B-86056 May 11, 1949

B-86056 May 11, 1949

Honable Kenneth McKellar, Chairman, Committee on Appropriations United States Senate

Honorable Clarence Cannon, Chairman, Committee on Appropriations House of Representatives

My dear Nesars. Chairmen:

I have your letter of May 10, 1949, in which you request my views on three questions pertaining to the proviso in the Interior Department Appropriation Act, 1949, 62 Stat. 1126 Public Law 841, 80th Congress, which stipulates that "after January 31, 1949, no part of any appropriation for the Bureau of Reclamation contained in this Act shall be used for the salaries and expenses of a person in any of the following positions in the Bureau of Reclamation, or of any person who performs the duties of any such position, who is not a qualified engineer with at least five years' engineering and administrative experience: (1) Commissioner of Reclamation (2) Assistant Commissioner of Reclamation." and (3) Regional Director of Reclamation have been unable to meet these qualifications, but have retained their positions serving without pay since January 31, 1949.

While the matters presented in your letter do not involve proposed payments or otherwise amount to a presentation as to which I am required by law to render an advance decision, in view of the provisions of 31 U.S.C. 53(b)--providing that, at the request of any committee of either House of Congress having jurisdiction over revenues, appropriations, or expenditures, the Comptroller General shall furnish such aid and information as the committee may request--the following comments are submitted. Your questions are quoted in order and discussed below:

"(1) Would the proviso prevent the use of funds other than those appropriated in the Interior Department Appropriation Act, 1949, for the payment of the salaries of these individuals?"

The proviso applies, by its terms, to "any appropriation for the Bueau of Reclamation contained in this Act Interior Department Appropriation Act, 1949." Hence, the question is considered as applying to supplemental or deficiency appropriations for the Bureau of Reclamation for the fiscal year 1949. The general rule followed by the accounting officers with respect to the applicability to supplemental or deficiency appropriations of restrictive language contained in the original appropriation act is that a supplemental or deficiency appropriation supplements the original appropriation, partakes of its nature and is available to the same extent and for the same period as the original appropriation in the absence of a clear indication otherwise. 4 Comp. Dec. 61; 20 Comp. Gen. 762; 25id. 61; 27 id. 96. Accordingly, assuming that the question pertains to a supplemental or deficiency appropriation act for the fiscal year 1949, which by its terms would merely add additional money to the appropriations contained in the regular annual appropriation act, it would appear that the restriction of the proviso here involved would be equally applicable to funds appropriated by acts so making supplemental or deficiency appropriations for the Bureau of Reclamation for the fiscal year 1949, even though the restrictive proviso in question is not specifically repeated in such supplemental or deficiency appropriation acts; unless, or course, the restrictive proviso be repealed in such acts.

"(2) Is the continued employment of the two persons above referred to the the Department of the Interior in contravention of that portion of section 665 of Title 31 of the United States Code which reads "Nor shall any department of any officer of the Government accept voluntary service for the Government or employ personal service in excess of that authorized by law?'"

For the purposes of this letter, it is assumed the present incumbents of the positions here involved were legally and properly appointed thereto prior to the date of enactment of the proviso in question and have continuously occupied the positions and rendered service therein to the present time. On that assumption, I have no doubt they are de jure employees of the United States. The pertinent proviso in the Interior Department Appropriation Act, 1949, does not by its terms vacate their positions, but merely renders certain appropriations in that act unavailable for the payment of salaries and expenses thereof; and obviously the Congress could later make an appropriation available for such salaries and expenses. The voluntary service referred to in 31 U.S.C. 665 is not necessarily synonymous with gratuitous service but contemplates service furnished on the initiative of the party rendering the same, without request from, or agreement with, the United States therefor. 7 Comp. Gen. 810. Accordingly, since, as pointed out above, the incumbents are holding the positions involved under valid appointments by the United States, the continued employment of said individuals in my opinion would not violate the quoted provision of 31 U.S.C. 665.

"(3) In the event the persons above referred to, who have continued in employment without receiving compensation therefor, should institute suit against the United States for compensation for their services what, in your opinion, consideration should be given to the decisions in the so-called Watson, Lovett and Dodd cases in determining the matter?"

While it is not possible, of course, for me to forecast the outcome of any suits that might be filed by the incumbents of the positions here involved, or the weight which would be given in such suits to the decisions of the Court of Claims and of the Supreme Court of the United States in the case of Robert Mores Lovett, st al. v. United States, 104 C. Cls. 557, 328 U.S. 303, it is my view that the majority opinion in the Court of Claims, and the concurring opinion of Mr. Justice Frankfurter in the Supreme Court, Well might lead to a conclusion that the suits were for the payment of upaid salaries, that the obligation to pay the salaries had not been destroyed and that the prohibition contained in the proviso in the Interior Department Appropriation Act of 1949 does not preclude the courts from rendering a judgement in favor of the incumbents for their unpaid compensation.

Of course, I express no view regarding the question whether the priviso herein considered should be continued or repealed as that is a question of legislative policy for determination by the Congress.

Sincerely yours,

LINDSAY C. WARREN Comptroller General of the United States.