A-99407, DECEMBER 1, 1938, 18 COMP. GEN. 489

A-99407: Dec 1, 1938

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ARE SUBJECT TO THE GENERAL STATUTORY PROHIBITIONS. - AGAINST EMPLOYMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA IN THE ABSENCE OF SPECIFIC PROVISION THEREFOR IN THE APPROPRIATION FROM WHICH THE FUNDS ARE TRANSFERRED. ARE AVAILABLE FOR PERSONAL SERVICES IN THE WAR DEPARTMENT. IS NOT FOR APPLICATION TO SUCH TRANSFERS. ARE AVAILABLE FOR EMPLOYMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA ONLY TO THE LIMITED EXTENT AUTHORIZED IN THAT APPROPRIATION. IS AS FOLLOWS: UNDER THE AUTHORITY OF THE ACT OF JULY 31. ADVANCE DECISION IS REQUESTED UPON A MATTER NOW BEFORE ME FOR ACTION. THESE ADVANCES ARE TAKEN UP IN A "WORKING FUND.'. LARGE SUMS OF MONEY FOR THE MANUFACTURE OF MATERIEL WHICH THE ORDNANCE DEPARTMENT IS CAPABLE OF SUPPLYING TO THE NAVY.

A-99407, DECEMBER 1, 1938, 18 COMP. GEN. 489

APPROPRIATIONS - TRANSFERS - INTERDEPARTMENTAL WORK AND SERVICES - AVAILABILITY FOR PERSONAL SERVICES FUNDS TRANSFERRED FROM ONE DEPARTMENT TO ANOTHER DEPARTMENT FOR THE PERFORMANCE OF WORK OR SERVICES UNDER THE AUTHORITY OF SECTION 601 OF THE ACT OF JUNE 30, 1932, 47 STAT. 417, ARE SUBJECT TO THE GENERAL STATUTORY PROHIBITIONS--- SECTIONS 45 AND 46, TITLE 5, U.S. CODE--- AGAINST EMPLOYMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA IN THE ABSENCE OF SPECIFIC PROVISION THEREFOR IN THE APPROPRIATION FROM WHICH THE FUNDS ARE TRANSFERRED. THE APPROPRIATION ITEMS IN THE NAVY APPROPRIATION ACT, FISCAL YEAR 1939, UNDER THE HEADING ,REPLACEMENT OF NAVAL VESSELS," 52 STAT. 242, AUTHORIZING THE EMPLOYMENT OF PERSONAL SERVICES IN THE NAVY DEPARTMENT AS WELL AS IN THE FIELD, THE AMOUNTS TRANSFERRED THEREFROM TO THE WAR DEPARTMENT UNDER AUTHORITY OF SECTION 601 OF THE ACT OF JUNE 30, 1932, 47 STAT. 417, FOR THE PERFORMANCE OF ORDNANCE WORK AND SERVICES FOR THE NAVY DEPARTMENT, ARE AVAILABLE FOR PERSONAL SERVICES IN THE WAR DEPARTMENT, DISTRICT OF COLUMBIA, AND THE SPECIFIC LIMITATION IN THE MILITARY APPROPRIATION ACT UNDER THE HEADING "SALARIES, WAR DEPARTMENT, OFFICE OF CHIEF OF ORDNANCE," 52 STAT. 642, ON THE AMOUNT TO BE EXPENDED FOR PERSONAL SERVICES, IS NOT FOR APPLICATION TO SUCH TRANSFERS, BUT THE FUNDS TRANSFERRED FROM THE NAVY APPROPRIATION "BUREAU OF ORDNANCE, ORDNANCE AND ORDNANCE STORES," 52 STAT. 231, ARE AVAILABLE FOR EMPLOYMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA ONLY TO THE LIMITED EXTENT AUTHORIZED IN THAT APPROPRIATION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF WAR, DECEMBER 1, 1938:

YOUR LETTER OF NOVEMBER 16, 1938, IS AS FOLLOWS:

UNDER THE AUTHORITY OF THE ACT OF JULY 31, 1894 (28 STAT. 208), ADVANCE DECISION IS REQUESTED UPON A MATTER NOW BEFORE ME FOR ACTION.

THE ACT OF JUNE 30, 1932 (ECONOMY ACT, SEC. 601), AUTHORIZED THE TRANSFER IN ADVANCE OF FUNDS FROM ONE EXECUTIVE DEPARTMENT TO ANOTHER FOR THE PERFORMANCE OF WORK OR THE RENDERING OF SERVICE WHICH WOULD BE ECONOMICALLY PERFORMED BY ANOTHER FEDERAL AGENCY. THESE ADVANCES ARE TAKEN UP IN A "WORKING FUND.'

UNDER THIS AUTHORITY THERE HAS BEEN TRANSFERRED TO THE ORDNANCE DEPARTMENT, WAR DEPARTMENT, LARGE SUMS OF MONEY FOR THE MANUFACTURE OF MATERIEL WHICH THE ORDNANCE DEPARTMENT IS CAPABLE OF SUPPLYING TO THE NAVY. THE ORDERS THUS FAR RECEIVED FROM THE NAVY THIS FISCAL YEAR AND FINANCED THROUGH THE "WORKING FUND" TOTAL APPROXIMATELY $12,000,000. THESE FUNDS ARE DERIVED PRINCIPALLY FROM THE NAVY DEPARTMENT APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1939 (PUB.NO. 493, 75TH CONG.), UNDER THE HEADINGS, REPLACEMENT OF NAVAL VESSELS: ARMOUR, ARMAMENT, AND AMMUNITION, AND BUREAU OF ORDNANCE: ORDNANCE AND ORDNANCE STORES. CONNECTION WITH THE PERFORMANCE OF THIS WORK BY FIELD AGENCIES, CERTAIN SUPERVISORY ACTIVITIES ARE NECESSARY IN THE OFFICE OF THE CHIEF OF ORDNANCE. SOME EMPLOYEES ARE ENGAGED EXCLUSIVELY ON SUCH SUPERVISION WHICH, IT IS BELIEVED, IS AN IMPROPER CHARGE AGAINST APPROPRIATIONS MADE AVAILABLE TO THE WAR DEPARTMENT FOR SUPPLY AND MAINTENANCE OF THE REGULAR ARMY; THEREFORE, IT IS DESIRED THAT ADVANCES TO THE "WORKING FUND" MADE AVAILABLE UNDER THE PROVISIONS OF SECTION 601 OF THE ACT OF JUNE 30, SUPRA, BE APPLIED TOWARD THE PAYMENT OF SALARIES OF EMPLOYEES IN WASHINGTON ENGAGED ON THIS TYPE OF WORK.

THE MILITARY APPROPRIATION ACT, 1939 (PUB. 590, 75TH CONG., 52 STAT. 642), CARRIED THE FOLLOWING PROVISO UNDER THE HEADINGS SALARIES, WAR DEPARTMENT, OFFICE OF CHIEF OF ORDNANCE:

"* * * PROVIDED, THAT THE SERVICES OF SUCH ADDITIONAL TECHNICAL AND CLERICAL PERSONNEL AS THE SECRETARY OF WAR MAY DEEM NECESSARY MAY BE EMPLOYED ONLY IN THE OFFICE OF THE CHIEF OF ORDNANCE, TO CARRY INTO EFFECT THE VARIOUS APPROPRIATIONS FOR DEVELOPMENT, MANUFACTURE, STORAGE, AND ISSUE OF ORDNANCE AND ORDNANCE STORES, TO BE PAID FROM SUCH APPROPRIATIONS: PROVIDED FURTHER, THAT THE EXPENDITURES ON THIS ACCOUNT FOR THE FISCAL YEAR 1939 SHALL NOT EXCEED $70,000, AND THE SECRETARY OF WAR SHALL EACH YEAR, IN THE BUDGET, REPORT TO CONGRESS THE NUMBER OF PERSONS SO EMPLOYED, THEIR DUTIES, AND THE AMOUNT PAID TO EACH.'

UNDER THE ABOVE-QUOTED ACT, THE EMPLOYEES IN THE OFFICE OF THE CHIEF OF ORDNANCE ARE PAID FROM THE APPROPRIATIONS "ORDNANCE SERVICE AND SUPPLIES, ARMY," AND "SEACOAST DEFENSES.' AS STATED ABOVE, IT IS DESIRED TO CHARGE "WORKING FUND" ADVANCES WITH THE PRO RATA COST OF SUCH SERVICES.

ACCORDINGLY, IT IS REQUESTED THAT A DECISION BE RENDERED UPON THE FOLLOWING QUESTIONS:

A. CAN "WORKING FUND" ADVANCES BE USED TO PAY FOR SUCH PART OF THE SERVICES OF EMPLOYEES AS MAY BE NECESSARY IN WASHINGTON TO ACCOMPLISH THE WORK INCIDENT TO CARRYING OUT THE ORDERS OF THE NAVY DEPARTMENT FOR WHICH ADVANCES WERE MADE?

B. CAN THE TOTAL PAY ROLL OF EMPLOYEES IN WASHINGTON BE INCREASED BY THE AMOUNT REQUIRED TO RENDER THIS SERVICE FOR THE NAVY DEPARTMENT AND THE SALARIES OF SUCH EMPLOYEES BE PAID EXCLUSIVELY FROM "WORKING FUND" ADVANCES?

THE FIRST APPROPRIATION ITEM UNDER THE GENERAL HEADING "REPLACEMENT OF NAVAL VESSELS" APPEARING IN THE NAVY DEPARTMENT APPROPRIATION ACT FOR THE FISCAL YEAR 1939, CITED IN YOUR LETTER, 52 STAT. 242, CONTAINS THE FOLLOWING PROVISO:

* * * PROVIDED FURTHER, THAT, OF THE APPROPRIATIONS MADE AVAILABLE BY THIS ACT UNDER THE HEAD OF "REPLACEMENT OF NAVAL VESSELS," THERE SHALL BE AVAILABLE SUCH SUMS AS THE SECRETARY OF THE NAVY MAY FROM TIME TO TIME DETERMINE TO BE NECESSARY FOR THE ENGAGEMENT OF TECHNICAL SERVICES, AND THE EMPLOYMENT OF PERSONNEL IN THE NAVY DEPARTMENT AND IN THE FIELD, * *

UNDER THE SAME GENERAL HEADING APPEARS THE ITEM "ARMS, ARMAMENT, AND AMMUNITIONS," AND THE SAME AUTHORITY FOR EMPLOYMENT OF PERSONAL SERVICES IS AVAILABLE THERETO. NO SUCH GENERAL AUTHORITY FOR EMPLOYMENT OF PERSONNEL IN THE NAVY DEPARTMENT OR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA APPEARS IN THE APPROPRIATION FOR "BUREAU OF ORDNANCE, ORDNANCE, AND ORDNANCE STORES," 52 STAT. 231, BUT THE FOLLOWING LIMITED AUTHORITY FOR EMPLOYMENT OF PERSONAL SERVICES DOES NOT APPEAR IN THAT APPROPRIATION:

* * * FOR PAYMENT OF PART-TIME OR INTERMITTENT EMPLOYMENT IN THE DISTRICT OF COLUMBIA, OR ELSEWHERE, OF SUCH SCIENTISTS AND TECHNICISTS AS MAY BE CONTRACTED FOR BY THE SECRETARY OF THE NAVY IN HIS DISCRETION AT THE RATE OF PAY NOT EXCEEDING $20 PER DIEM FOR ANY PERSON SO EMPLOYED; * * *

FUNDS TRANSFERRED FROM THE APPROPRIATIONS UNDER ONE DEPARTMENT TO ANOTHER DEPARTMENT FOR THE PERFORMANCE OF WORK OR SERVICES UNDER AUTHORITY OF SECTION 601 OF THE ACT OF JUNE 30, 1932, 47 STAT. 417, OR SIMILAR STATUTORY AUTHORITY, ARE AVAILABLE FOR THE PURPOSES FOR WHICH THE APPROPRIATION FROM WHICH TRANSFERRED ARE AVAILABLE, AND ALSO SUBJECT TO THE SAME LIMITATIONS FIXED IN THE APPROPRIATIONS FROM WHICH THE FUNDS ARE TRANSFERRED. 16 COMP. GEN. 545; 17 ID. 73.

IN DECISION OF MAY 4, 1938, 17 COMP. GEN. 900, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

STATEMENTS IN A PRIOR DECISION TO THE EFFECT THAT RESTRICTIONS ON LIMITATIONS ARE REMOVED BY TRANSFER OF FUNDS FROM ONE FEDERAL AGENCY TO ANOTHER UNDER A PROVISION WHICH AUTHORIZED TRANSFERRED FUNDS TO BE EXPENDED IN THE SAME MANNER AS MONEYS APPROPRIATED FOR THE PERFORMING DEPARTMENT, ARE NOT FOR APPLICATION WHERE THE OBJECTS FOR WHICH THE FUNDS ARE PROPOSED TO BE USED ARE SPECIFICALLY PROHIBITED BY A GENERAL LAW AS IN THE CASE OF PASSENGER-CARRYING VEHICLES, OR OTHERWISE THE AMOUNT AUTHORIZED TO BE EXPENDED FOR A SPECIFIED PURPOSE IS SPECIFICALLY LIMITED IN THE APPROPRIATION TRANSFERRED. 16 COMP. GEN. 545, AND 17 ID. 73, AFFIRMED.

SECTIONS 45 AND 46, TITLE 5, U.S.C. PROVIDE AS FOLLOWS:

SEC. 45. OFFICERS, CLERKS, AND EMPLOYEES. NO CIVIL OFFICER, CLERK, AGENT, DRAUGHTSMAN, COPYIST, MESSENGER, ASSISTANT MESSENGER, MECHANIC, ENGINEER, WATCHMAN, LABORER, OR OTHER EMPLOYEE SHALL BE EMPLOYED IN ANY OF THE EXECUTIVE DEPARTMENTS, OR SUBORDINATE BUREAUS OR OFFICES THEREOF AT THE SEAT OF GOVERNMENT, EXCEPT AS OTHERWISE PROVIDED. (AUG. 15, 1876, C. 287, SEC. 5, 19 STAT. 169; AUG. 5, 1882, C. 389, SEC. 4, 22 STAT. 255; MAR. 4, 1923, C. 265, 42 STAT. 1488.)

SEC. 46. PAYMENT FOR SERVICES FROM APPROPRIATIONS FOR CONTINGENT EXPENSES OR FOR SPECIFIC OR GENERAL PURPOSES. NO CIVIL OFFICER, CLERK, DRAUGHTSMAN, COPYIST, MESSENGER, ASSISTANT MESSENGER, MECHANIC, WATCHMAN, LABORER, OR OTHER EMPLOYEE SHALL BE EMPLOYED AT THE SEAT OF GOVERNMENT IN ANY EXECUTIVE DEPARTMENT OR SUBORDINATE BUREAU OR OFFICE THEREOF OR BE PAID FROM ANY APPROPRIATION MADE FOR CONTINGENT EXPENSES, OR FOR ANY SPECIFIC OR GENERAL PURPOSE, UNLESS SUCH EMPLOYMENT IS AUTHORIZED AND PAYMENT THEREFOR PROVIDED IN THE LAW GRANTING THE APPROPRIATION, AND THEN ONLY FOR SERVICES ACTUALLY RENDERED IN CONNECTION WITH AND FOR THE PURPOSES OF THE APPROPRIATION FROM WHICH PAYMENT IS MADE, AND AT THE RATE OF COMPENSATION PROVIDED FOR IN CHAPTER 13 OF THIS TITLE. (AUG. 5, 1882, C. 389, SEC. 4, 22 STAT. 255.)

FUNDS TRANSFERRED FROM ONE DEPARTMENT TO ANOTHER DEPARTMENT UNDER AUTHORITY OF SECTION 601 UNDER THE ACT OF JUNE 30, 1932, SUPRA, ARE SUBJECT TO THIS GENERAL STATUTORY PROHIBITION AGAINST EMPLOYMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA, UNLESS THERE IS EXPRESS AUTHORITY FOR EMPLOYMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA IN THE APPROPRIATION FROM WHICH THE FUNDS ARE TRANSFERRED. AS THE APPROPRIATION ITEMS UNDER THE HEADING "REPLACEMENT OF NAVAL VESSELS," FROM WHICH A PART OF THE WORKING FUND OF THE WAR DEPARTMENT IS DERIVED, AUTHORIZES THE SECRETARY OF THE NAVY TO EMPLOY PERSONAL SERVICES IN THE NAVY DEPARTMENT AS WELL AS IN THE FIELD WITHOUT LIMITATION, THE AMOUNT TRANSFERRED TO THE WAR DEPARTMENT FROM THOSE APPROPRIATIONS UNDER AUTHORITY OF SECTION 601 OF THE ACT OF JUNE 30, 1932, FOR PERFORMANCE OF WORK AND SERVICES FOR THE NAVY DEPARTMENT MAY BE REGARDED AS AVAILABLE FOR PERSONAL SERVICES IN THE WAR DEPARTMENT, DISTRICT OF COLUMBIA, WITHOUT REGARD TO THE GENERAL PROVISIONS CONTAINED IN SECTIONS 45 AND 46, TITLE 5, U.S.C. SUPRA, OR THE SPECIFIC LIMITATION APPEARING IN THE APPROPRIATION ITEM ENTITLED "SALARIES, OFFICE OF CHIEF OF ORDNANCE," 52 STAT. 642, QUOTED IN YOUR LETTER.

THE AMOUNT TRANSFERRED TO THE WORKING FUND OF THE WAR DEPARTMENT FROM THE NAVY APPROPRIATION ,BUREAU OF ORDNANCE, ORDNANCE AND ORDNANCE STORES," 52 STAT. 231, IS AVAILABLE FOR EMPLOYMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA ONLY TO THE LIMITED EXTENT AUTHORIZED IN THE APPROPRIATION FROM WHICH THE FUNDS ARE TRANSFERRED.