A-58273, NOVEMBER 1, 1934, 14 COMP. GEN. 345

A-58273: Nov 1, 1934

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WHERE A DISCRETION IS VESTED BY STATUTE IN THE HEAD OF A DEPARTMENT OR SERVICE. AS THE APPOINTMENT OF DEPARTMENTAL EMPLOYEES IS REQUIRED BY THE HEAD OF THE INDEPENDENT ESTABLISHMENT. OATHS OF OFFICE ARE REQUIRED OF ALL DEPARTMENTAL EMPLOYEES UPON ALL CHANGES IN POSITIONS. THE REQUIREMENT FOR OATHS OF OFFICE BY FIELD EMPLOYEES IS A MATTER TO BE CONTROLLED BY ADMINISTRATIVE REGULATION. AS FOLLOWS: I HAVE RECEIVED YOUR LETTER OF OCTOBER 2. THE ACTION TAKEN BY THE ADMINISTRATIVE ASSISTANT IN THESE CASES WAS IN ACCORDANCE WITH THE NOTICE CONTAINED IN MY LETTER TO YOU OF NOVEMBER 25. AMONG WHICH WAS THE APPROVAL OF REQUESTS FOR ALLOCATIONS. THIS DELEGATION OF AUTHORITY WAS MADE UNDER THE PROVISIONS OF PARAGRAPH 12 OF EXECUTIVE ORDER NO. 6084.

A-58273, NOVEMBER 1, 1934, 14 COMP. GEN. 345

APPOINTMENTS - FARM CREDIT ADMINISTRATION - DELEGATION OF AUTHORITY - OATHS THE AUTHORIZATION GIVEN THE PRESIDENT TO REORGANIZE THE GOVERNMENT DEPARTMENTS AND SERVICES DID NOT AUTHORIZE GRANTING TO A REORGANIZED ESTABLISHMENT OR TO THE HEAD THEREOF ANY AUTHORITY IN EXCESS OF THAT PREVIOUSLY EXERCISED BY THE SERVICES TRANSFERRED THERETO OR THEIR RESPECTIVE HEADS. WHERE A DISCRETION IS VESTED BY STATUTE IN THE HEAD OF A DEPARTMENT OR SERVICE, SAID DISCRETION MAY NOT BE DELEGATED TO OR EXERCISED BY ANY OTHER OFFICER OR EMPLOYEE EXCEPT SUCH A ONE AS MAY BE SPECIFICALLY AUTHORIZED BY STATUTE TO ACT IN THE PLACE OF THE HEAD, AS FOR INSTANCE, AN ASSISTANT SECRETARY OF A DEPARTMENT. UNDER THE TERMS OF SECTION 169, REVISED STATUTES, THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION MAY NOT DELEGATE TO A SUBORDINATE THE POWER OF APPOINTMENT OF DEPARTMENTAL EMPLOYEES, BUT UNDER THE TERMS OF SAID REVISED STATUTES AS AMENDED BY THE ACT OF JUNE 26, 1930 (46 STAT. 817), THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION MAY DELEGATE TO A SUBORDINATE THE POWER OF APPOINTMENT OF ALL FIELD EMPLOYEES. CONSEQUENTLY, AS THE APPOINTMENT OF DEPARTMENTAL EMPLOYEES IS REQUIRED BY THE HEAD OF THE INDEPENDENT ESTABLISHMENT, OATHS OF OFFICE ARE REQUIRED OF ALL DEPARTMENTAL EMPLOYEES UPON ALL CHANGES IN POSITIONS, BUT AS THE APPOINTMENT OF FIELD EMPLOYEES MAY BE MADE BY A SUBORDINATE, THE REQUIREMENT FOR OATHS OF OFFICE BY FIELD EMPLOYEES IS A MATTER TO BE CONTROLLED BY ADMINISTRATIVE REGULATION.

COMPTROLLER GENERAL MCCARL TO THE GOVERNOR, FARM CREDIT ADMINISTRATION, NOVEMBER 1, 1934:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF OCTOBER 17, 1934, AS FOLLOWS:

I HAVE RECEIVED YOUR LETTER OF OCTOBER 2, 1934 (A-56298, A-50400), RELATIVE TO THE REFUSAL OF YOUR AUDIT DIVISION TO CERTIFY FOR PAYMENT COMPENSATION CLAIMED BY PAUL F. BRODERICK, VISE CLERK, $1,620.00 A YEAR, AND RUTH D. WHITE, JUNIOR CLERK, $1,440.00 A YEAR, BOTH EMPLOYEES OF THE EMERGENCY CROP AND FEED LOAN OFFICE, WASHINGTON, D.C., FROM MAY 10 TO 14, 1934, INCLUSIVE, THE APPOINTMENT OF THESE EMPLOYEES HAVING BEEN APPROVED BY THE ADMINISTRATIVE ASSISTANT OF THE FARM CREDIT ADMINISTRATION ON MAY 10.

THE ACTION TAKEN BY THE ADMINISTRATIVE ASSISTANT IN THESE CASES WAS IN ACCORDANCE WITH THE NOTICE CONTAINED IN MY LETTER TO YOU OF NOVEMBER 25, 1933, A COPY ATTACHED, ADVISING YOU OF THE CREATION OF THE POSITION OF ADMINISTRATIVE ASSISTANT AND OF THE FACT THAT FORMAL AUTHORITY HAD BEEN GIVEN TO THE OCCUPANT OF THAT POSITION, BY ME, TO PERFORM CERTAIN DUTIES, AMONG WHICH WAS THE APPROVAL OF REQUESTS FOR ALLOCATIONS, APPOINTMENTS, TERMINATION OF APPOINTMENTS, AND OTHER PERSONNEL PAPERS. THIS DELEGATION OF AUTHORITY WAS MADE UNDER THE PROVISIONS OF PARAGRAPH 12 OF EXECUTIVE ORDER NO. 6084, DATED MARCH 27, 1933, CREATING THE FARM CREDIT ADMINISTRATION. AS STATED IN MY LETTER TO YOU OF SEPTEMBER 1, 1934, THESE PARTICULAR DUTIES WERE DELEGATED IN THE BELIEF THAT SECTION 12 OF THE EXECUTIVE ORDER ISSUED UNDER SECTIONS 401 TO 403, TITLE IV, PART 2 OF THE LEGISLATIVE APPROPRIATION ACT FOR 1933, AS AMENDED BY THE ACT OF MARCH 3, 1933, HAD THE SAME LEGAL EFFECT AS THOUGH ITS PROVISIONS HAD ORIGINATED IN THE CONGRESS AND HAD BECOME LAW BY SUBSEQUENT APPROVAL OF THE PRESIDENT. THIS INTERPRETATION OF SECTION 12 OF THE EXECUTIVE ORDER WAS IN ACCORDANCE WITH ITS CLEAR INTENT, NAMELY, TO GIVE TO THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION THE BROADEST AUTHORITY TO DELEGATE ANY DUTIES IMPOSED UPON HIM, WITHOUT EXCEPTION. YOUR CONCURRENCE IN THIS INTERPRETATION APPEARED TO BE CONFIRMED BY THE NONRECEIPT OF ANY NOTICE OF EXCEPTION TO MY LETTER TO YOU OF NOVEMBER 25, 1933, UNTIL THE RECENT FINAL DETERMINATION CONTAINED IN YOUR LETTER OF OCTOBER 2.

YOUR LETTER OF AUGUST 19, 1933 (A-50400), NOTIFIED THIS OFFICE THAT AUTHORIZATIONS FOR THE PAYMENT OF TRAVEL EXPENSE UPON CHANGE OF OFFICIAL STATION MUST BE SIGNED BY THE GOVERNOR, AND THAT THE AUTHORITY TO APPROVE SUCH PAYMENTS COULD NOT BE DELEGATED TO A SUBORDINATE BECAUSE THERE WAS INVOLVED THE EXERCISE OF A DISCRETION VESTED IN THE HEAD OF THE FARM CREDIT ADMINISTRATION BY THE ACT OF MARCH 3, 1933, WHICH BY ITS TERMS GRANTED THIS GENERAL AUTHORITY TO THE HEADS OF DEPARTMENTS OR ESTABLISHMENTS. THE FARM CREDIT ADMINISTRATION NOTED PARTICULARLY THE FOLLOWING PARAGRAPH OF THIS LETTER:

"THERE IS NOTHING IN THIS PROVISION, OR OTHERWISE IN THE PROVISIONS OF THE ECONOMY ACT RELATING TO REORGANIZATION, WHICH AUTHORIZES THE PRESIDENT TO VEST IN THE HEAD OF A NEW AGENCY THE POWER TO DELEGATE TO A SUBORDINATE A DISCRETION VESTED IN THE HEAD OF THE AGENCY BY VIRTUE OF THE PROVISIONS OF A GENERAL STATUTE APPLICABLE TO THE HEADS OF ALL DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT.'

THIS OFFICE DID NOT UNDERSTAND THAT YOUR DECISION OF AUGUST 19, 1933, WOULD ALSO APPLY TO PROHIBIT THE DELEGATION OF THE POWER TO MAKE APPOINTMENTS BECAUSE IT SEEMED CLEAR THIS POWER WAS NOT VESTED IN THE GOVERNOR BY ANY GENERAL STATUTE. THE POWER TO APPOINT GIVEN TO THE FEDERAL FARM BOARD BY SECTION 4 OF THE ACT OF JUNE 15, 1929 (AGRICULTURAL MARKETING ACT), WAS TRANSFERRED TO THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION BY PARAGRAPHS 2 AND 3 OF EXECUTIVE ORDER NO. 6084. IN THIS CONNECTION IT SHOULD BE NOTED THAT BY THE TERMS OF THE EXECUTIVE ORDER THE NAME OF THE FEDERAL FARM BOARD WAS CHANGED TO THE FARM CREDIT ADMINISTRATION, AND THAT THE TITLE OF ,CHAIRMAN OF THE FEDERAL FARM BOARD" WAS CHANGED TO "GOVERNOR OF THE FARM CREDIT ADMINISTRATION.'

AS STATED IN MY LETTER TO YOU DATED SEPTEMBER 1, 1934, AND IN THE SECOND PARAGRAPH OF THIS LETTER, IT SEEMED CLEAR THAT ALL THE PROVISIONS OF THE EXECUTIVE ORDER HAVE THE SAME STATUS, AS FAR AS SPECIFIC LEGISLATIVE APPROVAL IS CONCERNED, AS THEY WOULD HAVE HAD IF THEY HAD ORIGINATED WITH THE CONGRESS AND HAD BECOME LAW WITH THE SUBSEQUENT APPROVAL OF THE PRESIDENT. IT SEEMED CLEAR, THEREFORE, THAT SECTION 12 OF THE ORDER, GRANTING TO THE GOVERNOR THE POWER TO DELEGATE ,ANY AND ALL" DUTIES VESTED IN HIM, GAVE SPECIFIC SANCTION TO THE DELEGATION OF THE POWER TO APPOINT GIVEN TO HIM BY SPECIFIC RATHER THAN BY GENERAL STATUTE.

IN VIEW OF THE FOREGOING, YOUR LETTER OF AUGUST 9, 1934, REFERRING TO SECTION 169 OF THE REVISED STATUTES AS THE SOURCE OF THE GOVERNOR'S POWER TO APPOINT, WAS MOST UNEXPECTED, PARTICULARLY IN VIEW OF THE FACT THAT THE UNITED STATES SUPREME COURT IN BURNAP V. U.S. (252 U.S. 512) DEFINED THE TERM "HEAD OF A DEPARTMENT," AS USED IN THAT SECTION, TO MEAN THE SECRETARY IN CHARGE OF A GREAT DIVISION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT, LIKE THE STATE, TREASURY, AND WAR, WHO IS A MEMBER OF THE CABINET, AND STATED SPECIFICALLY THAT THE TERM DOES NOT INCLUDE HEADS OF BUREAUS OR LESSER DIVISIONS.

IMMEDIATE STEPS ARE BEING TAKEN TO HAVE ALL APPOINTMENTS WHICH THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION IS AUTHORIZED TO MAKE, IN THE WASHINGTON OFFICE AND IN THE FIELD OFFICES ENGAGED IN EMERGENCY CROP, FEED, AND DROUGHT-LOAN WORK, MADE BY THE GOVERNOR OR, IN THE EVENT THAT HE IS ABSENT FROM HIS OFFICE ON ACCOUNT OF ILLNESS OR OTHER CAUSE, BY THE PERSON SERVING AS ACTING GOVERNOR.

AS STATED HEREIN, IMMEDIATE NOTICE OF THE DELEGATION OF AUTHORITY TO THE ADMINISTRATIVE ASSISTANT TO APPROVE APPOINTMENTS WAS GIVEN TO THE GENERAL ACCOUNTING OFFICE, WITH THE EXPECTATION THAT IN THE EVENT EXCEPTION THERETO WAS TAKEN, ADVICE THEREOF WOULD BE COMMUNICATED TO THE FARM CREDIT ADMINISTRATION IN ORDER THAT STEPS COULD BE TAKEN TO CONFORM TO YOUR REQUIREMENTS. IN THE ABSENCE OF SUCH NOTIFICATION OF A DIFFERENT VIEWPOINT, UNTIL YOUR CONFIRMATION OF THE EXCEPTION TAKEN BY YOUR AUDIT DIVISION IN THE CASES OF MR. BRODERICK AND MISS WHITE, IT IS REQUESTED THAT PROPER STEPS BE TAKEN TO APPROVE THE ACTIONS OF THE ADMINISTRATIVE ASSISTANT PRIOR TO THE DATE OF THIS LETTER. FOR THAT PURPOSE, THIS LETTER MAY BE TREATED AS MY FORMAL CONFIRMATION OF ALL SUCH ACTIONS.

IN YOUR DECISION OF AUGUST 16, 1926 (6 COMP. GEN. 112), IDENTIFYING THE APPOINTED OFFICERS AND EMPLOYEES OF THE UNITED STATES WHO ARE REQUIRED TO TAKE OATHS OF OFFICE, YOU DETERMINED THAT THIS REQUIREMENT IS CONFINED TO OFFICERS OF THE UNITED STATES IN THE CONSTITUTIONAL SENSE; NAMELY, OFFICERS WHOSE APPOINTMENT IS VESTED BY LAW IN THE PRESIDENT OF THE UNITED STATES, THE COURTS OF LAW, OR THE HEADS OF DEPARTMENTS, AND HELD THAT CERTAIN ADDITIONAL EMPLOYEES OF THE MIXED CLAIMS COMMISSION, UNITED STATES AND MEXICO, ATTACHED TO THE AGENCY OF THE UNITED STATES (AS DISTINGUISHED FROM JOINT EMPLOYEES OF THE COMMISSION), WHOSE APPOINTMENTS WERE NOT REQUIRED TO BE MADE BY THE PRESIDENT, THE COURTS OF LAW, OR THE HEAD OF A DEPARTMENT, WERE NOT REQUIRED TO TAKE THE OATH OF OFFICE, APPARENTLY CONSTRUING THE TERM "DEPARTMENT" TO MEAN ONLY THE TEN PRINCIPAL DEPARTMENTS OF THE EXECUTIVE BRANCH OF THE GOVERNMENT.

ACCORDINGLY YOUR DECISION ON THE FOLLOWING QUESTION WILL BE APPRECIATED:

ARE PERSONS APPOINTED BY THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION REQUIRED TO TAKE THE OATH PRESCRIBED BY SECTION 1757, REVISED STATUTES, AND SECTION 2 OF THE ACT OF MAY 13, 1884 (23 STAT. 22) IN THE SAME MANNER AS PERSONS APPOINTED BY THE HEADS OF DEPARTMENTS, OR MAY THE GOVERNOR, AS THE HEAD OF AN INDEPENDENT ESTABLISHMENT, IMPOSE SUCH REQUIREMENTS AS HE SEES FIT, SIMILAR, FOR EXAMPLE, TO THOSE PERMITTED BY SECTION 3 OF THE ACT OF DECEMBER 11, 1926 (44 STAT. 919), IN THE CASE OF EMPLOYEES OF THE VETERANS' BUREAU (NOW VETERANS' ADMINISTRATION/?

IT IS UNDERSTOOD YOUR SUBMISSION REQUESTS (1) RECONSIDERATION OF THE DECISIONS OF AUGUST 9 AND OCTOBER 2, 1934, A-56298, HOLDING, IN EFFECT, THAT THERE IS NO AUTHORITY VESTED IN THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION BY THE TERMS OF EXECUTIVE ORDER NO. 6084, DATED MARCH 27, 1933, CREATING THE FARM CREDIT ADMINISTRATION, TO DELEGATE TO A SUBORDINATE THE POWER TO MAKE APPOINTMENTS VESTED BY LAW IN HIM AS THE HEAD OF AN INDEPENDENT ESTABLISHMENT; (2) IF THE DECISIONS ARE AFFIRMED, THAT THE APPOINTMENTS MADE BY THE ADMINISTRATIVE ASSISTANT PRIOR TO THE DATE OF YOUR LETTER BE REGARDED AS A PROPER BASIS FOR COMPENSATION, THE APPOINTMENTS NOW HAVING BEEN CONFIRMED BY YOU; AND (3) THE QUESTION CONTAINED IN YOUR CONCLUDING PARAGRAPH REGARDING THE TAKING OF OATHS OF OFFICE BY THE PERSONNEL OF THE FARM CREDIT ADMINISTRATION.

SECTIONS 401, 402, AND 403 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1517, 1518, PROVIDE AS OLLOWS:

SEC. 401. THE CONGRESS HEREBY DECLARES THAT A SERIOUS EMERGENCY EXISTS BY REASON OF THE GENERAL ECONOMIC DEPRESSION; THAT IT IS IMPERATIVE TO REDUCE DRASTICALLY GOVERNMENTAL XPENDITURES; AND THAT SUCH REDUCTION MAY BE ACCOMPLISHED IN GREAT MEASURE BY PROCEEDING IMMEDIATELY UNDER THE PROVISIONS OF THIS TITLE.

ACCORDINGLY, THE PRESIDENT SHALL INVESTIGATE THE PRESENT ORGANIZATION OF ALL EXECUTIVE AND ADMINISTRATIVE AGENCIES OF THE GOVERNMENT AND SHALL DETERMINE WHAT CHANGES THEREIN ARE NECESSARY TO ACCOMPLISH THE FOLLOWING PURPOSES:

(A) TO REDUCE EXPENDITURES TO THE FULLEST EXTENT CONSISTENT WITH THE EFFICIENT OPERATION OF THE GOVERNMENT;

(B) TO INCREASE THE EFFICIENCY OF THE OPERATIONS OF THE GOVERNMENT TO THE FULLEST EXTENT PRACTICABLE WITHIN THE REVENUES;

(C) TO GROUP, COORDINATE, AND CONSOLIDATE EXECUTIVE AND ADMINISTRATIVE AGENCIES OF THE GOVERNMENT, AS NEARLY AS MAY BE, ACCORDING TO MAJOR PURPOSES;

(D) TO REDUCE THE NUMBER OF SUCH AGENCIES BY CONSOLIDATING THOSE HAVING SIMILAR FUNCTIONS UNDER A SINGLE HEAD, AND BY ABOLISHING SUCH AGENCIES AND/OR SUCH FUNCTIONS THEREOF AS MAY NOT BE NECESSARY FOR THE EFFICIENT CONDUCT OF THE GOVERNMENT;

(E) TO ELIMINATE OVERLAPPING AND DUPLICATION OF EFFORT; AND

(F) TO SEGREGATE REGULATORY AGENCIES AND FUNCTIONS FROM THOSE OF AN ADMINISTRATIVE AND EXECUTIVE CHARACTER.

SEC. 402. WHEN USED IN THIS TITLE, THE TERM "EXECUTIVE AGENCY" MEANS ANY COMMISSION, INDEPENDENT ESTABLISHMENT, BOARD, BUREAU, DIVISION, SERVICE, OR OFFICE IN THE EXECUTIVE BRANCH OF THE GOVERNMENT AND, EXCEPT AS PROVIDED IN SECTION 403, INCLUDES THE EXECUTIVE DEPARTMENTS.

SEC. 403. WHENEVER THE PRESIDENT, AFTER INVESTIGATION, SHALL FIND AND DECLARE THAT ANY REGROUPING, CONSOLIDATION, TRANSFER, OR ABOLITION OF ANY EXECUTIVE AGENCY OR AGENCIES AND/OR THE FUNCTIONS THEREOF IS NECESSARY TO ACCOMPLISH ANY OF THE PURPOSES SET FORTH IN SECTION 401 OF THIS TITLE, HE MAY BY EXECUTIVE ORDER---

(A) TRANSFER THE WHOLE OR ANY PART OF ANY EXECUTIVE AGENCY AND/OR THE FUNCTIONS THEREOF TO THE JURISDICTION AND CONTROL OF ANY OTHER EXECUTIVE AGENCY;

(B) CONSOLIDATE THE FUNCTIONS VESTED IN ANY EXECUTIVE AGENCY; OR

(C) ABOLISH THE WHOLE OR ANY PART OF ANY EXECUTIVE AGENCY AND/OR THE FUNCTIONS THEREOF; AND

(D) DESIGNATE AND FIX THE NAME AND FUNCTIONS OF ANY CONSOLIDATED ACTIVITY OR EXECUTIVE AGENCY AND THE TITLE, POWERS, AND DUTIES OF ITS EXECUTIVE HEAD; EXCEPT THAT THE PRESIDENT SHALL NOT HAVE AUTHORITY UNDER THIS TITLE TO ABOLISH OR TRANSFER ANY EXECUTIVE DEPARTMENT AND/OR ALL THE FUNCTIONS THEREOF.

NOTE PARTICULARLY PARAGRAPH (D) LAST ABOVE QUOTED.

PARAGRAPHS (3) AND (12) OF EXECUTIVE ORDER NO. 6084, CREATING THE FARM CREDIT ADMINISTRATION, ISSUED MARCH 27, 1933, UNDER AUTHORITY OF THE QUOTED STATUTE, PROVIDE AS FOLLOWS:

(3) THE NAME OF THE OFFICE OF CHAIRMAN OF THE FEDERAL FARM BOARD IS CHANGED TO GOVERNOR OF THE FARM CREDIT ADMINISTRATION, AND HE IS VESTED WITH ALL THE POWERS AND DUTIES OF THE FEDERAL FARM BOARD.

(12) THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION IS AUTHORIZED TO EXECUTE ANY AND ALL FUNCTIONS AND PERFORM ANY AND ALL DUTIES VESTED IN HIM THROUGH SUCH PERSONS AS HE SHALL BY ORDER DESIGNATE OR EMPLOY.

SECTION 4 OF THE AGRICULTURAL MARKETING ACT OF JUNE 15, 1929, 46 STAT. 15, VESTED POWER IN THE FEDERAL FARM BOARD TO MAKE APPOINTMENTS OF OFFICERS AND EMPLOYEES BUT DID NOT AUTHORIZE DELEGATION OF THAT AUTHORITY TO A SUBORDINATE. YOUR CONTENTION APPEARS TO BE, HOWEVER, THAT THE PRESIDENT WAS GIVEN THE POWER BY THE REORGANIZATION PROVISIONS OF THE ECONOMY ACT, AS AMENDED, QUOTED ABOVE, TO VEST IN THE HEAD OF A NEWLY CREATED EXECUTIVE AGENCY POWERS NOT PREVIOUSLY EXISTING IN THE HEAD OF THE AGENCY FROM WHICH THE NEWLY CREATED AGENCY WAS ORGANIZED. THE DECISION OF AUGUST 19, 1933, A-50400, HELD:

THERE IS NOTHING IN THIS PROVISION (SECTION 403 (D) OF THE ECONOMY ACT AS AMENDED) OR OTHERWISE IN THE PROVISIONS OF THE ECONOMY ACT RELATING TO REORGANIZATION, WHICH AUTHORIZES THE PRESIDENT TO VEST IN THE HEAD OF A NEW AGENCY THE POWER TO DELEGATE TO A SUBORDINATE A DISCRETION VESTED IN THE HEAD OF THE AGENCY BY VIRTUE OF THE PROVISIONS OF A GENERAL STATUTE APPLICABLE TO THE HEADS OF ALL DEPARTMENTS AND ESTABLISHMENTS OF THE GOVERNMENT. AND, IN THE DECISION OF OCTOBER 2, 1934, A-56298, AFTER QUOTING THE ABOVE, IT WAS STATED AS FOLLOWS:

THE AUTHORIZATION GIVEN THE PRESIDENT TO REORGANIZE THE GOVERNMENT DEPARTMENTS AND SERVICES DID NOT AUTHORIZE GRANTING TO A REORGANIZED ESTABLISHMENT OR TO THE HEAD THEREOF ANY AUTHORITY IN EXCESS OF THAT PREVIOUSLY EXERCISED BY THE SERVICES TRANSFERRED THERETO OR THEIR RESPECTIVE HEADS. WHERE A DISCRETION IS VESTED BY STATUTE IN THE HEAD OF A DEPARTMENT OR SERVICE, SAID DISCRETION MAY NOT BE DELEGATED TO OR EXERCISED BY ANY OTHER OFFICER OR EMPLOYEE EXCEPT SUCH A ONE AS MAY BE SPECIFICALLY AUTHORIZED BY STATUTE TO ACT IN THE PLACE OF THE HEAD, AS FOR INSTANCE, AN ASSISTANT SECRETARY OF A DEPARTMENT. UPON RECONSIDERATION THE DECISION OF AUGUST 9, 1934, MUST BE AND IS AFFIRMED.

THERE APPEARS NO AUTHORITY UNDER EXISTING LAW FOR HOLDING OTHERWISE THAN THAT SECTION 12 OF EXECUTIVE ORDER NO. 6084, SUPRA, AUTHORIZING THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION TO EXECUTE HIS FUNCTION AND PERFORM HIS DUTIES THROUGH SUCH PERSON AS HE SHALL DESIGNATE AND APPOINT, DOES NOT AUTHORIZE THE GOVERNOR TO DELEGATE TO OTHERS POWERS SPECIFICALLY VESTED IN HIM BY LAW INVOLVING THE EXERCISE OF JUDGMENT AND DISCRETION AND DOES NOT ATTEMPT TO ABROGATE THE PROVISIONS OF GENERAL STATUTE, SUCH AS SECTION 169, REVISED STATUTES, AS AMENDED, REGARDING APPOINTMENTS. ANSWER TO QUESTION (1), YOU ARE ADVISED, THEREFORE, THAT THE DECISIONS OF AUGUST 9, 1934, AND OCTOBER 2, 1934, A-56298, MUST BE, AND ARE, AFFIRMED.

IN VIEW OF THE CITATION OF THE SUPREME COURT DECISION, IT APPEARS THAT THERE HAS BEEN OVERLOOKED THE AMENDMENT TO SECTION 169, REVISED STATUTES, MADE BY THE ACT OF JUNE 26, 1930, 46 STAT. 817, AND THAT THE SCOPE OF THE DECISIONS OF THIS OFFICE, OF WHICH RECONSIDERATION HAS BEEN REQUESTED, HAS BEEN ADMINISTRATIVELY MISUNDERSTOOD.

SAID AMENDATORY ACT OF JUNE 26, 1930, PROVIDES AS FOLLOWS:

THAT SECTION 169 OF THE REVISED STATUTES, AS AMENDED (U.S.C. TITLE 5, SEC. 43), IS AMENDED TO READ AS FOLLOWS:

"THERE IS AUTHORIZED TO BE EMPLOYED IN EACH EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AND THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, FOR SERVICES IN THE DISTRICT OF COLUMBIA OR ELSEWHERE, SUCH NUMBER OF EMPLOYEES OF THE VARIOUS CLASSES RECOGNIZED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED (U.S.C., TITLE 5, CH. 13), AS MAY BE APPROPRIATED FOR BY CONGRESS FROM YEAR TO YEAR: PROVIDED, THAT THE HEAD OF ANY DEPARTMENT OR INDEPENDENT ESTABLISHMENT MAY DELEGATE TO SUBORDINATES, UNDER SUCH REGULATIONS AS HE MAY PRESCRIBE, THE POWER TO EMPLOY SUCH PERSONS FOR DUTY IN THE FIELD SERVICES OF HIS DEPARTMENT OR ESTABLISHMENT.'

THE ACT OF MAY 22, 1926 (44 STAT. 620), IS HEREBY REPEALED.

IT WILL BE NOTED THAT THE STATUTE, AS AMENDED, SPECIFICALLY INCLUDES INDEPENDENT ESTABLISHMENTS. IT WAS UNDERSTOOD, OF COURSE, THAT THE TWO EMPLOYEES MADE THE SUBJECT OF SAID DECISIONS, PAUL F. BRODERICK AND RUTH D. WHITE, ARE DEPARTMENTAL EMPLOYEES, THAT IS, WERE NOT FIELD SERVICE EMPLOYEES.

HOWEVER, IN VIEW OF THE ADMINISTRATIVE MISUNDERSTANDING IN THE MATTER AND ALL THE FACTS AND CIRCUMSTANCES NOW DISCLOSED, NO FURTHER OBJECTION WILL BE MADE IN THE AUDIT TO OTHERWISE PROPER PAYMENTS OF COMPENSATION TO EMPLOYEES SERVING UNDER APPOINTMENT BY YOUR SUBORDINATE PRIOR TO OCTOBER 17, 1934, THE DATE OF YOUR PRESENT LETTER, WHEREIN YOU CONFIRM ALL SUCH APPOINTMENTS, IT BEING UNDERSTOOD THAT ALL APPOINTMENTS OF DEPARTMENTAL EMPLOYEES SUBSEQUENT TO THAT DATE WILL BE MADE BY THE GOVERNOR. QUESTION (2) IS ANSWERED ACCORDINGLY.

IN DECISION OF OCTOBER 4, 1934, A-57412, 14 COMP. GEN. 279, IT WAS HELD AS FOLLOWS:

SECTION 1757, REVISED STATUTES, AND SECTION 2 OF THE ACT OF MAY 13, 1884, 23 STAT. 22, REQUIRE AN OATH OF OFFICE TO BE EXECUTED BY "ANY PERSON ELECTED OR APPOINTED TO ANY OFFICE OF HONOR OR PROFIT.' THIS REQUIREMENT APPLIES ONLY TO OFFICERS OF THE UNITED STATES IN THE CONSTITUTIONAL SENSE. THAT IS, OFFICERS WHOSE APPOINTMENTS ARE VESTED BY LAW IN THE PRESIDENT OF THE UNITED STATES, THE COURTS OF LAW OR THE HEADS OF DEPARTMENTS. SEE 6 COMP. GEN. 112 AND THE CASES THEREIN CITED. NOTWITHSTANDING THE FOREGOING IT IS CUSTOMARY FOR ALL OFFICERS AND EMPLOYEES OF THE UNITED STATES TO BE REQUIRED TO EXECUTE AN OATH OF OFFICE AND SOME SERVICES HAVE INCORPORATED SUCH A REQUIREMENT IN THEIR PERSONNEL REGULATIONS. IT IS TO SUCH PRACTICE AND REGULATIONS THAT THE DECISIONS IN 9 COMP. GEN. 261, AND IN 13 COMP. GEN. 273 HAVE REFERENCE. HOWEVER, WHERE THE EMPLOYEES ARE NOT REQUIRED TO BE APPOINTED BY THE HEAD OF THE DEPARTMENT AND IT HAS BEEN FOUND ADMINISTRATIVELY IMPRACTICABLE TO REQUIRE THE OATH OF OFFICE, AS IN THE THREE CLASSES REFERRED TO IN YOUR SUBMISSION, EVIDENCE OF THE TAKING OF THE OATH WILL NOT BE REQUIRED BY THIS OFFICE. IT WILL BE SUFFICIENT IN SUCH CASES IF INFORMATION IS FURNISHED ON THE PAY ROLL OF THE DATE OF THE APPOINTMENT OR EMPLOYMENT AND OF ENTRANCE UPON DUTY.

THIS RULE IS APPLICABLE TO INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT AS WELL AS TO DEPARTMENTS, THE PHRASE "HEADS OF DEPARTMENTS" AS USED IN THE CONSTITUTION AND FEDERAL STATUTES HAVING BEEN GENERALLY REGARDED AS APPLICABLE TO THE HEADS OF INDEPENDENT ESTABLISHMENTS. SEE, GENERALLY, 2 COMP. GEN. 519; 3 ID. 87; ID. 491; 4 ID. 53; AND 7 ID. 143. IN THE CASE OF BURNAP V. UNITED STATES, 252 U.S. 512, CITED BY YOU, THE SUPREME COURT OF THE UNITED STATES MADE A DISTINCTION BETWEEN APPOINTMENTS MADE BY THE HEAD OF A DEPARTMENT, IN THAT CASE THE SECRETARY OF WAR, AND APPOINTMENTS MADE BY THE HEAD OF A BUREAU WITHIN THE DEPARTMENT, IN THAT CASE THE OFFICE OF PUBLIC BUILDINGS AND GROUNDS, BUT DID NOT PASS ON THE STATUS OF THE HEAD OF AN INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT UNDER SECTION 169, REVISED STATUTES. IT WOULD APPEAR, THEREFORE, THAT OATHS MUST BE REQUIRED OF ALL DEPARTMENTAL EMPLOYEES WHOSE APPOINTMENTS ARE REQUIRED TO BE MADE BY THE GOVERNOR OF THE FARM CREDIT ADMINISTRATION, BUT NOT NECESSARILY OF FIELD EMPLOYEES WHOSE APPOINTMENTS ARE DELEGATED TO A SUBORDINATE UNDER REGULATION ISSUED BY THE ADMINISTRATION.

SECTION 3 OF THE ACT OF DECEMBER 11, 1926, 44 STAT. 919, CITED BY YOU, PROVIDES AS FOLLOWS:

THAT EMPLOYEES OF THE UNITED STATES VETERANS' BUREAU WHO, UPON ORIGINAL APPOINTMENT, HAVE SUBSCRIBED TO THE OATH OF OFFICE REQUIRED BY SECTION 1757 OF THE REVISED STATUTES SHALL NOT BE REQUIRED TO RENEW THE SAID OATH BECAUSE OF ANY CHANGE IN STATUS SO LONG AS THEIR SERVICES ARE CONTINUOUS, UNLESS, IN THE OPINION OF THE DIRECTOR, THE PUBLIC INTERESTS REQUIRE SUCH RENEWAL.

THE PROVISIONS OF THIS STATUTE ARE LIMITED IN APPLICATION TO THE PERSONNEL OF THE VETERANS' ADMINISTRATION, AND WHILE A GENERAL APPLICATION MIGHT BE DESIRABLE, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY FOR SUCH GENERAL APPLICATION, THE TERMS OF THE STATUTE MAY NOT BE ADOPTED ADMINISTRATIVELY BY OTHER DEPARTMENTS OR INDEPENDENT ESTABLISHMENTS OF THE GOVERNMENT FOR EMPLOYEES WHOSE APPOINTMENTS ARE REQUIRED BY STATUTE TO BE MADE BY THE HEAD OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, IN THIS CASE THE DEPARTMENTAL EMPLOYEES OF THE FARM CREDIT ADMINISTRATION. AS TO EMPLOYEES IN THE FIELD SERVICE,HOWEVER, THE FARM CREDIT ADMINISTRATION MAY ADOPT THE PRINCIPLES OF THE STATUTE IN ADMINISTRATIVE REGULATIONS IF IT SO DESIRES.

ACCORDINGLY, REFERRING TO QUESTION (3), DEPARTMENTAL EMPLOYEES OF THE FARM CREDIT ADMINISTRATION ARE REQUIRED TO TAKE THE PRESCRIBED OATH OF OFFICE, BUT IN THE EVENT THAT THE APPOINTMENT OF FIELD EMPLOYEES BE DELEGATED TO A SUBORDINATE, UNDER PROPER ADMINISTRATIVE REGULATIONS, OATHS OF OFFICE MAY OR MAY NOT BE REQUIRED AS THE GOVERNOR MAY BY APPROPRIATE REGULATIONS PRESCRIBE.