A-43301, JULY 20, 1932, 12 COMP. GEN. 83

A-43301: Jul 20, 1932

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ECONOMY ACT - LEGISLATIVE EMPLOYEES ABSENCES DURING RECESSES OF THE CONGRESS ARE NOT TO BE CONSIDERED AS "ANNUAL LEAVE OF ABSENCE" WITHIN THE MEANING OF SECTION 103 OF THE ACT OF JUNE 30. AS TO THOSE LEGISLATIVE EMPLOYEES WHO ARE REQUIRED TO PERFORM DUTIES ONLY IN CONNECTION WITH THE ACTIVITIES OF THE CONGRESS. THE TIME WHEN THE LEGISLATIVE FURLOUGH WITHOUT PAY OF ONE CALENDAR MONTH IS TO BE TAKEN UNDER THE TERMS OF SECTION 101 (B) OF THE ACT OF JUNE 30. IS PRIMARILY WITHIN ADMINISTRATIVE DISCRETION TO MEET THE NEEDS OF THE SERVICE. ARE NOT APPLICABLE TO APPROPRIATIONS PROVIDED FOR THE USE OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL. IS WITHIN THE TERM "CIVIL BRANCH OF THE UNITED STATES GOVERNMENT" AS USED IN SECTION 202 OF THE ECONOMY ACT PROHIBITING ADMINISTRATIVE PROMOTIONS DURING THE FISCAL YEAR 1933.

A-43301, JULY 20, 1932, 12 COMP. GEN. 83

ECONOMY ACT - LEGISLATIVE EMPLOYEES ABSENCES DURING RECESSES OF THE CONGRESS ARE NOT TO BE CONSIDERED AS "ANNUAL LEAVE OF ABSENCE" WITHIN THE MEANING OF SECTION 103 OF THE ACT OF JUNE 30, 1932, 47 STAT. 400, AS TO THOSE LEGISLATIVE EMPLOYEES WHO ARE REQUIRED TO PERFORM DUTIES ONLY IN CONNECTION WITH THE ACTIVITIES OF THE CONGRESS. THE TIME WHEN THE LEGISLATIVE FURLOUGH WITHOUT PAY OF ONE CALENDAR MONTH IS TO BE TAKEN UNDER THE TERMS OF SECTION 101 (B) OF THE ACT OF JUNE 30, 1932, 47 STAT. 399, IS PRIMARILY WITHIN ADMINISTRATIVE DISCRETION TO MEET THE NEEDS OF THE SERVICE, EXCEPT THAT NO OFFICER OR EMPLOYEE MAY BE FURLOUGHED FOR MORE THAN FIVE DAYS IN ANY CALENDAR MONTH WITHOUT HIS CONSENT. THE RESTRICTIONS CONTAINED IN SECTION 203 OF THE ECONOMY ACT AGAINST THE USES OF APPROPRIATED FUNDS "AVAILABLE TO ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OR TO THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA" FOR THE FILLING OF VACANT POSITIONS DURING THE FISCAL YEAR 1933, ARE NOT APPLICABLE TO APPROPRIATIONS PROVIDED FOR THE USE OF THE OFFICE OF THE ARCHITECT OF THE CAPITOL, UNDER THE LEGISLATIVE BRANCH OF THE GOVERNMENT. THE LEGISLATIVE BRANCH OF THE GOVERNMENT, INCLUDING THE OFFICE OF THE ARCHITECT OF THE CAPITOL, IS WITHIN THE TERM "CIVIL BRANCH OF THE UNITED STATES GOVERNMENT" AS USED IN SECTION 202 OF THE ECONOMY ACT PROHIBITING ADMINISTRATIVE PROMOTIONS DURING THE FISCAL YEAR 1933. NEW POSITIONS PROVIDED FOR IN APPROPRIATIONS FOR THE FISCAL YEAR 1933 UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL MAY BE FILLED BY EMPLOYEES FROM WITHIN THE SERVICE RESULTING IN AN INCREASE IN COMPENSATION ONLY WITH THE APPROVAL OF THE PRESIDENT, BUT SUCH POSITIONS MAY BE FILLED BY TRANSFER OF EMPLOYEES WITHOUT THE APPROVAL OF THE PRESIDENT IF NO INCREASE IN COMPENSATION IS INVOLVED. LEGISLATIVE EMPLOYEES MAY BE GRANTED MILITARY LEAVE OF ABSENCE WITH PAY DURING THE FISCAL YEAR 1933. AS ARCHITECTS EMPLOYED UNDER PERSONAL-SERVICE CONTRACTS ARE EMPLOYEES OF THE GOVERNMENT AND SUBJECT TO THE STATUTORY LIMITATIONS ON THE AMOUNT OF TRAVEL ALLOWANCE, THE ARCHITECT OF THE CAPITOL IS REQUIRED TO REDUCE THE RATE FIXED FOR TRAVEL ALLOWANCE IN EXISTING PERSONAL-SERVICE CONTRACTS UNDER WHICH ARCHITECTS ARE EMPLOYED TO THE RATES FIXED IN THE SUBSISTENCE EXPENSE ACT OF 1926, AS AMENDED BY SECTIONS 207-210 OF THE ECONOMY ACT. THE TEMPORARY EMPLOYEES ENGAGED IN CONNECTION WITH THE CONSTRUCTION WORK PERFORMED UNDER THE DIRECTION OF THE ARCHITECT OF THE CAPITOL WHOSE COMPENSATION IS AT A RATE IN EXCESS OF $1,000 PER ANNUM ARE SUBJECT TO THE RESTRICTIONS OF THE 5-DAY WEEK, LEGISLATIVE FURLOUGH, OR PERCENTAGE REDUCTION IN COMPENSATION. THE COMPENSATION OF PER DIEM EMPLOYEES UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL WHO, PRIOR TO JULY 1, 1932, DID NOT REGULARLY WORK MORE THAN FIVE DAYS PER WEEK, IS NOT FOR ADJUSTMENT UNDER THE TERMS OF SECTION 101 (A) OF THE ECONOMY ACT ON THE BASIS OF TEN ELEVENTHS OF THE RATE FOR A WEEK'S WORK OF FIVE AND ONE-HALF DAYS, BUT THEIR COMPENSATION RATE AS OF JUNE 30, 1932, IS SUBJECT TO THE REDUCTION OF 8 1/3 PERCENT IF IN EXCESS OF THE RATE EQUIVALENT TO $1,000 PER ANNUM.

COMPTROLLER GENERAL MCCARL TO THE ARCHITECT OF THE CAPITOL, JULY 20, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 8, 1932, PRESENTING FOR DECISION A NUMBER OF QUESTIONS INVOLVING THE APPLICATION OF PROVISIONS OF THE ACT OF JUNE 30, 1932, PUBLIC, NO. 212, 47 STAT. 382. THE PORTIONS OF YOUR LETTER CONTAINING THE SEVERAL QUESTIONS WILL BE STATED AND CONSIDERED IN THE ORDER APPEARING:

* * * THERE ARE 60 EMPLOYEES, CARRIED ON PAY ROLLS UNDER THE JURISDICTION OF THIS OFFICE, ENGAGED IN THE CAPACITY OF ELEVATOR OPERATORS AND CONDUCTORS WHOSE SERVICES ARE UNDER PATRONAGE CONTROL. THESE EMPLOYEES ARE SELECTED BY THE PATRONAGE COMMITTEES OF THE HOUSE AND SENATE AND THE APPOINTMENTS MADE BY THE ARCHITECT OF THE CAPITOL UPON INSTRUCTIONS FROM THESE COMMITTEES. THESE EMPLOYEES HAVE ALWAYS BEEN SUBJECT TO THE SAME CONDITIONS AS THE PARTRONAGE EMPLOYEES PAID ON THE ROLLS OF THE HOUSE AND SENATE AND HAVE BEEN REQUIRED TO RENDER REGULAR SERVICES ONLY DURING THE SESSIONS OF THE CONGRESS.

DURING THE RECESS PERIODS OF THE CONGRESS, THESE EMPLOYEES ARE PERMITTED SUCH ABSENCES FROM DUTY WITH PAY AS THE CONGRESSIONAL COMMISSIONS IN CHARGE OF THESE EMPLOYEES CHOOSE TO GRANT THEM. THEIR TENURE OF OFFICE IS OF NO DEFINITE DURATION, BEING SUBJECT TO TERMINATION AT THE WILL OF THE PATRONAGE COMMITTEES.

WITH REFERENCE TO THE APPLICATION OF THE PROVISIONS OF THE ACT WITH REGARD TO ABSENCE WITH PAY WHEN APPLIED TO THESE EMPLOYEES, IT SHOULD BE NOTED THAT IF ALL OF THESE EMPLOYEES WERE HELD ON DUTY DURING THE RECESS OF THE CONGRESS, THERE WOULD BE NO DUTY FOR THEM TO PERFORM IN THAT ONLY CERTAIN OF THE ELEVATORS IN THE CAPITOL, HOUSE, AND SENATE OFFICE BUILDINGS ARE OPERATED DURING THIS PERIOD. HOWEVER, DURING THE PERIOD WHILE THE CONGRESS IS IN SESSION, THESE ELEVATOR CONDUCTORS ARE REQUIRED TO REMAIN ON DUTY UNTIL THE RESPECTIVE HOUSES UNDER WHICH THEY ARE EMPLOYED ADJOURN.

THIS OFFICE, THEREFORE, WILL PROCEED ON THE BASIS THAT THESE EMPLOYEES DO NOT FALL WITHIN THE PROVISION OF SECTION 103. IT SHOULD BE NOTED THAT IN SO FAR AS THE LEGISLATIVE BRANCH OF THE GOVERNMENT IS CONCERNED ITS OFFICERS AND EMPLOYEES ARE ON DUTY FOR WHATEVER PERIODS ARE NECESSARY TO SERVE THE CONGRESS WHILE IN OR OUT OF SESSION. DAILY PERIODS OF DUTY ARE NOT CONTROLLED BY REGULAR HOURS AND COMPENSATORY PERIODS OF ABSENCE WITH PAY ARE THEREFORE NECESSARY FOR THE LONG HOURS OF CONTINUOUS DUTIES.

SECTION 103 OF THE ACT OF JUNE 30, 1932, PUBLIC, NO. 212, 47 STAT. 400, PROVIDES:

ALL RIGHTS NOW CONFERRED OR AUTHORIZED TO BE CONFERRED BY LAW UPON ANY OFFICER OR EMPLOYEE TO RECEIVE ANNUAL LEAVE OF ABSENCE WITH PAY ARE HEREBY SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1933.

IN DECISION OF JULY 14, 1932, TO THE SECRETARY OF WAR, A-43204, 12 COMP. GEN. 37, IT WAS TATED:

ABSENCE FROM PLACE OF DUTY, AS DISTINGUISHED FROM ABSENCE FROM DUTY, WHEN ACTUAL SERVICE MAY NOT BE RENDERED NOR DUTIES PERFORMED, IS NOT, BY ANY REASONABLE APPLICATION OF PHRASE "ANNUAL LEAVE OF ABSENCE WITH PAY" WITHIN THE MEANING OF THE STATUTE. THAT IS TO SAY, IF A YEAR OF SERVICE IS LESS THAN 12 MONTHS DUE TO CONDITIONS OVER WHICH THE OFFICERS AND EMPLOYEES HAVE NO CONTROL, SUCH AS THE LENGTH OF THE SCHOOL YEAR, OR A TERM OF COURT HERETOFORE ESTABLISHED, AND NOT GENERALLY SUSCEPTIBLE TO CHANGE BY ADMINISTRATIVE ACTION, THE REMAINDER OF THE PERIOD OF THE YEAR WHEN NO SERVICE MAY BE PERFORMED IS NOT "ANNUAL LEAVE OF ABSENCE" WITHIN THE MEANING OF SECTION 103 OF THE STATUTE. * * *

APPLYING THE SAME PRINCIPLE, ABSENCES DURING RECESSES OF CONGRESS ARE NOT TO BE CONSIDERED AS ,ANNUAL LEAVE OF ABSENCE" AS TO THOSE LEGISLATIVE EMPLOYEES WHO ARE REQUIRED TO PERFORM DUTIES ONLY IN CONNECTION WITH THE ACTIVITIES OF THE CONGRESS.

AS TO THE APPLICATION OF THE FURLOUGH PLAN TO THIS ORGANIZATION, THE QUESTION IS RAISED AS TO WHETHER OR NOT 2 1/2 DAYS DEDUCTIONS IN PAY MAY BE MADE EVERY MONTH FROM ALL EMPLOYEES' PAY REGARDLESS OF WHETHER THE FURLOUGH IS ACTUALLY TAKEN EACH MONTH OR NOT; OR WHETHER THE DEDUCTIONS MAY ONLY BE MADE AS THE FURLOUGH IS ACTUALLY USED FROM MONTH TO MONTH. IS PRESUMED THAT 1 1/4 DAYS PAY MUST BE DEDUCTED FOR EACH DAY A FURLOUGH IS TAKEN.

IN THE PREPARATION OF PAY ROLLS, THIS OFFICE DESIRES TO BE INFORMED WHETHER DEDUCTIONS UNDER THE 8 1/3 PERCENT REDUCTION PLAN AND THE FURLOUGH PLAN SHOULD BE REFLECTED IN THE GROSS AMOUNT EARNED OR SHOULD BE RECORDED AS A DISTINCT DEDUCTION IN THE COLUMN CAPTIONED "OTHER DEDUCTIONS" (STANDARD FORM 1013).

CHART

GR. AMT. NET AMT.

EARNED RET. DED. OTHER DED. PAID REMARKS JOHN DOE, SENIOR CLERK, CAF--- 5, $2,400 PER ANNUM---------- ------ $200.00 $7.00 $16.67 $176.33 8 1/3

PERCENT

DED. OR JOHN DOE, SENIOR CLERK, CAF-- 5, $2,400 PER ANNUM--------------- -- 183.33 7.00 ----- 176.33 8 1/3

PERCENT

DED.

IN DECISION OF JULY 8, 1932, A-43126, 12 COMP. GEN. 11 TO THE PUBLIC PRINTER, IT WAS STATED:

* * * THE TIME WHEN THE FURLOUGH MAY BE TAKEN UNDER SUBSECTION (B) IS PRIMARILY WITHIN ADMINISTRATIVE DISCRETION TO MEET THE NEEDS OF THE SERVICE, EXCEPT THAT NO OFFICER OR EMPLOYEE MAY BE FURLOUGHED FOR MORE THAN FIVE DAYS IN ANY ONE CALENDAR MONTH WITHOUT HIS CONSENT. * * *

IT IS BELIEVED YOUR PROBLEMS EXPRESSED IN THESE PARAGRAPHS WILL BE SOLVED BY A CAREFUL APPLICATION OF THE PRINCIPLES AND PROCEDURE STATED IN GENERAL DECISION OF JULY 8, 1932, A-43276, 12 COMP. GEN. 16, AND GENERAL LETTER OF JULY 12, 1932, CONTAINING PAY ROLL AND ACCOUNTING PROCEDURE ENTITLED "FURLOUGH AND COMPENSATION DEDUCTIONS, IMPOUNDING OF SAME, AND VACANCY VINGS.'

SECTION 203 OF PUB. LAW 212 READS IN PART: "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. * * * THE APPROPRIATIONS OR PORTIONS OF APPROPRIATIONS UNEXPENDED BY THE OPERATION OF THIS SECTION SHALL NOT BE USED FOR ANY OTHER PURPOSES BUT SHALL BE IMPOUNDED AND RETURNED TO THE TREASURY, * * * PROVIDED, THAT SUCH IMPOUNDING OF FUNDS MAY BE WAIVED IN WRITING BY THE PRESIDENT OF THE UNITED STATES * * *.'

SINCE THE OFFICE OF THE ARCHITECT OF THE CAPITOL IS NEITHER AN EXECUTIVE DEPARTMENT NOR AN INDEPENDENT ESTABLISHMENT NOR PART OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, BUT IS INSTEAD A PART OF THE LEGISLATIVE ESTABLISHMENT (A FACT WHICH WAS UPHELD IN YOUR DECISION A- 17531, DATED MARCH 3, 1927), IT IS THE OPINION OF THIS OFFICE THAT THE OFFICE OF THE ARCHITECT OF THE CAPITOL IS EXCLUDED FROM THE RESTRICTIONS OF THIS PROVISION AND THAT THE ARCHITECT OF THE CAPITOL IS EXCLUDED FROM THE RESTRICTIONS OF THIS PROVISION AND THAT THE ARCHITECT OF THE CAPITOL MAY THEREFORE FILL ANY OR ALL VACANCIES WHICH IN HIS JUDGMENT ARE NECESSARY FOR THE GOOD OF THE SERVICE WITHOUT THE APPROVAL OF THE PRESIDENT OF THE UNITED STATES (IT BEING UNDERSTOOD, OF COURSE, THAT APPOINTMENTS IN CONNECTION WITH THE HOUSE OFFICE BUILDING AND CAPITOL POWER PLANT WOULD CONTINUE TO BE SUBJECT TO THE APPROVAL OF THE HOUSE OFFICE BUILDING COMMISSION, AND THOSE IN CONNECTION WITH THE SENATE OFFICE BUILDING WOULD CONTINUE TO BE SUBJECT TO THE SENATE COMMITTEE ON RULES).

THIS SECTION WOULD ALSO SEEM TO EXEMPT THE ARCHITECT OF THE CAPITAL FROM IMPOUNDING ANY SAVINGS, WITHOUT THE APPROVAL OF THE PRESIDENT, THAT MIGHT BE EFFECTED BY NOT FILLING VACANCIES OR THAT MIGHT BE EFFECTED BY FILLING VACANCIES AT LOWER RATES THAN THOSE PAID THE FORMER INCUMBENTS, OR BY ANY OTHER TURNOVER NOT RESULTANT FROM FURLOUGHS OR PAY CUTS. IT IS THEREFORE BELIEVED THAT SUCH SAVINGS COULD BE USED FOR OTHER PURPOSES IN THE LEGISLATIVE BRANCH IN VIEW OF THE FACT THAT THE APPROPRIATIONS UNDER THE ARCHITECT OF THE CAPITOL, WITH THE EXCEPTION OF "SALARIES, ARCHITECT OF THE CAPITOL," ARE LUMP SUM APPROPRIATIONS.

IT IS PRESUMED THAT ALL OF THE POSITIONS OCCUPIED BY EMPLOYEES ENGAGED IN CONNECTION WITH THE CONSTRUCTION PROJECTS UNDER THE JURISDICTION OF THIS OFFICE FALL WITHIN THE CLASSIFICATION OF TEMPORARY POSITIONS, WHICH ARE EXEMPTED UNDER SECTION 203 FROM THE GENERAL RESTRICTIONS APPLICABLE TO THE FILLING OF VACANCIES.

YOUR VIEWS ARE THEREFORE REQUESTED AS TO THE PROPER INTERPRETATION OF SECTION 203.

IN DECISION OF MARCH 3, 1927, 6 COMP. GEN. 565, TO WHICH YOU REFER, IT WAS HELD THAT "PERSONAL SERVICES PAID FOR FROM APPROPRIATIONS UNDER YOUR CONTROL ARE PERFORMED IN POSITIONS IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT.' AS THE RESTRICTIONS CONTAINED IN SECTION 203 OF THE ECONOMY ACT ARE EXPRESSLY APPLICABLE TO APPROPRIATIONS "AVAILABLE TO ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OR TO THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA," YOUR CONCLUSIONS EXPRESSED IN THE PARAGRAPHS LAST ABOVE QUOTED FROM YOUR SUBMISSION ARE CORRECT--- THAT THE APPROPRIATIONS UNDER THE ARCHITECT OF THE CAPITOL ARE NOT SUBJECT TO THE RESTRICTIONS OF SECTION 203 OF THE ECONOMY ACT. REFERRING TO THE LAST SENTENCE OF THE THIRD PARAGRAPH, LAST ABOVE QUOTED, IT IS TO BE UNDERSTOOD, OF COURSE, THAT EXEMPTIONS OF THE APPROPRIATIONS FOR THE LEGISLATIVE BRANCH OF THE GOVERNMENT FROM THE RESTRICTIONS OF SECTION 203 OF THE ECONOMY ACT DO NOT RENDER THE APPROPRIATIONS AVAILABLE FOR ANY PURPOSE OTHER THAN THOSE COMING WITHIN THE TERMS OF THE APPROPRIATION.

SECTION 202 OF THE PUB. LAW 212, READS IN PART: "NO ADMINISTRATIVE PROMOTIONS IN THE CIVIL BRANCH OF THE UNITED STATES GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA SHALL BE MADE DURING THE FISCAL YEAR ENDING JUNE 30, 1933: PROVIDED, THAT THE FILLING OF A VACANCY, WHEN AUTHORIZED BY THE PRESIDENT, BY THE APPOINTMENT OF AN EMPLOYEE OF A LOWER GRADE, SHALL NOT BE CONSTRUED AS AN ADMINISTRATIVE PROMOTION, BUT NO SUCH APPOINTMENT SHALL INCREASE THE COMPENSATION OF SUCH EMPLOYEE TO A RATE IN EXCESS OF THE MINIMUM RATE OF THE GRADE TO WHICH SUCH EMPLOYEE IS APPOINTED, UNLESS SUCH MINIMUM RATE WOULD REQUIRE AN ACTUAL REDUCTION IN COMPENSATION.'

YOUR VIEWS ARE REQUESTED AS TO WHETHER OR NOT THE RESTRICTION, WITH REFERENCE TO THE NECESSITY OF HAVING THE AUTHORITY OF THE PRESIDENT TO FILL ALL VACANCIES, WHEN MADE BY PROMOTIONS BETWEEN GRADES, WOULD APPLY TO THE OFFICE OF THE ARCHITECT OF THE CAPITOL IN THE EVENT THAT THIS OFFICE IS CONSIDERED EXEMPT FROM THE PROVISION OF SECTION 203.

CONGRESS HAS APPROPRIATED FUNDS FOR 14 NEW POSITIONS AT THE CAPITOL POWER PLANT FOR THE FISCAL YEAR 1933, AND IT IS THE DESIRE OF THIS OFFICE TO FILL MOST OF THESE POSITIONS BY THE PROMOTION OF EMPLOYEES FROM LOWER TO HIGHER GRADES.

YOUR VIEWS ARE THEREFORE REQUESTED AS TO WHETHER OR NOT THESE PROMOTIONS MAY BE MADE WITHOUT THE APPROVAL OF THE PRESIDENT, PARTICULARLY SINCE THE POSITIONS HAVE BEEN AUTHORIZED BY THE CONGRESS AND THE APPOINTMENTS (PROMOTIONS) WOULD BE APPROVED BY THE HOUSE OFFICE BUILDING COMMISSION; AND ALSO IN VIEW OF THE LANGUAGE OF SECTION 203 AS HERETOFORE DISCUSSED IN THIS LETTER.

THE PHRASE "CIVIL BRANCH OF THE UNITED STATES GOVERNMENT" IS USED HERE IN ITS BROADEST SENSE TO DISTINGUISH THE CIVIL FROM THE MILITARY, AND WITHOUT REGARD TO THE THREE CONSTITUTIONAL BRANCHES OF THE GOVERNMENT, LEGISLATIVE, EXECUTIVE, AND JUDICIAL. NOTE THE DIFFERENCE BETWEEN "IN THE CIVIL BRANCH OF THE UNITED STATES GOVERNMENT" AS USED IN SECTION 202 AND "ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT" AS USED IN SECTION 203 OF THE STATUTE. IN DECISION OF JULY 16, 1932, TO THE SECRETARY OF THE TREASURY, A-43357, 12 COMP. GEN. 69, AFTER QUOTING SECTION 202, IT WAS STATED: "THE INHIBITION HERE IS NOT ALONE AGAINST THE USE OF FUNDS FROM THE TREASURY, BUT ALSO AGAINST THE ADMINISTRATIVE ACTION OF PROMOTION OR APPOINTMENT, WITH THE EXCEPTIONS NOTED.' YOU ARE ADVISED, THEREFORE, THAT ADMINISTRATIVE PROMOTIONS INVOLVING INCREASE IN COMPENSATION OF EMPLOYEES ALREADY IN THE SERVICE TO FILL THE 14 NEW POSITIONS AT THE CAPITOL POWER PLANT MAY BE MADE ONLY WITH THE APPROVAL OF THE PRESIDENT. IF NO INCREASE IN COMPENSATION IS INVOLVED, THESE POSITIONS IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT MAY BE FILLED BY TRANSFER OF EMPLOYEES ALREADY IN THE SERVICE WITHOUT THE APPROVAL OF THE PRESIDENT. THIS OFFICE ALSO DESIRES TO BE INFORMED AS TO WHETHER OR NOT IT WILL BE PROPER TO GRANT MILITARY LEAVE OF ABSENCE TO EMPLOYEES BELONGING TO THE NATIONAL GUARD, DURING THE FISCAL YEAR 1933.

THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE. SEE DECISION OF JULY 14, 1932, A-43202, 12 COMP. GEN. 36, TO THE SECRETARY OF THE NAVY, AND DECISIONS THEREIN CITED.

WITH REFERENCE TO SECTION 208 OF PUB., 212, YOUR VIEWS ARE REQUESTED AS TO WHETHER OR NOT THIS OFFICE HAS THE AUTHORITY UNDER THE LAW TO MODIFY THE "PERSONAL SERVICE" CONTRACTS WHICH IT HAS ENTERED INTO WITH VARIOUS ARCHITECTS FOR THE RENDERING OF CONSULTING ARCHITECTURAL SERVICES FOR THE CONSTRUCTION OF THE NEW BUILDINGS UNDER THE JURISDICTION OF THIS OFFICE, SO AS TO ALTER THE AGREEMENT TO REIMBURSE THE CONSULTING ARCHITECTS FOR ACTUAL SUBSISTENCE EXPENSES, INCURRED IN THE COURSE OF OFFICIAL TRAVEL FOR THIS OFFICE, NOT TO EXCEED $7.00 PER DIEM AND TO INCLUDE, IN LIEU OF THE ACTUAL SUBSISTENCE EXPENSES, EXPENSES ALLOWABLE ON A PER DIEM BASIS NOT TO BE IN EXCESS OF $5.00 PER DIEM. AS AN EXAMPLIFICATION OF THIS CONDITION, THE FOLLOWING PORTION OF CONTRACT ACSC-2, DATED MAY 15, 1930, WITH CASS GILBERT, CASS GILBERT, JR., AND JOHN R. ROCKART, ARCHITECTS FOR THE NEW SUPREME COURT BUILDING, IS CITED:

"THE PARTY OF THE FIRST PART AGREES TO REIMBURSE THE PARTIES OF THE SECOND PART, THE COST OF TRANSPORTATION AND SUBSISTENCE INCURRED BY THEM AND THEIR ASSISTANTS WHILE TRAVELING UPON OFFICIAL BUSINESS UNDER ORDERS FROM THE PARTY OF THE FIRST PART IN DISCHARGE OF DUTIES CONNECTED WITH THE WORK, TRANSPORTATION BEING FURNISHED ON GOVERNMENT REQUESTS, AND COST OF SUBSISTENCE AND INCIDENTAL EXPENSES NOT TO EXCEED $7.00 PER DIEM FOR EACH PERSON. THE NUMBER OF TRIPS, TIMES, AND DURATION OF ALL SUCH PERIODS OF TRAVEL TO BE DIRECTED BY WRITTEN AUTHORITY FROM THE PARTY OF THE FIRST PART AND SUCH PERIODS OF TRAVEL ARE NOT TO BE EXCEEDED EXCEPT UPON WRITTEN EXTENSIONS FROM THE PARTY OF THE FIRST PART.'

IN DECISION OF DECEMBER 31, 1925, 5 COMP. GEN. 450, IT WAS HELD (QUOTING FROM THE SYLLABUS):

THE EMPLOYMENT OF PERSONAL SERVICES BY CONTRACT, IN CONNECTION WITH THE ARLINGTON MEMORIAL BRIDGE COMMISSION, AS AUTHORIZED BY SECTION 3 OF THE ACT OF FEBRUARY 24, 1925, 43 STAT. 975, CONSTITUTES THE PERSONS SO CONTRACTED WITH EMPLOYEES OF THE UNITED STATES SUBJECT TO THE SAME STATUTORY LIMITATIONS ON TRAVELING AND SUBSISTENCE EXPENSES AS ARE APPLICABLE TO REGULAR EMPLOYEES OF THE UNITED STATES.

AND IN DECISION OF FEBRUARY 15, 1926, 5 COMP. GEN. 629, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE PERSONAL SERVICES OF ARCHITECTS AND CONSULTING ENGINEERS MAY NOT BE OBTAINED BY CONTRACTING WITH A FIRM OR OTHER AGENCY TO SUPPLY THE SERVICES ON A COST-PLUS OR OTHER BASIS. SUCH SERVICES MAY BE OBTAINED ONLY BY DIRECT EMPLOYMENT, CONSTITUTING THEM EMPLOYEES OF THE UNITED STATES SUBJECT TO THE STATUTORY LIMITATIONS ON TRAVELING EXPENSES. 5 COMP. GEN. 450, AFFIRMED.

THERE APPEARS NO PROVISION IN THE STATUTES AUTHORIZING THE CONSTRUCTION OF AND PROVIDING APPROPRIATIONS FOR THE NEW SUPREME COURT BUILDING WHICH COULD BE CONSTRUED AS EXEMPTING ARCHITECTS EMPLOYED IN CONNECTION THEREWITH ON THE BASIS OF PERSONAL-SERVICE CONTRACTS FROM THE STATUTORY RESTRICTIONS ON REIMBURSEMENT FOR TRAVELING EXPENSES OF FEDERAL EMPLOYEES. SEE SECTION 2 (2) OF THE ACT OF DECEMBER 20, 1929, 46 STAT. 51; ACT OF MARCH 26, 1930, 46 STAT. 96; ACT OF JUNE 6, 1930, 46 STAT. 515; PUBLIC RESOLUTION OF JULY 3, 1930, 46 STAT. 1018; AND ACT OF FEBRUARY 23, 1931, 46 STAT. 1373. AS SECTIONS 207-210 OF THE ECONOMY ACT OF JUNE 30, 1932, ENTITLED "PERMANENT REDUCTION OF TRAVEL ALLOWANCES," MODIFY THE SUBSISTENCE EXPENSE ACT OF 1926 TO ELIMINATE ALL REIMBURSEMENT FOR TRAVEL ON AN ACTUAL-EXPENSE BASIS AND LIMIT REIMBURSEMENT FOR TRAVEL TO A PER DIEM ALLOWANCE NOT TO EXCEED THE RATE OF $5 WITHIN THE LIMITS OF THE CONTINENTAL UNITED STATES, THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

IN THE CASES OF TEMPORARY EMPLOYEES, ENGAGED IN CONNECTION WITH CONSTRUCTION PROJECTS UNDER THE JURISDICTION OF THIS OFFICE ON A PER ANNUM BASIS, INFORMATION IS DESIRED AS TO WHETHER OR NOT THE PROVISIONS OF PUBLIC LAW NO. 212, WITH REFERENCE TO TEMPORARY REDUCTION IN SALARIES, APPLIES TO SUCH EMPLOYEES, AND IF SO, WHETHER IT IS OPTIONAL WITH THE ARCHITECT OF THE CAPITOL TO APPLY EITHER THE 8 1/3 PERCENT REDUCTION OR THE FURLOUGH PLAN AS HE MAY SEE FIT. IT IS TO BE NOTED THAT IN APPOINTING SUCH EMPLOYEES OF A PROFESSIONAL OR TECHNICAL STATUS THE ARCHITECT OF THE CAPITOL HAS THE RIGHT BY LAW TO MAKE THE APPOINTMENT AT ANY RATE OF COMPENSATION WHICH HE DEEMS REASONABLE OR PROPER.

WITH REFERENCE TO EMPLOYEES, ENGAGED FOR TEMPORARY PERIODS, EITHER IN CONNECTION WITH CONSTRUCTION PROJECTS OR MAJOR REPAIRS OR ALTERATIONS OR OTHER SUCH JOBS, ON A PER DIEM BASIS, YOUR VIEWS ARE REQUESTED AS TO WHETHER OR NOT THESE EMPLOYEES ARE TO BE SUBJECTED TO A REDUCTION IN PAY EITHER THROUGH THE FURLOUGH OR THE 8 1/3 PERCENT SALARY REDUCTION PLAN.

SECTION 104 OF THE ECONOMY ACT OF JUNE 30, 1932, PROVIDES, IN PART, AS FOLLOWS:

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, BUT DO NOT INCLUDE * * *

ELEVEN EXCEPTIONS ARE MADE, NONE OF WHICH WOULD APPLY TO THE EMPLOYEES UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL. YOU ARE ADVISED, THEREFORE, THAT THE PROVISIONS OF SECTIONS 101 (A), (B), AND (C) AND SECTIONS 102 AND 103 OF THE ACT ARE APPLICABLE TO THE PERMANENT AND TEMPORARY EMPLOYEES ENGAGED IN CONNECTION WITH THE CONSTRUCTION WORK UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL.

SECTION 105 (D) AND (6) OF THE ACT PROVIDE:

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; IF $10,000 PER ANNUM OR MORE BUT LESS THAN $12,000 PER ANNUM, 10 PERCENTUM; IF $12,000 PER ANNUM OR MORE BUT LESS THAN $15,000 PER ANNUM, 12 PERCENTUM; IF $15,000 PER ANNUM OR MORE BUT LESS THAN $20,000 PER ANNUM, 15 PERCENTUM; IF $20,000 PER ANNUM OR MORE, 20 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.

UNDER THE PROVISIONS OF SECTION 101 (A) AND (B) OF THE ACT YOU HAVE THE OPTION OF APPLYING EITHER THE 5-DAY WEEK OR LEGISLATIVE FURLOUGH OF 30 CALENDAR DAYS TO PER ANNUM EMPLOYEES, BUT WHERE THE DUTIES OF THE POSITIONS AND THE PERIODS OF WORK MAKE IT IMPRACTICABLE TO APPLY EITHER OF SAID PROVISIONS, THEY ARE SUBJECT TO THE PERCENTAGE REDUCTIONS STATED IN SECTION 105 (D) OF THE STATUTE. ANY AUTHORITY YOU HAVE BY STATUTE OR OTHERWISE TO FIX SALARY RATES IS SUSPENDED DURING THE FISCAL YEAR 1933, IN SO FAR AS INCREASING THE RATES ARE CONCERNED. SEE SECTION 202 OF THE STATUTE.

WITH REFERENCE TO PER DIEM EMPLOYEES, ENGAGED FROM TIME TO TIME BY THIS OFFICE, WHO ARE NEVER EMPLOYED FOR MORE THAN 5 DAYS IN ANY WEEK, SUCH AS CARPENTERS, TRADESMEN, MECHANICS, AND LABORERS PERFORMING WORK OF A CORRESPONDING CHARACTER, THIS OFFICE DESIRES TO BE INFORMED WHETHER OR NOT SUCH EMPLOYEES ARE TO BE SUBJECTED TO THE SALARY REDUCTION PROVISIONS OF PUB. LAW 212 AND, IF NOT, WHAT EVIDENCE WOULD BE REQUIRED TO INDICATE THAT SUCH TEMPORARY EMPLOYEES--- PARTICULARLY LABORERS--- WOULD NORMALLY BE WITHIN THE 5 DAYS PER WEEK LIMIT, WITHOUT CONSIDERATION OF PUB. LAW 212, IN VIEW OF THE FACT THAT SUCH A PROBLEM INVOLVES THE QUESTION OF IMPOUNDING OF FUNDS.

IN DECISION OF JULY 14, 1932, TO THE SECRETARY OF THE NAVY, A-43185, 12 COMP. GEN. 30, IT WAS STATED:

(1) (B) IT IS UNDERSTOOD THAT THE EMPLOYEES HERE INVOLVED ARE WEEK PRIOR TO JULY 1, 1932, AND ARE NOT REGULAR FULL-TIME PER DIEM EMPLOYEES WHO HAVE BEEN ON LEAVE OR FURLOUGH WITHOUT PAY FOR A PORTION OF EACH WEEK. DECISION OF JULY 8, 1932, A-43126, TO THE PUBLIC PRINTER, IT WAS STATED IN QUESTION AND ANSWER 3, AS FOLLOWS:

"3. UNDER SUBSECTION (A) CAN THE NEW RATE FOR FIVE DAYS OF 10/11 OF THE PRESENT PAY FOR A WEEK'S WORK OF FIVE AND ONE-HALF DAYS BE CONSIDERED AS FIXING THE PER HOUR AND PER DAY RATE WITHOUT REGARD AS TO WHETHER THE EMPLOYEE WORKS THE FULL FIVE DAYS OR A PORTION THEREOF EACH EEK?

"YES.'

THIS WAS INTENDED TO APPLY TO PER DIEM EMPLOYEES WHO REGULARLY WORK FIVE DAYS PER WEEK BUT WHO ARE ON AUTHORIZED LEAVE OF ABSENCE OR FURLOUGH WITHOUT PAY FOR A PORTION THEREOF. THE OPERATION OF SECTION 101 (A) OF THE STATUTE IS TO INCREASE THE PER DIEM RATE ON A 5-DAY WEEK BASIS. APPLICATION THEREOF TO REGULAR PART-TIME PER DIEM EMPLOYEES WHO, PRIOR TO JULY 1, 1932, DID NOT WORK FIVE DAYS PER WEEK, AS DISTINGUISHED FROM EMPLOYEES ON AUTHORIZED LEAVE OR FURLOUGH WITHOUT PAY, WOULD RESULT IN AN INCREASE IN THE PER DIEM RATE FOR PART TIME SERVICE BASED ON THE RATE RECEIVED JUNE 30, 1932. NO SUCH INCREASE IS CONTEMPLATED UNDER THE STATUTE. YOU ARE ADVISED, THEREFORE, THAT THE PROVISIONS OF SECTION 101 (A) DO NOT APPLY TO PART TIME PER DIEM EMPLOYEES AS DISTINGUISHED FROM FULL-TIME EMPLOYEES ON AUTHORIZED LEAVE OR FURLOUGH WITH PAY A PORTION OF THE 5-DAY WEEK. IF IT IS ADMINISTRATIVELY IMPRACTICAL TO APPLY THE 5-DAY WEEK OR LEGISLATIVE FURLOUGH TO ANY PERSONS REGULARLY WORKING ONLY PART- TIME, WHO COME WITHIN THE TERMS "OFFICER" AND ,EMPLOYEE" AS DEFINED IN SECTION 104 OF THE STATUTE, THEIR COMPENSATION RATE AS OF JUNE 30, 1932, IS SUBJECT TO 8 1/3 PERCENT REDUCTION. SEE SECTION 105 (D) (7).

THE SAME PRINCIPLE IS APPLICABLE TO PART-TIME TEMPORARY EMPLOYEES UNDER THE ARCHITECT OF THE CAPITOL WHO, PRIOR TO JULY 1, 1932, DID NOT REGULARLY WORK MORE THAN FIVE DAYS PER WEEK.

ANSWER TO YOUR QUESTION REGARDING REIMBURSEMENT FOR SERVICES OF DISTRICT OF COLUMBIA EMPLOYEES WILL BE MADE THE SUBJECT OF A SEPARATE COMMUNICATION.