A-91810, JANUARY 19, 1938, 17 COMP. GEN. 578

A-91810: Jan 19, 1938

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ARE SEPARATE AND DISTINCT STATUTES WITH ENTIRELY DIFFERENT SCOPES AND PURPOSES. ARE WITHIN THE PURVIEW OF THE CLASSIFICATION ACT. IS AS FOLLOWS: ON JUNE 28. THE PRESIDENT APPROVED WHAT IS GENERALLY KNOWN AS THE CIVILIAN CONSERVATION CORPS ACT. A COPY OF WHICH IS HEREWITH ENCLOSED. PARTICULAR ATTENTION IS DIRECTED TO SECTION 5 OF SAID ACT. ARE AUTHORIZED WITHIN THE LIMIT OF THE ALLOTMENTS OF FUNDS THEREFOR. YOUR EARLY OPINION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT THIS AGENCY COMES WITHIN THE PURVIEW OF THE CLASSIFICATION ACT AS AMENDED. ALTHOUGH THE APPOINTMENT OF CIVILIAN PERSONNEL IS AUTHORIZED "WITHOUT REGARD TO THE CIVIL-SERVICE LAWS AND REGULATIONS.'. IT WAS STATED: * * * THE FORMER CIVILIAN CONSERVATION CORPS CREATED BY EXECUTIVE ORDER UNDER AUTHORITY OF EMERGENCY LEGISLATION WAS AN EMERGENCY AGENCY AND ITS EMPLOYEES WERE EMERGENCY EMPLOYEES.

A-91810, JANUARY 19, 1938, 17 COMP. GEN. 578

CLASSIFICATION - CIVILIAN CONSERVATION CORPS EMPLOYEES - CLASSIFICATION ACT AND CIVIL-SERVICE LAWS AND REGULATIONS DISTINGUISHED THE CIVIL-SERVICE LAWS AND REGULATIONS, RELATING TO APPOINTMENTS, AND THE CLASSIFICATION ACT OF 1923, RELATING TO THE FIXING OF SALARY RATES, ARE SEPARATE AND DISTINCT STATUTES WITH ENTIRELY DIFFERENT SCOPES AND PURPOSES. THE CIVILIAN CONSERVATION CORPS CREATED BY ACT, JUNE 28, 1937, 50 STAT. 319, BEING A DEPARTMENT" AND ITS CIVILIAN PERSONNEL BEING "EMPLOYEES" OCCUPYING "POSITIONS" WITHIN THE MEANING OF THOSE TERMS AS DEFINED IN THE CLASSIFICATION ACT OF 1923, SUCH PERSONNEL--- BOTH IN THE DEPARTMENTAL AND FIELD SERVICES--- AS DISTINGUISHED FROM ENROLLEES AND MILITARY PERSONNEL ASSIGNED TO DUTY WITH THE CORPS, ARE WITHIN THE PURVIEW OF THE CLASSIFICATION ACT, AS AMENDED, AND THEIR SALARIES SHOULD BE ADJUSTED ACCORDINGLY, NOTWITHSTANDING THE ACT OF JUNE 28, 1937, SUPRA, PROVIDES FOR THEIR APPOINTMENT "WITHOUT REGARD TO THE CIVIL-SERVICE LAWS AND REGULATIONS.'

ACTING COMPTROLLER GENERAL ELLIOTT TO THE DIRECTOR, CIVILIAN CONSERVATION CORPS, JANUARY 19, 1938:

YOUR LETTER OF JANUARY 12, 1938, IS AS FOLLOWS:

ON JUNE 28, 1937, THE PRESIDENT APPROVED WHAT IS GENERALLY KNOWN AS THE CIVILIAN CONSERVATION CORPS ACT, PUBLIC, NO. 163, 75TH CONGRESS (CHAPTER 383, 1ST SESSION) (H.R. 6551), A COPY OF WHICH IS HEREWITH ENCLOSED.

PARTICULAR ATTENTION IS DIRECTED TO SECTION 5 OF SAID ACT, WHICH READS AS FOLLOWS:

"SEC. 5. THE DIRECTOR AND, UNDER HIS SUPERVISION, THE HEADS OF OTHER FEDERAL DEPARTMENTS OR AGENCIES COOPERATING IN THE WORK OF THE CORPS, ARE AUTHORIZED WITHIN THE LIMIT OF THE ALLOTMENTS OF FUNDS THEREFOR, TO APPOINT SUCH CIVILIAN PERSONNEL AS MAY BE DEEMED NECESSARY FOR THE EFFICIENT AND ECONOMICAL DISCHARGE OF THE FUNCTIONS OF THE CORPS WITHOUT REGARD TO THE CIVIL-SERVICE LAWS AND REGULATIONS.'

YOUR EARLY OPINION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT THIS AGENCY COMES WITHIN THE PURVIEW OF THE CLASSIFICATION ACT AS AMENDED, ALTHOUGH THE APPOINTMENT OF CIVILIAN PERSONNEL IS AUTHORIZED "WITHOUT REGARD TO THE CIVIL-SERVICE LAWS AND REGULATIONS.'

IN DECISION OF SEPTEMBER 23, 1937, 17 COMP. GEN. 276, 278, IT WAS STATED:

* * * THE FORMER CIVILIAN CONSERVATION CORPS CREATED BY EXECUTIVE ORDER UNDER AUTHORITY OF EMERGENCY LEGISLATION WAS AN EMERGENCY AGENCY AND ITS EMPLOYEES WERE EMERGENCY EMPLOYEES. BUT THE PRESENT CIVILIAN CONSERVATION CORPS CREATED BY THE ACT OF JUNE 28, 1937, IS NOT AN EMERGENCY AGENCY BUT A REGULAR INDEPENDENT ESTABLISHMENT OF THE GOVERNMENT CREATED BY STATUTE FOR A PERIOD OF 3 YEARS, AND THE FUNDS PROVIDED THEREFOR BY THE ACT OF JULY 1, 1937, ARE NOT EMERGENCY FUNDS. * * *

THE STATUTE QUOTED IN YOUR LETTER EXEMPTS THE APPOINTMENT OF THE CIVILIAN PERSONNEL OF THE CIVILIAN CONSERVATION CORPS FROM THE "CIVIL SERVICE LAWS AND REGULATIONS," BUT IT DOES NOT EXEMPT THE FIXING OF THEIR SALARY RATES FROM THE TERMS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.

THE CIVIL SERVICE LAWS AND REGULATIONS, HAVING TO DO WITH APPOINTMENTS, AND THE CLASSIFICATION ACT OF 1923, HAVING TO DO WITH THE FIXING OF SALARY RATES, ARE SEPARATE AND DISTINCT STATUTES WITH ENTIRELY DIFFERENT SCOPES AND PURPOSES.

SECTIONS 2 AND 4 OF THE ORIGINAL CLASSIFICATION ACT OF 1923, DATED MARCH 4, 1923, 42 STAT. 1488, PROVIDE IN PART AS FOLLOWS:

THE TERM "DEPARTMENT" MEANS AN EXECUTIVE DEPARTMENT OF THE UNITED STATES GOVERNMENT, A GOVERNMENTAL ESTABLISHMENT IN THE EXECUTIVE BRANCH OF THE UNITED STATES GOVERNMENT WHICH IS NOT A PART OF AN EXECUTIVE DEPARTMENT, *

THE TERM "THE HEAD OF THE DEPARTMENT" MEANS THE OFFICER OR GROUP OF OFFICERS IN THE DEPARTMENT WHO ARE NOT SUBORDINATE OR RESPONSIBLE TO ANY OTHER OFFICER OF THE DEPARTMENT.

THE TERM "POSITION" MEANS A SPECIFIC CIVILIAN OFFICE OR EMPLOYMENT, WHETHER OCCUPIED OR VACANT, IN A DEPARTMENT OTHER THAN THE FOLLOWING (OF COURSE, THE CIVILIAN CONSERVATION CORPS SUBSEQUENTLY CREATED IS NOT WITHIN THE EXCEPTIONS STATED IN THE STATUTE): * * *

THE TERM "EMPLOYEE" MEANS ANY PERSON TEMPORARILY OR PERMANENTLY IN A POSITION.

SEC. 4. THAT AFTER CONSULTATION WITH THE BOARD, AND IN ACCORDANCE WITH A UNIFORM PROCEDURE PRESCRIBED BY IT, THE HEAD OF EACH DEPARTMENT, SHALL ALLOCATE ALL POSITIONS IN HIS DEPARTMENT IN THE DISTRICT OF COLUMBIA TO THEIR APPROPRIATE GRADES IN THE COMPENSATION SCHEDULES AND SHALL FIX THE RATE OF COMPENSATION OF EACH EMPLOYEE THEREUNDER,IN ACCORDANCE WITH THE RULES PRESCRIBED IN SECTION 6 HEREIN. SUCH ALLOCATIONS SHALL BE REVIEWED AND MAY BE REVISED BY THE BOARD AND SHALL BECOME FINAL UPON THEIR APPROVAL BY SAID BOARD. * * *

SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, APPLICABLE TO THE FIELD SERVICE, PROVIDES:

THE HEADS OF THE SEVERAL EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS ARE AUTHORIZED AND DIRECTED TO ADJUST THE COMPENSATION OF CERTAIN CIVILIAN POSITIONS IN THE FIELD SERVICES, THE COMPENSATION OF WHICH WAS ADJUSTED BY THE ACT OF DECEMBER 6, 1924 (43 STAT. 704), TO CORRESPOND, SO FAR AS MAY BE PRACTICABLE, TO THE RATES ESTABLISHED BY THE ACT OF MAY 28, 1928 (U.S.C., SUPP. 3, TITLE 5, SEC. 673), AND BY THIS ACT FOR POSITIONS IN THE DEPARTMENTAL SERVICES IN THE DISTRICT OF COLUMBIA: *

BASED ON THESE PROVISIONS OF LAW, AS WELL AS THE WELCH ACT OF MAY 28, 1928, 45 STAT. 785, AND THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, MENTIONED THEREIN, THE FOLLOWING WAS STATED IN DECISION OF JUNE 24, 1937, 16 COMP. GEN. 1107, 1109:

* * * THERE IS NO LONGER ANY REASONABLE JUSTIFICATION FOR LIMITING SUCH SALARY ADJUSTMENTS FOR THE FIELD POSITIONS TO THE PARTICULAR FEDERAL AGENCIES MENTIONED IN THE ACT OF 1924. ACCORDINGLY, THERE WAS ADOPTED THE GENERAL RULE THAT, IN THE ABSENCE OF STATUTORY EXEMPTION, THE SALARY RATES OF PERSONNEL OF ALL FEDERAL AGENCIES, BOTH IN THE DEPARTMENTAL AND FIELD SERVICES, ARE REQUIRED TO BE FIXED IN ACCORDANCE WITH THE SCHEDULES OR RATES PRESCRIBED IN THE CLASSIFICATION ACT, AS AMENDED. SEE 14 COMP. GEN. 420; ID. 763; DECISION OF NOVEMBER 4, 1936, A-80878; DECISION OF OCTOBER 20, 1936, A-80867; AND DECISION OF OCTOBER 15, 1936, A-80021.

AS THE CIVILIAN CONSERVATION CORPS IS NOW A "DEPARTMENT" AND ITS PERSONNEL ARE "EMPLOYEES" OCCUPYING "POSITIONS" WITHIN THE MEANING OF THOSE TERMS AS DEFINED IN THE CLASSIFICATION ACT, AND AS THERE APPEARS NO EXPRESS OR IMPLIED EXCEPTION OR EXEMPTION OF THE CIVILIAN CONSERVATION CORPS OR ITS PERSONNEL FROM THE REQUIREMENTS OF THE CLASSIFICATION ACT, YOU ARE ADVISED THAT THE CIVILIAN PERSONNEL OF THE CIVILIAN CONSERVATION CORPS BOTH IN THE DEPARTMENTAL AND FIELD SERVICES, AS DISTINGUISHED FROM ENROLLEES AND THE MILITARY PERSONNEL ASSIGNED TO DUTY WITH THE CIVILIAN CONSERVATION CORPS, ARE WITHIN THE PURVIEW OF THE CLASSIFICATION ACT AND THEIR SALARY RATES SHOULD BE ADJUSTED ACCORDINGLY--- THE DEPARTMENTAL FORCE WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION AND THE FIELD FORCE BY ADMINISTRATIVE ACTION ONLY. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO 15 COMP. GEN. 102; ID. 797; AND DECISION OF DECEMBER 2, 1937, A -90638, 17 COMP. GEN. 460.