A-83073, JANUARY 29, 1937, 16 COMP. GEN. 703

A-83073: Jan 29, 1937

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IT IS PRIMARILY THE DUTY AND RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE CONCERNED AND THE CIVIL SERVICE COMMISSION TO DETERMINE WHETHER A PARTICULAR POSITION. IS CONCERNED. THAT THE DUTY PERFORMED BY THE EMPLOYEE IS THAT EMBRACED IN THE POSITION DESIGNATED ON THE PAY ROLL. IT WILL BE SUFFICIENT IF NOTATION AS TO THE COMMISSION'S APPROVAL IS PLACED ON THE PAY ROLL. IS THAT OF THE ADMINISTRATIVE OFFICE CONCERNED. AS THOSE "WHO ARE NOT. IS AS FOLLOWS: IN THE ADMINISTRATION OF THE CIVIL SERVICE ACT OF 1883 AND THE CLASSIFICATION ACT OF 1923. IS IMPORTANT IN CIVIL SERVICE ADMINISTRATION. IS NOT A PRECISE EXPRESSION. IT IS USED WITHOUT FURTHER DEFINITION. NO EXPRESS PROVISION IS MADE FOR ANY PARTICIPATION BY THE CIVIL SERVICE COMMISSION IN DECIDING THE PROPER INTERPRETATION OF THE TERM OR IN PASSING UPON EXPERT APPOINTMENTS OR SALARIES.

A-83073, JANUARY 29, 1937, 16 COMP. GEN. 703

OFFICERS AND EMPLOYEES - "EXPERTS" - QUALIFICATIONS, APPOINTMENTS, DUTIES, AND SALARIES - JURISDICTION OF CIVIL SERVICE COMMISSION, APPOINTING AGENCIES, AND GENERAL ACCOUNTING OFFICE WHERE A STATUTE EXPRESSLY EXCEPTS "EXPERTS" FROM THE PROVISIONS OF EITHER THE CIVIL SERVICE LAWS AND REGULATIONS, OR THE CLASSIFICATION ACT, AS AMENDED, OR BOTH, IT IS PRIMARILY THE DUTY AND RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE CONCERNED AND THE CIVIL SERVICE COMMISSION TO DETERMINE WHETHER A PARTICULAR POSITION, OR CLASS OF POSITIONS, FALLS WITHIN THE EXCEPTION, THE JURISDICTION OF THE GENERAL ACCOUNTING OFFICE, INSOFAR AS THE CLASSIFICATION ACT, AS AMENDED, IS CONCERNED, BEING THAT OF DETERMINING IN THE AUDIT OF THE PAY ROLLS INVOLVED THAT THE SALARY PAID CONFORMS WITH THE SALARY RANGE PRESCRIBED BY LAW AND REGULATION, AND, WHERE IT APPEARS NECESSARY, THAT THE DUTY PERFORMED BY THE EMPLOYEE IS THAT EMBRACED IN THE POSITION DESIGNATED ON THE PAY ROLL. THE VARIOUS GOVERNMENT DEPARTMENTS AND ESTABLISHMENTS NEED NOT PRESENT EACH PROPOSED APPOINTMENT AS AN EXPERT, AFTER INITIAL APPROVAL BY THE CIVIL SERVICE COMMISSION, TO THE GENERAL ACCOUNTING OFFICE FOR FINAL APPROVAL, BUT IT WILL BE SUFFICIENT IF NOTATION AS TO THE COMMISSION'S APPROVAL IS PLACED ON THE PAY ROLL, SUBJECT TO POST AUDIT IN THIS RESPECT. 16 COMP. GEN. 250, AMPLIFIED. THE TERM "EXPERTS" AS USED IN STATUTES EXCEPTING "EXPERTS" FROM THE OPERATION OF THE CIVIL SERVICE ACT ALONE, OR FROM THE CIVIL SERVICE ACT AND THE CLASSIFICATION ACT, REFERS TO BOTH POSITIONS AND PERSONS, THE POSITION TO BE SUCH AS CAN BE SATISFACTORILY FILLED ONLY BY AN EXPERT, AND THE PERSON APPOINTED TO BE SUCH AN EXPERT. WHEN AN ADMINISTRATIVE OFFICE AND THE CIVIL SERVICE COMMISSION CANNOT AGREE AS TO WHETHER THE DUTIES OF A POSITION REQUIRE THE SERVICES OF AN EXPERT, IT WOULD APPEAR THAT THE DETERMINATION OF THE COMMISSION SHOULD PREVAIL, BUT THE RESPONSIBILITY OF SELECTING QUALIFIED PERSONNEL, AFTER A DETERMINATION OF NEED OF EXPERT SERVICES, AND THE FIXING OF SALARY RATES WHERE NOT GOVERNED BY THE CLASSIFICATION ACT, AS AMENDED, IS THAT OF THE ADMINISTRATIVE OFFICE CONCERNED. AN "EXPERT" APPOINTED WITHOUT REGARD TO THE CIVIL SERVICE ACT AND RULES MAY NOT, IMMEDIATELY UPON APPOINTMENT, OR THEREAFTER, BE ASSIGNED TO WORK OF A POSITION IN THE COMPETITIVE CLASSIFIED SERVICE. AN "EXPERT" APPOINTED WITHOUT REGARD TO THE CLASSIFICATION ACT, AS AMENDED, AND WITH SALARY FIXED ACCORDINGLY, MAY NOT BE ASSIGNED TO DUTIES AND RESPONSIBILITIES THAT WOULD CAUSE HIS POSITION TO FALL UNDER SAID ACT. THE PRESCRIBING OF A MINIMUM SALARY RATE APPLICABLE TO ALL GOVERNMENT AGENCIES FOR POSITIONS REQUIRING THE SERVICES OF AN EXPERT WOULD APPEAR INADVISABLE AND IMPRACTICAL IN VIEW OF THE WIDE DIVERSITY OF DUTIES AND AGENCIES INVOLVED, REQUIRING IN SOME CASES TRAINING OR EXPERIENCE IN SOME SPECIALIZED FIELD ONLY, RATHER THAN GENERAL EDUCATIONAL OR PROFESSIONAL QUALIFICATIONS AND THERE BEING ALSO FOR CONSIDERATION WHETHER POSITIONS PROPERLY REQUIRING THE APPOINTMENT OF "EXPERTS" UPON THE INITIATION OF A PARTICULAR ACTIVITY MAY NOT BE REGARDED LATER AS NOT REQUIRING SUCH APPOINTMENTS WITH RESPECT TO THE SUBSEQUENT FILLING OF VACANCIES. THE DESCRIPTIVE PHRASE RELATIVE TO "EXPERTS" APPEARING 14 COMP. GEN. 70, 71, AS THOSE "WHO ARE NOT, GENERALLY, OBTAINABLE UNDER OPERATION OF THE CIVIL SERVICE LAWS AND REGULATIONS," HAS REFERENCE TO A SITUATION IN WHICH, ON ACCOUNT OF THE RESTRICTED FIELD OF QUALIFICATIONS REQUIRED, AND THE CONSEQUENT SMALL NUMBER OF QUALIFIED PERSONS AVAILABLE, THE CIVIL SERVICE COMMISSION MAY DETERMINE THAT IT WOULD BE VERY DIFFICULT, IF NOT IMPOSSIBLE, TO SECURE A SUFFICIENT NUMBER OF ELIGIBLES THROUGH CIVIL SERVICE EXAMINATIONS. THE TERM "EXPERT" AS USED IN LEGISLATION EXCEPTING SUCH POSITIONS AND PERSONNEL FROM THE GENERALLY APPLICABLE APPOINTMENT AND SALARY LIMITATIONS HAS REFERENCE GENERALLY TO POSITIONS IN A TEMPORARY CONSULTANT OR ADVISORY CAPACITY BUT DOES NOT PRECLUDE EMPLOYMENT ON A PERMANENT BASIS IN A PROPER CASE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 29, 1937:

YOUR LETTER OF JANUARY 12, 1937, IS AS FOLLOWS:

IN THE ADMINISTRATION OF THE CIVIL SERVICE ACT OF 1883 AND THE CLASSIFICATION ACT OF 1923, AS AMENDED, THE COMMISSION FREQUENTLY ENCOUNTERS PERPLEXING PROBLEMS DUE TO THE NUMEROUS EXISTING STATUTES WHICH EXCEPT "EXPERTS" FROM ONE OR BOTH OF THESE BASIC PERSONNEL ACTS. CLEARLY, THE MEANING OF THE TERM "EXPERT," AS USED IN EXCEPTING LEGISLATION, IS IMPORTANT IN CIVIL SERVICE ADMINISTRATION, BECAUSE ON THAT MEANING DEPENDS THE QUESTION WHETHER OR NOT, IN INDIVIDUAL CASE AFTER INDIVIDUAL CASE, THE PERSON INVOLVED MAY BE APPOINTED AND/OR COMPENSATED AT THE DISCRETION OF ADMINISTRATIVE OFFICERS, INSTEAD OF IN ACCORDANCE WITH THE CIVIL SERVICE ACT AND/OR THE CLASSIFICATION ACT.

THE TERM "EXPERT," WHEN USED LEGISLATIVELY TO DESIGNATE AN EXCEPTION FROM THE CIVIL SERVICE ACT AND/OR THE CLASSIFICATION ACT, IS NOT A PRECISE EXPRESSION. EXCEPT IN RARE INSTANCES, IT IS USED WITHOUT FURTHER DEFINITION, DESCRIPTION, OR CONDITION, AND NO EXPRESS PROVISION IS MADE FOR ANY PARTICIPATION BY THE CIVIL SERVICE COMMISSION IN DECIDING THE PROPER INTERPRETATION OF THE TERM OR IN PASSING UPON EXPERT APPOINTMENTS OR SALARIES. THE POSSIBILITY OF WIDE DIFFERENCES IN INTERPRETATION AND APPLICATION, WHICH IS INHERENT IN THE TERM ITSELF, IS OBVIOUSLY SERIOUS IN THE ABSENCE OF SOME TYPE OF AUTHORITATIVE CONTROL IN INDIVIDUAL CASES.

THE IMPORTANCE OF THE INTERPRETATION OF THE TERM "EXPERT" UNDER THESE CIRCUMSTANCES IS INDICATED BY THE FACT THAT EXCEPTIONS UNDER THIS DESIGNATION OCCUR IN MANY STATUTES. THE PRINCIPAL EXAMPLES ARE CITED AS FOLLOWS:

EXEMPTIONS OF "EXPERTS" FROM THE CIVIL SERVICE ACT AND THE CLASSIFICATION ACT:

AGRICULTURAL ADJUSTMENT ADMINISTRATION, TITLE I, SEC. 10 (A), 48 STAT. 37, MAY 12, 1933; SEC. 13, ACT OF FEBRUARY 29, 1936, PUB. NO. 461, 74TH CONG.

FEDERAL COMMUNICATIONS COMMISSION, SEC. 5, PUB.RES. NO. 8, MARCH 15, 1935.

FEDERAL FARM BOARD (NOW FARM CREDIT ADMINISTRATION), SEC. 4, 46 STAT. 13, JUNE 15, 1929. SEE SCHEDULE B, SUBDIVISION XII, PAR. 2, OF THE CIVIL SERVICE RULES.

FEDERAL POWER COMMISSION, SEC. 310, PUB., NO. 333, 74TH CONG., AUGUST 26, 1935.

NATIONAL ARCHIVES, SEC. 168D, PUB., NO. 447, 74TH CONG., FEBRUARY 14, 1936.

NATIONAL PARK SERVICE, 47 STAT. 705, JULY 19, 1932; SEC. 3, PUB., NO. 287, 74TH CONG., AUGUST 20, 1935; 48 STAT. 385, MARCH 2, 1934.

RURAL ELECTRIFICATION ADMINISTRATION, SEC. 11, PUB., NO. 605, 74TH CONG., MAY 20, 1936.

SECURITIES AND EXCHANGE COMMISSION, SEC. 4 (B), 48 STAT. 885, JUNE 16, 1934; SEC. 31, PUB., NO. 333, 74TH CONG., AUGUST 26, 1935.

TREASURY DEPARTMENT, SEC. 917 (A), REVENUE ACT OF JUNE 22, 1936.

U.S. MARITIME COMMISSION, SEC. 201 (E), PUB., NO. 835, 74TH CONG., JUNE 29, 1936.

EXEMPTIONS OF "EXPERTS" FROM THE CIVIL SERVICE ACT ONLY:

FEDERAL ALCOHOL ADMINISTRATION, SEC. 501 (C), PUB; NO. 815, 74TH CONG., JUNE 26, 1936.

FEDERAL TRADE COMMISSION, 38 STAT. 718, SEPTEMBER 26, 1914.

LABOR DEPARTMENT, SEC. 4, ACT OF JUNE 30, 1936, PUB., NO. 846, 74TH CONG.

NATIONAL MEDIATION BOARD, SEC. 4, THIRD, 48 STAT. 1193, JUNE 21, 1934.

SOCIAL SECURITY BOARD, TITLE VII, SEC. 703, ACT OF AUGUST 14, 1935, PUB., NO. 271, 74TH CONG.

TARIFF COMMISSION, SEC. 701, 39 STAT. 795, SEPTEMBER 8, 1916.

THUS THIS METHOD OF EXCEPTING POSITIONS FROM THE GENERAL PERSONNEL LAWS OF THE GOVERNMENT IS SUFFICIENTLY WIDESPREAD TO MAKE IT DESIRABLE THAT PRACTICES AND INTERPRETATIONS UNDER THAT METHOD BE AS UNIFORM AND AS SPECIFIC AS POSSIBLE.

REFERENCE IS MADE TO THE FOLLOWING DECISIONS OF YOUR OFFICE: 11 COMP. DEC. 806; 13 COMP. GEN. 199; 14 COMP. GEN. 70; 16 COMP. GEN. 250. PARTICULAR, THE DECISION LAST CITED, RENDERED ON SEPTEMBER 15, 1936, TO THE RURAL ELECTRIFICATION ADMINISTRATION, INDICATES THE PART TO BE PLAYED BY THE COMMISSION IN EXPERT APPOINTMENTS OUTSIDE THE SCOPE OF BOTH THE CLASSIFICATION ACT AND THE CIVIL SERVICE ACT. IT HOLDS (QUOTING FROM THE SYLLABUS) THAT "THE MATTER AS TO WHETHER PERSONS EMPLOYED BY THE RURAL ELECTRIFICATION ADMINISTRATION MAY BE APPOINTED AS "EXPERTS" * * * IS FOR CONSIDERATION BY THE CIVIL SERVICE COMMISSION BEFORE PRESENTATION TO THE GENERAL ACCOUNTING OFFICE FOR FINAL DETERMINATION.' IN THE BODY OF THE DECISION (PAGE 251), AFTER REFERENCE TO PRIOR DECISIONS, APPEARS THE FOLLOWING:

"THESE DECISIONS WERE INTENDED TO STATE THE GENERAL RULES FOR THE GUIDANCE OF ADMINISTRATIVE OFFICERS AND THE UNITED STATES CIVIL SERVICE COMMISSION. YOUR SUBMISSION DOES NOT DISCLOSE WHETHER THE MATTER OF THESE PARTICULAR APPOINTMENTS HAS BEEN TAKEN UP WITH THE CIVIL SERVICE COMMISSION AND WHETHER THAT COMMISSION HAS CONCURRED IN YOUR VIEW THAT THE POSITIONS REFERRED TO ARE OF A CLASS REQUIRING THE SERVICES OF "EXPERTS" AND THAT THE QUALIFICATIONS OF THE PROPOSED APPOINTEES ARE SUCH AS TO ENTITLE THEM TO BE APPOINTED AS "EXPERTS.' ACCORDINGLY, IT IS SUGGESTED THAT YOU ASCERTAIN THE VIEWS OF THE CIVIL SERVICE COMMISSION WITH RESPECT TO THESE MATTERS BEFORE PRESENTING SAME TO THIS OFFICE FOR FINAL DETERMINATION.'

THE COMMISSION HAS CONSISTENTLY ENDEAVORED TO COOPERATE WITH THE VARIOUS EXECUTIVE AGENCIES IN MAKING APPOINTMENTS PROPERLY TO EXCEPTED POSITIONS. FOR EXAMPLE, AGREEMENTS HAVE BEEN REACHED UNDER WHICH THE SECURITIES AND EXCHANGE COMMISSION, THE SOCIAL SECURITY BOARD, THE FEDERAL POWER COMMISSION, AND THE TREASURY DEPARTMENT (UNDER SECTION 917 (A) OF THE REVENUE ACT OF 1936) MAKE APPOINTMENTS TO SUCH POSITIONS, EXCEPTED BY STATUTE FROM THE CIVIL SERVICE ACT AND RULES, ONLY AFTER APPROVAL BY THE CIVIL SERVICE COMMISSION. IN ADDITION, THE FEDERAL POWER COMMISSION AND THE TREASURY DEPARTMENT HAVE AGREED TO REQUEST ADVISORY CLASSIFICATIONS OF SUCH POSITIONS UNDER THE CLASSIFICATION ACT OF 1923, FROM WHICH THE EXPERT POSITIONS IN QUESTION ARE LEGISLATIVELY EXCEPTED. EXPERTS IN THE SOCIAL SECURITY BOARD SUBJECT BY LAW TO THE CLASSIFICATION ACT.

IN THE COURSE OF ITS WORK ALONG THESE LINES, SEVERAL QUESTIONS OF PROCEDURE AND INTERPRETATION HAVE ARISEN UPON WHICH YOUR ADVICE IS REQUESTED. THESE QUESTIONS, FOR CONVENIENCE, MAY BE PRESENTED AS FOLLOWS:

1. (A) DOES YOUR DECISION OF SEPTEMBER 15, 1936, 16 COMP. GEN. 250,CONTEMPLATE THAT IN THE COURSE OF DAY BY DAY ADMINISTRATION, THE VARIOUS DEPARTMENTS AND AGENCIES ARE REQUIRED, AFTER INITIAL APPROVAL OF EXPERT APPOINTMENTS BY THE COMMISSION, TO PRESENT EACH INDIVIDUAL CASE TO THE GENERAL ACCOUNTING OFFICE FOR FINAL APPROVAL BEFORE THE APPOINTMENT IS MADE; OR (B) WILL IT BE SUFFICIENT FOR THE PURPOSES OF YOUR OFFICE IF NOTATIONS AS TO THE COMMISSION'S APPROVAL ARE PLACED ON THE DEPART'S PAY ROLLS, SUBJECT TO POST-AUDIT IN THIS RESPECT?

2. WHERE A STATUTE EXCEPTS "EXPERTS" FROM THE OPERATION OF THE CIVIL SERVICE ACT ALONE OR FROM THE CIVIL SERVICE ACT AND THE CLASSIFICATION ACT, DOES THE TERM REFER ONLY TO PERSONS OR DOES IT INCLUDE POSITIONS?

WE SUGGEST THE FOLLOWING VIEW FOR CONSIDERATION:

IN PASSING UPON EXPERT APPOINTMENTS TWO DISTINCT DECISIONS ARE INVOLVED. THE FIRST IS THAT THE POSITION, AS SUCH, IS AN EXPERT POSITION, I.E., IT IS COMPOSED OF DUTIES AND RESPONSIBILITIES PECULIAR TO THE SPECIALIZED FUNCTIONS FOR THE PERFORMANCE OF WHICH THE ORGANIZATION WAS CREATED AND OF A CALIBER DEFINITELY REQUIRING EXPERT QUALIFICATIONS ON THE PART OF ANY INCUMBENTS, AND THEREFORE IS AVAILABLE FOR AN EXCEPTED APPOINTMENT. THE SECOND IS THAT THE PERSON PROPOSED FOR SUCH EXCEPTED APPOINTMENT POSSESSES THESE EXPERT QUALIFICATIONS IN THE SPECIALIZED TYPE OF WORK REPRESENTED IN THAT POSITION. FAVORABLE DECISIONS ON BOTH POINTS ARE PREREQUISITE TO ANY PROPER EXPERT APPOINTMENT.

3. DOES YOUR DECISION OF SEPTEMBER 15, 1936, 16 COMP. GEN. 250, APPLY IN BOTH OF THE FOLLOWING TYPES OF CASES: (A) WHERE "EXPERTS" MAY BE APPOINTED WITHOUT REGARD TO THE CIVIL SERVICE ACT AND RULES, AND COMPENSATED WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED; AND (B) WHERE "EXPERTS" MAY BE APPOINTED WITHOUT REGARD TO THE CIVIL SERVICE ACT AND RULES BUT SHALL BE COMPENSATED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1925, AS AMENDED?

THERE APPEARS TO BE SOME DOUBT AS TO WHETHER THE COMMISION HAS A DEFINITE AUTHORITY AND RESPONSIBILITY WHEN "EXPERT" POSITIONS ARE EXCEPTED FROM THE CIVIL SERVICE ACT ONLY AND NOT FROM THE CLASSIFICATION ACT, AS IN THE CASE OF THE FEDERAL TRADE COMMISSION, THE TARIFF COMMISSION, AND THE SOCIAL SECURITY BOARD. IT IS IMPORTANT TO KNOW WHETHER IN SUCH CASES THE COMMISSION'S AUTHORITY DEPENDS UPON THE POSSIBILITY OF ARRIVING AT ADMINISTRATIVE AGREEMENTS WITH THE DEPARTMENTS, OR WHETHER IT IS DERIVED FROM LAW.

THE COMMISSION BELIEVES THAT THIS QUESTION SHOULD BE ANSWERED IN THE AFFIRMATIVE. THE FOLLOWING DESCRIPTION OF THE AUTHORITY OF THE COMMISSION IS SUGGESTED FOR CONSIDERATION: THAT OF DETERMINING, SUBJECT TO SUBMISSION FOR THE REVIEW OF THE GENERAL LAW OFFICERS OF THE GOVERNMENT, (1) WHETHER A GIVEN POSITION OR CLASS OF POSITIONS IS (A) WITHIN THE PURVIEW OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, SALARIES OF INCUMBENTS TO BE FIXED ACCORDINGLY, OR (B) WITHIN THE PURVIEW OF AN EXCEPTING "EXPERT" CLAUSE, SALARIES OF INCUMBENTS TO BE FIXED AT THE DISCRETION OF ADMINISTRATIVE OFFICERS; AND (2) WHETHER A GIVEN POSITION OR CLASS OF POSITIONS IS (A) WITHIN THE PURVIEW OF THE CIVIL SERVICE ACT AND RULES, INCUMBENTS TO BE APPOINTED IN ACCORDANCE THEREWITH, OR (B) WITHIN THE PURVIEW OF AN EXCEPTING "EXPERT" CLAUSE, INCUMBENTS TO BE SELECTED AND APPOINTED AT THE DISCRETION OF APPOINTING OFFICERS.

4. MAY THE DEPARTMENT APPOINT, WITHOUT REGARD TO THE CIVIL SERVICE ACT AND RULES, A PERSON WHO POSSESSES EXPERT QUALIFICATIONS AND IMMEDIATELY OR SOMETIME LATER ASSIGN HIM TO THE WORK OF A POSITION IN THE COMPETITIVE CLASSIFIED SERVICE?

5. MAY THE DEPARTMENT APPOINT, WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, A PERSON WHO POSSESSES "EXPERT" QUALIFICATIONS, FIX HIS SALARY WITHOUT REGARD TO SUCH ACT, AND ASSIGN HIM TO DUTIES AND RESPONSIBILITIES THAT WOULD CAUSE HIS POSITION TO FALL UNDER THE CLASSIFICATION ACT?

THE COMMISSION BELIEVES THAT QUESTIONS 4 AND 5 SHOULD BE ANSWERED IN THE NEGATIVE.

POSITIONS NOT REGARDED AS EXCEPTED "EXPERT" POSITIONS ARE NOT AVAILABLE FOR THE EMPLOYMENT OF ,EXPERTS" EITHER THROUGH ORIGINAL ENTRANCE TO THE SERVICE OR THROUGH REASSIGNMENT. PERSONS APPOINTED AS "EXPERTS" MUST BE ASSIGNED TO "EXPERT" POSITIONS INITIALLY AND MAY NOT BE REASSIGNED TO POSITIONS WITHIN THE SCOPE OF THE BASIC PERSONNEL LAWS, BUT ONLY TO OTHER EXCEPTED POSITIONS AND THEN UNDER THE SAME PROCEDURE AS FOR ORIGINAL APPOINTMENT THERETO. ANY OTHER VIEW WOULD CLEARLY PERMIT OPEN VIOLATIONS OF THE CIVIL SERVICE ACT OR THE CLASSIFICATION ACT OR BOTH.

6. AS A PRACTICAL DEVICE IN PASSING UPON EXPERT APPOINTMENTS UNDER THE AGREEMENTS MENTIONED HEREIN (AND ALSO IN PASSING UPON EXPERT APPOINTMENTS IN THE FARM CREDIT ADMINISTRATION UNDER SCHEDULE B, SUBDIVISION XII, PAR. 2 OF THE CIVIL SERVICE RULES), THE VIEW HAS BEEN TAKEN THAT NO POSITION IS OF SUFFICIENTLY HIGH GRADE TO REQUIRE "EXPERT" QUALIFICATIONS WITHIN THE MEANING OF THIS DISCUSSION UNLESS ITS DUTIES ARE SUFFICIENTLY DIFFICULT OR COMPLEX TO WARRANT APPRAISAL IN CAF-9 OR P-3 (THE $3,200-$3,800 GRADE) UNDER THE ALLOCATION STANDARDS OF THE CLASSIFICATION ACT, AS AMENDED. THIS A REASONABLE MINIMUM LEVEL OR IS THERE SUFFICIENT SIMILARITY BETWEEN THE TERM "EXPERTS" AND THE TERMS "CONSULTING SPECIALIST," P- 6,"PROFESSIONAL CONSULTANT," P-7, AND ,TECHNICAL CONSULTANT," CAF-14, USED IN THE GRADE DEFINITIONS OF THE CLASSIFICATION ACT, TO WARRANT CHANGING THIS MINIMUM LEVEL TO P-6 OR CAF-13?

ATTENTION IS INVITED TO YOUR DECISION OF JANUARY 18, 1934, 13 COMP. GEN. 199, 200, WHEREIN AN EXAMPLE OF AN EXPERT APPOINTMENT WAS GIVEN AS "TECHNICAL AGRICULTURAL EXPERTS EMPLOYED AS CONSULTANTS OR ON SPECIAL COMMISSION AND THE DEPARTMENT OF AGRICULTURE ARE IN THE PROCESS OF COMPLETING AN AGREEMENT FIXING $5,600 AS THE MINIMUM RATE BELOW WHICH A POSITION WILL NOT BE CONSIDERED AN "EXPERT" POSITION UNDER THE PROVISIONS OF SEC. 10 (A) OF THE AGRICULTURAL ADJUSTMENT ACT. THIS AGREEMENT AROSE OUT OF A REQUEST BY YOUR OFFICE SOME TIME AGO THAT THE COMMISSION LOOK INTO THE MATTER OF EXPERT APPOINTMENTS IN THE AGRICULTURAL ADJUSTMENT ADMINISTRATION.

GUIDANCE ON THIS QUESTION WOULD BE APPRECIATED.

7. IN YOUR DECISION OF JULY 25, 1934, 14 COMP. GEN. 70, 71, ONE OF THE DESCRIPTIVE PHRASES RELATIVE TO "EXPERTS" REFERS TO THEM AS PERSONS "WHO ARE NOT, GENERALLY, OBTAINABLE UNDER OPERATION OF THE CIVIL-SERVICE LAWS AND REGULATIONS.' IS IT A CORRECT UNDERSTANDING THAT THIS CLAUSE REFERS TO A SITUATION IN WHICH, ON ACCOUNT OF THE RESTRICTED FIELD OF QUALIFICATIONS REQUIRED, AND THE CONSEQUENT SMALL NUMBER OF QUALIFIED PERSONS AVAILABLE, THE COMMISSION BELIEVES THAT IT WOULD BE VERY DIFFICULT, IF NOT IMPOSSIBLE, TO SECURE A SUFFICIENT NUMBER OF ELIGIBLES THROUGH CIVIL SERVICE EXAMINATIONS? THE COMMISSION BELIEVES THAT THIS QUESTION SHOULD BE ANSWERED IN THE AFFIRMATIVE.

8. DOES THE TERM "EXPERTS" AS USED IN EXCEPTING LEGISLATION INCLUDE ONLY THOSE WHO ARE EMPLOYED FOR CONSULTING OR ADVISORY SERVICE OR FOR SPECIAL ASSIGNMENTS, OF ONLY TEMPORARY DURATION IN ANY CASE, OR MAY IT COVER PERMANENT, REGULAR, FULL-TIME EMPLOYMENTS, INCLUDING POSITIONS IN THE REGULAR ORGANIZATIONAL STRUCTURE OF A GOVERNMENT AGENCY?

GUIDANCE ON THIS QUESTION WOULD BE APPRECIATED. IF THE COMMISSION CAN BE OF ANY ADDITIONAL ASSISTANCE TO YOUR OFFICE IN YOUR STUDY OF THESE QUESTIONS WE SHALL BE GLAD TO BE OF SERVICE.

WHERE A STATUTE EXPRESSLY EXCEPTS "EXPERTS" FROM THE PROVISIONS OF EITHER THE CIVIL SERVICE LAWS AND REGULATIONS OR THE CLASSIFICATION ACT AS AMENDED, OR BOTH, IT IS PRIMARILY THE DUTY AND RESPONSIBILITY OF THE PARTICULAR ADMINISTRATIVE OFFICE CONCERNED AND THE CIVIL SERVICE COMMISSION TO DETERMINE WHETHER A PARTICULAR POSITION OR CLASS OF POSITION FALLS WITHIN THE EXCEPTION. THE JURISDICTION OF THIS OFFICE, INSOFAR AS THE CLASSIFICATION ACT AS AMENDED IS CONCERNED, EXTENDS TO DETERMINING IN THE AUDIT OF PAY ROLLS THAT THE SALARY PAID TO AN EMPLOYEE CONFORMS WITH THE SALARY RANGE PRESCRIBED BY LAW AND REGULATION FOR THE PARTICULAR POSITION TO WHICH THE EMPLOYEE HAS BEEN ASSIGNED, THE FACT TO BE ASSUMED, OF COURSE, THAT THE EMPLOYEE ACTUALLY PERFORMS THE CLASS OF DUTY EMBRACED BY THE POSITION DESIGNATED ON THE PAY ROLL. BUT WHERE THERE IS REASON TO BELIEVE THAT THE LATTER IS NOT THE CASE THEN IT BECOMES THE DUTY OF THIS OFFICE TO QUESTION THE PAYMENT IN THE AUDIT. QUESTION 1 (A), THEREFORE, IS ANSWERED IN THE NEGATIVE AND THE PROCEDURE SUGGESTED IN QUESTION 1 (B) WILL BE SUFFICIENT FOR THE PURPOSES OF THIS OFFICE.

WITH RESPECT TO QUESTION 2, YOU ARE ADVISED THAT THE TERM "EXPERTS" REFERS TO BOTH POSITIONS AND PERSONS. IT MUST APPEAR THAT THE POSITION CAN BE SATISFACTORILY FILLED ONLY BY AN EXPERT AND THAT THE PERSON APPOINTED TO THE POSITION IS SUCH AN EXPERT.

REFERRING TO QUESTION 3, AS ABOVE STATED THIS OFFICE IS CONCERNED PRIMARILY WITH THE DETERMINATION AS TO WHETHER THE SALARIES PAID ARE IN COMPLIANCE WITH THE CLASSIFICATION ACT AS AMENDED. HOWEVER, THE DECISION CITED IN QUESTION 3 SHOULD BE OF ASSISTANCE TO THE COMMISSION IN CONSIDERING BOTH TYPES OF CASES DESCRIBED. REFERRING TO YOUR COMMENTS FOLLOWING THE STATEMENT OF QUESTION 3, IT IS THE VIEW OF THIS OFFICE THAT WHEN THE ADMINISTRATIVE OFFICE AND THE COMMISSION CANNOT AGREE, THE DETERMINATION OF THE COMMISSION AS TO WHETHER THE DUTIES OF A POSITION OR CLASS OF POSITIONS DO OR DO NOT REQUIRE THE SERVICES OF EXPERTS SHOULD PREVAIL. BUT WHEN THE COMMISSION DETERMINES THAT THE DUTIES OF A POSITION REQUIRE IT TO BE FILLED BY AN EXPERT, IT THEN BECOMES THE DUTY AND RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE TO SELECT A PERSON HAVING THE QUALIFICATIONS NECESSARY TO FILL THE POSITION, AND, WHEN THE EMPLOYMENT OF EXPERTS IS EXCEPTED FROM THE TERMS OF THE CLASSIFICATION ACT AS AMENDED, ALSO, TO FIX THE SALARY OF THE EMPLOYEE SO SELECTED.

QUESTIONS 4 AND 5 ARE ANSWERED IN THE NEGATIVE.

REFERRING TO QUESTION 6, I DOUBT THE PRACTICABILITY OF ATTEMPTING TO PRESCRIBE A MINIMUM SALARY RATE--- APPLICABLE TO ALL SERVICES--- FOR POSITIONS REQUIRING THE SERVICES OF AN EXPERT. WHILE IN MOST ACTIVITIES OF THE GOVERNMENT A POSITION THE DUTIES OF WHICH WOULD NOT JUSTIFY A RATING AS HIGH AS P-6 OF CAF-13 WOULD NOT REQUIRE THE SERVICES OF AN EXPERT, IT IS CONCEIVABLE THAT ESPECIALLY IN SOME OF THE NEWER ACTIVITIES, THERE MIGHT BE POSITIONS THE DUTIES OF WHICH WOULD REQUIRE EMPLOYEES HAVING TRAINING OR EXPERIENCE IN SOME SPECIALIZED FIELD RATHER THAN GENERAL EDUCATIONAL OR PROFESSIONAL QUALIFICATIONS AND WHOSE SERVICES WOULD NOT JUSTIFY A SALARY OF MORE THAN $3,200 TO $3,800. CONSEQUENTLY, IT IS BELIEVED THERE CAN BE NO HARD AND FAST RULE IN THIS RESPECT. ALSO, IT MAY BE THAT POSITIONS WHICH REQUIRED THE SERVICES OF EXPERTS WHEN THE ACTIVITY WAS FIRST UNDERTAKEN BY THE GOVERNMENT LATER MAY--- WITH RESPECT TO THE SUBSEQUENT FILLING OF VACANCIES THEREIN--- BE REGARDED AS NOT REQUIRING THE SERVICES OF EXPERTS.

QUESTION 7 IS ANSWERED IN THE AFFIRMATIVE. SEE ANSWER TO QUESTION 3.

IN REGARD TO QUESTION 8, THE TERM "EXPERT" AS USED IN EXCEPTING LEGISLATION WOULD APPEAR TO REFER, GENERALLY, TO POSITIONS REQUIRING TEMPORARY SERVICES IN A CONSULTANT OR ADVISORY CAPACITY. HOWEVER, THE EXCEPTING LEGISLATION DOES NOT PRECLUDE THE EMPLOYMENT OF AN EXPERT ON A PERMANENT BASIS WHERE THE POSITION IS SUCH AS TO REQUIRE THAT THAT BE DONE.