A-43823, AUGUST 12, 1932, 12 COMP. GEN. 234

A-43823: Aug 12, 1932

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IS NOT REQUIRED TO BE IMPOUNDED. THE COMMISSARY EARNINGS HAVE ACCRUED TO DATE. HAVING BEEN HELD UNTIL AN OPPORTUNITY WAS AFFORDED TO PRESENT THE MATTER TO THE APPROPRIATIONS COMMITTEE FOR DECISION AS TO THE BEST METHOD OF APPLYING SUCH EARNINGS TO THE PAYMENT OF SALARIES DIRECTLY CHARGEABLE TO THE WORK INCIDENT TO RECEIPT AND DISBURSEMENT OF PRISONERS' FUNDS. THERE HAVE BEEN APPOINTED SOME TWELVE COMMISSARY CLERKS. WHO DURING THE FISCAL YEAR 1932 WERE PAID FROM THE APPROPRIATIONS FOR MAINTENANCE AND OPERATION OF THE RESPECTIVE INSTITUTIONS. IT IS PROPOSED TO APPOINT SOME EIGHT OR TEN ADDITIONAL COMMISSARY CLERKS. ALL COMMISSARY CLERKS NOW IN THE SERVICE WERE APPOINTED AT A BASE ENTRANCE SALARY OF $1.

A-43823, AUGUST 12, 1932, 12 COMP. GEN. 234

ECONOMY ACT - FILLING OF VACANCIES - COMMISSARY CLERKS AT FEDERAL PENITENTIARIES THE PROVISIONS OF SECTIONS 202 AND 203 OF THE ECONOMY ACT DO NOT REQUIRE THE AUTHORIZATION OR APPROVAL OF THE PRESIDENT TO THE FILLING OF VACANCIES IN THE POSITIONS OF COMMISSARY CLERK OR CHIEF COMMISSARY CLERK AT FEDERAL PENAL AND CORRECTIONAL INSTITUTIONS EITHER FROM OUTSIDE THE GOVERNMENT SERVICE OR BY PROMOTION FROM WITHIN THE SERVICE, AND THE COMPENSATION OF SUCH POSITIONS, WHEN THEY BECOME VACANT, IS NOT REQUIRED TO BE IMPOUNDED.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, AUGUST 12, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 28, 1932, REVIEWING THE HISTORY OF THE ESTABLISHMENT OF THE EXISTING ACCOUNTING PROCEDURE FOR THE HANDLING OF FUNDS OF PRISONERS INCARCERATED IN THE SEVERAL FEDERAL PENAL AND CORRECTIONAL INSTITUTIONS, EXPRESSING APPRECIATION FOR THE ASSISTANCE GIVEN BY THIS OFFICE, AND REQUESTING DECISION OF QUESTIONS STATED AS FOLLOWS:

IN CONFORMITY WITH THE RECOMMENDATION OF THE DEPARTMENT, CONGRESS HAS INCLUDED IN THE ACT MAKING APPROPRIATIONS FOR THE DEPARTMENT OF JUSTICE FOR THE FISCAL YEAR 1933 THE FOLLOWING ROVISO:

"THAT ANY PART OF THE APPROPRIATIONS UNDER THIS HEADING USED FOR THE PAYMENT OF SALARIES OF PERSONNEL EMPLOYED IN THE OPERATION OF PRISON COMMISSARIES SHALL BE REIMBURSED FROM COMMISSARY EARNINGS, AND SUCH REIMBURSEMENT SHALL BE IN ADDITION TO THE AMOUNTS APPROPRIATED HEREIN.' (PUBLIC 232, 72D CONGRESS, PAGE 21.)

WE CONSIDER THIS ACTION OF CONGRESS IN THE NATURE OF A FORMAL RECOGNITION OF THE LEGALITY OF THE ESTABLISHMENT AND OPERATION OF PRISON COMMISSARIES.

AS STATED IN OUR BRIEF, COPY ATTACHED, THE COMMISSARY EARNINGS HAVE ACCRUED TO DATE, HAVING BEEN HELD UNTIL AN OPPORTUNITY WAS AFFORDED TO PRESENT THE MATTER TO THE APPROPRIATIONS COMMITTEE FOR DECISION AS TO THE BEST METHOD OF APPLYING SUCH EARNINGS TO THE PAYMENT OF SALARIES DIRECTLY CHARGEABLE TO THE WORK INCIDENT TO RECEIPT AND DISBURSEMENT OF PRISONERS' FUNDS, INCLUDING THE OPERATION OF COMMISSARIES.

THERE HAVE BEEN APPOINTED SOME TWELVE COMMISSARY CLERKS, WHO DURING THE FISCAL YEAR 1932 WERE PAID FROM THE APPROPRIATIONS FOR MAINTENANCE AND OPERATION OF THE RESPECTIVE INSTITUTIONS. UNDER THE PROVISIONS OF THE CURRENT APPROPRIATIONS ACT, HOWEVER, THE SALARIES OF ALL SUCH COMMISSARY CLERKS, ALTHOUGH PAID FROM THE MAINTENANCE APPROPRIATIONS, MUST BE REIMBURSED FROM COMMISSARY EARNINGS. IT IS PROPOSED TO APPOINT SOME EIGHT OR TEN ADDITIONAL COMMISSARY CLERKS. ALL COMMISSARY CLERKS NOW IN THE SERVICE WERE APPOINTED AT A BASE ENTRANCE SALARY OF $1,800 (GRADE CAF-4), BUT IT WAS EXPECTED AT THE LARGER INSTITUTIONS AT LEAST ONE COMMISSARY CLERK WOULD BE APPOINTED IN GRADE CAF-5, ENTRANCE SALARY $2,000, TO HAVE GENERAL SUPERVISION OVER THE OTHER CLERKS.

IN VIEW OF YOUR DECISION OF JULY 16TH (A43357), HOLDING THAT SALARIES ARE NOT TO BE CONSIDERED AS "PAID FROM THE FEDERAL TREASURY" IF FOR ACCOUNTING OR BOOKKEEPING PURPOSES THE FUNDS ARE PASSED THROUGH THE TREASURY SO LONG AS THE ULTIMATE CHARGE IS NOT AGAINST THE UNITED STATES TREASURY, IT IS ASSUMED COMMISSARY CLERKS ARE NOT SUBJECT TO THE PROVISIONS OF PART II, TITLE I, OF THE ACT, RELATIVE TO THE FIVE DAY WEEK LEGISLATIVE FURLOUGH AND PERCENTAGE REDUCTION IN COMPENSATION.

IF THIS IS TRUE, WE SHOULD LIKE TO HAVE DEFINITE ADVICE AS TO WHETHER OR NOT THE PROVISIONS OF THE ACT IN QUESTION WOULD PREVENT THE APPOINTMENT OF A PERSON NOT IN THE GOVERNMENT SERVICE, OR THE PROMOTION OF A PERSON NOW IN THE SERVICE, WHO, AT EACH OF THE LARGER INSTITUTIONS, WOULD ACT AS CHIEF COMMISSARY CLERK AND HAVE GENERAL SUPERVISION OVER OTHER CLERKS OF THIS CLASS.

WE SHOULD FURTHER LIKE ADVICE AS TO WHETHER THE POSITION OF COMMISSARY CLERK IS ONE WHICH UNDER THE PROVISIONS OF PART II, TITLE II, OF THE SO- CALLED "ECONOMY ACT" WOULD, IF VACANT ON JULY 1ST, REQUIRE A WAIVER OF THE PRESIDENT BEFORE SAME COULD BE FILLED.

SECTIONS 202 AND 203 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 403, 404, PROVIDE AS OLLOWS:

SEC. 202. 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.

SEC. 203. 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, OR (C) TO COMMISSIONED, COMMISSIONED WARRANT, WARRANT, AND ENLISTED PERSONNEL, AND CADETS, OF THE COAST GUARD. 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, AND A REPORT OF ALL SUCH VACANCIES, THE NUMBER THEREOF FILLED, AND THE AMOUNTS UNEXPENDED, FOR THE PERIOD BETWEEN JULY 1, 1932, AND OCTOBER 31, 1932, SHALL BE SUBMITTED TO CONGRESS ON THE FIRST DAY OF THE NEXT REGULAR SESSION: PROVIDED, THAT SUCH IMPOUNDING OF FUNDS MAY BE WAIVED IN WRITING BY THE PRESIDENT OF THE UNITED STATES IN CONNECTION WITH ANY APPROPRIATION OR PORTION OF APPROPRIATION, WHEN, IN HIS JUDGMENT, SUCH ACTION IS NECESSARY AND IN THE PUBLIC INTEREST.

THE DEFINITION OF THE TERMS "OFFICER" AND "EMPLOYEE" AND THE EXCEPTION THEREFROM OF "/7) PUBLIC OFFICIALS AND EMPLOYEES WHOSE COMPENSATION * * * IS NOT PAID FROM THE FEDERAL TREASURY," WHICH, AS YOU ASSUME, EXEMPTS COMMISSARY CLERKS FROM THE PROVISIONS OF TITLE I OF THE ACT RELATIVE TO THE 5-DAY WEEK, LEGISLATIVE FURLOUGH, AND PERCENTAGE REDUCTION IN COMPENSATION, IS APPLICABLE ONLY ,WHEN USED IN THIS TITLE," AND, ACCORDINGLY, DOES NOT OPERATE TO EXEMPT SUCH OFFICIALS AND EMPLOYEES FROM THE PROVISIONS OF SECTIONS 202 AND 203 UNDER TITLE II OF THE ACT. SEE IN THIS CONNECTION DECISION OF JULY 20, 1932, TO THE ARCHITECT OF THE CAPITOL, A-43301, 12 COMP. GEN. 83, AND THE DECISION THEREIN CITED, DATED JULY 16, 1932, TO THE SECRETARY OF THE TREASURY, A-43357, 12 COMP. GEN. 69.

SECTION 203 IS EXCLUSIVELY AN APPROPRIATION RESTRICTION, AND IF THERE IS NOT INVOLVED AN ,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," THE RESTRICTIONS OF THE SECTION ARE NOT APPLICABLE. IN THE INSTANT CASE THE PROVISION QUOTED IN YOUR LETTER FROM THE APPROPRIATION ACT OF JULY 1, 1932, UNDER THE HEADING "PENAL AND CORRECTIONAL INSTITUTIONS," DOES NOT MAKE "AN APPROPRIATION AVAILABLE," BUT, IN EFFECT, SIMPLY CONSTITUTES AN AUTHORIZATION FOR THE USE OF COMMISSARY EARNINGS FOR PAYMENT OF PERSONNEL EMPLOYED IN THE OPERATION THEREOF BY REQUIRING THAT THE APPROPRIATION USED IN THE FIRST INSTANCE TO PAY SUCH PERSONNEL "SHALL BE REIMBURSED FROM COMMISSARY EARNINGS" AND THAT SUCH REIMBURSEMENT "SHALL BE IN ADDITION TO THE AMOUNTS APPROPRIATED.' ACCORDINGLY, THE FILLING OF VACANCIES IN THE POSITIONS OF COMMISSARY CLERK AND CHIEF COMMISSARY CLERK, THE SALARIES OF WHICH ARE PAID FROM COMMISSARY EARNINGS, WOULD NOT REQUIRE THE AUTHORIZATION OR APPROVAL OF THE PRESIDENT; THAT IS TO SAY, THE PROVISIONS OF SECTION 203 OF THE ACT WOULD NOT BE APPLICABLE THERETO.

REFERRING TO SECTION 202 OF THE ACT, YOU WILL NOTE THAT THE PROVISO THERETO EXCEPTS FROM THE RESTRICTION OF THE SECTION AGAINST "ADMINISTRATIVE PROMOTIONS," THE "FILLING OF A VACANCY WHEN AUTHORIZED BY THE PRESIDENT, BY THE APPOINTMENT OF AN EMPLOYEE OF A LOWER GRADE.' THAT IS, IT IS PROVIDED THAT THE FILLING OF A VACANCY IN SUCH MANNER AND UNDER SUCH CIRCUMSTANCES IS NOT TO BE CONSTRUED AS AN ADMINISTRATIVE PROMOTION WITHIN THE MEANING OF SAID SECTION. AND SINCE, AS HEREINBEFORE SHOWN, FILLING OF VACANCIES IN THE POSITIONS OF COMMISSARY CLERK AND CHIEF COMMISSARY CLERK DO NOT REQUIRE AUTHORIZATION OR APPROVAL BY THE PRESIDENT, THE FILLING OF SUCH VACANCIES BY THE PROMOTION OR TRANSFER OF PERSONS ALREADY IN THE SERVICE, RESULTING IN AN INCREASE IN COMPENSATION, IS NOT TO BE CONSTRUED AS AN "ADMINISTRATIVE PROMOTION" WITHIN THE MEANING OF SAID SECTION 202 OF THE ACT AND WOULD NOT BE PROHIBITED.

YOU ARE ADVISED, THEREFORE, THAT THE PROVISIONS OF THE ECONOMY ACT WOULD NOT (QUOTING FROM YOUR LETTER/---

PREVENT THE APPOINTMENT OF A PERSON NOT IN THE GOVERNMENT SERVICE, OR THE PROMOTION OF A PERSON NOW IN THE SERVICE, WHO, AT EACH OF THE LARGER INSTITUTIONS, WOULD ACT AS CHIEF COMMISSARY CLERK AND HAVE GENERAL SUPERVISION OVER OTHER CLERKS OF THIS CLASS.

IT IS UNDERSTOOD THAT IN YOUR LAST PARAGRAPH YOU REFER TO THE PRESIDENTIAL WAIVER OF THE REQUIREMENT FOR IMPOUNDING THE SALARIES OF POSITIONS VACANT JULY 1, 1932, AUTHORIZED IN THE LAST PROVISO TO SECTION 203. IF SO, SINCE THE PROVISIONS OF SAID SECTION ARE NOT APPLICABLE, AS ABOVE STATED, THE SALARIES OF THE POSITIONS OF COMMISSARY CLERK, VACANT JULY 1, 1932, ARE NOT REQUIRED TO BE IMPOUNDED AND THE QUESTION IS ANSWERED IN THE NEGATIVE.