A-93903, APRIL 13, 1938, 17 COMP. GEN. 839

A-93903: Apr 13, 1938

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APPOINTMENTS - PRESIDENTIAL - TRANSFER TO DIFFERENT POSITIONS WITHOUT FURTHER PRESIDENTIAL APPOINTMENT - SOCIAL SECURITY BOARD "EXPERTS" THE GENERAL RULE THAT THE APPOINTMENT BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE OF AN OFFICER OR EMPLOYEE TO A PARTICULAR OFFICE OR POSITION DOES NOT HAVE THE EFFECT OF QUALIFYING THE APPOINTEE TO SERVE IN OR RECEIVE THE SALARY OF. IS EQUALLY APPLICABLE TO AN APPOINTMENT TO AN "EXPERT" POSITION AS "CONSTRUCTIVE ACCOUNTANT. IS AS FOLLOWS: THE SOCIAL SECURITY BOARD HAS UNDER CONSIDERATION A RECOMMENDATION FOR CHANGE OF STATUS OF ONE OF ITS EMPLOYEES FROM CONSTRUCTIVE ACCOUNTANT (CAF -12. THE EMPLOYEE IN QUESTION WAS APPOINTED BY THE PRESIDENT.

A-93903, APRIL 13, 1938, 17 COMP. GEN. 839

APPOINTMENTS - PRESIDENTIAL - TRANSFER TO DIFFERENT POSITIONS WITHOUT FURTHER PRESIDENTIAL APPOINTMENT - SOCIAL SECURITY BOARD "EXPERTS" THE GENERAL RULE THAT THE APPOINTMENT BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE OF AN OFFICER OR EMPLOYEE TO A PARTICULAR OFFICE OR POSITION DOES NOT HAVE THE EFFECT OF QUALIFYING THE APPOINTEE TO SERVE IN OR RECEIVE THE SALARY OF, ANY OTHER SEPARATE AND DISTINCT OFFICE OR POSITION REQUIRED TO BE FILLED BY PRESIDENTIAL APPOINTMENT, IS EQUALLY APPLICABLE TO AN APPOINTMENT TO AN "EXPERT" POSITION AS "CONSTRUCTIVE ACCOUNTANT," MADE BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE AS REQUIRED BY THE APPROPRIATION ACT OF JUNE 28, 1937, 50 STAT. 344, IN CASES OF EXPERTS OR ATTORNEYS APPOINTED UNDER THE SOCIAL SECURITY BOARD AT A SALARY OF $5,000 OR MORE PER ANNUM, AND THE APPOINTEE MAY NOT BE TRANSFERRED TO OR PAID THE SALARY OF A SEPARATE AND DISTINCT ,EXPERT" POSITION OF "ASSOCIATE DIRECTOR" WITHOUT PRESIDENTIAL APPOINTMENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, SOCIAL SECURITY BOARD, APRIL 13, 1938:

YOUR LETTER OF MARCH 29, 1938, IS AS FOLLOWS:

THE SOCIAL SECURITY BOARD HAS UNDER CONSIDERATION A RECOMMENDATION FOR CHANGE OF STATUS OF ONE OF ITS EMPLOYEES FROM CONSTRUCTIVE ACCOUNTANT (CAF -12, $5,400), BUREAU OF ACCOUNTS AND AUDITS, TO ASSOCIATE DIRECTOR (CAF- 13, $5,600).

THE EMPLOYEE IN QUESTION WAS APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, IN ACCORDANCE WITH THE PROVISO TO THE BOARD'S APPROPRIATION (INDEPENDENT OFFICES APPROPRIATION ACT, 1938), AS AN EXPERT UNDER THE TITLE "CONSTRUCTIVE ACCOUNTANT.' NO SALARY OR GRADE WAS MENTIONED IN THE BOARD'S RECOMMENDATION OF APPOINTMENT, IN THE PRESIDENT'S NOMINATION TO THE SENATE, IN THE CONFIRMATION BY THE SENATE, OR IN THE COMMISSION.

YOUR ADVICE IS REQUESTED ON THE QUESTION WHETHER IF THE BOARD WERE NOW TO APPOINT SUCH EMPLOYEE TO THE POSITION OF ASSOCIATE DIRECTOR, THE BOARD'S APPROPRIATION WOULD BE AVAILABLE FOR PAYMENT OF HIS SALARY IN THAT POSITION.

IT WILL BE NOTED THAT THE RELEVANT PROVISO IN THE APPROPRIATION ACT REQUIRES MERELY THAT AN EXPERT BE "APPOINTED BY THE PRESIDENT" AND NOT THAT HE BE SO APPOINTED TO A PARTICULAR POSITION. I SUGGEST FOR YOUR CONSIDERATION, THEREFORE, THAT THE PROVISO HAVING ONCE BEEN COMPLIED WITH, THERE IS NO FURTHER REQUIREMENT OF PRESIDENTIAL APPOINTMENT FOR THE CHANGE OF STATUS OF AN EMPLOYEE FROM ONE EXPERT POSITION TO ANOTHER EXPERT POSITION.

THE APPROPRIATION ITEM FOR THE SOCIAL SECURITY BOARD FOR THE FISCAL YEAR 1938, ACT OF JUNE 28, 1937, 50 STAT. 344, CONTAINS THE FOLLOWING PROVISOS:

* * * PROVIDED FURTHER, THAT NO SALARY SHALL BE PAID FOR PERSONAL SERVICES FROM THE MONEY HEREIN APPROPRIATED UNDER THE HEADING "SOCIAL SECURITY BOARD" IN EXCESS OF THE RATES ALLOWED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, FOR SIMILAR SERVICES: PROVIDED FURTHER, THAT THIS PROVISO SHALL NOT APPLY TO THE SALARIES OF THE BOARD MEMBERS: PROVIDED FURTHER, THAT NONE OF THE FUNDS HEREIN APPROPRIATED UNDER THE HEADING "SOCIAL SECURITY BOARD" SHALL BE USED TO PAY THE SALARY OF ANY EXPERT OR ATTORNEY RECEIVING COMPENSATION OF $5,000 OR MORE PER ANNUM UNLESS AND UNTIL SUCH EXPERT OR ATTORNEY SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

IN DECISION OF SEPTEMBER 14, 1937, 17 COMP. GEN. 250, 252, IT WAS STATED:

* * * THERE IS NOTHING EXPRESSED OR IMPLIED IN THE APPROPRIATION ACT PROHIBITING THE ADMINISTRATIVE PROMOTION OF AN OFFICER OR EMPLOYEE PROPERLY APPOINTED AS REQUIRED BY THE ACT WITHIN THE SALARY RANGE OF HIS GRADE AS LONG AS HE HOLDS THE SAME POSITION TO WHICH SO APPOINTED. * * *

AND IN DECISION OF DECEMBER 6, 1937, 17 COMP. GEN. 474, 476, IT WAS STATED:

THERE IS NOTED THE STATEMENT IN YOUR LETTER TO THE EFFECT THAT MR. WILLIAMSON'S POSITION RECENTLY HAS BEEN ALLOCATED IN GRADE P-8. IF HIS APPOINTMENT BY THE PRESIDENT, CONFIRMED BY THE SENATE, WAS TO A POSITION IN GRADE P-7--- THAT IS TO SAY, IF EITHER THE RECOMMENDATION FOR HIS APPOINTMENT, THE NOMINATION BY THE PRESIDENT, OR THE COMMISSION ISSUED PURSUANT THERETO SPECIFIED GRADE P-7, OR ANY SALARY RATE THEREIN--- THERE IS NO AUTHORITY OF LAW FOR THE BOARD, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, TO ALLOCATE HIS POSITION IN GRADE P-8, OR FOR PAYMENT AT ANY SALARY IN EXCESS OF THE MAXIMUM SALARY RATE OF THE GRADE TO WHICH THE PRESIDENT APPOINTED HIM.

AN APPOINTMENT BY THE PRESIDENT WITH THE ADVICE AND CONSENT OF THE SENATE OF AN OFFICER OR EMPLOYEE TO ONE OFFICE OR POSITION OF EXPERT OR ATTORNEY WITH SALARY RATE OF $5,000 OR MORE PER ANNUM, SPECIFICALLY IDENTIFIED BY TITLE, GRADE, SALARY RATE, OR IN ANY OTHER DEFINITE MANNER, IN THE ADMINISTRATIVE RECOMMENDATION FOR THE APPOINTMENT, THE NOMINATION OF THE PRESIDENT, OR THE COMMISSION ISSUED PURSUANT THERETO, DOES NOT HAVE THE EFFECT OF QUALIFYING THE APPOINTEE TO SERVE IN, OR RECEIVE THE SALARY OF, ANY OTHER SEPARATE AND DISTINCT OFFICE OR POSITION OF EXPERT OR ATTORNEY WITH SALARY RATE OF $5,000 OR MORE PER ANNUM WITHOUT PRESIDENTIAL APPOINTMENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. THE RULE IN THIS RESPECT AS TO PRESIDENTIAL APPOINTMENTS OF EXPERTS AND ATTORNEYS IS NO DIFFERENT THAN THAT APPLICABLE TO ANY OTHER CLASS OF PRESIDENTIAL APPOINTMENTS.

IN THE CASE PRESENTED THIS OFFICE IS UNABLE TO AGREE THAT THE APPLICATION OF THE STATUTORY PROVISO SHOULD BE AS SUGGESTED IN THE CONCLUDING SENTENCE OF YOUR LETTER. IT IS UNDERSTOOD THE POSITION TO WHICH THE EMPLOYEE WAS APPOINTED BY THE PRESIDENT WAS DESIGNATED AS "CONSTRUCTIVE ACCOUNTANT" IN THE ADMINISTRATIVE RECOMMENDATION FOR APPOINTMENT, THE NOMINATION OF THE PRESIDENT, AND/OR THE PRESIDENT'S COMMISSION ISSUED PURSUANT THERETO; AND IT IS NOW PROPOSED TO PLACE SUCH EMPLOYEE IN A POSITION DESIGNATED AS "ASSOCIATE DIRECTOR" IN A HIGHER GRADE, AND THAT TO ACCOMPLISH THAT PURPOSE A NEW APPOINTMENT IS REQUIRED. IF SUCH ARE THE FACTS, AND THE OFFICE OR POSITION OF "ASSOCIATE DIRECTOR" IS PROPERLY CLASSIFIED AS AN "EXPERT" POSITION, YOU ARE ADVISED THAT THE APPROPRIATION FOR THE SOCIAL SECURITY BOARD FOR THE FISCAL YEAR 1938 WOULD NOT BE AVAILABLE FOR PAYMENT OF THE COMPENSATION OF THE EMPLOYEE UNLESS HIS APPOINTMENT IS MADE BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.