A-43357, JULY 16, 1932, 12 COMP. GEN. 69

A-43357: Jul 16, 1932

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EXCEPTING "PUBLIC OFFICERS AND EMPLOYEES WHOSE COMPENSATION IS * * * NOT PAID FROM THE FEDERAL TREASURY" FROM THE DEFINITION OF THE TERMS "OFFICER" AND "EMPLOYEE. ARE NOT APPLICABLE TO STOREKEEPERS IN THE CUSTOMS SERVICE. NOR TO CUSTOMS EMPLOYEES IN PUERTO RICO AND THE VIRGIN ISLANDS WHOSE SALARIES ARE NOT PAID FROM THE TREASURY. EVEN THOUGH FOR AN ACCOUNTING OR BOOKKEEPING PURPOSE THE FUNDS FOR PAYMENT OF SALARIES ARE PASSED THROUGH THE TREASURY. SO LONG AS THE ULTIMATE CHARGE IS NOT AGAINST THE TREASURY. OF THE ACT AGAINST ADMINISTRATIVE PROMOTIONS DURING THE FISCAL YEAR 1933 IS APPLICABLE TO SUCH EMPLOYEES. "PUBLIC OFFICIALS AND EMPLOYEES WHOSE COMPENSATION IS DERIVED FROM ASSESSMENTS ON BANKS AND/OR IS NOT PAID FROM THE FEDERAL TREASURY.' (1) STOREKEEPERS IN THE CUSTOMS SERVICE IN CHARGE OF BONDED WAREHOUSES ARE PAID SALARIES FROM THE CUSTOMS APPROPRIATION.

A-43357, JULY 16, 1932, 12 COMP. GEN. 69

ECONOMY ACT - CUSTOMS SERVICE EMPLOYEES IN VIEW OF SECTION 104 (A) (7) OF THE ACT OF JUNE 30, 1932, 47 STAT. 400, EXCEPTING "PUBLIC OFFICERS AND EMPLOYEES WHOSE COMPENSATION IS * * * NOT PAID FROM THE FEDERAL TREASURY" FROM THE DEFINITION OF THE TERMS "OFFICER" AND "EMPLOYEE," THE RESTRICTIONS IN TITLE I OF THE ACT RELATIVE TO THE 5- DAY WEEK, LEGISLATIVE FURLOUGH, AND PERCENTAGE REDUCTION IN COMPENSATION, ARE NOT APPLICABLE TO STOREKEEPERS IN THE CUSTOMS SERVICE, NOR TO CUSTOMS EMPLOYEES IN PUERTO RICO AND THE VIRGIN ISLANDS WHOSE SALARIES ARE NOT PAID FROM THE TREASURY, EVEN THOUGH FOR AN ACCOUNTING OR BOOKKEEPING PURPOSE THE FUNDS FOR PAYMENT OF SALARIES ARE PASSED THROUGH THE TREASURY, SO LONG AS THE ULTIMATE CHARGE IS NOT AGAINST THE TREASURY, BUT THE INHIBITION IN SECTION 202, TITLE II, OF THE ACT AGAINST ADMINISTRATIVE PROMOTIONS DURING THE FISCAL YEAR 1933 IS APPLICABLE TO SUCH EMPLOYEES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JULY 16, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 8, 1932, AS FOLLOWS:

THE LEGISLATIVE APPROPRIATION ACT, APPROVED JUNE 30, 1932, PART II, TITLE I, SECTION 104, PARAGRAPH (A), ITEM (7), NAMES AMONG THE OFFICERS AND EMPLOYEES TO WHOM THE PROVISIONS OF TITLE I DO NOT APPLY, "PUBLIC OFFICIALS AND EMPLOYEES WHOSE COMPENSATION IS DERIVED FROM ASSESSMENTS ON BANKS AND/OR IS NOT PAID FROM THE FEDERAL TREASURY.'

(1) STOREKEEPERS IN THE CUSTOMS SERVICE IN CHARGE OF BONDED WAREHOUSES ARE PAID SALARIES FROM THE CUSTOMS APPROPRIATION, BUT THE AMOUNTS OF THE SALARIES ARE REIMBURSED TO THE GOVERNMENT BY THE PROPRIETORS OF THE WAREHOUSES AS PROVIDED IN SECTION 555, TARIFF ACT OF 1930, AND THE MONEY REIMBURSED BY THE OWNERS OF THE WAREHOUSES, WHICH IS THE FULL SALARY OF THE STOREKEEPERS, IS COVERED BACK INTO THE CUSTOMS APPROPRIATION, ULTIMATELY RESULTING IN NO EXPENSE TO THE APPROPRIATION.

(2) CUSTOMS EMPLOYEES IN PUERTO RICO ARE PAID FROM THE CUSTOMS DUTIES COLLECTED BY THEM, AND ALL SUCH DUTIES NOT USED FOR THE PAYMENT OF THE SALARIES OF CUSTOMS OFFICERS AND EMPLOYEES ARE PAID IN TO THE TREASURY OF THE ISLAND GOVERNMENT AND USED FOR THE EXPENSES OF THAT GOVERNMENT.

(3) CUSTOMS EMPLOYEES IN THE VIRGIN ISLANDS ALSO ARE PAID FROM THE CUSTOMS DUTIES COLLECTED BY THEM AND DUTIES NOT SO USED ARE PAID IN TO THE TREASURY OF THE ISLAND GOVERNMENT FOR ITS USE. THE UNITED STATES TARIFF ACT HAS NOT BEEN MADE APPLICABLE TO THE VIRGIN ISLANDS AND CUSTOMS DUTIES ARE COLLECTED UNDER THE DANISH LAWS IN FORCE AT THE TIME THAT THE TITLE TO THE ISLANDS WAS CONVEYED TO THE UNITED STATES.

A DECISION IS REQUESTED AS TO WHETHER THE PROVISION OF TITLE I OF PART II OF THE ACT ABOVE REFERRED TO, RELATING AMONG OTHER MATTERS TO FURLOUGHS AND SALARY REDUCTIONS, APPLY TO THE CUSTOMS EMPLOYEES ENUMERATED IN THE PARAGRAPHS NUMBERED (1), (2), (3), VIZ, STOREKEEPERS IN CHARGE OF BONDED WAREHOUSES, CUSTOMS EMPLOYEES IN PUERTO RICO, AND CUSTOMS EMPLOYEES IN THE VIRGIN ISLANDS; AND ALSO WHETHER THE PROVISIONS OF TITLE II OF PART II, RELATING ESPECIALLY TO COMPULSORY RETIREMENTS AS WELL AS TO ADMINISTRATIVE PROMOTIONS AND FILLING OF VACANCIES, RELATE TO THE CUSTOMS EMPLOYEES ABOVE ENUMERATED.

THE OBJECT OR PURPOSE OF TITLE I OF PART II OF THE ACT OF JUNE 30, 1932, PUBLIC NO. 212, 47 STAT. 382, WAS TO EFFECT SAVINGS IN GOVERNMENT EXPENDITURES COMING OUT OF THE TREASURY DURING THE FISCAL YEAR 1933. THERE IS NOTHING UNDER SAID TITLE TO INDICATE ANY INTENT TO REDUCE COMPENSATION OTHER THAN FOR THE PURPOSE OF EFFECTING SUCH SAVINGS. HENCE THE TERMS "OFFICER" AND "EMPLOYEE" WERE THEREIN DEFINED AS NOT INCLUDING "PUBLIC OFFICERS AND EMPLOYEES WHOSE COMPENSATION * * * IS NOT PAID FROM THE FEDERAL TREASURY," THERE BEING NO INTENT OR PURPOSE TO EFFECT--- AT THE EXPENSE OF GOVERNMENT EMPLOYEES--- A SAVING TO PRIVATE INTERESTS. THEREFORE, IN APPLYING THE PROVISIONS OF SAID TITLE, SALARIES ARE NOT TO BE CONSIDERED AS "PAID FROM THE FEDERAL TREASURY" IF FOR AN ACCOUNTING OR BOOKKEEPING PURPOSE THE FUNDS ARE PASSED THROUGH THE TREASURY, AS IN PARAGRAPH NUMBERED (1) OF YOUR LETTER, SO LONG AS THE ULTIMATE CHARGE IS NOT AGAINST THE UNITED STATES TREASURY.

YOU ARE ADVISED, THEREFORE, THAT THE PROVISIONS OF TITLE I, PART II OF THE ACT, RELATIVE TO THE 5-DAY WEEK, LEGISLATIVE FURLOUGH, AND PERCENTAGE REDUCTION IN COMPENSATION HAVE NO APPLICATION TO THE CLASSES OF EMPLOYEES MENTIONED IN PARAGRAPHS 1, 2, AND 3 OF YOUR LETTER.

THE DEFINITIONS OF "OFFICER" AND "EMPLOYEE" AND THE EXCEPTIONS THERETO IN SECTION 104 UNDER TITLE I OF THE ACT ARE EXPRESSLY LIMITED TO "WHEN USED IN THIS TITLE," AND ARE NOT NECESSARILY CONTROLLING IN THE APPLICATION OF TITLE II OF THE ACT. SECTION 204, TITLE II, OF THE ACT, UNDER THE HEADING "COMPULSORY RETIREMENT FOR AGE," PROVIDES AS FOLLOWS:

ON AND AFTER JULY 1, 1932, NO PERSON RENDERING CIVILIAN SERVICE IN ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHO SHALL HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE, APPLICABLE TO SUCH PERSON, SHALL BE CONTINUED IN SUCH SERVICE, NOTWITHSTANDING ANY PROVISION OF LAW OR REGULATION TO THE CONTRARY: PROVIDED, THAT THE PRESIDENT MAY, BY EXECUTIVE ORDER, EXEMPT FROM THE PROVISIONS OF THIS SECTION ANY PERSON WHEN, IN HIS JUDGMENT, THE PUBLIC INTEREST SO REQUIRES: PROVIDED FURTHER, THAT NO SUCH PERSON HERETOFORE OR HEREAFTER SEPARATED FROM THE SERVICE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA UNDER ANY PROVISION OF LAW OR REGULATION PROVIDING FOR SUCH RETIREMENT ON ACCOUNT OF AGE SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA: PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY TO ANY PERSON NAMED IN ANY ACT OF CONGRESS PROVIDING FOR THE CONTINUANCE OF SUCH PERSON IN THE SERVICE.

THIS SECTION DOES NOT LIMIT ITS APPLICATION TO OFFICERS AND EMPLOYEES AS DEFINED IN TITLE I, BUT USES BROADER TERMS SO AS TO INCLUDE ANY "PERSON RENDERING CIVILIAN SERVICE IN ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA.' HENCE THERE WOULD APPEAR TO BE NO ROOM FOR REASONABLE DOUBT THAT THIS SECTION APPLIES TO ALL EMPLOYEES OF THE CUSTOMS SERVICE OF THE UNITED STATES IRRESPECTIVE OF THE FUND FROM WHICH THEIR SALARIES ARE PAID. THE PURPOSE OF THIS SECTION IS NOT ALONE ONE OF SAVING, BUT TO REMOVE EMPLOYEES FROM THE SERVICE OF THE GOVERNMENT WHO ARE OTHERWISE PROVIDED WITH AN INCOME WITH A POSSIBILITY THAT ABSOLUTELY ESSENTIAL POSITIONS OCCUPIED BY THEM MAY BE FILLED FROM THE UNEMPLOYED. YOU ARE ADVISED, THEREFORE, THAT ALL OF THE CLASSES OF EMPLOYEES MENTIONED IN YOUR LETTER ARE SUBJECT TO THE PROVISIONS OF SECTION 204 OF THE STATUTE.

SECTION 202 OF THE ACT PROVIDES:

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. THE PRESIDENT SHALL SUBMIT TO CONGRESS A REPORT OF THE VACANCIES FILLED UNDER THIS SECTION UP TO NOVEMBER 1, 1932, ON THE FIRST DAY OF THE NEXT REGULAR SESSION. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO COMMISSIONED, COMMISSIONED WARRANT, WARRANT, AND ENLISTED PERSONNEL, AND CADETS, OF THE COAST GUARD.

THE INHIBITION HERE IS NOT ALONE AGAINST THE USES OF FUNDS FROM THE TREASURY, BUT, ALSO, AGAINST THE ADMINISTRATIVE ACTION OF PROMOTION OR APPOINTMENT, WITH THE EXCEPTIONS NOTED. HENCE, THE SECTION IS APPLICABLE WHETHER THE SALARIES ARE PAID UNDER AN APPROPRIATION FROM THE TREASURY OR FROM FUNDS DERIVED FROM OTHER SOURCES. AS IT IS CLEAR THAT ALL BRANCHES OF THE UNITED STATES CUSTOMS SERVICE ARE "IN THE CIVIL BRANCH OF THE UNITED STATES GOVERNMENT" YOU ARE ADVISED THAT ALL THE EMPLOYEES MENTIONED IN YOUR LETTER ARE WITHIN THE TERMS OF SECTION 202 OF THE ACT.