In re Public Health Service Officer
| Decision Date | 22 March 1985 |
| Docket Number | B-214919 |
| Citation | 64 Comp.Gen. 395 |
| Parties | MATTER OF: PUBLIC HEALTH SERVICE OFFICER |
| Court | Comptroller General of the United States |
Public health service - commissioned personnel - dual employment an active duty public health service commissioned officer provided medical consulting services for which he was paid on an hourly basis under personal services contracts with the social security administration over a period of 13 years. The officer was not entitled to receive compensation for services rendered under this arrangement because as an officer of the public health service, a uniformed service, he occupied a status similar to that of a military officer and his performance of services for the govt. In a civilian capacity was imcompatible with his status as a commissioned officer. Also, receipt of additional pay for additional services by such an officer is an apparent violation of a statutory prohibition, 5 U.S.C. 5536. Public health service - commissioned personnel - dual employment compensation paid to an active duty commissioned officer of the public health service for medical consulting services he performed under personal services contracts with the social security administration constituted erroneous payments because he was entitled to receive only the pay and allowances that accrued to him as a member of the uniformed services. Is, therefore indebted to the govt., for the compensation paid to him for the services he rendered to the social security administration. Set-off - pay, etc. due military personnel - private employment earnings the debt of an officer of the public health service, occasioned by his receipt of erroneous pay from the social security administration, May be collected by administrative offset against his current public health service pay, or upon his separation or retirement from the service, offset May be affected against any final pay lump-sum leave payment and retired pay to which he May be entitled. The 10-year limitation on collection by setoff does not apply in this case where facts material to the govt.'s right to collect were not known by govt. Officials until 13 years after the erroneous payments began. Amounts collected are to be deposited into the general fund of the treasury as miscellaneous receipts. Statutes of limitation - debt collections - military personnel the government's claim against a member of the uniformed services for erroneous dual pay is not barred from court action if the facts material to the claim were discovered within less than 6 years of the date that an action is filed. Nor is the claim barred from consideration under the statute waiving the govt.'s claims for dual pay if not received in the general accounting office within 6 years when it was received in that office within 6 years of the last date of an unbroken period during which the individual occupied a status in which he was to receive compensation. Compensation - double - military personnel in civilian positions - DE facto status an active duty commissioned officer of the public health service who illegally performed personal services under contract for the social security administration is not entitled to retain compensation he received for the performance of those services on the basis of DE facto employment or quantum meruit, and his debt May not be waived in the absence of clear and convincing evidence that he performed the civilian govt. Services in good faith.
This action responds to a request for an advance decision regarding the legality of payment of compensation to an active duty commissioned officer of the public health service for work he performed as a federal civilian medical consultant for the social security administration.[1] we conclude that the officer's performance of compensated services for the social security administration was improper, and he is liable to the government for the compensation paid to him for those services.
This case concerns a physician who is a commissioned officer in the regular corps of the public health service. He has been on continuous active duty since 1959, and is currently assigned to the national institute on aging, national institutes of health, at the gerontology research center baltimore, Maryland. As a commissioned officer he receives the pay and allowances to which he is entitled as a member of the uniformed services. This officer also worked, under a series of personal service contracts, as a medical consultant to the office of disability programs, social security administration, from 1970 until July 1983, when an investigation of his dual employment was commenced by the office of the inspector general of the department of health and human services.[2]
Medical consultants working for the social security administration under personal services contracts, as this officer was, are paid by the hour for hours spent working at the social security administration facility. The number of hours a consultant works and for which he or she is to be paid is documented by sign-in and sign-out sheets maintained by the office of the project officer who is responsible for medical consultant contracts. Generally, the officer in this case performed his consulting services for the social security administration outside his normal hours of duty at the gerontology research center. Those hours were from 8:30 a.m. Until 5 p.m. However, it is stated that based on information obtained from agency time records, there were "many occasions" when he signed in for work at the social security administration prior to 5:30 p.m., which is said to be the earliest time, after his regular duty hours, in which he reasonably could have traveled from his duty station at the gerontology research center to the site where he performed his contract services. These records would therefore, seem to indicate that the officer has periodically received pay for services performed under his contract with the social security administration for the same time he was to be performing his duties as an officer of the public health service at the gerontology research center.
Regulations of the department of health and human services require that employees (including public health service commissioned officers) obtain administrative approval, in writing, prior to engaging in professional and consultative services outside of their regular duties (45 C.F.R. Sec. 73.735-708). However the record shows that this officer did not seek or receive approval from the national institute on aging or the national institutes of health to engage in the consultant services he performed for the social security administration, although he did request and obtain administrative approval for other outside professional activities.
The officer states that he cannot recall that such formalized administrative procedures for accepting outside professional commitments were in effect in 1970 when he began working under these contracts, and that when he later became aware of the advance administrative approval requirement, he did not deem it necessary to seek approval for activity with which he had been involved for so long. He states further that to the best of his knowledge he has never received a copy of the department of health and human services standards of conduct, although he has seen references to them in public health service circulars. In spite of the fact that he did obtain the required administrative approval for other outside professional activities, he states that he never informed anyone at the gerontology research center of his consulting services for the social security administration because he considered that his "personal business, " which he does not discuss with his professional associates.
Certain of this officer's personnel records (curriculum vitae) that he filed in connection with his most recent request for renewal of his social security administration contract land with the gerontology research center) incorrectly indicate that he was employed by the department of medicine, baltimore city hospitals, not by the public health service. Social security administration officials responsible for approving his contracts with that agency have stated that they were not aware that he was a government employee. It appears that the contract officers were misinformed or misled regarding his employment in a government position due to his omission or misrepresentation concerning his status in the public health service.
Between October 1978 and June 1983 while he was on active duty as a public health service commissioned officer, this officer received a total of $77, 704 for medical consulting services he performed under contract for the social security administration. The amount he received for contract services performed between 1970 and 1978 has not yet been determined because necessary records, now filed at the federal records center, have not yet been obtained by the department of health and human services.
Questions presented
In connection with the facts and circumstances of this case, the department of health and human services has asked the following questions:
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