A-58838, JANUARY 29, 1935, 14 COMP. GEN. 578

A-58838: Jan 29, 1935

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THERE WAS NO AUTHORITY TO GRANT ADMINISTRATIVE PROMOTIONS. THAT IS. MINOR ADJUSTMENTS UPWARD IN AN AMOUNT LESS THAN ONE SALARY STEP IN THE CORRESPONDING CLASSIFICATION ACT GRADE ARE NOT REGARDED AS ADMINISTRATIVE PROMOTIONS. EXECUTIVE ORDERS ARE ISSUED IN THE LIGHT OF EXISTING LAW AND IN FURTHERANCE OF THE PURPOSE OF THE LAW OR LAWS TO WHICH THEY HAVE RELATION. ARE SO TO BE UNDERSTOOD AND OBSERVED. WHEN AN UNDEFINED DISCRETION IS GRANTED BY LAW TO THE EXECUTIVE IN THE MATTER OF EXPENDITURE OF PUBLIC FUNDS. IT IS A LEGAL DISCRETION AND NOT A DISCRETION TO DISREGARD OR TO VIOLATE STATUTORY LAW. WHEN A BROADER AUTHORITY IS INTENDED. "REPLY 10/19/34 NOTED AND WILL NOT SERVE TO REMOVE THE EXCEPTION AND THE ITEM IS DISALLOWED FOR THE REASON AS STATED ABOVE.

A-58838, JANUARY 29, 1935, 14 COMP. GEN. 578

COMPENSATION - ADMINISTRATIVE PROMOTIONS - EXECUTIVE ORDER CLASSIFICATION - DISCRETION OF THE EXECUTIVE IN THE CLASSIFICATION OF EMERGENCY POSITIONS PURSUANT TO THE TERMS OF THE EXECUTIVE ORDER NO. 6440, DATED NOVEMBER 18, 1933, THERE WAS NO AUTHORITY TO GRANT ADMINISTRATIVE PROMOTIONS, THAT IS, INCREASES IN THE RATE OF COMPENSATION FOR THE POSITIONS ADMINISTRATIVELY FIXED UPON APPOINTMENT PRIOR TO THE DATE OF THE EXECUTIVE ORDER IN CONTRAVENTION OF SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515. MINOR ADJUSTMENTS UPWARD IN AN AMOUNT LESS THAN ONE SALARY STEP IN THE CORRESPONDING CLASSIFICATION ACT GRADE ARE NOT REGARDED AS ADMINISTRATIVE PROMOTIONS. EXECUTIVE ORDERS ARE ISSUED IN THE LIGHT OF EXISTING LAW AND IN FURTHERANCE OF THE PURPOSE OF THE LAW OR LAWS TO WHICH THEY HAVE RELATION, AND ARE SO TO BE UNDERSTOOD AND OBSERVED, AND SUBORDINATES MAY NOT BY THEIR CONDUCT PLACE THE EXECUTIVE IN A LIGHT OF PURPOSING TO DISREGARD RATHER THAN TO GIVE EFFECT TO STATUTORY LAW. WHEN AN UNDEFINED DISCRETION IS GRANTED BY LAW TO THE EXECUTIVE IN THE MATTER OF EXPENDITURE OF PUBLIC FUNDS, IT IS A LEGAL DISCRETION AND NOT A DISCRETION TO DISREGARD OR TO VIOLATE STATUTORY LAW, AND WHEN A BROADER AUTHORITY IS INTENDED, FOR INSTANCE, TO ACT IN DISREGARD OF OTHER LAWS, THE FORM OF LEGISLATION LONG FOLLOWED BY THE CONGRESS HAS BEEN TO SPECIFICALLY INCLUDE THE RDS,"NOTWITHSTANDING THE PROVISIONS OF OTHER LAWS," OR OTHER WORDS HAVING LIKE MEANING. THERE CAN BE NO CLAIM OF GOOD FAITH OR OF JUSTIFIED ERROR ADVANCED ON BEHALF OF AN ACCOUNTABLE OFFICER OF THE UNITED STATES FOR UNLAWFUL EXPENDITURES OF PUBLIC FUNDS WHO FAILED OR REFUSED TO SUBMIT THE QUESTION INVOLVED TO THE COMPTROLLER GENERAL OF THE UNITED STATES FOR AN AUTHORITATIVE DECISION IN ADVANCE OF PAYMENT, BUT WHO ELECTED TO BE GUIDED OR PERSUADED BY THE VIEWS OF THE LAW OFFICERS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, INCLUDING THE OPINIONS OF THE ATTORNEY GENERAL.

COMPTROLLER GENERAL MCCARL TO MAJOR E. C. MORTON, UNITED STATES ARMY, JANUARY 29, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 8, 1934, AS FOLLOWS:

THE UNDERSIGNED, AS CUSTODIAN OF THE RECORDS OF MAJOR W. O. RAWLS, F.D., WASHINGTON, D.C., DESIRES TO APPEAL FROM AND REQUEST REVISION OF THE ACTION OF THE GENERAL ACCOUNTING OFFICE IN DISALLOWING PAYMENTS MADE BY MAJOR RAWLS ON PAY ROLL VOUCHER 24512, DECEMBER 1933. REMARKS OF THE GENERAL ACCOUNTING OFFICE QUOTED---

CHART

"/EMERGENCY CONSERVATION FUND) "PAYROLL, DEC. 16 31, 1933:

PG. 1, LINE 6, JOHN M. GIBBS, SPEC. ASS-T.:

PD. $4000 P.A. LESS 15 PERCENT (25.00) ----------------- $141.66

PAY $3600 P.A. LESS 15 PERCENT (22.50) ----------------- 127.50

--------$14.16 "PG. 1, LINE 7, GEO. WEIDENFELD, CHIEF STATISTICIAN:

PD. $4030 P.A. LESS 15 PERCENT (25.00) ----------------- 141.66

PAY $3600 P.A. LESS 15 PERCENT (22.50) ----------------- 127.50

-------- 14.16 "PG. 1, LINE 27, ADDIE A. HUGHES, CHIEF CLERK:

PD. $2900 P.A. LESS 15 PERCENT (18.13) ----------------- 102.70

PAY $2500 P.A. LESS 15 PERCENT (15.63) ----------------- 88.54

-------- 14.16 "PG. 1, LINE 28, RUTH H. CARTER, SECTY.:

PD. $2000 P.A. LESS 15 PERCENT (12.50) ----------------- 70.83

PAY $1800 P.A. LESS 15 PERCENT (11.25) ----------------- 63.75

-------- 7.08 "PG. 1, LINE 30, MARY W. BUNCH, CORRES. CLERK:

PD. $1800 P.A. LESS 15 PERCENT (11.25) ----------------- 63.75

PAY $1680 P.A. LESS 15 PERCENT (10.50) ----------------- 59.50

-------- 4.25 "PG. 2, LINE 1, HELEN K. DELANY, STENOG.-SEC-Y.:

PD. $1800 P.A. LESS 15 PERCENT (11.25) ----------------- 63.75

PAY $1680 P.A. LESS 15 PERCENT (10.50) ----------------- 59.50

-------- 4.25 "PG. 2, LINE 2, LOUISE B. GLASS, STENOG.-SEC-Y.:

PD. $1620 P.A. LESS 15 PERCENT (10.13) ----------------- 57.37

PAY $1500 P.A. LESS 15 PERCENT (9.38) ------------------ 53.12

--------4.25 "PG. 2, LINE 3, JANETTE HARRINGTON, STENOG.-SECY.:

PD. $1800 P.A. LESS 15 PERCENT (11.25) ----------------- 63.75

PAY $1680 P.A. LESS 15 PERCENT (10.50) ----------------- 59.50

-------- 4.25 "PG. 2, LINE 4, CHRISTINE JOHNSON, STENOG. SECY.:

PD. $1620 P.A. LESS 15 PERCENT (10.13) ----------------- 57.37

PAY $1500 P.A. LESS 15 PERCENT (9.38) ------------------ 53.12

-------- 4.25 "PG. 2, LINE 5, CHARLOTTE S. KNOTT, STENOG.-SECY.:

PD. $1620 P.A. LESS 15 PERCENT (10.13) ----------------- 57.37

PAY $1500 P.A. LESS 15 PERCENT (9.38) ------------------ 53.12

-------- 4.25 "PG. 2, LINE 6, HELEN F. LYNCH, STENOG.-SECY.:

PD. $1800 P.A. LESS 15 PERCENT (11.25) ----------------- 63.75

PAY $1620 P.A. LESS 15 PERCENT (10.50) ----------------- 59.50

-------- 4.25 "PG. 2, LINE 7, EDITH M. METZGER, STENOG.-SECY.:

PD. $1620 P.A. LESS 15 PERCENT (10.13) ----------------- 57.37

PAY $1500 P.A. LESS 15 PERCENT (9.38) ------------------ 53.12

------- 4.25 "PG. 2, LINE 8, LUCILLE NEWMAN, STENOG. SECY.:

PD. $1800 P.A. LESS 15 PERCENT (11.25) ----------------- 63.75

PAY $1680 P.A. LESS 15 PERCENT (10.50) ----------------- 59.50

------- 4.25 "PG. 2, LINE 9, ELSIE T. MANDLEY, STENOG.-CLERK:

PD. $1800 P.A. LESS 15 PERCENT (11.25) ----------------- 63.75

PAY $1680 P.A. LESS 15 PERCENT (10.50) ----------------- 59.50

-------- 4.25"PG. 2, LINE 10, AMARILLA SMITH, STENOG.-CLERK:

PD. $1620 P.A. LESS 15 PERCENT (10.13) ----------------- 57.37

PAY $1500 P.A. LESS 15 PERCENT (9.38) ------------------ 53.12

--------- 4.25 "PG. 2, LINE 13, EVELYN M. WALCOTT, CHIEF FILE CLERK:

PD. $1800 P.A. LESS 15 PERCENT (11.25) ----------------- 63.75

PAY $1500 P.A. LESS 15 PERCENT (9.38) ------------------ 53.12

--------- 10.63 "PG. 2, LINE 14, PETER J. CUSACK, CLERK:

PD. $1620 P.A. 10/30 LESS 15 PERCENT (6.75) ------------ 38.25

PAY $1500 P.A. 10/30 LESS 15 PERCENT (6.25) ------------ 35.42

--------- 2.83

"VOUCHER 13440, THIS ACCOUNT SHOWS THESE MEN AT LOWER RATES WITH NO CHANGE IN DESIGNATION. ANY INCREASE IN COMPENSATION NECESSARY TO ADJUST INITIAL SALARY RATES PURSUANT TO EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18, 1933, WHICH WOULD EITHER EQUAL OR EXCEED THE AMOUNT OF ONE SALARY STEP IN THE CORRESPONDING CLASSIFICATION GRADE, WOULD CONSTITUTE AN ADMINISTRATIVE PROMOTION AND BE PROHIBITED BY SECTION 7, OF THE ACT OF MAR. 3, 1933. STAT. 1515. 13 COMP. GEN. 263.

"REPLY 10/19/34 NOTED AND WILL NOT SERVE TO REMOVE THE EXCEPTION AND THE ITEM IS DISALLOWED FOR THE REASON AS STATED ABOVE. "DEBT REPORTED.'"

THIS OFFICE IS ADVISED THAT THE LEGALITY OF EXECUTIVE ORDER NO. 6440 WAS PASSED UPON BY THE ATTORNEY GENERAL BEFORE ITS ISSUANCE BY THE PRESIDENT, AND THAT SUBSEQUENTLY UNDER DATE OF APRIL 4, 1934, IN AN OPINION TO THE SECRETARY OF THE INTERIOR THE LEGALITY OF EXECUTIVE ORDER NO. 6440 WAS AFFIRMED. IN THIS LATTER OPINION OF THE ATTORNEY GENERAL THAT OFFICIAL SPECIFICALLY PASSED UPON THE QUESTION AS TO WHETHER ADJUSTMENTS IN THE COMPENSATION OF EMPLOYEES IN THE EMERGENCY AGENCIES CLASSIFIED UNDER SUCH ORDER IN ORDER TO BRING SUCH COMPENSATION INTO HARMONY WITH THE RESPONSIBILITIES OF THE DUTIES PERFORMED, FELL WITHIN THE PROHIBITION OF SECTION 7 OF THE ACT OF MARCH 3, 1933. AFTER DISCUSSING THE QUESTION AT SOME LENGTH THE ATTORNEY GENERAL EXPRESSED THE VIEW THAT EXECUTIVE ORDER NO. 6440 "AUTHORIZES YOU TO MAKE ADJUSTMENTS WHICH RESULT IN INCREASES IN COMPENSATION, AND THAT SUCH ADJUSTMENTS ARE NOT PROHIBITED BY SECTION 7 OF THE ACT OF MARCH 3, 1933, SUPRA.'

UNDER DATE OF JUNE 14, 1934, IN AN OPINION TO THE PRESIDENT CONCERNING AN EXECUTIVE ORDER WHICH SUBSEQUENTLY BECAME NO. 6746 OF JUNE 21, 1934, AND WHICH ALSO HAD FOR ITS PURPOSE THE CLASSIFICATION OF EMERGENCY EMPLOYEES (BOTH THE EMPLOYEES OF THE EMERGENCY AGENCIES AS WELL AS EMERGENCY EMPLOYEES IN THE REGULAR GOVERNMENT DEPARTMENTS) THE ATTORNEY GENERAL AGAIN EXPRESSED HIS VIEW THAT THE ADJUSTMENT OF COMPENSATION OF SUCH EMPLOYEES IN ORDER TO BRING THEIR CLASSIFICATION STATUS AND COMPENSATION IN HARMONY WITH THE DUTIES AND RESPONSIBILITIES OF THE POSITIONS HELD BY THEM, WAS NOT PROHIBITED BY SECTION 7 OF THE ACT OF MARCH 3, 1933, SUPRA, AND IN THAT OPINION EXPRESSED THE FURTHER VIEW THAT "THE OPINIONS OF THE ATTORNEY GENERAL AS THE CHIEF LAW OFFICER OF THE GOVERNMENT SHOULD BE RESPECTED AND FOLLOWED IN THE ADMINISTRATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT.'

IN VIEW OF THE FACT THAT THE PRESIDENT, HIS SUPERIOR OFFICER, ISSUED EXECUTIVE ORDER NO. 6440, WHICH DIRECTED THE CLASSIFICATION OF ALL EMERGENCY EMPLOYEES IN ACCORDANCE THEREWITH, AND THAT THE EMPLOYEES OF THE OFFICE OF THE DIRECTOR OF EMERGENCY CONSERVATION WORK, WHOSE COMPENSATION INCREASES ARE THE SUBJECT OF THE DISALLOWANCES IN QUESTION, FALL WITHIN THE PROVISIONS OF THAT ORDER, AND WERE SO CLASSIFIED AND PAID IN ACCORDANCE WITH THE PROVISIONS OF THAT EXECUTIVE ORDER AS CONSTRUED BY THE ATTORNEY GENERAL, WHOSE VIEWS WERE APPROVED AND ADOPTED BY THE PRESIDENT, IT IS REQUESTED THAT THE ACTION OF THE GENERAL ACCOUNTING OFFICE IN DISALLOWING THE ITEMS IN QUESTION, BE REVERSED.

AT THE TIME THE PAYMENTS IN QUESTION WERE MADE BY MAJOR RAWLS--- DECEMBER 1933--- EACH OF WHICH PAYMENTS INVOLVED AN ADMINISTRATIVE PROMOTION, THERE EXISTED A STATUTORY PROHIBITION AGAINST ADMINISTRATIVE PROMOTIONS. SEE SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515, AS FOLLOWS:

NO ADMINISTRATIVE PROMOTIONS IN THE CIVIL BRANCH OF THE UNITED STATES GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA SHALL BE MADE DURING THE FISCAL YEAR ENDING JUNE 30, 1934: * * *

THIS STATUTE WAS A PART OF THE LEGISLATIVE ECONOMY PROGRAM DESIGNED TO CONSERVE THE PUBLIC MONEYS. THE LANGUAGE IS NOT AMBIGUOUS AND MEANS NOTHING LESS THAN THAT AS TO EMPLOYMENTS IN THE CIVIL BRANCH EXISTING ON JULY 1, 1933, OR ENTERED INTO THEREAFTER AND PRIOR TO JUNE 30, 1934, THE RATE OF COMPENSATION SHOULD NOT BE INCREASED, THROUGH ADMINISTRATIVE PROMOTION, FOR PERFORMANCE OF THE SAME DUTIES. THIS STATUTORY PROHIBITION OPERATED AS A RESTRICTION ON THE USE OF ALL APPROPRIATIONS AVAILABLE FOR PERSONAL SERVICES IN THE CIVIL BRANCH OF THE UNITED STATES GOVERNMENT AND THE GOVERNMENT OF THE DISTRICT OF COLUMBIA THROUGHOUT THE FISCAL YEAR ENDING JUNE 30, 1934, AND RENDERED UNLAWFUL INCREASES OF COMPENSATION AS EXISTING JULY 1, 1933, OR AS FIXED ORIGINALLY UPON APPOINTMENT, THAT IS, WHETHER THROUGH ADMINISTRATIVE CLASSIFICATION OR OTHERWISE. IT WAS AND IS THE CLEAR DUTY OF THE GENERAL ACCOUNTING OFFICE TO GIVE EFFECT TO THIS LAW IN THE AUDIT OF ACCOUNTS CLAIMING CREDIT FOR USES OF APPROPRIATED MONEYS, BY DISALLOWING CREDIT FOR PAYMENTS MADE IN CONTRAVENTION THEREOF.

IT SEEMS YOUR CONTENTION, HOWEVER, THAT EXECUTIVE ORDER NO. 6440, ISSUED NOVEMBER 18, 1933, AND EFFECTIVE WHEN THE PAYMENTS HERE IN QUESTION WERE MADE, AFFORDED MAJOR RAWLS SOME PROTECTION IN DISREGARDING THE PROVISIONS OF SECTION 7 OF THE ACT OF MARCH 3, 1933, SUPRA.

PRIOR TO THE ISSUANCE OF EXECUTIVE ORDER NO. 6440, CERTAIN NEW AGENCIES HAD BEEN AUTHORIZED BY LAW OR BY EXECUTIVE ORDER ISSUED PURSUANT TO LAW, TO EMPLOY PERSONAL SERVICES AND TO FIX RATES OF COMPENSATION THEREFOR WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND UNDER SUCH AUTHORITY A VAST NUMBER OF EMPLOYMENTS, APPARENTLY THOUSANDS, WERE MADE AT RATES OF COMPENSATION ADMINISTRATIVELY FIXED--- AND WITH PAYMENTS ACCORDINGLY UNTIL THE ADVENT OF EXECUTIVE ORDER NO. 6440--- WHICH, JUDGING BY ITS TEXT, WAS DESIGNED TO REQUIRE REDUCTIONS IN COMPENSATION RATES SO ADMINISTRATIVELY FIXED WHERE IN EXCESS OF COMPENSATION RATES FOR SIMILAR DUTIES AUTHORIZED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, FOR EMPLOYEES IN THE REGULAR GOVERNMENT ESTABLISHMENTS, AND TO PREVENT FUTURE EMPLOYMENT AT RATES OUT OF LINE THEREWITH.

YOUR VIEW APPEARS TO BE THAT IF IN CLASSIFYING POSITIONS HELD BY THOSE EMPLOYED WITHOUT REGARD TO THE PROVISIONS OF THE CLASSIFICATION ACT OF 1023, AS AMENDED, IT SHOULD BE FOUND THAT CERTAIN POSITIONS WOULD CLASSIFY SO AS, NORMALLY, WOULD PERMIT OF COMPENSATION RATES IN EXCESS OF THOSE BEING RECEIVED BY THE OCCUPANTS THEREOF, THE EXECUTIVE ORDER PERMITTED ADMINISTRATIVE PROMOTION OF SUCH EMPLOYEES ACCORDINGLY AND NOTWITHSTANDING THE SPECIFIC PROHIBITION APPEARING IN SECTION 7 OF THE ACT OF MARCH 3, 1933, SUPRA.

THE TERM "ADMINISTRATIVE PROMOTION" HAS LONG BEEN CLEARLY UNDERSTOOD AS AN INCREASE IN COMPENSATION BY ADMINISTRATIVE ACTION INVOLVING AT LEAST ONE FULL SALARY STEP IN A CLASSIFICATION GRADE; AND WHEN THE PRESIDENT, BY EXECUTIVE ORDER NO. 6440, EXTENDED THE PRINCIPLES OF CLASSIFICATION TO SAID UNCLASSIFIED POSITIONS THIS OFFICE RECOGNIZED THAT THE SALARY RATES WHICH HAD BEEN ADMINISTRATIVELY FIXED FOR THE POSITIONS UPON APPOINTMENT OF THE INCUMBENTS WOULD NOT IN ALL CASES CORRESPOND EXACTLY WITH THE MINIMUM SALARY RATES OF THE CLASSIFICATION ACT GRADES ADOPTED IN THE EXECUTIVE ORDER, AND IN CONNECTION WITH GIVING EFFECT TO SAID ORDER, THE DECISIONS OF THIS OFFICE CLEARLY DISTINGUISHED BETWEEN "ADJUSTMENTS UPWARD" AND "ADMINISTRATIVE OMOTIONS," HOLDING, IN DECISION OF MARCH 17, 1934, 13 COMP. GEN. 243, 245, AS FOLLOWS:

* * * THEREFORE, IN APPLYING THE PROVISIONS OF SAID ORDER TO OFFICERS AND EMPLOYEES IN THE SERVICE WHEN IT BECAME EFFECTIVE THERE MUST NOT RESULT A PROMOTION WITHIN THE MEANING OF THE PROVISIONS OF SECTION 7, SUPRA. WHERE, HOWEVER, UNDER THE ADJUSTMENT, THE NET SALARY RATE TO BE PAID AFTER WITHHOLDING THE APPLICABLE PERCENTAGE REDUCTION DOES NOT EXCEED THE NET SALARY PREVIOUSLY PAID FOR PERFORMANCE OF SUBSTANTIALLY THE SAME DUTIES BY AN AMOUNT EQUAL TO OR IN EXCESS OF THE AMOUNT OF ONE SALARY STEP IN THE CORRESPONDING SALARY GRADE UNDER THE CLASSIFICATION ACT, VIZ. $60, $100, $200, OR $500 PER ANNUM, AS THE CASE MAY BE, SUCH AN ADJUSTMENT WOULD NOT CONSTITUTE AN ADMINISTRATIVE PROMOTION WITHIN THE MEANING OF SAID SECTION 7 OF THE ACT OF MARCH 3, 1933. SEE DECISION OF MARCH 12, 1934, A-54227. THE PRESIDENT WAS ABUNDANTLY JUSTIFIED IN REQUIRING ANALYSIS AND PROPER CLASSIFICATION OF UNCLASSIFIED POSITIONS AS A BASIS FOR CONTROL OVER EXPENDITURES FROM SAID EMERGENCY APPROPRIATION, AND HAD FULL AUTHORITY TO EXACT SALARY ADJUSTMENTS DOWNWARD WHERE FOUND TO BE IN EXCESS OF THE CLASSIFICATION LIMITS AS FIXED BY THE SCHEDULE CONTAINED IN HIS ORDER, NO. 6440. BUT TO CONSTRUE SUCH ORDER AS GIVING OR INTENDING TO GIVE AUTHORITY TO SUBORDINATES TO MAKE ADMINISTRATIVE PROMOTIONS, WITH PAYMENTS ACCORDINGLY, WOULD BE TO READ INTO SAID ORDER A PURPOSE IN THE PRESIDENT TO UTTERLY DISREGARD THE STATUTORY PROHIBITION AGAINST ADMINISTRATIVE PROMOTIONS FOUND IN SECTION 7 OF THE ACT OF MARCH 3, 1933, SUPRA.

EXECUTIVE ORDERS ARE ISSUED IN THE LIGHT OF EXISTING LAW AND IN FURTHERANCE OF THE PURPOSE OF THE LAW OR LAWS TO WHICH THEY HAVE RELATION, AND ARE SO TO BE UNDERSTOOD AND OBSERVED, AND SUBORDINATES MAY NOT BY THEIR CONDUCT PLACE THE EXECUTIVE IN A LIGHT OF PURPOSING TO DISREGARD RATHER THAN TO GIVE EFFECT TO STATUTORY LAW.

HOWEVER, AND EVEN IF THE LAW WERE OTHERWISE, IT IS TO BE OBSERVED THERE IS NOTHING IN EXECUTIVE ORDER NO. 6440 EVEN SUGGESTING AN EXECUTIVE PURPOSE TO AUTHORIZE EXPENDITURES FOR PERSONAL SERVICE IN DISREGARD OF THE PROHIBITION FOUND IN SECTION 7 OF THE ACT OF MARCH 3, 1933, SUPRA.

IT IS TRUE THAT SOME OF THE LAW OFFICERS IN THE EXECUTIVE BRANCH AND EVEN HEADS OF OFFICES HAVING UNCLASSIFIED EMPLOYEES, AND INCLUDING THE ATTORNEY GENERAL AS SUGGESTED BY YOU, APPEAR OF THE OPINION THAT BECAUSE, IN APPROPRIATING THE $3,300,000,000 BY THE ACT OF JUNE 16, 1933, TO CARRY OUT THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT, OF THE SAME DATE, AND CERTAIN OTHER LAWS AS STATED, THE CONGRESS PROVIDED THAT IN CARRYING INTO EFFECT THE PROVISIONS OF SAID LAWS THE APPROPRIATION MIGHT BE EXPENDED "IN THE DISCRETION AND UNDER THE DIRECTION OF THE PRESIDENT," THE AUTHORITY SO VESTED IN THE PRESIDENT WAS SUFFICIENTLY BROAD AS TO PERMIT EXPENDITURES FROM SAID APPROPRIATION IN DISREGARD OF OR EVEN IN DIRECT VIOLATION OF OTHER LAWS. THIS VIEW OVERLOOKS THE FACT THAT WHEN AN UNDEFINED DISCRETION IS GRANTED BY LAW IT IS A LEGAL DISCRETION AND NOT A DISCRETION TO DISREGARD OR TO VIOLATE STATUTORY LAW, AND THAT WHEN A BROADER AUTHORITY IS INTENDED,FOR INSTANCE, TO ACT IN DISREGARD OF OTHER LAWS, THE FORM OF LEGISLATION LONG FOLLOWED BY THE CONGRESS HAS BEEN TO SPECIFICALLY INCLUDE THE WORDS "NOTWITHSTANDING THE PROVISIONS OF OTHER LAWS" OR OTHER WORDS HAVING LIKE MEANING.

THERE CAN PROPERLY BE NO CLAIM OF GOOD FAITH OR OF JUSTIFIED ERROR ADVANCED ON BEHALF OF THE ACCOUNTABLE OFFICER HERE INVOLVED. DELIBERATELY MADE PAYMENTS RESTING UPON ADMINISTRATIVE PROMOTIONS AND THEREBY ASSUMED FULL RESPONSIBILITY ACCORDINGLY. HAD HE BEEN UNWILLING TO SO ASSUME FULL RESPONSIBILITY HE WAS AT LIBERTY UNDER THE LAW TO SUBMIT THE QUESTION TO THIS OFFICE FOR AN AUTHORITATIVE DECISION FOR HIS GUIDANCE AND PROTECTION. IF HE ELECTED TO BE GUIDED OR PERSUADED BY THE VIEWS OF LAW OFFICERS IN THE EXECUTIVE BRANCH, THAT WAS HIS AFFAIR. THE RESPONSIBILITY FOR FINAL DECISION OF ALL QUESTIONS GOING TO THE LEGAL AVAILABILITY OF APPROPRIATED PUBLIC MONEYS FOR A PROPOSED USE RESTS UPON THIS OFFICE AND ITS DECISIONS ARE BY LAW MADE FINAL AND CONCLUSIVE UPON THE EXECUTIVE BRANCH. THIS OFFICE WAS OPEN TO THE ACCOUNTABLE OFFICER FOR CONSIDERATION AND DECISION OF THE QUESTION AS TO THE LEGAL AVAILABILITY OF THE EMERGENCY APPROPRIATION FOR PAYMENTS BASED UPON ADMINISTRATIVE PROMOTIONS, HAD HE SUBMITTED THE QUESTION, WHICH HE DID NOT. ACCORDINGLY, THE AUDIT ACTION IN MAKING THE DISALLOWANCES MUST BE AND IS SUSTAINED.