A-81015, OCTOBER 28, 1936, 16 COMP. GEN. 451

A-81015: Oct 28, 1936

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WITHOUT NOTICE PRIOR TO RESIGNATION THAT THEIR SERVICES WERE TO BE TERMINATED. ARE NOT EXEMPT FROM THE PROVISIONS OF EXECUTIVE ORDER NO. 7070. AN EMPLOYEE REDUCED IN SALARY TO A LEGAL RATE WHO ACCEPTS AND SERVES AT THAT RATE MAY NOT BE ADMINISTRATIVELY RESTORED TO HIS FORMER SALARY RETROACTIVELY EFFECTIVE ON THE BASIS THAT THE REDUCTION WAS UNDER A MISAPPREHENSION OF THE REQUIREMENTS. WHEREIN IT IS STATED AS FOLLOWS: "THE RULE QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER FROM THE DECISION OF SEPTEMBER 24. IS APPLICABLE TO THE EMPLOYEES WHOSE CASES ARE PRESENTED. THAT IS TO SAY. WADSWORTH WAS FORMERLY EMPLOYED BY THE NATIONAL RECOVERY ADMINISTRATION. WHICH RESIGNATION WAS ACCEPTED AS OF JULY 10.

A-81015, OCTOBER 28, 1936, 16 COMP. GEN. 451

OFFICERS AND EMPLOYEES - APPOINTMENTS IN EMERGENCY AGENCIES AT INCREASED SALARIES - REDUCTION IN SALARY AND ADMINISTRATIVE RESTORATION RETROACTIVELY EFFECTIVE EMPLOYEES OF THE NATIONAL RECOVERY ADMINISTRATION WHO RESIGNED AFTER THE DECISION OF THE SUPREME COURT OF THE UNITED STATES DECLARING THE NATIONAL RECOVERY ACT UNCONSTITUTIONAL, WITHOUT NOTICE PRIOR TO RESIGNATION THAT THEIR SERVICES WERE TO BE TERMINATED, ARE NOT EXEMPT FROM 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. AN EMPLOYEE REDUCED IN SALARY TO A LEGAL RATE WHO ACCEPTS AND SERVES AT THAT RATE MAY NOT BE ADMINISTRATIVELY RESTORED TO HIS FORMER SALARY RETROACTIVELY EFFECTIVE ON THE BASIS THAT THE REDUCTION WAS UNDER A MISAPPREHENSION OF THE REQUIREMENTS.

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

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF OCTOBER 9, 1936, AS FOLLOWS:

IN YOUR DECISION A-79746, DATED AUGUST 28, 1936, YOU DIRECT ATTENTION TO 15 COMP. GEN. 710, WHEREIN IT IS 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.'

MR. OLIVER F. WADSWORTH WAS FORMERLY EMPLOYED BY THE NATIONAL RECOVERY ADMINISTRATION, AT A SALARY OF $4,500 PER ANNUM. SUBSEQUENT TO THE DECISION OF THE SUPREME COURT OF THE UNITED STATES HOLDING THE NATIONAL INDUSTRIAL RECOVERY ACT UNCONSTITUTIONAL, HE TENDERED HIS RESIGNATION TO THE NATIONAL RECOVERY ADMINISTRATION, WHICH RESIGNATION WAS ACCEPTED AS OF JULY 10, 1935.

MR. WADSWORTH WAS THEREAFTER, ON JULY 13, 1935, APPOINTED BY THE RESETTLEMENT ADMINISTRATION AS EXECUTIVE ASSISTANT TO THE DIRECTOR OF THE MANAGEMENT DIVISION, IN GRADE CAF-12, $4,600 PER ANNUM. PAYMENT AT THAT RATE WAS MADE THROUGH NOVEMBER 30, 1935, AT WHICH TIME HIS SALARY WAS DECREASED TO $4,500 PER ANNUM, EFFECTIVE AS OF JULY 13, 1935, THE DATE OF HIS ORIGINAL APPOINTMENT WITH THIS ADMINISTRATION.

THE FACTS WITH REFERENCE TO MR. WADSWORTH APPEAR SIMILAR TO THOSE UPON WHICH YOUR DECISION OF AUGUST 28, 1936, SUPRA, WAS BASED, EXCEPT THAT THIS ADMINISTRATION HAS NO FACTS BEFORE IT INDICATING THAT MR. WADSWORTH WAS NOTIFIED, VERBALLY OR OTHERWISE, THAT THERE WOULD BE AN EARLY TERMINATION OF HIS APPOINTMENT WITH THE NATIONAL RECOVERY ADMINISTRATION. IN VIEW OF THE DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE SCHECHTER CASE, HOWEVER, IT WOULD SEEM REASONABLE TO ASSUME THAT MR. WADSWORTH RESIGNED IN ANTICIPATION OF AN EARLY TERMINATION OF HIS APPOINTMENT DUE TO THE EXPIRATION OF THE WORK OR ACTIVITY ON WHICH HE WAS EMPLOYED. IT WOULD APPEAR, IN VIEW OF THESE CIRCUMSTANCES, THAT HIS APPOINTMENT TO THE RESETTLEMENT ADMINISTRATION DID NOT COME WITHIN THE PURVIEW OF EXECUTIVE ORDER NO. 7070 OF JUNE 12, 1935, OR YOUR DECISIONS.

YOUR OPINION IS, THEREFORE, REQUESTED WITH REFERENCE TO WHETHER MR. WADSWORTH'S APPOINTMENT TO THE RESETTLEMENT ADMINISTRATION AT THE SALARY OF $4,600 PER ANNUM WAS AUTHORIZED, IN VIEW OF THE PROVISIONS OF EXECUTIVE ORDER NO. 7070. IF YOUR ANSWER IS IN THE AFFIRMATIVE, YOUR OPINION IS FURTHER REQUESTED WITH REFERENCE TO WHETHER THE RETROACTIVE LOWERING OF HIS SALARY ON NOVEMBER 30, 1935, EFFECTIVE AS OF JULY 13, 1935, WAS AUTHORIZED.

IN DECISION OF SEPTEMBER 24, 1935, 15 COMP. GEN. 243, 245, IT WAS HELD:

THE EXECUTIVE ORDER DOES NOT APPLY TO CASES IN WHICH THE SEPARATION FROM THE FORMER SERVICE WAS IN FACT INVOLUNTARY OR WAS DUE TO THE EXPIRATION OF THE PERIOD OF THE APPOINTMENT UNDER WHICH SERVING AT THE TIME OF OR PRIOR TO THE TRANSFER OR NEW APPOINTMENT.

IN THE DECISION OF FEBRUARY 18, 1936, 15 COMP. GEN. 710, FROM WHICH YOU QUOTE, AND IN THE DECISION OF AUGUST 28, 1936, 16 ID. 200, THE RULE QUOTED FROM THE DECISION OF SEPTEMBER 24, 1935, SUPRA, WAS APPLIED TO EXEMPT FROM THE RESTRICTIONS OF EXECUTIVE ORDER NO. 7070 THOSE EMPLOYEES OF THE NATIONAL RECOVERY ADMINISTRATION WHO RESIGNED AFTER THE DECISION OF THE SUPREME COURT OF THE UNITED STATES DECLARING THE NATIONAL RECOVERY ACT UNCONSTITUTIONAL AND AFTER RECEIPT OF NOTICE THAT THEIR SERVICES WOULD BE TERMINATED. EXEMPTION FROM THE RESTRICTIONS OF THE EXECUTIVE ORDER HAS NOT BEEN RECOGNIZED IN THOSE CASES WHERE EMPLOYEES OF THE NATIONAL RECOVERY ADMINISTRATION DID NOT RECEIVE NOTICE PRIOR TO RESIGNATION THAT THEIR SERVICES WERE TO BE TERMINATED. A RESIGNATION PRIOR TO RECEIPT OF SUCH NOTICE WOULD BE A VOLUNTARY ACTION. IT IS UNDERSTOOD THAT MANY EMPLOYEES OF THE NATIONAL RECOVERY ADMINISTRATION WERE RETAINED FOR MONTHS SUBSEQUENT TO THE DECISION OF THE SUPREME COURT. HENCE, THE DECISION ALONE, WITHOUT RECEIPT OF NOTICE OF SEPARATION, WAS NOT ENOUGH TO EXEMPT EMPLOYEES OF THE NATIONAL RECOVERY ADMINISTRATION FROM THE RESTRICTIONS OF THE EXECUTIVE ORDER.

FURTHERMORE, EVEN IF SUCH AN EXEMPTION COULD BE RECOGNIZED, THERE WOULD BE NO AUTHORITY IN THE INSTANT CASE TO RESTORE THE SALARY OF MR. WADSWORTH TO $4,600 PER ANNUM, EFFECTIVE AS OF JULY 13, 1935, DATE OF APPOINTMENT WITH THE RESETTLEMENT ADMINISTRATION, AS THERE WOULD BE INVOLVED AN ADMINISTRATIVE PROMOTION RETROACTIVELY EFFECTIVE NOT AUTHORIZED BY LAW. THAT IS TO SAY, NOTWITHSTANDING A REDUCTION IN SALARY MAY NOT HAVE BEEN REQUIRED BY LAW, IF THE SALARY TO WHICH AN EMPLOYEE WAS REDUCED WAS A LEGAL RATE, AS IN THIS INSTANCE, AND THE EMPLOYEE ACCEPTED AND SERVED AT THAT RATE, THERE WOULD BE NO AUTHORITY TO RESTORE THE SALARY RETROACTIVELY EFFECTIVE ON THE BASIS THAT THE REDUCTION HAD BEEN MADE UNDER A MISAPPREHENSION OF THE REQUIREMENTS.