A-8142, MARCH 3, 1925, 4 COMP. GEN. 729

A-8142: Mar 3, 1925

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IF THE APPROPRIATION PROVIDING FOR PERFORMANCE OF THE WORK OF A REGULAR EMPLOYEE IS ALSO AVAILABLE FOR EMPLOYMENT OF TEMPORARY PERSONAL SERVICES. THERE IS NO LEGAL OBJECTION TO THE CREATION AND ALLOCATION TO THE PROPER GRADE UNDER THE CLASSIFICATION ACT OF 1923 OF A TEMPORARY POSITION. 1925: I HAVE YOUR LETTER OF JANUARY 24. AS FOLLOWS: REFERENCE IS MADE TO YOUR DECISION OF JUNE 26. THE SIXTEENTH QUESTION PRESENTED WAS AS FOLLOWS: "CAN TWO PERSONS BE LEGALLY EMPLOYED IN ONE POSITION? A IS EMPLOYED IN A CERTAIN POSITION AND OBTAINS LEAVE OF ABSENCE. CAN ANOTHER PERSON BE EMPLOYED TEMPORARILY TO PERFORM THE WORK WHILE A IS ON LEAVE? THE QUESTION IS ANSWERED IN THE NEGATIVE. THE ABOVE QUESTION IS PREDICATED ON "LEAVE OF ABSENCE.

A-8142, MARCH 3, 1925, 4 COMP. GEN. 729

OFFICERS AND EMPLOYEES - TWO PERSONS HOLDING ONE POSITION IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY FOR EMPLOYMENT OF SUBSTITUTES, SO LONG AS A REGULAR EMPLOYEE OF THE GOVERNMENT CONTINUES AS SUCH ON THE RECORDS OF THE ADMINISTRATIVE OFFICE, EITHER ON DUTY OR ABSENT ON LEAVE WITH OR WITHOUT PAY, NO OTHER PERSON MAY BE APPOINTED, TEMPORARILY OR PERMANENTLY, TO THE POSITION HE HOLDS. TEMPORARY DETAILS MAY BE MADE OF OTHER EMPLOYEES TO PERFORM THE WORK OF AN EMPLOYEE ABSENT ON LEAVE. IF THE APPROPRIATION PROVIDING FOR PERFORMANCE OF THE WORK OF A REGULAR EMPLOYEE IS ALSO AVAILABLE FOR EMPLOYMENT OF TEMPORARY PERSONAL SERVICES, THERE IS NO LEGAL OBJECTION TO THE CREATION AND ALLOCATION TO THE PROPER GRADE UNDER THE CLASSIFICATION ACT OF 1923 OF A TEMPORARY POSITION, WITH THE APPROVAL OF THE PERSONNEL CLASSIFICATION BOARD, SEPARATE AND DISTINCT FROM THE PERMANENT POSITION HELD BY THE REGULAR EMPLOYEE, THE INCUMBENT THEREOF TO PERFORM THE WORK OF THE REGULAR EMPLOYEE DURING HIS ABSENCE FROM DUTY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, MARCH 3, 1925:

I HAVE YOUR LETTER OF JANUARY 24, 1925, AS FOLLOWS:

REFERENCE IS MADE TO YOUR DECISION OF JUNE 26, 1924, TO THE CIVIL SERVICE COMMISSION, RELATIVE TO THE CLASSIFICATION ACT OF 1923. THE SIXTEENTH QUESTION PRESENTED WAS AS FOLLOWS:

"CAN TWO PERSONS BE LEGALLY EMPLOYED IN ONE POSITION? FOR INSTANCE, A IS EMPLOYED IN A CERTAIN POSITION AND OBTAINS LEAVE OF ABSENCE. CAN ANOTHER PERSON BE EMPLOYED TEMPORARILY TO PERFORM THE WORK WHILE A IS ON LEAVE?

AND YOU HELD:

"GENERALLY SPEAKING, THE QUESTION IS ANSWERED IN THE NEGATIVE. THE CLASSIFICATION ACT AUTHORIZED NO CHANGES IN THIS RESPECT. THERE MAY BE EXCEPTIONAL CASES WHICH MAY NOT BE DETERMINED IN THIS DECISION IN THE ABSENCE OF FACTS.'

THE ABOVE QUESTION IS PREDICATED ON "LEAVE OF ABSENCE," AND THE INFERENCE IS THAT THE QUESTION RELATES TO "LEAVE WITH PAY.' WOULD YOUR DECISION BE THE SAME IN A CASE WHERE AN EMPLOYEE WAS ON ,LEAVE OF ABSENCE WITHOUT PAY" FOR A DEFINITE PERIOD BECAUSE OF ILLNESS AND IT WAS NECESSARY TO REQUEST SUCH LEAVE BECAUSE OF THE EXHAUSTION OF BOTH SICK AND ANNUAL LEAVE?

THE QUESTION IS IMPORTANT, BECAUSE IN SOME INSTANCES IT IS NECESSARY THAT THE WORK UPON WHICH THE EMPLOYEE WAS ENGAGED BE CONTINUED. UNDER YOUR PRESENT DECISION IT WOULD SEEM THAT IT IS NECESSARY IN SUCH INSTANCES TO REQUIRE THE RESIGNATION OF THE EMPLOYEE.

A POSITION IN THE GOVERNMENT SERVICE IN THE DISTRICT OF COLUMBIA WITH A SALARY FIXED BY LAW CAN NOT BE HELD BY MORE THAN ONE PERSON AT ONE TIME. IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY FOR EMPLOYMENT OF SUBSTITUTES, SO LONG AS A REGULAR EMPLOYEE OF THE GOVERNMENT CONTINUES AS SUCH ON THE RECORDS OF THE ADMINISTRATIVE OFFICE, EITHER ON DUTY, OR ABSENT ON LEAVE WITH OR WITHOUT PAY, NO OTHER PERSON CAN BE APPOINTED, TEMPORARILY OR PERMANENTLY, TO THE POSITION HE HOLDS. 15 COMP. DEC. 855; 20 ID. 584; DECISION OF OCTOBER 4, 1921, 2 MS. COMP. GEN. 135. THE CLASSIFICATION ACT OF 1923 AUTHORIZES NO CHANGE IN THIS RULE.

THERE IS, HOWEVER, NO STATUTORY PROHIBITION AGAINST THE TEMPORARY DETAIL OR ASSIGNMENT OF ANOTHER EMPLOYEE TO PERFORM THE WORK OF A REGULAR EMPLOYEE ABSENT ON LEAVE. IF THE APPROPRIATION PROVIDING FOR THE PERFORMANCE OF THE WORK OF A REGULAR EMPLOYEE IS ALSO AVAILABLE FOR EMPLOYMENT OF TEMPORARY PERSONAL SERVICES, THERE WOULD BE NO LEGAL OBJECTION TO THE CREATION AND ALLOCATION TO PROPER GRADE UNDER THE CLASSIFICATION ACT OF 1923, OF A TEMPORARY POSITION, WITH THE APPROVAL OF THE PERSONNEL CLASSIFICATION BOARD, SEPARATE AND DISTINCT FROM THE PERMANENT POSITION HELD BY THE REGULAR EMPLOYEE, THE INCUMBENT OF THE TEMPORARY POSITION TO PERFORM THE WORK OF THE REGULAR EMPLOYEE DURING HIS ABSENCE FROM DUTY.