A-45810, DECEMBER 6, 1932, 12 COMP. GEN. 465

A-45810: Dec 6, 1932

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ECONOMY ACT - FILLING OF VACANCIES - PERMANENT APPOINTMENT OF TEMPORARY EMPLOYEES SINCE SECTION 203 OF THE ECONOMY ACT WAS EFFECTIVE ON AS WELL AS JULY 1. EXCEPTION WAS TAKEN TO VOUCHER NO. 50 COVERING THE PAY ROLL FOR CUSTODIAN SERVICE. WAS PAID AT $1. PROVIDING THAT APPROPRIATIONS FOR THE FISCAL YEAR 1933 ARE NOT AVAILABLE FOR THE FILLING OF VACANCIES ON OR AFTER JULY 1. CREDIT FOR THE AMOUNT PAID WAS WITHHELD FOR AN EXPLANATION OF THE ALLEGED APPOINTMENT. STATED: REFERENCE IS MADE TO NOTICE OF EXCEPTION DATED OCTOBER 19. ALLENSWORTH WAS APPOINTED TEMPORARY LABORER AT $1. HE QUALIFIED IN A CIVIL SERVICE EXAMINATION AND WAS SELECTED FROM CERTIFICATE OF ELIGIBLES AND GIVEN PROBATIONAL APPOINTMENT.

A-45810, DECEMBER 6, 1932, 12 COMP. GEN. 465

ECONOMY ACT - FILLING OF VACANCIES - PERMANENT APPOINTMENT OF TEMPORARY EMPLOYEES SINCE SECTION 203 OF THE ECONOMY ACT WAS EFFECTIVE ON AS WELL AS JULY 1, 1932, IT FOLLOWS THAT THE PERMANENT APPOINTMENT EFFECTIVE AS OF JULY 1, 1932, OF A TEMPORARY EMPLOYEE IN THE SAME POSITION REQUIRES THE AUTHORIZATION OR APPROVAL OF THE PRESIDENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, DECEMBER 6, 1932:

IN THE AUDIT OF THE JULY, 1932, ACCOUNT OF JAMES P. THOMAS, ACTING COLLECTOR OF CUSTOMS, EXCEPTION WAS TAKEN TO VOUCHER NO. 50 COVERING THE PAY ROLL FOR CUSTODIAN SERVICE, POST OFFICE, HOPKINSVILLE, KY., FROM JULY 1 TO 15, 1932, WHEREON ROSS S. ALLENSWORTH, LABORER, WAS PAID AT $1,140 PER ANNUM WITH NOTATION "APPOINTED PERM. 7/1/32, D.L. 6/29/32.'

IN VIEW OF THE PROVISIONS IN SECTION 203 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 403, PROVIDING THAT APPROPRIATIONS FOR THE FISCAL YEAR 1933 ARE NOT AVAILABLE FOR THE FILLING OF VACANCIES ON OR AFTER JULY 1, 1932, UNLESS SPECIFICALLY APPROVED BY THE PRESIDENT, OR OF THE SPECIFIC CLASSES OF EXCEPTED EMPLOYMENT THEREIN INDICATED, AND THE RULING IN 12 COMP. GEN. 142, THAT A POSITION VACANT AT THE CLOSE OF BUSINESS JUNE 30, 1932, MUST BE CONSIDERED AS VACANT JULY 1, 1932, AND SUCH VACANCY CAN NOT BE AVOIDED IN CONNECTION WITH THE APPLICATION OF SECTION 203 OF THE ECONOMY ACT, BY MAKING THE APPOINTMENT PRIOR TO JULY 1, 1932, CREDIT FOR THE AMOUNT PAID WAS WITHHELD FOR AN EXPLANATION OF THE ALLEGED APPOINTMENT.

IN REPLY DATED OCTOBER 26, 1932, THE EXECUTIVE OFFICER OF THE OFFICE OF SUPERVISING ARCHITECT, TREASURY DEPARTMENT, STATED:

REFERENCE IS MADE TO NOTICE OF EXCEPTION DATED OCTOBER 19, ADDRESSED TO JAMES P. THOMAS, COLLECTOR OF CUSTOMS, LOUISVILLE, KENTUCKY, SYMBOL 19573, TO PAYMENT MADE ON VOUCHER NO. 50, IN HIS JULY ACCOUNT TO ROSS C. ALLENSWORTH, LABORER, WITH COMPENSATION AT THE RATE OF $1,140 PER ANNUM, POST OFFICE, HOPKINSVILLE, KENTUCKY.

ACCORDING TO THE RECORDS HERE, MR. ALLENSWORTH WAS APPOINTED TEMPORARY LABORER AT $1,140 PER ANNUM, MARCH 17, 1932, BY DEPARTMENT APPROVAL OF APRIL 6, 1932. HE QUALIFIED IN A CIVIL SERVICE EXAMINATION AND WAS SELECTED FROM CERTIFICATE OF ELIGIBLES AND GIVEN PROBATIONAL APPOINTMENT, EFFECTIVE JULY 1, 1932, DEPARTMENT APPROVAL JUNE 29. THE CIVIL SERVICE COMMISSION HAS RULED THAT IF A POSITION WAS FILLED TEMPORARILY ON JUNE 30, 1932, IT WAS NOT VACANT AND THE TEMPORARY WHO LATER QUALIFIES FOR PROBATIONAL APPOINTMENT MAY BE GIVEN PROBATIONAL STATUS WITHOUT EXECUTIVE APPROVAL.

IN VIEW OF THE FOREGOING, IT IS RECOMMENDED THAT PAYMENT OF COMPENSATION MADE TO ROSS S. ALLENSWORTH BY THE SPECIAL DISBURSING AGENT REFERRED TO BE APPROVED.

SECTION 203 OF THE ECONOMY ACT PROVIDES IN PART AS FOLLOWS:

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 NOT 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 STATUTE DRAWS A CLEAR DISTINCTION BETWEEN THE FILLING OF PERMANENT AND TEMPORARY POSITIONS, THE FORMER REQUIRING THE AUTHORIZATION OR APPROVAL OF THE PRESIDENT, BUT NOT THE LATTER. IT COULD NOT BE SERIOUSLY CONTENDED THAT A PERMANENT APPOINTMENT OF A TEMPORARY EMPLOYEE IN THE SAME POSITION AFTER JULY 1, 1932, COULD BE MADE WITHOUT REQUIRING THE AUTHORIZATION OR APPROVAL OF THE PRESIDENT. SINCE THE STATUTE WAS EFFECTIVE ON AS WELL AS AFTER JULY 1, 1932, IT FOLLOWS THAT THE PERMANENT APPOINTMENT EFFECTIVE AS OF JULY 1, 1932, OF A TEMPORARY EMPLOYEE IN THE SAME POSITION, ALSO, REQUIRED THE AUTHORIZATION OR APPROVAL OF THE PRESIDENT.

YOU ARE ADVISED, THEREFORE, THAT CREDIT WILL NOT BE ALLOWED FOR PAYMENTS OF COMPENSATION TO THIS EMPLOYEE AND OTHERS IN A SIMILAR STATUS IN THE ABSENCE OF EVIDENCE SHOWING THE AUTHORIZATION OR APPROVAL OF THE PRESIDENT TO THE PERMANENT APPOINTMENTS.