B-105402, SEPTEMBER 26, 1951, 31 COMP. GEN. 109

B-105402, SEPTEMBER 26, 1951, 31 COMP. GEN. 109

COMPENSATION - APPOINTMENT TO VACANT POSITION DURING FISCAL YEAR 1952 - EFFECT OF RESTRICTION IN INDEPENDENT OFFICES APPROPRIATION ACT, 1952 IN APPLYING THE PROVISIONS OF SECTION 605 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, PROHIBITING THE EXPENDITURE OF FUNDS FOR PAYMENT OF COMPENSATION OF EMPLOYEES APPOINTED TO POSITIONS BECOMING VACANT DURING THE FISCAL YEAR 1952, THE EXCEPTION FROM THE INHIBITION OF SAID SECTION OF "NOT TO EXCEED 25 PERCENTUM OF ALL VACANCIES" APPLIES TO VACANCIES OCCURRING THROUGHOUT THE ENTIRE 1952 FISCAL YEAR RATHER THAN ONLY TO THOSE OCCURRING ON AND AFTER AUGUST 31, 1951, THE DATE OF ENACTMENT OF SAID ACT INTO LAW. THE PROHIBITION IN SECTION 605 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, UPON THE EXPENDITURE OF FUNDS FOR PAYMENT OF COMPENSATION OF EMPLOYEES APPOINTED TO POSITIONS BECOMING VACANT DURING THE FISCAL YEAR 1952, INCLUDES POSITIONS WHICH WERE ESTABLISHED ON OR AFTER JULY 1, 1952, AND WERE VACANT ON AUGUST 31, 1951, THE DATE OF ENACTMENT OF THE ACT, BUT DOES NOT APPLY TO NEW POSITIONS ESTABLISHED ON OR AFTER AUGUST 31, 1951, BY FUNDS AND AUTHORITY WHICH DID NOT EXIST UNTIL ENACTMENT OF THE APPROPRIATION ACT, UNTIL SUCH POSITIONS ARE FILLED AND SUBSEQUENTLY VACATED. THE RESTRICTION IN SECTION 605 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, UPON THE USE OF APPROPRIATED FUNDS FOR PAYMENT OF COMPENSATION OF EMPLOYEES APPOINTED TO POSITIONS BECOMING VACANT DURING THE FISCAL YEAR 1952, IS ON ANY APPROPRIATION OR AUTHORIZATION CONTAINED IN THE ACT, AND THEREFORE, WHERE MORE THAN ONE IS AVAILABLE TO AN AGENCY FOR SALARIES, THE RESTRICTION IS APPLICABLE TO EACH INDIVIDUAL APPROPRIATION OR AUTHORIZATION. IN DETERMINING THE NUMBER OF VACANT POSITIONS WHICH MAY BE FILLED BY AN AGENCY UNDER THE PROVISIONS OF SECTION 605 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, PLACING A RESTRICTION THEREON, THE NUMBER OF OCCUPIED POSITIONS MAY AT NO TIME DURING THE EFFECTIVE PERIOD OF THE ACT EXCEED 25 PERCENTUM OF THE TOTAL NUMBER OF VACANCIES WHICH OCCURRED DURING THE PERIOD JULY 1 THROUGH AUGUST 30, 1951, AND NOT FILLED AS OF THE LATTER DATE, PLUS THOSE WHICH HAVE OCCURRED SINCE THAT DATE. INASMUCH AS AN ADVANCE OF FUNDS TO A WORKING FUND IS SUBJECT TO THE SAME RESTRICTIONS IN THE HANDS OF A PERFORMING AGENCY AS WOULD BE THE CASE IF SUCH FUNDS WERE BEING USED BY THE ADVANCING AGENCY, THE RESTRICTION IN SECTION 605 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, UPON THE USE OF APPROPRIATED FUNDS FOR PAYMENT OF COMPENSATION OF EMPLOYEES APPOINTED TO POSITIONS BECOMING VACANT DURING THE FISCAL YEAR 1952, CANNOT BE DEFEATED BY A TRANSFER OF FUNDS TO ANOTHER AGENCY. UNDER THE PROVISO IN SECTION 605 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, THAT THE RESTRICTION IN THE ACT UPON THE USE OF APPROPRIATED FUNDS FOR PAYMENT OF COMPENSATION OF EMPLOYEES APPOINTED TO POSITIONS BECOMING VACANT DURING THE FISCAL YEAR 1952 SHALL CEASE TO APPLY WHEN AN AGENCY REDUCES ITS EMPLOYMENT TO 90 PERCENT OR LESS OF THE TOTAL NUMBER ON ITS ROLLS ON JULY 1, 1951, THE 90 PERCENT IS BASED UPON TOTAL EMPLOYMENT AS OF THAT DATE, INCLUDING TEMPORARY, PART-TIME, ETC., EMPLOYEES HOWEVER, VACANCIES OCCURRING THROUGH REDUCTIONS IN FORCE BECAUSE OF DECREASES IN FUNDS ARE NOT FOR CONSIDERATION IN DETERMINING WHEN THE 90 PERCENT CEILING IS REACHED. THE 90 PERCENT CEILING ON EMPLOYEES UNDER SECTION 605 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, WHICH, WHEN REACHED, PERMITS THE UNRESTRICTED FILLING OF VACANCIES, IS TO BE COMPUTED WITH REFERENCE TO THE NUMBER OF EMPLOYEES ON THE ROLLS OF AN AGENCY ON JULY 1, 1951, EVEN THOUGH A CURRENT APPROPRIATION MAY HAVE BEEN INCREASED TO PERMIT EMPLOYMENT OF MORE PERSONS THAN WERE EMPLOYED BY AN AGENCY DURING THE LAST FISCAL YEAR.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, BUREAU OF THE BUDGET, SEPTEMBER 26, 1951:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 31, 1951, PRESENTING FOR DECISION CERTAIN QUESTIONS WHICH HAVE ARISEN AS THE RESULT OF THE " JENSEN AMENDMENT" TO THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, PUBLIC LAW 137, APPROVED AUGUST 31, 1951, SUCH AMENDMENT BEING SECTION 605 OF THE ACT, 65 STAT. 292.

SECTION 605, AS SET FORTH IN PERTINENT PART IN YOUR LETTER, IS AS FOLLOWS:

NO PART OF ANY APPROPRIATION OR AUTHORIZATION CONTAINED IN THIS ACT SHALL BE USED TO PAY THE COMPENSATION OF ANY INCUMBENT APPOINTED TO ANY CIVIL OFFICE OR POSITION WHICH MAY BECOME VACANT DURING THE FISCAL YEAR BEGINNING ON JULY 1, 1951: PROVIDED, THAT THIS INHIBITION SHALL NOT APPLY-

(A) TO NOT TO EXCEED 25 PERCENTUM OF ALL VACANCIES;

(B) TO POSITIONS FILLED FROM WITHIN AND BY TRANSFER TO AGENCIES PROVIDED FOR BY THIS ACT;

(C) TO OFFICES OR POSITIONS REQUIRED BY LAW TO BE FILLED BY APPOINTMENT OF THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE;

* * * PROVIDED FURTHER, THAT WHEN ANY DEPARTMENT OR AGENCY COVERED IN THIS ACT SHALL, AS A RESULT OF THE OPERATION OF THIS AMENDMENT REDUCE THEIR EMPLOYMENT TO A FIGURE NOT EXCEEDING 90 PERCENTUM OF THE TOTAL NUMBER ON THEIR ROLLS AS OF JULY 1, 1951, SUCH AMENDMENT SHALL CEASE TO APPLY AND SAID 90 PERCENTUM FIGURE SHALL BECOME A CEILING FOR EMPLOYMENT DURING THE FISCAL YEAR 1952 AND IF EXCEEDED AT ANY TIME DURING FISCAL YEAR 1952 THIS AMENDMENT SHALL AGAIN BECOME OPERATIVE: AND PROVIDED FURTHER, *

THE QUESTIONS PRESENTED AND YOUR RELATED DISCUSSION WILL BE STATED AND ANSWERED IN THE ORDER APPEARING IN YOUR LETTER AS FOLLOWS:

(A) THIS SECTION IS STATED TO APPLY TO "ANY APPROPRIATION OR AUTHORIZATION CONTAINED IN THIS ACT," AND IT ALSO RESTRICTS THE PAYMENT OF COMPENSATION THEREFROM TO INCUMBENTS APPOINTED TO POSITIONS "WHICH MAY BECOME VACANT DURING THE FISCAL YEAR BEGINNING ON JULY 1, 1951," WITH CERTAIN ENUMERATED EXCEPTIONS. BECAUSE OF THE WORDING OF THIS SECTION, PARTICULARLY ITS EXPRESS APPLICATION ONLY TO APPROPRIATIONS AND AUTHORIZATIONS CONTAINED IN THE ACT, AND IN VIEW OF THE FOURTH PROVISO OF SUBSECTION (A) OF SECTION 1 OF THE ACT OF JULY 1, 1951, ( PUBLIC LAW 70), AS AMENDED (WHICH PROVIDES THAT PROVISIONS OF THIS TYPE ARE NOT APPLICABLE TO THE TEMPORARY APPROPRIATIONS GRANTED THEREIN), IT DOES NOT APPEAR THAT THE SECTION IS RETROSPECTIVE IN SCOPE SO AS TO APPLY TO POSITIONS WHICH HAVE BEEN VACATED AND FILLED ON AND AFTER JULY 1, 1951, BUT PRIOR TO THE DATE OF ENACTMENT OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952. FOR THE REASONS HEREINAFTER SET FORTH UNDER QUESTION (B) THIS APPEARS TO BE TRUE--- REGARDLESS OF THE SOURCE OF COMPENSATION FOR THE INCUMBENT--- AT LEAST UNTIL SUCH POSITIONS MAY BE SUBSEQUENTLY VACATED DURING THE REMAINDER OF THE FISCAL YEAR. HOWEVER, WITH RESPECT TO THE EXCEPTION FROM THE INHIBITION OF THE SECTION FOR "NOT TO EXCEED 25 PERCENTUM OF ALL VACANCIES," IT IS NOT CLEAR WHETHER IT APPLIES TO VACANCIES WHICH OCCUR THROUGHOUT THE ENTIRE FISCAL YEAR, OR ONLY TO THOSE WHICH OCCUR AFTER THE DATE OF ENACTMENT OF THE APPROPRIATION ACT.

IN ACCORDANCE WITH THE GENERAL RULE THAT A PROVISO LIMITS OR QUALIFIES THE MAIN BODY OF THE SECTION TO WHICH IT HAS BEEN ADDED, IT MIGHT APPEAR THAT IN THIS CASE THERE ARE EXCEPTED ONLY "NOT TO EXCEED 25 PERCENTUM OF ALL VACANCIES" TO WHICH THE INHIBITION OF THE SECTION OTHERWISE APPLIES, THAT IS, THOSE VACANCIES ARISING ON OR AFTER THE DATE OF ENACTMENT OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952. ON THE OTHER HAND, IN ORDER TO GIVE EFFECT TO EVERY WORD USED BY THE CONGRESS IN EXPRESSING THIS EXCEPTION TO THE INHIBITION OF THIS SECTION, THE WORDS "ALL ACANCIES" MIGHT BE REGARDED AS DESCRIPTIVE OF ALL VACANCIES WHICH HAVE OCCURRED, AND MAY HEREAFTER OCCUR, DURING THE ENTIRE FISCAL YEAR, EVEN THOUGH SOME OF THEM ARE CLEARLY NOT SUBJECT TO THE RESTRICTIONS OF THE SECTION. IN THIS VIEW OF THE MATTER, THE EXCEPTION IN QUESTION WOULD APPEAR TO PROVIDE A METHOD OF COMPUTING THE NUMBER OF EXCEPTED VACANCIES, RATHER THAN AN EXCEPTION, PER SE, FOR 25 PERCENTUM OF THE VACANCIES OTHERWISE FALLING WITHIN THE INHIBITION OF THE SECTION.

PUBLIC LAW 70, APPROVED JULY 1, 1951, 65 STAT. 111, 113, 114, AS EXTENDED BY PUBLIC LAW 97, APPROVED JULY 31, 1951, 65 STAT. 149, READS, IN PERTINENT PART, AS FOLLOWS:

THAT THERE ARE HEREBY APPROPRIATED * * *

(A)SUCH AMOUNTS AS MAY BE NECESSARY FOR THE CARRYING OUT OF PROJECTS OR ACTIVITIES (NOT OTHERWISE SPECIFICALLY PROVIDED FOR IN THIS JOINT RESOLUTION) FOR WHICH APPROPRIATIONS, FUNDS, OR OTHER AUTHORITY WERE AVAILABLE DURING THE FISCAL YEAR 1951 AND FOR WHICH APPROPRIATIONS FUNDS, OR OTHER AUTHORITY (SUBJECT TO LIMITATIONS, RESTRICTIONS, AND PERMISSIVE PROVISIONS) WOULD BE MADE AVAILABLE BY ANY APPROPRIATION ACT ENUMERATED IN THIS SUBSECTION, TO THE EXTENT AND IN THE MANNER WHICH WOULD BE PROVIDED FOR IN SUCH ACT: * * * PROVIDED FURTHER, THAT NO PROVISION WHICH IS INCLUDED IN ANY APPROPRIATION ACT ENUMERATED IN THIS SUBSECTION BUT WHICH WAS NOT INCLUDED IN THE APPLICABLE APPROPRIATION ACT FOR THE FISCAL YEAR 1951, AND WHICH BY ITS TERMS IS APPLICABLE TO MORE THAN ONE APPROPRIATION, FUND, OR AUTHORITY, SHALL BE APPLICABLE TO ANY APPROPRIATION, FUND, OR AUTHORITY PROVIDED IN THIS JOINT RESOLUTION UNLESS SUCH PROVISION SHALL HAVE BEEN INCLUDED IN IDENTICAL FORM IN SUCH BILL AS ENACTED BY BOTH THE HOUSE AND THE SENATE: PROVIDED FURTHER, THAT THIS SUBSECTION SHALL APPLY TO THE FOLLOWING:

INDEPENDENT OFFICES APPROPRIATION ACT, 1952:

SEC. 4. APPROPRIATIONS AND FUNDS MADE AVAILABLE, AND AUTHORITY GRANTED, PURSUANT TO THIS JOINT RESOLUTION, SHALL BE DETERMINED UNDER THE TERMS HEREOF BY REFERENCE TO THE STATUS OF THE PERTINENT APPROPRIATION ACTS ON JUNE 30, 1951 * * * AND SHALL REMAIN AVAILABLE IN THE AMOUNT AND IN THE MANNER SO DETERMINED UNTIL (A) ENACTMENT INTO LAW OF AN APPROPRIATION FOR ANY PROJECT OR ACTIVITY PROVIDED FOR HEREIN * * * OR (C) AUGUST 31, 1951, WHICHEVER FIRST OCCURS.

SEC. 5. EXPENDITURES FROM APPROPRIATIONS, FUNDS, OR AUTHORIZATIONS MADE AVAILABLE PURSUANT TO THIS JOINT RESOLUTION * * * SHALL BE CHARGED TO ANY APPLICABLE APPROPRIATION, FUND, OR AUTHORIZATION WHENEVER A BILL IN WHICH SUCH APPLICABLE APPROPRIATION, FUND, OR AUTHORIZATION IS CONTAINED IS ENACTED INTO LAW.

AS INDICATED IN YOUR LETTER, SECTION 605 IS NOT TO BE CONSTRUED AS RETROSPECTIVE IN SCOPE IN THE SENSE THAT IT RENDERS ILLEGAL, AS IF THE DATE OF ENACTMENT OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, ANY APPOINTMENT PROPERLY MADE DURING THE EFFECTIVE PERIOD OF OPERATION OF PUBLIC LAW 70, APPROVED JULY 1, 1951, AS AMENDED, SO AS TO REQUIRE TERMINATION OF THE APPOINTMENT. HOWEVER, ONCE THE INHIBITION OF SAID SECTION 605 BECAME OPERATIVE (ON THE DATE OF ENACTMENT) APPLICATION OF ITS TERMS MAY BE DETERMINED WITH REFERENCE TO CONDITIONS WHICH PREVIOUSLY OCCURRED, IF REQUIRED BY SUCH TERMS. SINCE THE FIRST CLAUSE OF SECTION 605 SPECIFICALLY SETS FORTH CONDITIONS WHICH MAY (IN THE SENSE OF PROBABILITY) OCCUR "DURING THE FISCAL YEAR BEGINNING ON JULY 1, 1951," I AM OF THE VIEW THAT JULY 1, 1951, MUST BE TAKEN AS THE REFERENCE POINT FOR APPLYING THE IDEA OF FUTURITY EMBODIED IN THE EXPRESSION "MAY BECOME VACANT.' ACCORDINGLY, IN ANSWER TO THE QUESTION IMPLICIT IN THE LAST SENTENCE OF THE FIRST PARAGRAPH OF (A) QUOTED ABOVE, IT MUST BE HELD THAT FOR THE PURPOSE OF APPLYING ON AND AFTER AUGUST 31, 1951--- THE DATE OF ENACTMENT INTO LAW OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952--- THE EXCEPTION FROM THE INHIBITION OF SAID SECTION 605 OF "NOT TO EXCEED 25 PERCENTUM OF ALL VACANCIES," THERE MUST BE TAKEN INTO CONSIDERATION VACANCIES WHICH OCCURRED DURING THE PERIOD JULY 1 THROUGH AUGUST 30, AND WHICH WERE UNFILLED ON AUGUST 31, 1951.

(B) UNLESS SUBSEQUENTLY FILLED AND VACATED, DOES THE PHRASE "CIVIL OFFICE OR POSITION WHICH MAY BECOME VACANT DURING THE FISCAL YEAR BEGINNING ON JULY 1, 1951" INCLUDE (1) THOSE POSITIONS WHICH WERE ESTABLISHED PRIOR TO THE DATE OF ENACTMENT OF THE APPROPRIATION ACT AND WHICH WERE VACANT ON THAT DATE; (2) POSITIONS ESTABLISHED DURING THE FISCAL YEAR 1952, ON OR AFTER THE ENACTMENT OF THE APPROPRIATION ACT, UNDER APPROPRIATIONS OR AUTHORIZATIONS INITIALLY GRANTED BY THE CONGRESS FOR THAT FISCAL YEAR; AND (3) ANY CLASS OR TYPE OF NEW POSITIONS WHICH MAY NORMALLY BE EXPECTED TO BE ESTABLISHED UNDER A REGULAR APPROPRIATION OR AUTHORIZATION CONTAINED IN THE ACT IN WHICH THE CONGRESS HAS PROVIDED INCREASES FOR SUCH NEW POSITIONS?

IN THE ABSENCE OF A CLEARLY EXPRESSED INTENT TO THE CONTRARY, IT IS PRESUMED THAT THIS SECTION IS PROSPECTIVE IN OPERATION FROM THE DATE OF ITS ENACTMENT INTO LAW. THUS, WITH RESPECT TO ALL POSITIONS WHICH HAVE BEEN VACATED PRIOR TO THE DATE OF ENACTMENT OF THE APPROPRIATION ACT, IT IS NOT BELIEVED THAT, AS OF THE DATE OF ENACTMENT, SUCH POSITIONS COULD BE CONSIDERED AS ONES WHICH ,MAY BECOME VACANT DURING THE FISCAL YEAR * * *" UNLESS THEY ARE THEREAFTER FILLED AND VACATED.

IT WOULD THEREFOR APPEAR THAT REASONABLY ALL POSITIONS SUBJECT TO THIS SECTION ARE ONLY THOSE WHICH HAVE BEEN FILLED AND ARE VACATED DURING THAT PART OF THE FISCAL YEAR WHICH OCCURS ON OR AFTER THE DATE OF APPROVAL OF THE ACT. MOREOVER, THE POSITIONS (REFERRED TO IN (2) ABOVE) ESTABLISHED AFTER THAT DATE DURING THE FISCAL YEAR 1952, IN ORDER TO CARRY OUT THE PURPOSES OF A NEW APPROPRIATION INITIALLY GRANTED BY THE CONGRESS FOR THAT YEAR, WOULD SEEM TO PRESENT A PROBLEM SUBSTANTIALLY THE SAME AS THE ONE INVOLVING THE APPLICATION OF THIS TYPE OF PROVISION TO THE STAFFING OF NEW AGENCIES. THIS MATTER WAS DISCUSSED BY REPRESENTATIVES OF THE GENERAL ACCOUNTING OFFICE IN CONNECTION WITH A THEN PENDING AMENDMENT, WHICH WAS THE SAME AS THIS SECTION INSOFAR AS IS HERE MATERIAL, DURING THE SENATE APPROPRIATIONS COMMITTEE HEARINGS ON THE SUPPLEMENTAL LABOR-FEDERAL SECURITY AGENCY APPROPRIATIONS FOR 1952 (PAGES 16 AND 17 OF THE RECORD OF THE HEARINGS). IT WAS INDICATED BY THEM AT THAT TIME THAT THIS TYPE OF A PROVISION WOULD NOT APPLY TO A NEW AGENCY UNTIL IT WAS FULLY STAFFED AND VACANCIES THEREAFTER OCCURRED. WITH RESPECT TO THE POSITIONS REFERRED TO IN (3)ABOVE, THE PROBLEM AGAIN APPEARS TO BE ESSENTIALLY THE SAME, PARTICULARLY IN THOSE CASES WHERE SUCH POSITIONS ARE FOR THE PURPOSES OF CARRYING OUT A NEW FUNCTION OR ACTIVITY FOR WHICH CONGRESS HAS GRANTED AN INCREASE IN THE REGULAR APPROPRIATION, RATHER THAN PROVIDING FOR SUCH FUNCTION OR ACTIVITY IN A SEPARATE APPROPRIATION.

IN BRIEF, IT IS CONSIDERED THAT, WITH REFERENCE TO NEW POSITIONS FOR A NEW FUNCTION OR ACTIVITY FOR WHICH CONGRESS HAS OTHERWISE PROVIDED FUNDS, THE PROBLEM IS FUNDAMENTALLY THE SAME REGARDLESS OF THE METHOD BY WHICH THE FUNCTION OR ACTIVITY IS TO BE UNDERTAKEN AND FINANCED, I.E., WHETHER BY A NEW AGENCY WITH SEPARATE APPROPRIATIONS TO IT, OR BY A NEW APPROPRIATION TO AN EXISTING AGENCY, OR BY INCREASED APPROPRIATION FOR AN EXISTING AGENCY.

AS STATED IN THE ANSWER TO QUESTION (A), THE INHIBITION OF SECTION 605 APPLIES TO ANY VACANCY WHICH OCCURRED DURING THE FISCAL YEAR COMMENCING JULY 1, 1951, AND WHICH WAS NOT FILLED BY AUGUST 31, 1951. HENCE, IN ANSWER TO QUESTION (B) (1) THOSE POSITIONS WHICH WERE ESTABLISHED ON OR AFTER JULY 1, 1951, AND PRIOR TO THE DATE OF ENACTMENT OF THE APPROPRIATION ACT AND WHICH WERE VACANT ON THE LATTER DATE ARE INCLUDED WITHIN THE INHIBITION.

ON THE OTHER HAND, SINCE FUNDS AND AUTHORITY FOR THE ESTABLISHMENT OF POSITIONS REFERRED TO IN QUESTIONS (B) (2) AND (B) (3) DID NOT EXIST UNTIL THE ENACTMENT OF THE APPROPRIATION ACT, THE INHIBITION DOES NOT APPLY TO SUCH POSITIONS UNTIL THEY ARE FILLED AFTER THE DATE OF ENACTMENT AND SUBSEQUENTLY ARE VACATED.

SPECIFICALLY, QUESTION (B) (1) IS ANSWERED IN THE AFFIRMATIVE AND QUESTIONS (B) (2) AND (3) ARE ANSWERED IN THE NEGATIVE.

(C) THE SECTION IMPOSES A RESTRICTION ON "ANY APPROPRIATION OR AUTHORIZATION CONTAINED IN THIS ACT" AND FURTHER SPECIFIES THAT IT SHALL NOT APPLY (1) "TO NOT TO EXCEED 25 PERCENTUM OF ALL VACANCIES; " (2) "TO POSITIONS FILLED FROM WITHIN AND BY TRANSFER TO AGENCIES PROVIDED FOR BY THIS ACT; " AND (3) "TO POSITIONS REQUIRED BY LAW TO BE FILLED BY APPOINTMENT * * *.' DO THESE EXCEPTIONS RELATE TO THOSE VACANCIES AND POSITIONS UNDER THE APPLICABLE APPROPRIATION OR AUTHORIZATION, OR THOSE IN THE COGNIZANT DEPARTMENT OR AGENCY AS A WHOLE?

THIS QUESTION ARISES BECAUSE SEVERAL OF THE AGENCIES INCLUDED IN THE ACT HAVE TWO OR THREE APPROPRIATIONS WHICH ARE AVAILABLE FOR SALARIES. ALSO, SOME CENTRAL PAY ROLLS ARE MAINTAINED BY SOME AGENCIES UNDER ONE APPROPRIATION WITH ADVANCES AND REIMBURSEMENTS THERETO FROM OTHER APPROPRIATIONS WHICH ARE OTHERWISE CHARGEABLE. WHILE THE RESTRICTIONS IMPOSED BY THIS SECTION ARE ON THE USE OF "ANY APPROPRIATION OR AUTHORIZATION CONTAINED IN THIS ACT," IT APPEARS THAT THE QUOTED EXCEPTIONS, BY THEIR TERMS, MAY HAVE BEEN INTENDED TO COVER ALL VACANCIES AND POSITIONS ON AN AGENCY-WIDE BASIS. IF THIS IS TRUE, IT WOULD SEEM TO BE POSSIBLE TO COMPLY WITH THE INTENT OF THIS SECTION BY MAINTAINING SUCH POSITION CONTROL AS MAY BE NECESSARY THEREUNDER ON EITHER AN AGENCY-WIDE BASIS, OR ON THE BASIS OF EACH INDIVIDUAL APPROPRIATION, DEPENDENT UPON WHICHEVER METHOD WOULD BE MOST PRACTICABLE AND ECONOMICAL FOR THE AGENCY CONCERNED TO ADMINISTER. SINCE THE RESTRICTION IN SECTION 605 SPECIFICALLY IS ON "ANY APPROPRIATION OR AUTHORIZATION CONTAINED IN THIS ACT," THE RESTRICTION MUST BE HELD TO APPLY TO EACH INDIVIDUAL APPROPRIATION OR AUTHORIZATION CONTAINED IN THE ACT. HOWEVER, WHEN, AS A RESULT OF THE OPERATION OF SAID SECTION 605, THE EMPLOYMENT IN A DEPARTMENT OR AGENCY AS A WHOLE IS REDUCED TO A FIGURE NOT EXCEEDING 90 PERCENT OF THE TOTAL NUMBER ON THE ROLLS OF THE DEPARTMENT OR AGENCY AS OF JULY 1, 1951, THE AMENDMENT SHALL CEASE TO APPLY.

(D) IS THE EXCEPTION FOR "NOT TO EXCEED 25 PERCENTUM OF ALL VACANCIES" TO BE COMPUTED ON THE BASIS OF THE TOTAL VACANCIES OCCURRING DURING THE SPECIFIED PERIOD, OR THE NUMBER OF VACANCIES EXISTING ON ANY GIVEN DATE ON WHICH IT IS DESIRED TO APPOINT AN INDIVIDUAL TO A POSITION?

I THINK IT IS REASONABLE TO CONCLUDE THAT, INASMUCH AS THIS SECTION PLACES A RESTRICTION ON THE USE OF "ANY APPROPRIATION OR AUTHORIZATION CONTAINED IN THIS ACT," THE EXCEPTION IN THE PROVISO FOR "NOT TO EXCEED 25 PERCENTUM OF ALL VACANCIES," IS NECESSARILY INTENDED TO RELATE TO ALL OF THOSE VACANCIES WHICH, IN POINT OF TIME, ARE IDENTIFIABLE WITH THE PERIOD OF AVAILABILITY OF THE APPLICABLE APPROPRIATIONS OR AUTHORIZATIONS. THIS IS CORRECT, THEN, OF COURSE, THE EXCEPTED VACANCIES CANNOT BE FINALLY ASCERTAINED UNTIL AT LEAST THE END OF THE FISCAL YEAR. IN ANY EVENT, I BELIEVE THAT AS A PRACTICAL MATTER A DETERMINATION OF THE VACANCIES EXISTING ON ANY GIVEN DATE WOULD HAVE TO BE MADE ADMINISTRATIVELY IN ORDER TO EFFECTIVELY INSURE THAT THE APPOINTMENTS WHICH ARE MADE FROM TIME TO TIME BY AN AGENCY ARE WITHIN THE NUMBER PERMITTED UNDER THIS SECTION. HOWEVER, IF THIS EXCEPTION MAY LEGALLY BE DETERMINED ON THE BASIS OF ALL VACANCIES OCCURRING DURING THE SPECIFIED PERIOD, THE AGENCIES WOULD THUS BE ENABLED TO APPOINT PERSONNEL IN THE LIGHT OF FORESEEABLE VACANCIES, SUCH AS RETIREMENTS AND SOME RESIGNATIONS, AND THE OBVIOUS UNDESIRABILITY AND RIGIDITY OF A DAY-TO-DAY COMPUTATION WOULD BE AVOIDED.

I CONSTRUE SECTION 605 TO REQUIRE THAT AT NO TIME DURING THE EFFECTIVE PERIOD OF SAID SECTION SHALL THE NUMBER OF OCCUPIED POSITIONS WITHIN THE PURVIEW THEREOF EXCEED 25 PERCENTUM OF THE TOTAL NUMBER OF VACANCIES WHICH OCCURRED DURING THE PERIOD JULY 1 THROUGH AUGUST 30, 1951, AND WHICH WERE NOT FILLED AS OF THE LATTER DATE, PLUS THOSE WHICH HAVE OCCURRED SINCE AUGUST 30, 1951. IN THAT VIEW, THE FIRST OF THE ALTERNATIVE QUESTIONS UNDER (D) MUST BE ANSWERED IN THE NEGATIVE. THE SECOND OF THE ALTERNATIVE QUESTIONS IS NOT SUSPECTABLE OF A CATEGORICAL ANSWER SINCE IT APPEARS TO VISION A CONSTRUCTION WHEREBY ONLY THE VACANCIES EXISTING ON A PARTICULAR DATE WOULD BE THE DETERMINATIVE FACTOR, WITHOUT REFERENCE TO THE NUMBER OF VACANCIES WHICH HAVE OCCURRED AND HAVE BEEN REFILLED DURING THE PERIOD INVOLVED.

(E) FOR THE PURPOSES OF THIS SECTION, MAY ADVANCES FROM APPROPRIATIONS IN THE ACT TO WORKING FUNDS OF OTHER AGENCIES BE REGARDED AS EXPENDITURES FOR THE APPROPRIATE OBJECT CLASS WHICH REPRESENTS THE TYPE OF TRANSACTION, AT THE TIME THE ADVANCES ARE MADE?

THE ENACTMENT OF THIS SECTION OF THE LAW OCCURRED IN CONJUNCTION WITH, AND AS A RESULT OF, CONGRESSIONAL ACTION ON THE PROPOSED APPROPRIATIONS INCLUDED IN THE 1952 BUDGET. IN THE SCHEDULES PRESENTED IN EXPLANATION OF THESE PROPOSED APPROPRIATIONS, ADVANCES FROM AN APPROPRIATION OF ONE AGENCY TO A WORKING FUND OF ANOTHER AGENCY WERE SHOWN AS EXPENDITURES UNDER THE APPROPRIATION FROM WHICH ADVANCED. THERE WERE ALSO SHOWN IN THE SCHEDULE OF OBLIGATIONS FOR THE APPROPRIATION FROM WHICH ADVANCED, ACCORDING TO THE OBJECT CLASSIFICATION WHICH REPRESENTED THE TYPE OF TRANSACTION INVOLVED. THESE TRANSACTIONS WERE USUALLY SHOWN UNDER THE OBJECT "07 OTHER CONTRACTUAL SERVICES" AND PRESUMABLY CONGRESSIONAL CONSIDERATION OF THIS SECTION WAS PREMISED UPON THE MANNER IN WHICH THEY WERE THUS PRESENTED. THEREFORE, MAY IT BE REGARDED AS APPROPRIATE TO CONSIDER THAT, FOR THE PURPOSES OF THIS SECTION, THE AMOUNTS OF SUCH ADVANCES ARE FINALLY EXPENDED FROM THE ADVANCING APPROPRIATION AT THE TIME THE ADVANCE IS MADE FOR OTHER THAN COMPENSATION OF EMPLOYEES.

IT REPEATEDLY HAS BEEN HELD BY THIS OFFICE THAT THE CONGRESSIONAL PURPOSE IN PLACING LIMITATIONS UPON THE EXPENDITURE OF APPROPRIATED FUNDS CANNOT BE DEFEATED BY THE TRANSFER OF THE FUNDS OF ANOTHER AGENCY. 18 COMP. GEN. 489; 22 ID. 462; 26 ID. 545. CONSEQUENTLY, THE EFFECT OF AN APPROPRIATION LIMITATION MAY NOT BE AVOIDED BY ADOPTION OF THE VIEW SUGGESTED IN THE FIRST PARAGRAPH UNDER (E). SEE 26 COMP. GEN. 545, AT PAGE 548, JUST CITED. ACCORDINGLY, IT MUST BE HELD THAT THE RESTRICTION OF SECTION 605 FOLLOWS AN ADVANCE OF FUNDS TO A WORKING FUND AS DISTINGUISHED FROM A REIMBURSEMENT TRANSACTION.

(F) DOES THE TERM "TOTAL NUMBER ON THEIR ROLLS AS OF JULY 1, 1951" REFER ONLY TO THE TOTAL NUMBER OF PERSONS APPOINTED TO, AND ACTUALLY OCCUPYING, ON THAT DATE, FULL TIME PERMANENT OR INDEFINITE POSITIONS UNDER DIRECT APPROPRIATIONS TO THE AGENCY? IF NOT, WHAT CONSTRUCTION SHOULD BE PLACED ON THIS PHRASE?

IN CONNECTION WITH YOUR CONSIDERATION OF THE FOREGOING QUESTION, I SHOULD LIKE TO POINT OUT THAT MANY OF THE AGENCIES INCLUDED IN THIS ACT WERE ON JULY 1, 1951, EMPLOYING SUBSTANTIAL NUMBERS OF TEMPORARY AND OTHER PART- TIME EMPLOYEES. THESE CATEGORIES INCLUDE, FOR EXAMPLE, SEASONAL AND CASUAL WORKERS, CONSULTANTS OR EXPERTS WHO ARE COMPENSATED ON A "WHEN ACTUALLY EMPLOYED BASIS" AND PERSONS EMPLOYED WITHOUT COMPENSATION. APPEARS DOUBTFUL WHETHER IT WAS INTENDED TO INCLUDE THESE CATEGORIES OF PERSONNEL WITHIN THE TERM "TOTAL NUMBER ON THEIR ROLLS AS OF JULY 1, 1951," SO AS TO THEREBY INCLUDE THEM IN THE BASIS FOR DETERMINING THE EMPLOYMENT CEILING OF 90 PERCENT OF SUCH TOTAL NUMBER.

ON ITS FACE THE TERM QUOTED IN THE FIRST PARAGRAPH UNDER (F) ENCOMPASSES ALL PERSONS ON THE ROLLS OF THE PARTICULAR AGENCY ON THE SPECIFIED DATE, INCLUDING TEMPORARY, PART-TIME, ETC., EMPLOYEES. WERE THERE ANY DOUBT THAT SUCH TERM IS TO RECEIVE A LITERAL INTERPRETATION SUCH DOUBT WOULD BE REMOVED BY CONSIDERATION OF THE FACT THAT SIMILAR PROVISIONS IN SOME OF THE OTHER APPROPRIATION ACTS FOR THE CURRENT FISCAL YEAR ARE SO WORDED AS TO EXCLUDE SEASONAL AND CASUAL WORKERS IN ARRIVING AT THE 90 PERCENT CEILING. SEE, FOR EXAMPLE, SECTION 409 OF THE DEPARTMENT OF AGRICULTURE APPROPRIATION ACT, 1952, PUBLIC LAW 135, APPROVED AUGUST 31, 1951, 65 STAT. 247, AND SECTION 305 OF THE DEPARTMENT OF THE INTERIOR APPROPRIATION ACT, 1952, PUBLIC LAW 136, ALSO APPROVED AUGUST 31, 1951, 65 STAT. 267. THE QUESTIONS UNDER (F) ARE ANSWERED ACCORDINGLY.

(G) INASMUCH AS THE RESTRICTIONS OF THIS SECTION APPLY TO ANY POSITION WHICH MAY BECOME VACANT--- REGARDLESS OF THE CAUSE--- MAY IT NOT BE CONSIDERED THAT ALL REDUCTIONS IN PERSONNEL, WHICH OCCUR DURING THE PERIOD TO WHICH THE AMENDMENT APPLIES, ARE "AS A RESULT OF THE OPERATION OF THIS AMENDMENT, WITHIN THE MEANING OF THE SECOND PROVISO THEREOF?

AS YOU INDICATE, SECTION 605 DOES NOT PROVIDE THAT A VACANCY SHALL HAVE RESULTED FROM ANY PARTICULAR CAUSE AS A CONDITION TO APPLICATION OF THE INHIBITION AGAINST FILLING THE VACANCY. ON THE OTHER HAND, SAID SECTION CLEARLY IS A RESTRICTION UPON THE USE FOR THE FILLING OF VACANCIES OF FUNDS WHICH OTHERWISE WOULD BE AVAILABLE FOR THAT PURPOSE. CONSEQUENTLY, WHEN THE FAILURE TO FILL A VACANCY RESULTS FROM THE LACK OF SUFFICIENT FUNDS TO PAY THE COMPENSATION OF AN APPOINTEE--- SUCH AS IN THE CASE WHERE THE VACANCY RESULTED FROM A REDUCTION IN FORCE NECESSITATED BY REDUCED APPROPRIATIONS--- IT MAY NOT BE SAID THAT THE EMPLOYMENT FIGURE HAS BEEN REDUCED "AS A RESULT OF THE OPERATION OF THIS AMENDMENT" WITHIN THE MEANING OF THE SECOND PROVISO TO SECTION 605. THE QUESTION UNDER (G) IS ANSWERED ACCORDINGLY.

(H) IS ANY ADJUSTMENT PERMISSIBLE IN THE STATED CEILING OF 90 PERCENT OF THE TOTAL NUMBER ON THEIR ROLLS AS OF JULY 1, 1951, IN ORDER TO RECOGNIZE THE INCREASED NUMBERS OF PERSONNEL FOR WHICH THE CONGRESS HAS SPECIFICALLY PROVIDED IN CERTAIN APPROPRIATIONS GRANTED IN THE ACT AND UNDER WHICH THERE WAS NO CORRESPONDING EMPLOYMENT ON THAT DATE?

IN CERTAIN APPROPRIATIONS GRANTED IN THE ACT, THE CONGRESS HAS PROVIDED MORE FUNDS (WHICH ARE OTHERWISE AVAILABLE FOR PERSONAL SERVICES) THAN WERE CORRESPONDINGLY APPROPRIATED FOR THE PRECEDING FISCAL YEAR. IT IS REASONABLY CERTAIN THAT UNLESS THE STATED CEILING ON EMPLOYMENT CAN BE ADJUSTED UPWARD ON THIS ACCOUNT, THERE WILL BE INSTANCES WHERE THE OBJECTIVES WHICH THE CONGRESS SOUGHT TO ATTAIN BY APPROPRIATING SUCH ADDITIONAL FUNDS WILL BE LARGELY NULLIFIED.

THE WHOLE NUMBER OF EMPLOYEES, 90 PERCENT OF WHICH IS TO CONSTITUTE A LEVEL WHICH, WHEN REACHED AND NOT EXCEEDED, PERMITS THE UNRESTRICTED FILLING OF VACANCIES, IS PRECISELY FIXED BY SECTION 605 AS THE TOTAL NUMBER ON THE ROLLS AS OF JULY 1, 1951. NO BASIS IS PROVIDED IN THE LAW FOR VARYING SUCH NUMBER. THEREFORE, EVEN THOUGH A PARTICULAR CURRENT APPROPRIATION IS AVAILABLE FOR MORE EMPLOYEES THAN FOR WHICH CORRESPONDING FUNDS WERE AVAILABLE DURING THE LAST FISCAL YEAR, THE 90 PERCENT CEILING MUST BE COMPUTED WITH REFERENCE TO THE NUMBER ON THE ROLLS ON JULY 1, 1951.