A-88946, OCTOBER 11, 1937, 17 COMP. GEN. 323

A-88946: Oct 11, 1937

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COMPENSATION - SERVICE DURING INTERVAL BETWEEN APPOINTMENTS AN EMPLOYEE OF THE RESETTLEMENT ADMINISTRATION WHOSE TEMPORARY APPOINTMENT EXPIRED BEFORE APPROVAL BY THE APPOINTING AUTHORITY OF AN EMERGENCY APPOINTMENT IS NOT ENTITLED TO COMPENSATION FOR SERVICES RENDERED IN THE INTERVAL BETWEEN THE APPOINTMENTS. IT BEING WELL ESTABLISHED THAT AN APPOINTEE IS NOT ENTITLED TO ANY COMPENSATION PRIOR TO THE DATE HIS APPOINTMENT WAS ACTUALLY MADE BY THE PROPER AUTHORITY. WAS APPOINTED FOR A PERIOD OF 90 DAYS UNDER A TEMPORARY FIELD WORK AGREEMENT BY THE RESETTLEMENT ADMINISTRATION. INASMUCH AS ALL EMERGENCY APPOINTMENTS WERE APPROVED IN WASHINGTON. IT WAS NECESSARY FOR AUTHORITIES OF THE RESETTLEMENT ADMINISTRATION STATIONED IN WASHINGTON TO TAKE ACTION UPON THE REGIONAL DIRECTOR'S RECOMMENDATIONS.

A-88946, OCTOBER 11, 1937, 17 COMP. GEN. 323

COMPENSATION - SERVICE DURING INTERVAL BETWEEN APPOINTMENTS AN EMPLOYEE OF THE RESETTLEMENT ADMINISTRATION WHOSE TEMPORARY APPOINTMENT EXPIRED BEFORE APPROVAL BY THE APPOINTING AUTHORITY OF AN EMERGENCY APPOINTMENT IS NOT ENTITLED TO COMPENSATION FOR SERVICES RENDERED IN THE INTERVAL BETWEEN THE APPOINTMENTS, IT BEING WELL ESTABLISHED THAT AN APPOINTEE IS NOT ENTITLED TO ANY COMPENSATION PRIOR TO THE DATE HIS APPOINTMENT WAS ACTUALLY MADE BY THE PROPER AUTHORITY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, OCTOBER 11, 1937:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 10, 1937, AS FOLLOWS:

ON APRIL 10, 1936, GEORGE M. DAVIS, OF WAYCROSS, GEORGIA, WAS APPOINTED FOR A PERIOD OF 90 DAYS UNDER A TEMPORARY FIELD WORK AGREEMENT BY THE RESETTLEMENT ADMINISTRATION. HIS WORK PROVED SATISFACTORY,AND THE REGIONAL DIRECTOR THEREFORE RECOMMENDED THAT MR. DAVIS BE GIVEN AN EMERGENCY APPOINTMENT BEARING AN EFFECTIVE DATE OF JULY 10, THE EXPIRATION DATE OF HIS TENURE OF SERVICE UNDER THE TEMPORARY FIELD WORK AGREEMENT. INASMUCH AS ALL EMERGENCY APPOINTMENTS WERE APPROVED IN WASHINGTON, IT WAS NECESSARY FOR AUTHORITIES OF THE RESETTLEMENT ADMINISTRATION STATIONED IN WASHINGTON TO TAKE ACTION UPON THE REGIONAL DIRECTOR'S RECOMMENDATIONS. ON JULY 7 THE ASSISTANT TO THE ADMINISTRATOR OF THE RESETTLEMENT ADMINISTRATION ADDRESSED A LETTER TO THE REGIONAL DIRECTOR CONCERNING THE DESCRIPTION OF DUTIES OF MR. DAVIS. ON JULY 10 THIS LETTER WAS FORWARDED TO THE ASSISTANT REGIONAL DIRECTOR IN CHARGE OF LAND UTILIZATION WITH A REQUEST THAT HE FURNISH THE PERSONNEL DIVISION IN WASHINGTON WITH THE DESIRED INFORMATION CONCERNING THIS EMPLOYEE'S DUTIES. THIS INFORMATION WAS RELAYED TO THE PERSONNEL DIVISION IN WASHINGTON ON JULY 22. ON AUGUST 1 THE ASSISTANT TO THE ADMINISTRATOR WIRED APPROVAL OF MR. DAVIS' APPOINTMENT AND REQUESTED THE REGIONAL DIRECTOR TO SUPPLY THE ENTRANCE ON DUTY DATE. ON AUGUST 3 THE REGIONAL DIRECTOR WIRED THAT THE EFFECTIVE DATE OF THE APPOINTMENT WAS JULY 10, 1936. THE APPOINTMENT, HOWEVER, WAS MADE EFFECTIVE AS OF AUGUST 1, THUS LEAVING THE EMPLOYEE IN A NON-PAY STATUS FOR 21 DAYS.

IT IS REPORTED THAT THE "APPARENT ERROR" CAUSED THE EMPLOYEE NOT ONLY A LOSS OF 21 DAYS' PAY BUT CERTAIN TRAVEL EXPENSES INCURRED DURING THE INTERVAL AND THAT THE INCIDENT IN CAUSING THE REGIONAL OFFICE A GREAT DEAL OF EMBARRASSMENT.

WE ARE AWARE OF THE RULINGS OF YOUR OFFICE TO THE EFFECT THAT THE LAW DOES NOT COUNTENANCE RETROACTIVE APPOINTMENTS. INSOFAR AS WE ARE ABLE TO DISCOVER, HOWEVER, YOU HAVE ALWAYS APPLIED THIS RULE WHERE THERE WAS NOT A CONTINUOUS SERVICE FACTOR INVOLVED. IN THE INSTANT CASE IT IS TO BE NOTED THAT MR. DAVIS WAS A BONA FIDE EMPLOYEE OF THE RESETTLEMENT ADMINISTRATION ON JULY 10 AND THAT HIS SERVICES FROM THAT DATE TO AUGUST 1 WERE IN THE NATURE OF CONTINUOUS EMPLOYMENT.

WE WONDER WHETHER THE FOREGOING EXPLANATION WILL WARRANT AN EXCEPTION BEING MADE TO YOUR DECISIONS RELATING TO RETROACTIVE APPOINTMENTS. WILL YOU KINDLY RENDER ADVICE ON THE FOREGOING QUESTION AT YOUR EARLIEST CONVENIENCE?

WHILE IT APPEARS FROM YOUR LETTER THAT IT WAS THE DESIRE AND INTENTION OF THE REGIONAL DIRECTOR TO HAVE THE APPOINTMENT MADE EFFECTIVE JULY 10, 1936, IT IS REPORTED THAT THE APPOINTING AUTHORITY DID NOT SO APPROVE THE APPOINTMENT BUT MADE SAME EFFECTIVE AUGUST 1, 1936. ALTHOUGH NO ATTEMPT WAS MADE TO GIVE THE APPOINTMENT RETROACTIVE EFFECT, IT MAY BE STATED THAT THE RULE IS WELL ESTABLISHED THAT RETROACTIVE APPOINTMENTS DO NOT ENTITLE THE APPOINTEE TO ANY COMPENSATION PRIOR TO THE DATE THE APPOINTMENT WAS ACTUALLY MADE BY THE PROPER AUTHORITY. 20 COMP. DEC. 214; 26 ID. 443; 7 COMP. GEN. 96; 8 ID. 582.

SINCE IT IS SHOWN THAT THE APPOINTMENT IN THIS CASE WAS NOT APPROVED BY THE APPOINTING AUTHORITY IN THE RESETTLEMENT ADMINISTRATION UNTIL AUGUST 1, 1936, AND FIXED SAID DATE AS THE EFFECTIVE DATE THEREOF, THE APPOINTEE WAS NOT ENTITLED TO COMPENSATION PRIOR TO THAT DATE. THE EMERGENCY APPOINTMENT MADE EFFECTIVE AUGUST 1, 1936, TERMINATED JUNE 30, 1937, AND THERE IS NO AUTHORITY NOW TO HOLD THAT THE EMPLOYEE WAS LEGALLY IN THE SERVICE AND ENTITLED TO BE PAID FOR THE PERIOD JULY 10 TO 31, 1936. THE FACT THAT MR. DAVIS MAY HAVE RENDERED SERVICE BETWEEN THE DATE OF TERMINATION OF HIS TEMPORARY APPOINTMENT AND THE EFFECTIVE DATE OF HIS EMERGENCY APPOINTMENT DID NOT GIVE HIM ANY LEGAL RIGHT TO PAY FOR SUCH PERIOD. 6 COMP. GEN. 263.