A-45027, OCTOBER 19, 1932, 12 COMP. GEN. 403

A-45027: Oct 19, 1932

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HIS SUBSEQUENT APPOINTMENT TO A TEMPORARY OR SEASONAL POSITION SUCH AS IS EXCEPTED FROM THE PROVISIONS OF SECTION 203. IS NOT TO BE PROHIBITED AS AN ADMINISTRATIVE PROMOTION WITHIN THE MEANING OF SECTION 202 OF SAID ACT. IT IS HELD THAT WHILE AN EMERGENCY OR TEMPORARY POSITION MAY BE FILLED UNDER SECTION 203 (B) WITHOUT THE PRIOR AUTHORIZATION OR APPROVAL OF THE PRESIDENT. IS PROHIBITED AS AN "ADMINISTRATIVE PROMOTION.'. WHILE POSITIONS OF SEASONAL NATURE ARE NOT REFERRED TO IN THIS RULING. IT IS ASSUMED THAT THE RULING APPLIES EQUALLY IN THE FILLING OF SUCH POSITIONS. A FURTHER RULING IS REQUESTED AS TO WHETHER AN EMERGENCY. TWO CASES WHICH HAVE OCCURRED IN THE ENGINEER DEPARTMENT AT LARGE ON WHICH SPECIFIC RULINGS ARE DESIRED ARE DESCRIBED BELOW: (A) AN EMPLOYEE OF THE GRADE OF SUBSURVEYMAN.

A-45027, OCTOBER 19, 1932, 12 COMP. GEN. 403

ECONOMY ACT - APPOINTMENTS WHEN AN EMPLOYEE HAS BEEN GIVEN AN ADMINISTRATIVE FURLOUGH IN PREFERENCE TO A DISCHARGE PURSUANT TO SECTION 216 OF THE ECONOMY ACT, HIS SUBSEQUENT APPOINTMENT TO A TEMPORARY OR SEASONAL POSITION SUCH AS IS EXCEPTED FROM THE PROVISIONS OF SECTION 203, AT A HIGHER RATE OF COMPENSATION THAN HE HAD BEEN RECEIVING UNDER HIS REGULAR APPOINTMENT, IS NOT TO BE PROHIBITED AS AN ADMINISTRATIVE PROMOTION WITHIN THE MEANING OF SECTION 202 OF SAID ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, OCTOBER 19, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 29, 1932, AS FOLLOWS:

BY YOUR RULING OF SEPTEMBER 14, 1932 (A-44521), IT IS HELD THAT WHILE AN EMERGENCY OR TEMPORARY POSITION MAY BE FILLED UNDER SECTION 203 (B) WITHOUT THE PRIOR AUTHORIZATION OR APPROVAL OF THE PRESIDENT, THE PROMOTION OF AN EMPLOYEE ALREADY IN THE SERVICE TO FILL SUCH A TEMPORARY OR EMERGENCY POSITION WITHOUT THE APPROVAL OF THE PRESIDENT, WHICH WOULD RESULT IN AN INCREASE IN COMPENSATION OF THE EMPLOYEE PROMOTED, IS PROHIBITED AS AN "ADMINISTRATIVE PROMOTION.' WHILE POSITIONS OF SEASONAL NATURE ARE NOT REFERRED TO IN THIS RULING, IT IS ASSUMED THAT THE RULING APPLIES EQUALLY IN THE FILLING OF SUCH POSITIONS.

A FURTHER RULING IS REQUESTED AS TO WHETHER AN EMERGENCY, TEMPORARY, OR SEASONAL POSITION MAY BE FILLED BY THE REEMPLOYMENT OF A FORMER EMPLOYEE FROM FURLOUGH OR LAY-OFF AT A RATE IN EXCESS OF THAT RECEIVED BY THE EMPLOYEE UNDER FORMER EMPLOYMENT, IN THE EVENT THE SALARY PERTAINING TO THE POSITION TO BE FILLED HAS BEEN ESTABLISHED AT THE HIGHER RATE.

TWO CASES WHICH HAVE OCCURRED IN THE ENGINEER DEPARTMENT AT LARGE ON WHICH SPECIFIC RULINGS ARE DESIRED ARE DESCRIBED BELOW:

(A) AN EMPLOYEE OF THE GRADE OF SUBSURVEYMAN, WHOSE COMPENSATION DURING THE FISCAL YEAR 1932 WAS AT THE RATE OF $1,440 PER ANNUM, WAS FURLOUGHED WITHOUT PAY UPON COMPLETION OF WORK ON APRIL 30, 1932. ON JULY 16, 1932, A NUMBER OF NEW POSITIONS OF SUBSURVEYMAN FOR SEASONAL WORK WHERE REQUIRED AND BECAUSE OF THE DUTIES OF THE POSITION AND THE CHARACTER OF THE WORK THE POSITIONS WERE CONSIDERED AS COMPARABLE TO POSITIONS IN THE DEPARTMENTAL SERVICE IN SP-5 ($1,800-$2,160). IT WAS EXPECTED THAT IN THE EVENT OF APPOINTMENTS FROM THE CIVIL SERVICE REGISTER THE RATE OF $1,800 PER ANNUM WOULD BE PAID. THE EMPLOYEE WHO WAS FURLOUGHED AT THE RATE OF $1,440 PER ANNUM IS AVAILABLE FOR EMPLOYMENT IN ONE OF THESE POSITIONS AND POSSESSES THE NECESSARY TRAINING AND QUALIFICATIONS. DECISION IS REQUESTED AS TO WHETHER HE MAY BE REEMPLOYED TO FILL ONE OF THOSE POSITIONS AT THE RATE OF $1,800 PER ANNUM, WITHOUT ACTION BY THE PRESIDENT.

(B) AN EMPLOYEE OF THE ENGINEER DEPARTMENT AT LARGE WAS LAID OFF FROM THE POSITION OF CARPENTER AT $1,800 PER ANNUM ON DECEMBER 31, 1931. ON AUGUST 1, 1932, A VACANCY OCCURRED IN THE SEASONAL POSITION OF FOREMAN ON CONSTRUCTION WORK AT THE RATE OF $2,300 PER ANNUM. THE CARPENTER POSSESSES THE QUALIFICATIONS FOR THE GRADE OF FOREMAN AND CAN BE EMPLOYED IN THAT GRADE UNDER CIVIL SERVICE RULES. DECISION IS REQUESTED AS TO WHETHER HE MAY BE EMPLOYED IN THE SEASONAL POSITION OF FOREMAN AT $2,300 PER ANNUM WITHOUT RECOURSE TO PRESIDENTIAL AUTHORITY FOR THE FILLING OF THE POSITION.

WHEN AN EMPLOYEE HAS BEEN GIVEN AN ADMINISTRATIVE FURLOUGH IN PREFERENCE TO A DISCHARGE, PURSUANT TO SECTION 216 OF THE ECONOMY ACT, HIS SUBSEQUENT APPOINTMENT TO A TEMPORARY OR SEASONAL POSITION SUCH AS IS EXCEPTED FROM THE PROVISIONS OF SECTION 203, AT A HIGHER RATE OF COMPENSATION THAN HE HAD BEEN RECEIVING UNDER HIS REGULAR APPOINTMENT, IS NOT TO BE REGARDED AS AN ADMINISTRATIVE PROMOTION WITHIN THE MEANING OF SECTION 202 OF SAID ACT.

THE PROHIBITION AGAINST ADMINISTRATIVE PROMOTIONS WAS INTENDED TO APPLY TO EMPLOYEES WHO, AT THE TIME, ARE RECEIVING SALARY, THERE BEING NOTHING IN THE STATUTE TO INDICATE A PURPOSE OR INTENT TO PREVENT THE FILLING OF ESSENTIAL TEMPORARY OR SEASONAL POSITIONS BY EMPLOYEES WHO, AT THE TIME, ARE NOT RECEIVING SALARY BUT ARE ON ADMINISTRATIVE OR ENFORCED FURLOUGH WITHOUT PAY. THE SALARY RATE IN SUCH A POSITION NEED HAVE NO RELATION TO THE SALARY RATE PREVIOUSLY RECEIVED BY THE EMPLOYEE IN HIS PERMANENT POSITION FROM WHICH HE HAS BEEN FURLOUGHED.

YOU ARE ADVISED, THEREFORE, THAT IN BOTH CASES (A) AND (B) THE SEASONAL POSITION MAY BE FILLED BY APPOINTMENT THERETO OF A PERMANENT EMPLOYEE ON ENFORCED FURLOUGH WITHOUT THE PRIOR AUTHORIZATION OR APPROVAL OF THE PRESIDENT.

HOWEVER, IT IS TO BE UNDERSTOOD THAT THE RESTRICTIONS OF THE STATUTE AGAINST ADMINISTRATIVE PROMOTIONS MAY NOT BE CIRCUMVENTED BY THE GRANTING OF SHORT PERIODS OF ADMINISTRATIVE FURLOUGH OR LEAVE WITHOUT PAY AND APPOINTMENT DURING SUCH PERIOD TO TEMPORARY OR SEASONAL POSITIONS, AND THE FACTS IN ANY SUCH CASE WILL BE FOR CONSIDERATION IN THE AUDIT OF ACCOUNTS.