A-46907, FEBRUARY 2, 1933, 12 COMP. GEN. 518

A-46907: Feb 2, 1933

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ECONOMY ACT - FILLING OF TEMPORARY POSITIONS IF A POSITION OCCUPIED BY AN EMPLOYEE IS TEMPORARY AND HAS BEEN PROPERLY FILLED UNDER AUTHORITY OF SECTION 203 OF THE ECONOMY ACT. IT IS LAWFUL TO APPOINT THE SAME EMPLOYEE TO A SEPARATE AND DISTINCT TEMPORARY POSITION WITH DIFFERENT DUTIES. AS FOLLOWS: ALTHOUGH NUMEROUS DECISIONS HAVE BEEN RENDERED BY YOU IN ANSWER TO QUESTIONS CONCERNING THE PROVISIONS OF THE ECONOMY ACT. WHICH PRESENTS A QUESTION THAT DOES NOT SEEM TO HAVE BEEN SPECIFICALLY ANSWERED BY YOU. CONSTRUCTION WORK IN THE NATIONAL PARKS IS CONTINGENT UPON WEATHER CONDITIONS AND AS THE OPEN WORKING SEASON IN THE MAJORITY OF THE PARKS IS OF APPROXIMATELY THREE MONTHS' DURATION IT IS NECESSARY TO EMPLOY A LARGE NUMBER OF TEMPORARY EMPLOYEES STARTING FROM A FORCE OF ONLY A FEW LABORERS UNTIL THERE HAS BEEN BUILT UP A FORCE OF SEVERAL HUNDRED EMPLOYEES.

A-46907, FEBRUARY 2, 1933, 12 COMP. GEN. 518

ECONOMY ACT - FILLING OF TEMPORARY POSITIONS IF A POSITION OCCUPIED BY AN EMPLOYEE IS TEMPORARY AND HAS BEEN PROPERLY FILLED UNDER AUTHORITY OF SECTION 203 OF THE ECONOMY ACT, WITHOUT THE AUTHORITY OR APPROVAL OF THE PRESIDENT, IT IS LAWFUL TO APPOINT THE SAME EMPLOYEE TO A SEPARATE AND DISTINCT TEMPORARY POSITION WITH DIFFERENT DUTIES, EVEN AT AN INCREASE IN COMPENSATION, WITHOUT THE AUTHORITY OR APPROVAL OF THE PRESIDENT. 12 COMP. GEN. 354, DISTINGUISHED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, FEBRUARY 2, 1933:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JANUARY 21, 1933, AS FOLLOWS:

ALTHOUGH NUMEROUS DECISIONS HAVE BEEN RENDERED BY YOU IN ANSWER TO QUESTIONS CONCERNING THE PROVISIONS OF THE ECONOMY ACT, THERE EXISTS A CONDITION IN VARIOUS FIELD UNITS OF THIS DEPARTMENT, PARTICULARLY IN THE NATIONAL PARK SERVICE, WHICH PRESENTS A QUESTION THAT DOES NOT SEEM TO HAVE BEEN SPECIFICALLY ANSWERED BY YOU.

THE MAINTENANCE, REPAIR, AND CONSTRUCTION WORK IN THE NATIONAL PARKS IS CONTINGENT UPON WEATHER CONDITIONS AND AS THE OPEN WORKING SEASON IN THE MAJORITY OF THE PARKS IS OF APPROXIMATELY THREE MONTHS' DURATION IT IS NECESSARY TO EMPLOY A LARGE NUMBER OF TEMPORARY EMPLOYEES STARTING FROM A FORCE OF ONLY A FEW LABORERS UNTIL THERE HAS BEEN BUILT UP A FORCE OF SEVERAL HUNDRED EMPLOYEES, CONSISTING OF LABORERS, FOREMEN, TRUCK DRIVERS, AND SKILLED TRADESMEN, NECESSARY TO THE PROPER FUNCTIONING OF THE PARK OPERATIONS.

THE MAJORITY OF THE NATIONAL PARKS ARE FAR REMOVED FROM CENTERS OF INDUSTRY AND THESE TEMPORARY EMPLOYEES HAVE BEEN RECRUITED, TO A LARGE EXTENT, FROM A FLOATING POPULATION. IN BUILDING THIS COMPLEMENT OF TEMPORARY WORKERS FROM SUCH A SOURCE CERTAIN OF THE EMPLOYEES HAVE PROVED THEMSELVES ADAPTABLE TO TWO OR MORE CLASSES OF WORK, WHILE OTHERS CAN DO ONLY ONE PARTICULAR CLASS OF WORK. FROM AN ECONOMIC STANDPOINT THE GOVERNMENT OFFICES HAVE ENCOURAGED SUCH MEN, WHO SHOW AN ADAPTABILITY TO OTHER CLASSES OF WORK AND WHO HAVE BECOME FAMILIAR WITH THE LARGE PARK AREAS OVER WHICH THE OPERATIONS EXTEND, BY SEPARATING THEM FROM THE LOWER GRADE POSITIONS AND GIVING THEM NEW APPOINTMENTS AT A HIGHER GRADE OF WORK, WHICH CARRIES THE HIGHER RATE OF PAY, WHILE THE NEED EXISTS FOR THE HIGHER CLASS OF WORK, AND FILLING THE LOWER GRADE POSITION WITH NEW MEN.

FROM AN ADMINISTRATIVE STANDPOINT THIS IS NOT INTERPRETED AS A PROMOTION, FOR THE APPROVED RATE OF PAY FOR THE CLASS OF WORK GOVERNS, AND AS FAR AS THE CLASS OF WORK IS CONCERNED THERE IS NO INCREASE IN THE RATE OF PAY FOR THAT CLASS OF WORK. THE PERSON BEST ADAPTED FOR THE WORK IS GIVEN THE APPOINTMENT TO THE HIGHER CLASS OF WORK. THIS HAS ENCOURAGED THESE VERSATILE EMPLOYEES TO ESTABLISH THEMSELVES IN THE VICINITY OF THE PARKS AND HAS RESULTED IN A GREAT SAVING TO THE GOVERNMENT, IN THAT THE HIGHER GRADE OF WORK HAS BEEN MORE EFFICIENTLY ACCOMPLISHED BY AN EMPLOYEE WHO IS FAMILIAR WITH THE REQUIREMENTS OF THE GOVERNMENT THAN A NEW MAN WOULD BE AND THE GOVERNMENT HAS ALSO PROFITTED BY HAVING A HIGHER TYPE OF EMPLOYEE IN THE LOWER GRADE POSITION UNTIL THE NEED FOR THE HIGHER GRADE POSITION AROSE.

IT IS TO BE UNDERSTOOD THAT THE RATE OF PAY FOR EACH CLASS OF SERVICE HAS BEEN ESTABLISHED BY THE SUPERINTENDENT AFTER A STUDY OF THE PREVAILING RATE OF PAY FOR LIKE SERVICES IN THAT VICINITY AND THAT IT DOES NOT EXCEED THE MAXIMUM RATE WHICH HAS BEEN APPROVED BY THE SECRETARY.

DURING A SEASON'S ACTIVITY A LARGE NUMBER OF EMPLOYEES MAY BE AFFECTED BY THE ABOVE PROCEDURE AND DUE TO THE URGENCY OF THE OCCASION IT MAY NOT BE POSSIBLE TO OBTAIN PRIOR APPROVAL OF THE PRESIDENT. THE DELAYED PAYMENT TO THE EMPLOYEE AT THE NEW RATE INCIDENT TO THE APPROVAL OF THE PRESIDENT WORKS A DECIDED HARDSHIP ON THE EMPLOYEE ESPECIALLY DURING THE PRESENT STAGE OF ECONOMIC DEPRESSION AND UNEMPLOYMENT.

YOUR OPINION IS RESPECTFULLY REQUESTED AS TO WHETHER, UNDER THE PROCEDURE OUTLINED ABOVE, THAT IS, THE SEPARATION OF AN EMPLOYEE FROM ONE CLASS OF WORK AND APPOINTING HIM TO ANOTHER CLASS OF WORK AT A HIGHER RATE OF PAY, IT WOULD BE NECESSARY TO OBTAIN THE APPROVAL OF THE PRESIDENT TO COMPLY WITH THE PROVISIONS OF THE ECONOMY ACT.

IN DECISION OF SEPTEMBER 14, 1932, 12 COMP. GEN. 354, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

WHILE A TEMPORARY OR AN EMERGENCY POSITION MAY BE FILLED UNDER SECTION 203 (B) OF THE ECONOMY ACT 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.'

THE PRINCIPLE THUS STATED HAD REFERENCE TO A PERMANENT EMPLOYEE TRANSFERRED OR ASSIGNED TO A TEMPORARY POSITION AT AN INCREASE IN COMPENSATION, WHEREAS IN THE INSTANT CASE IT IS UNDERSTOOD TO BE THE PURPOSE TO TRANSFER OR ASSIGN TEMPORARY EMPLOYEES FROM ONE TEMPORARY POSITION TO ANOTHER TEMPORARY POSITION. IF THE POSITION OCCUPIED BY AN EMPLOYEE IS TEMPORARY AND HAS BEEN PROPERLY FILLED UNDER AUTHORITY OF SECTION 203 OF THE ECONOMY ACT WITHOUT THE AUTHORITY OR APPROVAL OF THE PRESIDENT, IT IS LAWFUL TO APPOINT THE SAME EMPLOYEE TO A SEPARATE AND DISTINCT TEMPORARY POSITION WITH DIFFERENT DUTIES EVEN AT AN INCREASE IN COMPENSATION WITHOUT THE AUTHORITY OR APPROVAL OF THE PRESIDENT. THE EFFECT OF SECTIONS 202 AND 203 OF THE ECONOMY ACT WAS NOT TO GIVE AN ADVANTAGE TO EMPLOYEES OUTSIDE THE SERVICE OVER TEMPORARY EMPLOYEES ALREADY ON THE ROLLS TO BE APPOINTED TO OTHER TEMPORARY POSITIONS AT AN INCREASE OF COMPENSATION. THE SPECIFIC QUESTION PRESENTED IN YOUR CONCLUDING PARAGRAPH IS ANSWERED IN THE NEGATIVE.