A-45402, NOVEMBER 4, 1932, 12 COMP. GEN. 431

A-45402: Nov 4, 1932

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ECONOMY ACT - PERCENTAGE REDUCTIONS - TEMPORARY POSITIONS ALL EMPLOYEES WHO WERE NOT ENTITLED TO ANNUAL LEAVE OF ABSENCE WITH PAY PRIOR TO JULY 1. UNSKILLED LABORERS EMPLOYED WITHOUT REGARD TO CIVIL SERVICE RULES OR REGULATIONS IN LOCALITIES WHERE SUCH RULES OR REGULATIONS ARE NOT APPLIED. ARE NOT NECESSARILY TEMPORARY. THE TEMPORARY CHARACTER OF AN APPOINTMENT OR EMPLOYMENT IN A SCHEDULE A POSITION WOULD DEPEND UPON OTHER ELEMENTS THAN THE FACT THAT THE POSITION IS LISTED UNDER SCHEDULE A. THE MERE FACT THAT AN APPOINTMENT IS MADE UNDER RULE II. WITHOUT ATTEMPTING TO STATE A RULE APPLICABLE TO ALL CASES IT MAY BE SAID THAT WHERE AN APPOINTMENT IS MADE AS A REGULAR OR PERMANENT APPOINTMENT UNDER CONDITIONS AND CIRCUMSTANCES WITH RESPECT TO WHICH CIVIL SERVICE RULES AND REGULATIONS AND THE REGULATIONS OF THE ADMINISTRATIVE DEPARTMENT AUTHORIZE REGULAR OR PERMANENT APPOINTMENTS.

A-45402, NOVEMBER 4, 1932, 12 COMP. GEN. 431

ECONOMY ACT - PERCENTAGE REDUCTIONS - TEMPORARY POSITIONS ALL EMPLOYEES WHO WERE NOT ENTITLED TO ANNUAL LEAVE OF ABSENCE WITH PAY PRIOR TO JULY 1, 1932, SHOULD BE REGARDED AS COMING WITHIN THE PROVISIONS OF SECTION 105 (D) (6) OF THE ECONOMY ACT, REQUIRING PERCENTAGE REDUCTIONS IN COMPENSATION, RATHER THAN UNDER SECTION 101 (B) PROVIDING FOR LEGISLATIVE FURLOUGHS WITHOUT PAY. AN APPOINTMENT MADE UNDER A CIVIL SERVICE RULE OR REGULATION SPECIFICALLY CLASSIFYING THE POSITION AS TEMPORARY, SUCH AS RULE VIII, ENTITLED "TEMPORARY APPOINTMENTS" SHOULD BE REGARDED AS TEMPORARY IN APPLYING LEAVE LAWS AND REGULATIONS. UNSKILLED LABORERS EMPLOYED WITHOUT REGARD TO CIVIL SERVICE RULES OR REGULATIONS IN LOCALITIES WHERE SUCH RULES OR REGULATIONS ARE NOT APPLIED, ARE NOT NECESSARILY TEMPORARY. EXCEPT AS TO THE POSITIONS SO CLASSIFIED, THE TEMPORARY CHARACTER OF AN APPOINTMENT OR EMPLOYMENT IN A SCHEDULE A POSITION WOULD DEPEND UPON OTHER ELEMENTS THAN THE FACT THAT THE POSITION IS LISTED UNDER SCHEDULE A. THE MERE FACT THAT AN APPOINTMENT IS MADE UNDER RULE II, SECTION 10, OF THE CIVIL SERVICE RULES AND REGULATIONS DOES NOT CONSTITUTE THE SAME A TEMPORARY APPOINTMENT. WITHOUT ATTEMPTING TO STATE A RULE APPLICABLE TO ALL CASES IT MAY BE SAID THAT WHERE AN APPOINTMENT IS MADE AS A REGULAR OR PERMANENT APPOINTMENT UNDER CONDITIONS AND CIRCUMSTANCES WITH RESPECT TO WHICH CIVIL SERVICE RULES AND REGULATIONS AND THE REGULATIONS OF THE ADMINISTRATIVE DEPARTMENT AUTHORIZE REGULAR OR PERMANENT APPOINTMENTS, THE EMPLOYEE WILL NOT BE REGARDED AS A TEMPORARY EMPLOYEE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, NOVEMBER 4, 1932:

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

THE DEPARTMENT FINDS IT NECESSARY TO SEEK YOUR ADVICE AS TO TWO MATTERS AFFECTING PROCEDURE UNDER THE ECONOMY ACT.

1. LEGISLATIVE FURLOUGH OF TEMPORARY EMPLOYEES. AN EARLY IF NOT YOUR FIRST PRONOUNCEMENT ON THIS SUBJECT, 12 COMP. GEN. 83, TO THE ARCHITECT OF THE CAPITOL, STATES: "YOU ARE ADVISED, THEREFORE, THAT THE PROVISIONS OF SECTIONS 101 (A), (B), AND (C) AND SECTIONS 102 AND 103 OF THE ACT ARE APPLICABLE TO THE PERMANENT AND TEMPORARY EMPLOYEES ENGAGED IN CONNECTION WITH THE CONSTRUCTION WORK UNDER THE OFFICE OF THE ARCHITECT OF THE CAPITOL.' A LITTLE LATER, 12 COMP. GEN. 167, YOU HELD AS TO VERY SHORT PERIODS OF TEMPORARY CLERICAL EMPLOYMENT (STENOGRAPHIC SERVICE FOR FIVE DAYS, TWELVE DAYS): "IN VIEW OF THE SHORT PERIODS OF THEIR EMPLOYMENT, IT WOULD NOT BE PRACTICABLE TO APPLY EITHER THE FIVE-DAY WEEK OR FURLOUGH PROVISIONS TO SUCH EMPLOYEES, AND, ACCORDINGLY, UNDER AUTHORITY OF SECTION 105 (D) (6) * * * THEIR COMPENSATION WOULD BE SUBJECT TO AN 8 1/3 PERCENT REDUCTION.' IN CLOSELY SUBSEQUENT DECISIONS THE DOCTRINE THAT TEMPORARIES COULD NOT BE GRANTED THE LEGISLATIVE FURLOUGH SEEMED TO BE TAKING SHAPE BUT WITHOUT EXPRESS REVERSAL OF 12 COMP. GEN. 83. IN 12 COMP. GEN. 182, THE HOLDING IS, QUOTING THE SYLLABUS: "TEMPORARY EMPLOYEES WHO, PRIOR TO JULY 1, 1932, WERE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY, WOULD APPEAR NOT TO BE SUBJECT TO THE * * * FURLOUGH PROVISIONS OF SECTION 101 (A) AND (B).' IN 12 COMP. GEN. 221, THE LANGUAGE IS: "IT MAY BE STATED AS A GENERAL RULE THAT ALL CLASSES OF EMPLOYEES WHO WERE NOT ENTITLED TO LEAVE PRIOR TO JULY 1, 1932, SHOULD BE REGARDED AS COMING WITHIN THE PROVISION OF SECTION 105 (D) (6).' "IT WOULD APPEAR" AND "AS A GENERAL RULE" ARE NOT SEEMINGLY CONCLUSIVE.

A-44536 OF SEPTEMBER 14 OF THE SECRETARY OF WAR SEEMS TO TAKE A MORE POSITIVE TONE. "IF THE EMPLOYEE IN QUESTION WAS A TEMPORARY EMPLOYEE, AS STATED, HE WAS NOT SUBJECT TO THE LEGISLATIVE FURLOUGH UNDER SECTION 101 (B) OF THE ECONOMY ACT, BUT WAS SUBJECT TO THE SALARY REDUCTION PRESCRIBED UNDER SECTION 105 (D) (6), AND HIS COMPENSATION FOR THE PERIOD ACTUALLY EMPLOYED SHOULD HAVE BEEN REDUCED 8 1/3 PERCENT * * *.'

WHILE THE GREAT BULK OF THE TEMPORARY FIELD LABOR OF THIS DEPARTMENT IS PERFORMED UNDER CONDITIONS WHICH MAKE THE LEGISLATIVE FURLOUGH IMPRACTICABLE, THERE ARE BOTH IN WASHINGTON AND IN THE FIELD TEMPORARY PER ANNUM EMPLOYEES ON CLERICAL WORK FOR WHOM THE LEGISLATIVE FURLOUGH IS IN NO WISE IMPRACTICABLE, TO WHOM THE DEPARTMENT AT FIRST GRANTED A FURLOUGH UNDER AUTHORITY OF 12 COMP. GEN. 83, AND WOULD CONTINUE TO DO SO IF THE MATTER WERE WITHIN ADMINISTRATIVE DISCRETION. THAT THE QUESTION MAY BE FREE FROM DOUBT, YOUR DECISION IS REQUESTED WHETHER IN CASES WHERE THE DEPARTMENT DECIDES IN FAVOR OF THE PRACTICABILITY OF PLACING TEMPORARY EMPLOYEES ON THE 101 (B) BASIS, THE ACTION MAY BE TAKEN.

2. BOTH IN CONNECTION WITH THE QUESTION OF LEGISLATIVE FURLOUGH AND WITH REGARD ALSO TO THE GRANT OF MILITARY LEAVE AND THE PAYMENT TO PER DIEM EMPLOYEES OF PAY FOR LEGAL HOLIDAYS, WITH INCIDENTALLY THE QUESTION OF USE OF 307 DAYS OR 313 DAYS AS THE FACTOR FOR COMPUTING ANNUAL COMPENSATION, IT IS IMPORTANT THAT THE DEPARTMENT HAVE A CLEAR WORKING RULE TO DISTINGUISH BETWEEN TEMPORARY AND PERMANENT EMPLOYEES. AS TO PER DIEM WORKERS, IF WE COULD USE THE RULE LAID DOWN IN 12 COMP. GEN. 204, HOLDING THAT HOLIDAY PAY ACCRUES TO "PER DIEM EMPLOYEES * * * EMPLOYED FOR SUBSTANTIALLY CONTINUOUS INDEFINITE PERIODS" THERE WOULD BE LITTLE DIFFICULTY, BUT IN SETTLEMENT CERTIFICATE OF THE CLAIMS DIVISION OF YOUR OFFICE DATED FEBRUARY 18, 1932, ADDRESSED TO E. A. SEATON, AN EMPLOYEE OF THIS DEPARTMENT AND CLAIMANT FOR PAYMENT FOR A PERIOD OF MILITARY LEAVE, THE FOLLOWING LANGUAGE IS USED:

"IT HAS BEEN UNIFORMLY HELD THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY. WHETHER AN EMPLOYEE IS A PERMANENT OR TEMPORARY EMPLOYEE IS NOT FOR DETERMINATION SOLELY ON THE LENGTH OF TIME THE EMPLOYEE MAY HAPPEN TO SERVE, BUT OTHER CONDITIONS ARE FOR CONSIDERATION, SUCH AS THE CHARACTER OF APPOINTMENT, PURPOSE FOR WHICH EMPLOYED, AND WHETHER OR NOT THE EMPLOYMENT WAS MADE WITHIN THE RULES AND REGULATIONS OF THE CIVIL SERVICE COMMISSION.

"IT IS REPORTED BY THE BUREAU OF PLANT INDUSTRY, DEPARTMENT OF AGRICULTURE, IN WHICH YOU HAVE BEEN RENDERING SERVICE, THAT YOU HAVE BEEN EMPLOYED SINCE OCTOBER 1, 1921, WHICH, CONSIDERING THE LENGTH OF THE PERIOD OF YOUR SERVICE, WOULD INDICATE THE SAME TO BE OF PERMANENT NATURE. HOWEVER, IT IS FURTHER STATED THAT YOUR EMPLOYMENT WAS MADE WITHOUT REFERENCE TO THE CIVIL SERVICE COMMISSION, IN VIEW OF THE FACT THAT YOU DID NOT RESIDE IN ANY OF THE VARIOUS CITIES MENTIONED IN THE FOURTH DISTRICT, OF THE CIVIL SERVICE RULES. IT HAS BEEN HELD THAT IF AUTHORITY HAD BEEN GRANTED BY THE CIVIL SERVICE FOR THE EMPLOYMENT OF PERSONS WHO WERE NOT ON ANY LIST OF ELIGIBLES, THAT IN SUCH CASES UNDER CERTAIN CONDITIONS, THE CHARACTER OF EMPLOYMENT COULD BE CONSIDERED AS PERMANENT. ON THE OTHER HAND, IN THE ABSENCE OF SUCH AUTHORIZATION BY THE CIVIL SERVICE COMMISSION AND CONDITIONS SHOWING PERMANENCY OF THE TENURE OF EMPLOYMENT, THE EMPLOYEE WOULD NOT BE ENTITLED TO LEAVE OF ABSENCE WITH PAY UNDER THE STATUTE ABOVE CITED.

"AS IT IS APPARENT THAT YOUR EMPLOYMENT WAS MADE WITHOUT THE AUTHORIZATION OF THE CIVIL SERVICE COMMISSION, AND WITHOUT REFERENCE TO SAID COMMISSION'S RULES, THE CHARACTER OF YOUR EMPLOYMENT CAN BE NOTHING ELSE THAN TEMPORARY, REGARDLESS OF THE LENGTH OF TIME YOU MAY HAVE SERVED.'

THIS OPENS A BROAD ZONE OF DOUBT, PARTICULARLY IN THE PHRASE,"IT HAS BEEN HELD THAT IF AUTHORITY HAS BEEN GRANTED BY THE CIVIL SERVICE COMMISSION FOR THE EMPLOYMENT OF PERSONS WHO ARE NOT ON ANY LIST OF ELIGIBLES, THAT IN SUCH CASES UNDER CERTAIN CONDITIONS THE CHARACTER OF EMPLOYMENT COULD BE CONSIDERED AS PERMANENT.' THE LIMITING CLAUSE,"UNDER CERTAIN CONDITIONS," CONDITIONS WHICH ARE NOT DISCUSSED OR SPECIFIED, LEAVES THE EXPRESSION WITHOUT PRACTICAL GUIDANCE VALUE, SINCE ADMINISTRATIVE OFFICERS CAN NOT KNOW WHAT CONDITIONS WERE IN MIND.

EMPLOYEES OF THIS DEPARTMENT NOT IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE ARE OF THREE CLASSES:

1. UNSKILLED LABORERS IN LOCALITIES WHERE THERE ARE NO LABOR BOARDS, NO REGISTERS OF LABOR ELIGIBLES--- PARAGRAPHS 144 8,"INFORMATION FOR BOARDS OF EXAMINERS AND NOMINATING OFFICERS, ETC., , U.S. CIVIL SERVICE COMMISSION, 1930.

2. POSITIONS COVERED BY SCHEDULE A OF THE "CIVIL SERVICE ACT AND RULES, STATUTES, EXECUTIVE ORDERS, AND REGULATIONS," EDITION OF MARCH 15, 1932, SUBDIVIDED BROADLY INTO (A) THOSE WHICH REQUIRE INDIVIDUAL APPROVAL BY THE COMMISSION, AND (B) THOSE WHICH DO NOT REQUIRE SUCH INDIVIDUAL APPROVAL.

3. POSITIONS UNDER RULE II, SEC. 10. OF ABOVE.

ASSUMING WITH RESPECT TO THESE THREE CLASSES THAT THERE IS NO LANGUAGE IN THE APPOINTMENT WHERE WRITTEN, NOTHING IN THE VERBAL AGREEMENT OR IN THE CHARACTER OF THE WORK WHERE THE APPOINTMENT IS NOT WRITTEN, WHICH FIXES A TIME OF TERMINATION, ARE ALL EMPLOYEES OF CLASS I, LABORERS AT POINTS WHERE THERE IS NO LABOR BOARD, TO BE REGARDED AS TEMPORARIES WITH RESPECT TO HOLIDAYS, MILITARY LEAVE, LEGISLATIVE FURLOUGH? IT MAY BE STATED THAT THE MERE ACCIDENT OF EMPLOYMENT AT A POINT WHERE THERE IS NO LABOR BOARD AND REGISTER OF ELIGIBLES HAS NOT THE SLIGHTEST INFLUENCE UPON THE PROSPECTIVE OR ACTUAL DURATION OF THE EMPLOYMENT. MANY OF THESE POSITIONS AT DEPARTMENT FIELD STATIONS HAVE BEEN RUNNING CONTINUOUSLY FOR A VERY LONG PERIOD OF TIME. NOR DOES IT SEEM ACCURATE TO SAY THAT THESE APPOINTMENTS ARE MADE WITHOUT CIVIL SERVICE AUTHORIZATION. THE COMMISSION RECEIVES LISTS OF THE APPOINTMENTS, TAKES COGNIZANCE OF THEM, RAISES QUESTION IF IT SUSPECTS INFRINGEMENT OF THE RULE THAT ELIGIBLE LISTS MUST BE USED WHERE AVAILABLE.

ARE ALL EMPLOYEES IN CLASS 2, SCHEDULE A, TO BE REGARDED AS TEMPORARIES? IS THERE A DISTINCTION BETWEEN APPOINTMENTS OF THIS CLASS REQUIRING INDIVIDUAL APPROVAL BY THE CIVIL SERVICE COMMISSION AND THOSE NOT SO REQUIRING?

WHAT IS THE STATUS AS BETWEEN TEMPORARY AND PERMANENT OF APPOINTEES OF THE THIRD CLASS, RULE II, SEC. 10?

A RULING ON THESE SUBJECTS AT YOUR EARLY CONVENIENCE WILL RELIEVE THE DEPARTMENT OF MANY DIFFICULTIES IN THE ADMINISTRATION OF THE ECONOMY ACT.

SECTION 105 (D), (6), OF THE ECONOMY ACT, PROVIDES:

SEC. 105. DURING THE FISCAL YEAR ENDING JUNE 30, 1933---

(D) IN THE CASE OF THE FOLLOWING PERSONS THE RATE OF COMPENSATION IS REDUCED AS FOLLOWS: IF MORE THAN $1,000 PER ANNUM BUT LESS THAN $10,000 PER ANNUM, 8 1/3 PERCENTUM * * *

(6) OFFICER AND EMPLOYEES (AS DEFINED IN SECTION 104 (A) OCCUPYING POSITIONS THE NATURE OF THE DUTIES AND PERIODS OF WORK OF WHICH MAKE IT IMPRACTICABLE TO APPLY THE PROVISIONS OF SUBSECTIONS (A) AND (B) OF SECTION 101:

THERE IS INVOLVED IN DETERMINING THE PRACTICABLILTY OF APPLYING OTHER PROVISIONS OF THE ECONOMY ACT FOR REDUCING AND IMPOUNDING COMPENSATION, TO WIT, SECTION 101 (A) AND (B), THE FACT THAT PRIOR TO JULY 1, 1932, IT HAD LONG BEEN THE RULE THAT TEMPORARY EMPLOYEES WERE NOT ENTITLED TO LEAVE OF ABSENCE WITH PAY. THE PROVISIONS OF THE ECONOMY ACT WERE NOT INTENDED TO, AND DID NOT, ENLARGE THE RIGHTS OF TEMPORARY EMPLOYEES. IF THE LEGISLATIVE FURLOUGH PLAN UNDER SECTION 101 (B) OF THE ECONOMY ACT WERE APPLIED TO TEMPORARY EMPLOYEES, THEY WOULD BE GRANTED THE SAME PRIVILEGES AS TO TIME OFF AS PERMANENT EMPLOYEES, THUS DESTROYING A CLEAR DISTINCTION IN THIS RESPECT BETWEEN PERMANENT AND TEMPORARY EMPLOYEES LONG IN FORCE.

IN DECISION OF AUGUST 9, 1932, 12 COMP. GEN. 221, TO WHICH YOU REFER, IT WAS STATED---

* * * IT MAY BE STATED AS A GENERAL RULE THAT ALL CLASSES OF EMPLOYEES WHO WERE NOT ENTITLED TO ANNUAL LEAVE PRIOR TO JULY 1, 1932, SHOULD BE REGARDED AS COMING WITHIN THE PROVISIONS OF SECTION 105 (D) (6).

THIS SHOULD BE CONSIDERED AS THE DEFINITE RULE IN APPLYING THE PROVISIONS OF THE ECONOMY ACT WHEN MAKING REDUCTIONS AND IMPOUNDINGS OF COMPENSATION OF ALL TEMPORARY EMPLOYEES. HENCE, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

YOU QUOTE FROM THE CERTIFICATE OF SETTLEMENT DATED FEBRUARY 18, 1932,DISALLOWING THE CLAIM OF E. A. SEATON, A TEMPORARY EMPLOYEE, FOR COMPENSATION DEDUCTED DURING MILITARY LEAVE OF ABSENCE, AND STATE THAT THE CLAUSE THEREIN "LEAVES THE EXPRESSION WITHOUT PRACTICAL GUIDANCE VALUE, SINCE ADMINISTRATIVE OFFICERS CAN NOT KNOW WHAT CONDITIONS WERE IN MIND.' YOU ARE ADVISED THAT CERTIFICATES OF SETTLEMENT OF CLAIMS ISSUED BY THIS OFFICE DO NOT, AND ARE NOT INTENDED TO, SERVE AS PRECEDENTS IN THE DISPOSITION OF ANY OTHER CLAIM OR ACCOUNT. THE PRINCIPLES CONTROLLING CLAIMS SETTLEMENTS ARE STATED IN THE GENERAL DECISIONS OF THIS OFFICE, AND IF AN ADMINISTRATIVE OFFICE HAS DOUBT AS TO THE APPLICATION OF SUCH DECISIONS TO A PARTICULAR CASE OR CLASS OF CASES, THE MATTER SHOULD BE PRESENTED FORMALLY TO THIS OFFICE FOR DECISION, AS WAS DONE IN THE INSTANT MATTER.

AN APPOINTMENT OR EMPLOYMENT MADE UNDER A CIVIL SERVICE RULE OR REGULATION SPECIFICALLY CLASSIFYING THE POSITION AS TEMPORARY, SUCH AS RULE VIII, ENTITLED "TEMPORARY APPOINTMENTS," SHOULD BE REGARDED AS TEMPORARY IN APPLYING LEAVE LAWS AND REGULATIONS. THE CASES OF E. A. SEATON AND JAMES E. DAISEY WERE REVIEWED BY THIS OFFICE IN DECISIONS OF JUNE 7, 1932, A-42275, WHEREIN, AFTER QUOTING FROM 2 COMP. GEN. 247, IT WAS SAID:

IT HAS BEEN HELD REPEATEDLY THAT TEMPORARY EMPLOYEES ARE NOT ENTITLED TO LEAVE WITH PAY UNDER THE NUMEROUS ACTS SIMILAR TO THE ONE HERE IN QUESTION ON THE PRINCIPLE THAT A LEAVE OF ABSENCE WITH PAY IS INCONSISTENT WITH TEMPORARY EMPLOYMENT. SEE 3 COMP. GEN. 112, 382; 4 ID. 17, 511, 552, 575, 748; 5 ID. 903; 6 ID. 178, 275; 9 ID. 119.

THE RECORD DISCLOSES THAT BOTH OF YOU WERE TEMPORARILY EMPLOYED UNDER THE REGULATIONS OF THE DEPARTMENT OF AGRICULTURE, WITHOUT A PRIOR AUTHORIZATION OF THE CIVIL SERVICE COMMISSION, ON A PER DIEM BASIS "WHEN ACTUALLY EMPLOYED" AND THAT, UNDER SUCH CIRCUMSTANCES, NO LEAVE HAS BEEN GRANTED TO YOU UNDER SUCH EMPLOYMENTS. PARAGRAPH 106 OF THE ADMINISTRATIVE REGULATIONS OF THE DEPARTMENT OF AGRICULTURE PROVIDES THAT "TEMPORARY EMPLOYEES INCLUDING THOSE APPOINTED AT PER DIEM RATES FOR DAYS ACTUALLY EMPLOYED ARE NOT ENTITLED TO ANY LEAVE PRIVILEGES.'

ACCORDINGLY, YOU ARE ADVISED THAT NOTWITHSTANDING THE FACT YOU HAVE BEEN EMPLOYED FOR PERIODS OF APPROXIMATELY 1 1/2 AND 10 1/2 YEARS, RESPECTIVELY, AND THAT YOUR EMPLOYMENTS MAY BE REGARDED ADMINISTRATIVELY AS OF A MORE OR LESS PERMANENT NATURE, THE CONDITIONS THEREOF AS NOW EXISTING ARE SUCH THAT PAYMENT FOR THE TIME YOU WERE ABSENT FROM YOUR EMPLOYMENTS WHILE ON ACTUAL TRAINING DUTY WITH THE SIXTH MARINES IS NOT AUTHORIZED. THE DISALLOWANCES OF FEBRUARY 18, 1932, MUST BE, AND ARE, SUSTAINED. THUS, IN THOSE CASES THE TEMPORARY CHARACTER OF THE EMPLOYMENT WAS SHOWN FROM THE ADMINISTRATIVE REGULATIONS GOVERNING THE SAME AND FROM THE APPOINTMENTS OR CONTRACTS OF EMPLOYMENT, AND NOT FROM THE FACT THAT THE EMPLOYMENT WAS OR WAS NOT MADE "WITHIN THE RULES AND REGULATIONS OF THE CIVIL SERVICE COMMISSION.'

REFERRING TO THE THREE CLASSES OF POSITIONS MENTIONED IN YOUR LETTER, YOU ARE ADVISED THAT THE METHOD OF EMPLOYMENT UNDER THE PARTICULAR CIVIL SERVICE RULE OR REGULATION, OR AS TO THE FIRST CLASS WITHOUT REGARD TO CIVIL SERVICE RULES AND REGULATIONS, DOES NOT IPSO FACTO DETERMINE THE TEMPORARY OR PERMANENT CHARACTER OF THE APPOINTMENT OR EMPLOYMENT. AS TO THE FIRST CLASS, THE PUBLICATION TO WHICH YOU REFER LISTS CITIES AND TOWNS WHERE THE CIVIL SERVICE REGULATIONS GOVERNING THE EMPLOYMENT OF UNSKILLED LABORERS ARE APPLICABLE, AND THIS OFFICE IS ADVISED THAT AT OTHER PLACES THE PRACTICE HAS BEEN TO PERMIT ADMINISTRATIVE OFFICERS TO EMPLOY BOTH TEMPORARY AND PERMANENT UNSKILLED LABORERS WITHOUT REGARD TO CIVIL SERVICE RULES AND REGULATIONS. ACCORDINGLY, UNDER THE CIRCUMSTANCES YOU MENTION,"EMPLOYEES OF CLASS 1, LABORERS AT POINTS WHERE THERE IS NO LABOR BOARD" ARE NOT NECESSARILY "TO BE REGARDED AS TEMPORARIES WITH RESPECT TO HOLIDAYS, MILITARY LEAVE, LEGISLATIVE FURLOUGH.'

REFERRING TO YOUR SECOND CLASS, SCHEDULE A IS A LIST OF POSITIONS ENTITLED "POSITIONS EXCEPTED FROM EXAMINATION UNDER RULE II, SECTION 3.' THE POSITIONS ARE NOT SPECIFICALLY DIVIDED INTO THE CLASSIFICATIONS (A) AND (B) STATED IN YOUR LETTER. THEY ARE MOSTLY OF A PERMANENT NATURE, AND WHERE A POSITION THEREIN IS TEMPORARY IT IS SO STATED IN THE SCHEDULE. EXCEPT AS TO THE POSITIONS SPECIFICALLY SO CLASSIFIED, THE TEMPORARY CHARACTER OF AN APPOINTMENT OR EMPLOYMENT IN A SCHEDULE POSITION WOULD DEPEND UPON OTHER ELEMENTS THAN THE FACT THAT THE POSITION IS LISTED IN SCHEDULE A.

REFERRING TO YOUR THIRD CLASS, RULE II, SECTION 10, PROVIDES:

APPOINTMENT WITHOUT COMPETITIVE EXAMINATION IN RARE CASES. WHENEVER THE COMMISSION SHALL FIND THAT THE DUTIES OR COMPENSATION OF A VACANT POSITION ARE SUCH, OR THAT QUALIFIED PERSONS ARE SO RARE THAT IN ITS JUDGMENT SUCH POSITION CAN NOT, IN THE INTEREST OF GOOD CIVIL SERVICE ADMINISTRATION, BE FILLED AT THAT TIME THROUGH OPEN COMPETITIVE EXAMINATION, IT MAY AUTHORIZE SUCH VACANCY TO BE FILLED WITHOUT COMPETITIVE EXAMINATION, AND IN ANY CASE IN WHICH SUCH AUTHORITY MAY BE GIVEN, EVIDENCE SATISFACTORY TO THE COMMISSION OF THE QUALIFICATIONS OF THE PERSON TO BE APPOINTED WITHOUT COMPETITIVE EXAMINATION SHALL BE REQUIRED. A DETAILED STATEMENT OF THE REASONS FOR ITS ACTION IN ANY CASE ARISING HEREUNDER SHALL BE MADE IN THE RECORDS OF THE COMMISSION AND SHALL BE PUBLISHED IN ITS ANNUAL REPORT. ANY SUBSEQUENT VACANCY IN SUCH POSITION SHALL NOT BE FILLED WITHOUT COMPETITIVE EXAMINATION EXCEPT UPON EXPRESS AUTHORITY OF THE COMMISSION IN ACCORDANCE WITH THIS SECTION.

THERE IS NOTHING IN THIS RULE WHICH CLASSIFIES THE APPOINTMENTS MADE THEREUNDER AS TEMPORARY. IN FACT, THIS OFFICE IS ADVISED THAT TEMPORARY APPOINTMENTS ARE NOT ORDINARILY MADE UNDER THIS RULE, BUT UNDER RULE VIII. THEREFORE, THE MERE FACT THAT AN APPOINTMENT IS MADE UNDER RULE II, SECTION 10, DOES NOT CONSTITUTE THE SAME A TEMPORARY APPOINTMENT.

WITHOUT ATTEMPTING TO STATE A RULE APPLICABLE TO ALL CASES IT MAY BE SAID THAT WHERE AN APPOINTMENT IS MADE AS A REGULAR OR PERMANENT APPOINTMENT UNDER CONDITIONS AND CIRCUMSTANCES WITH RESPECT TO WHICH THE CIVIL SERVICE RULES AND REGULATIONS AND THE REGULATIONS OF THE ADMINISTRATIVE DEPARTMENT CONCERNED AUTHORIZE REGULAR OR PERMANENT APPOINTMENTS, THE EMPLOYEE WILL NOT BE REGARDED AS A TEMPORARY.