A-5114, SEPTEMBER 24, 1924, 4 COMP. GEN. 325

A-5114: Sep 24, 1924

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THE APPOINTMENT TO AND TERMINATION OF WHICH ARE SUBJECT TO THE WILL OF THE HEAD OF AN EXECUTIVE DEPARTMENT. ARE "POSITIONS" WITHIN THE MEANING OF THE CLASSIFICATION ACT OF MARCH 4. IS SUBJECT TO THE CLASSIFICATION ACT OF MARCH 4. THE SALARY ATTACHING THERETO IS THAT FIXED BY THE PERSONNEL CLASSIFICATION BOARD. ARE APPLICABLE TO POSITIONS PAID FROM APPROPRIATIONS ORIGINALLY AUTHORIZED PRIOR TO JULY 1. 1924: I HAVE YOUR LETTER OF SEPTEMBER 10. REQUESTING DECISION WHETHER YOU ARE BOUND BY THE ALLOCATION UNDER THE CLASSIFICATION ACT OF 1923. OR WHETHER YOU ARE AUTHORIZED TO FIX THE SALARY OF SUCH POSITION. THAT SAID FUNDS AND APPROPRIATIONS SHALL CONTINUE TO BE AVAILABLE FOR SAID PURPOSE UNTIL SUCH TIME AS THE SAID SECRETARY SHALL HAVE FULLY EXERCISED THE AUTHORITY HEREIN GRANTED AND PERFORMED AND COMPLETED THE DUTIES HEREBY PROVIDED AND IMPOSED.

A-5114, SEPTEMBER 24, 1924, 4 COMP. GEN. 325

CLASSIFICATION OF CIVILIAN EMPLOYEES - COMMISSIONER OF WAR MINERALS RELIEF, INTERIOR DEPARTMENT OFFICES OR EMPLOYMENTS, THE APPOINTMENT TO AND TERMINATION OF WHICH ARE SUBJECT TO THE WILL OF THE HEAD OF AN EXECUTIVE DEPARTMENT, ARE "POSITIONS" WITHIN THE MEANING OF THE CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1488. THE POSITION OF COMMISSION OF WAR MINERALS RELIEF, INTERIOR DEPARTMENT, HAVING BEEN CREATED AND FILLED IN THE DISCRETION OF THE SECRETARY OF THE INTERIOR UNDER AUTHORITY OF THE ACT OF MARCH 2, 1919, 40 STAT. 1274, IS SUBJECT TO THE CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1488, AND THE SALARY ATTACHING THERETO IS THAT FIXED BY THE PERSONNEL CLASSIFICATION BOARD. THE RATES OF PAY FIXED BY THE CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1488, ARE APPLICABLE TO POSITIONS PAID FROM APPROPRIATIONS ORIGINALLY AUTHORIZED PRIOR TO JULY 1, 1924, BUT CONTINUING AVAILABLE BY LAW FOR PAYMENT OF PERSONAL SERVICES SUBSEQUENT TO THAT DATE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 24, 1924:

I HAVE YOUR LETTER OF SEPTEMBER 10, 1924, REQUESTING DECISION WHETHER YOU ARE BOUND BY THE ALLOCATION UNDER THE CLASSIFICATION ACT OF 1923, MADE BY THE PERSONNEL CLASSIFICATION BOARD OF THE POSITION OF COMMISSIONER OF WAR MINERALS RELIEF, NOW OCCUPIED BY JOHN BRIAR, OR WHETHER YOU ARE AUTHORIZED TO FIX THE SALARY OF SUCH POSITION.

THE ACT OF MARCH 2, 1919, 40 STAT. 1274, AUTHORIZING THE SECRETARY OF THE INTERIOR TO ADJUST LOSSES GROWING OUT OF CERTAIN WAR MINERAL ENTERPRISES, PROVIDED IN PART AS FOLLOWS:

THE SAID SECRETARY SHALL MAKE SUCH ADJUSTMENTS AND PAYMENTS IN EACH CASE AS HE SHALL DETERMINE TO BE JUST AND EQUITABLE; THAT THE DECISION OF SAID SECRETARY SHALL BE CONCLUSIVE AND FINAL, SUBJECT TO THE LIMITATION HEREINAFTER PROVIDED; THAT ALL PAYMENTS AND EXPENSES INCURRED BY SAID SECRETARY, INCLUDING PERSONAL SERVICES, TRAVELING AND SUBSISTENCE EXPENSES, SUPPLIES, POSTAGE, PRINTING, AND ALL OTHER EXPENSES INCIDENT TO THE PROPER PROSECUTION OF HIS WORK, BOTH IN THE DISTRICT OF COLUMBIA AND ELSEWHERE, AS THE SECRETARY OF THE INTERIOR MAY DEEM ESSENTIAL AND PROPER, SHALL BE PAID FROM THE FUNDS APPROPRIATED BY THE SAID ACT OF OCTOBER FIFTH, NINETEEN HUNDRED AND EIGHTEEN, AND THAT SAID FUNDS AND APPROPRIATIONS SHALL CONTINUE TO BE AVAILABLE FOR SAID PURPOSE UNTIL SUCH TIME AS THE SAID SECRETARY SHALL HAVE FULLY EXERCISED THE AUTHORITY HEREIN GRANTED AND PERFORMED AND COMPLETED THE DUTIES HEREBY PROVIDED AND IMPOSED; PROVIDED, HOWEVER, THAT THE PAYMENTS AND DISBURSEMENTS MADE UNDER THE PROVISIONS OF THIS SECTION FOR AND IN CONNECTION WITH THE PAYMENTS AND SETTLEMENTS OF THE CLAIMS HEREIN DESCRIBED, AND THE SAID EXPENSES OF ADMINISTRATION SHALL IN NO EVENT EXCEED THE SUM OF $8,500,000: * * *.

THE ACT OF JUNE 7, 1924, 43 STAT. 634, REPEALED THE LIMITATION ON THE AGGREGATE EXPENDITURE.

YOU STATE THAT PRIOR TO JULY 1, 1924, JOHN BRIAR HELD THE POSITION OF COMMISSIONER OF WAR MINERALS RELIEF CREATED UNDER AUTHORITY OF SAID ACT AND WAS PAID A SALARY AT THE RATE OR $7,500 PER ANNUM. THE PERSONNEL CLASSIFICATION BOARD ASSUMED JURISDICTION AND ALLOCATED THE POSITION IN GRADE 5 OF THE PROFESSIONAL AND SCIENTIFIC SERVICE WITH MAXIMUM COMPENSATION AT THE RATE OF $6,000 PER ANNUM, WHICH RESULTED IN A REDUCTION IN THE SALARY RECEIVED BY COMMISSIONER BRIAR FROM $7,500 PER ANNUM TO $6,000 PER ANNUM.

IN SUPPORT OF THE CONTENTION THAT THE SALARY OF THE COMMISSIONER IS NOT SUBJECT TO THE CLASSIFICATION ACT, IT IS URGED, FIRST, THAT THE POSITION IS NOT ONE UNDER THE INTERIOR DEPARTMENT, BUT MERELY A TEMPORARY POSITION AS ASSISTANT TO THE SECRETARY, AND, SECOND, THAT NO APPROPRIATION FOR THE POSITION WAS MADE FOR THE FISCAL YEAR 1925, SUBSEQUENT TO THE EFFECTIVE DATE OF THE CLASSIFICATION ACT.

THE CLASSIFICATION ACT PROVIDES FOR THE CLASSIFICATION OF POSITIONS, AND THE TERM "POSITION" HAS BEEN DEFINED IN SECTION 2 AS FOLLOWS:

THE TERM "POSITION" MEANS A SPECIFIC CIVILIAN OFFICE OR EMPLOYMENT,WHETHER OCCUPIED OR VACANT, IN A DEPARTMENT OTHER THAN THE FOLLOWING: * * *

THE TERM "DEPARTMENT" IS DEFINED IN THE SAME SECTION AS FOLLOWS:

THE TERM "DEPARTMENT" MEANS AN EXECUTIVE DEPARTMENT OF THE UNITED STATES GOVERNMENT, A GOVERNMENTAL ESTABLISHMENT IN THE EXECUTIVE BRANCH OF THE UNITED STATES GOVERNMENT WHICH IS NOT A PART OF AN EXECUTIVE DEPARTMENT *

THUS THE DEFINITION OF THE TERM "POSITION" IS VERY BROAD, INCLUDING "EMPLOYMENT" AS WELL AS ,OFFICE.' NO REQUIREMENT APPEARS AS TO THE METHOD OF EMPLOYMENT OR APPOINTMENT, OR DURATION OF SERVICE, IN ORDER TO BRING A "CIVILIAN OFFICE OR EMPLOYMENT" WITHIN THE LAW. THAT IS TO SAY, OFFICES OR EMPLOYMENTS, THE APPOINTMENT TO AND TERMINATION OF WHICH, ARE SUBJECT TO THE WILL OF THE HEAD OF AN EXECUTIVE DEPARTMENT UNDER AUTHORITY OF LAW ARE EQUALLY INCLUDED IN THE TERM ,POSITION" AS ARE OFFICES OR EMPLOYMENTS REGULARLY CREATED AND FILLED. THE AUTHORITY OF THE SECRETARY TO APPOINT THE COMMISSIONER WAS BECAUSE OF HIS OFFICIAL POSITION AS SECRETARY OF THE INTERIOR, HEAD OF INTERIOR DEPARTMENT, WHO WAS CHARGED WITH THE DUTIES OF CARRYING OUT THE SO CALLED WAR MINERALS RELIEF ACT, AND, CONSEQUENTLY, ANY EMPLOYMENT OF PERSONAL SERVICES MADE BY HIM IN THE EXECUTION OF THOSE DUTIES MUST BE CONSIDERED AS COMING UNDER THE INTERIOR DEPARTMENT.

SEE ALSO DECISION OF AUGUST 29, 1924, 4 COMP. GEN. 239, AND DECISION OF SEPTEMBER 12, 1924, 4 COMP. GEN. 296, CONSIDERING TEMPORARY POSITIONS.

THE CLASSIFICATION ACT FIXES A SCHEDULE OF RATES OF PAY FOR CIVILIAN OFFICES AND EMPLOYMENTS MADE EFFECTIVE FOR POSITIONS IN THE DISTRICT OF COLUMBIA ON AND AFTER JULY 1, 1924. THOSE RATES ARE DERIVED FROM THE CLASSIFICATION ACT ITSELF, NOT, AS SUGGESTED IN YOUR SUBMISSION, FROM THE ACTS PROVIDING APPROPRIATIONS FOR THE PAYMENT OF SUCH RATES OF COMPENSATION, AND IT IS IMMATERIAL WHETHER PERSONAL SERVICES ARE PAID FROM APPROPRIATIONS ORIGINALLY AUTHORIZED PRIOR TO JULY 1, 1924, CONTINUING AVAILABLE FOR EXPENDITURE SUBSEQUENT TO THAT DATE, OR FROM ANNUAL APPROPRIATIONS MADE EXCLUSIVELY FOR THE FISCAL YEAR 1925.

YOU ARE ADVISED, THEREFORE, THAT THE POSITION OF COMMISSIONER OF WAR MINERALS RELIEF IS SUBJECT TO THE CLASSIFICATION ACT AND THAT THE SALARY ATTACHING THERETO IS THAT FIXED IN ACCORDANCE WITH SAID ACT UNDER THE ALLOCATION MADE BY THE PERSONNEL CLASSIFICATION BOARD.