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A-88755, SEPTEMBER 14, 1937, 17 COMP. GEN. 249

A-88755 Sep 14, 1937
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APPOINTMENTS AND PROMOTIONS - PRESIDENTIAL APPOINTEES AND PER DIEM EXPERTS - SOCIAL SECURITY BOARD APPROPRIATION LIMITATIONS AN ACTUARIAL CONSULTANT OF THE SOCIAL SECURITY BOARD WHO RECEIVED HIS COMMISSION SEVERAL DAYS AFTER NOMINATION BY THE PRESIDENT AND CONFIRMATION BY THE SENATE IS NOT ENTITLED TO COMPENSATION FOR THE PERIOD PRIOR TO THE DATE THE COMMISSION WAS ISSUED. AS NEITHER THE NOMINATION NOR THE CONFIRMATION IS AN APPOINTMENT BUT SERVES ONLY TO INDICATE THE PURPOSE OF THE PRESIDENT TO APPOINT AND THE CONSENT OF THE SENATE THAT THE APPOINTMENT MAY BE MADE THEREAFTER. 17 COMP. IS NOT APPLICABLE TO APPOINTMENTS BY THE BOARD ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS WHICH SPECIFICALLY LIMIT THE NUMBER OF DAYS OF EMPLOYMENT PER YEAR SO THAT THE TOTAL POSSIBLE ANNUAL COMPENSATION IS LESS THAN THE AMOUNT STATED IN THE SAID PROVISION.

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A-88755, SEPTEMBER 14, 1937, 17 COMP. GEN. 249

APPOINTMENTS AND PROMOTIONS - PRESIDENTIAL APPOINTEES AND PER DIEM EXPERTS - SOCIAL SECURITY BOARD APPROPRIATION LIMITATIONS AN ACTUARIAL CONSULTANT OF THE SOCIAL SECURITY BOARD WHO RECEIVED HIS COMMISSION SEVERAL DAYS AFTER NOMINATION BY THE PRESIDENT AND CONFIRMATION BY THE SENATE IS NOT ENTITLED TO COMPENSATION FOR THE PERIOD PRIOR TO THE DATE THE COMMISSION WAS ISSUED, AS NEITHER THE NOMINATION NOR THE CONFIRMATION IS AN APPOINTMENT BUT SERVES ONLY TO INDICATE THE PURPOSE OF THE PRESIDENT TO APPOINT AND THE CONSENT OF THE SENATE THAT THE APPOINTMENT MAY BE MADE THEREAFTER. 17 COMP. GEN. 29, DISTINGUISHED. THE INDEPENDENT OFFICES APPROPRIATION ACT, 1938, 50 STAT. 329, 344, REQUIRING THAT CERTAIN EXPERTS AND ATTORNEYS OF THE SOCIAL SECURITY BOARD BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, CONTAINS NO PROHIBITION AGAINST ADMINISTRATIVE PROMOTION OF AN OFFICER OR EMPLOYEE PROPERLY APPOINTED AS REQUIRED BY THE ACT, WITHIN THE SALARY RANGE OF HIS GRADE AS LONG AS HE HOLDS THE SAME POSITION TO WHICH SO APPOINTED, PROVIDED SUCH PROMOTION DOES NOT VIOLATE THE TERMS OF THE SO -CALLED AVERAGE PROVISION AS IT APPEARS IN SECTION 2 OF THE ACT, SUPRA, 50 STAT. 352. THE PROVISION OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1938, 50 STAT. 329, 344, THAT COMPENSATION IN EXCESS OF A STATED AMOUNT MAY NOT BE PAID EXPERTS AND ATTORNEYS OF THE SOCIAL SECURITY BOARD UNLESS APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, IS NOT APPLICABLE TO APPOINTMENTS BY THE BOARD ON A PER DIEM "WHEN ACTUALLY EMPLOYED" BASIS WHICH SPECIFICALLY LIMIT THE NUMBER OF DAYS OF EMPLOYMENT PER YEAR SO THAT THE TOTAL POSSIBLE ANNUAL COMPENSATION IS LESS THAN THE AMOUNT STATED IN THE SAID PROVISION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, SOCIAL SECURITY BOARD, SEPTEMBER 14, 1937:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR PREAUDIT PAY-ROLL VOUCHERS NOS. 1049, 1050, AND 1051 OF THE SOCIAL SECURITY BOARD, ADMINISTRATIVELY APPROVED, THE FIRST IN FAVOR OF WILLIAM R. WILLIAMSON, COVERING PERIOD JULY 6 TO AUGUST 31, 1937; THE SECOND IN FAVOR OF MARION H. HEDGES, COVERING PERIOD JULY 1 TO 31, 1937; AND THE THIRDIN FAVOR OF THOMAS J. DUFFY, WALTON H. HAMILTON, AND E. WIGHT BAKKE, COVERING PERIOD JULY 1 TO AUGUST 15, 1937.

ACCOMPANYING THE VOUCHERS IS THE FOLLOWING ADMINISTRATIVE STATEMENT:

THE ATTACHED PAY ROLLS FOR PERSONAL SERVICES, VOUCHERS NOS. 1049, 1050, AND 1051, ARE TRANSMITTED HEREWITH WITH THE REQUEST FOR APPROVAL BY THE GENERAL ACCOUNTING OFFICE.

THE APPROPRIATION OF THE SOCIAL SECURITY BOARD FOR THE FISCAL YEAR ENDED JUNE 30, 1938 (PUBLIC, NO. 171, 75TH CONGRESS), PROVIDES AMONG OTHER THINGS THAT "NONE OF THE FUNDS HEREIN APPROPRIATED UNDER THE HEADING "SOCIAL SECURITY BOARD" SHALL BE USED TO PAY THE SALARY OF ANY EXPERT OR ATTORNEY RECEIVING COMPENSATION OF $5,000 OR MORE PER ANNUM UNLESS AND UNTIL SUCH EXPERT OR ATTORNEY SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.'

VOUCHER NO. 1049

THE FOLLOWING CASE REFLECTS A CHANGE IN RATE OF PAY WITHIN THE SAME POSITION, THE EMPLOYEE HAVING BEEN NOMINATED FOR THIS POSITION BY THE PRESIDENT AND CONFIRMED BY THE SENATE IN ACCORDANCE WITH THE FOREGOING REQUIREMENT IN THE APPROPRIATION ACT OF THE SOCIAL SECURITY BOARD:

"CHANGE OF STATUS FOR WILLIAM R. WILLIAMSON FROM ACTUARIAL CONSULTANT TO THE BOARD; P-7, 6,500; HEADQUARTERS, WASHINGTON, D.C.; TO ACTUARIAL CONSULTANT TO THE BOARD, P-7, $7,500; HEADQUARTERS, WASHINGTON, D.C.; EFFECTIVE AUGUST 10, 1937" (BOARD MINUTES, JUNE 22, 1937).

MR. WILLIAMSON WAS EMPLOYED AS ACTUARIAL CONSULTANT TO THE BOARD ON A CONTRACTUAL BASIS AT $50.00 PER DIEM DURING THE FISCAL YEAR ENDED JUNE 30, 1937. THE BOARD ON JULY 6, 1937, APPROVED HIS APPOINTMENT AS ACTUARIAL CONSULTANT TO THE BOARD; P-7, $6,500 PER ANNUM. IN ACCORDANCE WITH THE REQUIREMENTS OF THE APPROPRIATION ACT OF THE SOCIAL SECURITY BOARD, THE PRESIDENT SUBMITTED HIS NAME TO THE SENATE FOR CONFIRMATION AND THE SENATE CONFIRMED HIS APPOINTMENT ON AUGUST 3, 1937. THEREAFTER THE BOARD TOOK THE ACTION ABOVE INDICATED, WHICH MERELY EFFECTED A CHANGE IN HIS SALARY RATE WITHIN THE RANGE OF PAY FOR THE SAME POSITION.

VOUCHERS NOS. 1050 AND 1051

FROM THE INFORMATION FURNISHED BELOW IT WILL BE NOTED THAT IN EACH CASE THE PER DIEM RATE IS FOR A MAXIMUM PERIOD OF 200 DAYS THROUGHOUT THE FISCAL YEAR 1939, AS SPECIFIED IN THE MINUTES OF THE BOARD, SO THAT THE TOTAL COMPENSATION IN EACH CASE IS LESS THAN $5,000 PER ANNUM:

"CHANGE OF STATUS FOR MARION HEDGES, SENIOR LABOR CONSULTANT, FROM ANNUAL SALARY BASIS OF $5,400 TO PER DIEM RATE OF $15.00 PER DIEM WHEN ACTUALLY EMPLOYED, SUCH EMPLOYMENT NOT TO EXCEED 200 DAYS IN ANY FISCAL YEAR" (BOARD MINUTES, JUNE 22, 1937). ALTHOUGH THE COMPENSATION OF $15.00 PER DIEM REPRESENTS A RATE OF PAY OF APPROXIMATELY $5,400 PER ANNUM, THE TERMS OF THE EMPLOYMENT AS RESTRICTED BY ACTION OF THE BOARD TO A TOTAL OF 200 DAYS RENDER THE MAXIMUM PAYMENT NOT IN EXCESS OF $3,000.

"CHANGE OF STATUS FOR THOMAS J. DUFFY, SPECIAL ADVISER ON UNEMPLOYMENT COMPENSATION, FROM ANNUAL SALARY BASIS OF $8,000 TO PER DIEM RATE OF $22.22 PER DIEM WHEN ACTUALLY EMPLOYED, SUCH EMPLOYMENT NOT TO EXCEED 200 DAYS IN ANY FISCAL YEAR" (BOARD MINUTES, JUNE 22, 1937). ALTHOUGH THE COMPENSATION OF $22.22 PER DIEM REPRESENTS A RATE OF PAY OF APPROXIMATELY $8,000 PER ANNUM, THE TERMS OF THE EMPLOYMENT AS RESTRICTED BY ACTION OF THE BOARD TO A TOTAL OF 200 DAYS RENDER THE MAXIMUM PAYMENT NOT IN EXCESS OF $4,444.

"CHANGE OF STATUS FOR WALTON H. HAMILTON, SPECIAL ECONOMIC CONSULTANT, FROM ANNUAL SALARY BASIS OF $8,000 TO PER DIEM RATE OF $22.22 PER DIEM WHEN ACTUALLY EMPLOYED, SUCH EMPLOYMENT NOT TO EXCEED 200 DAYS IN ANY FISCAL YEAR" (BOARD MINUTES JUNE 22, 1937). ALTHOUGH THE COMPENSATION OF $22.22 PER DIEM REPRESENTS A RATE OF PAY OF APPROXIMATELY $8,000 PER ANNUM, THE TERMS OF THE EMPLOYMENT AS RESTRICTED BY ACTION OF THE BOARD TO A TOTAL OF 200 DAYS RENDER THE MAXIMUM PAYMENT NOT IN EXCESS OF $4,444.

"CHANGE OF STATUS FOR E. WIGHT BAKKE, PRINCIPAL CONSULTING ECONOMIST, FROM ANNUAL SALARY BASIS OF $6,500 TO PER DIEM RATE OF $18.05 PER DIEM WHEN ACTUALLY EMPLOYED, SUCH EMPLOYMENT NOT TO EXCEED 200 DAYS IN ANY FISCAL YEAR" (BOARD MINUTES, JUNE 22, 1937). ALTHOUGH THE COMPENSATION OF $18.05 PER DIEM REPRESENTS A RATE OF $6,500 PER ANNUM, THE TERMS OF THE EMPLOYMENT AS RESTRICTED BY ACTION OF THE BOARD TO A TOTAL OF 200 DAYS RENDER THE MAXIMUM PAYMENT NOT IN EXCESS OF $3,610 PER ANNUM.

IN EACH OF THE CASES SET OUT ABOVE, WHERE THERE HAS BEEN NO PRESIDENTIAL APPOINTMENT, THE ACTION OF THE BOARD CONTEMPLATES INTERMITTENT EMPLOYMENT THROUGHOUT THE ENTIRE YEAR. IN THE OPINION OF THIS OFFICE, THE LIMITATION QUOTED AT THE BEGINNING OF THE ADMINISTRATIVE NOTES REQUIRES CONFIRMATION WHERE PERSONS ARE "RECEIVING COMPENSATION OF $5,000 OR MORE PER ANNUM," AND IS THEREFORE DIFFERENT FROM THE PROVISIONS IMMEDIATELY PRECEDING IT WHICH REFERS TO "RATES OF .'

THE INDEPENDENT OFFICES APPROPRIATION ACT, 1938, APPROVED JUNE 28, 1937, PUBLIC, NO. 171, AT 50 STAT. 344, CONTAINS THE FOLLOWING PROVISOS UNDER THE HEADING "SOCIAL SECURITY BOARD:"

* * * PROVIDED FURTHER, THAT NO SALARY SHALL BE PAID FOR PERSONAL SERVICES FROM THE MONEY HEREIN APPROPRIATED UNDER THE HEADING "SOCIAL SECURITY BOARD" IN EXCESS OF THE RATES ALLOWED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, FOR SIMILAR SERVICES: PROVIDED FURTHER, THAT THIS PROVISO SHALL NOT APPLY TO THE SALARIES OF THE BOARD MEMBERS: PROVIDED FURTHER, THAT NONE OF THE FUNDS HEREIN APPROPRIATED UNDER THE HEADING "SOCIAL SECURITY BOARD" SHALL BE USED TO PAY THE SALARY OF ANY EXPERT OR ATTORNEY RECEIVING COMPENSATION OF $5,000 OR MORE PER ANNUM UNLESS AND UNTIL SUCH EXPERT OR ATTORNEY SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

REFERRING TO VOUCHER NO. 1049, IT APPEARS THAT MR. WILLIAMSON SERVED UP TO JUNE 30, 1937, ON A CONTRACTUAL PER-DIEM BASIS AND WAS NOT ON JULY 1, 1937, HOLDING THE OFFICE TO WHICH THEREAFTER APPOINTED. HIS NOMINATION TO A POSITION ALLOCATED IN GRADE P-7 WITH SALARY RANGE FROM $6,500 TO $7,500 PER ANNUM, WAS CONFIRMED BY THE SENATE AUGUST 3, 1937, AND HIS COMMISSION ISSUED UNDER DATE OF AUGUST 6, 1937. IT IS UNDERSTOOD HE HAD PREVIOUSLY ENTERED ON DUTY.

IN DECISION OF THE COMPTROLLER OF THE TREASURY DATED APRIL 5, 1921, 27 COMP. DEC. 861, 862, IT WAS STATED:

THE NOMINATION IS NOT AN APPOINTMENT; NEITHER IS THE CONFIRMATION. THE NOMINATION AND CONFIRMATION SERVE BUT TO INDICATE THE PURPOSE OF THE PRESIDENT TO APPOINT AND THE CONSENT OF THE SENATE THAT THE APPOINTMENT MAY BE MADE THEREAFTER. THEY DO NOT DIVEST THE EXECUTIVE AUTHORITY OF THE DISCRETION TO WITHHOLD THE ACTUAL APPOINTMENT. THAT DISCRETION MAY BE EXERCISED AT ANY TIME BEFORE THE COMMISSION IS ACTUALLY SIGNED. THE SIGNING OF THE COMMISSION, AFTER THE NOMINATION AND CONFIRMATION, CONSUMMATES THE APPOINTMENT SO FAR AS THE APPOINTING POWER IS CONCERNED. MARBURY V. MADISON, 1 CR., 137; UNITED STATES V. LE BARON, 19 HOW., 78; GLAVEY V. UNITED STATES, 182 U.S., 595; 4 OP.ATTY.GEN., 218. PRIOR TO SUCH CONSUMMATION THE APPOINTEE CAN NOT ACCEPT OR HOLD THE OFFICE AND IS NOT ENTITLED TO THE SALARY ATTACHED THERETO.

SEE ALSO 2 COMP. GEN. 373 AND 7 ID. 96.

ACCORDINGLY, UNDER THE PLAIN TERMS OF THE STATUTE, MR. WILLIAMSON IS NOT ENTITLED TO ANY COMPENSATION FOR THE PERIOD FROM JULY 6 TO AUGUST 5, 1937, INCLUSIVE. THIS CASE IS TO BE DISTINGUISHED FROM THE CASES CONSIDERED IN DECISION OF JULY 14, 1937, 17 COMP. GEN. 29, INVOLVING EXPERTS AND ATTORNEYS OF THE SOCIAL SECURITY BOARD WHO WERE PROPERLY APPOINTED PRIOR TO JULY 1, 1937, IN ACCORDANCE WITH SECTION 703 OF THE SOCIAL SECURITY ACT OF AUGUST 14, 1935, AND WHO CONTINUE TO HOLD THE SAME POSITION, HAVING BEEN SUBSEQUENTLY APPOINTED THERETO BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

WITH RESPECT TO THE PERIOD SUBSEQUENT TO AUGUST 5, 1937, THERE IS NOTHING EXPRESSED OR IMPLIED IN THE APPROPRIATION ACT PROHIBITING THE ADMINISTRATIVE PROMOTION OF AN OFFICER OR EMPLOYEE PROPERLY APPOINTED AS REQUIRED BY THE ACT WITHIN THE SALARY RANGE OF HIS GRADE AS LONG AS HE HOLDS THE SAME POSITION TO WHICH SO APPOINTED. HOWEVER, SUCH A PROMOTION MAY NOT VIOLATE THE TERMS OF THE SO-CALLED AVERAGE PROVISION. SEE SECTION 2 OF THE SAID ACT OF JUNE 28, 1937. THERE HAS NOT BEEN PRESENTED TO THIS OFFICE ANY ADMINISTRATIVE CERTIFICATE OR OTHER EVIDENCE TO SHOW THAT THE PROMOTION OF MR. WILLIAMSON EFFECTIVE AUGUST 10, 1937, DID NOT CONTRAVENE THE AVERAGE PROVISION.

FOR REASONS ABOVE STATED, VOUCHER NO. 1049 MAY NOT BE CERTIFIED FOR PAYMENT ON THE PRESENT RECORD.

REFERRING TO VOUCHERS 1050 AND 1051, THIS OFFICE HAS HELD THAT WHEN A DEFINITE LIMITATION ON EMPLOYMENT IS MADE IN THE APPOINTMENT OR CONTRACT OF EMPLOYMENT TO A SPECIFIC NUMBER OF HOURS PER DAY, OR DAYS PER WEEK, MONTH, OR YEAR, AND THE APPOINTMENT OR CONTRACT OF EMPLOYMENT PROVIDES FOR PAYMENT OF COMPENSATION ONLY "WHEN ACTUALLY EMPLOYED," THE DUAL COMPENSATION STATUTE OF 1916 (SECTION 6 OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 39 STAT. 582) IS NOT APPLICABLE IF THE TOTAL AMOUNT OF COMPENSATION POSSIBLE TO BE PAID FOR THE YEAR DOES NOT EXCEED $2,000. 24 COMP. DEC. 350, 351; 11 COMP. GEN. 200; 12 ID. 583; 15 ID. 751; DECISION OF JUNE 5, 1937, A 86713 AND DECISION OF APRIL 22, 1937, A-85168. THE SAME RULE MAY BE APPLIED UNDER THE STATUTE HERE INVOLVED. AS THE APPOINTMENTS OR TERMS OF EMPLOYMENT OF THE FOUR EMPLOYEES WHOSE NAMES APPEAR ON THESE TWO VOUCHERS PRECLUDE THEIR "RECEIVING COMPENSATION OF $5,000 OR MORE PER ANNUM," VOUCHERS NOS. 1050 AND 1051 WILL BE CERTIFIED FOR PAYMENT IN THE ABSENCE OF OTHER OBJECTIONS AND RETURNED THROUGH THE USUAL CHANNELS.

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