A-44976, OCTOBER 20, 1932, 12 COMP. GEN. 406

A-44976: Oct 20, 1932

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ECONOMY ACT - VACANT POSITIONS - IMPOUNDING - ALLOWANCES IN KIND NOTWITHSTANDING THE REQUIREMENT UNDER SECTIONS 101 (B) AND 105 (D) OF THE ECONOMY ACT THAT LEGISLATIVE FURLOUGH AND PERCENTAGE REDUCTIONS IN COMPENSATION ARE REQUIRED TO BE BASED UPON THE TOTAL SALARY RATE. NO MORE MAY BE IMPOUNDED THAN REPRESENTS THE CASH EXPENDITURE WHICH WOULD HAVE BEEN MADE UNDER AN APPROPRIATION TO THE LAST INCUMBENT OF THE VACANT POSITION AND EXCLUSIVE OF THE DETERMINED VALUE OF ALLOWANCES FURNISHED IN KIND AND CHARGED FOR ALL EMPLOYEES IN GROSS AGAINST OTHER APPROPRIATIONS. THERE ARISES THE QUESTION OF WHAT IS TO BE CONSIDERED THE BASIC SALARY OF AN EMPLOYEE. A PHYSICIAN IN THE INDIAN FIELD SERVICE IS ALLOCATED IN FIELD GRADE 13 AT AN ENTRANCE SALARY OF $3.

A-44976, OCTOBER 20, 1932, 12 COMP. GEN. 406

ECONOMY ACT - VACANT POSITIONS - IMPOUNDING - ALLOWANCES IN KIND NOTWITHSTANDING THE REQUIREMENT UNDER SECTIONS 101 (B) AND 105 (D) OF THE ECONOMY ACT THAT LEGISLATIVE FURLOUGH AND PERCENTAGE REDUCTIONS IN COMPENSATION ARE REQUIRED TO BE BASED UPON THE TOTAL SALARY RATE, INCLUDING ALLOWANCES FURNISHED IN KIND, UNDER SECTION 203 OF THE ECONOMY ACT, RELATIVE TO THE IMPOUNDING OF SALARIES OF VACANT POSITIONS, NO MORE MAY BE IMPOUNDED THAN REPRESENTS THE CASH EXPENDITURE WHICH WOULD HAVE BEEN MADE UNDER AN APPROPRIATION TO THE LAST INCUMBENT OF THE VACANT POSITION AND EXCLUSIVE OF THE DETERMINED VALUE OF ALLOWANCES FURNISHED IN KIND AND CHARGED FOR ALL EMPLOYEES IN GROSS AGAINST OTHER APPROPRIATIONS.

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

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 28, 1932, AS FOLLOWS:

IN CONNECTION WITH THE IMPOUNDING OF SAVINGS RESULTING FROM VACANCIES IN POSITIONS UNDER THE INTERIOR DEPARTMENT IN ACCORDANCE WITH SECTION 3 OF THE INTERIOR DEPARTMENT APPROPRIATION ACT APPROVED APRIL 22, 1932,AND IN CONFORMITY WITH THE PROCEDURE SET FORTH IN PREVIOUS DECISIONS FROM YOUR OFFICE, THERE ARISES THE QUESTION OF WHAT IS TO BE CONSIDERED THE BASIC SALARY OF AN EMPLOYEE.

FOR EXAMPLE, A PHYSICIAN IN THE INDIAN FIELD SERVICE IS ALLOCATED IN FIELD GRADE 13 AT AN ENTRANCE SALARY OF $3,200 PER ANNUM, MINUS $300 FOR QUARTERS, FUEL AND LIGHT. THIS $300 DEDUCTION IS NEVER PAID TO THE EMPLOYEE BUT AS FAR AS MONEY IS CONCERNED SIMPLY REPRESENTS A PAPER TRANSACTION. THE ANNUAL SALARY ACTUALLY PAID THE PHYSICIAN IS $2,900, LESS NECESSARY RETIREMENT OR OTHER DEDUCTIONS AND THE ACTUAL CASH OUTLAY ON THE PART OF THE GOVERNMENT IS BASED UPON A NET SALARY OF $2,900, RATHER THAN A GROSS SALARY OF $3,200.

THE AMOUNT APPROPRIATED BY CONGRESS TO CARRY THIS PHYSICIAN POSITION FOR AN ENTIRE YEAR IS $2,900, THE APPROPRIATION BEING BASED ON ESTIMATES SUPPLIED BY THE INDIAN SERVICE AND THE INTERIOR DEPARTMENT AND PASSED BY THE BUREAU OF THE BUDGET. THE 1933 BUDGET SET-UP FOR THE INDIAN SERVICE UNDER "CONSERVATION OF HEALTH AMONG INDIANS" THE APPROPRIATION FROM WHICH THE SALARIES OF PRACTICALLY ALL SUCH PHYSICIANS ARE PAID INCLUDES $1,375,347 FOR "TOTAL PERSONAL SERVICES, FIELD" THEN DEDUCTS $210,910 FOR "ALLOWANCE, VALUE OF QUARTERS, SUBSISTENCE, ETC., FURNISHED" MAKING THE NET ALLOWANCE FOR "TOTAL PERSONAL SERVICES, CASH PAYMENT" $1,164,437. YOU WILL SEE THAT THE APPROPRIATION IS BASED ENTIRELY UPON THE ACTUAL SALARY PAID EACH EMPLOYEE (IN MOST CASES THE NET SALARY, QUARTERS BEING FURNISHED) AND THAT TO REQUIRE US TO IMPOUND VACANCY SAVINGS UPON THE BASIS OF THE GROSS SALARY WOULD BE WORKING A MANIFEST INJUSTICE, FORCING US TO TURN BACK AS VACANCY SAVINGS MONEY WHICH WE NEVER HAD.

TO CITE FURTHER CONCRETE FIGURES, LET US SUPPOSE A GRADE 13 PHYSICIAN POSITION IS FILLED FOR THE FIRST SIX MONTHS OF THE PRESENT FISCAL YEAR AND VACANT THE REMAINING SIX MONTHS:

TABLE

EXPENDED FOR SALARY, 6 MONTHS---------------------- $1,450

NECESSARY TO BE IMPOUNDED FOR 6 MONTHS (ON BASIS

OF GROSS SALARY $3,200/-------------------------- 1,600

TOTAL EXPENDITURES AND IMPOUNDMENT---------------------- $3,050

AMOUNT ACTUALLY AVAILABLE FOR THIS POSITION----------------- 2,900

ACTUAL LOSS TO INDIAN SERVICE--------------------------- 150

ANOTHER CONSPICUOUS ILLUSTRATION OF THIS QUESTION IS THE GROUP OF 108 PUPIL NURSES AT FREEDMAN'S HOSPITAL WHOSE GROSS SALARY IS $480 PER ANNUM EACH, AND FROM WHICH A DEDUCTION OF $360 PER ANNUM IS MADE FOR QUARTERS AND SUBSISTENCE, THE NET CASH SALARY BEING ONLY $120. APPROPRIATION IS MADE FOR ONLY THE $120 CASH. IT WILL BE SEEN THAT SHOULD IMPOUNDMENT OF SALARY FROM VACANT POSITIONS BE REQUIRED IN CASH AT THE GROSS RATE OF $480 THE IMPOUNDMENT FROM ONE VACANCY WOULD BE THE EQUIVALENT OF THE APPROPRIATION FOR FOUR POSITIONS.

THE LAST PARAGRAPH OF YOUR DECISION OF AUGUST 2, 1932, RENDERED TO THE SECRETARY OF AGRICULTURE, A-42691, A-43276, BEGINS WITH THE FOLLOWING SENTENCE "HOWEVER, SECTION 203 OF THE ECONOMY ACT IS CONCERNED WITH THE SAVING AND IMPOUNDING OF THE AMOUNT OF SALARY OF VACANT POSITIONS AT THE RATES ON THE BASIS OF WHICH APPROPRIATIONS FOR THE FISCAL YEAR 1933 WERE ESTIMATED.' UPON THIS BASIS OUR IMPOUNDMENT WOULD SEEM TO BE BASED UPON THE ACTUAL CASH AMOUNT PAID THE LAST INCUMBENT, WHICH IS IN MOST CASES THE NET SALARY OF THE POSITION.

LIKEWISE, YOUR DECISION OF JULY 23, 1932, TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, A-43425, (12 COMP. GEN. 105) CONTAINS THE FOLLOWING PARAGRAPH:

"IT WILL BE NOTED THAT THE STATUTE DEFINES THE TERM "COMPENSATION," AS INCLUDING ANY SALARY, PAY, WAGE, ALLOWANCE OR OTHER EMOLUMENT PAID FOR SERVICES AND IT EXCEPTS FROM ALLOWANCE ONLY ,ALLOWANCES FOR SUBSISTENCE, QUARTERS, HEAT, LIGHT, AND TRAVEL.' UNDER THE WELL ESTABLISHED RULE FOR THE CONSTRUCTION OF STATUTES THE EXCEPTION IS TO BE STRICTLY CONSTRUED. THAT IS TO SAY, UNDER THIS BROAD DEFINITION ANYTHING OF VALUE WHICH AN OFFICER OR EMPLOYEE RECEIVES FOR HIS SERVICES MUST BE REGARDED AS COMPENSATION UNLESS CLEARLY WITHIN THE EXCEPTION. THE EXCEPTION IS NOT TO BE ENLARGED BY CONSTRUCTION.'

AFTER CAREFUL CONSIDERATION OF THE FOREGOING, MAY WE HAVE YOUR DECISION AS TO THE BASIS UPON WHICH IMPOUNDMENT IS TO BE CALCULATED.

IT HAS BEEN HELD THAT LEGISLATIVE FURLOUGH AND PERCENTAGE REDUCTIONS IN COMPENSATION ARE REQUIRED TO BE BASED UPON THE TOTAL SALARY RATE, INCLUDING ALLOWANCES FURNISHED IN KIND. 12 COMP. GEN. 105; ID. 187. DOES NOT NECESSARILY FOLLOW, HOWEVER, THAT THE VALUE OF ALLOWANCES IN KIND ORDINARILY RECEIVED BY AN INCUMBENT OF A NOW VACANT POSITION IS TANGIBLY AVAILABLE FOR IMPOUNDING. SECTION 203 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 403, PROVIDES:

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 OPERATIONS 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 THE 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.

UNDER SAID SECTION 203, NO MORE CAN BE IMPOUNDED THAN REPRESENTS THE CASH EXPENDITURE WHICH WOULD HAVE BEEN MADE UNDER AN APPROPRIATION TO THE LAST INCUMBENT OF THE VACANT POSITION AND EXCLUSIVE OF THE DETERMINED VALUE OF ALLOWANCES FURNISHED IN KIND AND CHARGED FOR ALL EMPLOYEES IN GROSS AGAINST OTHER APPROPRIATIONS. ANY OTHER PROCEDURE WOULD OPERATE TO CHARGE TO THE PAY APPROPRIATIONS MATTERS NOT APPROPRIATED THEREIN AND THUS REDUCE THE AMOUNT OF THE APPROPRIATION MADE FOR THE CASH PAYMENTS TO OTHER EMPLOYEES, WHICH IS NOT CONTEMPLATED BY THE ACT. YOUR SUBMISSION IS ANSWERED ACCORDINGLY.