A-44541, SEPTEMBER 19, 1932, 12 COMP. GEN. 363

A-44541: Sep 19, 1932

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THE IMPOUNDING OF THE SALARY RATES OF SUCH VACANT POSITIONS IS REQUIRED UNDER THE TERMS OF SECTION 203 OF THE ECONOMY ACT. WHICH IS VACANT ON JULY 1. APPARENTLY WAS PREMISED ON THE ASSUMPTION THAT CONGRESS APPROPRIATED A FULL YEAR'S COMPENSATION FOR ALL SUCH POSITIONS. THAT IT MUST BE PRESUMED THE APPROPRIATIONS FOR THE FISCAL YEAR 1933 WERE ESTIMATED FOR ON THE BASIS OF A LOWER RATE THAN THAT PREVIOUSLY PAID THE LAST INCUMBENT. THERE ARE A NUMBER OF INSTANCES IN THE TREASURY DEPARTMENT WHERE APPROPRIATIONS PROVIDED FOR ACTIVITIES CONSISTING ENTIRELY OR LARGELY OF PERSONAL SERVICES ARE MATERIALLY LOWER THAN THE ESTIMATES INCLUDED IN THE BUDGET FOR 1933. IN MANY SUCH CASES THE PRACTICAL EFFECT IS THAT OF ABOLISHING PREVIOUSLY EXISTING POSITIONS.

A-44541, SEPTEMBER 19, 1932, 12 COMP. GEN. 363

ECONOMY ACT - IMPOUNDING OF SALARIES OF VACANT POSITIONS IN THE ABSENCE OF ADMINISTRATIVE ACTION PRIOR TO JULY 1, 1932, AFFIRMATIVELY ABOLISHING VACANT POSITIONS, OR SUFFICIENT FACTS DISCLOSED TO SHOW THAT A POSITION HAD BEEN VACANT FOR SO LONG AS TO JUSTIFY A PRESUMPTION THAT IT HAD BEEN ABOLISHED OR DISCONTINUED, A REDUCTION MADE BY THE CONGRESS IN A PERSONNEL APPROPRIATION MAY NOT BE CONSIDERED AS RELATING EXCLUSIVELY TO SALARIES OF POSITIONS VACANT JUNE 30, 1932, OR TO THOSE BECOMING VACANT ON JULY 1, 1932, BY OPERATION OF LAW OR OTHERWISE, AND THE IMPOUNDING OF THE SALARY RATES OF SUCH VACANT POSITIONS IS REQUIRED UNDER THE TERMS OF SECTION 203 OF THE ECONOMY ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, SEPTEMBER 19, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 6, 1932, AS FOLLOWS:

SECTION 203 OF THE ACT OF JUNE 30, 1932 (ECONOMY ACT), PROVIDES THAT NO APPROPRIATION AVAILABLE TO ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT OR TO THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, DURING THE FISCAL YEAR 1933, SHALL BE USED TO PAY THE COMPENSATION OF AN INCUMBENT, WITH CERTAIN EXCEPTIONS, 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, AND THAT THE APPROPRIATIONS OR PORTIONS OF APPROPRIATIONS UNEXPENDED BY THE OPERATION OF THAT SECTION SHALL NOT BE USED FOR ANY OTHER PURPOSES, BUT SHALL BE IMPOUNDED AND RETURNED TO THE TREASURY.

THE PROCEDURE PRESCRIBED BY COMPTROLLER GENERAL'S DECISION A-42691, A- 43276, OF JULY 12, 1932, WHEREBY A FULL YEAR'S COMPENSATION MUST BE IMPOUNDED FOR POSITIONS VACANT JULY 1, 1932, APPARENTLY WAS PREMISED ON THE ASSUMPTION THAT CONGRESS APPROPRIATED A FULL YEAR'S COMPENSATION FOR ALL SUCH POSITIONS. THIS ALSO SEEMS TO BE A FACTOR IN DECISION THERE MAY BE INSTANCES WHERE A POSITION HAS BEEN VACANT FOR SO LONG A TIME PRIOR TO JULY 1, 1932, THAT IT MUST BE PRESUMED THE APPROPRIATIONS FOR THE FISCAL YEAR 1933 WERE ESTIMATED FOR ON THE BASIS OF A LOWER RATE THAN THAT PREVIOUSLY PAID THE LAST INCUMBENT.

THERE ARE A NUMBER OF INSTANCES IN THE TREASURY DEPARTMENT WHERE APPROPRIATIONS PROVIDED FOR ACTIVITIES CONSISTING ENTIRELY OR LARGELY OF PERSONAL SERVICES ARE MATERIALLY LOWER THAN THE ESTIMATES INCLUDED IN THE BUDGET FOR 1933. IN MANY SUCH CASES THE PRACTICAL EFFECT IS THAT OF ABOLISHING PREVIOUSLY EXISTING POSITIONS. IN CASES OF THE CHARACTER UNDER CONSIDERATION A REASONABLE AND FAIR INTERPRETATION WOULD APPEAR TO BE THAT THE CONGRESS, CONVINCED THAT THE ECONOMY ACT'S RETIREMENT PROVISIONS AND LIMITATIONS ON APPOINTMENTS WOULD HAVE THE EFFECT OF ABOLISHING PREVIOUSLY EXISTING POSITIONS, WITHHELD (DID NOT APPROPRIATE) FUNDS THEREFOR, RATHER THAN THAT IT APPROPRIATED FULL YEAR'S COMPENSATION FOR THE POSITIONS THUS ABOLISHED IN ORDER THAT SUCH AMOUNTS MIGHT BE IMPOUNDED, WHILE APPROPRIATING ONLY PART OF A YEAR'S COMPENSATION FOR OTHER POSITIONS. SINCE NO FUNDS WERE PROVIDED BY CONGRESS FOR SUCH ABOLISHED POSITIONS THERE CAN BE NO UNEXPENDED BALANCE DUE TO THE OPERATION OF THE STATUTE. HENCE IT WOULD APPEAR THAT THERE ARE NO MONEYS TO IMPOUND AN ACCOUNT OF SUCH POSITIONS.

AS AN ILLUSTRATION, THE AMOUNT INCLUDED IN THE BUDGET FOR 1933, "SALARIES AND EXPENSES, MINTS AND ASSAY OFFICES," WAS $1,459,780, OF WHICH $1,135,560 (NET) WAS FOR PERSONNEL. THE APPROPRIATION PROVIDED BY CONGRESS FOR THIS PURPOSE WAS $1,339,670, INVOLVING A REDUCTION OF $120,110. SINCE THIS APPROPRIATION IS MAINLY FOR PERSONAL SERVICES, A LARGE PART OF THE REDUCTION MUST BE APPLIED TO PERSONNEL, RESULTING IN THE ABOLITION OF PREVIOUSLY EXISTING POSITIONS. THE MINT SERVICE ESTIMATE FOR 1933 PROVIDED FOR NO INCREASE IN PERSONNEL, BUT RATHER FOR A REDUCTION OF FOURTEEN POSITIONS AND THE MAINTENANCE OF THE OTHER PREVIOUSLY EXISTING POSITIONS (SEE PAGE 530, BUDGET FOR 1933). IT IS, THEREFORE, EVIDENT THAT THE REDUCTION OF $120,110, WHICH HAD NOT BEEN ALLOCATED BY CONGRESS TO SPECIFIC OBJECTS OF EXPENDITURE, BY HERETOFORE COMMONLY ACCEPTED INTERPRETATION, HAD THE EFFECT OF ABOLISHING SOME OF THE POSITIONS PREVIOUSLY ESTIMATED FOR. IT IS ONLY REASONABLE TO ASSUME THAT THE POSITIONS THUS ABOLISHED INCLUDE THOSE OF INCUMBENTS RETIRED IMMEDIATELY UNDER THE TERMS OF THE ECONOMY ACT AND THOSE, IF ANY, WHICH HAD PREVIOUSLY BECOME VACANT AND REMAINED VACANT ON JULY 1, 1932, PARTICULARLY IN VIEW OF THE FACT THAT THE AGGREGATE AMOUNT INVOLVED IN THOSE RETIREMENTS AND VACANCIES IS SUBSTANTIALLY LESS THAN THE REDUCTION MADE BY CONGRESS IN THE AMOUNT OF THE ESTIMATE.

IN THE ABSENCE OF A SPECIFIC PROVISION IN THE APPROPRIATION ACT ABOLISHING OR DISCONTINUING POSITIONS, OR EXPRESSLY LIMITING TO LESS THAN A YEAR THE PERIOD FOR WHICH CERTAIN POSITIONS ARE APPROPRIATED FOR, THE MERE FACT THAT A LESS AMOUNT IS APPROPRIATED FOR PERSONNEL FOR THE FISCAL YEAR 1933 THAN FOR THE FISCAL YEAR 1932, OR THAN WAS ESTIMATED FOR IN THE BUDGET, MAY NOT BE REGARDED AS ABOLISHING EXISTING POSITIONS VACANT PRIOR TO JULY 1, 1932, OR WHICH BECOME VACANT ON OR SUBSEQUENT TO THAT DATE BY RETIREMENT OR OTHER SEPARATIONS OF EMPLOYEES FROM THE SERVICE. FOR INSTANCE, IN THE ILLUSTRATION GIVEN, THE FACT THAT A LESS AMOUNT FOR PERSONNEL WAS ACTUALLY REQUESTED BY AND/OR ESTIMATED FOR THE MINT SERVICE DID NOT IPSO FACTO HAVE THE EFFECT OF ABOLISHING ANY POSITIONS THAT WERE VACANT AT THAT TIME, OR WHICH MIGHT THEREAFTER BECOME VACANT, THE APPROPRIATION BEING IN A LUMP SUM WITHOUT SPECIFYING THE NUMBER OR CHARACTER OF POSITIONS AND WITHOUT REFERENCE TO POSITIONS WHICH PREVIOUSLY WERE FILLED OR VACANT. IN THE ABSENCE OF ADMINISTRATIVE ACTION PRIOR TO JULY 1, 1932, AFFIRMATIVELY ABOLISHING VACANT POSITIONS, OR SUFFICIENT FACTS DISCLOSED TO SHOW THAT A POSITION HAD BEEN VACANT FOR SO LONG AS TO JUSTIFY A PRESUMPTION THAT IT HAD BEEN ABOLISHED OR DISCONTINUED, A REDUCTION MADE BY THE CONGRESS IN THE PERSONNEL APPROPRIATION MAY NOT BE CONSIDERED AS RELATING EXCLUSIVELY TO SALARIES OF POSITIONS VACANT JUNE 30, 1932, OR TO THOSE BECOMING VACANT ON JULY 1, 1932, BY OPERATION OF LAW OR OTHERWISE, AND THE IMPOUNDING OF A SALARY RATE OF SUCH VACANT POSITION IS REQUIRED PURSUANT TO THE PROCEDURE STATED IN THE INSTRUCTIONS OF JULY 12, 1932.

THE CONGRESS, IN THE ECONOMY ACT, PROVIDED A PROCEDURE WHICH WILL ENABLE ADMINISTRATIVE OFFICES TO KEEP WITHIN THE REDUCED APPROPRIATIONS FOR PERSONNEL. SEE SECTION 216 AUTHORIZING AND REQUIRING ADMINISTRATIVE FURLOUGHS THE SAVINGS FROM WHICH ARE NOT REQUIRED TO BE IMPOUNDED, AND ALSO THE LAST PROVISO TO SECTION 203, AS FOLLOWS:

* * * 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.