A-45830, DECEMBER 22, 1932, 12 COMP. GEN. 477

A-45830: Dec 22, 1932

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WHICH WILL SHORTLY BE PLACED IN COMMISSION. AS THIS IS A NEW STATION IT IS ESSENTIAL. THAT THE MORE RESPONSIBLE POSITIONS BE FILLED BY THE TRANSFER OF EMPLOYEES WHO HAVE HAD EXPERIENCE AT OTHER NAVAL ACTIVITIES AND IT IS THE INTENTION TO TRANSFER EXPERIENCED EMPLOYEES TO FILL SUCH POSITIONS. IN A NUMBER OF INSTANCES IT WILL BE ABSOLUTELY ESSENTIAL THAT THE VACANCIES RESULTING FROM SUCH TRANSFERS BE FILLED. ONE OF THE ADDITIONAL POSITIONS AUTHORIZED TO BE FILLED IS THAT OF PRINCIPAL CLERK. WHICH IT IS PROPOSED TO FILL BY THE TRANSFER OF AN EMPLOYEE FROM THE NAVY YARD. IT WILL BE NECESSARY TO FILL THE CAF-5-101 POSITION. ANSWERS TO THE FOLLOWING SPECIFIC QUESTIONS ARE REQUESTED: 1. WILL IT BE NECESSARY TO SECURE THE AUTHORITY OF THE PRESIDENT TO FILL THIS POSITION AT MARE ISLAND.

A-45830, DECEMBER 22, 1932, 12 COMP. GEN. 477

ECONOMY ACT - FILLING OF VACANCIES - PRESIDENTIAL APPROVAL PRESIDENTIAL APPROVAL OF THE CREATION UNDER A DEPARTMENT OF A NUMBER OF NEW "ABSOLUTELY ESSENTIAL POSITIONS," AS REQUIRED BY SECTION 203 OF THE ECONOMY ACT, CARRIES WITH IT PRESIDENTIAL APPROVAL OF THE FILLING OF SUCH POSITIONS BY PROMOTION OR TRANSFER OF EMPLOYEES ALREADY IN THE SERVICE IN A LOWER GRADE, AS AUTHORIZED UNDER SECTION 202 OF THE ECONOMY ACT, EVEN THOUGH THE ADJUSTMENT CAUSES AN INCREASE IN COMPENSATION OF THE EMPLOYEES PROMOTED OR TRANSFERRED, BUT THE ACTION OF THE PRESIDENT IN AUTHORIZING THE FILLING OF THE ESSENTIAL POSITIONS CARRIES WITH IT NO AUTHORITY TO FILL POSITIONS MADE VACANT BY PROMOTION OR TRANSFER OF EMPLOYEES ALREADY IN THE SERVICE TO FILL SUCH ESSENTIAL POSITIONS, IN THE ABSENCE OF LIKE AUTHORITY GIVEN BY THE PRESIDENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE NAVY, DECEMBER 22, 1932:

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

ON NOVEMBER 3, 1932, THE PRESIDENT AUTHORIZED THE FILLING OF TWENTY SEVEN VACANT POSITIONS (NEW) REQUIRED FOR DUTY IN THE SUPPLY, DISBURSING, AND ACCOUNTING DEPARTMENTS AT THE NAVAL AIR STATION, SUNNYVALE, MOUNTAIN VIEW, CAL., WHICH WILL SHORTLY BE PLACED IN COMMISSION.

AS THIS IS A NEW STATION IT IS ESSENTIAL, IN ORDER TO INSURE THE MOST EFFICIENT AND ECONOMICAL OPERATION, THAT THE MORE RESPONSIBLE POSITIONS BE FILLED BY THE TRANSFER OF EMPLOYEES WHO HAVE HAD EXPERIENCE AT OTHER NAVAL ACTIVITIES AND IT IS THE INTENTION TO TRANSFER EXPERIENCED EMPLOYEES TO FILL SUCH POSITIONS. HOWEVER, IN A NUMBER OF INSTANCES IT WILL BE ABSOLUTELY ESSENTIAL THAT THE VACANCIES RESULTING FROM SUCH TRANSFERS BE FILLED.

TO GIVE A SPECIFIC EXAMPLE, ONE OF THE ADDITIONAL POSITIONS AUTHORIZED TO BE FILLED IS THAT OF PRINCIPAL CLERK, CAF-6-101 AT $2,300 PER ANNUM, WHICH IT IS PROPOSED TO FILL BY THE TRANSFER OF AN EMPLOYEE FROM THE NAVY YARD, MARE ISLAND, CAL., NOW TENTATIVELY ALLOCATED AS SENIOR CLERK, CAF-5-101 AT $2,200 PER ANNUM. BECAUSE OF THE VOLUME OF WORK AT THE NAVY YARD, MARE ISLAND, IT WILL BE NECESSARY TO FILL THE CAF-5-101 POSITION.

WHILE THE PROCEDURE HEREINAFTER OUTLINED APPEARS TO BE AUTHORIZED UNDER YOUR DECISION A-45231 OF OCTOBER 22, 1932, TO THE HONORABLE, THE ATTORNEY GENERAL, AND THE DECISIONS CITED THEREIN, ANSWERS TO THE FOLLOWING SPECIFIC QUESTIONS ARE REQUESTED:

1. WILL IT BE NECESSARY TO SECURE THE AUTHORITY OF THE PRESIDENT TO FILL THIS POSITION AT MARE ISLAND, ITS FILLING NOT RESULTING IN INCREASING THE NUMBER OF EMPLOYEES OR THE CHARGE TO THE APPROPRIATION OVER THE NUMBER AND AMOUNT ALREADY AUTHORIZED BY THE PRESIDENT?

2. IF THE ANSWER TO THE FOREGOING QUESTION IS IN THE NEGATIVE, MAY THE POSITION AT MARE ISLAND BE FILLED BY THE PROMOTION OF EXPERIENCED EMPLOYEES NOW AT THE YARD WITHOUT, OR POSSIBLY IN SOME INSTANCES WITH, AN INCREASE IN PAY, AND FILLING THE RESULTANT POSITION IN THE LOWEST GRADE AND AT THE MINIMUM ENTRANCE RATE OF PAY BUT WITHOUT INCREASING THE TOTAL NUMBER OF EMPLOYEES OR THE AUTHORIZED CHARGE TO THE APPROPRIATION OVER THE NUMBER NOW EMPLOYED AND THE AMOUNT PAID AT MARE ISLAND?

3. IF THE ANSWER TO QUESTION 2 IS IN THE NEGATIVE, CAN THE POSITION AT MARE ISLAND BE FILLED BY THE APPOINTMENT OF AN INDIVIDUAL IN AN APPROPRIATE GRADE BELOW THAT HELD BY THE EMPLOYEE TRANSFERRED, AT THE MINIMUM RATE OF PAY?

4. IN VIEW OF THE FACT THAT THE POSITION AT SUNNYVALE HAS BEEN AUTHORIZED AT A RATE OF COMPENSATION OF $2,300 PER ANNUM, WILL IT BE NECESSARY TO IMPOUND ANY SAVINGS OTHER THAN THOSE RESULTING FROM POSITIONS NOT FILLED IN THE MANNER INDICATED IN QUESTIONS 2 AND 3?

5. IF QUESTION 1 IS ANSWERED IN THE NEGATIVE, COULD A NUMBER OF TRANSFERS BETWEEN STATIONS BE MADE, FILLING THE FINAL POSITION IN THE MANNER OUTLINED IN QUESTION 2 OR 3, AS MAY BE DECIDED BY YOU, PROVIDED THE TOTAL NUMBER OF EMPLOYEES AND THE CHARGE TO THE APPROPRIATION IS NOT INCREASED BEYOND THAT ALREADY AUTHORIZED BY THE PRESIDENT? AS AN EXAMPLE, IT IS PROPOSED TO FILL ONE OF THE SUNNYVALE VACANCIES BY THE TRANSFER OF AN EMPLOYEE FROM THE NAVAL STATION, CAVITE, BUT, BECAUSE OF THE LIMITED NUMBER OF EXPERIENCED AMERICAN EMPLOYEES AT CAVITE, IT WILL BE NECESSARY TO SEND OUT A RELIEF FROM ONE OF THE NAVY YARDS IN THE UNITED STATES. CAN THE POSITION IN THE UNITED STATES BE FILLED WITHOUT REFERENCE TO THE PRESIDENT?

IN OTHER WORDS, MAY THE DEPARTMENT MAKE SUCH TRANSFERS AND APPOINTMENTS AS MAY BE NECESSARY IN THE INTERESTS OF GOOD ADMINISTRATION SO LONG AS THE NUMBER OF EMPLOYEES AND THE TOTAL AMOUNT OF THEIR COMPENSATION IS NOT INCREASED BEYOND THE NUMBER AND AMOUNT AUTHORIZED BY THE ECONOMY ACT OR BY THE PRESIDENT, AND WITH THE FURTHER RESTRICTION THAT INDIVIDUAL EMPLOYEES MAY NOT BE PROMOTED WITHIN A GRADE?

SECTIONS 202 AND 203 OF THE ECONOMY ACT PROVIDE IN PART AS FOLLOWS:

NO ADMINISTRATIVE PROMOTIONS IN THE CIVIL BRANCH OF THE UNITED STATES GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA SHALL BE MADE DURING THE FISCAL YEAR ENDING JUNE 30, 1933: PROVIDED, THAT THE FILLING OF A VACANCY, WHEN AUTHORIZED BY THE PRESIDENT, BY THE APPOINTMENT OF AN EMPLOYEE OF A LOWER GRADE, SHALL NOT BE CONSTRUED AS AN ADMINISTRATIVE PROMOTION, BUT NO SUCH APPOINTMENT SHALL INCREASE THE COMPENSATION OF SUCH EMPLOYEE TO A RATE IN EXCESS OF THE MINIMUM RATE OF THE GRADE TO WHICH SUCH EMPLOYEE IS APPOINTED, UNLESS SUCH MINIMUM RATE WOULD REQUIRE AN ACTUAL REDUCTION IN COMPENSATION. * * *

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. * * *.

IN DECISION OF OCTOBER 22, 1932, 12 COMP. GEN. 408, TO WHICH YOU REFER, AFTER QUOTING FROM 12 COMP. GEN. 261; ID. 281, IT WAS HELD:

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 THE PRESIDENT.

THERE HAVE NOT BEEN CONSIDERED NOR DECIDED IN ANY OF THE PRIOR DECISIONS OF THE OFFICE THE SPECIFIC QUESTIONS NOW PRESENTED WHETHER PRESIDENTIAL APPROVAL OF THE CREATION UNDER A DEPARTMENT OF A NUMBER OF NEW "ABSOLUTELY ESSENTIAL POSITIONS" AS REQUIRED BY THE PROVISIONS OF SECTION 203 (A) OF THE ECONOMY ACT, CARRIES WITH IT PRESIDENTIAL APPROVAL OF THE FILLING OF SUCH POSITIONS BY EMPLOYEES ALREADY IN THE SERVICE IN A LOWER GRADE, AS AUTHORIZED UNDER SECTION 202 OF THE ACT, AND ALSO PRESIDENTIAL APPROVAL OF THE FILLING OF THE POSITIONS LEFT VACANT BY THE TRANSFER OF THE EMPLOYEES. THE PROPER PROCEDURE IN THE INSTANT MATTER WOULD HAVE BEEN FOR THE ADMINISTRATIVE OFFICE TO HAVE PRESENTED THE ENTIRE ADJUSTMENT OF PERSONNEL TO THE PRESIDENT FOR HIS APPROVAL UNDER THE PROVISIONS OF BOTH SECTIONS 202 AND 203 OF THE ECONOMY ACT.

SINCE SECTION 203 (A) AUTHORIZES THE FILLING OF "ABSOLUTELY ESSENTIAL POSITIONS" WITH THE APPROVAL OF THE PRESIDENT, AND SINCE SECTION 202 PROVIDES THAT "THE FILLING OF A VACANCY, WHEN AUTHORIZED BY THE PRESIDENT, BY THE APPOINTMENT OF AN EMPLOYEE OF A LOWER GRADE, SHALL NOT BE CONSTRUED AS AN ADMINISTRATIVE PROMOTION," IT FOLLOWS THAT ACTION BY THE PRESIDENT UNDER SECTION 203 (A) WOULD AUTHORIZE THE FILLING OF THE ABSOLUTELY ESSENTIAL POSITIONS EITHER BY EMPLOYEES IN OR OUT OF THE SERVICE, EVEN THOUGH THE ADJUSTMENT CAUSED AN INCREASE IN COMPENSATION TO THE EMPLOYEES TRANSFERRED TO THE VACANT POSITIONS FROM A LOWER GRADE.

THE OBVIOUS PURPOSE OF THE PROVISION OF THE ECONOMY LAW PROHIBITING THE FILLING OF VACANCIES UNLESS AUTHORIZED BY THE PRESIDENT WAS TO PROVIDE THE PRESIDENT A MEANS OF EFFECTING ECONOMIES THROUGH WITHHOLDING AUTHORITY TO FILL VACANCIES NOT SHOWN TO BE ESSENTIAL--- THE SAVINGS TO BE IMPOUNDED ACCORDINGLY. VACANCIES ARE VACANCIES REGARDLESS OF THE MANNER IN WHICH THEY OCCUR AND THE ACTION OF THE PRESIDENT IN AUTHORIZING THE FILLING OF ESSENTIAL POSITIONS CARRIES WITH IT NO AUTHORITY TO FILL POSITIONS MADE VACANT BY TRANSFER OF EMPLOYEES TO FILL SUCH ESSENTIAL POSITIONS IN THE ABSENCE OF LIKE AUTHORITY GIVEN BY THE PRESIDENT. HE IS ENTITLED TO BE FULLY ADVISED AS TO THE ESSENTIAL CHARACTER OF EACH POSITION SO MADE VACANT IN ORDER THAT HE MAY DETERMINE WHETHER IT SHOULD BE FILLED.

QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE AND THE GENERAL QUESTION WHICH CONCLUDES YOUR SUBMISSION IS ANSWERED IN THE NEGATIVE, APPARENTLY MAKING IT UNNECESSARY TO ANSWER YOUR OTHER QUESTIONS.