B-158422, MAY 27, 1969
Highlights
IS AN "EMPLOYEE" WITHIN THE MEANING OF 5 U.S.C. 5584. THE PROVISIONS OF 7 U.S.C. 2226 ARE AS FOLLOWS: "NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW. THE DEPARTMENT IS AUTHORIZED ON AND AFTER AUGUST 31. MEANS AN OFFICER AND AN INDIVIDUAL WHO IS. "/D) AN INDIVIDUAL WHO IS AN EMPLOYEE UNDER THIS SECTION. YOUR DEPARTMENT'S DOUBT IN THE MATTER ARISES FROM THE FACT THAT THE CASUAL FIREFIGHTERS INVOLVED ARE NEVER GIVEN FORMAL APPOINTMENTS AND. THEY MAY NOT BE CONSIDERED TO HAVE RECEIVED APPOINTMENTS AS CONTEMPLATED BY CLAUSE (1) OF THE QUOTED DEFINITION. WE HAVE TALKED INFORMALLY WITH A REPRESENTATIVE OF YOUR DEPARTMENT CONCERNING THE CIRCUMSTANCES GIVING RISE TO THE EMPLOYMENT OF CASUAL FIREFIGHTERS AND HAVE BEEN ADVISED THAT THE INDIVIDUALS TO WHOM THE SUBMISSION APPLIES ARE RECRUITED ON AN EMERGENCY BASIS AFTER A FIRE BREAKS OUT.
B-158422, MAY 27, 1969
TO MR. SECRETARY:
WE REFER TO LETTER OF APRIL 24, 1969, FROM YOUR ASSISTANT SECRETARY FOR ADMINISTRATION, REQUESTING OUR DECISION AS TO WHETHER A CASUAL FIREFIGHTER HIRED FOR EMERGENCY FIREFIGHTING SERVICES UNDER THE AUTHORITY OF 7 U.S.C. 2226, IS AN "EMPLOYEE" WITHIN THE MEANING OF 5 U.S.C. 5584, AS ADDED BY PUBLIC LAW 90-616.
THE PROVISIONS OF 7 U.S.C. 2226 ARE AS FOLLOWS:
"NOTWITHSTANDING ANY OTHER PROVISIONS OF LAW, THE DEPARTMENT IS AUTHORIZED ON AND AFTER AUGUST 31, 1951, TO EMPLOY OR OTHERWISE CONTRACT WITH PERSONS AT REGULAR RATES OF PAY FOR NECESSARY HOURS OF WORK FOR EMERGENCY FOREST FIRE FIGHTING AND PEST CONTROL AND FOR HANDLING OF ANIMALS, INCLUDING DAIRY CATTLE, WITHOUT REGARD TO SUNDAYS, FEDERAL HOLIDAYS, AND THE REGULAR WORKWEEK.'
THE TERM "EMPLOYEE" AS USED IN SECTION 5584 MEANS AN INDIVIDUAL DEFINED AS AN "EMPLOYEE" IN 5 U.S.C. 2105 READING IN PART AS FOLLOWS:
"/A) FOR THE PURPOSE OF THIS TITLE, -EMPLOYEE-, EXCEPT AS OTHERWISE PROVIDED BY THIS SECTION OR WHEN SPECIFICALLY MODIFIED, MEANS AN OFFICER AND AN INDIVIDUAL WHO IS---
"/1) APPOINTED IN THE CIVIL SERVICE BY ONE OF THE FOLLOWING ACTING IN AN OFFICIAL CAPACITY---
"/A) THE PRESIDENT;
"/B) A MEMBER OR MEMBERS OF CONGRESS, OR THE CONGRESS;
"/C) A MEMBER OF A UNIFORMED SERVICE;
"/D) AN INDIVIDUAL WHO IS AN EMPLOYEE UNDER THIS SECTION; OR
"/E) THE HEAD OF A GOVERNMENT CONTROLLED CORPORATION;
"/2) ENGAGED IN THE PERFORMANCE OF A FEDERAL FUNCTION UNDER AUTHORITY OF LAW OR AN EXECUTIVE ACT; AND
"/3) SUBJECT TO THE SUPERVISION OF AN INDIVIDUAL NAMED BY PARAGRAPH (1) OF THIS SUBSECTION WHILE ENGAGED IN THE PERFORMANCE OF THE DUTIES OF HIS POSITION.'
YOUR DEPARTMENT'S DOUBT IN THE MATTER ARISES FROM THE FACT THAT THE CASUAL FIREFIGHTERS INVOLVED ARE NEVER GIVEN FORMAL APPOINTMENTS AND, THEREFORE, THEY MAY NOT BE CONSIDERED TO HAVE RECEIVED APPOINTMENTS AS CONTEMPLATED BY CLAUSE (1) OF THE QUOTED DEFINITION.
WE HAVE TALKED INFORMALLY WITH A REPRESENTATIVE OF YOUR DEPARTMENT CONCERNING THE CIRCUMSTANCES GIVING RISE TO THE EMPLOYMENT OF CASUAL FIREFIGHTERS AND HAVE BEEN ADVISED THAT THE INDIVIDUALS TO WHOM THE SUBMISSION APPLIES ARE RECRUITED ON AN EMERGENCY BASIS AFTER A FIRE BREAKS OUT. THERE IS NOT TIME TO ISSUE A FORMAL APPOINTMENT AND NEITHER ARE CASUAL FIREFIGHTERS HIRED UNDER A CONTRACT. HE POINTED OUT, HOWEVER, THAT EACH RECRUIT IS GIVEN A TIME SLIP SHOWING HIS HOURLY RATE OF PAY.
UNDER THE CIRCUMSTANCES INVOLVED IN THE APPOINTMENT OF CASUAL FIREFIGHTERS A FORMAL APPOINTMENT DOCUMENT IS NOT DEEMED TO BE AN ACTION NECESSARY TO EFFECTUATE THE APPOINTMENT OF SUCH AN INDIVIDUAL, AT LEAST INSOFAR AS CONCERNS THE APPLICATION OF 5 U.S.C. 5584 TO SUCH FIREFIGHTER. MOREOVER, WE UNDERSTAND THAT THE OFFICIALS WHO RECRUIT THE CASUAL FIREFIGHTERS ARE VESTED WITH AUTHORITY TO EMPLOY CASUAL FIREFIGHTERS IN EMERGENCIES AND IT IS OUR FURTHER UNDERSTANDING THAT WHEN SO RECRUITED ANY SUCH CASUAL FIREFIGHTER IS ENGAGED IN THE PERFORMANCE OF A FEDERAL FUNCTION AND IS SUPERVISED BY A FEDERAL EMPLOYEE. THUS, IT IS REASONABLE TO REGARD A PERSON EMPLOYED AS A CASUAL FIREFIGHTER UNDER THE ABOVE RELATED CIRCUMSTANCES AS BEING EMBRACED WITHIN THE TERM ,EMPLOYEE" AS THAT TERM IS USED IN 5 U.S.C. 5584.