A-15977, OCTOBER 20, 1926, 6 COMP. GEN. 275

A-15977: Oct 20, 1926

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ARE ESSENTIALLY TEMPORARY EMPLOYEES AND ARE NOT ENTITLED TO PAY FOR ANY TIME ABSENT FROM AND NOT PERFORMING THE DUTIES OF THEIR CIVIL POSITIONS DURING THE FISCAL YEAR 1927 DUE TO ATTENDANCE AT A CAMP OF INSTRUCTION AS MEMBERS OF THE OFFICERS' RESERVE CORPS. WHILE HE WAS ON ACTIVE DUTY FOR TRAINING IN THE OFFICERS' RESERVE CORPS AT THE CAMP OF INSTRUCTION HELD AT FORT HUMPHREYS. REQUESTING DECISION WHETHER PAYMENT THEREOF IS AUTHORIZED UNDER THE PROVISIONS OF THE ACT OF MAY 12. YOU STATE THAT THE CLAIMANT WAS EMPLOYED UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF MAY 10. IS EXCLUSIVELY AVAILABLE FOR THE EMPLOYMENT OF TEMPORARY EMPLOYEES. NOTWITHSTANDING THE FACT THAT HE WAS EMPLOYED ON A PER ANNUM BASIS.

A-15977, OCTOBER 20, 1926, 6 COMP. GEN. 275

MILITARY LEAVE - TEMPORARY EMPLOYEES OF THE DISTRICT OF COLUMBIA PERSONS EMPLOYED BY THE DISTRICT OF COLUMBIA UNDER SECTION 2 OF THE ACT OF MAY 10, 1926, 44 STAT. 451, BEING LIMITED BY THAT ACT TO NOT EXCEEDING NINE MONTHS' SERVICE, ARE ESSENTIALLY TEMPORARY EMPLOYEES AND ARE NOT ENTITLED TO PAY FOR ANY TIME ABSENT FROM AND NOT PERFORMING THE DUTIES OF THEIR CIVIL POSITIONS DURING THE FISCAL YEAR 1927 DUE TO ATTENDANCE AT A CAMP OF INSTRUCTION AS MEMBERS OF THE OFFICERS' RESERVE CORPS.

COMPTROLLER GENERAL MCCARL TO J. R. LUSBY, DISBURSING OFFICER, DISTRICT OF COLUMBIA, OCTOBER 20, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 11, 1926, TRANSMITTING A PAY ROLL FOR PERSONAL SERVICES, CONSTITUTING THE CLAIM OF R. C. THOMAS FOR PAY AS INSPECTOR, ENGINEER DEPARTMENT, SEWER DIVISION, DISTRICT OF COLUMBIA, DURING THE PERIOD FROM AUGUST 16 TO 31, 1926, WHILE HE WAS ON ACTIVE DUTY FOR TRAINING IN THE OFFICERS' RESERVE CORPS AT THE CAMP OF INSTRUCTION HELD AT FORT HUMPHREYS, VA., AND REQUESTING DECISION WHETHER PAYMENT THEREOF IS AUTHORIZED UNDER THE PROVISIONS OF THE ACT OF MAY 12, 1917, 40 STAT. 72.

YOU STATE THAT THE CLAIMANT WAS EMPLOYED UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF MAY 10, 1926, 44 STAT. 451. THIS APPROPRIATION ACT EXPRESSLY PROVIDES FOR THE TEMPORARY EMPLOYMENT OF INSPECTORS FOR A PERIOD NOT LONGER THAN NINE MONTHS IN THE AGGREGATE DURING THE FISCAL YEAR, AND IS EXCLUSIVELY AVAILABLE FOR THE EMPLOYMENT OF TEMPORARY EMPLOYEES. NOTWITHSTANDING THE FACT THAT HE WAS EMPLOYED ON A PER ANNUM BASIS, HE COULD NOT HAVE BEEN APPOINTED FOR AN INDEFINITE PERIOD, AND MUST NECESSARILY BE REGARDED AS A TEMPORARY EMPLOYEE. 4 COMP. GEN. 552.

FOR FISCAL YEARS PRIOR TO THE CURRENT FISCAL YEAR CERTAIN EMPLOYEES DENOMINATED "PER DIEM, TEMPORARY," WERE EMPLOYED UNDER SECTIONS 2 AND 4 OF THE ANNUAL APPROPRIATION ACTS SPECIFICALLY AUTHORIZING THE COMMISSIONERS TO "EMPLOY TEMPORARILY" CERTAIN CLASSES OF PERSONAL SERVICE. THESE EMPLOYEES WERE HELD NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER LAWS APPLICABLE TO EMPLOYEES OF THE DISTRICT OF COLUMBIA BY DECISION OF DECEMBER 3, 1924, 4 COMP. GEN. 511. SEE ALSO 4 COMP. GEN. 552. REPRESENTATIONS WERE MADE TO THE CONGRESS IN CONNECTION WITH ANNUAL ESTIMATES FOR THE FISCAL YEAR 1926 FOR AUTHORITY TO GRANT LEAVE TO PER DIEM TEMPORARY EMPLOYEES. SEE THE HEARINGS ON THE APPROPRIATION ACT FOR THE DISTRICT OF COLUMBIA FOR THE FISCAL YEAR 1926, PAGE 348, ET SEQ.

SECTION 4 OF THE APPROPRIATION ACT FOR THE FISCAL YEAR 1926, ACT OF MARCH 3, 1925, 43 STAT. 1251, AUTHORIZED LEAVE FOR THIS CLASS OF EMPLOYEES, BUT CONTAINED A PROVISO:

THAT ESTIMATES OF APPROPRIATIONS FOR THE DISTRICT OF COLUMBIA SHALL INCLUDE PROVISION FOR THOSE POSITIONS WHICH HAVE BEEN FILLED CONTINUOUSLY FOR TWELVE CONSECUTIVE MONTHS OR MORE AS REGULAR AND NOT TEMPORARY EMPLOYMENTS, IF, IN THE JUDGMENT OF THE COMMISSIONERS, SUCH EMPLOYMENTS WILL BE FILLED THROUGHOUT THE FISCAL YEAR FOR WHICH THE ESTIMATES ARE SUBMITTED.

PURSUANT TO THIS PROVISION THE ESTIMATES FOR THE FISCAL YEAR 1927 WERE SUBMITTED TRANSFERRING SOME 115 PER DIEM POSITIONS IN THE TOTAL SUM OF $213,140 TO THE "REGULAR ANNUAL ROLL" UNDER SPECIFIED HEADS OF APPROPRIATIONS. SEE HEARINGS ON THE 1927 APPROPRIATION ACT, PAGE 36 ET SEQ. THE FOLLOWING IS QUOTED FROM THE HEARINGS:

MR. FUNK. WHAT ASSURANCE HAVE WE, WHEN WE PROVIDE THE MONEY FOR THE MEN WHO HAVE BEEN EMPLOYED TEMPORARILY, THAT YOU WILL NOT MAKE THEM PERMANENT? HOW DO WE KNOW THAT YOU WILL NOT TAKE IN TEMPORARY EMPLOYEES AGAIN, IN ADDITION TO WHAT WE ALLOW YOU PERMANENTLY?

MR. SIMMONS. IF I GATHER WHAT MR. FUNK HAD IN MIND IT WAS THIS: YOU ARE TAKING YOUR PER DIEM MEN AND PUTTING THEM ON THE REGULAR PAY ROLL, AND NOW WHAT ASSURANCE DOES CONGRESS HAVE THAT YOU WILL NOT GO OUT AND PUT ON MORE PER DIEM MEN?

MR. DONOVA. WE ARE ASKING IN THE ESTIMATES FOR 1927 THAT WE BE PERMITTED, AFTER THESE MEN ARE TRANSFERRED TO THE REGULAR ROLL, TO EMPLOY TEMPORARY PER DIEM SERVICES IN EMERGENCIES IN AN AMOUNT NOT EXCEEDING $20,000. THE DISTRICT CAN EMPLOY SERVICES OF THIS CHARACTER ONLY AS AND TO THE EXTENT AUTHORIZED BY CONGRESS.

THE FIRST PARAGRAPH OF SECTION 2 OF THE ACT OF MAY 10, 1926, 44 STAT. 451, PROVIDES:

THAT THE SERVICES OF DRAFTSMEN, ASSISTANT ENGINEERS, LEVELERS, TRANSITMEN, RODMEN, CHAINMEN, COMPUTERS, COPYISTS, OVERSEERS, AND INSPECTORS TEMPORARILY REQUIRED IN CONNECTION WITH SEWER, STREET, STREET- CLEANING OR ROAD WORK, OR CONSTRUCTION AND REPAIR OF BUILDINGS AND BRIDGES, OR ANY GENERAL OR SPECIAL ENGINEERING OR CONSTRUCTION WORK AUTHORIZED BY APPROPRIATIONS MAY BE EMPLOYED EXCLUSIVELY TO CARRY INTO EFFECT SAID APPROPRIATIONS WHEN SPECIFICALLY AND IN WRITING ORDERED BY THE COMMISSIONERS, AND ALL SUCH NECESSARY EXPENDITURES FOR THE PROPER EXECUTION OF SAID WORK SHALL BE PAID FROM AND EQUITABLY CHARGED AGAINST THE SUMS APPROPRIATED FOR SAID WORK; AND THE COMMISSIONERS IN THEIR BUDGET ESTIMATES SHALL REPORT THE NUMBER OF SUCH EMPLOYEES PERFORMING SUCH SERVICES, AND THEIR WORK, AND THE SUMS PAID TO EACH, AND OUT OF WHAT APPROPRIATION: PROVIDED, THAT THE EXPENDITURES HEREUNDER SHALL NOT EXCEED $20,000 DURING THE FISCAL YEAR 1927: PROVIDED FURTHER, THAT NO PERSON SHALL BE EMPLOYED IN PURSUANCE OF THE AUTHORITY CONTAINED IN THIS PARAGRAPH FOR A LONGER PERIOD THAN NINE MONTHS IN THE AGGREGATE DURING THE FISCAL YEAR.

THE ENACTMENT BASICALLY AUTHORIZES TEMPORARY EMPLOYEES OF NAMED CLASSES TO BE EMPLOYED UPON CERTAIN WORK APPROPRIATED FOR AS LISTED. THE SECOND PROVISO QUOTED IS THE METHOD ADOPTED BY THE CONGRESS TO PREVENT THE DEVELOPMENT OF OTHER PERMANENT "TEMPORARY" FORCES OF DRAFTSMEN, ENGINEERS, ETC., AND WHILE THE APPROPRIATION IS AVAILABLE THROUGHOUT THE ENTIRE YEAR, NO ONE UNDER THAT AUTHORITY MAY BE EMPLOYED MORE THAN NINE MONTHS, AND SUCH EMPLOYEE MAY NOT BE GRANTED LEAVE UNDER THE LEAVE LAW APPLICABLE TO EMPLOYEES OF THE DISTRICT OF COLUMBIA. SEE DECISION CITED ABOVE AND THE LAST PARAGRAPH OF SECTION 5 OF THE ACT OF MAY 10, 1926. WHILE IT MAY BE THE SEASONAL NATURE OF THE WORK IN ITSELF LIMITS THE EMPLOYMENT TO NINE MONTHS OF THE YEAR, YET, HAVING REGARD TO THE ENTIRE ENACTMENT, THE NINE MONTHS' LIMITATION OF THE ENACTMENT IS A PROHIBITION AGAINST EMPLOYMENT WHICH WOULD GIVE A STATUS OF PERMANENCY.

THE ACT OF MAY 12, 1917, IS APPLICABLE TO PERMANENT EMPLOYEES ONLY AND IS NO AUTHORITY FOR THE PAYMENT TO A TEMPORARY EMPLOYEE FOR TIME HE IS ABSENT FROM AND DID NOT PERFORM THE DUTIES OF HIS CIVIL POSITION. DECISION TO THE SECRETARY OF THE INTERIOR OF SEPTEMBER 3, 1926, 6 COMP. GEN. 178.

YOU ARE ADVISED THAT PAYMENT OF THE VOUCHER WHICH IS RETURNED HEREWITH IS NOT AUTHORIZED.