A-62270, MAY 31, 1935, 14 COMP. GEN. 867

A-62270: May 31, 1935

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EMERGENCY POSITIONS IN REGULAR EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS ARE REQUIRED TO BE CLASSIFIED EITHER PURSUANT TO THE ENTIRE PROCEDURE ESTABLISHED BY THE CLASSIFICATION ACT AS AMENDED. OR TO CLASSIFY WITHOUT COMPLIANCE WITH ALL OF THE REQUIREMENTS OF WHICHEVER OF THE TWO AUTHORIZED PROCEDURES IS ADOPTED. WHICH READS AS FOLLOWS: "THE POSITIONS OF EMPLOYEES IN EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS WHO ARE PAID FROM EMERGENCY FUNDS SHALL BE CLASSIFIED UNDER THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923. THE QUESTION UPON WHICH A RULING IS REQUESTED MAY BE WORDED AS FOLLOWS: IF. IT WILL BE OBSERVED. IN QUESTION STATES THAT POSITIONS IN THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS THAT ARE PAID FROM EMERGENCY FUNDS "SHALL BE CLASSIFIED UNDER THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923.

A-62270, MAY 31, 1935, 14 COMP. GEN. 867

CLASSIFICATION - EMERGENCY POSITIONS UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, EMERGENCY POSITIONS IN REGULAR EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS ARE REQUIRED TO BE CLASSIFIED EITHER PURSUANT TO THE ENTIRE PROCEDURE ESTABLISHED BY THE CLASSIFICATION ACT AS AMENDED, OR THE ENTIRE PROCEDURE SET FORTH IN THE EXECUTIVE ORDER, AND THERE EXISTS NO AUTHORITY TO ADOPT A PART OF ONE PROCEDURE AND A PART OF ANOTHER, OR TO CLASSIFY WITHOUT COMPLIANCE WITH ALL OF THE REQUIREMENTS OF WHICHEVER OF THE TWO AUTHORIZED PROCEDURES IS ADOPTED.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, MAY 31, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 18, 1935, AS FOLLOWS:

THE COMMISSION WOULD APPRECIATE YOUR DECISION ON THE INTERPRETATION OF THE PARAGRAPH IMMEDIATELY FOLLOWING THE SCHEDULES OF RATES APPEARING IN THE EXECUTIVE ORDER OF JUNE 21, 1934 (NO. 6746), WHICH READS AS FOLLOWS:

"THE POSITIONS OF EMPLOYEES IN EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS WHO ARE PAID FROM EMERGENCY FUNDS SHALL BE CLASSIFIED UNDER THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED: PROVIDED, THAT THE HEADS OF SUCH DEPARTMENTS AND ESTABLISHMENTS MAY ELECT TO FIX SUCH RATES OF COMPENSATION EITHER UNDER THE SAID CLASSIFICATION ACT OR IN ACCORDANCE WITH THE SALARY SCHEDULE PRESCRIBED IN THIS ORDER.'

THE QUESTION UPON WHICH A RULING IS REQUESTED MAY BE WORDED AS FOLLOWS:

IF, UNDER THIS PARAGRAPH, AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT WHICH HAS BEEN ALLOTTED EMERGENCY FUNDS ELECTS TO FIX "UNDER THE SAID CLASSIFICATION ACT" COMPENSATION RATES FOR DEPARTMENTAL POSITIONS PAID FROM SUCH FUNDS, MAY SUCH RATES BE FIXED BY THE DEPARTMENT OR ESTABLISHMENT WITHOUT REGARD TO THE DUTY AND AUTHORITY OF THE CIVIL SERVICE COMMISSION UNDER THE CLASSIFICATION ACT?

THE QUESTION, IT WILL BE OBSERVED, DEALS WITH THE JURISDICTION OF THE COMMISSION UNDER SECTION 4 OF THE CLASSIFICATION ACT OF 1923 TO REVIEW AND IF NECESSARY REVISE THE ALLOCATION RECOMMENDATIONS OF DEPARTMENT HEADS, THE ALLOCATIONS BEING FINAL UPON THEIR APPROVAL BY THE COMMISSION. THE PARAGRAPH OF THE EXECUTIVE ORDER OF JUNE 21, 1934, IN QUESTION STATES THAT POSITIONS IN THE EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS THAT ARE PAID FROM EMERGENCY FUNDS "SHALL BE CLASSIFIED UNDER THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED" IF THE HEAD OF DEPARTMENT SO ELECTS IN LIEU OF HIS UTILIZING THE SALARY SCHEDULE PRESCRIBED IN THE ORDER FOR THE EMERGENCY AGENCIES. THE PROCEDURE OF REVIEW OF ALLOCATIONS BY THE COMMISSION IS, OF COURSE, ONE OF THESE PROVISIONS--- IN FACT A MOST FUNDAMENTAL ONE IN THE INTEREST OF UNIFORMITY AND EQUITY.

THE COMMISSION'S VIEW IS (1) THAT WHILE THE EXECUTIVE ORDER OF JUNE 21, 1934, AUTHORIZES THE HEADS OF DEPARTMENTS TO ELECT TO FIX COMPENSATION RATES FOR DEPARTMENTAL POSITIONS PAID FROM EMERGENCY FUNDS UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, IN LIEU OF FIXING SUCH RATES UNDER THE EXECUTIVE-ORDER SCHEDULE (A-39245, A-38328, JANUARY 15, 1935), IT DOES NOT AUTHORIZE THEM TO ELECT WHICH OF THE PROVISIONS OF THE CLASSIFICATION ACT THEY DESIRE TO FOLLOW AND WHICH THEY DESIRE TO IGNORE; (2) THAT IF THEY DO NOT DESIRE TO FOLLOW ALL THE PROVISIONS OF THE CLASSIFICATION ACT, AS EXPLAINED BY DECISIONS OF YOUR OFFICE, THE EXECUTIVE ORDER PERMITS THEM TO FIX SALARY RATES UNDER EMERGENCY APPROPRIATION ALLOTMENTS NOT IN EXCESS OF THE RATES OF THE EXECUTIVE-ORDER SCHEDULE; AND (3) THAT THE EXECUTIVE ORDER DOES NOT PERMIT THEM TO COMPENSATE POSITIONS UNDER THE SERVICES AND GRADES OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, WITHOUT THE COMMISSION'S PRIOR APPROVAL OF THE ALLOCATIONS OF SUCH POSITIONS, EXCEPT IN THE CASE OF ADDITIONAL POSITIONS THAT ARE "IDENTICAL IN ALL RESPECTS" TO OTHERS WHOSE ALLOCATIONS HAVE ALREADY BEEN APPROVED BY THE COMMISSION (9 COMP. GEN. 101, SEPTEMBER 3, 1929).

SOME OF THE EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS TO WHICH ALLOTMENTS OF EMERGENCY FUNDS HAVE BEEN GRANTED HAVE ELECTED, UNDER THE EXECUTIVE ORDER, TO CONFORM TO THE REGULAR PROCEDURE UNDER THE CLASSIFICATION ACT, INCLUDING, IN THE CASE OF DEPARTMENTAL POSITIONS, REVIEW BY THE COMMISSION; OTHERS, UNDER THE SAME EXECUTIVE ORDER, HAVE ELECTED TO FOLLOW THE SERVICES AND GRADES OF THE CLASSIFICATION ACT WITHOUT RECOGNIZING THE JURISDICTION OVER THE ALLOCATION OF DEPARTMENTAL POSITIONS VESTED IN THE COMMISSION BY SUCH ACT.

HENCE, IN ORDER THAT THERE MAY BE UNIFORMITY OF PRACTICE, IT IS DESIRABLE FOR YOUR OFFICE TO DECIDE WHAT THE EXECUTIVE ORDER OF JUNE 21, 1934, REQUIRES IN THIS RESPECT.

THE PARAGRAPH OF THE EXECUTIVE ORDER IMMEDIATELY FOLLOWING THE ONE QUOTED IN YOUR LETTER IS AS FOLLOWS:

ALL CLASSIFICATIONS MADE PURSUANT TO THIS ORDER, EXCEPT THOSE MADE IN ACCORDANCE WITH THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, SHALL BE SUBJECT TO REVIEW AND REVISION BY THE CIVIL SERVICE COMMISSION UPON THE REQUEST OF THE EXECUTIVE COUNCIL. IN THE EVENT ANY CLASSIFICATION MADE BY THE HEAD OF A DEPARTMENT OR AN AGENCY PURSUANT TO THIS ORDER IS REVISED BY THE CIVIL SERVICE COMMISSION, THE REVISED CLASSIFICATION SHALL BE FINAL AND EFFECTIVE BEGINNING THE FIRST DAY OF THE FIRST MONTH AFTER SUCH REVISION IS REPORTED BY THE EXECUTIVE COUNCIL TO THE HEAD OF THE DEPARTMENT OR AGENCY CONCERNED.

THE EXECUTIVE ORDER REQUIRES ALL EMERGENCY POSITIONS, NOT EXPRESSLY EXCEPTED BY ITS TERMS, TO BE CLASSIFIED. WITH RESPECT TO SUCH EMERGENCY POSITIONS IN THE REGULAR EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS, TWO SEPARATE AND DISTINCT PROCEDURES ARE MADE AVAILABLE--- (1) THE PROCEDURE ESTABLISHED BY THE CLASSIFICATION ACT, AS AMENDED, AND (2) THE NEW PROCEDURE SET FORTH IN THE EXECUTIVE ORDER. WHILE THE HEADS OF EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS ARE GRANTED AN ELECTION TO PROCEED UNDER EITHER PROCEDURE IN CLASSIFYING AND FIXING THE SALARY RATES OF EMERGENCY POSITIONS UNDER THEIR RESPECTIVE DEPARTMENTS OR ESTABLISHMENTS, AND MAY EXERCISE SUCH ELECTION WITH RESPECT TO ANY EMERGENCY POSITION OR GROUP OF POSITIONS WITH THE RESULT THAT SOME OF THE EMERGENCY POSITIONS IN ANY SUCH DEPARTMENT OR ESTABLISHMENT MAY BE CLASSIFIED UNDER ONE PROCEDURE AND SOME UNDER THE OTHER PROCEDURE, THERE EXISTS NO AUTHORITY TO ADOPT A PART OF ONE PROCEDURE AND A PART OF THE OTHER, OR TO CLASSIFY WITHOUT COMPLIANCE WITH ALL OF THE REQUIREMENTS OF WHICHEVER OF THE TWO AUTHORIZED PROCEDURES IS ADOPTED.

THAT DEPARTMENT HEADS WHO ELECT TO CLASSIFY UNDER THE CLASSIFICATION ACT, AS AMENDED, ARE NOT AUTHORIZED TO DISREGARD THE PROCEDURE PRESCRIBED IN SAID ACT, IS CLEARLY SHOWN BY THE PARAGRAPH OF THE EXECUTIVE ORDER ABOVE QUOTED VESTING IN THE EXECUTIVE COUNCIL THE AUTHORITY TO REQUEST THE CIVIL SERVICE COMMISSION TO REVIEW OR REVISE CLASSIFICATIONS "EXCEPT THOSE MADE IN ACCORDANCE WITH THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.'