A-7434, FEBRUARY 9, 1925, 4 COMP. GEN. 675

A-7434: Feb 9, 1925

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DELEGATION OF AUTHORITY AN EMPLOYEE OF THE GOVERNMENT IS NOT ENTITLED TO COMPENSATION FOR ANY PERIOD PRIOR TO THE DATE OF HIS APPOINTMENT. ALTHOUGH DURING SUCH PERIOD HE MAY HAVE ACTUALLY PERFORMED THE DUTIES OF THE OFFICE OR POSITION AND TAKEN THE OATH OF OFFICE. THE APPOINTING POWER IN THE VARIOUS EXECUTIVE DEPARTMENTS AND BUREAUS THEREOF IS VESTED IN THE HEAD OF THE DEPARTMENT AND. 1925: I HAVE YOUR REQUEST OF JANUARY 8. FOR A DECISION UPON THE QUESTION THEREIN SUBMITTED AS FOLLOWS: MY ATTENTION HAS BEEN INVITED TO THE FACT THAT SUSPENSIONS HAVE BEEN MADE BY THE GENERAL ACCOUNTING OFFICE IN THE PAY OF CERTAIN FIELD EMPLOYEES OF THE PUBLIC HEALTH SERVICE BECAUSE THE APPROVAL OF THE JOURNAL CARRYING THEIR APPOINTMENTS.

A-7434, FEBRUARY 9, 1925, 4 COMP. GEN. 675

COMPENSATION, APPOINTMENT - OFFICERS AND EMPLOYEES, DELEGATION OF AUTHORITY AN EMPLOYEE OF THE GOVERNMENT IS NOT ENTITLED TO COMPENSATION FOR ANY PERIOD PRIOR TO THE DATE OF HIS APPOINTMENT, ALTHOUGH DURING SUCH PERIOD HE MAY HAVE ACTUALLY PERFORMED THE DUTIES OF THE OFFICE OR POSITION AND TAKEN THE OATH OF OFFICE. UNDER SECTION 169, REVISED STATUTES, THE APPOINTING POWER IN THE VARIOUS EXECUTIVE DEPARTMENTS AND BUREAUS THEREOF IS VESTED IN THE HEAD OF THE DEPARTMENT AND, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, MAY NOT BE DELEGATED TO A SUBORDINATE. TEMPORARY EMPLOYEES AS MIGHT BE ENGAGED BY THE PRESIDENT IN HIS DISCRETION, UNDER AUTHORITY OF THE ACT OF APRIL 4, 1924, 43 STAT. 76, MAKING APPROPRIATION TO ENABLE THE PRESIDENT IN CASE OF THREATENED OR ACTUAL EPIDEMIC OF BUBONIC PLAGUE AND CERTAIN OTHER DISEASES OF LIVE STOCK TO AID THE STATES IN PREVENTING AND SUPPRESSING THE SPREAD OF THE SAME, WOULD NOT BE REGARDED AS OFFICERS AND EMPLOYEES OF THE PUBLIC HEALTH SERVICE SUCH AS WOULD REQUIRE SPECIFIC APPOINTMENT BY THE SECRETARY OF THE TREASURY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, FEBRUARY 9, 1925:

I HAVE YOUR REQUEST OF JANUARY 8, 1925, FOR A DECISION UPON THE QUESTION THEREIN SUBMITTED AS FOLLOWS:

MY ATTENTION HAS BEEN INVITED TO THE FACT THAT SUSPENSIONS HAVE BEEN MADE BY THE GENERAL ACCOUNTING OFFICE IN THE PAY OF CERTAIN FIELD EMPLOYEES OF THE PUBLIC HEALTH SERVICE BECAUSE THE APPROVAL OF THE JOURNAL CARRYING THEIR APPOINTMENTS, WHICH IS PREPARED IN THE DIVISION OF APPOINTMENTS OF THIS DEPARTMENT, BORE A DATE SUBSEQUENT TO THE DATE SUCH EMPLOYEES TOOK THE OATH OF OFFICE AND ENTERED ON DUTY. THIS HAS CREATED A SITUATION WITH REGARD TO THE APPOINTMENT OF FIELD PERSONNEL IN THE PUBLIC HEALTH SERVICE WHICH IS CAUSING SERIOUS DELAYS, AS WELL AS CONSIDERABLE EXPENSE THAT SHOULD BE UNNECESSARY WERE IT PRACTICABLE TO FOLLOW THE PRINCIPLES OF GOOD BUSINESS CONDUCT. I SHOULD LIKE TO LAY THE WHOLE MATTER BEFORE YOU FOR YOUR CONSIDERATION.

I SHOULD PERHAPS EXPLAIN THAT IN 1921, WHEN THE PUBLIC HEALTH SERVICE WAS CHARGED WITH THE CARE OF BENEFICIARIES OF THE WORLD WAR, AND WHEN ITS FIELD ORGANIZATION HAD GROWN TO SUCH PROPORTIONS THAT IT SEEMED ADVISABLE TO INSTITUTE A CAREFUL CHECK ON ADDITIONAL NOMINATIONS BY FIELD OFFICERS, IT WAS AGREED BETWEEN THE APPOINTMENT DIVISION OF THIS DEPARTMENT AND THE PUBLIC HEALTH SERVICE THAT NO ADDITIONAL NOMINATIONS WERE TO BE SUBMITTED TO THE DEPARTMENT, OTHER THAN NOMINATIONS TO FILL VACANCIES AS THEY OCCURRED, WITHOUT FIRST SECURING AN AUTHORIZATION FROM THE SECRETARY OF THE TREASURY FOR THE ADDITIONAL POSITION CONTEMPLATED. AFTER SECURING SUCH AUTHORITY FOR A POSITION, THE FIELD OFFICER WAS NOTIFIED AND INSTRUCTED TO SUBMIT THE NOMINATION OF AN EMPLOYEE THROUGH THE DISTRICT OFFICE OF THE CIVIL SERVICE COMMISSION. SINCE AUTHORITY FOR THE POSITION HAD ALREADY BEEN SECURED, AND SINCE DELAYS INCIDENT TO ROUTING THE NOMINATION THROUGH THE CIVIL SERVICE COMMISSION WERE NUMEROUS, HAS OFTEN HAPPENED THAT APPROVAL OF THE DEPARTMENT ON THE FORMAL NOMINATION OF THE INDIVIDUAL EMPLOYEE WAS NOT SECURED UNTIL SOME TIME SUBSEQUENT TO THE EMPLOYEE'S ENTRANCE ON DUTY.

IN VIEW OF THE ACTION BY THE GENERAL ACCOUNTING OFFICE IN SUSPENDING PAYMENT OF COMPENSATION IN SUCH CASES, THE PUBLIC HEALTH SERVICE NECESSARILY INSTRUCTED FIELD OFFICERS THAT EMPLOYEES IN NEW POSITIONS COULD NOT BE PLACED ON DUTY, EVEN WHEN AUTHORITY FOR THE POSITIONS HAD BEEN SECURED FROM THE SECRETARY OF THE TREASURY, UNTIL FORMAL APPROVAL HAD BEEN SECURED FROM THE DIVISION OF APPOINTMENTS OF THE TREASURY DEPARTMENT ON THE INDIVIDUAL NOMINATIONS. THIS POLICY, IN EMERGENT CASES, HAS MADE NECESSARY THE FREQUENT USE OF THE TELEGRAPH AND RADIO. RECENTLY, IN CONNECTION WITH THE APPEARANCE OF BUBONIC PLAGUE IN NEW ORLEANS, IT WAS NECESSARY FOR THE FIELD OFFICER TO TELEGRAPH THE SURGEON GENERAL FOR AUTHORITY TO EMPLOY RAT-TRAPPERS, FUMIGATORS, INSPECTORS, ETC. , FOR THE SURGEON GENERAL THEN TO SEND A SPECIAL REQUEST TO THE SECRETARY OF THE TREASURY FOR APPROVAL, AND UPON THAT APPROVAL FOR THE SURGEON GENERAL TO WIRE AUTHORITY TO THE FIELD OFFICER AT NEW ORLEANS TO MAKE THE NOMINATIONS, BUT NOT TO PLACE THE EMPLOYEES ON DUTY UNTIL ADVISED THAT THEIR NOMINATIONS WERE APPROVED. THE FIELD OFFICER THEREUPON HAD TO TELEGRAPH THE NAMES OF 164 EMERGENCY EMPLOYEES; THE BUREAU OF THE PUBLIC HEALTH SERVICE HAD TO PREPARE THE FORMAL NOMINATIONS AND SEND TO THE DIVISION OF APPOINTMENTS BY SPECIAL MESSENGER FOR APPROVAL, AND AFTER SUCH APPROVAL, THE SURGEON GENERAL AGAIN HAD TO TELEGRAPH THE FIELD OFFICER THAT THE EMPLOYEES COULD BE PLACED ON DUTY. THIS SAME CUMBERSOME AND EXPENSIVE METHOD IS NECESSARILY BEING FOLLOWED IN THE SUPPRESSION OF PLAGUE AT OAKLAND, CALIFORNIA.

THIS PROCEDURE IS FOLLOWED WHENEVER AN ADDITIONAL NURSE, DOCTOR, OR OTHER EMPLOYEE IS NEEDED FOR IMMEDIATE DUTY. I BELIEVE YOU WILL AGREE THAT THIS IS AN INVOLVED AND EXPENSIVE REQUIREMENT WHICH SERVES NO GOOD PURPOSE AND WHICH SHOULD BE CORRECTED. THE FACT THAT AUTHORITY HAS PREVIOUSLY BEEN GRANTED FOR A PARTICULAR POSITION BY THE SECRETARY OF THE TREASURY, WHICH CARRIES WITH IT THE DIRECTION TO THE FIELD OFFICER TO ENTER INTO A CONTRACT WITH A PROSPECTIVE EMPLOYEE AND SUBMIT HIS NOMINATION, SHOULD, FOR PRACTICAL PURPOSES, BE SUFFICIENT CONSUMMATION OF AN APPOINTMENT, SUBJECT TO SUBSEQUENT APPROVAL, TO ENABLE THE FIELD OFFICER TO PLACE THE EMPLOYEE ON DUTY UPON HIS TAKING THE OATH OF OFFICE.

THESE FACTS ARE SUBMITTED FOR YOUR CONSIDERATION AND FOR AN EXPRESSION FROM YOU AS TO WHETHER THE LAWS GOVERNING THE APPOINTMENT OF FIELD EMPLOYEES ARE SUCH THAT A PRIOR AUTHORIZATION FROM THE SECRETARY OF THE TREASURY FOR THE EMPLOYMENT OF AN INDIVIDUAL IN A NEWLY CREATED POSITION CAN BE CONSIDERED SUFFICIENT AUTHORITY FOR PLACING SUCH INDIVIDUAL ON DUTY, THE FORMAL NOMINATION OF THE EMPLOYEE TO BE DATED NOT LATER THAN THE DATE UPON WHICH HE ENTERED ON DUTY AND TOOK THE OATH OF OFFICE, AND SUCH FORMAL NOMINATION TO BE APPROVED WHEN RECEIVED IN THE DEPARTMENT THROUGH THE USUAL CHANNELS, EFFECTIVE FROM THE DATE OF ENTRANCE ON DUTY.

THE FORERUNNER OF THE PRESENT PUBLIC HEALTH SERVICE WAS THE UNITED STATES MARINE HOSPITAL SERVICE, THE NAME BEING CHANGED BY THE ACT OF JULY 1, 1902, 32 STAT. 712, TO THE PUBLIC HEALTH AND MARINE HOSPITAL SERVICE OF THE UNITED STATES, AND AGAIN CHANGED BY THE ACT OF AUGUST 14, 1912, 37 STAT. 309, TO THE PUBLIC HEALTH SERVICE. THE ACT OF FEBRUARY 3, 1905, 33 STAT. 650, PROVIDED THAT "SAID SERVICE SHALL REMAIN UNDER THE JURISDICTION OF THE TREASURY DEPARTMENT UNTIL OTHERWISE HEREAFTER SPECIFICALLY PROVIDED BY LAW.'

IT IS WELL ESTABLISHED THAT AN EMPLOYEE OF THE GOVERNMENT IS NOT ENTITLED TO COMPENSATION FOR ANY PERIOD PRIOR TO THE DATE OF HIS APPOINTMENT, ALTHOUGH DURING SUCH PERIOD HE MAY HAVE ACTUALLY PERFORMED THE DUTIES OF THE OFFICE OR POSITION. 23 COMP. DEC. 65; 8 ID. 521; 6 MS. COMP. GEN. 640; 2 ID. 407.

THE APPOINTING POWER IN THE VARIOUS EXECUTIVE DEPARTMENTS AND THE BUREAUS THEROF IS VESTED IN THE HEAD OF THE DEPARTMENT BY SECTION 169, REVISED STATUTES, AND, IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY THEREFOR, MAY NOT BE DELEGATED TO A SUBORDINATE. 26 COMP. DEC. 444; 27 COMP. DEC. 656; 21 OP.ATTY.GEN. 356; BURNAP V. UNITED STATES, 252 U.S. 512.

NO GENERAL STATUTORY AUTHORITY IS FOUND AUTHORIZING YOU TO DELEGATE TO THE SURGEON GENERAL OR TO ANY OF HIS SUBORDINATES THE GENERAL POWER OR AUTHORITY TO APPOINT EMPLOYEES. THE ONLY PROVISIONS OF LAW AUTHORIZING THE EMPLOYMENT OF PERSONAL SERVICES IN THE PUBLIC HEALTH SERVICE OTHER THAN BY APPOINTMENT OF THE SECRETARY OF THE TREASURY ARE THE PROVISIONS IN THE ACT OF JULY 1, 1902, 32 STAT. 712, WHICH AUTHORIZE THE SURGEON GENERAL TO APPOINT, WITH THE APPROVAL OF THE SECRETARY OF THE TREASURY, CIVILIAN MEMBERS OF THE ADVISORY BOARD FOR THE HYGIENIC LABORATORY, AND, UNDER CERTAIN CIRCUMSTANCES,"COMPETENT PERSONS TO TAKE CHARGE OF THE DIVISIONS, RESPECTIVELY, OF CHEMISTRY, ZOOLOGY, AND PHARMACOLOGY OF THE HYGIENIC LABORATORY.' WHERE THE LAW PROVIDES FOR THE APPOINTMENT BY ONE OFFICER WITH THE APPROVAL BY ANOTHER OFFICER, THE APPROVAL, WHEN GIVEN, WILL RELATE BACK TO THE DATE OF ACTION BY THE AUTHORIZED APPOINTING OFFICER, AND THE APPOINTMENT WILL BE EFFECTIVE FROM SAID DATE IF THE OTHER CONDITIONS NECESSARY TO MAKE THE APPOINTMENT EFFECTIVE HAD BEEN FULFILLED ON THAT DATE. 3 COMP. GEN. 559. BUT, OF COURSE, THE APPOINTMENT IN SUCH CASES COULD BE MADE ONLY SUBJECT TO APPROVAL OF THE APPROVING OFFICER, AND IN NO CASE SHOULD ANY PAYMENT BE MADE PRIOR TO SUCH APPROVAL.

THE ATTENTION OF THIS OFFICE WAS HERETOFORE CALLED TO THE PRACTICE OF THE SENIOR SURGEON OF THE PUBLIC HEALTH SERVICE AT CHICAGO IN EMPLOYING HELP AND PAYING THEM SALARIES DETERMINED BY HIM PRIOR TO THE ACTUAL APPOINTMENTS BY THE SECRETARY OF THE TREASURY. THIS RESULTED IN SEVERAL SALARIES SO FIXED BEING DISAPPROVED BY YOU AND A LOWER RATE OF COMPENSATION BEING FIXED IN THE APPOINTMENTS WHEN MADE. SEE MY DECISION OF MAY 23, 1922, IN ANSWER TO YOUR REQUEST OF NOVEMBER 10, 1921, FOR REVIEW OF THE SETTLEMENT MADE IN THAT CASE. THAT CASE IS MENTIONED HERE AS AN INSTANCE INDICATING THE CONFUSION WHICH WOULD RESULT FROM THE ADOPTION OF SUCH A PROCEDURE AS THAT SUGGESTED BY YOU EVEN WERE IT AUTHORIZED BY LAW.

ANSWERING YOUR SUBMISSION DIRECTLY, YOU ARE ADVISED THAT THE CREATION OF A POSITION, OR THE SPECIFIC AUTHORIZATION FOR THE EMPLOYMENT OF A GIVEN NUMBER OF EMPLOYEES, FOLLOWED BY THE NOMINATION BY A FIELD OFFICER OF AN INDIVIDUAL TO FILL SUCH A POSITION DOES NOT CONSTITUTE AN APPOINTMENT BY YOU, AND YOU ARE NOT AUTHORIZED TO APPOINT RETROACTIVELY EMPLOYEES NOMINATED FOR APPOINTMENT BY A SUBORDINATE, OR TO PAY SUCH EMPLOYEES ANY COMPENSATION FOR SERVICES RENDERED PRIOR TO THE DATE THE APPOINTMENT IS ACTUALLY MADE BY YOU, EXCEPT IN CASES IN WHICH THE LAW SPECIFICALLY AUTHORIZES APPOINTMENT BY A SUBORDINATE EITHER WITH OR WITHOUT YOUR APPROVAL.

WITH REFERENCE TO THE CASES OF BUBONIC PLAGUE IN NEW ORLEANS, LA., AND OAKLAND, CALIF., ATTENTION IS INVITED TO THE APPROPRIATION MADE IN THE ACT OF APRIL 4, 1924, 43 STAT. 76, TO ENABLE THE PRESIDENT, IN CASE ONLY OF THREATENED OR ACTUAL EPIDEMIC OF BUBONIC PLAGUE AND CERTAIN OTHER DISEASES,"TO AID STATE AND LOCAL BOARDS OR OTHERWISE, IN HIS DISCRETION, IN PREVENTING AND SUPPRESSING THE SPREAD OF THE SAME.' SUCH TEMPORARY EMPLOYEES AS MIGHT BE ENGAGED IN THE DISCRETION OF THE PRESIDENT UNDER AUTHORITY OF THIS PROVISION WOULD NOT BE REGARDED AS OFFICERS OR EMPLOYEES OF THE PUBLIC HEALTH SERVICE, SUCH AS WOULD REQUIRE A SPECIFIC APPOINTMENT FROM YOU. SUCH TEMPORARY SERVICES IN SAID EMERGENCIES COULD BE ENGAGED IN ANY MANNER PRESCRIBED BY THE PRESIDENT.