A-57228, SEPTEMBER 22, 1934, 14 COMP. GEN. 243

A-57228: Sep 22, 1934

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THE SALARY ATTACHED TO WHICH IS PAID FROM EMERGENCY FUNDS ALLOTTED OR APPROPRIATED UNDER AUTHORITY OF SAID STATUTE. LANGE IS THE DIRECTOR OF THE NEW YORK STATE EMPLOYMENT SERVICE. HIS BASIC SALARY IS $6. LESS SUCH DEDUCTIONS AS ARE REQUIRED UNDER STATE LAWS OR REGULATIONS FOR EMPLOYEES WITHIN HIS SALARY GRADE. IS PAID FROM NEW YORK STATE APPROPRIATIONS. LANGE IS ALSO STATE DIRECTOR OF THE NATIONAL REEMPLOYMENT SERVICE. THE NATIONAL REEMPLOYMENT SERVICE IS ORGANIZED FOR THE PURPOSE OF REGISTERING AND CERTIFYING MEN FOR WORK ON PUBLIC WORKS PROJECTS. THE EMPLOYEES OF WHICH ARE PAID FROM FUNDS ALLOCATED BY THE SPECIAL BOARD OF PUBLIC WORKS. WHO IS ALSO DIRECTOR OF THE NATIONAL REEMPLOYMENT SERVICE.

A-57228, SEPTEMBER 22, 1934, 14 COMP. GEN. 243

EMPLOYMENT OF STATE OFFICERS IN FEDERAL EMERGENCY POSITIONS PURSUANT TO THE SPECIFIC TERMS OF SECTION 2 OF THE NATIONAL INDUSTRIAL RECOVERY ACT OF JUNE 16, 1933, 48 STAT. 195, A STATE OFFICER MAY BE EMPLOYED AND PAID IN A FEDERAL EMERGENCY OFFICE OR POSITION, THE SALARY ATTACHED TO WHICH IS PAID FROM EMERGENCY FUNDS ALLOTTED OR APPROPRIATED UNDER AUTHORITY OF SAID STATUTE. A SALARY RATE NOT SPECIFICALLY FIXED IN THE SCHEDULE APPEARING IN EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, FOR A COMPARABLE POSITION MAY BE PAID TO EMERGENCY PERSONNEL ONLY IF SPECIFICALLY AUTHORIZED BY THE PRESIDENT UNDER THE AUTHORITY RESERVED TO HIM BY THE EXECUTIVE ORDER.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, SEPTEMBER 22, 1934:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF AUGUST 13, 1934, AS FOLLOWS:

MR. WILLIAM H. LANGE IS THE DIRECTOR OF THE NEW YORK STATE EMPLOYMENT SERVICE. HIS BASIC SALARY IS $6,000 PER ANNUM, LESS SUCH DEDUCTIONS AS ARE REQUIRED UNDER STATE LAWS OR REGULATIONS FOR EMPLOYEES WITHIN HIS SALARY GRADE, AND IS PAID FROM NEW YORK STATE APPROPRIATIONS.

MR. LANGE IS ALSO STATE DIRECTOR OF THE NATIONAL REEMPLOYMENT SERVICE, WITH A SALARY OF $1 A YEAR. THE NATIONAL REEMPLOYMENT SERVICE IS ORGANIZED FOR THE PURPOSE OF REGISTERING AND CERTIFYING MEN FOR WORK ON PUBLIC WORKS PROJECTS, THE EMPLOYEES OF WHICH ARE PAID FROM FUNDS ALLOCATED BY THE SPECIAL BOARD OF PUBLIC WORKS.

ON JUNE 30, 1934, THE DIRECTOR OF THE U.S. EMPLOYMENT SERVICE, WHO IS ALSO DIRECTOR OF THE NATIONAL REEMPLOYMENT SERVICE, RECOMMENDED TO THE SECRETARY OF LABOR THAT MR. LANGE'S SALARY AS STATE DIRECTOR OF THE NATIONAL REEMPLOYMENT SERVICE BE INCREASED FROM $1 PER ANNUM TO $600 PER ANNUM.

THE REASON GIVEN IN JUSTIFICATION OF THE RECOMMENDED INCREASE IN SALARY IS THAT THE APPLICATION OF A RECENT STATE TAX HAS REDUCED THE NET SALARY RECEIVED BY MR. LANGE BY ABOUT $500, AND IT IS TO MAKE UP THIS REDUCTION THAT THE RECOMMENDATION FOR AN INCREASE IN SALARY AS STATE DIRECTOR OF THE NATIONAL REEMPLOYMENT SERVICE IS MADE.

AFTER CONSIDERING THE FACTS RECITED, WILL YOU PLEASE ADVISE ME WHETHER THIS DEPARTMENT CAN LEGALLY APPROVE THE INCREASE RECOMMENDED?

IT IS UNDERSTOOD THE NATIONAL REEMPLOYMENT SERVICE IS AN ADMINISTRATIVE ORGANIZATION UNDER THE UNITED STATES EMPLOYMENT SERVICE, DEPARTMENT OF LABOR, THE EXPENDITURES FOR WHICH, INCLUDING PERSONAL SERVICES, ARE PAID FROM EMERGENCY FUNDS ALLOTTED FOR THAT PURPOSE. THERE IS NOTED IN THIS CONNECTION EXECUTIVE ORDER NO. 6823, DATED AUGUST 16, 1934, MAKING AN ALLOTMENT FOR THAT PURPOSE FROM FUNDS APPROPRIATED BY THE EMERGENCY APPROPRIATION ACT OF JUNE 19, 1934, 48 STAT. 1055, PROVIDING ADDITIONAL FUNDS IN THE AMOUNT OF $899,675,000 FOR CARRYING OUT THE PURPOSES OF SEVERAL EMERGENCY STATUTES, INCLUDING THE NATIONAL INDUSTRIAL RECOVERY ACT, APPROVED JUNE 16, 1933, 48 STAT. 195, PROVIDING, IN PART, AS FOLLOWS:

SEC. 2. (A) TO EFFECTUATE THE POLICY OF THIS TITLE, THE PRESIDENT IS HEREBY AUTHORIZED TO ESTABLISH SUCH AGENCIES, TO ACCEPT AND UTILIZE SUCH VOLUNTARY AND UNCOMPENSATED SERVICES, TO APPOINT, WITHOUT REGARD TO THE PROVISIONS OF THE CIVIL SERVICE LAW, SUCH OFFICERS AND EMPLOYEES, AND TO UTILIZE SUCH FEDERAL OFFICERS AND EMPLOYEES, AND, WITH THE CONSENT OF THE STATE, SUCH STATE AND LOCAL OFFICERS AND EMPLOYEES, AS HE MAY FIND NECESSARY, TO PRESCRIBE THEIR AUTHORITIES, DUTIES, RESPONSIBILITIES, AND TENURE, AND, WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, TO FIX THE COMPENSATION OF ANY OFFICERS AND EMPLOYEES SO APPOINTED.

(B) THE PRESIDENT MAY DELEGATE ANY OF HIS FUNCTIONS AND POWERS UNDER THIS TITLE TO SUCH OFFICERS, AGENTS, AND EMPLOYEES AS HE MAY DESIGNATE OR APPOINT, AND MAY ESTABLISH AN INDUSTRIAL PLANNING AND RESEARCH AGENCY TO AID IN CARRYING OUT HIS FUNCTIONS UNDER THIS TITLE.

IN VIEW OF THESE SPECIFIC STATUTORY PROVISIONS, IT WOULD APPEAR THAT, AS THE SALARY IS PAID FROM THESE EMERGENCY FUNDS, THE APPOINTMENT OF THE STATE OFFICER AS A FEDERAL OFFICER IS AUTHORIZED NOTWITHSTANDING THE PROVISIONS OF EXECUTIVE ORDER DATED JANUARY 17, 1873. SEE 25 COMP. DEC. 234.

HOWEVER, AS THE SALARY OF THE FEDERAL OFFICE IS PAID FROM EMERGENCY FUNDS, THE RATE IS SUBJECT TO THE TERMS AND CONDITIONS OF EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, REQUIRING CLASSIFICATION OF ALL EMERGENCY POSITIONS EXCEPT THOSE SPECIFICALLY EXEMPTED BY THE EXECUTIVE ORDER ITSELF --- THE EXEMPTIONS NOT INCLUDING THOSE UNDER THE NATIONAL REEMPLOYMENT SERVICE OR THOSE OCCUPIED BY STATE OFFICERS--- OR UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY THE PRESIDENT. SAID EXECUTIVE ORDER SUPERSEDED EXECUTIVE ORDER NO. 6440, DATED NOVEMBER 18, 1933.

THE SALARY RATE OF $1 PER ANNUM FOR THE POSITION IN QUESTION IS MERELY NOMINAL AND DOES NOT NOW PRECLUDE THE PROPER FIXING OF THE SALARY RATE FOR THE POSITION PURSUANT TO THE TERMS OF THE EXECUTIVE ORDER NOTWITHSTANDING THERE WILL RESULT AN INCREASE IN COMPENSATION. HOWEVER, THE RATE OF $600 PER ANNUM IS NOT ONE OF THE RATES PRESCRIBED IN THE EXECUTIVE ORDER SCHEDULE, AND, ACCORDINGLY, MAY NOT BE FIXED ADMINISTRATIVELY FOR THE POSITION. SUCH RATE OR ANY OTHER RATE NOT SPECIFICALLY FIXED IN THE EXECUTIVE ORDER SCHEDULE FOR A COMPARABLE POSITION MAY BE PAID TO THIS OR OTHER EMERGENCY PERSONNEL ONLY IF SPECIFICALLY AUTHORIZED BY THE PRESIDENT. THAT IS TO SAY, IF THE PRESIDENT SHOULD CONCLUDE THAT $600 PER ANNUM OR ANY OTHER RATE LOWER THAN WOULD ORDINARILY BE FIXED ON A FULL- TIME BASIS IS SUFFICIENT FOR A PART-TIME FEDERAL POSITION OCCUPIED BY A STATE OFFICER WHO RECEIVES A SALARY FROM THE STATE, HE HAS RESERVED TO HIMSELF THE AUTHORITY TO FIX SUCH LOWER RATE, BUT IT WOULD BE ONLY IN THE EVENT THE PRESIDENT SHOULD SPECIFICALLY ACT THAT SUCH RATE IS AUTHORIZED TO BE PAID. YOUR QUESTION IS ANSWERED ACCORDINGLY.