A-90883, JANUARY 3, 1938, 17 COMP. GEN. 537

A-90883: Jan 3, 1938

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IT IS FOR THE CIVIL SERVICE COMMISSION TO DETERMINE WHETHER A PARTICULAR POSITION. IS AS FOLLOWS: IN YOUR DECISION OF JANUARY 29. THE FOLLOWING RULINGS AMONG OTHERS WERE MADE (QUOTING FROM THE SYLLABUS): "WHERE A STATUTE EXPRESSLY EXCEPTS "EXPERTS" FROM THE PROVISIONS OF EITHER THE CIVIL SERVICE LAW AND REGULATIONS. 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. FROM TIME TO TIME STATUTES ARE ENACTED NOT ONLY EXCEPTING "EXPERTS" BUT ALSO OTHER GROUPS OF POSITIONS FROM THE CIVIL SERVICE ACT AND THE CLASSIFICATION ACT.

A-90883, JANUARY 3, 1938, 17 COMP. GEN. 537

OFFICERS AND EMPLOYEES - EXPERTS, ATTORNEYS, ETC. - APPOINTMENTS, DUTIES AND SALARIES - JURISDICTION OF CIVIL SERVICE COMMISSION WHERE A STATUTE EXPRESSLY EXCEPTS ATTORNEYS, SPECIAL AGENTS, EXAMINERS, ETC., FROM THE PROVISIONS OF EITHER THE CIVIL-SERVICE LAWS AND REGULATIONS, AND/OR THE CLASSIFICATION ACT, AS AMENDED, IT IS FOR THE CIVIL SERVICE COMMISSION TO DETERMINE WHETHER A PARTICULAR POSITION, OR CLASS OF POSITIONS, FALLS WITHIN THE EXCEPTION. 16 COMP. GEN. 703, AMPLIFIED. WHERE A STATUTE EXPRESSLY EXCEPTS EXPERTS, ATTORNEYS, ETC., FROM THE PROVISIONS OF THE CIVIL-SERVICE LAWS AND REGULATIONS AND/OR THE CLASSIFICATION ACT, AS AMENDED, THE EXCEPTED DESIGNATIONS REFER TO BOTH POSITIONS AND PERSONS. 16 COMP. GEN. 703, AMPLIFIED. A PERSON APPOINTED WITHOUT REGARD TO CIVIL-SERVICE LAWS AND REGULATIONS UNDER A DESIGNATION OF EXPERT, ATTORNEY, ETC., EXPRESSLY EXCEPTED BY STATUTE FROM SUCH LAWS AND REGULATIONS, MAY NOT, IMMEDIATELY UPON APPOINTMENT, OR THEREAFTER, BE ASSIGNED TO WORK OF A POSITION IN THE COMPETITIVE CLASSIFIED SERVICE. 16 COMP. GEN. 703, AMPLIFIED. A PERSON APPOINTED AS EXPERT, ATTORNEY, ETC., WITHOUT REGARD TO THE CLASSIFICATION ACT, AS AMENDED, WITH SALARY FIXED ACCORDINGLY, MAY NOT BE ASSIGNED TO DUTIES AND RESPONSIBILITIES THAT WOULD CAUSE HIS POSITION TO FALL UNDER SAID ACT. 16 COMP. GEN. 703, AMPLIFIED. WHERE A STATUTE EXCEPTS POSITIONS OF A DESIGNATED CLASS, SUCH AS "ATTORNEYS" AND "ENGINEERS" FROM THE CIVIL-SERVICE LAWS AND REGULATIONS AND/OR CLASSIFICATION ACT, AS AMENDED, AND THE DUTIES OF THE POSITION SOUGHT TO BE FILLED REQUIRE THE SERVICES OF AN ATTORNEY OR ENGINEER AS THE CASE MAY BE, THE EXCEPTION APPLIES, NOTWITHSTANDING THE POSITION COULD BE FILLED SATISFACTORILY UNDER THE CIVIL-SERVICE LAWS AND REGULATIONS AND AT RATES FIXED PURSUANT TO THE CLASSIFICATION ACT, AS AMENDED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 3, 1938:

YOUR LETTER OF DECEMBER 1, 1937, IS AS FOLLOWS:

IN YOUR DECISION OF JANUARY 29, 1937, 16 COMP. GEN. 703, THE FOLLOWING RULINGS AMONG OTHERS WERE MADE (QUOTING FROM THE SYLLABUS):

"WHERE A STATUTE EXPRESSLY EXCEPTS "EXPERTS" FROM THE PROVISIONS OF EITHER THE CIVIL SERVICE LAW 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 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.

"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.'

FROM TIME TO TIME STATUTES ARE ENACTED NOT ONLY EXCEPTING "EXPERTS" BUT ALSO OTHER GROUPS OF POSITIONS FROM THE CIVIL SERVICE ACT AND THE CLASSIFICATION ACT. FOR EXAMPLE, SECTION 11 OF THE ACT OF MAY 20, 1936,EXCEPTS "ATTORNEYS, ENGINEERS, AND EXPERTS" IN THE RURAL ELECTRIFICATION ADMINISTRATION; SECTION 310 OF THE ACT OF AUGUST 26, 1935, EXCEPTS "OFFICERS, ATTORNEYS, EXAMINERS, AND EXPERTS" IN THE FEDERAL POWER COMMISSION; AND SECTION 2 OF THE ACT OF APRIL 26, 1937, EXCEPTS "ATTORNEYS, * * * SPECIAL AGENTS, TECHNICAL EXPERTS, AND EXAMINERS" IN THE NATIONAL BITUMINOUS COAL COMMISSION.

THE MEANING OF SUCH TERMS AS "ENGINEERS," "EXAMINERS," AND "SPECIAL AGENTS," AS USED IN EXCEPTING LEGISLATION, IS JUST AS IMPORTANT IN CIVIL SERVICE ADMINISTRATION AS THE MEANING OF THE TERM "EXPERTS," AND SHOULD BE EQUALLY CONTROLLED, BECAUSE IN EACH INSTANCE THE INTERPRETATION OF THE TERM GOVERNS THE QUESTION WHETHER OR NOT IN INDIVIDUAL CASE AFTER INDIVIDUAL CASE APPOINTMENTS MAY BE MADE AND COMPENSATION DETERMINED AT THE DISCRETION OF ADMINISTRATIVE OFFICERS, INSTEAD OF IN ACCORDANCE WITH THE CIVIL SERVICE ACT AND/OR THE CLASSIFICATION ACT.

IF A PERSON MAY BE APPOINTED UNDER THE PAYROLL TITLE OF "SPECIAL AGENT" OR "EXAMINER," FOR EXAMPLE, WITHOUT REGARD TO THE CIVIL SERVICE ACT AND RULES AND ASSIGNED MORE OR LESS PROMISCUOUSLY TO DUTIES AND RESPONSIBILITIES OF A TYPE NOT CONTEMPLATED BY CONGRESS IN USING THAT TITLE TO DESIGNATE AN EXCEPTED GROUP OF POSITIONS, THERE WOULD EXIST, IN THE OPINION OF THE COMMISSION, A VIOLATION OF THE CIVIL SERVICE ACT AND RULES IN THAT A PERSON WITHOUT CIVIL SERVICE STATUS IS ACTUALLY OCCUPYING A COMPETITIVE POSITION (SEE SECTION 4 OF CIVIL SERVICE RULE II). ALSO, IN THE CASE OF MISASSIGNMENTS IN THE DEPARTMENTAL SERVICE, THERE WOULD EXIST A VIOLATION OF THE CLASSIFICATION ACT, IN THAT THE EMPLOYEE WOULD BE RECEIVING A SALARY FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT, ALTHOUGH PERFORMING THE DUTIES OF A POSITION SUBJECT TO THAT ACT.

IF EACH DEPARTMENT AND AGENCY IS, UNDER THE LAW, PRIVILEGED TO DETERMINE FOR ITSELF WHAT DUTIES AND RESPONSIBILITIES CONSTITUTE AN "ATTORNEY" POSITION, A "SPECIAL AGENT" POSITION, OR AN ,EXAMINER" POSITION, IT WOULD BE ABLE, THROUGH A DECISION ON THAT POINT AND THE USE OF PAYROLL TITLES STATED IN THE LAW, ALTHOUGH PERHAPS NOT CONFORMING TO THE ACTUAL WORK PERFORMED, TO EXCEPT BY ADMINISTRATIVE ACTION GROUPS OF POSITIONS FROM THE CIVIL SERVICE ACT AND THE CLASSIFICATION ACT, ALTHOUGH SUCH ACTION WAS NOT WITHIN THE CONTEMPLATION OF CONGRESS AT THE TIME THE STATUTES IN QUESTION WERE ENACTED. FURTHERMORE, IN SUCH A SITUATION THERE IS NO ASSURANCE THAT EACH DEPARTMENT AND AGENCY WILL INTERPRET AND APPLY THESE JOB NAMES UNIFORMLY WITHIN ITS OWN ORGANIZATION, AND CERTAINLY THERE IS LITTLE, IF ANY, POSSIBILITY THAT SUCH TERMS WILL BE INTERPRETED AND APPLIED UNIFORMLY ACROSS DEPARTMENTAL LINES.

THE COMMISSION WOULD APPRECIATE YOUR DECISION UPON THE FOLLOWING POINTS:

(1) WHETHER OR NOT THE COMMISSION IS EMPOWERED TO DETERMINE WHAT DUTIES AND RESPONSIBILITIES CONSTITUTE AN EXCEPTED-ATTORNEY POSITION, AN EXCEPTED -SPECIAL-AGENT POSITION, AND AN EXCEPTED-EXAMINER POSITION, OR A POSITION OF ANOTHER DESIGNATED EXCEPTION, TO AN EXTENT EQUAL TO ITS AUTHORITY TO DETERMINE WHAT CONSTITUTES AN EXCEPTED-EXPERT POSITION, AS INDICATED IN YOUR DECISION OF JANUARY 29, 1937;

(2) WHETHER OR NOT EXCEPTED DESIGNATIONS, GENERALLY, INCLUDING THE TERM "EXPERTS," WHICH ARE USED IN STATUTES TO EXCEPT POSITIONS FROM THE CIVIL SERVICE ACT ALONE, OR FROM THE CIVIL SERVICE ACT AND THE CLASSIFICATION ACT, REFER TO BOTH POSITIONS AND PERSONS;

(3) WHETHER OR NOT A PERSON APPOINTED WITHOUT REGARD TO THE CIVIL SERVICE ACT AND RULES UNDER ONE OF THE EXCEPTED DESIGNATIONS TO WHICH WE HAVE REFERRED, MAY, IMMEDIATELY UPON APPOINTMENT, OR THEREAFTER, BE ASSIGNED TO WORK OF A POSITION IN THE COMPETITIVE CLASSIFIED SERVICE; AND

(4) WHETHER OR NOT A PERSON WHO IS CARRIED ON THE PAYROLL UNDER ONE OF THE EXCEPTED DESIGNATIONS TO WHICH WE HAVE REFERRED, AND WHOSE SALARY IS FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT, MAY BE ASSIGNED TO DUTIES AND RESPONSIBILITIES THAT WOULD CAUSE HIS POSITION TO FALL UNDER SAID ACT.

THE RULES STATED IN THE DECISION OF JANUARY 29, 1937, 16 COMP. GEN. 703, WITH REFERENCE TO THE STATUS OF "EXPERTS" EXCEPTED BY STATUTE FROM THE CIVIL-SERVICE LAWS AND REGULATIONS AND/OR THE CLASSIFICATION ACT AS AMENDED, ARE, ALSO, GENERALLY APPLICABLE IN THE CASE OF ANY OTHER CLASS OF EMPLOYEES EXPRESSLY EXCEPTED FROM THE CIVIL-SERVICE LAWS AND REGULATIONS AND/OR THE CLASSIFICATION ACT AS AMENDED.

IN ADDITION TO THE PARAGRAPHS OF THE SYLLABUS OF THE CITED DECISION QUOTED IN YOUR LETTER, YOUR ATTENTION IS INVITED TO THE FOLLOWING ADDITIONAL PARAGRAPH OF THE SYLLABUS WHICH WOULD APPEAR TO HAVE A BEARING ON THE QUESTIONS YOU NOW PRESENT:

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.

ON THE BASIS OF THE RULES STATED IN SAID DECISION, QUESTIONS (1) AND (2) ARE ANSWERED IN THE AFFIRMATIVE AND QUESTIONS (3) AND (4) IN THE NEGATIVE. IT IS TO BE UNDERSTOOD, HOWEVER, THAT WHERE THE STATUTE EXCEPTS POSITIONS OF A DESIGNATED CLASS SUCH AS "ATTORNEYS" OR "ENGINEERS," FOR INSTANCE, IF THE DUTIES OF THE POSITION SOUGHT TO BE FILLED REQUIRE THE SERVICES OF AN ATTORNEY OR ENGINEER AS THE CASE MAY BE, THE EXCEPTION APPLIES AND IS NOT AFFECTED BY THE FACT THAT THE POSITION COULD BE FILLED SATISFACTORILY UNDER THE CIVIL-SERVICE LAWS AND REGULATIONS AND AT RATES FIXED PURSUANT TO THE CLASSIFICATION ACT, AS AMENDED.