A-71100, MARCH 18, 1936, 15 COMP. GEN. 822

A-71100: Mar 18, 1936

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IS NOT FOR SUBMISSION TO THE PRESIDENT AS FOR APPROVAL OF A TRANSFER AT AN INCREASE IN SALARY UNDER EXECUTIVE ORDER NO. 7070. WHERE EXTENDED DELAY IN THE SUBMISSION THEREOF WAS DUE TO THE NONDISCLOSURE OF THE EMPLOYEE OF HER FORMER EMPLOYMENT. 1936: THERE WAS RECEIVED FEBRUARY 14. WAS EMPLOYED. WHEN THE PAPERS REACHED THE DEPARTMENT A FEW WEEKS LATER IT WAS DISCOVERED THAT MRS. STEPS WERE TAKEN TO OBTAIN THE CONSENT OF THE WORKS PROGRESS ADMINISTRATION AND A FORM 375 FOR SUBMISSION TO THE PRESIDENT THROUGH THE BUREAU OF THE BUDGET FOR APPROVAL. THE RECORD WAS NOT IN FORM FOR PRESENTATION TO THE BUDGET OFFICE UNTIL JANUARY 14. COPY OF BUDGET OFFICE LETTER OF FEBRUARY 5 IS ATTACHED. IN WHICH THE QUESTION IS RAISED WHETHER THE LAPSE OF TIME SINCE THE DATE OF EMPLOYMENT WOULD BE WITHIN THE MEANING OF YOUR DECISION OF SEPTEMBER 24.

A-71100, MARCH 18, 1936, 15 COMP. GEN. 822

OFFICERS AND EMPLOYEES - VOLUNTARY SEPARATION - APPOINTMENTS AT INCREASED SALARIES - EMERGENCY APPROPRIATIONS THE MATTER OF THE APPOINTMENT TO A HIGHER SALARIED POSITION PAID FROM EMERGENCY FUNDS IMMEDIATELY FOLLOWING VOLUNTARY SEPARATION FROM A POSITION IN ANOTHER FEDERAL AGENCY, ALSO PAID FROM EMERGENCY FUNDS, IS NOT FOR SUBMISSION TO THE PRESIDENT AS FOR APPROVAL OF A TRANSFER AT AN INCREASE IN SALARY UNDER EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, WHERE EXTENDED DELAY IN THE SUBMISSION THEREOF WAS DUE TO THE NONDISCLOSURE OF THE EMPLOYEE OF HER FORMER EMPLOYMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, MARCH 18, 1936:

THERE WAS RECEIVED FEBRUARY 14, 1936, YOUR UNDATED LETTER AS FOLLOWS:

TO MEET A NEED FOR STENOGRAPHIC AND CLERICAL SERVICES IN THE PROCUREMENT OFFICE AT SEATTLE, WASHINGTON, FOR EMERGENCY CONSERVATION WORK CARRIED ON UNDER THE NATIONAL PARK SERVICE, MRS. MADGE E. MOSS, WAS EMPLOYED, UNDER AN EMERGENCY FIELD AGREEMENT, AS JUNIOR STENOGRAPHER AT $1,440 PER ANNUM, EFFECTIVE SEPTEMBER 4, 1935. WHEN THE PAPERS REACHED THE DEPARTMENT A FEW WEEKS LATER IT WAS DISCOVERED THAT MRS. MOSS HAD BEEN SERVING UNDER TEMPORARY EMPLOYMENT IN THE WORKS PROGRESS ADMINISTRATION FROM AUGUST 26 TO SEPTEMBER 3, 1935, AS STENOGRAPHER AT $85 PER MONTH, LEAVING THAT POSITION TO ACCEPT EMPLOYMENT IN THIS DEPARTMENT.

IN VIEW OF THE APPARENT CONFLICT IN THIS EMPLOYMENT WITH THE TERMS OF EXECUTIVE ORDER OF JUNE 12, 1935 (7070), STEPS WERE TAKEN TO OBTAIN THE CONSENT OF THE WORKS PROGRESS ADMINISTRATION AND A FORM 375 FOR SUBMISSION TO THE PRESIDENT THROUGH THE BUREAU OF THE BUDGET FOR APPROVAL.

THE RECORD WAS NOT IN FORM FOR PRESENTATION TO THE BUDGET OFFICE UNTIL JANUARY 14. COPY OF BUDGET OFFICE LETTER OF FEBRUARY 5 IS ATTACHED, IN WHICH THE QUESTION IS RAISED WHETHER THE LAPSE OF TIME SINCE THE DATE OF EMPLOYMENT WOULD BE WITHIN THE MEANING OF YOUR DECISION OF SEPTEMBER 24, 1935 (15 C.G. 243), RELATING TO PRESIDENTIAL APPROVAL. THE DELAY IN PRESENTING THE MATTER TO THE BUREAU OF THE BUDGET FOR THE PRESIDENT'S ACTION WAS OCCASIONED BY NEEDED CORRESPONDENCE TO OBTAIN THE REQUIRED INFORMATION, AS CALLED FOR IN BUDGET CIRCULAR NO. 332, DATED JULY 16, 1935.

THE RULE IN QUESTION WAS STATED IN DECISION OF SEPTEMBER 24, 1935, 15 COMP. GEN. 243, AS FOLLOWS (QUOTING FROM PAGE 245):

IF AT OR ABOUT THE TIME OF TRANSFER TO A POSITION THE SALARY OF WHICH IS TO BE PAID FROM EMERGENCY FUNDS THE PRESIDENT IS ASKED TO APPROVE THE TRANSFER AT AN INCREASE, THE PRESIDENT'S APPROVAL, WHEN GIVEN, MAY RELATE BACK TO THE DATE OF ENTRY UPON DUTY UNDER THE APPOINTMENT AND WILL AUTHORIZE PAYING THE INCREASE FROM THAT DATE OR FROM ANY DATE SUBSEQUENT THERETO, IF, PENDING THE PRESIDENT'S ACTION, THE ESTABLISHMENT TO WHICH THE EMPLOYEE IS TRANSFERRED HAS PAID THE EMPLOYEE NO COMPENSATION. ALSO, THE PRESIDENT'S APPROVAL MAY RELATE BACK IN THE SAME MANNER IF THE EMPLOYEE HAS BEEN PAID COMPENSATION, BUT, OF COURSE, THE ADDITIONAL COMPENSATION PAYABLE WOULD BE ONLY THE DIFFERENCE BETWEEN THE OLD RATE AND THE INCREASED RATE AUTHORIZED BY THE PRESIDENT. THERE IS NO AUTHORITY FOR THE ESTABLISHMENT FROM WHICH THE EMPLOYEE IS BEING TRANSFERRED TO CONTINUE TO PAY SALARY TO THE EMPLOYEE AFTER HE IS APPOINTED BY AND ENTERS UPON DUTY UNDER THE ESTABLISHMENT TO WHICH HE IS BEING TRANSFERRED.

SECTIONS 2 AND 3 OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, ARE AS FOLLOWS:

2. NO OFFICER OR REPRESENTATIVE OF ANY DEPARTMENT OR AGENCY SHALL CONTACT OR NEGOTIATE WITH AN EMPLOYEE OF ANOTHER DEPARTMENT OR AGENCY WITH A VIEW TO EFFECTING THE TRANSFER OF SUCH EMPLOYEE UNTIL PERMISSION FOR SUCH CONTACT OR NEGOTIATION HAS BEEN GIVEN BY THE HEAD OF THE DEPARTMENT OR AGENCY IN WHICH SUCH EMPLOYEE IS EMPLOYED.

3. IF SUCH TRANSFER IS APPROVED, THE SALARY OF THE EMPLOYEE TRANSFERRED TO A POSITION THE SALARY OF WHICH IS PAID FROM EMERGENCY FUNDS SHALL NOT BE INCREASED AT THE TIME OF THE TRANSFER EXCEPT UPON THE APPROVAL OF THE PRESIDENT, AND THEREAFTER NO INCREASE SHALL BE MADE IN THE SALARY OF SUCH EMPLOYEE PAID FROM EMERGENCY FUNDS FOR A PERIOD OF AT LEAST SIX MONTHS.

IT APPEARS THAT MRS. MOSS DID NOT DISCLOSE TO YOUR DEPARTMENT HER EMPLOYMENT BY WORKS PROGRESS ADMINISTRATION AND THAT IT WAS NOT UNTIL SOME TIME AFTER THE TRANSFER BECAME AN ACCOMPLISHED FACT THAT YOUR DEPARTMENT LEARNED OF HER FORMER EMPLOYMENT UNDER THE WORKS PROGRESS ADMINISTRATION. THEREFORE THERE WAS NOT AND, UNDER THE CIRCUMSTANCES, COULD NOT HAVE BEEN COMPLIANCE WITH THE REQUIREMENTS OF THE PROVISIONS OF EITHER OF THE ABOVE- QUOTED PARAGRAPHS OF EXECUTIVE ORDER NO. 7070.

WHILE THE UNAUTHORIZED APPOINTMENT WAS MADE IN SEPTEMBER 1935 IT APPEARS THAT IT WAS NOT UNTIL JANUARY 1936 THAT THE MATTER WAS SUBMITTED WITH A VIEW TO OBTAINING APPROVAL BY THE PRESIDENT OF THE TRANSFER AT AN INCREASE IN SALARY AND IT IS CLEAR THERE WAS NOT AT THE TIME OF THE TRANSFER AN UNDERSTANDING BETWEEN YOUR DEPARTMENT AND THE EMPLOYEE THAT THE INCREASE IN COMPENSATION WAS SUBJECT TO AND CONTINGENT UPON APPROVAL BY THE PRESIDENT. CONSEQUENTLY, THE MATTER IS NOT NOW PROPERLY FOR SUBMISSION TO THE PRESIDENT AS FOR APPROVAL OF A TRANSFER AT AN INCREASE IN SALARY, AND THE PAYMENT OF THE INCREASE FROM SEPTEMBER 4, 1935, IS ILLEGAL AND UNAUTHORIZED.