A-64663, FEBRUARY 18, 1936, 15 COMP. GEN. 710

A-64663, FEBRUARY 18, 1936, 15 COMP. GEN. 710

OFFICERS AND EMPLOYEES - INVOLUNTARY SEPARATION - APPOINTMENTS IN EMERGENCY AGENCIES AT INCREASED SALARIES THE PROVISIONS OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, PROHIBITING SALARY INCREASES UPON TRANSFER TO POSITIONS PAID FROM EMERGENCY FUNDS, EXCEPT UPON APPROVAL OF THE PRESIDENT, ARE NOT APPLICABLE TO APPOINTMENTS AFTER RESIGNATION FROM ANOTHER FEDERAL AGENCY OR ESTABLISHMENT WHERE THE RESIGNATION IS SUBSEQUENT TO RECEIPT OF NOTICE AND IN ANTICIPATION OF INVOLUNTARY SEPARATION. APPROPRIATE EXPLANATORY REMARKS SHOULD APPEAR ON PAY ROLL OR OTHERWISE IN THE ACCOUNTS IN SUCH CASES.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR, RESETTLEMENT ADMINISTRATION, FEBRUARY 18, 1936:

THERE WAS RECEIVED YOUR LETTER OF FEBRUARY 3, 1936, AS FOLLOWS:

IN A DECISION OF SEPTEMBER 24, 1935, A-64663, INTERPRETING EXECUTIVE ORDER 7070, IT WAS STATED THAT: "THE EXECUTIVE ORDER DOES NOT APPLY TO CASES IN WHICH THE SEPARATION FROM THE FORMER SERVICE WAS IN FACT INVOLUNTARY OR WAS DUE TO THE EXPIRATION OF THE PERIOD OF THE APPOINTMENT UNDER WHICH SERVING AT THE TIME OF OR PRIOR TO THE TRANSFER OR NEW APPOINTMENT.'

IN ACCORDANCE WITH THIS STATEMENT, IT IS THE UNDERSTANDING OF THIS ADMINISTRATION THAT AN APPOINTMENT AT AN INCREASED SALARY MADE ON OR SUBSEQUENT TO THE OFFICIAL EXPIRATION OF AN AGENCY OF THE GOVERNMENT IS NOT INHIBITED BY THE EXECUTIVE ORDER. THE FOLLOWING SITUATIONS, HOWEVER, HAVE ARISEN, IN WHICH IT IS DEEMED ADVISABLE TO REQUEST YOUR OPINION:

(A) A FOREMAN OF A CIVILIAN CONSERVATION CORPS CAMP WAS NOTIFIED BY HIS SUPERIOR OFFICER ON OR ABOUT SEPTEMBER 25, 1935, THAT THE CAMP AT WHICH HE WAS SERVING WAS TO BE ABANDONED WITHIN 30 DAYS AND WAS ADVISED BY HIS SUPERIOR TO SEEK NEW EMPLOYMENT AT ONCE, PREFERABLY WITH THE RESETTLEMENT ADMINISTRATION. ON OCTOBER 4, 1935, THE FOREMAN TENDERED HIS RESIGNATION, WHICH WAS ACCEPTED. ON OCTOBER 5, 1935, THE FOREMAN TOOK THE OATH OF OFFICE WITH THE RESETTLEMENT ADMINISTRATION. HIS DUTIES WITH THE RESETTLEMENT ADMINISTRATION INVOLVED AN INCREASE OF RESPONSIBILITY, AND IT WAS DESIRED AT THE TIME OF TRANSFER TO INCREASE HIS SALARY FROM $2,040 TO $2,600 PER ANNUM.

YOUR OPINION IS RESPECTFULLY REQUESTED AS TO WHETHER THIS APPOINTMENT WITH THE RESETTLEMENT ADMINISTRATION FALLS WITHIN THE TERMS OF THE EXECUTIVE ORDER, AND IF IT DOES NOT, WHAT DOCUMENTS, IF ANY, MUST BE SUBMITTED WITH THE FIRST RESETTLEMENT ADMINISTRATION PAY ROLL ON WHICH THE FOREMAN'S NAME APPEARS, TO JUSTIFY THE INCREASE IN SALARY. IF SUCH INCREASE CANNOT BE MADE AT THE TIME OF APPOINTMENT WITH THE RESETTLEMENT ADMINISTRATION, YOUR OPINION IS REQUESTED AS TO WHETHER IT MAY BE MADE ON OR SUBSEQUENT TO THE DATE UPON WHICH THE CIVILIAN CONSERVATION CORPS CAMP WAS ACTUALLY ABANDONED, AT WHICH TIME THE FIRST APPOINTMENT WOULD HAVE BEEN INVOLUNTARILY TERMINATED.

(B) AN ATTORNEY EMPLOYED BY THE NATIONAL RECOVERY ADMINISTRATION WAS FORMALLY NOTIFIED IN WRITING BY HIS SUPERIOR, ON JANUARY 7, 1936, THAT HIS APPOINTMENT WOULD BE TERMINATED UPON FEBRUARY 20, 1936, AND THAT THIS DATE INCLUDED HIS ACCRUED LEAVE, BEGINNING JANUARY 24, 1936, WHICH MIGHT BE TAKEN UPON PROPER APPLICATION THEREFOR. ON JANUARY 22, THE ATTORNEY MADE HIS FIRST CONTRACT WITH THE RESETTLEMENT ADMINISTRATION, WITH A VIEW TO OBTAINING AN APPOINTMENT THERE. THE ATTORNEY ENTERED UPON A LEAVE STATUS ON JANUARY 24, 1936, AND WAS THEN APPOINTED A REGIONAL ATTORNEY WITH THE RESETTLEMENT ADMINISTRATION, THE APPOINTMENT TO BE EFFECTIVE UPON ARRIVAL AT HIS DUTY STATION IN THE FIELD. UPON ARRIVAL AT THE DUTY STATION, PRIOR TO FEBRUARY 20, 1936, THE ATTORNEY TENDERED HIS RESIGNATION TO THE NATIONAL RECOVERY ADMINISTRATION EFFECTIVE AS OF THE DATE OF ARRIVAL, AND AT THE SAME TIME TOOK THE OATH OF OFFICE FOR HIS NEW APPOINTMENT.

YOUR OPINION IS REQUESTED WHETHER AN INCREASE OF SALARY COULD BE MADE EFFECTIVE AS OF THE DATE OF ENTRANCE UPON DUTY WITH THE RESETTLEMENT ADMINISTRATION, OR AS OF FEBRUARY 20, 1936, THE DATE UPON WHICH THE APPOINTMENT WITH THE NATIONAL RECOVERY ADMINISTRATION WOULD HAVE BEEN INVOLUNTARILY TERMINATED.

IF EITHER OF THESE QUESTIONS MAY BE ANSWERED IN THE AFFIRMATIVE, YOUR OPINION IS ALSO REQUESTED AS TO WHAT DOCUMENTS, IF ANY, SHOULD BE SUBMITTED WITH THE FIRST RESETTLEMENT ADMINISTRATION PAY ROLL UPON WHICH THE ATTORNEY'S NAME APPEARS.

THE RULE QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER FROM THE DECISION OF SEPTEMBER 24, 1935, 15 COMP. GEN. 243, IS APPLICABLE TO THE EMPLOYEES WHOSE CASES ARE PRESENTED. THAT IS TO SAY, WHEN AN EMPLOYEE RESIGNS FROM SERVICE UNDER ANOTHER FEDERAL ESTABLISHMENT AFTER RECEIPT OF NOTICE, AND IN ANTICIPATION, OF AN EARLY TERMINATION OF HIS APPOINTMENT DUE TO THE EXPIRATION OF THE WORK OR ACTIVITY ON WHICH EMPLOYED OR OTHER CAUSE OVER WHICH THE EMPLOYEE HAS NO CONTROL, HIS SEPARATION FROM SUCH SERVICE MAY BE CONSIDERED AS INVOLUNTARY AND HIS APPOINTMENT UNDER AN EMERGENCY AGENCY, INCLUDING THE RESETTLEMENT ADMINISTRATION WOULD NOT BE SUBJECT TO THE PROVISIONS OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935.

THERE SHOULD APPEAR IN THE "REMARKS" COLUMN OF THE FIRST PAYROLL VOUCHER ON WHICH PAYMENT OF COMPENSATION IS MADE TO EMPLOYEES APPOINTED UNDER SUCH CIRCUMSTANCES, OR OTHERWISE IN THE ACCOUNTS PRESENTED TO THIS OFFICE, A SUFFICIENT ADMINISTRATIVE STATEMENT TO INDICATE THAT THE RESIGNATION FROM THE OTHER FEDERAL AGENCY OR ESTABLISHMENT WAS AFTER NOTICE OF CONTEMPLATED INVOLUNTARY SEPARATION.