A-93244, MARCH 31, 1938, 17 COMP. GEN. 797

A-93244: Mar 31, 1938

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THE ADMINISTRATIVE OFFICE AND THE CIVIL SERVICE COMMISSION ARE IN AGREEMENT THAT A PARTICULAR POSITION IS WITHIN SUCH CLASS AND THERE IS NO QUESTION AS TO THE LEGALITY OF THE COMPENSATION RATE FIXED FOR THE POSITION. THE GENERAL ACCOUNTING OFFICE IS NOT AUTHORIZED TO QUESTION PAYMENTS OF SALARY TO THE PERSON APPOINTED TO THE POSITION SOLELY BECAUSE THE CIVIL SERVICE COMMISSION DOES NOT AGREE WITH THE ADMINISTRATIVE OFFICE AS TO THE QUALIFICATIONS OF THE APPOINTEE. IS AS FOLLOWS: THE COMMISSION HAS THE HONOR TO TRANSMIT HEREWITH FOR DECISION BY YOUR OFFICE ITS FILE IN THE CASE OF JOHN D. TO STUDY THE CUBIC REQUIREMENTS OF CARGOES OF ALL TYPES IN ORDER TO MAKE CONCRETE RECOMMENDATIONS AS TO MEANS OF MAKING ALTERATIONS IN DESIGN WHICH WILL ALLOW FOR GREATER CAPACITY AND FLEXIBILITY IN CARGO CARRYING CAPACITY.

A-93244, MARCH 31, 1938, 17 COMP. GEN. 797

OFFICERS AND EMPLOYEES - QUALIFICATIONS - JURISDICTION OF CIVIL SERVICE COMMISSION - POSITIONS EXEMPTED FROM CIVIL-SERVICE LAWS, ETC. WHERE A STATUTE PROVIDES FOR APPOINTMENT OF A DESIGNATED CLASS OF EMPLOYEES WITHOUT REGARD TO THE CIVIL-SERVICE LAWS OR THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND THE ADMINISTRATIVE OFFICE AND THE CIVIL SERVICE COMMISSION ARE IN AGREEMENT THAT A PARTICULAR POSITION IS WITHIN SUCH CLASS AND THERE IS NO QUESTION AS TO THE LEGALITY OF THE COMPENSATION RATE FIXED FOR THE POSITION, THE GENERAL ACCOUNTING OFFICE IS NOT AUTHORIZED TO QUESTION PAYMENTS OF SALARY TO THE PERSON APPOINTED TO THE POSITION SOLELY BECAUSE THE CIVIL SERVICE COMMISSION DOES NOT AGREE WITH THE ADMINISTRATIVE OFFICE AS TO THE QUALIFICATIONS OF THE APPOINTEE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 31, 1938:

YOUR LETTER OF MARCH 8, 1938, IS AS FOLLOWS:

THE COMMISSION HAS THE HONOR TO TRANSMIT HEREWITH FOR DECISION BY YOUR OFFICE ITS FILE IN THE CASE OF JOHN D. CROSBY, WHO HAS BEEN APPOINTED BY THE UNITED STATES MARITIME COMMISSION TO THE POSITION OF NAVAL ARCHITECT (EXEMPT) $2,600 PER ANNUM, UNDER SECTION 201 (E) OF THE MERCHANT MARINE ACT OF 1936.

THE UNITED STATES MARITIME COMMISSION UNDER DATE OF JANUARY 6, 1938, PRESENTED TO THE CIVIL SERVICE COMMISSION FOR DECISION AS TO WHETHER OR NOT THE POSITION FELL WITHIN THE EXEMPTION OF 12 POSITIONS OF NAVAL ARCHITECT AUTHORIZED BY SECTION 201 (E) OF THE MERCHANT MARINE ACT OF 1936; THE FOLLOWING STATEMENT OF DUTIES OF THE POSITION TO BE CREATED BY THAT COMMISSION:

"UNDER GENERAL SUPERVISION, TO CONDUCT SPECIAL STUDIES IN THE DESIGN OF MERCHANT VESSELS OF ALL TYPES IN ORDER TO DETERMINE VARIABLES IN THE COST OF OPERATION WITH PARTICULAR REFERENCE TO THE DESIGN OF THE VESSEL; TO STUDY THE CUBIC REQUIREMENTS OF CARGOES OF ALL TYPES IN ORDER TO MAKE CONCRETE RECOMMENDATIONS AS TO MEANS OF MAKING ALTERATIONS IN DESIGN WHICH WILL ALLOW FOR GREATER CAPACITY AND FLEXIBILITY IN CARGO CARRYING CAPACITY; AND TO MAKE OTHER STUDIES OF DESIGN REQUIREMENTS IN VIEW OF THE COMPETITIVE TRADE CONDITIONS UNDER WHICH VESSELS ARE NOW OPERATING OR UNDER WHICH THEY WILL BE REQUIRED TO OPERATE UNDER CHANGING COMMODITY CARRIAGE; AND TO PERFORM RELATED WORK OF A TECHNICAL NATURE IN WHICH SPECIALIZED TRAINING IN SHIP DESIGN IS ESSENTIAL.'

WITH SUCH SUBMISSION THE MARITIME COMMISSION ALSO TRANSMITTED FORM 375 EXECUTED BY MR. JOHN D. CROSBY WHOM IT WAS PROPOSED TO ASSIGN TO THE POSITION.

THIS FORM 375 SHOWED THAT MR. CROSBY WAS BORN FEBRUARY 5, 1909, AND HE RECEIVED HIS BACHELOR'S DEGREE IN CHEMICAL ENGINEERING IN 1932, AND HIS MASTER'S DEGREE IN ENGINEERING IN 1934, AND HAD HAD EXPERIENCE AS A DRUG STORE CLERK, ON TELEPHONE ASSEMBLY, WESTERN ELECTRIC COMPANY, BOTH THESE POSITIONS BEING DURING SUMMER VACATIONS; AS CHEMICAL ANALYST FOR 7 MONTHS WITH THE MONSANTO CHEMICAL COMPANY AND AS AN INDUSTRIAL ENGINEER WITH THE E. I. DUPONT COMPANY, ARLINGTON, N.J., FOR 3 1/2 YEARS BEGINNING WITH JUNE, 1934. HE DESCRIBED THIS EXPERIENCE IN HIS FORM 375 AS "DEALING WITH FLOW OF MATERIAL. SAVINGS OBTAINED BY DISCARDING OBSOLETE EQUIPMENT OR REPLACING BY NEW. TRANSFER EQUIPMENT, CRANES, ETC. SUBSTITUTION OF MORE EFFICIENT EQUIPMENT. A STUDY OF CARGO STORAGE.'

THE COMMISSION ON JANUARY 14, 1938, ADVISED THE MARITIME COMMISSION THAT IT REGARDED THE POSITION DESCRIBED AS FALLING WITHIN THE EXEMPTION OF 12 POSITIONS OF NAVAL ARCHITECT AUTHORIZED BY SECTION 201 (E) OF THE MERCHANT MARINE ACT OF 1936 BUT STATED THAT MR. CROSBY'S FORM 375 SHOWED NO TRAINING OR EXPERIENCE IN NAVAL ARCHITECTURE.

UNDER DATE OF JANUARY 26, 1938, THE MARITIME COMMISSION TRANSMITTED AN ADDITIONAL FORM 375 FROM MR. CROSBY WITH MORE DETAILED INFORMATION WHICH, HOWEVER, SHOWED ONLY A MONTH OF EXPERIENCE UNDER A CONSULTING NAVAL ARCHITECT IN NEW YORK INVOLVING ANALYSIS OF CARGO STOWAGE AND HANDLING FACILITIES ON CERTAIN STEAMSHIP LINES. THE FURTHER STATEMENT WAS MADE THAT PRIVATE TUITION IN SHIP DESIGN HAD BEEN SUPPLEMENTED BY SHIP INSPECTION AND TRIAL TRIP OBSERVATION. IT IS NOT A MATTER OF RECORD IN THE FILE BUT IT IS UNDERSTOOD THAT MR. CROSBY'S FATHER IS A NAVAL ARCHITECT EMPLOYED UNDER THE NAVY DEPARTMENT AND THAT THE TWO NAVAL OFFICERS WHO ARE MEMBERS OF THE MARITIME COMMISSION ARE ACQUAINTED WITH MR. CROSBY'S FATHER IN HIS OFFICIAL WORK FOR THE NAVY DEPARTMENT. IT IS FURTHER UNDERSTOOD THAT THIS PRIVATE TUITION IN SHIP DESIGN FROM A PRACTICING NAVAL ARCHITECT WAS GIVEN BY MR. CROSBY'S FATHER.

UNDER DATE OF FEBRUARY 3 THE COMMISSION AGAIN ADVISED THE MARITIME COMMISSION THAT IT COULD NOT AGREE THAT MR. CROSBY POSSESSED THE QUALIFICATIONS REQUISITE FOR THE PERFORMANCE OF THE DUTIES OF THE POSITION OF NAVAL ARCHITECT; AND TRANSMITTED TO THE MARITIME COMMISSION COPY OF ANNOUNCEMENT OF EXAMINATION HELD LAST YEAR FOR POSITIONS OF ASSISTANT NAVAL ARCHITECT AT $2,600 PER ANNUM SHOWING THE STANDARD QUALIFICATIONS FOR THIS CLASS OF POSITION ESTABLISHED IN ACCORDANCE WITH THE GENERAL PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.

THE MARITIME COMMISSION HAS NOW ADVISED THE CIVIL SERVICE COMMISSION BY ITS LETTER OF FEBRUARY 12, 1938, THAT IT WILL CONTINUE MR. CROSBY ON ITS PAY ROLL BECAUSE OF THE STATEMENT APPEARING IN THE COMPTROLLER GENERAL'S DECISION CITED THEREIN THAT ALTHOUGH THE CIVIL SERVICE COMMISSION HAS FINAL DETERMINATION AS TO WHETHER A POSITION MAY BE PLACED IN THE EXEMPT CLASS AT ANY TIME THE ADMINISTRATIVE OFFICER IS TO DETERMINE THE QUALIFICATIONS OF THE PERSON APPOINTED TO THE POSITION.

THE CIVIL SERVICE COMMISSION RAISES NO QUESTION AS TO THE LINE OF DEMARCATION STATED BY THE MARITIME COMMISSION AS EXPRESSED IN DECISIONS OF THE COMPTROLLER GENERAL; BUT IT NOTES PARTICULARLY THAT IN THESE DECISIONS THE COMPTROLLER GENERAL HAS POINTED OUT THAT FINAL DETERMINATION IN ANY CASE RESTS WITH THE GENERAL ACCOUNTING OFFICE. IN THIS CONNECTION THE FOLLOWING QUOTATION OF THE SYLLABUS TO THE DECISION OF SEPTEMBER 15, 1936, APPEARING ON PAGE 250 OF VOLUME 16, DECISIONS OF THE ACTING COMPTROLLER GENERAL OF THE UNITED STATES IS GIVEN:

"THE MATTER AS TO WHETHER PERSONS EMPLOYED BY THE RURAL ELECTRIFICATION ADMINISTRATION MAY BE APPOINTED AS "EXPERTS" UNDER THE PROVISIONS OF SECTION 11 OF THE RURAL ELECTRIFICATION ACT OF 1936, 49 STAT. 1366, IS FOR CONSIDERATION BY THE CIVIL SERVICE COMMISSION BEFORE PRESENTATION TO THE GENERAL ACCOUNTING OFFICE FOR FINAL DETERMINATION.'

EXCEPTIONS TO GENERAL PROCEDURE ARE TO BE STRICTLY CONSTRUED; AND IT IS ACCORDINGLY THE VIEW OF THE COMMISSION THAT WHEN IT DECIDES, IN ACCORDANCE WITH DECISIONS OF THE COMPTROLLER GENERAL, THAT A PARTICULAR POSITION IS PROPERLY IN THE CLASS OF POSITIONS EXCEPTED FROM COMPETITION, IT NECESSARILY FOLLOWS, IN ACCORDANCE WITH THE SAME DECISIONS OF THE COMPTROLLER GENERAL, THAT THE APPOINTING OFFICER MUST SELECT FOR APPOINTMENT TO THAT EXCEPTED POSITION A PERSON FULLY QUALIFIED IMMEDIATELY TO PERFORM ALL THE DUTIES OF THE POSITION WITH ONLY GENERAL INSTRUCTION IN THE PROCEDURE AND PRACTICES OF THE ESTABLISHMENT IN WHICH HE IS BEING EMPLOYED. UNLESS IT APPEARS IN THE SUBMISSION OF THE CASE THAT A PERSON IS THUS QUALIFIED IT IS BELIEVED TO BE THE DUTY OF THE COMMISSION TO REFER THE CASE TO THE COMPTROLLER GENERAL FOR FINAL DETERMINATION.

ON THE GENERAL MATTER THE COMMISSION WISHES TO STATE THAT IT HAS CALLED FOR FORM 375 EXECUTED BY THE APPOINTEE OR THE PROPOSED APPOINTEE IN EVERY CASE WHERE THE COMMISSION AGREES THAT ANY POSITION IS IN THE EXEMPT CLASS, THE FORM BEING DESIRED FOR RECORD PURPOSES AND FOR TRANSMISSION TO YOUR OFFICE IN EVENT THAT THE CIVIL SERVICE COMMISSION IS NOT SATISFIED THAT THE PERSON CAN PERFORM THE DUTIES OF THE SPECIFIC POSITION EXEMPTED. THIS IS BELIEVED TO BE THE FACT IN THE CASE OF MR. CROSBY, AND THE COMMISSION ACCORDINGLY TRANSMITS THE FILE TO YOUR OFFICE FOR FINAL DETERMINATION.

THE UNITED STATES CIVIL SERVICE COMMISSION WAS ADVISED FEBRUARY 12, 1938, BY THE UNITED STATES MARITIME COMMISSION AS FOLLOWS:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER OF FEBRUARY 3, 1938, RELATIVE TO THE APPOINTMENT OF JOHN D. CROSBY TO THE POSITION OF NAVAL ARCHITECT.

THE PARTICULAR FIELD OF NAVAL ARCHITECT IN WHICH MR. CROSBY'S SERVICES HAVE BEEN AND WILL BE UTILIZED CONCERNS, TO A GREAT EXTENT, DESIGN STUDIES OF THE COST OF OPERATION OF CARGO, PASSENGER, AND OTHER TYPES OF VESSELS, WITH PARTICULAR RELATION OF PROPER DESIGN CHARACTERISTICS TO INDUSTRIAL OPERATION. ALSO, THE STUDIES OF THE CUBIC REQUIRED FOR STOWAGE OF ALL TYPES OF CARGO CARRIED AND THE ECONOMICAL MEANS FOR THE HANDLING OF SAME. MR. CROSBY'S EXPERIENCE IN THE INDUSTRIAL ENGINEERING DIVISION OF THE E.I. DUPONT COMPANY, AND THE WORK WHICH HE PERFORMED FOR MR. GEORGE G. SHARP, CONSULTING NAVAL ARCHITECT OF NEW YORK CITY, TOGETHER WITH HIS OTHER TRAINING AND EXPERIENCE, MADE HIM, IN THE OPINION OF THE MARITIME COMMISSION, WELL FITTED FOR THE DISCHARGE OF THE DUTIES TO WHICH HE WOULD BE ASSIGNED.

IT SHOULD BE POINTED OUT, FURTHERMORE, THAT THERE ARE NO EXACT STANDARDS AMONG THE SHIPPING INDUSTRY AS TO WHAT COMBINATION OF EDUCATION AND EXPERIENCE CONSTITUTES A "NAVAL ARCHITECT.' THERE ARE ONLY A VERY SMALL NUMBER OF COLLEGES NOW GRANTING DEGREES IN NAVAL ARCHITECTURE. BECOMING A NAVAL ARCHITECT IS LARGELY A MATTER OF BEING RECOGNIZED AS SUCH BY THE TRADE AS A RESULT OF DEMONSTRATED PERFORMANCE. I MIGHT ADD THAT TWO OUTSTANDING NAVAL ARCHITECTS RECOMMENDED MR. CROSBY'S APPOINTMENT AND VOUCHED FOR HIS QUALIFICATIONS, AND THE WORK WHICH HE HAS PERFORMED SINCE HIS APPOINTMENT HAS DEMONSTRATED HIS FITNESS FOR THE POSITION.

WITH DUE DEFERENCE TO THE VIEWS OF YOUR OFFICE, IT IS CONSIDERED THAT THE QUESTION OF MR. CROSBY'S QUALIFICATIONS IS FOR THE DETERMINATION OF THE MARITIME COMMISSION. IN THIS REGARD, YOUR ATTENTION IS INVITED TO THE DECISION OF THE ACTING COMPTROLLER GENERAL OF THE UNITED STATES, REPORTED 16 COMP. GEN. 703 AND TO HIS DECISION OF JANUARY 3, 1938 (A-90883).

UNDER THE CIRCUMSTANCES THE MARITIME COMMISSION REGRETS THAT IT IS UNABLE TO AGREE WITH YOUR FINDINGS IN MR. CROSBY'S CASE AND FEELS THAT IS IS ACTING WITHIN THE INTENT AND PURPOSE OF THE MERCHANT MARINE ACT OF 1936 IN EMPLOYING MR. CROSBY AND CONTINUING HIM ON THIS PAYROLL.

SECTION 201 (E) OF THE MERCHANT MARINE ACT OF 1936, APPROVED JUNE 29, 1936, 49 STAT. 1986, PROVIDES IN PART AS FOLLOWS:

WITHOUT REGARD TO THE CIVIL-SERVICE LAWS OR THE CLASSIFICATION ACT OF 1923, AS AMENDED, THE COMMISSION MAY APPOINT AND PRESCRIBE THE DUTIES AND FIX THE SALARIES OF A SECRETARY, A DIRECTOR FOR EACH OF NOT TO EXCEED FIVE DIVISIONS, A GENERAL COUNSEL, A CLERK TO EACH MEMBER OF THE COMMISSION, AND NOT MORE THAN THREE ASSISTANTS, NOT MORE THAN A TOTAL OF TWELVE EACH OF NAVAL ARCHITECTS, SPECIAL EXPERTS, ATTORNEYS, AND EXAMINERS AND NOT MORE THAN TWO INSPECTORS AT EACH SHIPYARD AT WHICH VESSELS ARE BEING CONSTRUCTED BY IT OR UNDER ITS SUPERVISION. NO EMPLOYEE SO APPOINTED MAY RECEIVE AN ANNUAL SALARY AT A RATE IN EXCESS OF THAT PROVIDED UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED. * * *

WITHIN THE LIMITATION OF A TOTAL OF 12, NAVAL ARCHITECTS ARE EXPECTED BOTH FROM THE CIVIL-SERVICE LAW AND THE CLASSIFICATION ACT OF 1923, AS AMENDED, EXCEPT THAT THE SALARY PAID PERSONS OCCUPYING SUCH EXCEPTED POSITIONS MAY NOT EXCEED THE RATES PROVIDED UNDER THE CLASSIFICATION ACT, AS AMENDED.

IT IS UNDERSTOOD FROM THE FILE PRESENTED TO THIS OFFICE FOR CONSIDERATION THAT THE POSITION OF NAVAL ARCHITECT OCCUPIED BY JOHN D. CROSBY IS WITHIN THE 12 POSITIONS EXEMPTED FROM SAID STATUTES, THAT THERE IS NO CONTROVERSY REGARDING THE DUTIES REQUIRED TO BE PERFORMED IN THIS EXCEPTED POSITION NOR REGARDING APPLICATION OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, NOR AS TO THE LEGALITY OF THE SALARY RATE OF $2,600 PER ANNUM FIXED FOR THE POSITION. HENCE, THE ONLY CONTROVERSY IN THE MATTER BETWEEN THE UNITED STATES CIVIL SERVICE COMMISSION AND THE UNITED STATES MARITIME COMMISSION APPARENTLY BEING AS TO WHETHER JOHN D. CROSBY POSSESSES THE QUALIFICATIONS NECESSARY TO ENABLE HIM TO PERFORM THE DUTIES OF THIS EXCEPTED POSITION.

YOUR LETTER CITES THE DECISION OF SEPTEMBER 15, 1936, 16 COMP. GEN. 250, AS THE BASIS FOR REQUESTING THIS OFFICE TO PASS ON THE QUALIFICATIONS OF JOHN D. CROSBY TO OCCUPY THIS POSITION AND THUS TO SETTLE THE CONTROVERSY. THE UNITED STATES MARITIME COMMISSION HAS CITED DECISIONS OF JANUARY 29, 1937, 16 COMP. GEN. 703, AND JANUARY 3, 1938, 17 COMP. GEN. 537, AS THE BASIS FOR ITS CONTENTION THAT THE QUESTION AS TO MR. CROSBY'S QUALIFICATION IS A MATTER FOR FINAL DETERMINATION BY THE MARITIME COMMISSION.

IN THE DECISION OF JANUARY 29, 1937, WHICH WAS ADDRESSED TO YOU, THERE WAS CONSIDERED A QUESTION STATED AS FOLLOWS:

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 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 1923, AS AMENDED?

THERE APPEARS TO BE SOME DOUBT AS TO WHETHER THE COMMISSION 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.

IN DECIDING THAT QUESTION IT WAS SAID:

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.

THE DECISION OF JANUARY 3, 1938, APPLIED THESE RULES TO ALL CLASSES OF POSITIONS SPECIFICALLY EXCEPTED BY STATUTE FROM THE CIVIL-SERVICE LAWS AND/OR THE CLASSIFICATION ACT.

IT IS BELIEVED THE UNITED STATES MARITIME COMMISSION HAS THE PROPER CONCEPTION OF THE EFFECT OF THE DECISIONS OF THIS OFFICE ON THE MATTER HERE INVOLVED. AS NO QUESTION REGARDING THE LEGALITY OF THE COMPENSATION RATE FIXED FOR THIS POSITION IS INVOLVED IN THIS CASE, BUT ONLY THE QUALIFICATIONS OF THE PERSON APPOINTED TO OCCUPY THE POSITION, UNDER THE RULES STATED IN THE ABOVE QUOTED DECISION, THE ACTION OF THE UNITED STATES MARITIME COMMISSION IN APPOINTING MR. CROSBY IS NOT SUBJECT TO REVIEW OR REVISION BY THIS OFFICE. THAT IS TO SAY, THERE IS NO LEGAL BASIS ON WHICH THIS OFFICE MAY QUESTION IN THE AUDIT OF ACCOUNTS OTHERWISE PROPER SALARY PAYMENTS TO MR. CROSBY SOLELY BECAUSE THE UNITED STATES CIVIL SERVICE COMMISSION DOES NOT AGREE WITH THE UNITED STATES MARITIME COMMISSION AS TO THE QUALIFICATIONS OF MR. CROSBY.