A-26950, MAY 3, 1929, 8 COMP. GEN. 582

A-26950: May 3, 1929

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OFFICERS AND EMPLOYEES - APPOINTMENT - DETAIL AN EMPLOYEE IS NOT ENTITLED TO COMPENSATION FOR SERVICES RENDERED PRIOR TO THE DATE OF APPOINTMENT. THERE IS NO AUTHORITY OF LAW FOR THE EMPLOYMENT OF PERSONS IN OTHER BRANCHES OF THE GOVERNMENT FOR THE SOLE PURPOSE OF DETAILING THEM TO THE PERSONNEL CLASSIFICATION BOARD. 1929: I HAVE YOUR LETTER OF APRIL 18. A JOB-DESCRIPTION SHEET WAS PREPARED IMMEDIATELY AND SUBMITTED TO THE BOARD AND WAS RECEIVED FROM THE BOARD ON OCTOBER 2. KENNEDY'S TEMPORARY APPOINTMENT HAD BEEN APPROVED BY THE CIVIL SERVICE COMMISSION AND FORMAL NOTIFICATION WAS ISSUED TO HIM APPOINTING HIM AS A JUNIOR CLERK. SHOWING THAT SERVICES WERE RENDERED BY MR. IT IS REQUESTED THAT YOU ADVISE ME WHETHER THE DEPARTMENT MAY PROPERLY PAY MR.

A-26950, MAY 3, 1929, 8 COMP. GEN. 582

OFFICERS AND EMPLOYEES - APPOINTMENT - DETAIL AN EMPLOYEE IS NOT ENTITLED TO COMPENSATION FOR SERVICES RENDERED PRIOR TO THE DATE OF APPOINTMENT. THERE IS NO AUTHORITY OF LAW FOR THE EMPLOYMENT OF PERSONS IN OTHER BRANCHES OF THE GOVERNMENT FOR THE SOLE PURPOSE OF DETAILING THEM TO THE PERSONNEL CLASSIFICATION BOARD.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, MAY 3, 1929:

I HAVE YOUR LETTER OF APRIL 18, 1929, AS FOLLOWS:

IN THE LATTER PART OF SEPTEMBER, 1928, THE PERSONNEL CLASSIFICATION BOARD ASKED THIS DEPARTMENT IF IT WOULD BE WILLING TO PAY THE SALARY OF AN ADDITIONAL TEMPORARY CLERK FOR DETAIL TO THE BOARD, AND UPON RECEIVING INFORMATION IN THE AFFIRMATIVE, SENT MR. THOMAS J. KENNEDY TO THE DEPARTMENT ON SEPTEMBER 27 IN ORDER THAT ARRANGEMENTS MIGHT BE MADE FOR HIS APPOINTMENT. MR. KENNEDY STATED THAT HE HAD COMMENCED WORK WITH THE BOARD ON SEPTEMBER 27 AND TELEPHONE INQUIRY BY THE DEPARTMENT OF THE BOARD SHOWED THIS TO BE THE FACT. A JOB-DESCRIPTION SHEET WAS PREPARED IMMEDIATELY AND SUBMITTED TO THE BOARD AND WAS RECEIVED FROM THE BOARD ON OCTOBER 2, 1928. IN THE MEANTIME MR. KENNEDY'S TEMPORARY APPOINTMENT HAD BEEN APPROVED BY THE CIVIL SERVICE COMMISSION AND FORMAL NOTIFICATION WAS ISSUED TO HIM APPOINTING HIM AS A JUNIOR CLERK, AT $1,440 PER ANNUM, EFFECTIVE OCTOBER 2, 1928, TO TERMINATE NOT LATER THAN JANUARY 1, 1929.

MR. KENNEDY HAS BEEN PAID FOR SERVICES PERFORMED BY HIM COMMENCING OCTOBER 2, 1928, BUT HAS NOT BEEN PAID FOR SERVICES RENDERED FROM SEPTEMBER 27, 1928, TO OCTOBER 1, 1928, INCLUSIVE. I TRANSMIT HEREWITH A LETTER, DATED MARCH 18, 1929, FROM THE CHAIRMAN OF THE PERSONNEL CLASSIFICATION BOARD, WITH INCLOSURE, SHOWING THAT SERVICES WERE RENDERED BY MR. KENNEDY FOR THE PERIOD SEPTEMBER 27 TO OCTOBER 1, 1928.

IT IS REQUESTED THAT YOU ADVISE ME WHETHER THE DEPARTMENT MAY PROPERLY PAY MR. KENNEDY FOR THE SERVICES RENDERED BY HIM FROM SEPTEMBER 27 TO OCTOBER 1, 1928, INCLUSIVE, AND IF NOT, WHETHER YOU ARE WILLING TO RECOMMEND PAYMENT BY CONGRESS UNDER THE PROVISIONS OF THE ACT APPROVED APRIL 10, 1928, AS AN EQUITABLE CLAIM.

ORIGINAL APPOINTMENTS TO POSITIONS IN THE CIVIL SERVICE ARE EFFECTIVE ONLY FROM DATE OF ACCEPTANCE AND ENTRANCE ON DUTY AFTER THE APPOINTING POWER ACTUALLY TAKES ACTION THEREON, UNLESS A LATER DATE IS STATED IN THE APPOINTMENT. SEE 3 COMP. GEN. 559. IN OTHER WORDS, AN APPOINTMENT MAY BE MADE EFFECTIVE ON A DATE SUBSEQUENT TO BUT NOT ON A DATE PRIOR TO THE DATE THE OFFICER HAVING AUTHORITY TO MAKE THE APPOINTMENT ACTUALLY MAKES OR APPROVES SAME.

ACCORDINGLY, SINCE IT APPEARS THAT THE APPOINTMENT IN THE INSTANT CASE WAS NOT ACTUALLY MADE UNTIL OCTOBER 2, 1928, THE EMPLOYEE WAS NOT ENTITLED TO COMPENSATION FOR SERVICES RENDERED PRIOR TO THAT DATE.

YOUR INQUIRY WHETHER THIS OFFICE IS WILLING TO RECOMMEND PAYMENT TO THE EMPLOYEE IN QUESTION UNDER THE PROVISIONS OF THE ACT OF APRIL 10, 1928, 45 STAT. 413, MUST ALSO BE ANSWERED IN THE NEGATIVE. ANY SERVICE THIS EMPLOYEE MAY HAVE RENDERED PRIOR TO OCTOBER 2, 1928, WAS VOLUNTARY SERVICE THE ACCEPTANCE OF WHICH BY THE PERSONNEL CLASSIFICATION BOARD WAS IN DIRECT VIOLATION OF A PROVISION IN SECTION 3679, REVISED STATUTES, AS AMENDED BY SECTION 4 OF THE ACT OF MARCH 3, 1905, 33 STAT. 1257, AND SECTION 3 OF THE ACT OF FEBRUARY 27, 1906, 34 STAT. 48. THEREFORE IT IS NOT CONSIDERED THAT THE CLAIM FOR PAY FOR SERVICES RENDERED PRIOR TO THE DATE OF APPOINTMENT CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF THE CONSIDERATION OF THE CONGRESS.

THE FACTS SET FORTH IN YOUR LETTER PRESENT ANOTHER QUESTION, NOT SUGGESTED BY YOU, NAMELY, WHETHER THERE WAS ANY AUTHORITY OF LAW FOR THE APPOINTMENT OF AN EMPLOYEE IN YOUR DEPARTMENT FOR THE SOLE PURPOSE OF DETAILING HIM TO THE PERSONNEL CLASSIFICATION BOARD.

THE ONLY AUTHORITY FOR DETAIL OF EMPLOYEES BY THE HEADS OF DEPARTMENTS FOR TEMPORARY SERVICE UNDER THE DIRECTION OF THE PERSONNEL CLASSIFICATION BOARD IS THAT CONTAINED IN PARAGRAPH 2 OF SECTION 3 OF "THE CLASSIFICATION ACT OF 1923," APPROVED MARCH 4, 1923, 42 STAT. 1489, AS FOLLOWS:

SUBJECT TO THE APPROVAL OF THE PRESIDENT, THE HEADS OF THE DEPARTMENTS SHALL DETAIL TO THE BOARD, AT ITS REQUEST, FOR TEMPORARY SERVICE UNDER ITS DIRECTION, OFFICERS OR EMPLOYEES POSSESSED OF SPECIAL KNOWLEDGE, ABILITY, OR EXPERIENCE REQUIRED IN THE CLASSIFICATION AND ALLOCATION OF POSITIONS *

THIS PROVISION CLEARLY CONTEMPLATES THE DETAIL BY HEADS OF DEPARTMENTS OF ONLY SUCH EMPLOYEES IN THE DEPARTMENTS AS MAY BE QUALIFIED, BY REASON OF SPECIAL KNOWLEDGE, ABILITY, OR EXPERIENCE, TO PERFORM SERVICE IN THE CLASSIFICATION AND ALLOCATION OF POSITIONS AND WHOSE SERVICE MAY BE TEMPORARILY SPARED FROM THEIR REGULAR DUTIES IN THE DEPARTMENTS. THE PROVISION DOES NOT AUTHORIZE THE EMPLOYMENT FOR THE EXPRESS PURPOSE OF DETAIL OF PERSONS WHO MAY BE SELECTED BY THE PERSONNEL CLASSIFICATION BOARD. SUCH PROCEDURE WOULD BE TANTAMOUNT TO THE EMPLOYMENT BY THE PERSONNEL CLASSIFICATION BOARD OF PERSONAL SERVICES TO BE PAID FOR FROM AN APPROPRIATION MADE FOR SOME OTHER GOVERNMENTAL ACTIVITY. SEE 25 COMP. DEC. 935. IT IS EVIDENT THAT THE LAW CONTEMPLATED THAT THE PERSONNEL NECESSARY TO PERFORM THE CLERICAL, ROUTINE, AND OTHER ORDINARY DUTIES IN CONNECTION WITH THE WORK OF THE PERSONNEL CLASSIFICATION BOARD ARE TO BE FURNISHED BY THESE ESTABLISHMENTS THE HEAD OFFICERS OF WHICH COMPRISE THE BOARD, UNDER THE PROVISION OF SECTION 3 OF THE SAID ACT WHICH READS: "THE CIVIL SERVICE COMMISSION, THE BUREAU OF THE BUDGET, AND THE BUREAU OF EFFICIENCY SHALL RENDER THE BOARD SUCH COOPERATION AND ASSISTANCE AS THE BOARD MAY REQUIRE FOR THE PERFORMANCE OF ITS DUTIES UNDER THIS ACT.'

INASMUCH AS THE EMPLOYMENT REFERRED TO IN YOUR LETTER WAS TO TERMINATE NOT LATER THAN JANUARY 1, 1929, NO FURTHER QUESTION WILL BE RAISED AS TO THE PAYMENTS MADE FOR THE SERVICE RENDERED UNDER THE APPOINTMENT, BUT THE MATTER IS BROUGHT TO YOUR ATTENTION FOR CONSIDERATION SHOULD SIMILAR CASES ARISE HEREAFTER.