A-76316, JULY 16, 1936, 16 COMP. GEN. 34

A-76316: Jul 16, 1936

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ARE APPLICABLE TO APPOINTMENTS IN EMERGENCY POSITIONS AT INCREASED SALARIES NOTWITHSTANDING THE APPOINTMENTS ARE PROBATIONAL AND MADE FROM THE CIVIL SERVICE REGISTER. THESE DECISIONS INDICATE THAT THE PROVISION IN THE EXECUTIVE ORDER FORBIDDING TRANSFERS FROM ONE GOVERNMENT DEPARTMENT OR AGENCY TO POSITIONS ON EMERGENCY ROLLS OF ANOTHER GOVERNMENT DEPARTMENT OR AGENCY IS APPLICABLE IN THE CASE OF AN EMPLOYEE WHO IS VOLUNTARILY SEPARATED FROM ONE DEPARTMENT OR AGENCY AND WHO ACCEPTS APPOINTMENT MADE WITHOUT REFERENCE TO CIVIL-SERVICE RULES ON AN EMERGENCY ROLL UNDER ANOTHER DEPARTMENT OR AGENCY. THE REASON FOR THIS INTERPRETATION IS CLEAR SINCE SEPARATION FROM ONE DEPARTMENT OR AGENCY AND NEW APPOINTMENT UNDER ANOTHER DEPARTMENT OR AGENCY IS THE ONLY METHOD BY WHICH AN EMPLOYEE COULD BE "TRANSFERRED" TO A POSITION TO WHICH APPOINTMENT IS MADE WITHOUT REFERENCE TO CIVIL-SERVICE RULES.

A-76316, JULY 16, 1936, 16 COMP. GEN. 34

OFFICERS AND EMPLOYEES - SEPARATION AND APPOINTMENTS FROM CIVIL SERVICE REGISTER AT INCREASED SALARIES - EMERGENCY APPROPRIATIONS THE PROVISIONS OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, PROHIBITING SALARY INCREASES UPON TRANSFER TO POSITIONS PAID FROM EMERGENCY FUNDS, ARE APPLICABLE TO APPOINTMENTS IN EMERGENCY POSITIONS AT INCREASED SALARIES NOTWITHSTANDING THE APPOINTMENTS ARE PROBATIONAL AND MADE FROM THE CIVIL SERVICE REGISTER.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, JULY 16, 1936:

THERE HAS BEEN CONSIDERED THE MATTER PRESENTED IN YOUR LETTER OF MAY 25, 1936, AS FOLLOWS:

CONSIDERATION HAS BEEN GIVEN TO YOUR DECISIONS A-64663 DATED SEPTEMBER 24, 1935, AND A-71100 DATED MARCH 18, 1936, INTERPRETING THE PROVISIONS OF EXECUTIVE ORDER NO. 7070 DATED JUNE 12, 1935. THESE DECISIONS INDICATE THAT THE PROVISION IN THE EXECUTIVE ORDER FORBIDDING TRANSFERS FROM ONE GOVERNMENT DEPARTMENT OR AGENCY TO POSITIONS ON EMERGENCY ROLLS OF ANOTHER GOVERNMENT DEPARTMENT OR AGENCY IS APPLICABLE IN THE CASE OF AN EMPLOYEE WHO IS VOLUNTARILY SEPARATED FROM ONE DEPARTMENT OR AGENCY AND WHO ACCEPTS APPOINTMENT MADE WITHOUT REFERENCE TO CIVIL-SERVICE RULES ON AN EMERGENCY ROLL UNDER ANOTHER DEPARTMENT OR AGENCY. THE REASON FOR THIS INTERPRETATION IS CLEAR SINCE SEPARATION FROM ONE DEPARTMENT OR AGENCY AND NEW APPOINTMENT UNDER ANOTHER DEPARTMENT OR AGENCY IS THE ONLY METHOD BY WHICH AN EMPLOYEE COULD BE "TRANSFERRED" TO A POSITION TO WHICH APPOINTMENT IS MADE WITHOUT REFERENCE TO CIVIL-SERVICE RULES.

THE QUESTION HAS ARISEN AS TO WHETHER THE PROHIBITION IN THE EXECUTIVE ORDER IS ALSO APPLICABLE IN CASES OF PROBATIONAL APPOINTMENT TO EMERGENCY ROLLS IN ONE DEPARTMENT FROM CIVIL-SERVICE CERTIFICATES, FOLLOWING VOLUNTARY SEPARATION FROM ANOTHER DEPARTMENT OR AGENCY. THE CONDITIONS OBTAINING IN SUCH AN APPOINTMENT DIFFER CONSIDERABLY FROM THOSE INVOLVED IN THE CASES ON WHICH THE RULINGS REFERRED TO IN PARAGRAPH 1 ABOVE WERE BASED. PERSONS WHOSE NAMES ARE CERTIFIED FOR PROBATIONAL APPOINTMENT HAVE PASSED THE CIVIL-SERVICE EXAMINATION FOR THE GRADE AND SALARY APPLICABLE TO THE POSITION FOR WHICH CERTIFIED AND UNDER THE CIVIL-SERVICE RULES ARE ENTITLED TO CONSIDERATION FOR APPOINTMENT. UNDER THE PROCEDURE REQUIRED BY THE RULES, THE DEPARTMENT TO WHICH THEIR NAMES HAVE BEEN CERTIFIED MUST OFFER THEM EMPLOYMENT, AND UNLESS REASONS SATISFACTORY TO THE CIVIL SERVICE COMMISSION CAN BE ADVANCED FOR THEIR REJECTION, SELECTION MUST BE MADE FROM ONE OF THE THREE NAMES CERTIFIED. MANY PERSONS WHOSE NAMES ARE ON THE REGISTERS OF THE CIVIL SERVICE COMMISSION NOW HOLD POSITIONS IN THE GOVERNMENT SERVICE AND PROBABLY IN MOST CASES THESE PERSONS ARE NOT INFORMED AS TO THE PROVISIONS OF THE EXECUTIVE ORDER NO. 7070. IN MANY CASES THEY HAVE ACCEPTED EMPLOYMENT IN THE GOVERNMENT SERVICE IN SOME LOWER GRADE THAN THAT FOR WHICH THEY HAVE QUALIFIED IN CIVIL SERVICE EXAMINATION, AND SOME HAVE BEEN APPOINTED FROM RELIEF ROLLS AT SECURITY WAGE RATES. IN ALL THESE CASES THE EMPLOYMENT AT THE LOWER RATE HAS BEEN ACCEPTED AS A TEMPORARY EXPEDIENT AND THESE ELIGIBLES NO DOUBT BELIEVE THAT WHEN THEIR NAMES ARE REACHED ON THE REGISTER THEIR PROBATIONAL APPOINTMENTS TO POSITIONS AND AT SALARIES FOR WHICH THEY HAVE QUALIFIED WILL BE POSSIBLE.

IT IS SELDOM THAT THE PAPERS FURNISHED WITH A CIVIL SERVICE CERTIFICATE OF ELIGIBLES CONTAIN INFORMATION AS TO THE PRESENT EMPLOYMENT OF THE ELIGIBLES CERTIFIED, AND THE RESULT IS THAT AN EMPLOYEE NOW IN THE SERVICE MAY BE OFFERED A POSITION ON AN EMERGENCY ROLL AT A HIGHER RATE THAN HE NOW RECEIVES AND MAY BE APPOINTED IN GOOD FAITH AND WITH NO INTENTION ON HIS PART OR OF THE APPOINTING OFFICER TO VIOLATE THE PROVISIONS OF THE EXECUTIVE ORDER. IT IS BELIEVED THAT IT WOULD BE IMPRACTICABLE TO ESTABLISH A SYSTEM OF CHECKING WHICH WOULD PREVENT CERTIFICATION OR PROBATIONAL APPOINTMENTS IN MANY CASES OF THIS KIND, AND THAT ANY SUCH SYSTEM WHICH MIGHT BE ATTEMPTED WOULD RESULT IN COSTLY DELAYS TO GOVERNMENT WORK.

THE DEPARTMENT NOW HAS A NUMBER OF CASES IN WHICH PROBATIONAL APPOINTMENTS WERE EFFECTED OF PERSONS PROPERLY ELIGIBLE UNDER CIVIL SERVICE RULES AND WHO, IT NOW APPEARS, HAD BEEN HOLDING POSITIONS AT LOWER RATES ELSEWHERE IN THE GOVERNMENT SERVICE PRIOR TO THEIR APPOINTMENT IN THE DEPARTMENT. IN ORDER THAT THEIR CORRECT PAY STATUS MAY BE DETERMINED AS PROMPTLY AS POSSIBLE, AND FOR THE GUIDANCE OF THE DEPARTMENT IN MAKING SELECTIONS FROM CERTIFICATES OF ELIGIBLES IN THE FUTURE, A RULING IS REQUESTED AS TO WHETHER THE PROHIBITION IN EXECUTIVE ORDER NO. 7070 DATED JUNE 12, 1935, IS TO BE CONSIDERED AS APPLICABLE IN CASES OF PROBATIONAL APPOINTMENTS ON EMERGENCY ROLLS WHEN MADE FROM CIVIL SERVICE CERTIFICATES.

THERE APPEARS NOTHING IN THE TERMS OF EXECUTIVE ORDER NO. 7070 DATED JUNE 12, 1935, TO AUTHORIZE HOLDING THAT THE INHIBITION THEREIN AGAINST THE APPOINTMENT OR TRANSFER TO, AND PAYMENT OF INCREASED SALARIES IN, EMERGENCY POSITIONS DOES NOT APPLY TO PROBATIONAL APPOINTMENTS MADE FROM THE CIVIL SERVICE REGISTER. THE LACK OF KNOWLEDGE OF THE PROVISIONS OF THE EXECUTIVE ORDER ON THE PART OF AN APPOINTEE TO AN EMERGENCY POSITION OR UPON THE PART OF THE APPOINTING OFFICER IN NOWISE AFFECTS THE SITUATION. 15 COMP. GEN. 243; ID. 822.

YOU ARE ADVISED, THEREFORE, THAT THE RESTRICTIONS IN EXECUTIVE ORDER NO. 7070 ARE APPLICABLE IN CASE OF PROBATIONAL APPOINTMENTS ON EMERGENCY ROLLS WHEN MADE UPON THE BASIS OF CIVIL SERVICE CERTIFICATES.

THE MATTERS MENTIONED IN YOUR LETTER MIGHT BE CONSIDERED AS REASONS FOR A MODIFICATION OF THE EXECUTIVE ORDER, BUT THEY CAN AFFORD NO PROPER BASIS FOR READING INTO THE EXISTING ORDER AN EXCEPTION NOT THEREIN PROVIDED FOR.