B-105941, OCTOBER 8, 1951, 31 COMP. GEN. 128

B-105941: Oct 8, 1951

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DOES NOT INCLUDE MEDICAL PERSONNEL OF THE VETERANS ADMINISTRATION WHO ARE SPECIFICALLY EXCEPTED FROM THE INHIBITION BUT RELATES ONLY TO PERSONS OTHERWISE SUBJECT TO THE SECTION. SO THAT WHEN THE REDUCTION HAS RESULTED IN BRINGING THE ANNUAL TOTAL EMPLOYMENT DOWN TO OR BELOW THE 90 PERCENTUM FIGURE CONTAINED THEREIN THE SECTION SHALL CEASE TO APPLY UNTIL THAT FIGURE AGAIN IS EXCEEDED. 1951: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4. WHICH QUESTIONS ARE AS FOLLOWS: (1) DOES THE SECOND PROVISO OF SECTION 605. INDEPENDENT OFFICES APPROPRIATION ACT FOR THE FISCAL YEAR 1952 APPLY TO EMPLOYEES EXCEPTED FROM THE INHIBITIONS OF SECTION 605: (2) WILL THE PROVISIONS OF SECTION 605 WITH RESPECT TO FILLING ONLY ONE IN FOUR OF VACANCIES BE APPLICABLE IF AN IMMEDIATE REDUCTION IN FORCE IS MADE SO AS TO BRING THE CEILING BELOW 90 PERCENT OF THE EMPLOYEES TO WHICH THE SECTION AS A WHOLE IS APPLICABLE?

B-105941, OCTOBER 8, 1951, 31 COMP. GEN. 128

APPROPRIATIONS - LIMITATIONS - PERSONAL SERVICES RESTRICTION - INDEPENDENT OFFICES APPROPRIATION ACT, 1952 THE 90 PERCENTUM EMPLOYMENT LIMITATION IN SECTION 605 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, WHICH PROHIBITS THE EXPENDITURE OF FUNDS FOR PAYMENT OF COMPENSATION OF EMPLOYEES APPOINTED TO POSITIONS BECOMING VACANT DURING THE FISCAL YEAR 1952 TO A FIGURE NOT EXCEEDING 90 PERCENTUM OF THE TOTAL NUMBER OF EMPLOYEES ON THE ROLLS OF AN AGENCY AS OF JULY 1, 1951, DOES NOT INCLUDE MEDICAL PERSONNEL OF THE VETERANS ADMINISTRATION WHO ARE SPECIFICALLY EXCEPTED FROM THE INHIBITION BUT RELATES ONLY TO PERSONS OTHERWISE SUBJECT TO THE SECTION. AN IMMEDIATE REDUCTION IN FORCE BY AN AGENCY TO 90 PERCENTUM OF THE TOTAL NUMBER OF EMPLOYEES ON ITS ROLLS AS OF JULY 1, 1951, AS A RESULT OF THE OPERATION OF SECTION 605 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, RESTRICTING THE USE OF APPROPRIATED FUNDS FOR PAYMENT OF COMPENSATION OF EMPLOYEES APPOINTED TO POSITIONS BECOMING VACANT DURING THE FISCAL YEAR 1952, MAY BE CONSIDERED AS IN COMPLIANCE WITH SAID SECTION, SO THAT WHEN THE REDUCTION HAS RESULTED IN BRINGING THE ANNUAL TOTAL EMPLOYMENT DOWN TO OR BELOW THE 90 PERCENTUM FIGURE CONTAINED THEREIN THE SECTION SHALL CEASE TO APPLY UNTIL THAT FIGURE AGAIN IS EXCEEDED.

ACTING COMPTROLLER GENERAL YATES TO THE ADMINISTRATOR OF VETERANS AFFAIRS, OCTOBER 8, 1951:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4, 1951, PRESENTING FOR DECISION TWO QUESTIONS ARISING UNDER THE PROVISIONS OF SECTION 605, INDEPENDENT OFFICES APPROPRIATION ACT, 1952, 65 STAT. 292, WHICH QUESTIONS ARE AS FOLLOWS:

(1) DOES THE SECOND PROVISO OF SECTION 605, INDEPENDENT OFFICES APPROPRIATION ACT FOR THE FISCAL YEAR 1952 APPLY TO EMPLOYEES EXCEPTED FROM THE INHIBITIONS OF SECTION 605:

(2) WILL THE PROVISIONS OF SECTION 605 WITH RESPECT TO FILLING ONLY ONE IN FOUR OF VACANCIES BE APPLICABLE IF AN IMMEDIATE REDUCTION IN FORCE IS MADE SO AS TO BRING THE CEILING BELOW 90 PERCENT OF THE EMPLOYEES TO WHICH THE SECTION AS A WHOLE IS APPLICABLE?

WITH RESPECT TO QUESTION (1), YOUR LETTER STATES THAT, OF THE TOTAL NUMBER OF EMPLOYEES OF THE VETERANS ADMINISTRATION (APPROXIMATELY 197,000) ALL BUT APPROXIMATELY 57,000 ARE IN THE DEPARTMENT OF MEDICINE AND SURGERY. YOUR FIRST QUESTION, THEREFORE, IS WHETHER THE SECOND PROVISO HAS REFERENCE TO 90 PERCENTUM OF THE 197,000 EMPLOYEES OR TO 90 PERCENTUM OF THE 57,000 EMPLOYEES.

SECTION 605 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1952, 65 STAT. 292, READS, IN PART, AS FOLLOWS:

SEC. 605. 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

APPOINTMENTS OF THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT

OF THE SENATE;

(D) TO EMPLOYEES OF THE WHITE HOUSE OFFICE;

(E) TO EMPLOYEES ENGAGED IN THE CARE, MAINTENANCE, AND SO FORTH, OF

THE EXECUTIVE MANSION AND GROUNDS;

(F) TO ALL EMPLOYEES IN VETERANS' MEDICAL FACILITIES, EXCLUSIVE

OF MEDICAL DEPARTMENTAL PERSONNEL IN THE DISTRICT OF COLUMBIA;

(G) TO EMPLOYEES OF THE GENERAL ACCOUNTING OFFICE;

(H) TO EMPLOYEES OF THE SMITHSONIAN INSTITUTION, INCLUDING THE

NATIONAL GALLERY OF ART;

(I) TO EMPLOYEES OF THE TAX COURT OF THE UNITED STATES:

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:

* * * ( ITALICS SUPPLIED.)

A LITERAL READING OF THE SECTION MIGHT, AT FIRST BLUSH, GIVE THE IMPRESSION THAT THE 90 PERCENTUM PROVISION RELATES TO THE OVERALL TOTAL EMPLOYMENT OF AN AGENCY ON THE BASIS THAT, WHILE CERTAIN PERSONNEL ARE EXCEPTED FROM THE INHIBITION OF THE SECTION, THERE IS NO EXPRESS EXCEPTION OF SUCH PERSONNEL FROM THE SECTION AS A WHOLE. BUT I DO NOT BELIEVE SUCH A CONCLUSION IS NECESSARY OR EVEN PROPER. THE MEDICAL PERSONNEL EXCEPTED FROM THE INHIBITION WOULD SEEM TO BE IN PRECISELY THE SAME POSITION AS OTHER PERSONNEL SO EXCEPTED AND CERTAINLY IT CANNOT BE SAID THAT ANY PART OF THE SAID SECTION 605 APPLIES TO "EMPLOYEES OF THE GENERAL ACCOUNTING OFFICE," TO "EMPLOYEES OF THE SMITHSONIAN INSTITUTION," OR TO "EMPLOYEES OF THE TAX COURT OF THE UNITED STATES.' FURTHERMORE, THE PROPER OFFICE OF A PROVISO IS TO LIMIT OR RESTRICT AN ENACTMENT, NOT TO ENLARGE UPON IT OR INTRODUCE NEW MATTER. THE APPLICATION OF THIS GENERAL RULE WOULD REQUIRE THE CONCLUSION THAT THE 90 PERCENTUM PROVISION RELATES ONLY TO THE PERSONS OTHERWISE SUBJECT TO THE SECTION. IF THERE WERE ANY DOUBT AS TO THIS CONCLUSION, A MOST PERSUASIVE ARGUMENT IN FAVOR THEREOF COULD BE MADE, IN THE LIGHT OF THE LEGISLATIVE BACKGROUND OF SECTION 605, BY THE FACT THAT IN ALL OTHER APPROPRIATION ACTS TO WHICH A SIMILAR GENERAL PROVISION HAS BEEN APPLIED, THE CONGRESS HAS MORE CLEARLY SPELLED OUT THAT THE 90 PERCENTUM RELATES ONLY TO THE EMPLOYEES NOT EXCEPTED FROM THE INHIBITION OF THE SECTION. SEE, FOR EXAMPLE, THE LANGUAGE IN THE APPROPRIATION ACTS FOR THE FISCAL YEAR 1952 FOR THE DEPARTMENT OF THE INTERIOR, THE DEPARTMENT OF AGRICULTURE AND THE DEPARTMENT OF LABOR--- FEDERAL SECURITY AGENCY. YOUR FIRST QUESTION, THEREFORE, IS ANSWERED IN THE NEGATIVE.

WITH RESPECT TO YOUR SECOND QUESTION IT IS UNDERSTOOD THAT THE PROPOSED REDUCTION IN FORCE WOULD NOT BE MADE HAD NOT SECTION 605, OR A SIMILAR SECTION, BEEN INCLUDED IN THE APPROPRIATION ACT FOR YOUR AGENCY; THAT AMPLE FUNDS ARE AVAILABLE TO YOU FOR THE CONTINUED EMPLOYMENT OF ALL PERSONNEL NOW ON THE ROLLS OR ON THE ROLLS AS OF JULY 1, 1951; THAT THE REDUCTION IN FORCE IS NOT THE RESULT OF A LACK OF WORK OR A REDUCED WORKLOAD (IT IS UNDERSTOOD THE WORKLOAD HAS OR WILL INCREASE); THAT THE REDUCTION IN FORCE IS PROPOSED MERELY FOR ADMINISTRATIVE PURPOSES IN ORDER TO CONTROL AND MAINTAIN A BALANCED ORGANIZATION, AT THE SAME TIME EFFECTING THE ECONOMIES REQUIRED BY SECTION 605; AND THAT, UNLESS THE REDUCTION CAN BE EFFECTED IN THIS MANNER, AS IN COMPLIANCE WITH SAID SECTION, THE REDUCTION IN FORCE PROGRAM WILL BE CANCELED. IT IS STATED IN YOUR LETTER THAT THIS REDUCTION IN FORCE IS PROPOSED AS A RESULT OF THE OPERATION OF SECTION 605.

YOUR ARE AWARE, OF COURSE, OF THE ANSWER TO QUESTION "G" IN DECISION B- 105402, SEPTEMBER 26, 1951, 31 C.G. 109, TO THE DIRECTOR, BUREAU OF THE BUDGET. OBVIOUSLY, HOWEVER, THE FACTS RELATED ABOVE ARE ENTIRELY DIFFERENT FROM THOSE CONSIDERED IN THE SEPTEMBER 26 DECISION, AND NOTHING STATED IN THAT DECISION REQUIRES THE SAME CONCLUSION HERE. AS YOU STATE ONE PURPOSE OF SECTION 605 WAS TO PROVIDE A "PAINLESS" METHOD OF REDUCING PERSONNEL. BUT ITS PRIMARY PURPOSE WAS TO EFFECT SAVINGS IN PERSONNEL COSTS AND THERE IS NOTHING IN THE SECTION OR ITS LEGISLATIVE HISTORY WHICH WOULD PREVENT THIS PRIMARY PURPOSE BEING ACCOMPLISHED ALL AT ONE TIME, RATHER THAN THROUGH NORMAL ATTRITION OVER A LONG PERIOD.

ON THE BASIS OF THE FACTS STATED IN YOUR LETTER IT IS MY VIEW THAT SUCH A REDUCTION IN FORCE MAY BE ACCOMPLISHED AS IN COMPLIANCE WITH SECTION 605 AND THAT, WHEN THE REDUCTION HAS RESULTED IN BRINGING YOUR ORGANIZATION DOWN TO OR BELOW THE 90 PERCENTUM FIGURE, THE SAID SECTION SHALL CEASE TO APPLY UNTIL THAT 90 PERCENTUM FIGURE AGAIN IS EXCEEDED. YOUR SECOND QUESTION ALSO IS ANSWERED IN THE NEGATIVE.