B-13405, NOVEMBER 19, 1940, 20 COMP. GEN. 267

B-13405, NOVEMBER 19, 1940, 20 COMP. GEN. 267

COMPENSATION - PRIOR TO APPOINTMENT THE ESTABLISHED RULE THAT COMPENSATION MAY NOT BE PAID AN EMPLOYEE FOR ANY PERIOD PRIOR TO THE EFFECTIVE DATE OF HIS APPOINTMENT AND THAT THE APPOINTMENT MAY NOT BE MADE RETROACTIVELY EFFECTIVE TO COVER SERVICES RENDERED IS APPLICABLE IN THE CASE OF AN EMPLOYEE SERVING WITHOUT AN APPOINTMENT IN CONNECTION WITH THE SELECTIVE SERVICE SYSTEM, AND SAID EMPLOYEE MUST BE REGARDED AS EITHER A VOLUNTEER, OR AS FURNISHING GRATUITOUS SERVICE AND NOT ENTITLED TO COMPENSATION IN EITHER EVENT.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, SELECTIVE SERVICE SYSTEM, NOVEMBER 19, 1940:

I HAVE YOUR LETTER OF NOVEMBER 8, 1940, AS FOLLOWS:

UNDER DATE OF OCTOBER 10, 1940, THE ADMINISTRATIVE OFFICER, SELECTIVE SERVICE SYSTEM, ADDRESSED A LETTER TO THE UNITED STATES CIVIL SERVICE COMMISSION, WASHINGTON, D.C., AS FOLLOWS:

"THE SELECTIVE TRAINING AND SERVICE ACT WAS APPROVED SEPTEMBER 16, 1940, ALTHOUGH THE ACT APPROPRIATING FUNDS FOR CARRYING OUT THE PROVISIONS OF THE SELECTIVE-SERVICE LAW WAS NOT APPROVED UNTIL OCTOBER 8, 1940. DURING THE FORMATIVE STAGES OF THE ORGANIZATION AND IN ORDER TO CARRY ON THE VAST AMOUNT OF PRELIMINARY WORK, IT HAS BEEN NECESSARY TO FUNCTION WITH PERSONNEL BORROWED FROM OTHER AGENCIES OF THE GOVERNMENT, MOSTLY ON A REIMBURSABLE BASIS.

"DURING THE PERIOD WHEN THE SELECTIVE TRAINING AND SERVICE ACT WAS UNDER CONSIDERATION BY CONGRESS, ONE OF THE MOST IMPORTANT FUNCTIONS WAS THAT OF THE PUBLIC/RELATIONS OFFICER. THIS OFFICER AND HIS ASSISTANTS WERE REQUIRED TO FURNISH THE PUBLIC AT LARGE, THROUGH EVERY POSSIBLE MEANS, SUCH AS THE NEWSPAPERS, MAGAZINES OF ALL CLASSES, BROADCASTING SYSTEMS, SCHOOLS, VARIOUS ORGANIZATIONS, PUBLIC SPEAKERS, ETC., WITH CURRENT INFORMATION CONCERNING THE PROGRESS OF THE BILL THROUGH THE CONGRESS AND WITH THE TENTATIVE PLANS OF THE WAR DEPARTMENT AND OTHER AGENCIES FOR CARRYING OUT THE PROVISIONS OF THE SELECTIVE SERVICE SYSTEM. THE VOLUME OF WORK IN THE PUBLICITY SECTION CONTINUES UNABATED. NOW THAT THE FIRST REGISTRATION DATE HAS BEEN SET FOR OCTOBER 16, 1940, THERE IS HARDLY A HOME IN THE UNITED STATES THAT WILL NOT BE CONCERNED IN SOME MANNER, EITHER DIRECTLY OR INDIRECTLY, WITH THE REQUIREMENTS FOR THE REGISTRATION OF THE MANPOWER OF THE COUNTRY, AND ALSO WITH THE LATER SELECTION OF THOSE WHO WILL BE CALLED UPON TO SERVE IN THE MILITARY FORCES. IT IS BECOMING INCREASINGLY MORE IMPORTANT THEREFORE, TO EXERCISE CONSIDERABLE CONTROL OVER THE INFORMATION RELEASED ON THIS SUBJECT TO INSURE THAT ONLY THE TRUE FACTS ARE MADE AVAILABLE TO THE PUBLIC.

"IN ADDITION TO THE PERSONNEL LOANED FROM OTHER GOVERNMENT AGENCIES, NUMEROUS OTHER AGENCIES HAVE BEEN OF MATERIAL ASSISTANCE IN THIS PUBLICITY WORK AND HAVE COOPERATED TO THE EXTENT OF PERMITTING SOME OF THEIR PUBLICITY EXPERTS TO GIVE OF THEIR FULL TIME OR PART TIME TO THIS WORK. PARTIAL LIST OF SUCH AGENCIES INCLUDES THE METRO-GOLDWYN MAYER STUDIO, THE NATIONAL BROADCASTING COMPANY, THE COLUMBIA BROADCASTING SYSTEM, OTHER BROADCASTING AGENCIES, AND THE STAFF OF PRINTERS INK OF NEW YORK.

"AS FUNDS ARE NOW AVAILABLE TO THE SELECTIVE SERVICE SYSTEM FOR THE PAYMENT OF SALARIES, STEPS ARE UNDER WAY TO APPOINT THE NECESSARY PERSONNEL ON THE SYSTEM'S OWN PAY ROLLS EITHER BY TRANSFERRING THOSE LOANED FROM OTHER ORGANIZATIONS, BY REINSTATEMENTS OR BY NEW APPOINTMENTS ALL TO BE IN ACCORDANCE WITH THE ESTABLISHED RULES AND REGULATIONS OF THE U.S. CIVIL SERVICE COMMISSION. DURING THE PROCESS OF REORGANIZING FOR THE PURPOSE OF GETTING THE REQUIRED PERSONNEL ON OUR OWN PAY ROLLS, THERE HAS DEVELOPED AN AWKWARD SITUATION IN THE CASE OF MR. JOHN SNURE, JR. IT APPEARS THAT ARRANGEMENTS WERE MADE TO BRING MR. SNURE INTO THE ORGANIZATION WITH THE INTENTION OF PLACING HIM ON THE PAY ROLL AT A SALARY RATE OF $3,200 PER ANNUM. ACCORDINGLY, MR. SNURE REPORTED AT THE ARMY WAR COLLEGE AND ENTERED ON DUTY SEPTEMBER 1, 1940. IN THE ABSENCE OF A PERSONNEL OFFICER FOR THE SELECTIVE SERVICE SYSTEM (OR THE JOINT ARMY AND NAVY SELECTIVE SERVICE COMMITTEE, AS IT WAS KNOWN AT THAT TIME), NO REPORT WAS MADE TO ANYONE FOR PLACING MR. SNURE ON THE PAY ROLL, AND DURING THE UNSETTLED CONDITION EXISTING AT THAT TIME WITH REGARD TO ADMINISTRATIVE PERSONNEL IT WAS ASSUMED THAT MR. SNURE WAS ONE OF THOSE WHO WAS GIVING HIS SERVICES ON A VOLUNTARY BASIS. THE TRUE SITUATION DID NOT DEVELOP UNTIL AFTER OCTOBER 1, 1940, WHEN INQUIRY WAS MADE AS TO WHY MR. SNURE HAD NOT RECEIVED ANY SALARY CHECK.

" MR. SNURE HAS HAD WIDE EXPERIENCE IN PUBLICITY WORK OF VARIOUS KINDS, AND THERE IS NO QUESTION BUT THAT HIS SERVICE SINCE SEPTEMBER 1,1940, HAS BEEN OF THE HIGHEST VALUE TO THE SELECTIVE SERVICE SYSTEM. IT IS EARNESTLY DESIRED TO PAY HIM FOR THE SERVICE HE HAS ALREADY RENDERED AND ALSO TO CONTINUE HIS EMPLOYMENT IN THE SAME LINE OF WORK.

" MR. SNURE HAS BEEN A 2ND LT. MILITARY INTELLIGENCE, RESERVE, SINCE 1937, AND AS A PART OF HIS DUTIES UNDER SUCH RESERVE COMMISSION WHILE IN AN INACTIVE STATUS HE MADE A STUDY OF AND RECEIVED SPECIALIZED TRAINING IN THE ORGANIZATION OF THE MILITARY FORCES, WITH SPECIAL REFERENCE TO THE RECRUITMENT OF THE MANPOWER; IN OTHER WORDS,"SELECTIVE SERVICE.' DUE TO A PHYSICAL INCAPACITY WHICH HAS DEVELOPED SINCE THE TIME OF MR. SNURE'S APPOINTMENT AS A 2ND LIEUTENANT, IT IS NOT POSSIBLE TO ASSIGN HIM TO ACTIVE DUTY AT THIS TIME AS A COMMISSIONED OFFICER. IT IS CONSIDERED THAT THIS CASE IS OF SUCH NATURE THAT EMPLOYMENT IS FULLY JUSTIFIED UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 8257, DATED SEPTEMBER 21, 1939. MR. SNURE'S STATEMENT OF TRAINING AND EXPERIENCE IS ATTACHED ON CIVIL SERVICE FORM 375. THERE IS ALSO ATTACHED CLASSIFICATION SHEET, FORM 2391, DESCRIBING THE DUTIES OF THIS PROPOSED CAF-9 POSITION AT $3,200 PER ANNUM.

"YOUR FAVORABLE CONSIDERATION OF THIS CASE IS URGED AND YOUR APPROVAL OF THE APPOINTMENT OF JOHN SNURE, JR., TO THE POSITION OF INFORMATION REPRESENTATIVE, CAF-9, AT $3,200 PER ANNUM, RETROACTIVE TO SEPTEMBER 1, 1940, IS RESPECTFULLY REQUESTED.'

TO THE ABOVE-QUOTED LETTER, THE CIVIL SERVICE COMMISSION REPLIED BY LETTER DATED OCTOBER 14, 1940, SIGNED BY L. A. MOYER, EXECUTIVE OFFICER AND CHIEF EXAMINER, AS FOLLOWS:

"THE COMMISSION HAS GIVEN CAREFUL CONSIDERATION TO YOUR LETTER OF OCTOBER 10, 1940, REGARDING THE CASE OF MR. JOHN SNURE, JR., WHO, ACCORDING TO THE INFORMATION FURNISHED, ENTERED ON DUTY AT THE ARMY WAR COLLEGE ON SEPTEMBER 1, 1940, IN CONNECTION WITH THE WORK OF THE RECRUITMENT OF MANPOWER. THE REQUEST IS MADE THAT HIS APPOINTMENT BE APPROVED AS INFORMATION REPRESENTATIVE, CAF-9, $3,200 PER ANNUM, RETROACTIVE TO SEPTEMBER 1, 1940, UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 8257 OF SEPTEMBER 21, 1939.

"THE RECORDS OF THIS OFFICE SHOW THAT THE POSITION IN QUESTION IS BEING ALLOCATED TODAY IN THE GRADE CAF-9, $3,200 PER ANNUM. AUTHORITY IS GRANTED UNDER SECTION 4, RULE VIII, FOR MR. SNURE'S TEMPORARY APPOINTMENT FOR A PERIOD OF THREE MONTHS, WITH THE PRIVILEGE OF AN EXTENSION OF THREE MONTHS AS INFORMATION REPRESENTATIVE, CAF-9, $3,200 PER ANNUM, EFFECTIVE THE DATE OF THIS LETTER. THIS MAY ALSO BE CONSIDERED AS PRIOR AUTHORITY FOR THE EXTENSION OF THE THREE MONTHS MENTIONED.

"THE QUESTION OF PAST COMPENSATION SHOULD BE SETTLED BY YOUR OFFICE CONTACTING THE OFFICE OF THE COMPTROLLER GENERAL, AS THIS IS A MATTER WHICH CAN ONLY BE HANDLED UNDER SUCH PROCEDURE.

"NO ACTION IS BEING TAKEN TOWARD AUTHORIZING MR. SNURE'S APPOINTMENT UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 8257. THE AUTHORITY GRANTED UNDER THE PROVISIONS OF SECTION 4, RULE VIII, IS SUBJECT TO MR. SNURE'S MEETING THE REQUIREMENTS REGARDING POLICE RECORD. PLEASE FURNISH A FINGERPRINT CHART PROMPTLY.'

IN ACCORDANCE WITH THE AUTHORITY GRANTED BY THE CIVIL SERVICE COMMISSION IN ITS LETTER OF OCTOBER 14, 1940, JOHN SNURE, JR., WAS PLACED ON THE PAY ROLL OF THE SELECTIVE SERVICE SYSTEM, AS INFORMATION REPRESENTATIVE, CAF-9 AT $3,200 PER ANNUM, EFFECTIVE OCTOBER 14, 1940.

THE CIVIL SERVICE COMMISSION ADVISES THAT THE QUESTION OF COMPENSATION FOR SERVICES RENDERED BY MR. SNURE DURING THE PERIOD FROM SEPTEMBER 1, 1940, TO OCTOBER 8, 1940, INCLUSIVE, IS A MATTER TO BE SETTLED BETWEEN THE SELECTIVE SERVICE SYSTEM AND THE GENERAL ACCOUNTING OFFICE. IN VIEW THEREOF THE MATTER IF PRESENTED FOR YOUR DECISION, WITH THE RECOMMENDATION THAT SALARY PAYMENT TO MR. SNURE BE AUTHORIZED FOR THE PERIOD IN QUESTION, PAYABLE OUT OF THE FUND: "21 110/20002 (04) EMERGENCY FUND FOR THE PRESIDENT, WAR (ALLOTMENT TO WAR DEPARTMENT FOR SELECTIVE SERVICE), 1940- 1942.'

IT IS A WELL ESTABLISHED RULE THAT COMPENSATION MAY NOT BE PAID TO AN EMPLOYEE PRIOR TO THE EFFECTIVE DATE OF HIS APPOINTMENT AND THAT AN APPOINTMENT MAY NOT BE MADE RETROACTIVELY EFFECTIVE TO COVER SERVICES RENDERED. IN DECISION OF OCTOBER 11, 1937, 17 COMP. GEN. 323, IT WAS STATED:

WHILE IT APPEARS FROM YOUR LETTER THAT IT WAS THE DESIRE AND INTENTION OF THE REGIONAL DIRECTOR TO HAVE THE APPOINTMENT MADE EFFECTIVE JULY 10, 1936, IT IS REPORTED THAT THE APPOINTING AUTHORITY DID NOT SO APPROVE THE APPOINTMENT BUT MADE SAME EFFECTIVE AUGUST 1, 1936. ALTHOUGH NO ATTEMPT WAS MADE TO GIVE THE APPOINTMENT RETROACTIVE EFFECT, IT MAY BE STATED THAT THE RULE IS WELL ESTABLISHED THAT RETROACTIVE APPOINTMENTS DO NOT ENTITLE THE APPOINTEE TO ANY COMPENSATION PRIOR TO THE DATE THE APPOINTMENT WAS ACTUALLY MADE BY THE PROPER AUTHORITY. 20 COMP. DEC. 214; 26 ID. 443; 7 COMP. GEN. 96; 8 ID. 582.

THE FIRST OF THE DECISIONS CITED IN THE ABOVE QUOTE WAS RENDERED BY A FORMER COMPTROLLER OF THE TREASURY UNDER DATE OF OCTOBER 10, 1913, WHEREIN WERE CITED A NUMBER OF COURT CASES INCLUDING GRAMBS V. THE UNITED STATES, 23 CT.1CLS. 420; ROMERO V. THE UNITED STATES, 24 CT.1CLS. 331; BELCHER V. THE UNITED STATES, 34 CT.1CLS. 400; AND MOREY V. THE UNITED STATES, 35 CT.1CLS. 603. SEE ALSO DECISION OF JUNE 5, 1939, 18 COMP. GEN. 907, 908, IN WHICH WAS STATED, AMONG OTHER THINGS, THE FOLLOWING:

IT HAS BEEN HELD THAT APPOINTMENTS ARE EFFECTIVE FROM THE DATE OF ACCEPTANCE AND ENTRANCE ON DUTY AFTER THE APPOINTING POWER ACTUALLY TAKES ACTION, UNLESS A LATER DATE IS STATED IN THE APPOINTMENT, AND MAY NOT BE RETROACTIVE. 8 COMP. GEN. 582; 17 ID. 323.

THE STATUS OF MR. SNURE PRIOR TO OCTOBER 14, 1940, THE EFFECTIVE DATE OF HIS APPOINTMENT, MAY NOT BE REGARDED AS HAVING BEEN OTHER THAN AS A VOLUNTEER, OR, IF HE AGREED IN ADVANCE TO SERVE WITHOUT COMPENSATION, AS FURNISHING GRATUITOUS SERVICES. SERVICE IN EITHER OF THESE CAPACITIES FORMS NO LAWFUL BASIS FOR PAYMENT OF COMPENSATION FROM APPROPRIATED FUNDS FOR ANY PERIOD PRIOR TO THE EFFECTIVE DATE OF HIS APPOINTMENT IN GRADE CAF -9. IN THE ABSENCE OF AN AGREEMENT IN ADVANCE TO SERVE WITHOUT COMPENSATION, HIS EMPLOYMENT PRIOR TO SEPTEMBER 16, 1940, EFFECTIVE DATE OF THE SELECTIVE TRAINING AND SERVICE ACT, SECTION 10 (C) OF WHICH AUTHORIZES THE ACCEPTANCE OF VOLUNTARY SERVICES, WAS PROHIBITED BY SECTION 3679, REVISED STATUTES, AS AMENDED BY THE ACT OF FEBRUARY 27, 1906, 34 STAT. 49, CONTAINING THE WORDS "NOR SHALL ANY DEPARTMENT OF ANY OFFICER OF THE GOVERNMENT ACCEPT VOLUNTARY SERVICE FOR THE GOVERNMENT * * * EXCEPT IN CASES OF SUDDEN EMERGENCY INVOLVING THE LOSS OF HUMAN LIFE OR THE DESTRUCTION OF PROPERTY.' OF COURSE, COMPENSATION MAY NOT BE PAID FOR SERVICES FURNISHED VOLUNTARILY OR GRATUITOUSLY, EITHER IN ACCORDANCE WITH STATUTORY AUTHORITY SUCH AS SECTION 10 (C) OF THE SELECTIVE SERVICE TRAINING AND SERVICE ACT OR IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT PREVIOUSLY ENTERED INTO BETWEEN THE GOVERNMENT AND THE EMPLOYEE. 27 COMP. DEC. 31; 3 COMP. GEN. 955; 4 ID. 967; 7 ID. 810; 16 ID. 55; 30 OP. ATTY. GEN. 51; ID. 129.

EXECUTIVE ORDER NO. 8257, DATED SEPTEMBER 21, 1939, REFERRED TO IN YOUR LETTER, AS AMENDED BY EXECUTIVE ORDER NO. 8564, DATED OCTOBER 11, 1940, AUTHORIZING THE CIVIL SERVICE COMMISSION TO APPROVE APPOINTMENTS WITHOUT COMPETITIVE CIVIL-SERVICE EXAMINATIONS TO POSITIONS CREATED IN CONNECTION WITH THE PREPAREDNESS PROGRAM OR THE NATIONAL DEFENSE PROGRAM, UNDER CERTAIN CONDITIONS, DOES NOT PURPORT TO AUTHORIZE RETROACTIVELY EFFECTIVE APPOINTMENTS.

IT IS UNDERSTOOD THE APPROPRIATION ALLOTMENT REFERRED TO IN THE CONCLUDING SENTENCE OF YOUR LETTER, IS PROVIDED IN THE MILITARY APPROPRIATION ACT, 1941, APPROVED JUNE 13, 1940, 54 STAT. 377, UNDER THE HEADING " EMERGENCY FUND FOR THE PRESIDENT" PROVIDING, AS FOLLOWS:

TO ENABLE THE PRESIDENT, THROUGH THE APPROPRIATE AGENCIES OF THE GOVERNMENT, WITHOUT REFERENCE TO SECTION 3709, REVISED STATUTES, TO PROVIDE FOR EMERGENCIES AFFECTING THE NATIONAL SECURITY AND DEFENSE AND FOR EACH AND EVERY PURPOSE CONNECTED THEREWITH, INCLUDING ALL OF THE OBJECTS AND PURPOSES SPECIFIED UNDER ANY APPROPRIATION AVAILABLE OR TO BE MADE AVAILABLE TO THE WAR DEPARTMENT FOR THE FISCAL YEARS 1940 AND 1941, THE FURNISHING OF GOVERNMENT-OWNED FACILITIES AT PRIVATELY OWNED PLANTS; THE PROCUREMENT AND TRAINING OF CIVILIAN PERSONNEL NECESSARY IN CONNECTION WITH THE PRODUCTION OF CRITICAL AND ESSENTIAL ITEMS OF EQUIPMENT AND MATERIAL AND THE USE OR OPERATION THEREOF; AND THE PROCUREMENT OF STRATEGIC AND CRITICAL MATERIALS IN ACCORDANCE WITH THE ACT OF JUNE 7, 1939, $66,000,000; TO BE IMMEDIATELY AND CONTINUOUSLY AVAILABLE UNTIL JUNE 30, 1942; AND, IN ADDITION, THE PRESIDENT IS AUTHORIZED, THROUGH SUCH AGENCIES, ON AND AFTER THE ENACTMENT HEREOF, TO ENTER INTO CONTRACTS FOR THE SAME PURPOSES TO AN AMOUNT NOT EXCEEDING $66,000,000: PROVIDED, THAT AN ACCOUNT SHALL BE KEPT OF ALL EXPENDITURES MADE OR AUTHORIZED HEREUNDER AND A REPORT THEREON SHALL BE SUBMITTED TO THE CONGRESS ON OR BEFORE JUNE 30, 1942. THIS APPROPRIATION ACT DOES NOT PROVIDE FOR EXPENDITURE BY THE PRESIDENT IN HIS DISCRETION. OTHER THAN DISREGARD OF SECTION 3709, REVISED STATUTES, THERE IS NOTHING IN THE TERMS OF THE APPROPRIATION ACT AUTHORIZING DISREGARD OF FEDERAL STATUTES AND RULES THEREUNDER CONTROLLING THE EXPENDITURE OF APPROPRIATED FUNDS.

YOU ARE ADVISED, THEREFORE, THAT I HAVE NO ALTERNATIVE UNDER EXISTING LAWS BUT TO CONCLUDE THAT MR. SNURE MAY NOT BE PAID COMPENSATION FOR SERVICES RENDERED PRIOR TO OCTOBER 14, 1940, THE EFFECTIVE DATE OF HIS APPOINTMENT.