B-2508, APRIL 7, 1939, 18 COMP. GEN. 775

B-2508, APRIL 7, 1939, 18 COMP. GEN. 775

COMPENSATION - EMERGENCY RELIEF APPROPRIATION ACT CIVIL SERVICE STATUS ACQUIREMENT PROHIBITION, AND REGULAR EMPLOYEES TRANSFERRED TO PROJECT ALLOTMENT PAY ROLLS THE ALLOTMENT MADE TO THE INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, UNDER SECTION 202 OF THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938, APPROVED JUNE 21, 1938, 52 STAT. 817, FOR FLOOD CONTROL AND CONSERVATION OF WATER STUDY AND INVESTIGATION ON THE RIO GRANDE, IS AVAILABLE TO PAY THE COMPENSATION OF EMPLOYEES THERETOFORE PAID FROM THE COMMISSION'S REGULAR APPROPRIATIONS AFTER TRANSFER AND ASSIGNMENT TO DUTY ON THE FEDERAL PROJECT INVOLVED, BUT WHETHER SUCH TRANSFERS MAY BE MADE WITHOUT AFFECTING THEIR STATUS FOR CLASSIFICATION IN THE CLASSIFIED CIVIL SERVICE BY EXECUTIVE ORDER NO. 7916, DATED JUNE 24, 1938, IS A MATTER FOR THE CIVIL SERVICE COMMISSION. THE PROHIBITION IN SECTION 1 OF PUBLIC RESOLUTION NO. 1, APPROVED FEBRUARY 4, 1939, 53 STAT. 507, AGAINST THE USE OF APPROPRIATED FUNDS "FOR THE COMPENSATION OF THE INCUMBENT OF ANY POSITION PLACED IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE * * * AFTER JANUARY 10, 1939," IS APPLICABLE ONLY TO COMPENSATION PAID FROM APPROPRIATIONS MADE BY THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, APPROVED JUNE 21, 1938, 52 STAT. 809--- THAT IS, THE FUNDS APPROPRIATED FOR "WORK RELIEF AND RELIEF" BY TITLE 1 OF THE WORK RELIEF AND PUBLIC WORKS APPROPRIATION ACT OF 1938, 52 STAT. 809--- OR BY THE SAID PUBLIC RESOLUTION, BUT NOT TO FUNDS APPROPRIATED BY TITLE 2 OF THE SAID ACT--- THE PUBLIC WORKS APPROPRIATION PORTION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, APRIL 7, 1939:

THIS OFFICE IS IN RECEIPT OF A LETTER OF MARCH 15, 1939, FROM THE ACTING AMERICAN COMMISSIONER, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, AS FOLLOWS:

THERE HAS BEEN ALLOTTED FOR EXPENDITURE BY THIS COMMISSION UNDER APPROPRIATION 19-40-443/10854, NATIONAL INDUSTRIAL RECOVERY, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS (ALLOTMENT TO STATE, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO), 1933 1941, FEDERAL PROJECT NO. 5, THE SUM OF $130,000.00, IN ACCORDANCE WITH THE PROVISIONS OF THE NATIONAL INDUSTRIAL RECOVERY ACT (PUBLIC NO. 67--- 73RD CONGRESS, APPROVED JUNE 16, 1933). THE ALLOTMENT IS FOR THE PURPOSE OF MAKING AN ENGINEERING INVESTIGATION AND STUDY TO DETERMINE THE FEASIBILITY AND BEST MEANS OF EFFECTING FLOOD CONTROL AND THE CONSERVATION OF WATER ON THE RIO GRANDE BETWEEN LAREDO, TEX. AND THE GULF OF MEXICO, AND A SIMILAR INVESTIGATION AND STUDY ON THE RIO GRANDE BETWEEN OLD FORT QUITMAN AND LAREDO, TEX.

SINCE IT HAS PROVEN TO BE QUITE DIFFICULT, IF NOT IMPOSSIBLE, TO SECURE A SUFFICIENT NUMBER OF NEW EMPLOYEES WHO ARE EXPERIENCED IN THE TYPE OF WORK INVOLVED AND WHO WOULD BE WILLING TO ACCEPT EMPLOYMENT FOR THE SHORT PERIOD REQUIRED TO PERFORM THIS WORK, IT HAS BEEN ADMINISTRATIVELY DETERMINED TO BE TO THE BEST INTERESTS OF THE GOVERNMENT TO UTILIZE THE SERVICES FOR A PERIOD OF SEVERAL MONTHS OF A NUMBER OF THE PRESENT PERMANENT EMPLOYEES OF THIS COMMISSION, WHOSE SALARIES ARE PAID FROM THE REGULAR APPROPRIATIONS, IN THE MORE RESPONSIBLE POSITIONS, AND TO MAKE NEW EMPLOYMENTS FOR THE MINOR POSITIONS WHICH WOULD BE PAID DIRECT FROM FEDERAL PROJECT NO. 5 FUNDS.

IN CONNECTION WITH THE ABOVE, YOUR DECISION IS REQUESTED AS TO WHETHER THIS COMMISSION WOULD BE AUTHORIZED TO TRANSFER EMPLOYEES, WITHOUT CHANGES IN DESIGNATIONS OR RATE OF PAY, WHOSE COMPENSATION IS PAID FROM REGULAR APPROPRIATIONS MADE TO THIS COMMISSION, TO THE PAY ROLL OF FEDERAL PROJECT NO. 5 WITHOUT AFFECTING THEIR STATUS FOR CLASSIFICATION IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES BY EXECUTIVE ORDER NO. 7916. INSTRUCTIONS HAVE BEEN ISSUED BY THE UNITED STATES CIVIL SERVICE COMMISSION TO THE EFFECT THAT NO CHANGE IN STATUS OF EMPLOYEES AFFECTED BY EXECUTIVE ORDER NO. 7916 SHOULD BE MADE UNTIL THAT COMMISSION HAS APPROVED A CLASSIFIED STATUS FOR THE EMPLOYEES. AT THE PRESENT TIME THE UNITED STATES CIVIL SERVICE COMMISSION HAS NOT APPROVED THE CLASSIFICATION OF ANY OF THE EMPLOYEES OF THIS COMMISSION UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 7916, AND THIS COMMISSION DOES NOT DESIRE TO TAKE ANY ACTION WHICH WOULD JEOPARDIZE THE CLASSIFIED STATUS FOR ANY EMPLOYEE.

DOES THE PROVISION QUOTED BELOW OF PUBLIC RESOLUTION NO. 1, 76TH CONGRESS, APPROVED FEBRUARY 4, 1939, APPLY TO THE FUNDS ALLOTTED TO THIS COMMISSION FOR FEDERAL PROJECT NO. 5?

"PROVIDED FURTHER, THAT THE PROVISIONS OF EXECUTIVE ORDER NUMBERED 7916, DATED JUNE 24, 1938, SHALL NOT APPLY TO POSITIONS THE COMPENSATION OF WHICH IS PAYABLE FROM APPROPRIATIONS CONTAINED IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938 OR FROM THE AMOUNT APPROPRIATED IN THIS JOINT RESOLUTION, AND SUCH APPROPRIATIONS SHALL NOT BE AVAILABLE FOR THE COMPENSATION OF THE INCUMBENT OF ANY POSITION PLACED IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES AFTER JANUARY 10, 1939.' (SEE COPY OF CIVIL SERVICE COMMISSION CIRCULAR NO. 171, SUPPLEMENT NO. 2, ATTACHED HERETO.)

IT APPEARS THAT IT HAS REFERENCE ONLY TO FUNDS APPROPRIATED UNDER TITLE NO. 1 AND NOT TO THOSE APPROPRIATED UNDER TITLE NO. 2, UNDER WHICH LATTER TITLE THE FUNDS IN REFERENCE WERE MADE AVAILABLE.

IN THE EVENT YOUR ANSWER TO THE FIRST QUESTION IS IN THE NEGATIVE AND SINCE ACCORDING TO YOUR DECISION TO THE SECRETARY OF STATE LAST AUGUST (A- 96558, DATED JULY 27, 1938) THE REGULAR APPROPRIATIONS OF THIS COMMISSION ARE NOT AVAILABLE FOR THE PERFORMANCE OF THE WORK CONTEMPLATED ON FEDERAL PROJECT NO. 5, YOUR DECISION IS REQUESTED AS TO WHETHER THE COMMISSION MAY UTILIZE THE SERVICES OF A NUMBER OF ITS PERMANENT EMPLOYEES WHO ARE PAID FROM THE REGULAR APPROPRIATIONS AND REIMBURSE THOSE APPROPRIATIONS FROM WHICH THE SALARIES AND PER DIEM IN LIEU OF SUBSISTENCE ARE PAID BY ADJUSTMENT VOUCHERS CHARGEABLE TO THE FUNDS ALLOTTED FOR FEDERAL PROJECT NO. 5.

AN EARLY DECISION WOULD ENABLE THIS COMMISSION TO EXPEDITE THIS VERY IMPORTANT WORK.

THE ALLOTMENT MENTIONED IN THE FIRST PARAGRAPH OF THE QUOTED LETTER WAS MADE UNDER AUTHORITY OF SECTION 202 OF THE PUBLIC WORKS ADMINISTRATION ACT OF 1938, APPROVED JUNE 21, 1938, 52 STAT. 817, WHICH EXTENDED UNTIL JUNE 30, 1941, CERTAIN PROVISIONS OF PREVIOUS STATUTES. CLEARLY THE FUNDS SO ALLOTTED ARE AVAILABLE TO PAY THE COMPENSATION OF EMPLOYEES WHO THERETOFORE HAD BEEN PAID FROM REGULAR APPROPRIATIONS FOR THE INTERNATIONAL BOUNDARY COMMISSION IF AND WHEN TRANSFERRED AND ASSIGNED TO DUTY ON FEDERAL PROJECT NO. 5 "WITHOUT CHANGES IN DESIGNATIONS OR RATE OF PAY" (QUOTING FROM THE SUBMISSION). WHETHER SUCH TRANSFERS MAY BE MADE "WITHOUT AFFECTING THEIR STATUS FOR CLASSIFICATION IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES BY EXECUTIVE ORDER NO. 7916" IS NOT A MATTER FOR DECISION BY THIS OFFICE. HOWEVER, THIS OFFICE HAS BEEN ADVISED INFORMALLY THAT THE CIVIL SERVICE COMMISSION HAS ADVISED THE INTERNATIONAL BOUNDARY COMMISSION THAT SUCH TRANSFERS WOULD NOT AFFECT THE STATUS, UNDER EXECUTIVE ORDER NO. 7916, OF THE EMPLOYEES SO TRANSFERRED. THE FIRST QUESTION IS ANSWERED ACCORDINGLY.

THE PROHIBITION CONTAINED IN THE QUOTED PROVISO TO SECTION 1 OF PUBLIC RESOLUTION NO. 1, 76TH CONGRESS, APPROVED FEBRUARY 4, 1939, 53 STAT. 507, AGAINST THE USE OF APPROPRIATED FUNDS "FOR THE COMPENSATION OF THE INCUMBENT OF ANY POSITION PLACED IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES AFTER JANUARY 10, 1939" IS BY ITS SPECIFIC TERMS APPLICABLE ONLY TO COMPENSATION PAID FROM APPROPRIATIONS MADE IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, 52 STAT. 809, OR IN THE JOINT RESOLUTION OF FEBRUARY 4, 1939, IN WHICH THE PROHIBITION APPEARS. SECTION 24, THE LAST SECTION UNDER TITLE I OF PUBLIC RESOLUTION NO. 122, APPROVED JUNE 21, 1938, 52 STAT. 815, PROVIDES AS FOLLOWS:

THIS TITLE (TITLE I) MAY BE CITED AS THE "EMERGENCY RELIEF APPROPRIATION ACT OF 1938.'

THE ALLOTMENT MENTIONED IN THE FIRST PARAGRAPH OF YOUR LETTER WAS MADE UNDER AUTHORITY OF TITLE II OF THE ACT, NOT TITLE I. ACCORDINGLY, INSOFAR AS THE USES OF APPROPRIATED FUNDS ARE CONCERNED, THE SECOND QUESTION IS ANSWERED IN THE NEGATIVE.

IN VIEW OF THE ANSWER HEREIN MADE TO THE FIRST QUESTION, NO ANSWER TO THE THIRD QUESTION IS NECESSARY. SEE, HOWEVER, 14 COMP. GEN. 103; 17 ID. 748.