B-12598, OCTOBER 9, 1940, 20 COMP. GEN. 192

B-12598: Oct 9, 1940

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1940: I HAVE YOUR LETTER OF SEPTEMBER 26. AS FOLLOWS: YOUR ATTENTION IS RESPECTFULLY DIRECTED TO SECTION 702 OF THE LABOR FEDERAL SECURITY APPROPRIATION ACT. IF THE EFFECT OF SUCH APPOINTMENT IS TO INCREASE THE NUMBER OF NON-CIVIL-SERVICE EMPLOYEES FROM THE STATE OF RESIDENCE OF ANY SUCH NON-CIVIL-SERVICE APPOINTEE BEYOND THE NUMBER OF NON-CIVIL-SERVICE EMPLOYEES TO WHICH SUCH STATE IS ENTITLED. THE APPOINTMENT OF WHICH IS MADE BY THE PRESIDENT: PROVIDED FURTHER. IT HAS BEEN MY POSITION THAT SECTION 702 PLACES NO LIMITATION ON ANY SUCH TRANSFER OF EMPLOYEES BUT THAT ITS APPLICATION IS TO THE APPOINTMENT OF NEWLY RECRUITED PERSONNEL ONLY. WHERE ALL OF THE PERSONNEL IS NON-CIVIL-SERVICE.

B-12598, OCTOBER 9, 1940, 20 COMP. GEN. 192

APPOINTMENTS TO NON-CIVIL-SERVICE POSITIONS - APPORTIONMENT RESTRICTIONS SECTION 702 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1941, PROVIDING FOR APPORTIONMENT BY STATES, ON A BASIS OF POPULATION, OF APPOINTMENTS TO NON-CIVIL-SERVICE POSITIONS UNDER APPROPRIATIONS IN SAID ACT, RESTRICTS ORIGINAL APPOINTMENTS BUT DOES NOT PROHIBIT THE TRANSFER OF PERSONNEL BETWEEN STATE, REGIONAL, AND DEPARTMENTAL OFFICES, IF OTHERWISE AUTHORIZED BY LAW. A FIELD-SERVICE EMPLOYEE PAID FROM FUNDS APPROPRIATED BY THE LABOR FEDERAL SECURITY APPROPRIATION ACT, 1941, WHOSE ORIGINAL APPOINTMENT FALLS WITHIN EITHER OF THE EXCEPTIONS TO SECTION 702 OF SAID ACT, WHICH PROVIDES FOR APPORTIONMENT BY STATES OF APPOINTMENTS TO NON-CIVIL SERVICE POSITIONS, MAY NOT BE TRANSFERRED TO THE DEPARTMENTAL SERVICE IF THE QUOTA OF NON-CIVIL-SERVICE EMPLOYEES OF THE STATE OF HIS RESIDENCE WOULD BE EXCEEDED THEREBY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE FEDERAL SECURITY ADMINISTRATOR, OCTOBER 9, 1940:

I HAVE YOUR LETTER OF SEPTEMBER 26, 1940, AS FOLLOWS:

YOUR ATTENTION IS RESPECTFULLY DIRECTED TO SECTION 702 OF THE LABOR FEDERAL SECURITY APPROPRIATION ACT, 1941, AS FOLLOWS:

"NONE OF THE FUNDS APPROPRIATED IN THIS ACT SHALL BE USED TO PAY THE SALARY OF ANY PERSON APPOINTED TO A NON-CIVIL-SERVICE POSITION, UNDER THE APPROPRIATIONS IN THE RESPECTIVE TITLES IN THIS ACT, IF THE EFFECT OF SUCH APPOINTMENT IS TO INCREASE THE NUMBER OF NON-CIVIL-SERVICE EMPLOYEES FROM THE STATE OF RESIDENCE OF ANY SUCH NON-CIVIL-SERVICE APPOINTEE BEYOND THE NUMBER OF NON-CIVIL-SERVICE EMPLOYEES TO WHICH SUCH STATE IS ENTITLED, UNDER THE APPROPRIATIONS IN THE RESPECTIVE TITLES OF THIS ACT, ON A BASIS OF POPULATION: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO ANY POSITION, THE APPOINTMENT OF WHICH IS MADE BY THE PRESIDENT: PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY TO POSITIONS IN THE CIVILIAN CONSERVATION CORPS OUTSIDE THE DISTRICT OF COLUMBIA.'

IN THE APPLICATION OF THE PROVISIONS OF THE ABOVE-QUOTED SECTION TO TITLE II OF THE ACT (THE FEDERAL SECURITY AGENCY APPROPRIATION ACT, 1941) THIS AGENCY HAS ENCOUNTERED SEVERAL QUESTIONS ARISING FROM THE ORDINARY TRANSFER OF PERSONNEL BETWEEN THE STATE, REGIONAL, AND DEPARTMENTAL OFFICES. MANIFESTLY, EFFICIENT ADMINISTRATION REQUIRES TRANSFER OF TRAINED PERSONNEL FROM STATE OFFICES TO POSITIONS IN REGIONAL AND DEPARTMENTAL OFFICES WHERE EXPERIENCE PECULIARLY FITS SUCH PERSONNEL FOR THE PERFORMANCE OF DUTIES IN RESPONSIBLE POSITIONS. LESS FREQUENTLY, EFFICIENT ADMINISTRATION CALLS FOR THE TRANSFER OF DEPARTMENTAL PERSONNEL TO REGIONAL AND STATE OFFICES. IT HAS BEEN MY POSITION THAT SECTION 702 PLACES NO LIMITATION ON ANY SUCH TRANSFER OF EMPLOYEES BUT THAT ITS APPLICATION IS TO THE APPOINTMENT OF NEWLY RECRUITED PERSONNEL ONLY.

FOR INSTANCE, IN THE NATIONAL YOUTH ADMINISTRATION, WHERE ALL OF THE PERSONNEL IS NON-CIVIL-SERVICE, TRANSFER OF EMPLOYEES FROM STATE TO REGIONAL OFFICES AND TO THE WASHINGTON OFFICE IS NOT INFREQUENTLY FOUND ADVISABLE. PARAGRAPH 16 OF THE NATIONAL YOUTH ADMINISTRATION APPROPRIATION ACT 1941 REQUIRES:

"APPOINTMENTS IN ANY STATE TO FEDERAL POSITIONS OF AN ADMINISTRATIVE OR ADVISORY CAPACITY UNDER THE APPROPRIATION IN PARAGRAPH 2 SHALL BE MADE FROM AMONG THE BONA FIDE CITIZENS OF THAT STATE SO FAR AS NOT INCONSISTENT WITH EFFICIENT ADMINISTRATION.'

ACCORDINGLY, APPOINTMENTS TO VACANCIES IN THE STATE OFFICE OF AN OVERQUOTA STATE NEVERTHELESS WOULD BE MADE FROM BONA FIDE CITIZENS OF THAT STATE AND SUCH APPOINTEES, IT IS MY UNDERSTANDING, WOULD NOT BE CHARGED TO THE QUOTA FOR THE PURPOSES OF SECTION 702 OF THE LABOR FEDERAL SECURITY APPROPRIATION ACT, 1941. HOWEVER, EFFICIENT ADMINISTRATION MAY REQUIRE THE TRANSFER OF CERTAIN OF THESE STATE OFFICE EMPLOYEES TO POSITIONS IN THE REGIONAL OFFICE OR TO THE WASHINGTON OFFICE, WHEREUPON I ASSUME THAT THE TRANSFERRED EMPLOYEE WOULD BE CHARGED TO THE STATE'S QUOTA IN DETERMINING WHETHER ANY FUTURE APPOINTMENT OF A CITIZEN OF THAT STATE IS PROHIBITED IN SECTION 702. YET, IT IS MY POSITION THAT SUCH A TRANSFER, AS DISTINGUISHED FROM A NEW APPOINTMENT, WOULD NOT BE PROHIBITED BY SECTION 702.

LIKEWISE, SHOULD IT BE FOUND ADMINISTRATIVELY DESIRABLE TO TRANSFER PERSONNEL FROM THE WASHINGTON OFFICE OR FROM A REGIONAL OFFICE TO THE STATE OFFICE IN AN OVERQUOTA STATE, I ASSUME THAT ANY RESIDENT OF THAT STATE SO TRANSFERRED WOULD NO LONGER BE CHARGED TO THE STATE QUOTA IN DETERMINING THE PERMISSIBILITY, UNDER SECTION 702, OF ANY FUTURE APPOINTMENT OF A CITIZEN OF THAT STATE TO THE REGIONAL OR DEPARTMENTAL SERVICE.

IN SUMMATION, IT IS MY POSITION THAT FUNDS WOULD BE AVAILABLE UNDER THE FEDERAL SECURITY AGENCY APPROPRIATION ACT, 1941 FOR THE PAYMENT OF SALARIES OF EMPLOYEES TRANSFERRED BETWEEN THE STATE, REGIONAL, AND DEPARTMENTAL OFFICES REGARDLESS OF QUOTA, THE PROVISIONS OF SECTION 702 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1941 THUS RELATING TO THE APPOINTMENT OF NEW PERSONNEL ONLY.

YOUR ADVICE AS TO YOUR CONCURRENCE IN THE PREMISES WILL BE APPRECIATED.

IN DECISION B-11861 DATED SEPTEMBER 6, 1940, WHEREIN CONSIDERATION WAS GIVEN THE PROVISIONS OF SECTION 702 OF THE ACT OF JUNE 26, 1940, 54 STAT. 597, IT WAS STATED, IN PERTINENT PART THAT:

SECTION 702 OF THE ACT OF JUNE 26, 1940, PUBLIC, NO. 665, QUOTED IN YOUR LETTER, HAS THE EFFECT OF REQUIRING THE APPORTIONMENT OF POSITIONS OF ALL NON-CIVIL-SERVICE PERSONNEL, WITH THE EXCEPTIONS EXPRESSLY MENTIONED IN THE ACT, WHOSE SALARIES ARE PAID FROM THE FUNDS APPROPRIATED BY THE ACT, AND IS APPLICABLE TO THE FIELD SERVICE AS WELL AS TO THE DEPARTMENTAL SERVICE. COMPARE THE PROVISIONS OF THE CIVIL SERVICE ACT OF JANUARY 16, 1883, 22 STAT. 403, AND RULE VII, SECTION 2 OF THE CIVIL SERVICE REGULATIONS, EXECUTIVE ORDER NO. 7915, DATED JUNE 24, 1938, LIMITING APPORTIONMENT TO APPOINTMENTS AT WASHINGTON. THE TERM, "NON-CIVIL- SERVICE" IS USED IN THE STATUTE TO DESCRIBE "POSITION," "EMPLOYEES," AND "APPOINTEE," AND EVIDENTLY IS INTENDED TO BE USED TO DISTINGUISH POSITIONS, EMPLOYEES, AND APPOINTEES WITHIN THE CLASSIFIED CIVIL SERVICE FROM POSITIONS, EMPLOYEES, AND APPOINTEES NOT WITHIN THE CLASSIFIED CIVIL SERVICE. * * *

THE REFERRED-TO APPROPRIATION RESTRICTION IS CLEARLY DIRECTED AGAINST ANY "INCREASE" IN "THE NUMBER OF NON-CIVIL-SERVICE EMPLOYEES FROM THE STATE OF RESIDENCE OF ANY SUCH NON-CIVIL-SERVICE APPOINTEE BEYOND THE NUMBER OF NON -CIVIL-SERVICE EMPLOYEES TO WHICH SUCH STATE IS ENTITLED.' HENCE, THE RESTRICTION RELATES PRIMARILY TO THE INITIAL EMPLOYMENT ACTION, THAT IS, ORIGINAL APPOINTMENTS, AND WOULD NOT APPLY TO PROHIBIT THE TRANSFER OF PERSONNEL BETWEEN STATE, REGIONAL, AND DEPARTMENTAL OFFICES, IF OTHERWISE AUTHORIZED BY LAW, PROVIDED THE PERSONNEL WERE APPOINTED PRIOR TO JULY 1, 1940, OR THEIR ORIGINAL APPOINTMENTS ON AND AFTER THE DATE WERE PROPERLY APPORTIONED AS REQUIRED BY THE STATUTE.

PARAGRAPH 16 OF THAT PART OF THE CITED APPROPRIATION ACT APPEARING UNDER THE HEADING "1NATIONAL YOUTH ADMINISTRATION," 54 STAT. 593, QUOTED IN YOUR LETTER, RELATING TO APPOINTMENTS TO ADMINISTRATIVE POSITIONS IN THE FIELD SERVICE OF THE NATIONAL YOUTH ADMINISTRATION, APPEARS AS MUCH AN EXCEPTION TO THE RESTRICTION OF SECTION 702 OF THE ACT AS IF ACTUALLY INCLUDED IN A PROVISO THEREUNDER, SUCH AS WAS DONE IN THE CASE OF APPOINTMENTS "TO POSITIONS IN THE CIVILIAN CONSERVATION CORPS OUTSIDE THE DISTRICT OF COLUMBIA"--- QUOTING FROM THE SECOND PROVISO OF SAID SECTION 702. THERE WOULD BE NO AUTHORITY TO TRANSFER PERSONNEL, WHOSE ORIGINAL APPOINTMENTS FALL WITHIN EITHER OF THESE EXCEPTIONS, TO THE DEPARTMENTAL SERVICE, IF SUCH ACTION INCREASES THE NUMBER OF NON-CIVIL-SERVICE PERSONNEL FROM THE STATE OF RESIDENCE OF ANY SUCH NON-CIVIL-SERVICE APPOINTEE BEYOND THE NUMBER OF NON-CIVIL SERVICE EMPLOYEES TO WHICH SUCH STATE IS ENTITLED. OTHER WORDS, THE ADMINISTRATIVE OFFICE MAY NOT CIRCUMVENT THE RESTRICTION OF THE STATUTE BY THE PROCEDURE OF MAKING ORIGINAL APPOINTMENTS IN THE FIELD SERVICE OF THE CIVILIAN CONSERVATION CORPS OR THE FIELD SERVICE OF THE NATIONAL YOUTH ADMINISTRATION, UNDER THE EXCEPTIONS, AND TRANSFERRING THE APPOINTEES TO THE DEPARTMENTAL SERVICE. OF COURSE, THERE WOULD BE NO PROHIBITION AGAINST TRANSFER OF EMPLOYEES BETWEEN FIELD STATIONS OF THE CIVILIAN CONSERVATION CORPS WITHOUT REGARD TO APPORTIONMENT NOR BETWEEN FIELD STATIONS OF THE NATIONAL YOUTH ADMINISTRATION IF COMPLIANCE IS HAD WITH PARAGRAPH 16, SUPRA, OF THAT PART OF THE APPROPRIATION ACT COVERING THE NATIONAL YOUTH ADMINISTRATION.