A-79746, AUGUST 28, 1936, 16 COMP. GEN. 200

A-79746: Aug 28, 1936

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ARE NOT APPLICABLE TO APPOINTMENTS FROM THE NATIONAL RECOVERY ADMINISTRATION WHERE THE RESIGNATION WAS SUBSEQUENT TO DECISION THE SUPREME COURT DECLARING THE NATIONAL RECOVERY ACT UNCONSTITUTIONAL. D. NEWCOMB BARCO WAS EMPLOYED AS A MESSENGER BY THE NATIONAL RECOVERY ADMINISTRATION AT A SALARY OF $1. WAS APPOINTED BY THIS ADMINISTRATION ON JUNE 18. WAS PAID AT THE RATE OF $1. ATTACHED HERETO ARE STATEMENTS RECEIVED FROM MR. YOUR OPINION IS REQUESTED WITH REFERENCE TO WHETHER MR. 440 PER ANNUM WAS AUTHORIZED IN VIEW OF THE PROVISIONS OF EXECUTIVE ORDER NO. 7070. IS AS FOLLOWS: IT JUST OCCURRED TO ME THAT IT MIGHT BE HELPFUL TO YOU IF YOU HAD A WRITTEN RECORD OF THE EVENTS WHICH TRANSPIRED AT THE TIME THE NATIONAL RECOVERY ADMINISTRATION WAS DECLARED UNCONSTITUTIONAL BY THE SUPREME COURT.

A-79746, AUGUST 28, 1936, 16 COMP. GEN. 200

OFFICERS AND EMPLOYEES - INVOLUNTARY SEPARATION - APPOINTMENTS IN EMERGENCY AGENCIES AT INCREASED SALARIES THE PROVISIONS OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, PROHIBITING SALARY INCREASES UPON TRANSFER TO POSITIONS PAID FROM EMERGENCY FUNDS EXCEPT UPON APPROVAL OF THE PRESIDENT, ARE NOT APPLICABLE TO APPOINTMENTS FROM THE NATIONAL RECOVERY ADMINISTRATION WHERE THE RESIGNATION WAS SUBSEQUENT TO DECISION THE SUPREME COURT DECLARING THE NATIONAL RECOVERY ACT UNCONSTITUTIONAL, AND RECEIPT OF INFORMAL NOTICE, AND IN ANTICIPATION OF INVOLUNTARY SEPARATION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, RESETTLEMENT ADMINISTRATION, AUGUST 28, 1936:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 8, 1936, AS FOLLOWS:

IN YOUR DECISION A-64663, DATED FEBRUARY 18, 1936, YOU STATED THAT WHEN AN EMPLOYEE RESIGNS FROM SERVICE UNDER ANOTHER FEDERAL ESTABLISHMENT AFTER RECEIPT OF NOTICE, AND IN AN ANTICIPATION OF AN EARLY TERMINATION OF HIS APPOINTMENT DUE TO THE EXPIRATION OF THE WORK OR ACTIVITY ON WHICH EMPLOYED, OR OTHER CAUSE OVER WHICH THE EMPLOYEE HAS NO CONTROL, HIS SEPARATION FROM SUCH SERVICE MAY BE CONSIDERED AS INVOLUNTARY AND HIS APPOINTMENT WITH THE RESETTLEMENT ADMINISTRATION WOULD NOT BE SUBJECT TO THE PROVISION OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935.

ON MAY 27, 1935, MR. D. NEWCOMB BARCO WAS EMPLOYED AS A MESSENGER BY THE NATIONAL RECOVERY ADMINISTRATION AT A SALARY OF $1,080 PER ANNUM. ON THAT DAY HIS IMMEDIATE SUPERIOR INFORMED HIM THAT DUE TO THE FACT THAT THE NATIONAL INDUSTRIAL RECOVERY ACT HAD BEEN DECLARED UNCONSTITUTIONAL BY THE SUPREME COURT THERE WOULD BE A DRASTIC CUT IN PERSONNEL, AND ADVISED HIM TO SEEK EMPLOYMENT WITH SOME OTHER ESTABLISHMENT. MR. BARCO THEREUPON FILED AN APPLICATION WITH THE RESETTLEMENT ADMINISTRATION. MR. BARCO RESIGNED FROM THE NATIONAL RECOVERY ADMINISTRATION ON JUNE 16, 1935, AND WAS APPOINTED BY THIS ADMINISTRATION ON JUNE 18, 1935, AS A JUNIOR CLERK IN GRADE CAF-2, AND WAS PAID AT THE RATE OF $1,440 PER ANNUM. ATTACHED HERETO ARE STATEMENTS RECEIVED FROM MR. BARCO, MR. WILLIAM M. CHURCHILL, HIS FORMER IMMEDIATE SUPERIOR, AND MR. A. C. C. HILL, JR., FORMERLY EXECUTIVE OFFICER OF THE NATIONAL RECOVERY ADMINISTRATION.

YOUR OPINION IS REQUESTED WITH REFERENCE TO WHETHER MR. BARCO'S APPOINTMENT TO THE RESETTLEMENT ADMINISTRATION AT THE SALARY OF $1,440 PER ANNUM WAS AUTHORIZED IN VIEW OF THE PROVISIONS OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935.

THE LETTER DATED JUNE 5, 1936, FROM WILLIAM M. CHURCHILL TO D. N. BARCO, IS AS FOLLOWS:

IT JUST OCCURRED TO ME THAT IT MIGHT BE HELPFUL TO YOU IF YOU HAD A WRITTEN RECORD OF THE EVENTS WHICH TRANSPIRED AT THE TIME THE NATIONAL RECOVERY ADMINISTRATION WAS DECLARED UNCONSTITUTIONAL BY THE SUPREME COURT.

YOU WILL RECALL THAT THE SUPREME COURT RULING WAS HANDED DOWN ON MAY 27, 1935, AND IT WAS ON THE SAME DAY THAT I ADVISED YOU THAT A CONSIDERABLE CUT IN THE PERSONNEL WOULD BE MADE VERY SHORTLY AFTER THAT. IN VIEW OF THE PERSONNEL CUT I SUGGESTED TO YOU THAT IT WOULD BE WISE TO SEEK EMPLOYMENT IN SOME OTHER FEDERAL AGENCY AS SOON AS POSSIBLE. IT WAS LATER ON THE SAME DAY THAT YOU ADVISED ME THAT YOU HAD FILED AN APPLICATION WITH THE RESETTLEMENT ADMINISTRATION AND THAT YOU HOPED TO PROCURE AN EARLY APPOINTMENT.

AT THAT TIME THERE WAS CONSIDERABLE DISCUSSION IN ALL DEPARTMENTS AS TO THE PROPER INTERPRETATION OF THE PRESIDENTIAL ORDER PROHIBITING THE TRANSFER OF AN EMPLOYEE FROM ONE FEDERAL AGENCY TO ANOTHER AND AN INCREASE IN CLASSIFICATION. IT WAS AT THAT TIME AND IS STILL MY BELIEF THAT WHEN A SUPERVISOR OF A DIVISION RECOMMENDS TO AN EMPLOYEE THAT THEY SHOULD SEEK EMPLOYMENT ELSEWHERE THAT IT BARS THE PRESIDENTIAL ORDER FROM BEING PLACED IN EFFECT, THE SAME AS A TERMINATION FROM A FEDERAL AGENCY BASED ON A GENERAL PERSONNEL CUT. I THINK THAT YOU WILL FIND THIS CONTENTION TO BE BORNE OUT BY A SIMILAR GENERAL RULING NO. A-64664 DATED FEBRUARY 18, 1936.

INASMUCH AS YOU WERE UNDER MY SUPERVISION ON MAY 27, 1935, AND I OFFICIALLY ADVISED YOU TO SEEK EMPLOYMENT ELSEWHERE IN VIEW OF A PENDING PERSONNEL REDUCTION, I FEEL THAT THE EXECUTIVE ORDER DOES NOT APPLY TO YOUR CASE.

DECISION OF FEBRUARY 18, 1936, 15 COMP. GEN. 710, CITED ABOVE, STATED AS FOLLOWS:

THE RULE QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER FROM THE DECISION OF SEPTEMBER 24, 1935, 15 COMP. GEN. 243, IS APPLICABLE TO THE EMPLOYEES WHOSE CASES ARE PRESENTED. THAT IS TO SAY, WHEN AN EMPLOYEE RESIGNS FROM SERVICE UNDER ANOTHER FEDERAL ESTABLISHMENT AFTER RECEIPT OF NOTICE, AND IN ANTICIPATION, OF AN EARLY TERMINATION OF HIS APPOINTMENT DUE TO THE EXPIRATION OF THE WORK OR ACTIVITY ON WHICH EMPLOYED OR OTHER CAUSE OVER WHICH THE EMPLOYEE HAS NO CONTROL, HIS SEPARATION FROM SUCH SERVICE MAY BE CONSIDERED AS INVOLUNTARY AND HIS APPOINTMENT UNDER AN EMERGENCY AGENCY, INCLUDING THE RESETTLEMENT ADMINISTRATION, WOULD NOT BE SUBJECT TO THE PROVISIONS OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935.

AS THE FACTS PRESENTED IN THE INSTANT CASE JUSTIFY APPLICATION OF THE QUOTED RULE, YOU ARE ADVISED THAT THE PROVISIONS OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, WERE NOT APPLICABLE TO PROHIBIT PAYMENT OF THE INITIAL SALARY RATE OF $1,440 TO MR. BARCO UNDER HIS APPOINTMENT WITH THE RESETTLEMENT ADMINISTRATION.