A-61355, APRIL 23, 1935, 14 COMP. GEN. 785

A-61355: Apr 23, 1935

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TEMPORARY EMPLOYMENT DURING ABSENCE WITHOUT PAY OF PERMANENT EMPLOYEE IF THERE ARE SUFFICIENT UNOBLIGATED FUNDS UNDER AN APPROPRIATION AVAILABLE BOTH FOR EMPLOYMENT OF PERMANENT AND TEMPORARY PERSONNEL. A TEMPORARY POSITION MAY BE ADMINISTRATIVELY CREATED AND FILLED FOR PERFORMANCE OF DUTIES IDENTICAL WITH THOSE OF A PERMANENT POSITION DURING A PERIOD THE PERMANENT EMPLOYEE IS ABSENT WITHOUT PAY. AS A RESULT OF HER INJURIES THE EFFICIENCY OF THE OFFICE IS IMPAIRED AND THE PUBLIC SERVICE NECESSARILY JEOPARDIZED. IT IS ABSOLUTELY NECESSARY THAT AN EMPLOYEE BE PLACED IN THE POSITION AND BE KEPT THERE AT ALL TIMES. THE INJURED EMPLOYEE IS NOW RECEIVING EMPLOYEES' COMPENSATION AND THE UNEXPENDED PORTION OF SAID INJURED EMPLOYEE'S SALARY IS AVAILABLE TO PAY THE SALARY OF A SUBSTITUTE.

A-61355, APRIL 23, 1935, 14 COMP. GEN. 785

TEMPORARY EMPLOYMENT DURING ABSENCE WITHOUT PAY OF PERMANENT EMPLOYEE IF THERE ARE SUFFICIENT UNOBLIGATED FUNDS UNDER AN APPROPRIATION AVAILABLE BOTH FOR EMPLOYMENT OF PERMANENT AND TEMPORARY PERSONNEL, A TEMPORARY POSITION MAY BE ADMINISTRATIVELY CREATED AND FILLED FOR PERFORMANCE OF DUTIES IDENTICAL WITH THOSE OF A PERMANENT POSITION DURING A PERIOD THE PERMANENT EMPLOYEE IS ABSENT WITHOUT PAY.

COMPTROLLER GENERAL MCCARL TO THE RECORDER OF DEEDS, DISTRICT OF COLUMBIA, APRIL 23, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 11, 1935, AS FOLLOWS:

THE DELIVERY CLERK IN THIS OFFICE, WHILE IN THE DISCHARGE OF HER DUTIES FELL AND BROKE HER HIP, THEREBY INCAPACITATING THAT EMPLOYEE TO PERFORM HER DUTY AS SUCH DELIVERY CLERK IN THIS DEPARTMENT. THE INJURY OCCURRED ON THE 20TH DAY OF SEPTEMBER 1934, AND SAID EMPLOYEE CONTINUES TO BE TOTALLY INCAPACITATED TO PERFORM HER SAID DUTIES. AS A RESULT OF HER INJURIES THE EFFICIENCY OF THE OFFICE IS IMPAIRED AND THE PUBLIC SERVICE NECESSARILY JEOPARDIZED.

IT IS ABSOLUTELY NECESSARY THAT AN EMPLOYEE BE PLACED IN THE POSITION AND BE KEPT THERE AT ALL TIMES. THE INJURED EMPLOYEE IS NOW RECEIVING EMPLOYEES' COMPENSATION AND THE UNEXPENDED PORTION OF SAID INJURED EMPLOYEE'S SALARY IS AVAILABLE TO PAY THE SALARY OF A SUBSTITUTE. YOUR OPINION IS REQUESTED ON THE FOLLOWING QUESTIONS:

CAN THE RECORDER OF DEEDS MAKE A TEMPORARY APPOINTMENT TO THIS POSITION DURING THE ILLNESS OF THE INCUMBENT AND PAY SAID TEMPORARY EMPLOYEE OUT OF THE FUND AVAILABLE AS SALARY OF THE PRESENT INCUMBENT?

IS IT NECESSARY THAT PRESIDENTIAL AUTHORITY BE SECURED BEFORE MAKING SUCH AN APPOINTMENT?

IN DECISION OF MARCH 3, 1925, 4 COMP. GEN. 729, 730, THE GENERAL RULES APPLICABLE IN SUCH A CASE AS YOU PRESENT ARE STATED AS FOLLOWS:

A POSITION IN THE GOVERNMENT SERVICE IN THE DISTRICT OF COLUMBIA WITH A SALARY FIXED BY LAW CANNOT BE HELD BY MORE THAN ONE PERSON AT ONE TIME. IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY FOR EMPLOYMENT OF SUBSTITUTES, SO LONG AS A REGULAR EMPLOYEE OF THE GOVERNMENT CONTINUES AS SUCH ON THE RECORDS OF THE ADMINISTRATIVE OFFICE, EITHER ON DUTY, OR ABSENT ON LEAVE WITH OR WITHOUT PAY, NO OTHER PERSON CAN BE APPOINTED, TEMPORARILY OR PERMANENTLY, TO THE POSITION HE HOLDS. 15 COMP. DEC. 855; 20 ID. 584; DECISION OF OCTOBER 4, 1921, 2 M.S. COMP. GEN. 135. THE CLASSIFICATION ACT OF 1923 AUTHORIZES NO CHANGE IN THIS RULE.

THERE IS, HOWEVER, NO STATUTORY PROHIBITION AGAINST THE TEMPORARY DETAIL OR ASSIGNMENT OF ANOTHER EMPLOYEE TO PERFORM THE WORK OF A REGULAR EMPLOYEE ABSENT ON LEAVE. IF THE APPROPRIATION PROVIDING FOR THE PERFORMANCE OF THE WORK OF A REGULAR EMPLOYEE IS ALSO AVAILABLE FOR EMPLOYMENT OF TEMPORARY PERSONAL SERVICES, THERE WOULD BE NO LEGAL OBJECTION TO THE CREATION AND ALLOCATION TO PROPER GRADE UNDER THE CLASSIFICATION ACT OF 1923, OF A TEMPORARY POSITION, WITH THE APPROVAL OF THE PERSONNEL CLASSIFICATION BOARD, SEPARATE AND DISTINCT FROM THE PERMANENT POSITION HELD BY THE REGULAR EMPLOYEE, THE INCUMBENT OF THE TEMPORARY POSITION TO PERFORM THE WORK OF THE REGULAR EMPLOYEE DURING HIS ABSENCE FROM DUTY.

THE APPROPRIATION ITEM IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE CURRENT FISCAL YEAR "FOR PERSONAL SERVICES," UNDER THE HEADING "RECORDER OF DEEDS," ACT OF JUNE 4, 1934, 48 STAT. 850, IS AVAILABLE FOR EMPLOYMENT OF BOTH PERMANENT AND TEMPORARY EMPLOYEES.

IF THERE IS A SUFFICIENT UNOBLIGATED AMOUNT UNDER SAID APPROPRIATION FOR PAYMENT OF THE SALARY OF A TEMPORARY EMPLOYEE, AND A TEMPORARY POSITION IS ADMINISTRATIVELY CREATED, THE DUTIES OF WHICH ARE IDENTICAL WITH THE DUTIES OF THE PERMANENT POSITION, YOUR FIRST QUESTION IS ANSWERED IN THE AFFIRMATIVE. PRESIDENTIAL AUTHORITY FOR THE FILLING OF TEMPORARY POSITIONS IS NOT REQUIRED.