A-50957, SEPTEMBER 28, 1933, 13 COMP. GEN. 89

A-50957: Sep 28, 1933

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THE MERE FACT THAT SOME OF THE EMPLOYEES OF A GIVEN "ORGANIZATION UNIT" ARE PAID FROM FUNDS TRANSFERRED FROM ANOTHER DEPARTMENT. WHEREAS OTHER EMPLOYEES OF THE SAME "ORGANIZATION UNIT" ARE PAID UNDER A REGULAR APPROPRIATION OF THE DEPARTMENT TO WHICH THE OTHER FUNDS HAVE BEEN TRANSFERRED. EMPLOYEES IN AN OFFICE OR SERVICE ARE NOT TO BE REGARDED AS "COMPETING" FOR THE PURPOSE OF SEPARATION UNLESS THEY ARE NOT ONLY ALLOCATED TO THE SAME CLASSIFICATION GRADE AND PAID FROM THE SAME APPROPRIATION UNIT BUT ALSO ARE IN THE SAME . A QUESTION HAS ARISEN AS TO THE INCLUSION THEREIN OF CERTAIN EMPLOYEES OF THAT OFFICE WHO ARE PAID FROM WAR DEPARTMENT FUNDS AS OUTLINED IN THE ATTACHED MEMORANDUM DATED AUGUST 23.

A-50957, SEPTEMBER 28, 1933, 13 COMP. GEN. 89

SEPARATION OF EMPLOYEES FROM THE SERVICE - APPROPRIATION AND ORGANIZATION UNITS IN THE APPLICATION OF CIRCULAR 20 ISSUED JUNE 10, 1925, BY THE PERSONNEL SEPARATION OF EMPLOYEES FROM THE SERVICE, THE MERE FACT THAT SOME OF THE EMPLOYEES OF A GIVEN "ORGANIZATION UNIT" ARE PAID FROM FUNDS TRANSFERRED FROM ANOTHER DEPARTMENT, WHEREAS OTHER EMPLOYEES OF THE SAME "ORGANIZATION UNIT" ARE PAID UNDER A REGULAR APPROPRIATION OF THE DEPARTMENT TO WHICH THE OTHER FUNDS HAVE BEEN TRANSFERRED, WOULD NOT PRECLUDE REGARDING ALL OF THE EMPLOYEES AS "PAID FROM THE SAME APPROPRIATION UNIT.' HOWEVER, UNDER THE PROVISIONS OF SAID CIRCULAR, EMPLOYEES IN AN OFFICE OR SERVICE ARE NOT TO BE REGARDED AS "COMPETING" FOR THE PURPOSE OF SEPARATION UNLESS THEY ARE NOT ONLY ALLOCATED TO THE SAME CLASSIFICATION GRADE AND PAID FROM THE SAME APPROPRIATION UNIT BUT ALSO ARE IN THE SAME ,ORGANIZATION UNIT.'

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT OF THE UNITED STATES CIVIL SERVICE COMMISSION, SEPTEMBER 28, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 7, 1933, AS FOLLOWS:

IN CONNECTION WITH THE CONSIDERATION OF SEPARATION LISTS FROM THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE, A QUESTION HAS ARISEN AS TO THE INCLUSION THEREIN OF CERTAIN EMPLOYEES OF THAT OFFICE WHO ARE PAID FROM WAR DEPARTMENT FUNDS AS OUTLINED IN THE ATTACHED MEMORANDUM DATED AUGUST 23, 1933, OF THE CHIEF OF THE APPOINTMENT DIVISION, DEPARTMENT OF COMMERCE. IT IS THE UNDERSTANDING OF THIS OFFICE THAT THE EMPLOYEES ASSIGNED TO THIS WORK WERE NOT HIRED FOR THIS SPECIFIC PURPOSE BUT WERE SELECTED FROM REGULAR EMPLOYEES OF THE OFFICE, AND THAT THEY ARE INCLUDED IN THE YEARLY EFFICIENCY REPORT COVERING ALL EMPLOYEES OF THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE.

PARAGRAPH 2, PERSONNEL CLASSIFICATION BOARD CIRCULAR NO. 20, DATED JUNE 10, 1925, PROVIDES AS FOLLOWS:

THE HEAD OF EACH DEPARTMENT OR ESTABLISHMENT, WHERE ANY REDUCTION OF THE WORKING FORCE IS CONTEMPLATED, WILL COMPILE A LIST WITH THE SEPARATION RATING OF ALL COMPETING EMPLOYEES IN HIS DEPARTMENT OR ESTABLISHMENT WHO ARE ALLOCATED TO CLASSIFICATION GRADES IN WHICH DEMOTIONS OR SEPARATIONS ARE TO BE MADE. COMPETING EMPLOYEES ARE ALL THOSE PERSONS IN AN ORGANIZATION UNIT WHOSE POSITIONS ARE ALLOCATED TO THE SAME CLASSIFICATION GRADE AND WHO ARE PAID FROM THE SAME APPROPRIATION UNIT OR FOR OTHER REASONS HAVE THE SAME OPPORTUNITIES FOR PROMOTION AND ARE SUBJECT TO THE SAME HAZARD IN CONNECTION WITH POSSIBLE REDUCTIONS IN FORCE. THE APPROPRIATION UNIT WILL BE CONSIDERED THE SAME AS THE ONE USED IN CONSTRUING THE PROVISIONS OF THE "AVERAGE RESTRICTION CLAUSE" APPEARING IN EACH APPROPRIATION ACT.

ATTENTION IS ALSO INVITED TO YOUR DECISIONS REPORTED IN 4 COMP. GEN. 678 AND 8 COMP. GEN. 258.

IN VIEW OF THE FOREGOING, THE COMMISSION WOULD BE PLEASED TO BE ADVISED WHETHER OR NOT THE EMPLOYEES IN QUESTION ARE IN THE SAME APPROPRIATION UNIT AS THE OTHER EMPLOYEES OF THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE.

THE MEMORANDUM INCLOSED WITH YOUR LETTER IS AS FOLLOWS:

SECTION 2 OF THE ACT APPROVED JULY 3, 1930 (46 STAT. 918), ENTITLED "AN ACT AUTHORIZING THE CONSTRUCTION, REPAIR, AND CONSERVATION OF CERTAIN PUBLIC WORKS ON RIVERS AND HARBORS, AND FOR OTHER PURPOSES," AUTHORIZES AND DIRECTS THE SECRETARY OF WAR TO CAUSE PRELIMINARY EXAMINATIONS AND SURVEYS TO BE MADE AT CERTAIN LOCALITIES NAMED THEREIN, ATLANTIC INTRACOASTAL WATERWAY WITH THE PROPOSED GULF INTRACOASTAL WATERWAY BY THE MOST PRACTICABLE ROUTE" AND (PAGE 941) "TRINITY RIVER, TEXAS.'

BY AGREEMENT WITH THE WAR DEPARTMENT, THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE UNDERTOOK TO COOPERATE WITH THE FORMER TO THE EXTENT OF DEVELOPING POTENTIAL TRAFFIC AND OTHER ECONOMIC DATA IN CONNECTION WITH THE EXAMINATION OF THE TWO PROJECTS MENTIONED ABOVE, THE WORK TO BE UNDER THE GENERAL DIRECTION OF DESIGNATED ARMY OFFICERS. THE WAR DEPARTMENT EFFECTED THE TRANSFER ON THE BOOKS OF THE TREASURY OF NECESSARY FUNDS TO THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE. UPON COMPLETION OF THESE ARRANGEMENTS, CERTAIN BUREAU PERSONNEL, INCLUDING MCNICHOLS, MOSS, TRAVERS, VAUGHAN, WILLIAMS, AND STERNS, WERE ASSIGNED TO THE WORK AND THEIR COMPENSATION PAID FROM WAR DEPARTMENT FUNDS ALLOTTED FOR THE PURPOSE, WHICH WERE SET UP AS A SEPARATE APPROPRIATION UNIT.

PARAGRAPH 2 OF P.C.B. CIRCULAR NO. 20 PROVIDES---

THE HEAD OF EACH DEPARTMENT OR ESTABLISHMENT, WHERE ANY REDUCTION OF THE WORKING FORCE IS CONTEMPLATED, WILL COMPILE A LIST SHOWING THE SEPARATION RATING OF ALL COMPETING EMPLOYEES IN HIS DEPARTMENT OR ESTABLISHMENT WHO ARE ALLOCATED TO CLASSIFICATION GRADES IN WHICH THOSE PERSONS IN AN ORGANIZATION UNIT WHOSE POSITIONS ARE ALLOCATED TO THE SAME CLASSIFICATION GRADE AND WHO ARE PAID FROM THE SAME APPROPRIATION UNIT OR FOR OTHER REASONS HAVE THE SAME OPPORTUNITIES FOR PROMOTION AND ARE SUBJECT TO THE SAME HAZARD IN CONNECTION WITH POSSIBLE REDUCTIONS IN FORCE. THE APPROPRIATION UNIT WILL BE CONSIDERED TO BE THE SAME AS THE ONE USED IN CONSTRUING THE PROVISIONS OF THE "AVERAGE RESTRICTION CLAUSE" APPEARING IN EACH APPROPRIATION ACT.

THE COMPTROLLER GENERAL HAS HELD (3 C.G. 1001) THAT IF A BUREAU OR OFFICE IS OPERATING UNDER TWO OR MORE APPROPRIATIONS, THE UNIT IS THE APPROPRIATION. IT IS FURTHER HELD IN 4 C.G. 741 THAT THE PHRASE "BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT" IN THE AVERAGE PROVISION CONTEMPLATES PRIMARILY A SEPARATE APPROPRIATION HEADING OR ITEM SPECIFICALLY PROVIDED IN THE APPROPRIATION ACT, ETC. IT APPEARS FROM 4 C.G. 817 THAT TWO OR MORE BUREAU APPROPRIATIONS PROVIDING FOR DISSIMILAR AND UNRELATED ACTIVITIES MAY BE CONSIDERED AS SEPARATE APPROPRIATION UNITS.

THE MONEY TRANSFERRED TO THE BUREAU WAS APPROPRIATED TO THE WAR DEPARTMENT UNDER A TITLE ALTOGETHER DISTINCT FROM THE BUREAU AND FOR AN ACTIVITY WHOLLY UNRELATED TO THE PURPOSE OF THE BUREAU'S OWN APPROPRIATIONS. THAT BEING THE CASE, IT IS BELIEVED THAT THE CITED DECISIONS OF THE COMPTROLLER GENERAL FURNISH AMPLE AUTHORITY FOR REGARDING THE WAR DEPARTMENT FUNDS ALLOTTED TO THE BUREAU AS A SEPARATE APPROPRIATION UNIT. SUBMISSION ARE TO BE MADE ARE SUCH THAT THE PROVISIONS OF THE CIRCULAR QUOTED ARE APPLICABLE, THE MERE FACT THAT SOME OF THE EMPLOYEES OF A GIVEN ,ORGANIZATION UNIT" ARE PAID FROM FUNDS TRANSFERRED FROM THE WAR DEPARTMENT, WHEREAS OTHER EMPLOYEES OF THE SAME "ORGANIZATION UNIT" ARE PAID UNDER A REGULAR APPROPRIATION FOR THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE WOULD NOT PRECLUDE REGARDING ALL OF SAID EMPLOYEES AS "PAID FROM THE SAME APPROPRIATION UNIT.' THE DECISIONS CITED IN YOUR LETTER WOULD SEEM TO BE TO THIS EFFECT. IT IS TO BE NOTED, HOWEVER, THAT UNDER THE PROVISIONS OF THE CIRCULAR QUOTED IN YOUR SUBMISSION, UNLESS THEY ARE NOT ONLY ALLOCATED TO THE SAME CLASSIFICATION GRADE AND PAID FROM THE SAME APPROPRIATION UNIT BUT ALSO ARE IN THE SAME "ORGANIZATION UNIT.'