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A-44187, AUGUST 30, 1932, 12 COMP. GEN. 304

A-44187 Aug 30, 1932
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ECONOMY ACT - FILLING OF VACANCIES - PERCENTAGE REDUCTIONS THE POSITIONS OF SPECIAL AGENTS UNDER THE BUREAU OF THE CENSUS EMPLOYED FOR THE PURPOSE OF COLLECTING STATISTICS ON COTTON ARE NOT "SEASONAL" WITHIN THE MEANING OF SECTION 203 OF THE ECONOMY ACT. A COPY OF WHICH IS ATTACHED. THE QUESTION WAS CONSIDERED BY THE BUREAU IN CONNECTION WITH THE SECTION OF THE ECONOMY ACT REFERRED TO. THE METHOD OF EMPLOYMENT WAS EXPLAINED INFORMALLY TO THE GENERAL ACCOUNTING OFFICE. AS THE EMPLOYEES WERE NOT PAID ON A PER ANNUM OR PER DIEM BASIS. WHILE THESE AGENTS ARE ON THE BUREAU'S PERMANENT ROLL. THEY ARE EMPLOYED ONLY AT INTERVALS THROUGHOUT THE YEAR. THE WORK IS IN A LARGE MEASURE SEASONAL. IT IS FOR THIS WORK THAT THE GREATER PORTION OF THEIR COMPENSATION IS PAID.

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A-44187, AUGUST 30, 1932, 12 COMP. GEN. 304

ECONOMY ACT - FILLING OF VACANCIES - PERCENTAGE REDUCTIONS THE POSITIONS OF SPECIAL AGENTS UNDER THE BUREAU OF THE CENSUS EMPLOYED FOR THE PURPOSE OF COLLECTING STATISTICS ON COTTON ARE NOT "SEASONAL" WITHIN THE MEANING OF SECTION 203 OF THE ECONOMY ACT, AND THE FILLING OF SUCH POSITIONS REQUIRES THE PRIOR AUTHORIZATION OR APPROVAL OF THE PRESIDENT. THE PAYMENT TO SPECIAL AGENTS UNDER THE BUREAU OF THE CENSUS OF A DEFINITE PRICE FOR EACH REPORT MADE, WHICH MAY EXCEED $1,000 PER ANNUM IN THE AGGREGATE, CONSTITUTES "COMPENSATION" ON A PIECEWORK BASIS WITHIN THE MEANING OF THE ECONOMY ACT SUBJECT TO THE PERCENTAGE REDUCTION REQUIRED BY THAT STATUTE. (MODIFIED BY 12 COMP. GEN. 416.)

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, AUGUST 30, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 10, 1932, RECEIVED AUGUST 19, 1932, REQUESTING DECISION OF QUESTIONS PRESENTED IN THE FOLLOWING COMMUNICATION TO YOU FROM THE DIRECTOR OF THE CENSUS:

A LETTER HAS BEEN RECEIVED FROM THE U.S. CIVIL SERVICE COMMISSION, DATED JULY 28, A COPY OF WHICH IS ATTACHED, ASKING WHETHER THE BUREAU HAS CONSIDERED SECTION 203, TITLE II, OF THE ECONOMY ACT, REQUIRING THE APPROVAL OF THE PRESIDENT IN FILLING VACANCIES, IN CONNECTION WITH ITS COTTON APPOINTMENTS.

THE QUESTION WAS CONSIDERED BY THE BUREAU IN CONNECTION WITH THE SECTION OF THE ECONOMY ACT REFERRED TO. THE METHOD OF EMPLOYMENT WAS EXPLAINED INFORMALLY TO THE GENERAL ACCOUNTING OFFICE, AND I UNDERSTOOD THAT, AS THE EMPLOYEES WERE NOT PAID ON A PER ANNUM OR PER DIEM BASIS, THEIR COMPENSATION DEPENDING ENTIRELY UPON THE NUMBER OF REPORTS AS INDICATED IN THE ATTACHED CONTRACT FORMS, IRRESPECTIVE OF THE TERM OF EMPLOYMENT, THEIR APPOINTMENTS WOULD NOT BE AFFECTED BY THIS SECTION. WHILE THESE AGENTS ARE ON THE BUREAU'S PERMANENT ROLL, THEY ARE EMPLOYED ONLY AT INTERVALS THROUGHOUT THE YEAR. THEY SIGN NEW CONTRACTS WHICH SPECIFY THE NUMBER OF REPORTS TO BE SECURED AND THE RATE OF PAY FOR EACH REPORT. THE TOTAL NUMBER OF REPORTS VARIES FROM SEASON TO SEASON, DEPENDING UPON LOCAL CONDITIONS, AND THE COMPENSATION CHANGES ACCORDINGLY. THE WORK IS IN A LARGE MEASURE SEASONAL, COVERING THE COTTON GINNING SEASON WHICH RUNS FROM SEPTEMBER 1 TO MARCH 1, AND IT IS FOR THIS WORK THAT THE GREATER PORTION OF THEIR COMPENSATION IS PAID. IN SOME INSTANCES, THE AGENTS ARE ALSO REQUIRED TO COLLECT ONE REPORT A MONTH ON COTTON CONSUMED AND STOCKS HELD, AND ONE REPORT A MONTH ON COTTONSEED AND COTTONSEED PRODUCTS. MOST OF THEM RECEIVE ONLY ONE DOLLAR FOR EACH OF THESE REPORTS. POSSIBLY THE COTTON WORK FALLS WITHIN PROVISION (B) OF SECTION 203, COVERING TEMPORARY, EMERGENCY, SEASONAL, OR COOPERATIVE POSITIONS.

THERE ARE 761 COTTON AGENTS. THE HIGHEST COMPENSATION PAID FOR THE SEASON WHICH ENDED JUNE 30, 1932, IS $1,136; THE LOWEST, $43; AND THE AVERAGE COMPENSATION IS ONLY $339 PER YEAR.

THE AUTHORITY FOR COLLECTING THESE STATISTICS WILL BE FOUND IN THE ACT OF CONGRESS, APPROVED APRIL 2, 1924, ENTITLED "AN ACT AUTHORIZING THE DIRECTOR OF THE CENSUS TO COLLECT AND PUBLISH STATISTICS OF COTTON.'

THE EMPLOYEES WHOSE CERTIFICATES ANNOUNCING THE RESULTS OF THE EXAMINATION ARE BEING WITHHELD BY THE COMMISSION HAVE BEEN ON DUTY SINCE JULY 1. AS IT IS NOT ALWAYS POSSIBLE TO ARRANGE FOR EXAMINATIONS PRIOR TO THE TIME WHEN THE SERVICES OF AGENTS ARE REQUIRED IN CONNECTION WITH THE COLLECTION OF THE REPORTS, IT HAS BEEN THE BUREAU'S PRACTICE TO ISSUE APPOINTMENTS SUBJECT TO THE APPLICANTS' PASSING THE EXAMINATION AND TO TERMINATE SUCH APPOINTMENTS IF THEY FAIL TO PASS.

THERE IS ATTACHED A COPY OF THE CERTIFICATE USED IN APPOINTING THESE AGENTS; ALSO COPIES OF THE CONTRACTS USED. IN VIEW OF THE QUESTION RAISED BY THE CIVIL SERVICE COMMISSION, IT IS REQUESTED THAT THE MATTER BE PRESENTED TO THE COMPTROLLER FOR A DECISION AS TO TWO POINTS: (1) AS TO WHETHER THESE POSITIONS COME WITHIN THE PROVISION OF THE ACT REQUIRING THE APPROVAL OF THE PRESIDENT TO FILL VACANCIES; AND (2) WHETHER, IN VIEW OF THE APPOINTMENT OF THESE AGENTS ON A CONTRACT BASIS, THEY COME WITHIN THE PROVISION REQUIRING THE DEDUCTION OF 8 1/3 PERCENT.

SECTION 203 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 403, PROVIDES, IN PART, AS FOLLOWS:

NO APPROPRIATION AVAILABLE TO ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OR TO THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA DURING THE FISCAL YEAR ENDING JUNE 30, 1933, SHALL BE USED TO PAY THE COMPENSATION OF AN INCUMBENT APPOINTED TO ANY CIVIL POSITION UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHICH IS VACANT ON JULY 1, 1932, OR TO ANY SUCH POSITION WHICH MAY BECOME VACANT AFTER SUCH DATE: PROVIDED, THAT THIS INHIBITION SHALL NOT APPLY (A) TO ABSOLUTELY ESSENTIAL POSITIONS THE FILLING OF WHICH MAY BE AUTHORIZED OR APPROVED IN WRITING BY THE PRESIDENT OF THE UNITED STATES, (B) TO TEMPORARY, EMERGENCY, SEASONAL, OR COOPERATIVE POSITIONS, *

SEASONAL POSITIONS ARE THOSE IN WHICH THE EMPLOYMENT IS ONLY DURING A PARTICULAR SEASON OF THE YEAR, THERE BEING NO ELEMENT OF PERMANENCY ABOUT THEM. THE TERM DOES NOT APPLY TO POSITIONS WHICH ARE MORE OR LESS PERMANENT OR FOR A DEFINITE OR INDEFINITE PERIOD IN EXCESS OF A SEASON, EVEN THOUGH THE DUTIES THEREOF MAY REQUIRE A GREATER AMOUNT OF SERVICE DURING A PARTICULAR SEASON.

THE FORM OF A LETTER OF APPOINTMENT AND THE AGREEMENT SIGNED BY THE APPLICANT, FORWARDED WITH YOUR LETTER, SHOW THAT THESE SPECIAL AGENTS UNDER THE BUREAU OF THE CENSUS, EMPLOYED FOR THE PURPOSE OF COLLECTING STATISTICS ON COTTON, ARE NOT TEMPORARILY APPOINTED, THAT IS, THERE IS NOTHING IN THE LETTER OF APPOINTMENT LIMITING THE PERIOD OF SERVICE OTHER THAN THE RIGHT OF THE DIRECTOR OF THE CENSUS TO TERMINATE THEIR SERVICES AT ANY TIME, AND THE APPLICANT AGREES "TO COLLECT BY PERSONAL VISITS BETWEEN JULY 1, 1932, AND JUNE 8, 1933, IN ACCORDANCE WITH THE INSTRUCTIONS OF THE BUREAU, COTTON STATISTICS.' IT APPEARS, ALSO, THAT REPORTS ARE REQUIRED FROM THE SPECIAL AGENTS PERIODICALLY THROUGHOUT THE YEAR, AND AT TIMES OTHER THAN IN THE COTTON-GINNING SEASON. WHILE IT MAY BE THAT THE NATURE OF THE DUTIES PERFORMED BY THESE AGENTS REQUIRES THE GREATER AMOUNT OF SERVICE DURING THE PERIOD FROM SEPTEMBER TO MARCH, THE OTHER ELEMENTS ENTERING INTO THEIR EMPLOYMENT TAKE THEM OUT OF THE "SEASONAL" CLASS OF POSITIONS. ACCORDINGLY, VACANCIES IN THESE POSITIONS ARE REQUIRED TO BE FILLED AS UNDER (A) RATHER THAN (B) OF SECTION 203 OF THE ECONOMY ACT, AND QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE.

SECTION 101 (C), SECTION 104 (A) AND (C), AND SECTION 105 (D) (6) OF THE ECONOMY ACT PROVIDE AS FOLLOWS:

SECTION 101. DURING THE FISCAL YEAR ENDING JUNE 30, 1933---

(C) IF THE APPLICATION OF THE PROVISIONS OF SUBSECTIONS (A) AND (B) TO ANY OFFICER OR EMPLOYEE WOULD REDUCE HIS RATE OF COMPENSATION TO LESS THAN $1,000 PER ANNUM, SUCH PROVISIONS SHALL BE APPLIED TO HIM ONLY TO THE EXTENT NECESSARY TO REDUCE HIS RATE OF COMPENSATION TO $1,000 PER ANNUM.

SEC. 104. WHEN USED IN THIS TITLE---

(A) THE TERMS "OFFICER" AND "EMPLOYEE" MEAN ANY PERSON RENDERING SERVICES IN OR UNDER ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, * * *

(C) IN THE CASE OF ANY OFFICE, POSITION, OR EMPLOYMENT, THE COMPENSATION FOR WHICH IS CALCULATED ON A PIECEWORK, HOURLY, OR PER DIEM BASIS, THE RATE OF COMPENSATION PER ANNUM SHALL BE HELD TO BE THE TOTAL AMOUNT WHICH WOULD BE PAYABLE FOR THE REGULAR WORKING HOURS AND ON THE BASIS OF THREE HUNDRED AND SEVEN WORKING DAYS, OR THE NUMBER OF WORKING DAYS ON THE BASIS OF WHICH SUCH COMPENSATION IS CALCULATED, WHICHEVER IS THE GREATER.

SEC. 105. DURING THE FISCAL YEAR ENDING JUNE 30, 1933---

(D) IN THE CASE OF THE FOLLOWING PERSONS THE RATE OF COMPENSATION IS REDUCED AS FOLLOWS: IF MORE THAN $1,000 PER ANNUM BUT LESS THAN $10,000 PER ANNUM, 8 1/3 PERCENTUM; * * *.

(6) OFFICERS AND EMPLOYEES (AS DEFINED IN SECTION 104 (A) ( OCCUPYING POSITIONS THE NATURE OF THE DUTIES AND PERIODS OF WORK OF WHICH MAKE IT IMPRACTICABLE TO APPLY THE PROVISIONS OF SUBSECTIONS (A) AND (B) OF SECTION 101.

THERE APPEARS NO DOUBT THAT THESE SPECIAL AGENTS UNDER THE CENSUS BUREAU RENDER SERVICE "IN OR UNDER" A "BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT" AND THAT THEIR POSITIONS ARE NOT WITHIN ANY OF THE 11 CLASSES OF POSITIONS MENTIONED IN SECTION 104 AS NOT INCLUDED WITHIN THE DEFINITION THEREIN GIVEN.

NOTE THAT SECTION 104 (C) SPECIFICALLY INCLUDES COMPENSATION COMPUTED ON A PIECEWORK BASIS. IT IS UNDERSTOOD THAT THESE SPECIAL AGENTS ARE GIVEN A FIXED DEFINITE PRICE FOR EACH REPORT OR OTHER QUANTITY OF WORK WHICH DOES NOT VARY. HENCE, SUCH COMPENSATION IS TO BE REGARDED AS COMPUTED ON A PIECEWORK BASIS AND NOT ON A FEE BASIS FOR DUTIES PERFORMED VARYING IN CHARACTER. AS IT IS SHOWN THE SPECIAL AGENTS MAY POSSIBLY EARN IN A YEAR $1,136 OR MORE, THESE EMPLOYEES ARE TO BE REGARDED AS PART-TIME PIECEWORKERS WHOSE COMPENSATION ON AN ANNUAL BASIS IS EQUIVALENT TO MORE THAN $1,000 AND SUBJECT TO AN 8 1/3 PERCENT REDUCTION UNDER THE TERMS OF SECTION 105 (D) (6), IT APPEARING TO BE IMPRACTICABLE TO APPLY THE PROVISIONS OF SECTION 101 (A) OR (B) TO THEM.

REFERRING TO QUESTION (2), YOU ARE ADVISED, THEREFORE, THAT THE COMPENSATION RATE PAID THESE SPECIAL AGENTS FOR EACH REPORT OR OTHER QUANTITY OF WORK SHOULD BE REDUCED BY 8 1/3 PERCENT DURING THE FISCAL YEAR 1933, THE AMOUNT DEDUCTED TO BE IMPOUNDED.

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