B-105736, OCTOBER 23, 1951, 31 COMP. GEN. 153

B-105736: Oct 23, 1951

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REQUESTING DECISION UPON THE QUESTION OF WHETHER THERE MAY BE USED A COMPOSITE PERSONNEL CEILING IN GIVING EFFECT TO THE TERMS OF THE " JENSEN AMENDMENT" TO VARIOUS APPROPRIATION ACTS FROM WHICH ARE DERIVED. OR ARE EXPECTED TO BE DERIVED. (D) TO POSITIONS THE PERSONNEL OF WHICH ARE ENGAGED IN HEALTH AND SAFETY. IT IS STATED THAT INASMUCH AS THE MAJORITY OF THE REGULAR FULL-TIME EMPLOYEES OF THE GEOLOGICAL SURVEY ARE EMPLOYED INTERCHANGEABLY ON MANY DIFFERENT PROJECTS FINANCED FROM DIFFERENT APPROPRIATIONS. IT IS IMPRACTICABLE TO EARMARK EACH POSITION AS GOVERNED BY A SINGLE APPROPRIATION ACT. IT WOULD APPEAR THAT THE PROVISIONS OF THE JENSEN AMENDMENT RELATING TO THE NUMBER OF VACANCIES THAT CAN BE FILLED UNTIL A CERTAIN LIMIT IS REACHED WOULD HAVE TO APPLY UPON A BUREAU-WIDE BASIS.

B-105736, OCTOBER 23, 1951, 31 COMP. GEN. 153

COMPENSATION - APPOINTMENTS TO VACANT POSITIONS DURING FISCAL YEAR 1952 EFFECT OF RESTRICTION IN INDEPENDENT OFFICES APPROPRIATION ACT, 1952, ON TRANSFERRED FUNDS IN APPLYING THE PROVISIONS OF SECTION 605 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, RESTRICTING THE EXPENDITURE OF FUNDS FOR PAYMENT OF COMPENSATION OF EMPLOYEES APPOINTED TO POSITIONS BECOMING VACANT DURING THE FISCAL YEAR 1952, TO FUNDS MADE AVAILABLE TO THE GEOLOGICAL SURVEY BY TRANSFER THERE MAY BE USED A COMPOSITE PERSONNEL CEILING ESTABLISHED ON THE BASIS OF INDIVIDUAL CEILINGS CALCULATED BY AN ANALYSIS OF EACH SOURCE OF FUNDS.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, OCTOBER 23, 1951:

THERE HAS BEEN CONSIDERED THE LETTER DATED SEPTEMBER 21, 1951, FROM THE ACTING SECRETARY OF THE INTERIOR, REQUESTING DECISION UPON THE QUESTION OF WHETHER THERE MAY BE USED A COMPOSITE PERSONNEL CEILING IN GIVING EFFECT TO THE TERMS OF THE " JENSEN AMENDMENT" TO VARIOUS APPROPRIATION ACTS FROM WHICH ARE DERIVED, OR ARE EXPECTED TO BE DERIVED, BY TRANSFER, FUNDS AVAILABLE TO THE GEOLOGICAL SURVEY, DEPARTMENT OF THE INTERIOR, FOR CARRYING ON CERTAIN OPERATIONS.

THE JENSEN AMENDMENT TO THE INTERIOR DEPARTMENT APPROPRIATION ACT, 1952 (SECTION 305 OF SUCH ACT), 65 STAT. 267, AS QUOTED IN SAID LETTER, READS AS FOLLOWS:

SEC. 305. 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 WITHIN THE DEPARTMENT;

(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;

(D) TO POSITIONS THE PERSONNEL OF WHICH ARE ENGAGED IN HEALTH

AND SAFETY, LAW ENFORCEMENT, OPERATION AND MAINTENANCE, SOIL AND

MOISTURE, AND FORESTRY ACTIVITIES IN THE FIELD, EXCLUSIVE OF

ADMINISTRATIVE PERSONNEL NOT DIRECTLY CONNECTED WITH THE OPERATION

OF ANY SUCH SPECIFIC ACTIVITY;

(E) TO SEASONAL AND CASUAL WORKERS;

PROVIDED FURTHER, THAT WITH THE EXCEPTION OF THE AGENCIES AND FUNCTIONS LISTED IN (B) THROUGH (E) ABOVE, NOT MORE THAN 90 PERCENTUM OF THE AMOUNTS SHOWN IN THE BUDGET ESTIMATES FOR PERSONAL SERVICES SHALL BE AVAILABLE FOR SUCH PURPOSE: PROVIDED FURTHER, THAT WHEN THE TOTAL NUMBER OF PERSONNEL SUBJECT TO THIS SECTION HAS BEEN REDUCED TO 90 PERCENTUM OF THE TOTAL PROVIDED FOR IN THE BUDGET ESTIMATES FOR 1952, THIS SECTION MAY CEASE TO APPLY.

PRELIMINARY TO RAISING THE QUESTION OF A COMPOSITE CEILING, IT IS STATED THAT INASMUCH AS THE MAJORITY OF THE REGULAR FULL-TIME EMPLOYEES OF THE GEOLOGICAL SURVEY ARE EMPLOYED INTERCHANGEABLY ON MANY DIFFERENT PROJECTS FINANCED FROM DIFFERENT APPROPRIATIONS, ADVANCES, AND ALLOCATIONS, IT IS IMPRACTICABLE TO EARMARK EACH POSITION AS GOVERNED BY A SINGLE APPROPRIATION ACT, AND THAT, FOR SUCH REASON, IT WOULD APPEAR THAT THE PROVISIONS OF THE JENSEN AMENDMENT RELATING TO THE NUMBER OF VACANCIES THAT CAN BE FILLED UNTIL A CERTAIN LIMIT IS REACHED WOULD HAVE TO APPLY UPON A BUREAU-WIDE BASIS. SUCH A CONCLUSION IS SUBSTANTIALLY CORRECT. THAT IS TO SAY, THE GEOLOGICAL SURVEY SHOULD NOT FILL MORE THAN ONE OUT OF FOUR VACANCIES UNLESS THE FILLING OF THE PARTICULAR VACANCY IS WITHIN AN EXCEPTION COMMON TO THE JENSEN AMENDMENT IN ALL THE APPROPRIATIONS FROM WHICH SOME PART OF THE COMPENSATION OF THE POSITION IS PAID, OR IS EXPECTED TO BE PAID, FOR ANY PERIOD DURING THE FISCAL YEAR 1952, OR UNLESS THE APPROPRIATE PERSONNEL CEILING IS REACHED. OF COURSE, IF THE COMPENSATION OF A VACANT POSITION IS, WHEN FILLED, TO BE PAID SOLELY FROM FUNDS ADVANCED FROM AN APPROPRIATION SUBJECT TO NO LIMITATION AT ALL, THERE WOULD BE NO RESTRICTION UPON THE FILLING OF THE VACANCY. PERTINENT TO THE FOREGOING IS THE HOLDING IN DECISION OF SEPTEMBER 26, 1951, B- 105402, 31 COMP. GEN. 109, ANSWER TO QUESTION (E), TO THE EFFECT THAT ADVANCES TO A WORKING FUND ARE SUBJECT TO THE SAME JENSEN AMENDMENT RESTRICTIONS IN THE HANDS OF THE PERFORMING AGENCY AS WOULD BE THE CASE IF THE APPROPRIATION WERE BEING USED BY THE ADVANCING AGENCY.

THE METHOD FOR COMPUTING A COMPOSITE CEILING AND THE REASONS FOR THE SUGGESTION THEREOF ARE STATED IN THE LETTER UNDER CONSIDERATION, AS FOLLOWS:

SINCE SOME OF THE FUNDS AVAILABLE TO THE SURVEY ARE SUBJECT TO THE TERMS OF THE JENSEN AMENDMENT CONTAINED IN THE INTERIOR DEPARTMENT APPROPRIATION ACT PROVIDING FOR AN EVENTUAL CEILING OF 90 PERCENT OF THE TOTAL PROVIDED FOR IN THE BUDGET ESTIMATES FOR 1952, OTHERS ARE SUBJECT TO A JENSEN AMENDMENT PROVIDING FOR AN EVENTUAL CEILING OF 90 PERCENT OF JULY 1 ACTUAL EMPLOYMENT E.G., SEC. 605 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, PUBLIC LAW 137, 82ND CONGRESS), AND OTHERS PRESUMABLY WILL BE SUBJECT TO NO LIMITATION AT ALL (E) G., H.R. 5054, DEPARTMENT OF DEFENSE APPROPRIATION ACT IN THE FORM PASSED BY THE HOUSE OF REPRESENTATIVES ON AUGUST 9, 1951), IT APPEARS REASONABLE TO ESTABLISH AN OVER-ALL FULL-TIME PERSONNEL CEILING FOR THE BUREAU ON THE BASIS OF THE SUM OF INDIVIDUAL CEILINGS CALCULATED BY AN ANALYSIS OF EACH SOURCE OF FUNDS. THIS TOTAL WOULD BE A COMPOSITE CEILING GIVING EFFECT TO THE TERMS OF THE JENSEN AMENDMENTS AS CONTAINED IN APPLICABLE APPROPRIATION ACTS, AND WOULD BE SUBJECT TO ADJUSTMENT FROM TIME TO TIME ACCORDING TO CHANGES IN AMOUNTS OF FUNDS MADE AVAILABLE FROM VARIOUS SOURCES. FOR EXAMPLE, SUCH A CEILING WOULD INCLUDE FOR INTERIOR DEPARTMENT APPROPRIATIONS, 90 PERCENT OF THE PERMANENT POSITIONS INCLUDED IN THE REGULAR 1952 BUDGET ESTIMATES, AND IT WOULD INCLUDE 100 PERCENT OF THE ESTIMATED NUMBER OF POSITIONS REQUIRED TO CARRY OUT THE PROGRAMS TO BE FINANCED BY ADVANCES FROM MILITARY FUNCTIONS APPROPRIATIONS AND OTHERS NOT SUBJECT TO LIMITATION.

IN THE DECISION OF SEPTEMBER 26, 1951, CITED ABOVE, ANSWER TO QUESTION (C), IT WAS HELD THAT THE RESTRICTION IN THE JENSEN AMENDMENT (SECTION 605) TO THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, APPROVED AUGUST 31, 1951, 65 STAT. 292, AGAINST THE FILLING OF VACANCIES APPLIES TO EACH INDIVIDUAL APPROPRIATION OR AUTHORIZATION CONTAINED IN THE ACT BUT THAT THE 90 PERCENT CEILING, WHICH WHEN REACHED AND NOT EXCEEDED, PERMITS THE UNRESTRICTED FILLING OF VACANCIES, IS FOR DETERMINATION UPON THE BASIS OF THE LANGUAGE IN THE THIRD PROVISO OF SECTION 305 OF THE INTERIOR DEPARTMENT APPROPRIATION ACT," THAT WHEN THE TOTAL NUMBER OF PERSONNEL SUBJECT TO THIS SECTION HAS BEEN REDUCED TO 90 PERCENTUM OF THE TOTAL PROVIDED FOR IN THE BUDGET ESTIMATES FOR 1952, THIS SECTION MAY CEASE TO APPLY" ( ITALICS SUPPLIED), THE SAME RULE IS FOR APPLICATION HERE. HENCE, IT IS UNNECESSARY TO DETERMINE A PERSONNEL CEILING SPECIFICALLY FOR THE GEOLOGICAL SURVEY.

FOR THE PURPOSE OF ARRIVING AT THE FIGURE WHICH IS TO CONSTITUTE A CEILING FOR THE INTERIOR DEPARTMENT, IT IS CONCLUDED, IN VIEW OF THE COMPLEXITIES INHERENT IN THE SITUATION HERE INVOLVED, THAT THERE MAY BE APPLIED THE CEILING FORMULA SET FORTH IN SECTION 305 OF THE INTERIOR DEPARTMENT APPROPRIATION ACT, DISREGARDING ANY FORMULA WHICH MIGHT BE DIFFERENT FOR THE ADVANCING DEPARTMENT OR ESTABLISHMENT.

IN DETERMINING THE NUMBER OF PERSONS IN THE BUDGET ESTIMATES FOR THE GEOLOGICAL SURVEY WHICH MUST BE INCLUDED IN ARRIVING AT "THE TOTAL PROVIDED FOR IN THE BUDGET ESTIMATES FOR 1952," 90 PERCENT OF WHICH IS TO CONSTITUTE A PERSONNEL CEILING FOR THE INTERIOR DEPARTMENT, THERE MAY BE APPLIED IN PRINCIPLE THE SUGGESTION IN THE ABOVE-QUOTED PORTION OF THE ACTING SECRETARY'S LETTER, IN THAT THERE NEED BE INCLUDED ONLY THE AGGREGATE NUMBER OF PERSONNEL SHOWN IN CONNECTION WITH ESTIMATED DIRECT APPROPRIATIONS AND IN CONNECTION WITH ANTICIPATED ADVANCES FROM OTHER APPROPRIATIONS WHICH, WHEN FINALLY GRANTED BY THE CONGRESS, ARE SUBJECT TO A VACANCY FILLING RESTRICTION SIMILAR TO THAT IMPRESSED UPON FUNDS APPROPRIATED TO THE INTERIOR DEPARTMENT--- ESTIMATED PERSONNEL SHOWN IN CONNECTION WITH ANTICIPATED ADVANCES FROM APPROPRIATIONS NOT SUBJECT TO SUCH A RESTRICTION BEING EXCLUDED.

THE NUMBER OF EMPLOYEES OF THE GEOLOGICAL SURVEY THAT MUST BE TAKEN INTO ACCOUNT IN DETERMINING WHETHER ACTUAL EMPLOYMENT IN THE INTERIOR DEPARTMENT IS WITHIN THE 90 PERCENT CEILING MAY BE REGARDED AS THE TOTAL NUMBER OF EMPLOYEES OF THE GEOLOGICAL SURVEY OF THE CLASSES NOT EXCEPTED FROM SECTION 305 OF THE INTERIOR DEPARTMENT APPROPRIATION ACT, LESS THE NUMBER IN SUCH CLASSES ATTRIBUTABLE TO ADVANCES FROM APPROPRIATIONS NOT SUBJECT TO A VACANCY-FILLING RESTRICTION OF THE NATURE HERE INVOLVED. FAR AS CONCERNS THIS OFFICE, ANY METHOD WHICH WILL PRODUCE A REASONABLY ACCURATE APPROXIMATION OF THE NUMBER SO ATTRIBUTABLE WILL BE ACCEPTABLE.

ONCE THE CEILING FOR THE INTERIOR DEPARTMENT HAS BEEN REACHED BY TAKING INTO ACCOUNT ALL PERSONNEL UNDER THE GEOLOGICAL SURVEY, AMONG OTHERS, AS EXPLAINED ABOVE, WORKING FUNDS MAY BE USED BY THE GEOLOGICAL SURVEY FOR THE PAYMENT OF COMPENSATION WITHOUT REGARD TO THE NUMBER OF EMPLOYEES IN THE ADVANCING DEPARTMENT OR AGENCY IN RELATION TO THE PERSONNEL CEILING FOR SUCH DEPARTMENT OR AGENCY.