A-43650, AUGUST 2, 1932, 12 COMP. GEN. 163

A-43650: Aug 2, 1932

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PLUS ANY INCREASE THAT THE BROOKHART SALARY ACT WOULD HAVE GIVEN THEM HAD THEY CONTINUED ON THE PERMANENT ROLL. AS THE AMOUNTS CONTRIBUTED BY THE STATES OF APPROXIMATELY 25 PERCENT OF THE COST OF CERTAIN WORK PERFORMED BY THE COAST AND GEODETIC SURVEY ARE NOT FOR THE COMPENSATION OF ANY PARTICULAR EMPLOYEES AS A WHOLE. SUCH EMPLOYEES ARE NOT EXCEPTED BY SECTION 104 (A) (7) OF THE ECONOMY ACT FROM THE PROVISIONS OF THAT ACT AND THEIR SALARIES MUST BE REDUCED AS REQUIRED BY SECTION 101 (A). TITLE I OF THE ECONOMY ACT IS APPLICABLE TO ALL EMPLOYEES AS DEFINED IN SECTION 104 THEREOF. IF THEY ARE IN RECEIPT OF SALARY AT A RATE IN EXCESS OF $1. AN EMPLOYEE WHO TAKES THE ENTIRE MONTH OF JULY AS A LEGISLATIVE FURLOUGH WILL BE ENTITLED TO NO PAY FOR THAT MONTH AND HIS ENTIRE MONTH'S SALARY WILL BE IMPOUNDED.

A-43650, AUGUST 2, 1932, 12 COMP. GEN. 163

ECONOMY ACT - CENSUS EMPLOYEES - COAST AND GEODETIC SURVEY COOPERATIVE WORK - TEMPORARY EMPLOYEES - LEGISLATIVE FURLOUGH PERMANENT CENSUS EMPLOYEES NOW ON THE TEMPORARY ROLL MAY BE RETRANSFERRED TO THE PERMANENT ROLL AND PAID THE COMPENSATION FORMERLY RECEIVED BY THEM IN THE PERMANENT POSITION, PLUS ANY INCREASE THAT THE BROOKHART SALARY ACT WOULD HAVE GIVEN THEM HAD THEY CONTINUED ON THE PERMANENT ROLL. AS THE AMOUNTS CONTRIBUTED BY THE STATES OF APPROXIMATELY 25 PERCENT OF THE COST OF CERTAIN WORK PERFORMED BY THE COAST AND GEODETIC SURVEY ARE NOT FOR THE COMPENSATION OF ANY PARTICULAR EMPLOYEES AS A WHOLE, SUCH EMPLOYEES ARE NOT EXCEPTED BY SECTION 104 (A) (7) OF THE ECONOMY ACT FROM THE PROVISIONS OF THAT ACT AND THEIR SALARIES MUST BE REDUCED AS REQUIRED BY SECTION 101 (A), 101 (B), OR SECTION 105 (D) (6), AND THE AMOUNT SO SAVED IMPOUNDED. TITLE I OF THE ECONOMY ACT IS APPLICABLE TO ALL EMPLOYEES AS DEFINED IN SECTION 104 THEREOF, WHETHER TEMPORARY OR PERMANENT, IF THEY ARE IN RECEIPT OF SALARY AT A RATE IN EXCESS OF $1,000 PER ANNUM. AN EMPLOYEE WHO TAKES THE ENTIRE MONTH OF JULY AS A LEGISLATIVE FURLOUGH WILL BE ENTITLED TO NO PAY FOR THAT MONTH AND HIS ENTIRE MONTH'S SALARY WILL BE IMPOUNDED. THE RETIREMENT DEDUCTIONS FOR JULY MUST BE TAKEN FROM THE NEXT PAY DUE HIM UPON HIS RETURN TO DUTY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, AUGUST 2, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 25, 1932, AS FOLLOWS:

YOUR DECISION ON THE FOLLOWING QUESTIONS WHICH HAVE ARISEN IN CONNECTION WITH THE ADMINISTRATION OF THE LEGISLATIVE APPROPRIATION ACT (OTHERWISE KNOWN AS THE ECONOMY ACT), APPROVED JUNE 30, 1932, IS RESPECTFULLY REQUESTED.

1. THE FIFTEENTH DECENNIAL CENSUS ACT, APPROVED JUNE 18, 1929, AUTHORIZES THE DIRECTOR OF THE CENSUS TO APPOINT TEMPORARY EMPLOYEES FOR ANY PERIOD NOT EXTENDING BEYOND THE DECENNIAL CENSUS PERIOD AND PROVIDES THAT CENSUS EMPLOYEES WHO MAY BE TRANSFERRED TO ANY SUCH TEMPORARY POSITIONS SHALL NOT LOSE THEIR PERMANENT CIVIL-SERVICE STATUS BY REASON OF SUCH TRANSFER. UNDER DECISION OF THE COMPTROLLER GENERAL (10 COMP. GEN. 458), PERMANENT EMPLOYEES OF THE BUREAU OF THE CENSUS TRANSFERRED TO SUCH TEMPORARY POSITIONS AND RETRANSFERRED TO THEIR PERMANENT POSITIONS PRIOR TO JULY 1, 1932, HAVE BEEN GRANTED THE BROOKHART SALARY INCREASE EFFECTIVE UPON SUCH RETRANSFER. DURING THE PRESENT CALENDAR YEAR IT WILL BE NECESSARY TO EFFECT THE RETRANSFER TO THEIR PERMANENT POSITIONS OF A NUMBER OF CENSUS EMPLOYEES STILL SERVING IN TEMPORARY POSITIONS. MAY PERMANENT EMPLOYEES SO RETRANSFERRED BETWEEN JULY 1 AND DECEMBER 31, 1932, BE GRANTED THE BROOKHART SALARY INCREASE EFFECTIVE UPON RETRANSFER, NOTWITHSTANDING THE PROVISIONS OF THE SO-CALLED ECONOMY ACT APPROVED JUNE 30, 1932?

2. THE COAST AND GEODETIC SURVEY ENTERS INTO CONTRACTS WITH STATE GOVERNMENTS WHEREBY THE STATE CONTRIBUTES CERTAIN SUMS OF MONEY TO ASSIST IN DEFRAYING THE EXPENSE INVOLVED IN SURVEYS CONDUCTED BY THAT BUREAU. THE WORK IS CONDUCTED BY REGULAR EMPLOYEES OF THE COAST AND GEODETIC SURVEY ASSISTED BY OTHER EMPLOYEES WHO ARE TEMPORARILY EMPLOYED IN THE LOCALITY WHERE THE SURVEY IS TO BE CONDUCTED AND FOR THE DURATION OF THE SURVEY ONLY. THE CONTRIBUTIONS MADE BY THE STATES FOR THESE SURVEYS AMOUNT TO APPROXIMATELY 25 PERCENT OF THE COST. IN COMPLYING WITH THE PROVISIONS OF SECTION 110 OF THE ECONOMY ACT, SHOULD THERE BE IMPOUNDED 8 1/3 PERCENT OF THESE FUNDS TRANSFERRED FROM THE STATES WHICH ARE USED FOR THE PAYMENT OF PERSONAL SERVICES?

3. THE FOLLOWING CLASSES OF TEMPORARY FIELD PERSONNEL ARE EMPLOYED BY THE BUREAU OF THE ENSUS:

(A) ENUMERATORS ENGAGED IN THE COLLECTION OF STATISTICS OF MANUFACTURERS WHO ARE PAID AT THE RATE OF $1.00 FOR EACH SATISFACTORILY PREPARED SCHEDULE, WITH A MIMIMUM COMPENSATION OF $4.00 A DAY.

(B) ENUMERATORS EMPLOYED ON THE SAME WORK, BUT WHO, BECAUSE OF THEIR PREVIOUS EXPERIENCE, ARE USED IN SECURING REPORTS OF THE LARGE CENTRAL OFFICE CONCERNS IN THE CITIES, ARE PAID A STRAIGHT SALARY OF $5.00 A DAY. THE WORK OF BOTH CLASSES OF ENUMERATORS IS OF A TEMPORARY CHARACTER AND CAN NOT LAST MORE THAN TWO MONTHS, SO THAT THE TOTAL COMPENSATION RECEIVED BY ANY OF THEM CAN NOT POSSIBLY AMOUNT TO $1,000 A YEAR.

(C) SPECIAL AGENTS WHO ARE EMPLOYED FOR A FEW DAYS IN COMPILING STATISTICS OF STATES AND CITIES. THESE EMPLOYEES ARE PAID AT THE RATE OF $6.00 A DAY FOR PERIODS RANGING FROM 5 TO 50 DAYS. THEY WERE APPOINTED UNDER SECTION 6, SCHEDULE A, OF THE CIVIL-SERVICE RULES, WHICH PROVIDES THAT SUCH APPOINTMENTS SHALL NOT EXCEED $540 A YEAR.

(D) EMPLOYEES WHO ARE APPOINTED FOR A FEW DAYS TO SERVE IN AN ADVISORY CAPACITY IN CONNECTION WITH THE VARIOUS PHASES OF THE CENSUS WORK, WHOSE APPOINTMENTS ALSO CONTAIN THE PROVISION THAT THE TOTAL COMPENSATION RECEIVED CAN NOT EXCEED $540 IN ANY ONE YEAR.

THE TOTAL COMPENSATION RECEIVED BY ANY OF THE EMPLOYEES COVERED BY QUESTION 3 CAN NOT AMOUNT TO $1,000 PER ANNUM. IS THE COMPENSATION RECEIVED BY THEM DURING THE FISCAL YEAR 1933, REQUIRED TO BE REDUCED 8 1/3 PERCENT UNDER SECTION 105 (D) OF THE ACT APPROVED JUNE 30, 1932? SPECIMEN BLANK FORMS OF APPOINTMENTS ISSUED TO THE EMPLOYEES UNDER CONSIDERATION ARE HEREWITH FOR YOUR INFORMATION.

4. AN EMPLOYEE SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT IS ABSENT ON LEGISLATIVE FURLOUGH THE FULL MONTH OF JULY, 1932. DOES ANY PART OF THE EMPLOYEE'S SALARY GO TO THE RETIREMENT FUND OR DOES ALL OF IT GO INTO THE IMPOUNDED ACCOUNT OF THE LEGISLATIVE FURLOUGH? HOW SHOULD THE PAY ROLL BE STATED?

THE QUESTIONS WILL BE ANSWERED IN THE ORDER STATED IN THE SUBMISSION.

(1) THE INCREASES IN COMPENSATION GRANTED BY THE BROOKHART ACT OF JULY 3, 1930, 46 STAT. 1003, BECAME EFFECTIVE GENERALLY AS OF THE DATE OF THE APPROVAL OF THE ACT. IN YOUR SUBMISSION OF MARCH 4, 1931, UPON WHICH THE DECISION 10 COMP. GEN. 458 WAS RENDERED, IT WAS STATED THAT THE CENSUS EMPLOYEES TRANSFERRED TO THE TEMPORARY ROLL WERE, AS A GENERAL RULE, RECEIVING HIGHER SALARIES IN THE TEMPORARY ASSIGNMENTS THAN IN THEIR FORMER PERMANENT POSITIONS, AND IT WAS STATED IN THE DECISION IN QUESTION THAT SUCH EMPLOYEES WERE NOT ENTITLED AS A MATTER OF RIGHT, UPON RETRANSFER TO THE PERMANENT ROLL, TO THE INCREASES IN COMPENSATION THAT WOULD HAVE BEEN GRANTED THEM UNDER THE BROOKHART SALARY ACT HAD THEY REMAINED ON THE PERMANENT ROLL, BUT THAT IT WOULD SEEM TO BE LEGAL AND PROPER, WITHIN AVAILABLE APPROPRIATIONS, TO RESTORE SUCH EMPLOYEES TO THE SAME SALARY STATUS ON THE PERMANENT ROLL THAT THEY WOULD HAVE BEEN ENTITLED TO BY VIRTUE OF THE BROOKHART ACT HAD THEY REMAINED ON THE PERMANENT ROLL.

SECTION 201 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 403, PROVIDES:

ALL PROVISIONS OF LAW WHICH CONFER UPON CIVILIAN OR NONCIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA AUTOMATIC INCREASES IN COMPENSATION BY REASON OF LENGTH OF SERVICE OR PROMOTION ARE SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1933; BUT THIS SECTION SHALL NOT BE CONSTRUED TO DEPRIVE ANY PERSON OF ANY INCREMENT OF COMPENSATION RECEIVED THROUGH AN AUTOMATIC INCREASE IN COMPENSATION PRIOR TO JULY 1, 1932.

BROOKHART SALARY INCREASES WERE IN THE NATURE OF AUTOMATIC INCREASES IN THAT THEY DID NOT REQUIRE ADMINISTRATIVE ACTION TO MAKE THEM EFFECTIVE. HAD THESE EMPLOYEES REMAINED ON THE PERMANENT ROLL THEY WOULD HAVE BEEN IN RECEIPT OF THE BROOKHART INCREASES JULY 3, 1930. IN OTHER WORDS, THE COMPENSATION OF THE POSITIONS FORMERLY HELD BY THESE EMPLOYEES PRIOR TO THEIR TRANSFER TO THE TEMPORARY ROLL MAY BE CONSIDERED AS HAVING BEEN INCREASED JULY 3, 1930, THE RECEIPT OF SUCH INCREASE BY THE PARTICULAR EMPLOYEES BEING SUSPENDED UNTIL THEIR RESTORATION TO SUCH POSITIONS. HAVE TO ADVISE, THEREFORE, THAT EMPLOYEES WHO WERE TRANSFERRED FROM THE PERMANENT TO THE TEMPORARY ROLL MAY, WHEN RETRANSFERRED TO THE PERMANENT ROLL, BE PAID THE COMPENSATION FORMERLY RECEIVED BY THEM IN THE PERMANENT POSITION PLUS ANY INCREASE THAT THE BROOKHART ACT WOULD HAVE GIVEN THEM HAD THEY CONTINUED ON THE PERMANENT ROLL. SUCH INCREASE IN THE COMPENSATION OF THEIR PERMANENT POSITIONS IS NOT CONSIDERED AN ADMINISTRATIVE PROMOTION SUCH AS IS PROHIBITED BY SECTION 202 OF THE ECONOMY ACT, BUT IS RATHER IN THE NATURE OF AN INCREMENT OF COMPENSATION WHICH THEY WERE ENTITLED TO RECEIVE THROUGH AN AUTOMATIC INCREASE TAKING EFFECT PRIOR TO JULY 1, 1932, WITHIN THE PURVIEW OF SECTION 201 OF THE ACT.

(2) AS THE AMOUNTS CONTRIBUTED BY THE STATES TOWARD THE WORK OF THE COAST AND GEODETIC SURVEY ARE NOT FOR THE COMPENSATION OF ANY PARTICULAR EMPLOYEE, IT MAY NOT BE SAID THAT THE SALARY OF ANY PARTICULAR EMPLOYEE OF THE COAST AND GEODETIC SURVEY IS THUS "NOT PAID FROM THE FEDERAL EASURY.' SEE SECTION 104 (A) (7) OF THE ECONOMY ACT. ACCORDINGLY, ALL OF THE EMPLOYEES ENGAGED UPON SUCH WORK RECEIVING COMPENSATION AT A RATE IN EXCESS OF $1,000 PER ANNUM, ARE SUBJECT TO THE APPLICABLE PROVISIONS OF THE ECONOMY ACT AND THE ENTIRE AMOUNT DEDUCTED FROM THEIR SALARIES IN ACCORDANCE WITH SECTION 101 (A) OR (B) OR SECTION 105 (D) (6) MUST BE IMPOUNDED NOTWITHSTANDING THAT SOME PORTION THEREOF MAY EVENTUALLY BE REIMBURSED BY THE STATE.

(3) TITLE I OF THE ECONOMY ACT IS APPLICABLE TO ALL EMPLOYEES AS DEFINED IN SECTION 104 OF THE ACT, WHETHER TEMPORARY OR PERMANENT WHO ARE IN RECEIPT OF COMPENSATION AT A RATE IN EXCESS OF $1,000 PER ANNUM. SECTION 104 (C) OF THE ACT, 47 STAT. 400, PROVIDES:

(C) IN THE CASE OF ANY OFFICE, POSITION, OR EMPLOYMENT, THE COMPENSATION FOR WHICH IS CALCULATED ON A PIECEWORK, HOURLY, OR PER DIEM BASIS, THE RATE OF COMPENSATION PER ANNUM SHALL BE HELD TO BE THE TOTAL AMOUNT WHICH WOULD BE PAYABLE FOR THE REGULAR WORKING HOURS AND ON THE BASIS OF THREE HUNDRED AND SEVEN WORKING DAYS, OR THE NUMBER OF WORKING DAYS ON THE BASIS OF WHICH SUCH COMPENSATION IS CALCULATED, WHICHEVER IS THE GREATER.

WHEN THE DAILY COMPENSATION OF THE VARIOUS EMPLOYEES DESCRIBED IN YOUR QUESTION 3 IS MULTIPLIED BY 307 AS REQUIRED BY SECTION 104 (C), SUPRA, IT GIVES AN ANNUAL RATE IN EXCESS OF $1,000, AND THEIR COMPENSATION MUST BE REDUCED BY ONE-ELEVENTH OR ONE-TWELFTH, DEPENDING UPON WHETHER THEY ARE PLACED UPON A 5-DAY WEEK OR FURLOUGH BASIS OR BY 8 1/3 PERCENT IF NEITHER PLAN IS PRACTICABLE. SEE SECTION 101 (A) AND (B) AND SECTION 105 (D) (6) OF THE ACT.

(4) AN EMPLOYEE WHO TAKES THE ENTIRE MONTH OF JULY AS A LEGISLATIVE FURLOUGH WILL BE ENTITLED TO NO PAY FOR THAT MONTH AND HIS ENTIRE MONTH'S SALARY MUST BE IMPOUNDED. IN VIEW OF THE REQUIREMENT OF SECTION 205 OF THE ECONOMY ACT THAT THE RETIREMENT DEDUCTIONS SHALL BE BASED UPON THE REGULAR SALARY, PAY, OR COMPENSATION, SUCH EMPLOYEE IS ALSO SUBJECT TO THE 3 1/2 PERCENT DEDUCTION FOR THE RETIREMENT FUND FOR THE MONTH OF JULY, WHICH MUST BE DEDUCTED FROM THE FIRST PAY RECEIVED BY HIM UPON HIS RETURN TO DUTY. A-43420, JULY 21, 1932, 12 COMP. GEN. 97.