A-45231, OCTOBER 22, 1932, 12 COMP. GEN. 408

A-45231: Oct 22, 1932

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A POSITION WHICH AUTOMATICALLY TERMINATES WITH THE COMPLETION OF THE WORK IS TO BE REGARDED AS TEMPORARY AND EXPRESSLY EXEMPTED FROM THE PROVISION OF SECTION 203 OF THE ECONOMY ACT REQUIRING THE IMPOUNDING OF THE SALARIES OF VACANT POSITIONS. GEN. 142) IT IS HELD THAT. IS NOT TO BE REGARDED AS THE FILLING OF VACANCIES WITHIN THE MEANING OF SECTIONS 202 AND 203 OF THE ECONOMY ACT.'. - "THE INHIBITION OF SECTION 202 OF THE ECONOMY ACT IS AGAINST ADMINISTRATIVE PROMOTIONS. HOLDS THE TRANSFER OF TRAINED PERSONNEL FROM A HOSPITAL UNIT WHERE THERE WAS TO BE REDUCTION IN FORCE. IT MAY BE POSSIBLE THE DECISIONS IN THE ABOVE-MENTIONED CASES WERE PREDICATED ON PAYMENTS BEING MADE FROM THE SAME APPROPRIATION.

A-45231, OCTOBER 22, 1932, 12 COMP. GEN. 408

ECONOMY ACT - FILLING OF VACANCIES - TRANSFER OF EMPLOYEES THE TRANSFER OF PERSONNEL OR THE ADJUSTMENT IN THE DUTIES AND RESPONSIBILITIES OF PERSONNEL UNDER ONE OR MORE APPROPRIATIONS, NOT INVOLVING ANY INCREASED EXPENDITURE, DOES NOT CONSTITUTE THE FILLING OF VACANCIES REQUIRING THE AUTHORIZATION OR APPROVAL OF THE PRESIDENT UNDER SECTION 203 OF THE ECONOMY ACT. A POSITION WHICH AUTOMATICALLY TERMINATES WITH THE COMPLETION OF THE WORK IS TO BE REGARDED AS TEMPORARY AND EXPRESSLY EXEMPTED FROM THE PROVISION OF SECTION 203 OF THE ECONOMY ACT REQUIRING THE IMPOUNDING OF THE SALARIES OF VACANT POSITIONS.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, OCTOBER 22, 1932:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF OCTOBER 11, 1932, AS FOLLOWS:

IN DECISION TO THE ATTORNEY GENERAL DATED JULY 30, 1932, (12 COMP. GEN. 142) IT IS HELD THAT---

"THE TRANSFER OF EMPLOYEES OF THE SAME GRADE OR CLASS FROM ONE POSITION TO ANOTHER, NOT INVOLVING ANY INCREASED EXPENDITURE FROM PERSONNEL APPROPRIATIONS FOR THE FISCAL YEAR 1933, IS NOT TO BE REGARDED AS THE FILLING OF VACANCIES WITHIN THE MEANING OF SECTIONS 202 AND 203 OF THE ECONOMY ACT.'

IN DECISION OF AUGUST 2, 1932, TO THE SECRETARY OF WAR (A-43635) THE COMPTROLLER HELD THAT THE TRANSFER OF AN EMPLOYEE FROM SAN FRANCISCO TO STATION AT FORT LEWIS, WASHINGTON, INVOLVING NO CHANGE IN DESIGNATION, RATE OF PAY, OR NATURE OF DUTIES, DID NOT CONSTITUTE THE FILLING OF A VACANCY WITHIN THE PROVISIONS OF SECTION 203 OF THE ECONOMY ACT, AND WOULD NOT REQUIRE ACTION BY THE PRESIDENT AS PROVIDED FOR IN THAT SECTION.

THE DECISION OF AUGUST 19, 1932, TO THE SECRETARY OF THE INTERIOR (12 COMP. GEN. 261), CONTAINS THE STATEMENT THAT---

"THE INHIBITION OF SECTION 202 OF THE ECONOMY ACT IS AGAINST ADMINISTRATIVE PROMOTIONS. SAID SECTION DOES NOT PROHIBIT ADJUSTMENTS IN THE DUTIES AND RESPONSIBILITIES OF PERSONNEL, EITHER IN THE DEPARTMENTAL OR IN THE FIELD SERVICE, WHICH DO NOT INVOLVE ANY INCREASED EXPENDITURE OF APPROPRIATED FUNDS OR WHICH DO NOT DEFEAT THE IMPOUNDING OF SALARIES OF VACANT POSITIONS, THE FILLING OF WHICH HAS NOT BEEN AUTHORIZED OR APPROVED BY THE PRESIDENT.'

THE DECISION TO THE VETERANS' BUREAU DATED AUGUST 24, 1932 (12 COMP. GEN. 281), HOLDS THE TRANSFER OF TRAINED PERSONNEL FROM A HOSPITAL UNIT WHERE THERE WAS TO BE REDUCTION IN FORCE, TO A NEW INSTITUTION, INVOLVING NO CHANGE IN SALARY, GRADE, OR DUTIES OF EMPLOYEE, WOULD NOT CONTRAVENE SECTION 202 OR 203 OF THE ECONOMY ACT, AND THE PRIOR APPROVAL OF THE PRESIDENT WOULD NOT BE REQUIRED, NO IMPOUNDING OF FUNDS RESULTING UNDER SECTION 203.

IT MAY BE POSSIBLE THE DECISIONS IN THE ABOVE-MENTIONED CASES WERE PREDICATED ON PAYMENTS BEING MADE FROM THE SAME APPROPRIATION. THERE HAS ARISEN IN THE PENAL AND CORRECTIONAL SERVICE SITUATIONS INVOLVING PAYMENTS FROM DIFFERENT APPROPRIATIONS WHICH, WHILE THE CASES SEEM PARALLEL, MAY CALL FOR FURTHER REVIEW.

IT IS THE POLICY OF THE BUREAU OF PRISONS THAT ALL GUARDS ASSIGNED TO PERMANENT DUTY AT THE SEVERAL PENAL AND CORRECTIONAL INSTITUTIONS SHALL FIRST COMPLETE THE PRESCRIBED TRAINING COURSE. THEREFORE, APPLICATION IS MADE TO THE PRESIDENT THROUGH THE BUREAU OF THE BUDGET FOR AUTHORITY TO FILL GUARD POSITIONS IN THE SERVICE WHICH BECOME VACANT FROM TIME TO TIME. WHEN PRESIDENTIAL APPROVAL IS OBTAINED, APPOINTMENTS ARE MADE TO THOSE INSTITUTIONS WHERE VACANCIES EXIST, WITH ASSIGNMENT TO THE TRAINING SCHOOL.

IT FREQUENTLY HAPPENS BEFORE COMPLETION OF THE TRAINING COURSE OTHER VACANCIES OCCUR IN THE SERVICE, AND IN SOME INSTANCES IT IS NECESSARY SUCH VACANCIES BE FILLED THROUGH REASSIGNMENT OF GUARDS FROM THE TRAINING SCHOOL. SUCH REASSIGNMENT WOULD, THEREFORE, INVOLVE THE TRANSFER OF A GUARD FROM A POSITION, THE FILLING OF WHICH HAS BEEN AUTHORIZED BY THE PRESIDENT, TO A POSITION IN ANOTHER INSTITUTION WHERE A VACANCY HAD SUBSEQUENTLY OCCURRED, THE FILLING OF WHICH HAS NOT BEEN AUTHORIZED BY THE PRESIDENT. SUCH TRANSFER INVOLVES NO CHANGE IN DUTIES, SALARY, OR GRADE OF THE EMPLOYEE AFFECTED. IT RESULTS IN NO INCREASE IN CHARGE AGAINST THE GOVERNMENT. THE ULTIMATE EFFECT IS THAT ALTHOUGH THE PRESIDENT HAS NOT APPROVED FILLING THE VACANT POSITION TO WHICH THE GUARD IS TRANSFERRED, THE POSITION FROM WHICH THE TRANSFER IS MADE BECOMES VACANT, AND BEFORE IT CAN BE FILLED BY APPOINTMENT OF NEW PERSONNEL APPROVAL OF THE PRESIDENT MUST BE SECURED. THE ALTERNATIVE COURSE WOULD REQUIRE THAT WE SECURE APPROVAL OF THE PRESIDENT FOR FILLING THE POSITION TO WHICH THE TRANSFER IS MADE, AND ALSO OBTAIN THE PRESIDENT'S APPROVAL FOR FILLING THE POSITION FROM WHICH THE EMPLOYEE HAS BEEN TRANSFERRED. UNDER THE LATTER INTERPRETATION THE PRESIDENT WOULD BE REQUIRED TO AUTHORIZE APPOINTMENT TO TWO VACANCIES IN CASES WHERE THE INCREASE IN OBLIGATION AGAINST THE APPROPRIATIONS WOULD IN FACT INVOLVE THE PAYMENT OF THE SALARY FOR BUT ONE NEW POSITION. THE LATTER PROCEDURE SEEMS UNNECESSARILY CUMBERSOME, CREATES AN ENORMOUS AMOUNT OF ADDITIONAL CLERICAL WORK, AND TO A CONSIDERABLE EXTENT DESTROYS FLEXIBILITY IN THE GUARD SERVICE.

THE SPECIFIC QUESTION IS, THEREFORE, SUBMITTED FOR YOUR DECISION AS TO WHETHER, UNDER THE CIRCUMSTANCES ABOVE OUTLINED, A GUARD, WITH SALARY PAYABLE FROM APPROPRIATION "FEDERAL JAILS--- 1933" MAY BE TRANSFERRED TO THE POSITION OF GUARD, WITH SALARY PAYABLE FROM THE APPROPRIATION ,UNITED STATES PENITENTIARY, ATLANTA, GA.--- MAINTENANCE- - 1933" WITHOUT CHANGE IN DUTIES, SALARY, OR GRADE, IN THE ABSENCE OF AUTHORIZATION FROM THE PRESIDENT.

A QUESTION HAS ALSO ARISEN INVOLVING PAYMENT FROM DIFFERENT APPROPRIATIONS, BUT OTHERWISE SEEMING TO PARALLEL THE CIRCUMSTANCES UNDER WHICH YOUR PREVIOUS DECISIONS HAVE BEEN RENDERED. FOR INSTANCE, TWO CONSTRUCTION JOBS HAVE BEEN IN PROGRESS, ONE AT THE PRISON CAMP NEAR PETERSBURG, VIRGINIA, THE OTHER AT THE REFORMATORY AT CHILLICOTHE, OHIO. THE CONSTRUCTION WORK IN VIRGINIA HAS BEEN COMPLETED, WHILE THAT AT CHILLICOTHE IS STILL IN PROGRESS. THE CONSTRUCTION ENGINEER IN THE PRISON SERVICE WITH SALARY PAYABLE FROM THE APPROPRIATION "U.S. INDUSTRIAL REFORMATORY, CHILLICOTHE, OHIO--- CONSTRUCTION" IS TRANSFERRED FROM THE DEPARTMENT OF JUSTICE TO THE TREASURY DEPARTMENT AT REDUCED GRADE, AND A DECREASE IN SALARY. A CONSTRUCTION ENGINEER IN THE PRISON SERVICE WHOSE SALARY IS PAID FROM THE APPROPRIATION "U.S. PRISON CAMPS--- CONSTRUCTION AND MAINTENANCE" IS TRANSFERRED TO THE FIRST VACANCY WITHOUT CHANGE IN SALARY, GRADE, OR DUTIES. THE DUTIES PERFORMED BY THE TWO CONSTRUCTION ENGINEERS ARE THE SAME, THEY HAD THE SAME GRADE, ALTHOUGH THE CONSTRUCTION ENGINEER TRANSFERRED FROM THE CHILLICOTHE APPROPRIATION RECEIVED $200 PER ANNUM MORE THAN WAS PAID THE CONSTRUCTION ENGINEER WHO REPLACED HIM. ALTHOUGH IN EACH CASE THE INCUMBENT WAS SERVING UNDER A REGULAR APPOINTMENT, THE POSITION WAS CONSIDERED "FOR THE DURATION OF THE CONSTRUCTION WORK.' IT IS NOT PROPOSED TO FILL THE VACANCY CREATED THROUGH TRANSFER OF THE CONSTRUCTION ENGINEER FROM THE APPROPRIATION "U.S. PRISON CAMPS--- CONSTRUCTION AND MAINTENANCE.'

IN THIS CASE ARE PRESENTED THE SPECIFIC QUESTIONS:

(1) IS IT NECESSARY TO SECURE PRESIDENTIAL AUTHORIZATION FOR A TRANSFER OF THIS CHARACTER, WITHIN THE SAME BRANCH OF SERVICE?

(2) SINCE THE CONSTRUCTION WORK IN CONNECTION WITH WHICH THE CONSTRUCTION ENGINEER WAS EMPLOYED, WITH SALARY PAYABLE FROM THE PRISON CAMP APPROPRIATION HAS NOW BEEN COMPLETED AND IT IS NOT PROPOSED TO FILL THE VACANCY, SHOULD THE SALARY OF THIS POSITION BE IMPOUNDED?

THE PRINCIPLE STATED IN THE CITED DECISIONS THAT THE TRANSFER OF PERSONNEL OR THE ADJUSTMENT IN THE DUTIES AND RESPONSIBILITIES OF PERSONNEL NOT INVOLVING ANY INCREASED EXPENDITURES OF APPROPRIATED FUNDS DOES NOT CONSTITUTE THE FILLING OF VACANCIES REQUIRING THE AUTHORIZATION OR APPROVAL OF THE PRESIDENT, IS APPLICABLE WHETHER THE TRANSFER OR ADJUSTMENT IS UNDER ONE OR MORE APPROPRIATIONS. IT IS TO BE UNDERSTOOD, OF COURSE, THAT IN THE TRANSFER OR ADJUSTMENT NO NEW OR ADDITIONAL PERMANENT EMPLOYEES ARE PLACED ON THE ROLLS WITHOUT PRIOR AUTHORIZATION OR APPROVAL OF PRESIDENT.

ANSWERING YOUR UNNUMBERED QUESTION SPECIFICALLY, YOU ARE ADVISED THAT THE TRANSFER OF THE GUARD IN QUESTION MAY BE MADE UNDER THE CONDITIONS STATED AND DOES NOT REQUIRE THE AUTHORIZATION OR APPROVAL OF THE PRESIDENT IN SO FAR AS THE ECONOMY ACT PROVISIONS ARE CONCERNED.

THE QUESTION NUMBERED (1) IS ANSWERED IN THE NEGATIVE FOR THE REASON THAT NO INCREASED EXPENDITURE OF APPROPRIATED FUNDS IS PROPOSED INCIDENT TO THE TRANSFER, BUT AN ACTUAL DECREASE OF $200 PER ANNUM.

REFERRING TO QUESTION NUMBERED (2), AS THE POSITION OF CONSTRUCTION ENGINEER PAID UNDER THE APPROPRIATION "U.S. PRISON CAMPS--- CONSTRUCTION AND MAINTENANCE" WAS "FOR THE DURATION OF THE CONSTRUCTION WORK" ONLY, TERMINATING BY REASON OF THE COMPLETION OF THE WORK, IT IS TO BE REGARDED AS HAVING BEEN A TEMPORARY POSITION AND EXPRESSLY EXEMPTED FROM THE PROVISIONS OF SECTION 203 OF THE ECONOMY ACT REQUIRING THE IMPOUNDING OF SALARIES OF VACANT POSITIONS. ACCORDINGLY, QUESTION NUMBERED (2) IS ANSWERED IN THE NEGATIVE.