A-49756, JULY 8, 1933, 13 COMP. GEN. 6

A-49756, JULY 8, 1933, 13 COMP. GEN. 6

ECONOMY ACT, AMENDED - COMPENSATION REDUCTION - UNITED STATES EMPLOYMENT SERVICE THE PERCENTAGE REDUCTION IN COMPENSATION REQUIRED UNDER TITLE II OF THE ACT OF MARCH 20, 1933, WILL NOT BE APPLICABLE TO OFFICERS AND EMPLOYEES NEWLY APPOINTED OR EMPLOYED BY THE SECRETARY OF LABOR IN THE UNITED STATES EMPLOYMENT SERVICE UNDER AUTHORITY OF SECTION 2 OF THE ACT OF JUNE 6, 1933, 48 STAT. 114, BUT SUCH PERCENTAGE REDUCTIONS IN COMPENSATION WILL REMAIN APPLICABLE TO OFFICERS AND EMPLOYEES TRANSFERRED FROM THE EXISTING EMPLOYMENT SERVICE IN THE DEPARTMENT OF LABOR TO THE NEWLY CREATED UNITED STATES EMPLOYMENT SERVICE UNDER AUTHORITY OF SECTION 1 (B) OF THE ACT OF JUNE 6, 1933, 48 STAT. 113. SINCE AN EXISTING LAW, VIZ, SECTION 1 OF THE ACT OF JUNE 6, 1933, 48 STAT. 113, DETERMINES THE COMPENSATION OF THE DIRECTOR OF THE UNITED STATES EMPLOYMENT SERVICE TO BE $8,500 PER ANNUM, UNDER SECTION 2 (B), TITLE II OF THE ACT OF MARCH 20, 1933, 48 STAT. 13, SUCH STATUTORY RATE OF COMPENSATION IS SUBJECT TO THE PERCENTAGE REDUCTION REQUIRED BY EXECUTIVE ORDER.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, JULY 8, 1933:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JUNE 28, 1933, AS FOLLOWS:

SECTION 2 OF THE WAGNER-PEYSER ACT, ESTABLISHING A NATIONAL EMPLOYMENT SERVICE (PUBLIC NO. 30, 73D CONGRESS, APPROVED JUNE 6, 1933), PROVIDES:

THE SECRETARY OF LABOR IS AUTHORIZED, WITHOUT REGARD TO THE CIVIL SERVICE LAWS, TO APPOINT AND, WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, TO FIX THE COMPENSATION OF ONE OR MORE ASSISTANT DIRECTORS AND SUCH OTHER OFFICERS, EMPLOYEES, AND ASSISTANTS, AND TO MAKE SUCH EXPENDITURES (INCLUDING EXPENDITURES FOR PERSONAL SERVICES AND RENT AT THE SEAT OF GOVERNMENT AND ELSEWHERE AND FOR LAW BOOKS, BOOKS OF REFERENCE, AND PERIODICALS) AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT. IN CASE OF APPOINTMENTS FOR SERVICE IN THE VETERANS' EMPLOYMENT SERVICE PROVIDED FOR IN SECTION 3 OF THIS ACT, THE SECRETARY SHALL APPOINT ONLY VETERANS OF WARS OF THE UNITED STATES.

SECTION 1 OF THE SAME ACT PROVIDES, IN PART, AS FOLLOWS:

THE DIRECTORS SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND SHALL RECEIVE A SALARY AT THE RATE OF $8,500 PER ANNUM.

IN CONNECTION WITH THESE SECTIONS TWO QUESTIONS ARISE ON WHICH I SHOULD LIKE YOUR OPINION.

(1) SINCE SECTION 2 OF THE WAGNER-PEYSER ACT SPECIFICALLY EXCEPTS EMPLOYEES UNDER ITS TERMS FROM THE CIVIL SERVICE LAWS AND THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND AUTHORIZES THE SECRETARY OF LABOR TO FIX THE COMPENSATION OF SUCH EMPLOYEES, DOES IT FOLLOW (IN ACCORDANCE WITH YOUR DECISION OF JUNE 20, 1933, A-49565, INTERPRETING THE EMERGENCY RAILROAD TRANSPORTATION ACT) THAT THERE IS NO BASIC COMPENSATION UPON WHICH TO APPLY THE PERCENTAGE REDUCTION ESTABLISHED BY THE EXECUTIVE ORDER ISSUED UNDER SECTION 3, TITLE II, OF THE ACT OF MARCH 20, 1933, 48 STAT. 12?

(2) IF THE PERCENTAGE REDUCTION ESTABLISHED BY THE EXECUTIVE ORDER ISSUED UNDER SECTION 3, TITLE II, OF THE ACT OF MARCH 20, 1933, 48 STAT. 12, DOES NOT APPLY TO EMPLOYEES OF THE UNITED STATES EMPLOYMENT SERVICE, DOES IT APPLY TO THE DIRECTOR OF THE UNITED STATES EMPLOYMENT SERVICE WHOSE SALARY IS FIXED BY SECTION 1 OF THE WAGNER-PEYSER STATUTE AT THE RATE OF $8,500 PER ANNUM?

IN ADDITION TO THE PORTION QUOTED IN YOUR LETTER, SECTION 1 (B) OF THE ACT OF JUNE 6, 1933, PROVIDES, AS FOLLOWS:

(B) UPON THE EXPIRATION OF THREE MONTHS AFTER THE ENACTMENT OF THIS ACT THE EMPLOYMENT SERVICE NOW EXISTING IN THE DEPARTMENT OF LABOR SHALL BE ABOLISHED; AND ALL RECORDS, FILES, AND PROPERTY (INCLUDING OFFICE EQUIPMENT) OF THE EXISTING EMPLOYMENT SERVICE SHALL THEREUPON BE TRANSFERRED TO THE UNITED STATES EMPLOYMENT SERVICE; AND ALL THE OFFICERS AND EMPLOYEES OF SUCH SERVICE SHALL THEREUPON BE TRANSFERRED TO THE UNITED STATES EMPLOYMENT SERVICE CREATED BY THIS ACT WITHOUT CHANGE IN CLASSIFICATION OR COMPENSATION.

SECTION 2, TITLE II OF THE ACT OF MARCH 20, 1933, 48 STAT. 12, PROVIDES:

FOR THAT PORTION OF THE FISCAL YEAR 1933 BEGINNING WITH THE FIRST DAY OF THE CALENDAR MONTH FOLLOWING THE MONTH DURING WHICH THIS ACT IS ENACTED, AND FOR THE FISCAL YEAR ENDING JUNE 30, 1934, THE COMPENSATION OF EVERY OFFICER OR EMPLOYEE SHALL BE DETERMINED AS FOLLOWS:

(A) THE COMPENSATION WHICH SUCH OFFICER OR EMPLOYEE WOULD RECEIVE UNDER THE PROVISIONS OF ANY EXISTING LAW, SCHEDULE, REGULATION, EXECUTIVE ORDER, OR DEPARTMENTAL ORDER SHALL FIRST BE DETERMINED AS THOUGH THIS TITLE (EXCEPT SECTION 4) HAD NOT BEEN ENACTED.

(B) THE COMPENSATION AS DETERMINED UNDER SUBPARAGRAPH (A) OF THIS SECTION SHALL BE REDUCED BY THE PERCENTAGE, IF ANY, DETERMINED IN ACCORDANCE WITH SECTION 3 OF THIS TITLE.

AS THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 6, 1933, ESTABLISHING THE UNITED STATES EMPLOYMENT SERVICE, SPECIFICALLY EXCEPTS OFFICERS AND EMPLOYEES NEWLY APPOINTED OR EMPLOYED IN SUCH SERVICE FROM THE PROVISIONS OF THE CIVIL SERVICE LAWS AND THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND AUTHORIZES THE SECRETARY OF LABOR TO FIX THE COMPENSATION OF SUCH NEWLY APPOINTED OR EMPLOYED OFFICERS AND EMPLOYEES, IT FOLLOWS THAT AT THE DATE OF THE ACT (JUNE 6, 1933) THERE WAS NO EXISTING LAW, SCHEDULE, EXECUTIVE ORDER, OR DEPARTMENTAL ORDER BY WHICH THE COMPENSATION OF SUCH NEWLY APPOINTED OR EMPLOYED OFFICERS OR EMPLOYEES COULD BE DETERMINED. ACCORDINGLY, THERE IS NO BASIC COMPENSATION UPON WHICH TO APPLY THE PERCENTAGE REDUCTIONS ESTABLISHED BY THE EXECUTIVE ORDER ISSUED UNDER SECTION 3, TITLE II, OF THE ACT OF MARCH 20, 1933. SEE DECISIONS OF JUNE 20, 1933, A-49565, 12 COMP. GEN. 655, AND JUNE 28, 1933, A-49652. I HAVE TO ADVISE, THEREFORE, THAT THE PERCENTAGE REDUCTIONS UNDER TITLE II OF THE ACT OF MARCH 20, 1933, WILL NOT BE APPLICABLE TO OFFICERS AND EMPLOYEES NEWLY APPOINTED OR EMPLOYED BY YOU UNDER THE TERMS OF SECTION 2 OF THE ACT OF JUNE 6, 1933. HOWEVER, SINCE THE CLASSIFICATION ACT REMAINS APPLICABLE TO OFFICERS AND EMPLOYEES TRANSFERRED FROM THE EXISTING EMPLOYMENT SERVICE IN THE DEPARTMENT OF LABOR TO THE NEWLY CREATED UNITED STATES EMPLOYMENT SERVICE, UNDER AUTHORITY OF SECTION 1 (B) OF THE ACT OF JUNE 6, 1933, THEIR TOTAL OR BASIC RATE OF COMPENSATION REMAINS SUBJECT TO THE PERCENTAGE REDUCTIONS REQUIRED BY EXECUTIVE ORDER ISSUED UNDER TITLE II OF THE ACT OF MARCH 20, 1933. QUESTION (1) IS ANSWERED ACCORDINGLY.

SECTION 1 OF THE ACT OF JUNE 6, 1933, CONSTITUTES AN "EXISTING LAW" UNDER THE PROVISIONS OF WHICH THE BASIC COMPENSATION OF THE DIRECTOR OF THE UNITED STATES EMPLOYMENT SERVICE "SHALL FIRST BE DETERMINED AS THOUGH THIS TITLE (EXCEPT SECTION 4) HAD NOT BEEN ENACTED" (QUOTING FROM SECTION 2 (A), TITLE II, OF THE ACT OF MARCH 20, 1933). SINCE AN EXISTING LAW DETERMINES THE COMPENSATION OF THE DIRECTOR TO BE $8,500 PER ANNUM, THERE IS NO ALTERNATIVE BUT TO CONCLUDE THAT UNDER SECTION 2 (B), TITLE II, OF THE ACT OF MARCH 20, 1933, SUCH STATUTORY RATE OF COMPENSATION IS SUBJECT TO THE PERCENTAGE REDUCTION REQUIRED BY EXECUTIVE ORDER (12 COMP. GEN. 570). QUESTION (2) IS ANSWERED IN THE AFFIRMATIVE.