevent an employee from receiving extra compensation, allowances, or pay for additional services or duties required of him in the position he already holds if the law provides a definite compensation for that position. However, they have no application to the holding of two distinct offices or employments, each of which has its own duties and its own compensation fixed by law or regulation, unless the offices are incompatible. It

1 This section also makes special provision for transportation and per diem of persons serving without compensation or at $1 per annum.

appears that two offices or positions would not be incompatible if neither one requires the full-time services of the incumbent. Otherwise, the question of compatibility seems to depend on the nature of the duties to be performed. No criteria on this question were found.

B. Section 2, act of July 31, 1894 (5 U. S. C. 62)

"No person who holds an office the salary or annual compensation attached to which amounts to the sum of $2,500 shall be appointed to or hold any other office to which compensation is attached unless specially authorized thereto by law; but this shall not apply to retired officers of the Army, Navy, Marine Corps, or Coast Guard whenever they may be elected to public office or whenever the President shall appoint them to office, by and with the advice and consent of the Senate. Retired enlisted men of the Army, Navy, Marine Corps, or Coast Guard retired for any cause, and retired officers of the Army, Navy, Marine Corps, or Coast Guard who have been retired for injuries received in battle or for injuries or incapacity incurred in line of duty shall not, within the meaning of this section, be construed to hold or to have held an office during such retirement." The Comptroller General has ruled that this statute does not apply if— (1) The compensation of neither position amounts to $2,500;

(2) The position regularly occupied ceases to exist insofar as this law is concerned; or

(3) The second position is not an "office to which compensation is attached."

Situation (1) is self-explanatory.

Situation (2) may exist where an employee is on involuntary furlough from his permanent position. An administrative or involuntary furlough is usually tantamount to abolishment of the permanent position. Therefore, the employee may accept temporary employment while on involuntary furlough, regardless of the amount of compensation attached to the permanent position, because he does not, within the meaning of the statute, hold two positions. However, this rule does not apply if the employee is on voluntary furlough or leave of absence without pay, when funds continue to be available, nor does it apply if an employee accepts permanent employment during a period of involuntary furlough.

In regard to situation (3), the Comptroller General has ruled that neither of the following is employment in an office to which compensation is attached, within the meaning of the statute:

(a) Employment as an expert or consultant, with compensation at a per diem rate when actually employed.

(b) Temporary employment by a Government commission of temporary character because of a specific task to be performed by the commission. C. Section 6, act of May 10, 1916, as amended (5 U. S. C. 58, 59)

"Unless otherwise specially 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, but this shall not apply to retired officers or enlisted men of the Army, Navy, Marine Corps, or Coast Guard; or to officers and enlisted men of the Organized Militia and Naval Militia in the several States, Territories, and the District of Columbia ***"

This restriction is not for application to part-time or intermittent employees performing services for different Government agencies or in different branches of the same executive department, on different days or at different times, if payment is on a per diem or fee basis for time actually employed.

However, it does apply to temporary employment which is full time and concurrent with other employment for which compensation is received if the combined rate of payments, computed on an annual basis, exceeds $2,000. If temporary employment is taken by an employee who is on furlough or withoutpay leave from another position, the statute does not apply.

D. Section 212, act of June 30, 1932, as amended (5 U. S. C. 59a)

"(a) After the date of the enactment of this Act, no person holding a civilian office or position, appointive or elective, under the United States Government or the municipal government of the District of Columbia or under any corporation, the majority of the stock of which is owned by the United States, shall be entitled, during the period of such incumbency, to retired pay from the United States for or on account of services as a commissioned officer in any of the services mentioned in the Pay Adjustment Act of 1922 (U. S. C., title 37), at a rate in excess of an amount which, when combined with the annual rate of

compensation from such civilian office or position, makes the total rate from both sources more than $3,000; and when the retired pay amounts to or exceeds the rate of $3,000 per annum such person shall be entitled to the pay of the civilian office or position or the retired pay, whichever he may elect. As used in this section, the term 'retired pay' shall be construed to include credits for all service that lawfully may enter into the computation thereof.

"(b) This section shall not apply to any person whose retired pay, plus civilian pay, amounts to less than $3,000: Provided, That this section shall not apply to regular or emergency commissioned officers retired for disability incurred in combat with an enemy of the United States or for disabilities resulting from an explosion of an instrumentality of war in line of duty during an enlistment or employment as provided in Veterans Regulation Numbered 1 (a), part I, paragraph I."

The Comptroller General has ruled that the provisions of this section are applicable, in the case of a retired military officer intermittently employed as a consultant on a time basis, only on the days he receives compensation for his civilian position, and on all other days, including Saturdays, Sundays, and holidays, when he is not performing civilian duties he is entitled to retired pay. However, if the civilian employment is on a full-time basis, even though temporary, retired pay is affected for the entire period of employment. If the retired pay is less than $3,000, it is the retired pay that is reduced or stopped; pay for the civilian service is not affected. However, if the retired pay equals or exceeds the rate of $3,000 per annum, the employee may choose which he will receive, retired pay or civilian salary.

VI. CONFLICT OF INTEREST RESTRICTIONS

There are specific statutory provisions of the United States Code which affect Federal employees or former Federal employees in their conduct of private business activities These statutes commonly referred to as the conflict-of-interest statutes are aimed at protecting the public interest by prohibiting Federal officers and employees from engaging in private activities which are incompatible with the duties and responsibilities of public office. Penalties for violation include both fine and imprisonment. Except as provided by these statutes there is no legal prohibition against the conduct of private business activities for compensation by an officer or employee of the United States. Three types of general prohibitory statutes apply to Federal employees: A. Contracts

One group has reference to Government contracts. Title 18, United States Code, section 216, prohibits any officer or agent of the United States from receiving any consideration for procuring any contract with the United States; title 18, United States Code, section 434, prohibits anyone who is an officer or agent of any private Government contractor from acting on behalf of the United States in transacting business with such contractor. Title 18, United States Code, section 281, prohibits any officer of the United States from receiving any compensation for any services rendered by himself or another in relation to any contract in which the United States is a party or indirectly interested, before any department, court-martial, bureau officer, or any civil, military, or naval commission whatever.

B. Claims

A second type of general prohibitory statute deals with the prosecution of claims in which the United States has an interest. Title 18, United States Code, section 283, prohibits any officer of any executive department or agency from acting as agent or attorney in the prosecution of any claim against the United States. Title 5, United States Code, section 99, continues this prohibition against employees of the executive departments for 2 years after the officer or employee has relinquished his public position. It has been ruled that neither of these sections is applicable to Army or Navy officers who do not hold positions in the Army or Navy Departments. However, all officers of the United States, except retired Army, Navy, Marine, and Coast Guard officers, are subject to the further broad prohibition of title 18, United States Code, section 281, quoted above, which is applicable to "any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter or thing in which the United States is a party or directly or indirectly interested," before any executive agency of the Government.

C. Pay

A third type is title 18, United States Code, section 1914, which reads as follows: "Whoever, being a Government official or employee, receives any salary in connection with his services as such an official or employee from any source other than the Government of the United States, except as may be contributed out of the treasury of any State, county, or municipality; or

"Whoever, whether a person, association, or corporation, makes any contribution to, or in any way supplements the salary of, any Government official or employee for the services performed by him for the Government of the United States

"Shall be fined not more than $1,000 or imprisoned not more than 6 months, or both."

The statute clearly covers a salary received from a private person or source if it is paid or received as compensation or part compensation for the services rendered to the Government. It has also been held to apply if the officer or employee renders the same or similar services to both the Government and a private person (31 Op. A. G. 470). It does not, however, prohibit payment for services rendered exclusively to private persons or organizations and which have no connection with the services rendered to the Government (38 Op. 294; 39 id. 501).

Any individual who is performing personal services for the United States, under some form of appointment, is an officer or employee within the statutory terminology. This includes all permanent, temporary, part-time, and intermittent personnel during the period of their service, as well as experts and consultants appointed on a paid or without compensation basis (40 Ops. Atty. Gen. 289 (1943); 40 ops. Atty Gen. 294 (1943)).

D. Conclusion

Persons employed in Government through regular civil-service procedures are bound to relinquish any conflicting personal interests. Broadly speaking, the same restrictions apply to persons whose services are secured for temporary periods in the capacity of experts or consultants. However, by specific legal authority Congress has provided for the employment of experts and consultants in certain instances with partial exemption from the conflict-of-interest statutes. None of these exemptions is unlimited and the mere fact that an appointment is made which carries with it an exemption does not mean that the conflict-ofinterest statutes can be ignored in their varied aspects and applications. In each case, the propriety of the appointment must be examined from the standpoint of the public good as well as the private business association in relation to the nature of work or services to be performed.

. In securing the services of experts and consultants, appointing officers have an obligation both to the Government and to the individual to determine whether his private interests will conflict with the responsibilities of his Federal position. In all cases where there is an actual or probable conflict, the appointment should not be made. If there is no actual conflict of interests nor a substantialy possibility of such a conflict, continued participation of the individual in the management of the business or continued receipt of compensation from any source other than the Government would not affect the appointment of the individual unless there are statutory restrictions applicable to the particular Federal position. To protect the interests of persons who agree to serve the Federal Government in an expert or consultant capacity, it is recommended that each agency clear doubtful cases with its legal staff.

VII. POLITICAL ACTIVITY RESTRICTIONS

All employees in the executive branch of the Federal Government, including persons employed as experts or consultants, are subject to the political activity restrictions of section 9 (a) of the Hatch Act (5 U. S. C. 1181). Experts and consultants who have a full-time position are subject to these restrictions the same as any other regular employee of the department or agency, even though they may be classed as temporary. Experts and consultants who are employed on a part-time and intermittent basis are subject to these political activity restrictions while on an active-duty status. This covers the full 24 hours of any day that the individual performs some services for the Government rather than just the actual hours of employment.

The Hatch Act prohibits the use of official authority or influence to interfere with or affect the results of an election and active participation in political