A-50115, JULY 29, 1933, 13 COMP. GEN. 27

A-50115: Jul 29, 1933

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

EMPLOYEES OF THE INTERSTATE COMMERCE COMMISSION GRANTED INVOLUNTARY ADMINISTRATIVE FURLOUGH WITHOUT PAY WHO HAVE ACCEPTED TEMPORARY POSITIONS WITH THE FEDERAL COORDINATOR OF TRANSPORTATION. THE DUTIES OF WHICH ARE ESSENTIALLY DIFFERENT FROM THE DUTIES OF THEIR POSITIONS UNDER THE INTERSTATE COMMERCE COMMISSION. ARE NOT SUBJECT IN THEIR TEMPORARY POSITIONS TO THE 15 PERCENT REDUCTION IN COMPENSATION. YOUR ADVANCE DECISION IS REQUESTED REGARDING THE FOLLOWING SITUATION: IN YOUR DECISION OF JUNE 20. "I HAVE TO ADVISE. ARE NOT APPLICABLE TO EMPLOYEES APPOINTED BY YOU UNDER THE TERMS OF SECTION 2 OF THE EMERGENCY RAILROAD TRANSPORTATION ACT.'. WHOSE COMPENSATION IS AT THE TIME OF SUCH LOANING.

A-50115, JULY 29, 1933, 13 COMP. GEN. 27

ECONOMY ACT, AMENDED - FEDERAL COORDINATOR OF TRANSPORTATION EMPLOYEES OF THE INTERSTATE COMMERCE COMMISSION GRANTED VOLUNTARY LEAVE OF ABSENCE WITHOUT PAY TO ACCEPT POSITIONS WITH THE FEDERAL COORDINATOR OF TRANSPORTATION CANNOT RETAIN THEIR POSITIONS WITH THE INTERSTATE COMMERCE COMMISSION AND RECEIVE FOR SERVICES UNDER THE FEDERAL COORDINATOR OF TRANSPORTATION COMPENSATION AT A RATE IN EXCESS OF THE RATE THEY HAD BEEN RECEIVING WITH THE INTERSTATE COMMERCE COMMISSION. EMPLOYEES OF THE INTERSTATE COMMERCE COMMISSION GRANTED INVOLUNTARY ADMINISTRATIVE FURLOUGH WITHOUT PAY WHO HAVE ACCEPTED TEMPORARY POSITIONS WITH THE FEDERAL COORDINATOR OF TRANSPORTATION, THE DUTIES OF WHICH ARE ESSENTIALLY DIFFERENT FROM THE DUTIES OF THEIR POSITIONS UNDER THE INTERSTATE COMMERCE COMMISSION, ARE NOT SUBJECT IN THEIR TEMPORARY POSITIONS TO THE 15 PERCENT REDUCTION IN COMPENSATION.

COMPTROLLER GENERAL MCCARL TO THE FEDERAL COORDINATOR OF TRANSPORTATION, JULY 29, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 20, 1933, AS FOLLOWS:

IN ORDER THAT NO QUESTIONS MAY LATER BE RAISED REGARDING THE LEGALITY OF THE PAYMENT OF SALARIES OF CERTAIN EMPLOYEES ON THE PAY ROLL OF THE COORDINATOR OF TRANSPORTATION, YOUR ADVANCE DECISION IS REQUESTED REGARDING THE FOLLOWING SITUATION:

IN YOUR DECISION OF JUNE 20, A-49565, RENDERED AT MY REQUEST, YOU SAY IN PART,"I HAVE TO ADVISE, THEREFORE, THAT THE PERCENTAGE REDUCTIONS UNDER TITLE II OF THE ACT OF MARCH 20, 1933, ARE NOT APPLICABLE TO EMPLOYEES APPOINTED BY YOU UNDER THE TERMS OF SECTION 2 OF THE EMERGENCY RAILROAD TRANSPORTATION ACT.'

HOWEVER, IN YOUR DECISION A-49892 OF JULY 11, 1933, TO THE SECRETARY OF COMMERCE, YOU SAY IN PART: "HOWEVER, ANY OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT LOANED, DETAILED, OR ASSIGNED TO DUTY WITH THE NATIONAL INDUSTRIAL RECOVERY ADMINISTRATION, AND WHOSE COMPENSATION IS AT THE TIME OF SUCH LOANING, DETAIL, OR ASSIGNMENT, SUBJECT TO THE PERCENTAGE REDUCTION IN COMPENSATION UNDER TITLE II OF THE ACT OF MARCH 20, 1933, WILL CONTINUE TO BE SUBJECT TO SUCH REDUCTION EVEN THOUGH HE MAY BE FURLOUGHED OR GRANTED LEAVE WITHOUT PAY FROM HIS REGULAR POSITION FOR THE PERIOD OF SUCH LOANING, DETAIL, OR ASSIGNMENT. SEE DECISION OF JULY 8, 1933, A-49756.'

BY A MINUTE OF THE INTERSTATE COMMERCE COMMISSION DATED JULY 11, 1933, THE FOLLOWING ORDER WAS ENTERED: "UNTIL FURTHER ORDER OF THE COMMISSION * * * GIVEN LEAVE OF ABSENCE WITHOUT PAY IN ORDER TO PERMIT THEM TO SERVE ON THE STAFF OF THE FEDERAL COORDINATOR OF TRANSPORTATION.'

THE ABOVE MINUTE RELATED TO FOUR EMPLOYEES WHO HAVE BEEN PUT ON THE COORDINATOR'S PAY ROLL AS OF JULY 16. THESE MEN WERE NOT LOANED, DETAILED, OR ASSIGNED TO THE COORDINATOR IN ORDER THAT THE COMMISSION MIGHT BE RELIEVED OF PAYING THEIR SALARIES, BUT TO FILL POSITIONS ON THE STAFF OF THE COORDINATOR THE DUTIES OF WHICH DIFFER EITHER IN KIND OR DEGREE FROM THE DUTIES WHICH THEY PERFORMED AS EMPLOYEES OF THE COMMISSION. TO BE SPECIFIC:

JOHN L. ROGERS WAS AN EXAMINER IN THE COMMISSION'S BUREAU OF SERVICE. HEARD CASES AND PREPARED DRAFTS OF REPORTS THEREAFTER. HE IS NOW MY EXECUTIVE ASSISTANT; AND IN THIS CAPACITY HE HANDLES A LARGE VOLUME OF CORRESPONDENCE, TALKS WITH CALLERS WHOM I AM NOT ABLE TO SEE, INTERVIEWS AND INVESTIGATES MANY APPLICANTS FOR POSITIONS, LOOKS AFTER THE OFFICE AND SUPPLY NEEDS OF MY STAFF, AND HANDLES NUMEROUS OTHER ADMINISTRATIVE DETAILS. HIS WORK DIFFERS IN KIND FROM THAT WHICH HE FORMERLY PERFORMED.

FRANK B. LIVINGSTONE WAS MY PRIVATE SECRETARY AS COMMISSIONER AND IS MY PRIVATE SECRETARY AS COORDINATOR. HIS WORK HAS INCREASED IN VOLUME, INTENSITY, AND RESPONSIBILITY. HE SEES MANY CALLERS AND EITHER ARRANGES APPOINTMENTS WITH ME OR WITH MEMBERS OF MY STAFF OR TALKS WITH THEM PERSONALLY, INCLUDING MANY REPRESENTATIVES OF THE PRESS; AND DOES THE SAME WITH TELEPHONE CALLS. I ALSO USE HIM AS ONE OF MY CONSULTANTS ON QUESTIONS OF POLICY. THE WORK OF A COMMISSIONER IS LARGELY QUASI- JUDICIAL, WHEREAS THE WORK OF THE COORDINATOR IS ADMINISTRATIVE AND EXECUTIVE IN CHARACTER. THERE ARE 11 COMMISSIONERS AND ONLY 1 COORDINATOR. ALL THIS MAKES THE POST OF PRIVATE SECRETARY TO THE COORDINATOR A MUCH MORE DIFFICULT AND RESPONSIBLE POSITION.

MILTON E. DIEHL WAS SECOND STENOGRAPHER IN MY OFFICE AS COMMISSIONER, AND WORKED LARGELY WITH MY FIRST EXAMINER. LAST SPRING HE WAS ADMITTED TO THE BAR. HE NOW ACTS AS STENOGRAPHER FOR MY EXECUTIVE AND LEGAL ASSISTANT, MR. CARMALT, WHO IS NOW MY ONLY LEGAL ADVISER, AND ALSO AS A GENERAL SECRETARY TO HIM AND TO MR. ROGERS. IN THIS LATTER CAPACITY MR. CARMALT USES HIM AS A LAW CLERK, AND HE DOES VARIOUS OTHER ODD JOBS FOR BOTH OF THEM. HIS PRESENT WORK DIFFERS BOTH IN KIND AND DEGREE FROM THAT WHICH HE WAS FORMERLY DOING.

GERALD M. PHELPS WAS THE MESSENGER IN MY OFFICE AS COMMISSIONER. ANOTHER BOY HAS TAKEN HIS PLACE AS MESSENGER, AND PHELPS NOW IS ACTING AS FILING CLERK FOR THE LARGE VOLUME OF CORRESPONDENCE WHICH IS BEING HANDLED BY ME AND BY MY EXECUTIVE ASSISTANTS. HIS WORK DIFFERS IN KIND FROM HIS FORMER WORK.

THE SALARIES IT IS PROPOSED TO PAY THESE MEN ARE THOSE ALLOCATED TO THE POSITIONS WHICH THEY NOW OCCUPY, AND ARE SALARIES WHICH WOULD HAVE BEEN PAID HAD THE POSITIONS BEEN FILLED BY MEN NOT PREVIOUSLY IN THE GOVERNMENT SERVICE, AND THEY WERE INTENDED TO BE NET AND NOT SUBJECT TO THE 15 PERCENT REDUCTION. THESE MEN HAVE BEEN KEPT ON THE ROLLS OF THE COMMISSION AS ON LEAVE WITHOUT PAY, OR ON INDEFINITE FURLOUGH, IN ORDER THAT WHEN THE TEMPORARY WORK OF THE COORDINATOR IS COMPLETED THEY CAN BE REASSIGNED TO THEIR FORMER WORK WITH THE COMMISSION IF THEY SO DESIRE.

AS IT MAY BE FOUND DESIRABLE TO ADD OTHER EMPLOYEES OF THE COMMISSION TO THE COORDINATOR'S STAFF UNDER SIMILAR CIRCUMSTANCES, YOUR EARLY DECISION IS REQUESTED AS TO WHETHER EMPLOYEES RETAINED ON THE ROLLS OF THE COMMISSION WITHOUT PAY, OR ON INDEFINITE FURLOUGH, BUT WHO WERE SUBJECT TO THE PERCENTAGE REDUCTIONS REQUIRED UNDER SECTION II OF THE ACT OF MARCH 20, 1933, WHILE PAID FROM ITS APPROPRIATION, MAY BE PAID FROM THE COORDINATOR'S FUND, WITHOUT SUCH DEDUCTION, WHEN THE POSITIONS ON THE COORDINATOR'S STAFF, AND THE DUTIES CONNECTED THEREWITH ARE NOT THE SAME AS THOSE THEY WERE OCCUPYING WHEN ON THE COMMISSION'S PAY ROLL.

IN DECISION OF OCTOBER 19, 1932, 12 COMP. GEN. 403, IT WAS HELD, QUOTING FROM THE SYLLABUS:

WHEN AN EMPLOYEE HAS BEEN GIVEN AN ADMINISTRATIVE FURLOUGH IN PREFERENCE TO A DISCHARGE PURSUANT TO SECTION 216 OF THE ECONOMY ACT, HIS SUBSEQUENT APPOINTMENT TO A TEMPORARY OR SEASONAL POSITION SUCH AS IS EXCEPTED FROM THE PROVISIONS OF SECTION 203, AT A HIGHER RATE OF COMPENSATION THAN HE HAD BEEN RECEIVING UNDER HIS REGULAR APPOINTMENT IS NOT TO BE PROHIBITED AS AN ADMINISTRATIVE PROMOTION WITHIN THE MEANING OF SECTION 202 OF SAID ACT.

IN DECISION OF JULY 11, 1933, A-49869, 13 COMP. GEN. 14, AFTER QUOTING SECTION 9 (A) OF THE ACT OF JUNE 16, 1933, 48 STAT. 306, PROVIDING FOR ADMINISTRATIVE ROTATIVE FURLOUGHS "IN CASES IN WHICH THE NUMBER OF OFFICERS AND EMPLOYEES IN ANY PARTICULAR SERVICE IS IN EXCESS OF THE NUMBER NECESSARY FOR THE REQUIREMENTS OF SUCH SERVICE," IT WAS HELD:

THE DECISION OF OCTOBER 19, 1932, 12 COMP. GEN. 403, CITED BY YOU, RELATIVE TO EMPLOYEES ADMINISTRATIVELY FURLOUGHED UNDER SECTION 216 OF THE ECONOMY ACT, IS APPLICABLE, ALSO, TO AUTHORIZE THE TEMPORARY EMPLOYMENT, EITHER IN THE SAME OR ANOTHER DEPARTMENT OR OFFICE OF THE GOVERNMENT OF EMPLOYEES ADMINISTRATIVELY FURLOUGHED UNDER THE TERMS OF SECTION 9 (A) OF THE ACT OF JUNE 16, 1933, SUPRA, HOWEVER, THE RULE IS LIMITED TO EMPLOYEES INVOLUNTARILY FURLOUGHED AND CANNOT BE EXTENDED TO APPLY TO EMPLOYEES ON VOLUNTARY LEAVE OF ABSENCE WITHOUT PAY. IT IS TO BE UNDERSTOOD, OF COURSE, THAT AN EMPLOYEE CANNOT BE GIVEN A PERMANENT OR INDEFINITE APPOINTMENT AND CONTINUE TO HOLD HIS STATUS AS AN ADMINISTRATIVELY FURLOUGHED EMPLOYEE FROM ANOTHER POSITION. 12 COMP. GEN. 76.

IT IS NOT CLEAR FROM YOUR SUBMISSION WHETHER THE INTERSTATE COMMERCE COMMISSION BY THE ORDER OF JULY 11, 1933, GRANTED VOLUNTARY LEAVE OF ABSENCE WITHOUT PAY OR INVOLUNTARY ADMINISTRATIVE FURLOUGH UNDER SECTION 9 (A) OF THE ACT OF JUNE 16, 1933, SUPRA. IF THE FORMER, THE EMPLOYEES IN QUESTION CANNOT RETAIN THEIR POSITIONS WITH THE INTERSTATE COMMERCE COMMISSION AND RECEIVE FOR SERVICES UNDER THE FEDERAL COORDINATOR OF TRANSPORTATION COMPENSATION AT A RATE IN EXCESS OF THE RATE THEY HAD BEEN RECEIVING UNDER THE INTERSTATE COMMERCE COMMISSION.

IF THE EMPLOYEES HAVE BEEN GRANTED INVOLUNTARY ADMINISTRATIVE FURLOUGH AND HAVE ACCEPTED TEMPORARY POSITIONS WITH THE FEDERAL COORDINATOR OF TRANSPORTATION IN POSITIONS THE DUTIES OF WHICH ARE ESSENTIALLY DIFFERENT FROM THE DUTIES OF THE POSITIONS UNDER THE INTERSTATE COMMERCE COMMISSION, AS IS UNDERSTOOD FROM THE FACTS SUBMITTED BY YOU, THEIR COMPENSATION IN THE TEMPORARY POSITIONS WITH THE FEDERAL COORDINATOR OF TRANSPORTATION IS NOT SUBJECT TO THE 15 PERCENT REDUCTION.