A-67454, NOVEMBER 27, 1935, 15 COMP. GEN. 448

A-67454: Nov 27, 1935

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IS NOT AUTHORIZED WITHOUT THE APPROVAL OF THE PRESIDENT. 1935: THERE WAS RECEIVED YOUR LETTER OF NOVEMBER 7. NELTHROPP WERE APPOINTED BY THE SECRETARY AND ASSIGNED TO DUTIES IN CONNECTION WITH FEDERAL PROJECT NO. 16 OF THE VIRGIN ISLANDS PUBLIC WORKS PROGRAM. THIS PROJECT WAS ESTABLISHED IN CONNECTION WITH THE VIRGIN ISLANDS COMPANY FOR THE PURPOSE OF RECONDITIONING AND RECONSTRUCTING AN ASSEMBLED AGRICULTURAL AND INDUSTRIAL PLANT WHICH WAS LATER MADE THE SUBJECT OF OPERATING AGREEMENTS BETWEEN THE UNITED STATES GOVERNMENT AND THE VIRGIN ISLANDS COMPANY. WHEREAS HIS APPOINTMENT IN THE VIRGIN ISLANDS COMPANY WAS FOR THE PURPOSE OF SUPERVISING THE PLANTING OF CANE. THEIR EMPLOYMENT WAS CONTINUOUS UNDER THE DEPARTMENT OF THE INTERIOR IRRESPECTIVE OF THE PARTICULAR ACTIVITY INVOLVED.

A-67454, NOVEMBER 27, 1935, 15 COMP. GEN. 448

OFFICERS AND EMPLOYEES - TRANSFERRED TO POSITIONS PAID FROM EMERGENCY FUNDS THE TRANSFER OF AN EMPLOYEE FROM THE DEPARTMENT OF THE INTERIOR TO THE VIRGIN ISLANDS COMPANY, AN INSTRUMENTALITY OF THE UNITED STATES OPERATING WITH EMERGENCY FUNDS, AT AN INCREASE IN COMPENSATION, FALLS WITHIN THE TERMS OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, AND IS NOT AUTHORIZED WITHOUT THE APPROVAL OF THE PRESIDENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, NOVEMBER 27, 1935:

THERE WAS RECEIVED YOUR LETTER OF NOVEMBER 7, 1935, AS FOLLOWS:

MR. IRA L. WRIGHT, YOUR REPRESENTATIVE IN THE VIRGIN ISLANDS, IN A PREAUDIT DIFFERENCE STATEMENT ATTACHED TO THE VIRGIN ISLANDS COMPANY PAY ROLL, STATES THAT THE INCREASES IN THE SALARIES OF THE EMPLOYEES MENTIONED THEREIN APPEAR TO BE PROHIBITED BY EXECUTIVE ORDER OF THE PRESIDENT, NO. 7070, DATED JUNE 12, 1935, AND THAT, THEREFORE, THE INCREASES CANNOT BE CERTIFIED FOR PAYMENT. I AM SENDING YOU HEREWITH THE FOLLOWING PAPERS FOR YOUR CONSIDERATION:

1. THE VIRGIN ISLANDS COMPANY PAY ROLL COVERING THE PAY OF FIVE PERSONS FOR THE PERIOD FROM OCTOBER 1 TO OCTOBER 15, 1935, WITH THE PREAUDIT DIFFERENCE STATEMENT, ABOVE REFERRED TO, ON THE SALARIES OF JAMES C. TILY, GLEN BRIGGS, DOUGLAS BLACKWOOD, AND CEDRIC C. NELTHROPP.

2. SCHEDULE OF APPOINTMENTS, TOGETHER WITH COPIES OF THE APPOINTMENTS OF THE EMPLOYEES IN QUESTION.

MESSRS. TILY, BRIGGS, BLACKWOOD, AND NELTHROPP WERE APPOINTED BY THE SECRETARY AND ASSIGNED TO DUTIES IN CONNECTION WITH FEDERAL PROJECT NO. 16 OF THE VIRGIN ISLANDS PUBLIC WORKS PROGRAM. THIS PROJECT WAS ESTABLISHED IN CONNECTION WITH THE VIRGIN ISLANDS COMPANY FOR THE PURPOSE OF RECONDITIONING AND RECONSTRUCTING AN ASSEMBLED AGRICULTURAL AND INDUSTRIAL PLANT WHICH WAS LATER MADE THE SUBJECT OF OPERATING AGREEMENTS BETWEEN THE UNITED STATES GOVERNMENT AND THE VIRGIN ISLANDS COMPANY.

IN THE CASE OF MR. BRIGGS, HIS DUTIES IN CONNECTION WITH P.W.A. FEDERAL PROJECT NO. 16 COVERED THE CLEARING OF LAND AND CONDITIONING OF SAME FOR CULTIVATION, WHEREAS HIS APPOINTMENT IN THE VIRGIN ISLANDS COMPANY WAS FOR THE PURPOSE OF SUPERVISING THE PLANTING OF CANE, WEEDING, AND OTHERWISE CARING FOR THE OPERATION OF THE LANDS. THE SAME CONDITIONS PREVAIL IN CONNECTION WITH THE TRANSFER OF MR. TILY IN THE ENGINEERING DIVISION AND TO MESSRS. BLACKWOOD AND NELTHROPP IN THE AGRICULTURAL DIVISION. THEIR EMPLOYMENT WAS CONTINUOUS UNDER THE DEPARTMENT OF THE INTERIOR IRRESPECTIVE OF THE PARTICULAR ACTIVITY INVOLVED. AS THE PUBLIC WORKS ADMINISTRATION END OF THE PROGRAM IS COMPLETED, THE PERSONNEL IS TRANSFERRED FROM TIME TO TIME TO THE VIRGIN ISLANDS COMPANY, A FEDERAL AGENCY SET UP TO OPERATE THE PROPERTIES.

THE BOARD OF DIRECTORS OF THE VIRGIN ISLANDS COMPANY APPROVED THE TRANSFER OF MR. JAMES C. TILY FROM F.P. NO. 16 TO THE VIRGIN ISLANDS COMPANY ON FEBRUARY 1, 1935, TO BE EFFECTIVE WHEN HIS DUTIES IN CONNECTION WITH THE P.W.A. PROJECT WERE COMPLETED. THE EFFECTIVE DATE OF HIS VIRGIN ISLANDS COMPANY APPOINTMENT WAS SEPTEMBER 1, 1935. THE SAME THEORY APPLIED IN CONNECTION WITH THE TRANSFER OF MESSRS. BRIGGS, BLACKWOOD, AND NELTHROPP, BUT AS THEY WERE NOT OFFICERS OF THE VIRGIN ISLANDS COMPANY IT WAS NOT NECESSARY FOR THE BOARD OF DIRECTORS TO TAKE ACTION.

IT IS MY BELIEF THAT THE EXECUTIVE ORDER OF THE PRESIDENT IS INTENDED TO APPLY ONLY TO TRANSFERS BETWEEN THE DEPARTMENTS OF THE GOVERNMENT AND INDEPENDENT AGENCIES AND THAT IT DOES NOT APPLY TO THE VIRGIN ISLANDS PROJECTS, WHICH ARE ALL UNDER THE DEPARTMENT OF THE INTERIOR.

I SUBMIT THIS MATTER TO YOU WITH THE REQUEST THAT IT RECEIVE YOUR PROMPT AND FAVORABLE CONSIDERATION.

EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, IS ENTITLED "REGULATIONS GOVERNING APPOINTMENTS OF EMPLOYEES PAID FROM EMERGENCY FUNDS.' THE TRANSFERS OF EMPLOYEES WITH AN INCREASE IN COMPENSATION PAID FROM EMERGENCY FUNDS FOR WHICH THIS EXECUTIVE ORDER REQUIRES THE APPROVAL OF THE PRESIDENT ARE THOSE BETWEEN THE "SEVERAL EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND EMERGENCY AGENCIES," INSOFAR AS THE USE OF EMERGENCY FUNDS IS CONCERNED. IT HAS BEEN HELD THAT THE VIRGIN ISLANDS COMPANY IS AN INSTRUMENTALITY OF THE UNITED STATES OPERATING WITH EMERGENCY FUNDS (14 COMP. GEN. 798). IN THAT DECISION, DATED APRIL 27, 1935, IT WAS STATED AS FOLLOWS:

* * * THE VIRGIN ISLANDS CO., WHICH WAS CHARTERED BY AN ORDINANCE PASSED APRIL 9, 1934, BY THE COLONIAL COUNCIL OF THE MUNICIPALITIES OF ST. THOMAS AND ST. JOHN AND WAS APPROVED APRIL 16, 1934, BY THE GOVERNOR OF THE VIRGIN ISLANDS GOVERNMENT. THE INCORPORATORS WERE HAROLD L. ICKES, OSCAR L. CHAPMAN, AND PAUL H. PEARSON, WHO SUBSCRIBED FOR ONE SHARE OF STOCK EACH. THE THREE INCORPORATORS OF THE VIRGIN ISLANDS CO. ARE OFFICIALS OF THE UNITED STATES, AND IF THERE BE ANY BASIS WHATEVER FOR THE INCORPORATION OF THE VIRGIN ISLANDS CO., UNDER THE LAWS OF THE GOVERNMENT OF THE VIRGIN ISLANDS, IT WAS INCORPORATED AS AN INSTRUMENTALITY OF THE UNITED STATES. * * *

WHILE THE CHAIRMAN OF THE BOARD OF DIRECTORS OF THE VIRGIN ISLANDS COMPANY IS THE SECRETARY OF THE INTERIOR, IT IS NEVERTHELESS AN AGENCY OR INSTRUMENTALITY OF THE UNITED STATES WITHIN THE MEANING OF THE EXECUTIVE ORDER HERE IN QUESTION, AND THE FUNDS WITH WHICH IT OPERATES ARE NOT DERIVED FROM APPROPRIATIONS MADE TO, OR ALLOCATIONS FOR EXPENDITURE UNDER, THE DEPARTMENT OF THE INTERIOR. ACCORDINGLY, A TRANSFER OF AN EMPLOYEE FROM THE DEPARTMENT OF THE INTERIOR TO THE VIRGIN ISLANDS COMPANY AT AN INCREASE IN COMPENSATION FALLS WITHIN THE TERMS OF THE EXECUTIVE ORDER AND IS NOT AUTHORIZED WITHOUT THE APPROVAL OF THE PRESIDENT. THEREFORE, THE AUDIT ACTION MUST BE AND IS SUSTAINED.