B-141430, JAN. 4, 1959

B-141430: Jan 4, 1959

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THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION WHETHER THE MEMBERS OF THE STAFF OF THE COMPTROLLER OF THE VIRGIN ISLANDS GOVERNMENT WERE FEDERAL EMPLOYEES DURING THE PERIOD FROM JULY 22. THE POSITION OF GOVERNMENT COMPTROLLER WAS CREATED BY THE REVISED ORGANIC ACT OF THE VIRGIN ISLANDS APPROVED JULY 22. WE UNDERSTAND THAT A STAFF WAS CREATED BY TRANSFER OF EMPLOYEES FROM OTHER DEPARTMENTS OF THE ISLANDS GOVERNMENT AND ALSO BY APPOINTMENTS EXECUTED BY THE GOVERNOR OR THE GOVERNMENT COMPTROLLER. THEY WERE APPOINTED TO THEIR POSITIONS UNDER VIRGIN ISLANDS GOVERNMENT PROCEDURES AND REGULATIONS. THEY WERE TREATED AS EMPLOYEES OF THE VIRGIN ISLANDS GOVERNMENT. THE SALARY OF THE COMPTROLLER WAS PAID BY THE VIRGIN ISLANDS GOVERNMENT.

B-141430, JAN. 4, 1959

TO THE SECRETARY OF THE INTERIOR:

ON DECEMBER 7, 1959, THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION WHETHER THE MEMBERS OF THE STAFF OF THE COMPTROLLER OF THE VIRGIN ISLANDS GOVERNMENT WERE FEDERAL EMPLOYEES DURING THE PERIOD FROM JULY 22, 1954 TO JULY 1, 1959.

AS THE ASSISTANT SECRETARY RELATES, THE POSITION OF GOVERNMENT COMPTROLLER WAS CREATED BY THE REVISED ORGANIC ACT OF THE VIRGIN ISLANDS APPROVED JULY 22, 1954, 68 STAT. 497. ALTHOUGH THAT ACT DID NOT CONTAIN A SPECIFIC PROVISION FOR A STAFF FOR THE COMPTROLLER, WE UNDERSTAND THAT A STAFF WAS CREATED BY TRANSFER OF EMPLOYEES FROM OTHER DEPARTMENTS OF THE ISLANDS GOVERNMENT AND ALSO BY APPOINTMENTS EXECUTED BY THE GOVERNOR OR THE GOVERNMENT COMPTROLLER. BOTH THE VIRGIN ISLANDS GOVERNMENT AND YOUR DEPARTMENT CONSIDERED MEMBERS OF THE COMPTROLLER'S STAFF TO BE EMPLOYEES OF THE ISLANDS GOVERNMENT, AS DID THOSE EMPLOYEES THEMSELVES. THEY WERE APPOINTED TO THEIR POSITIONS UNDER VIRGIN ISLANDS GOVERNMENT PROCEDURES AND REGULATIONS, USING THAT GOVERNMENT'S FORMS AND LETTERHEADS WITHOUT REFERENCE TO CIVIL SERVICE COMMISSION AUTHORITY; AND IN MATTERS OF LEAVE, TRAVEL PAY, RETIREMENT, AND IN EVERY OTHER RESPECT, THEY WERE TREATED AS EMPLOYEES OF THE VIRGIN ISLANDS GOVERNMENT.

UNDER THE 1954 ACT, THE SALARY OF THE COMPTROLLER WAS PAID BY THE VIRGIN ISLANDS GOVERNMENT, AS WERE THE SALARIES OF HIS STAFF. THAT ACT WAS AMENDED, HOWEVER, BY AN ACT APPROVED AUGUST 28, 1958, TO PROVIDE FOR PAYMENT OF THE SALARIES OF THE COMPTROLLER AND HIS STAFF BY THE UNITED STATES EFFECTIVE JULY 1, 1959. THOSE SALARIES HAVE BEEN PAID FROM APPROPRIATED FUNDS SINCE THAT DATE AND THERE APPEARS TO BE NO QUESTION THAT SINCE JULY 1, 1959, THE POSITIONS INVOLVED ARE FEDERAL POSITIONS IN THE COMPETITIVE OR EXCEPTED SERVICE. DOUBT HAS ARISEN, HOWEVER, WHETHER THE EMPLOYEES OCCUPYING POSITIONS ON THE COMPTROLLER'S STAFF SHOULD NOT BE ACCORDED FEDERAL STATUS RETROACTIVELY FOR THE PERIOD PRIOR TO JULY 1, 1959, AND THAT IS THE QUESTION FOR DECISION HERE.

THE POWER TO DETERMINE AUTHORITATIVELY WHETHER SUCH POSITIONS COULD HAVE BEEN A PART OF THE FEDERAL SERVICE RESTS PRIMARILY WITH THE UNITED STATES CIVIL SERVICE COMMISSION. IN A LETTER DATED JUNE 15, 1959, TO YOUR ADMINISTRATIVE ASSISTANT SECRETARY, THE ACTING CHAIRMAN OF THE CIVIL SERVICE COMMISSION EXPRESSED THE OPINION "THAT THESE POSITIONS HAVE BEEN FEDERAL POSITIONS SINCE 1954.' THE SAME LETTER, HOWEVER, CONTAINED INSTRUCTIONS TO YOUR DEPARTMENT FOR BRINGING THE POSITIONS INTO THE COMPETITIVE SERVICE AS FOLLOWS:

"* * * THE COMMISSION HAS CONSIDERED THE POSSIBILITY OF APPLYING RULE III TO THESE POSITIONS, AND IT HAS BEEN DETERMINED THAT THE EXISTING POSITIONS MAY BE CONSIDERED AS BEING "MADE SUBJECT TO COMPETITIVE EXAMINATION" AS OF JULY 1, 1959, FOR PURPOSES OF SECTION 03.1 (A) OF RULE 111. THE APPOINTMENT OF THE PRESENT INCUMBENTS MAY BE PROCESSED AS PROVIDED IN THE FEDERAL PERSONNEL MANUAL, R-I-20, FOR SITUATIONS IN WHICH PERSONS ARE RETAINED IN THEIR POSITIONS WHEN A PUBLIC OR PRIVATE ENTERPRISE IS TAKEN OVER BY THE FEDERAL GOVERNMENT. THE NATURE OF THE ACTION SHOULD BE SHOWN AS "APPOINTMENT (SPECIAL AUTHORITY); " AND THIS LETTER SHOULD BE CITED, IN ADDITION TO CIVIL SERVICE REGULATION 3.101, AS AUTHORITY FOR THE ACTION. THE INCUMBENTS OF THE POSITIONS MAY BE RECOMMENDED FOR CONVERSION TO COMPETITIVE STATUS IN ACCORDANCE WITH THE PROVISIONS OF REGULATION 3.101.'

THUS IT APPEARS TO US THAT THE NATURE OF THE POSITIONS OF THE COMPTROLLER'S STAFF WAS SUCH THAT THEY COULD HAVE BEEN CREATED AS FEDERAL POSITIONS UNDER CIVIL SERVICE REGULATIONS AND PERSONS APPOINTED AS FEDERAL EMPLOYEES TO FILL THE POSITIONS SO CREATED AT ANY TIME AFTER JULY 22, 1954. THE FACT IS, HOWEVER, THAT THOSE POSITIONS WERE NOT SO CREATED AND FILLED AS FEDERAL POSITIONS UNTIL JULY 1, 1959. IN THOSE CIRCUMSTANCES, AND PARTICULARLY SINCE NONE OF THE EMPLOYEES WAS LED TO BELIEVE THAT HE WAS A FEDERAL EMPLOYEE, WE CONCLUDE THAT THE EMPLOYEES INVOLVED SHOULD NOT BE REGARDED AS FEDERAL EMPLOYEES FOR PURPOSES OF PAY BENEFITS PRIOR TO THE EFFECTIVE DATE OF THE ACTION TAKEN BY YOUR DEPARTMENT TO BRING THE POSITIONS INTO THE FEDERAL COMPETITIVE OR EXCEPTED SERVICE AND TO APPOINT THE EMPLOYEES TO FILL THESE POSITIONS.