A-44815, OCTOBER 20, 1932, 12 COMP. GEN. 405

A-44815: Oct 20, 1932

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

" THE FILLING OF WHICH IS EXPRESSLY EXCEPTED FROM THE REQUIREMENT FOR PRESIDENTIAL AUTHORIZATION OR APPROVAL UNDER SECTION 203 (B) OF THE ECONOMY ACT. MEANS ANY POSITION THE COMPENSATION OF WHICH IS PAID IN WHOLE OR IN PART FROM SOURCES OTHER THAN UNDER APPROPRIATED FUNDS WITH WHICH THE SECTION IS CONCERNED. SETTING ASIDE SUCH OSTENSIBLY COOPERATIVE WORK IN THIS DEPARTMENT AS WAS CONSIDERED IN A -44259. WHICH IT APPEARS IS NOT COOPERATIVE IN THE SENSE OF THE IMPOUNDING PROVISIONS. THERE ARE TWO CLASSES OF POSITIONS ARISING OUT OF COOPERATIVE AGREEMENTS IN THIS DEPARTMENT OF WHICH YOUR CONSIDERATION IS SOUGHT. OUR BUREAU OF BIOLOGICAL SURVEY IS ALSO INTERESTED. THE WARDEN IS A DEPARTMENT EMPLOYEE.

A-44815, OCTOBER 20, 1932, 12 COMP. GEN. 405

ECONOMY ACT - FILLING OF COOPERATIVE POSITIONS THE TERM "COOPERATIVE POSITIONS," THE FILLING OF WHICH IS EXPRESSLY EXCEPTED FROM THE REQUIREMENT FOR PRESIDENTIAL AUTHORIZATION OR APPROVAL UNDER SECTION 203 (B) OF THE ECONOMY ACT, MEANS ANY POSITION THE COMPENSATION OF WHICH IS PAID IN WHOLE OR IN PART FROM SOURCES OTHER THAN UNDER APPROPRIATED FUNDS WITH WHICH THE SECTION IS CONCERNED, AND WITHOUT REFERENCE TO THE CIVIL SERVICE OR RETIREMENT STATUS OF THE INCUMBENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, OCTOBER 20, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 21, 1932, AS FOLLOWS:

SECTION 203 OF THE ECONOMY ACT EXCEPTS FROM THE REQUIREMENT OF PRESIDENTIAL AUTHORIZATION OR APPROVAL THE FILLING OF VACANCIES IN TEMPORARY, EMERGENCY, SEASONAL, OR COOPERATIVE POSITIONS. SETTING ASIDE SUCH OSTENSIBLY COOPERATIVE WORK IN THIS DEPARTMENT AS WAS CONSIDERED IN A -44259, WHICH IT APPEARS IS NOT COOPERATIVE IN THE SENSE OF THE IMPOUNDING PROVISIONS, OR PRESUMABLY IN THE SENSE OF SECTION 203, THERE ARE TWO CLASSES OF POSITIONS ARISING OUT OF COOPERATIVE AGREEMENTS IN THIS DEPARTMENT OF WHICH YOUR CONSIDERATION IS SOUGHT.

IN ONE CASE, THE COOPERATIVE AGREEMENT CREATES AN EMPLOYMENT ENTIRELY DEPENDENT UPON THE AGREEMENT AND ENDING AUTOMATICALLY WITH THE TERMINATION OF THE AGREEMENT. TYPICAL INSTANCE: A SPORTSMENS' ASSOCIATION OWNING A LARGE GAME TRACT, IN WHICH, AS A REFUGE OR RESERVE, OUR BUREAU OF BIOLOGICAL SURVEY IS ALSO INTERESTED, CONTRIBUTES THE SALARY OF A GAME WARDEN. THE WARDEN IS A DEPARTMENT EMPLOYEE, BUT HAS NO CIVIL SERVICE STANDING AND COULD HOLD NO OTHER POSITION IN THE DEPARTMENT WITHOUT REGULAR QUALIFICATION AND APPOINTMENT. AS TO THIS CLASS NO QUESTION IS RAISED; YOUR DECISIONS MAKE IT CLEAR THAT THE COOPERATIVE CONTRIBUTION IS NOT TO BE REDUCED FOR IMPOUNDING, AND THERE SEEMS TO BE NO REASONABLE DOUBT THAT THE FILLING OF A VACANCY IN SUCH AN EMPLOYMENT DOES NOT REQUIRE PRESIDENTIAL ACTION.

THERE IS ANOTHER CLASS OF AGREEMENTS WHERE THE COOPERATOR CONTRIBUTES TO THE PAYMENT OF THE SALARY OF AN EMPLOYEE ON CONDITION THAT HE DEVOTE HIS TIME TO A PARTICULAR INVESTIGATION OR WORK WITHIN THE SCOPE OF THE DEPARTMENT'S REGULAR PROJECTS, BY WHICH THE COOPERATOR EXPECTS TO BENEFIT. FOR INSTANCE, A FRUIT EXPORTING CONCERN WISHES TO HAVE CONDUCTED CERTAIN COLD STORAGE EXPERIMENTS IN WHICH THE DEPARTMENT ALSO IS INTERESTED. THE EMPLOYEE ASSIGNED MAY BE- - MORE OFTEN IS--- ONE OF THE DEPARTMENT'S REGULAR FORCE, WITHIN THE CIVIL SERVICE. HE RECEIVES A NEW APPOINTMENT AS HE GOES INTO THE COOPERATIVE WORK, NOT CHANGING THE FORMER RATE BUT REDUCING THE PART PAID FROM DEPARTMENT FUNDS WITH STIPULATION THAT THE BALANCE IS TO BE PAID FROM THE COOPERATOR'S CONTRIBUTION, THIS LATTER BEING ORDINARILY A TRUST FUND IN THE SPECIAL ACCOUNT OF THE DISBURSING CLERK OF THE DEPARTMENT. RETIREMENT DEDUCTIONS ARE PAID ON THE COOPERATIVE CONTRIBUTION AS WELL AS ON THE APPROPRIATION SHARE OF THE COMPENSATION. WHEN THE AGREEMENT TERMINATES A NEW APPOINTMENT ISSUES FOR SALARY ADJUSTMENT AS REGARDS SOURCE OF FUNDS.

THE QUESTION PRESENTED FOR YOUR DECISION IS: IF AN ACTIVE COOPERATIVE POSITION OF THE LAST-DESCRIBED CLASS BECOMES VACANT THROUGH DEATH, RESIGNATION, RETIREMENT, OR ASSIGNMENT OF THE INCUMBENT TO NONCOOPERATIVE WORK, IS THERE NEED TO SEEK PRESIDENTIAL AUTHORIZATION OR APPROVAL OF A NEW APPOINTMENT FILLING THE VACANCY? IN OTHER WORDS, DOES A POSITION LOSE THE COOPERATIVE CHARACTER UNDER SECTION 203 BECAUSE THE PERSON FILLING IT IS PARTLY PAID FROM FEDERAL FUNDS AND HAS A REGULAR CIVIL-SERVICE STANDING?

ANOTHER QUESTION, QUITE INDEPENDENT OF THE PRECEDING, BUT WHICH IT IS CONVENIENT TO INCLUDE AT THIS POINT, IS AS FOLLOWS: A LEGISLATIVE FURLOUGH PERIOD, EXHAUSTING THE 24 WORKING DAYS, ENDS WITH SATURDAY. THE EMPLOYEE THEN GOES ON LEAVE WITHOUT PAY, WITHOUT RETURN TO DUTY. SHOULD HE BE CHARGED AS DAYS OF LEAVE WITHOUT PAY WITH THE HALF DAY SATURDAY, WITH SUNDAY, AND WITH THE HOLIDAY (LABOR DAY), IMMEDIATELY FOLLOWING THE TERMINATION OF HIS LEGISLATIVE FURLOUGH?

THE TERM "COOPERATIVE POSITIONS" USED IN SECTION 203 (B), TITLE II, OF THE ECONOMY ACT, MEANS ANY POSITION THE COMPENSATION OF WHICH IS PAID IN WHOLE OR IN PART FROM SOURCES OTHER THAN UNDER APPROPRIATED FUNDS WITH WHICH THE SECTION IS CONCERNED, AND WITHOUT REFERENCE TO THE CIVIL SERVICE OR RETIREMENT STATUS OF THE INCUMBENT. THE TERM IS NOT TO BE REGARDED AS APPLICABLE ONLY TO THOSE POSITIONS OCCUPIED BY PERSONS EXEMPTED BY EXCEPTION (7) FROM THE DEFINITION OF THE TERMS ,OFFICER" AND "EMPLOYEE" IN SECTION 104 (A), TITLE I OF THE ECONOMY ACT, WHICH EXCEPTION HAS BEEN HELD TO APPLY ONLY TO THOSE OFFICERS AND EMPLOYEES NO PORTION OF WHOSE TOTAL COMPENSATION IS PAID FROM THE FEDERAL TREASURY.

REFERRING TO YOUR FIRST QUESTION, THEREFORE, YOU ARE ADVISED THAT THERE IS NO REQUIREMENT TO SEEK PRESIDENTIAL AUTHORIZATION OR APPROVAL OF A NEW APPOINTMENT FILLING THE VACANCY IN SUCH A COOPERATIVE POSITION.

YOUR SECOND QUESTION IS OF A CLASS THAT MAY BE ANSWERED ONLY ON A CLAIM FILED OR UPON SUBMISSION OF A SPECIFIC CASE WITH A COMPLETE STATEMENT OF FACTS--- THE GENERAL RULE TO BE FOLLOWED ADMINISTRATIVELY IN THE MEANTIME OF MAKING NO PAYMENT FOR THE PERIOD IN DOUBT.