A-23388, JUNE 26, 1928, 7 COMP. GEN. 816

A-23388: Jun 26, 1928

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ARE FIELD EMPLOYEES WHOSE SALARY RATES WERE NEVER ADJUSTED. WERE NOT AUTHORIZED TO BE ADJUSTED UNDER THE ACT OF DECEMBER 6. THERE ARE PRESENTED FOR DECISION BY YOUR OFFICE CERTAIN QUESTIONS IN RESPECT TO CIVIL SERVICE EMPLOYEES. WHO ARE EMPLOYED BY THE CHILDREN'S BUREAU OF THE DEPARTMENT OF LABOR IN POSITIONS OUTSIDE THE DISTRICT OF COLUMBIA AND THEREFORE NOT CLASSIFIED BY THE PERSONNEL CLASSIFICATION BOARD. THESE EMPLOYEES ARE PAID FROM THE APPROPRIATION "GENERAL EXPENSES. IT WAS HELD THAT "THE CLASSIFICATION ACT OF MARCH 4. IS. " AND THAT "IT IS IMMATERIAL WHETHER THE EMPLOYMENT IS TEMPORARY OR PERMANENT.'. THESE POSITIONS WERE NOT COVERED BY ADDITIONAL APPROPRIATIONS UNDER THE ACT OF DECEMBER 6.

A-23388, JUNE 26, 1928, 7 COMP. GEN. 816

CLASSIFICATION OF CIVILIAN EMPLOYEES - APPLICATION OF ACT OF MAY 28, 1928 - FIELD EMPLOYEES OF CHILDREN'S BUREAU AS THE EMPLOYEES UNDER THE CHILDREN'S BUREAU, DEPARTMENT OF LABOR, WORKING OUTSIDE OF WASHINGTON, ARE FIELD EMPLOYEES WHOSE SALARY RATES WERE NEVER ADJUSTED, AND WERE NOT AUTHORIZED TO BE ADJUSTED UNDER THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, 709, THE SALARY RATES OF THE POSITIONS HELD BY SUCH EMPLOYEES MAY NOT BE ADJUSTED UNDER SECTION 3 OF THE ACT OF MAY 28, 1928, 45 STAT. 785.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, JUNE 26, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JUNE 19, 1928, AS FOLLOWS:

WITH REFERENCE TO SECTION 3 OF THE ACT OF MAY 28, 1928, AMENDING SECTION 13 OF THE CLASSIFICATION ACT OF MARCH 4, 1923, THERE ARE PRESENTED FOR DECISION BY YOUR OFFICE CERTAIN QUESTIONS IN RESPECT TO CIVIL SERVICE EMPLOYEES, QUALIFIED BY EXAMINATION FOR APPOINTMENT TO EITHER THE DEPARTMENTAL OR FIELD SERVICE, WHO ARE EMPLOYED BY THE CHILDREN'S BUREAU OF THE DEPARTMENT OF LABOR IN POSITIONS OUTSIDE THE DISTRICT OF COLUMBIA AND THEREFORE NOT CLASSIFIED BY THE PERSONNEL CLASSIFICATION BOARD. THESE EMPLOYEES ARE PAID FROM THE APPROPRIATION "GENERAL EXPENSES, CHILDREN'S BUREAU," "INVESTIGATION OF CHILD WELFARE, CHILDREN'S BUREAU," OR ,ADMINISTRATIVE EXPENSES, WELFARE AND HYGIENE OF MATERNITY AND INFANCY.'

PRESUMABLY THESE EMPLOYEES MUST BE CONSIDERED AS DEPARTMENTAL OR FIELD SERVICE EMPLOYEES. IN 4 COMP. GEN., 291, WHICH CONCERNED MORE SPECIFICALLY THE CLASSIFICATION OF THESE EMPLOYEES BY THE PERSONNEL CLASSIFICATION BOARD, IT WAS HELD THAT "THE CLASSIFICATION ACT OF MARCH 4, 1923, IS, AT THE PRESENT TIME, APPLICABLE ONLY TO EMPLOYMENT OF PERSONAL SERVICE IN THE DISTRICT OF COLUMBIA," AND THAT "IT IS IMMATERIAL WHETHER THE EMPLOYMENT IS TEMPORARY OR PERMANENT.'

THESE POSITIONS WERE NOT COVERED BY ADDITIONAL APPROPRIATIONS UNDER THE ACT OF DECEMBER 6, 1924. THE DEPARTMENT WILL APPRECIATE YOUR OPINION AS TO WHETHER THEY SHOULD NOT HAVE BEEN REGARDED AS FIELD EMPLOYEES, AND WHETHER THEY MAY NOT BE REGARDED AS COVERED BY SECTION 3 OF THE ACT OF MAY 28, 1928. IF THEY ARE SO REGARDED, WOULD THE MAXIMUM RATE OF $6.00 A DAY FOR EXPERTS AND TEMPORARY ASSISTANTS AND $4.00 A DAY WHEN ACTUALLY EMPLOYED FOR INTERPRETERS, BOTH IN THE GENERAL EXPENSE APPROPRIATION, AND THE FIVE PERCENTUM CLAUSE IN SECTION 5 OF THE MATERNITY AND INFANCY ACT OF NOVEMBER 23, 1921, 42 STAT. 224, BE CONSIDERED AS SUPERSEDED BY THE WELCH ACT?

THE CHILDREN'S BUREAU HAS NO PERMANENT FIELD STATIONS, BUT UNDER THE THREE APPROPRIATIONS MENTIONED ABOVE IT EMPLOYS PERSONS OUTSIDE THE DISTRICT OF COLUMBIA. THE LOCALITY AND THE PERIODS OF EMPLOYMENT VARY FROM A FEW MONTHS TO SEVERAL YEARS, DEPENDING UPON THE NATURE AND EXTENT OF THE STUDIES UNDERTAKEN.

MOST OF THESE EMPLOYEES ARE PAID AT PER ANNUM RATES OF COMPENSATION, BUT A FEW ARE EMPLOYED AT SIXTY, SIXTY-FIVE AND EIGHTY-FIVE CENTS AN HOUR.

SPECIFICALLY THE QUESTIONS ON WHICH YOUR DECISION IS ASKED IN RESPECT TO EMPLOYEES APPOINTED FOR DUTY OUTSIDE WASHINGTON WHO ARE PAID FROM THE THREE APPROPRIATIONS SPECIFIED ARE: (1) ARE THEY FIELD SERVICE EMPLOYEES? (2) CAN THEY PROPERLY BE INCLUDED AS BEING COVERED BY THE ACTS OF DECEMBER 6, 1924, AND MAY 28, 1928? (3) SHOULD THEY RECEIVE EFFECTIVE JULY 1, 1928, THE SALARY RATES COMPARABLE WITH THE SAME CLASS OF EMPLOYEES SERVING IN WASHINGTON, D.C. ? (4) MAY SUCH DEFICIENCIES IN APPROPRIATION AS MAY ARISE BY REASON THEREOF BE INCLUDED IN REPORTS FOR SUBMISSION TO THE CONGRESS AT ITS NEXT SESSION?

THE DECISION OF SEPTEMBER 11, 1924, 4 COMP. GEN. 291, TO WHICH YOU REFER, SPECIFICALLY HELD (P. 292) AS FOLLOWS:

ACCORDINGLY, BASED ON YOUR STATEMENT AND THE PROVISIONS OF THE APPROPRIATION ACT, YOU ARE ADVISED THAT UNDER THE LAW AS NOW IN EXISTENCE THE POSITIONS OF "EXPERTS AND TEMPORARY SISTANTS," "INTERPRETERS," AND POSITIONS UNDER THE CHILDREN'S BUREAU OUTSIDE OF THE DISTRICT OF COLUMBIA ARE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1923. THE COMPENSATION OF THE EXPERTS AND TEMPORARY ASSISTANTS AND INTERPRETERS IS LIMITED TO THE MAXIMUM RATE PER DAY WHILE ACTUALLY EMPLOYED, AS FIXED BY THE APPROPRIATION ACT FOR THE FISCAL YEAR 1925. * * *

THE PROVISIONS OF THE APPROPRIATION ACT FOR THE FISCAL YEAR 1929, DATED FEBRUARY 15, 1928, 45 STAT. 108, UNDER THE HEADING "CHILDREN'S BUREAU," ARE PRACTICALLY IDENTICAL, IN SO FAR AS HERE MATERIAL, WITH THE PROVISIONS OF THE APPROPRIATION ACT FOR THE FISCAL YEAR 1925, CONSIDERED IN SAID DECISION. THE PROVISIONS OF THE ORIGINAL CLASSIFICATION ACT OF 1923 HAVE NOT BEEN EXTENDED TO THE FIELD SERVICE BY THE ACT OF MAY 28, 1928, 45 STAT. 776, KNOWN AS THE WELCH ACT, OR BY ANY OTHER STATUTE. THEREFORE, THE HOLDING MADE IN SAID DECISION REMAINS FOR APPLICATION.

SECTION 3 OF THE ACT OF MAY 28, 1928, SUPRA, PROVIDES AS FOLLOWS:

THE HEADS OF THE SEVERAL EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS ARE AUTHORIZED TO ADJUST THE COMPENSATION OF CERTAIN CIVILIAN POSITIONS IN THE FIELD SERVICES, THE COMPENSATION OF WHICH WAS ADJUSTED BY THE ACT OF DECEMBER 6, 1924, TO CORRESPOND, SO FAR AS MAY BE PRACTICABLE, TO THE RATES ESTABLISHED BY THIS ACT FOR POSITIONS IN THE DEPARTMENTAL SERVICES IN THE DISTRICT OF COLUMBIA.

FOR A GENERAL APPLICATION OF THIS PROVISION SEE DECISION OF JUNE 21, 1928, A-23263, 7 COMP. GEN. 804.

BY THE PLAIN TERMS OF THE STATUTE, THIS SECTION WOULD NOT BE APPLICABLE TO CIVILIAN POSITIONS IN ANY FIELD SERVICE, THE COMPENSATION OF WHICH WAS NOT ADJUSTED, OR AUTHORIZED TO BE ADJUSTED, BY THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, 709. AS THIS EARLIER STATUTE DID NOT INCLUDE APPROPRIATIONS FOR ANY PORTION OF THE CHILDREN'S BUREAU UNDER THE LABOR DEPARTMENT, OR ANY PROVISION THEREIN INDICATING AN INTENT TO INCLUDE THE CHILDREN'S BUREAU WITHIN ITS PROVISIONS, AND AS SALARY RATES OF FIELD EMPLOYEES UNDER THE CHILDREN'S BUREAU HAVE NOT BEEN ADJUSTED, OR HERETOFORE CONSIDERED AS FOR ADJUSTMENTS, UNDER THE PROVISIONS OF SAID ACT OF 1924 TO CORRESPOND TO SALARY RATES IN DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA, IT FOLLOWS THAT THE SIMILAR AUTHORITY CONTAINED IN SECTION 3 OF THE ACT OF MAY 28, 1928, ABOVE QUOTED, WOULD NOT BE APPLICABLE TO THE FIELD EMPLOYEES UNDER THE CHILDREN'S BUREAU.

ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE AND THE THREE REMAINING QUESTIONS ARE ANSWERED IN THE NEGATIVE.