B-13357, NOVEMBER 15, 1940, 20 COMP. GEN. 263

B-13357: Nov 15, 1940

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

- INDICATES A STATE IS ENTITLED TO A FRACTIONAL PART OF AN EMPLOYEE. IT IS DETERMINED PROPER FOR ADMINISTRATIVE PURPOSES TO APPOINT ONE EMPLOYEE FROM SUCH STATE. THE GENERAL ACCOUNTING OFFICE WILL INTERPOSE NO OBJECTION TO SUCH APPOINTMENT. 1940: I HAVE YOUR LETTER OF NOVEMBER 5. 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 ON NON-CIVIL-SERVICE EMPLOYEES TO WHICH SUCH STATE IS ENTITLED. THAT THIS SECTION SHALL NOT APPLY TO ANY POSITION THE APPOINTMENT OF WHICH IS MADE BY THE PRESIDENT: PROVIDED FURTHER. THIS AGENCY WAS PROCEEDING ON THE THEORY THAT IN MAKING THE REQUIRED COMPUTATIONS.

B-13357, NOVEMBER 15, 1940, 20 COMP. GEN. 263

APPOINTMENTS TO NON-CIVIL-SERVICE POSITIONS - APPORTIONMENT RESTRICTIONS WHERE THE COMPUTATION OF STATE QUOTAS UNDER SECTION 702 OF THE LABOR FEDERAL SECURITY APPROPRIATION ACT, 1941--- WHICH PROVIDES FOR APPORTIONMENT BY STATES OF APPOINTMENTS TO NON-CIVIL-SERVICE POSITIONS UNDER APPROPRIATIONS IN SAID ACT--- INDICATES A STATE IS ENTITLED TO A FRACTIONAL PART OF AN EMPLOYEE, AND IT IS DETERMINED PROPER FOR ADMINISTRATIVE PURPOSES TO APPOINT ONE EMPLOYEE FROM SUCH STATE, THE GENERAL ACCOUNTING OFFICE WILL INTERPOSE NO OBJECTION TO SUCH APPOINTMENT.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, NOVEMBER 15, 1940:

I HAVE YOUR LETTER OF NOVEMBER 5, 1940, AS FOLLOWS:

SECTION 702 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1941, PROVIDES 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 ON 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 CARRYING OUT THIS PROVISION OF LAW, THIS AGENCY WAS PROCEEDING ON THE THEORY THAT IN MAKING THE REQUIRED COMPUTATIONS, FRACTIONAL PARTS OF EMPLOYEES SHOULD BE OVERLOOKED, I.E., IF A STATE IS ENTITLED TO A CERTAIN NUMBER OF WHOLE EMPLOYEES AND A FRACTIONAL PORTION OF ANOTHER, THE FRACTION SHOULD NOT BE RECOGNIZED. HOWEVER, ON AUGUST 28, 1940, THE ATTORNEY GENERAL, IN AN OPINION TO THE PRESIDENT (39 OP. ATTY. GEN. 137), HELD THAT WHERE A STATE IS ENTITLED TO A FRACTIONAL PART OF AN EMPLOYEE, ONE EMPLOYEE MAY BE APPOINTED. ON THAT THEORY, IT WOULD APPEAR THAT IF A STATE IS ENTITLED TO A CERTAIN NUMBER OF WHOLE EMPLOYEES AND A FRACTION, THE FRACTION SHOULD BE RECOGNIZED AND THAT ANOTHER EMPLOYEE COULD BE APPOINTED; THAT IS, IF A STATE IS ENTITLED TO TWO AND A QUARTER EMPLOYEES, FOR INSTANCE, THREE SHOULD BE ALLOTTED TO IT. THIS HAS, OF COURSE, RAISED A QUESTION WITHIN THE AGENCY AS TO WHETHER ITS INTERPRETATION IS CORRECT, AND IT WOULD BE GLAD TO HAVE YOU CONSIDER THE MATTER AND GIVE IT THE BENEFIT OF YOUR INTERPRETATION.

INCIDENTALLY, UNDER THE APPORTIONMENT TABLE THAT HAS BEEN PREPARED BY THE AGENCY, NO STATE (OR THE DISTRICT OF COLUMBIA) IS ENTITLED TO LESS THAN ONE EMPLOYEE.

IN THE OPINION OF THE ATTORNEY GENERAL DATED AUGUST 28, 1940, TO WHICH YOU REFER THE FOLLOWING QUESTION AND ANSWER WERE STATED:

(2) IN THE FILLING OF NONCIVIL-SERVICE POSITIONS, AS CONTEMPLATED IN SECTION 702 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1941, MAY STAFF EMPLOYEES OR REFEREES AND ARBITRATORS, IF ADJUDGED WITHIN THE PROVISIONS OF THE ACT, BE APPOINTED FROM A STATE WHICH IS ENTITLED UNDER ITS QUOTA TO ONLY A FRACTIONAL PART OF AN EMPLOYEE; IF SO, MUST THE FRACTION BE IN EXCESS OF ONE-HALF BEFORE AN APPOINTMENT THEREFROM CAN BE MADE?

IN CONNECTION WITH STAFF EMPLOYEES OF THE BOARD WHO ARE SUBJECT TO THE PROVISIONS OF SECTION 702, IT IS MY OPINION THAT IN CASES WHERE THE REQUIRED COMPUTATION INDICATES THAT A STATE IS ENTITLED TO A FRACTIONAL PART OF AN EMPLOYEE, ONE EMPLOYEE MAY BE APPOINTED. THIS CONCLUSION IS REQUIRED BECAUSE ANY OTHER WOULD LEAD TO ABSURDITY AND MAKE THE STATUTE UNWORKABLE; AND THIS IS PARTICULARLY TRUE WITH RESPECT TO THE NATIONAL MEDIATION BOARD, WHOSE EMPLOYEES ARE LESS IN NUMBER THAN THE STATES AMONG WHICH THEY ARE TO BE APPORTIONED.

IN THE USE OF FRACTIONS THE GENERAL RULE IS TO DROP ANY FRACTION LESS THAN ONE-HALF AND TO CONSIDER A FRACTION OF ONE-HALF OR MORE AS A WHOLE NUMBER. IT IS THE VIEW OF THIS OFFICE THAT THE RULE HERETOFORE ADOPTED BY THE FEDERAL SECURITY AGENCY STATED IN YOUR LETTER, OF DROPPING ANY FRACTION OF AN EMPLOYEE IN APPLYING THE APPORTIONMENT RESTRICTION IN QUESTION ON THE USE OF APPROPRIATED FUNDS FOR PAYMENT OF SALARIES OF NONCIVIL-SERVICE EMPLOYEES, IS MORE NEARLY IN ACCORDANCE WITH THE GENERAL RULE THAN THAT STATED BY THE ATTORNEY GENERAL.

HOWEVER, AS THERE IS INVOLVED HERE PRIMARILY A QUESTION OF ELIGIBILITY FOR APPOINTMENT IN THE FEDERAL SERVICE, THIS OFFICE, IN APPLYING THE APPROPRIATION RESTRICTION IN THE AUDIT OF ACCOUNTS, WILL INTERPOSE NO OBJECTION SHOULD YOU DEEM IT PROPER FOR ADMINISTRATIVE PURPOSES, IN DETERMINING STATE QUOTAS, TO ADOPT THE VIEW OF THE ATTORNEY GENERAL IN REGARD TO "FRACTIONAL PARTS OF MPLOYEES" AS EXPRESSED IN THE QUOTED OPINION.

Sep 27, 2016

Sep 22, 2016

Sep 21, 2016

Sep 20, 2016

Looking for more? Browse all our products here