A-43764, AUGUST 8, 1932, 12 COMP. GEN. 202

A-43764: Aug 8, 1932

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IS RENDERED INOPERATIVE BY THE PROVISIONS OF THE ECONOMY ACT AND THE SALARY OF THE POSITION IS REQUIRED TO BE IMPOUNDED IN THE ABSENCE OF A PRESIDENTIAL AUTHORIZATION OR APPROVAL OF THE FILLING OF THE POSITION AS REQUIRED BY THE TERMS OF SECTION 203 OF THE ECONOMY ACT. ADMINISTRATIVE ACTION WAS TAKEN PRIOR TO JULY 1. WILL BE CONSIDERED AS RETROACTIVELY EFFECTIVE FROM JULY 1. THE MATTER WAS BROUGHT TO THE ATTENTION OF THE DIVISION OF RAILWAY MAIL SERVICE. IN REPLY THERE WAS RECEIVED THE FOLLOWING LETTER FROM THE GENERAL SUPERINTENDENT OF THE RAILWAY MAIL SERVICE. BUCKLEY WAS APPOINTED JUNE 16 UNDER THE LAWS THEN IN EFFECT. WE COULD HAVE MADE THE APPOINTMENT EFFECTIVE JUNE 16. IT WAS HELD: YOU ARE ADVISED.

A-43764, AUGUST 8, 1932, 12 COMP. GEN. 202

ECONOMY ACT - FILLING OF VACANCIES - POSTAL SERVICE AN ADMINISTRATIVE ACTION TAKEN PRIOR TO JULY 1, 1932, EFFECTIVE AS OF THAT DATE, PURPORTING TO FILL AN EXISTING POSITION VACANT JUNE 30, 1932, IS RENDERED INOPERATIVE BY THE PROVISIONS OF THE ECONOMY ACT AND THE SALARY OF THE POSITION IS REQUIRED TO BE IMPOUNDED IN THE ABSENCE OF A PRESIDENTIAL AUTHORIZATION OR APPROVAL OF THE FILLING OF THE POSITION AS REQUIRED BY THE TERMS OF SECTION 203 OF THE ECONOMY ACT. IF, WITH A VIEW TO AN APPOINTMENT, ADMINISTRATIVE ACTION WAS TAKEN PRIOR TO JULY 1, 1932, EFFECTIVE AS OF THAT DATE, TO CREATE A NEW OR ADDITIONAL POSITION, THERE WOULD BE NO IMPOUNDING INVOLVED UNDER SECTION 203 OF THE ECONOMY ACT, BUT THE ADMINISTRATIVE ACTION CREATING AND FILLING THE POSITION HAS BEEN RENDERED INOPERATIVE BY THE PROVISIONS OF THE ECONOMY ACT IN THE ABSENCE OF APPROVAL IN WRITING BY THE PRESIDENT, WHICH, IF OBTAINED, WILL BE CONSIDERED AS RETROACTIVELY EFFECTIVE FROM JULY 1, 1932.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, AUGUST 8, 1932:

PURSUANT TO SECTION 405, REVISED STATUTES, AS AMENDED BY THE ACT OF JUNE 10, 1921, 42 STAT. 24, 25, THERE HAS BEEN CERTIFIED TO THIS OFFICE BY THE POST OFFICE DEPARTMENT THE APPOINTMENT OF JEREMIAH F. BUCKLEY, A SUBSTITUTE RAILWAY POSTAL CLERK, TO THE POSITION OF REGULAR RAILWAY POSTAL CLERK, AT $1,900 PER ANNUM, EFFECTIVE JULY 1, 1932, WITH THE PAY OFFICE AT CLEVELAND, OHIO. AS THIS SEEMED TO INVOLVE A PROMOTION AND/OR THE FILLING OF A VACANCY IN CONTRAVENTION OF THE PROVISIONS OF SECTION 202 OR 203 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 403, THE MATTER WAS BROUGHT TO THE ATTENTION OF THE DIVISION OF RAILWAY MAIL SERVICE, POST OFFICE DEPARTMENT, AND IN REPLY THERE WAS RECEIVED THE FOLLOWING LETTER FROM THE GENERAL SUPERINTENDENT OF THE RAILWAY MAIL SERVICE, DATED JULY 27, 1932:

IN VIEW OF THE FACT THAT JEREMIAH F. BUCKLEY WAS APPOINTED JUNE 16 UNDER THE LAWS THEN IN EFFECT, WE HOPE YOU CAN SEE YOUR WAY CLEAR TO LET THE ORDER STAND. WE COULD HAVE MADE THE APPOINTMENT EFFECTIVE JUNE 16, OR ANY DATE THEREAFTER, BUT IN ACCORDANCE WITH THE USUAL PRACTICE, WE MADE IT EFFECTIVE AT THE BEGINNING OF THE NEXT PAY PERIOD, OR JULY 1, THERE BEING NO LAW EXISTING AT THE TIME PROHIBITING SUCH AN APPOINTMENT.

IN DECISION OF JULY 15, 1932, TO THE SECRETARY OF WAR, A-39245, A 39328, 12 COMP. GEN. 48, IT WAS HELD:

YOU ARE ADVISED, THEREFORE, THAT YOUR ORDER OF MAY 4, 1932, TO BECOME EFFECTIVE JULY 1, 1932, PROPOSING THE INCREASE OF RATES OF CERTAIN FIELD EMPLOYEES UNDER THE WAR DEPARTMENT HAS BEEN RENDERED INOPERATIVE BY SECTION 202 OF THE ACT OF JUNE 30, 1932, PROVIDING THAT "NO ADMINISTRATIVE PROMOTIONS IN THE CIVILIAN 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.' * * *

THIS PRINCIPLE WAS APPLIED, ALSO, TO THE FILLING OF VACANCIES RESTRICTED BY SECTION 203 OF THE ECONOMY ACT, IN DECISION OF JULY 30, 1932, TO THE ATTORNEY GENERAL, A-43525, 12 COMP. GEN. 142, AS FOLLOWS:

THE PROHIBITION UNDER THIS SECTION IS DIRECTED PRIMARILY AGAINST THE USES OF APPROPRIATIONS FOR THE FISCAL YEAR 1933, SOME OF WHICH WERE ACTUALLY AVAILABLE THE FIRST MOMENT OF THE FISCAL YEAR, THE OTHERS SUBSEQUENTLY BEING MADE AVAILABLE AS OF THAT MOMENT. NO PERIOD OF TIME ON JULY 1, 1932, COULD BE CONSIDERED AS EXISTING WHEN THE RESTRICTIONS OF THIS SECTION WOULD NOT APPLY. SEE SECTION 803 OF THE SAID ACT OF JUNE 30, 1932. THE FILLING OF ANY POSITION, WITH THE EXCEPTIONS NOTED IN THE ACT, INVOLVING PAYMENT OF SALARY UNDER THE 1933 APPROPRIATION, ONLY, WOULD BE SUBJECT TO THE STATUTORY RESTRICTIONS, AND THE ADMINISTRATIVE ACTION TAKEN PRIOR TO JULY 1, 1932, PURPORTING TO FILL VACANT POSITIONS AS OF JULY 1, 1932, WAS RENDERED INOPERATIVE BY THE PASSAGE OF THE ECONOMY ACT. THEREFORE, A POSITION VACANT AT THE CLOSE OF BUSINESS JUNE 30, 1932, MUST BE CONSIDERED AS VACANT ON JULY 1, 1932, AND SUCH VACANCY COULD NOT BE AVOIDED IN CONNECTION WITH APPLICATION OF THE ECONOMY ACT BY MAKING THE APPOINTMENT PRIOR TO JULY 1, 1932, AS SUCH APPOINTMENT COULD BE EFFECTIVE ONLY WITH THE EXPIRATION OF THE EXISTING APPOINTMENT, IF ANY, AT THE CLOSE OF BUSINESS JUNE 30, 1932. HENCE, THE SALARY OF SUCH POSITION IS REQUIRED TO BE IMPOUNDED, AND THE AMOUNT OF SUCH SALARY WOULD BE SUBSEQUENTLY AVAILABLE ONLY AS TO "ABSOLUTELY ESSENTIAL POSITIONS THE FILLING OF WHICH MAY BE AUTHORIZED OR APPROVED IN WRITING BY THE PRESIDENT OF THE UNITED STATES.' SEE DECISION OF JULY 12, 1932, A-42691, A-43276, ENTITLED "FURLOUGH AND COMPENSATION DEDUCTIONS, IMPOUNDING OF SAME AND OF VACANCY SAVINGS.' HOWEVER, IF THE APPOINTMENTS WERE IN FACT MADE AND THE APPOINTEES ACTUALLY ENTERED UPON DUTY THEREUNDER AND THE PRESIDENT SHOULD THEREAFTER PURSUANT TO THE PROVISIONS OF SAID SECTION 203 APPROVE, IN WRITING, THE FILLING OF THE VACANCIES, SUCH APPROVAL WOULD RELATE BACK TO THE DATE OF ACTUAL ENTRY UPON DUTY UNDER THE APPOINTMENT.

LIKEWISE, IN THE INSTANT CASE, IF THERE WAS AN EXISTING POSITION TO WHICH MR. BUCKLEY WAS APPOINTED EFFECTIVE JULY 1, 1932, IT WAS VACANT JUNE 30, 1932, AND THE SALARY THEREOF IS REQUIRED TO BE IMPOUNDED IN THE ABSENCE OF ACTION BY THE PRESIDENT AS PROVIDED FOR UNDER THE ECONOMY ACT, NOTWITHSTANDING THE ADMINISTRATIVE ACTION TAKEN JUNE 16, 1932, TO FILL THE VACANCY AS OF JULY 1, 1932. IF, WITH A VIEW TO THIS APPOINTMENT, A NEW OR ADDITIONAL POSITION WAS CREATED AS OF JULY 1, 1932, THERE WOULD BE NO IMPOUNDING INVOLVED UNDER SECTION 203 OF THE ACT, BUT THE ADMINISTRATIVE ACTION CREATING AND FILLING THE POSITION HAS BEEN RENDERED INOPERATIVE BY THE PROVISIONS OF THE ECONOMY ACT IN THE ABSENCE OF APPROVAL IN WRITING BY THE PRESIDENT, WHICH, IF OBTAINED, WILL BE CONSIDERED AS RETROACTIVELY EFFECTIVE FROM JULY 1, 1932.

YOU ARE ADVISED, THEREFORE, THAT IN THE AUDIT OF ACCOUNTS, CREDIT WILL NOT BE ALLOWED FOR SALARY PAYMENTS TO JEREMIAH F. BUCKLEY, UNDER THE POSITION IN QUESTION, FOR ANY PORTION OF THE FISCAL YEAR 1933, IN THE ABSENCE OF THE APPROVAL OF THE APPOINTMENT IN WRITING BY THE PRESIDENT.