A-50707, AUGUST 30, 1933, 13 COMP. GEN. 63

A-50707: Aug 30, 1933

Additional Materials:

Contact:

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

 

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

THE COMPENSATION OF WHICH IS PAID OUT OF FUNDS ALLOTTED UNDER THE AUTHORITY OF THE NATIONAL INDUSTRIAL RECOVERY ACT. THERE IS NO LEGAL OBJECTION TO ADMINISTRATIVE ACTION FIXING A TOTAL OR BASIC SALARY RATE AND DEDUCTING THEREFROM 15 PERCENT IN THE CASE OF ALL OF THE EMPLOYEES EVEN THOUGH THE DEDUCTION WOULD NOT BE REQUIRED AS A MATTER OF LAW AS TO NEW EMPLOYEES OR EXISTING EMPLOYEES WHO WERE ASSIGNED TO DIFFERENT DUTIES THAN PREVIOUSLY PERFORMED. DESIRES TO UTILIZE THE SERVICES OF CERTAIN EMPLOYEES WHO ARE NOW ENGAGED IN THE REGULAR WORK OF THE COMMISSION. TO COVER THE SALARIES AND GENERAL EXPENSES OF THIS COMMISSION IS NOT SUFFICIENT TO CARRY FOR THE ENTIRE YEAR THE PRESENT PERSONNEL. (1) THE COMMISSION DESIRES ON ITS OWN MOTION TO PLACE ON INDEFINITE FURLOUGH CERTAIN EMPLOYEES NOW ENGAGED IN THE REGULAR WORK OF THE COMMISSION.

A-50707, AUGUST 30, 1933, 13 COMP. GEN. 63

NATIONAL INDUSTRIAL RECOVERY ACT - ALLOTMENT OF FUNDS - PERSONNEL PAYMENTS EMPLOYEES ADMINISTRATIVELY FURLOUGHED FROM THEIR PERMANENT POSITIONS MAY BE GIVEN TEMPORARY POSITIONS WITH DIFFERENT DUTIES AND RESPONSIBILITIES AND PAID AN INCREASE IN COMPENSATION UNDER THE SAME DEPARTMENT OR OFFICE, THE COMPENSATION OF WHICH IS PAID OUT OF FUNDS ALLOTTED UNDER THE AUTHORITY OF THE NATIONAL INDUSTRIAL RECOVERY ACT, WITHOUT VIOLATING THE TERMS OF SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515, PROHIBITING ADMINISTRATIVE PROMOTIONS. IN MAKING PERSONNEL PAYMENTS FROM FUNDS ALLOTTED TO ESTABLISHED AGENCIES OF THE GOVERNMENT UNDER AUTHORITY OF THE NATIONAL INDUSTRIAL RECOVERY ACT, THERE IS NO LEGAL OBJECTION TO ADMINISTRATIVE ACTION FIXING A TOTAL OR BASIC SALARY RATE AND DEDUCTING THEREFROM 15 PERCENT IN THE CASE OF ALL OF THE EMPLOYEES EVEN THOUGH THE DEDUCTION WOULD NOT BE REQUIRED AS A MATTER OF LAW AS TO NEW EMPLOYEES OR EXISTING EMPLOYEES WHO WERE ASSIGNED TO DIFFERENT DUTIES THAN PREVIOUSLY PERFORMED. THE RETIREMENT STATUS OF TEMPORARY EMPLOYEES PAID OUT OF FUNDS ALLOTTED UNDER AUTHORITY OF THE NATIONAL INDUSTRIAL RECOVERY ACT BOTH DURING AND AFTER THE PERIODS OF SUCH TEMPORARY EMPLOYMENT WOULD BE A MATTER PRIMARILY FOR DETERMINATION BY THE ADMINISTRATOR OF VETERANS' AFFAIRS, BUT RETIREMENT DEDUCTIONS AT THE RATE OF 3 1/2 PERCENT SHOULD BE MADE FROM THE TOTAL OR BASIC SALARY RATE FIXED FOR THE EMPLOYEES DURING THEIR TEMPORARY ASSIGNMENT UNLESS AND UNTIL OTHERWISE DETERMINED BY COMPETENT AUTHORITY.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN OF THE FEDERAL POWER COMMISSION, AUGUST 30, 1933:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 24, 1933, AS FOLLOWS:

THE PRESIDENT, BY EXECUTIVE ORDER NO. 6251, DATED AUGUST 19, 1933, AND PURSUANT TO THE AUTHORITY CONTAINED IN TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT, APPROVED JUNE 16, 1933, HAS DESIGNATED THE FEDERAL POWER COMMISSION AS AN AGENCY TO AID THE FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS IN THE PREPARATION OF THAT PART OF A COMPREHENSIVE PROGRAM OF PUBLIC WORKS PROVIDED FOR IN SECTION 202 OF THE ACT WHICH PERTAINS TO THE DEVELOPMENT OF WATER POWER AND THE TRANSMISSION OF ELECTRICAL ENERGY.

THE PRESIDENT HAS ALSO DELEGATED TO THE COMMISSION, UNDER THE PROVISIONS OF THIS EXECUTIVE ORDER, THE "AUTHORITY TO APPOINT, WITHOUT REGARD TO THE CIVIL SERVICE LAWS, SUCH OFFICERS, EXPERTS, AND EMPLOYEES AS IT MAY FIND NECESSARY TO CARRY OUT ITS FUNCTIONS UNDER THIS ORDER, TO PRESCRIBE THEIR AUTHORITY, DUTIES, RESPONSIBILITIES, AND TENURE AND, WITHOUT REGARD TO THE CLASSIFICATION ACT, 1923, AS AMENDED, TO FIX THEIR COMPENSATION.'

THE COMMISSION, IN CARRYING OUT THE WORK INVOLVED IN THIS PROGRAM, DESIRES TO UTILIZE THE SERVICES OF CERTAIN EMPLOYEES WHO ARE NOW ENGAGED IN THE REGULAR WORK OF THE COMMISSION. THE AMOUNT APPROPRIATED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, APPROVED JUNE 16, 1933, TO COVER THE SALARIES AND GENERAL EXPENSES OF THIS COMMISSION IS NOT SUFFICIENT TO CARRY FOR THE ENTIRE YEAR THE PRESENT PERSONNEL.

(1) THE COMMISSION DESIRES ON ITS OWN MOTION TO PLACE ON INDEFINITE FURLOUGH CERTAIN EMPLOYEES NOW ENGAGED IN THE REGULAR WORK OF THE COMMISSION. THESE EMPLOYEES WOULD THEN BE GIVEN TEMPORARY APPOINTMENTS FOR DUTY UNDER THE RECOVERY ACT PROGRAM, THE NATURE OF WHICH WOULD DIFFER EITHER IN KIND OR DEGREE FROM THEIR PRESENT WORK. ON THE STATEMENT OF FACTS PRESENTED, WOULD THE COMMISSION BE AUTHORIZED TO MAKE SUCH TEMPORARY APPOINTMENTS AT AN INCREASE IN SALARY TO BE BASED ON THE NATURE OF THE WORK PERFORMED?

(2) IN MAKING TEMPORARY APPOINTMENTS FOR THIS RECOVERY ACT WORK, THE COMMISSION PROPOSES TO DETERMINE THE VALUE OF THE SERVICES TO BE RENDERED AND THEN IMPOSE, AS A MATTER OF CONTRACT BETWEEN THE COMMISSION AND ALL EMPLOYEES APPOINTED, A CONDITION THAT SO LONG AS THE REGULAR POSITIONS OF THE COMMISSION ARE SUBJECT TO THE 15 PERCENT, OR OTHER DETERMINED, DEDUCTION UNDER THE ACT OF MARCH 20, 1933, SAID TEMPORARY POSITIONS SHALL BE SUBJECT TO THE SAME CONDITIONS. WOULD THERE BE ANY LEGAL OBJECTION TO THIS PROCEDURE?

(3) IT IS ASSUMED THAT EMPLOYEES ON THE REGULAR WORK OF THE COMMISSION WHO ARE EITHER DETAILED, LOANED, OR ASSIGNED, OR INVOLUNTARILY FURLOUGHED FOR WORK ON THE RECOVERY ACT PROGRAM AND ARE NOW SUBJECT TO THE PROVISIONS OF THE RETIREMENT ACT WOULD CONTINUE TO BE SUBJECT TO THE PROVISIONS OF THAT ACT AND MAY BE RESTORED TO THEIR PRESENT POSITIONS AND SALARIES UPON TERMINATION OF THEIR APPOINTMENT TO SUCH TEMPORARY WORK.

IT WOULD BE APPRECIATED IF PROMPT DECISION MAY BE GIVEN ON THE QUESTIONS PRESENTED, AS THE COMMISSION DESIRES TO MAKE A LIMITED NUMBER OF APPOINTMENTS IMMEDIATELY TO ASSIST IN THE FORMULATION OF A PLAN FOR THIS PROGRAM. A COPY OF THE EXECUTIVE ORDER OF AUGUST 19, 1933, IS INCLOSED.

IN A DECISION OF OCTOBER 19, 1932, 12 COMP. GEN. 403, 404, IT WAS HELD AS FOLLOWS:

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 REGARDED AS AN ADMINISTRATIVE PROMOTION WITHIN THE MEANING OF SECTION 202 OF SAID ACT.

THE PROHIBITION AGAINST ADMINISTRATIVE PROMOTIONS WAS INTENDED TO APPLY TO EMPLOYEES WHO, AT THE TIME, ARE RECEIVING SALARY, THERE BEING NOTHING IN THE STATUTE TO INDICATE A PURPOSE OR INTENT TO PREVENT THE FILLING OF ESSENTIAL TEMPORARY OR SEASONAL POSITIONS BY EMPLOYEES WHO, AT THE TIME, ARE NOT RECEIVING SALARY BUT ARE ON ADMINISTRATIVE OR ENFORCED FURLOUGH WITHOUT PAY. THE SALARY RATE IN SUCH A POSITION NEED HAVE NO RELATION TO THE SALARY RATE PREVIOUSLY RECEIVED BY THE EMPLOYEE IN HIS PERMANENT POSITION FROM WHICH HE HAS BEEN FURLOUGHED.

IN A DECISION OF JULY 11, 1933, A-49869 (13 COMP. GEN. 14), IT WAS HELD THAT:

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).

ALSO, IT WAS HELD IN DECISION OF JULY 29, 1933, A-50115 (13 COMP. GEN. 27), TO THE FEDERAL COORDINATOR OF TRANSPORTATION, THAT:

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.

ACCORDINGLY QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE.

IN ANSWER TO QUESTION (2) IT MAY BE STATED THAT THERE WOULD BE NO LEGAL OBJECTION TO ADMINISTRATIVE ACTION FIXING A TOTAL OR BASIC SALARY RATE AND DEDUCTING THEREFROM 15 PERCENT IN THE CASE OF ALL OF THE EMPLOYEES IN QUESTION, EVEN THOUGH THE DEDUCTION WOULD NOT BE REQUIRED AS A MATTER OF LAW PURSUANT TO THE RULES STATED IN THE QUOTED DECISION.

REFERRING TO QUESTION (3), YOU ARE ADVISED THAT THE QUESTION AS TO THE RETIREMENT STATUS OF THE EMPLOYEES IN QUESTION DURING AND AFTER THE PERIODS OF SUCH TEMPORARY EMPLOYMENT WOULD BE A MATTER PRIMARILY FOR THE DETERMINATION OF THE ADMINISTRATOR OF VETERANS' AFFAIRS IN WHOM HAS BEEN VESTED THE DUTY AND RESPONSIBILITY OF ADMINISTERING THE CIVIL RETIREMENT ACT. RETIREMENT DEDUCTIONS AT THE RATE OF 3 1/2 PERCENT SHOULD BE MADE FROM THE TOTAL OR BASIC SALARY RATE FIXED FOR THE EMPLOYEES DURING THEIR TEMPORARY ASSIGNMENT UNLESS AND UNTIL OTHERWISE DETERMINED BY COMPETENT AUTHORITY.