B-4610, JULY 31, 1939, 19 COMP. GEN. 125

B-4610: Jul 31, 1939

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COMPENSATION - PROMOTIONS - TEMPORARY EMPLOYEES CONTINUED IN SERVICE WHETHER CONTINUANCE IN THE SERVICE OF A TEMPORARY EMPLOYEE APPOINTED PURSUANT TO SECTION 4 OF CIVIL SERVICE RULE VIII IS UNDER A NEW APPOINTMENT OR AN EXTENSION OF THE ORIGINAL ONE FOR NONPROMOTIONAL PURPOSES OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT WHICH PROVIDES THAT ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS. IS A MATTER WITHIN THE JURISDICTION OF THE CIVIL SERVICE COMMISSION. 4 COMP. WHO IS SERVING UNDER A TEMPORARY APPOINTMENT MADE PURSUANT TO SECTION 4 OF CIVIL SERVICE RULE VIII. WHILE THOSE DECISIONS ARE UNDOUBTEDLY CORRECT. THAT THE QUESTIONS THEREIN PRESENTED TO YOU WERE BASED UPON THE ASSUMPTION.

B-4610, JULY 31, 1939, 19 COMP. GEN. 125

COMPENSATION - PROMOTIONS - TEMPORARY EMPLOYEES CONTINUED IN SERVICE WHETHER CONTINUANCE IN THE SERVICE OF A TEMPORARY EMPLOYEE APPOINTED PURSUANT TO SECTION 4 OF CIVIL SERVICE RULE VIII IS UNDER A NEW APPOINTMENT OR AN EXTENSION OF THE ORIGINAL ONE FOR NONPROMOTIONAL PURPOSES OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT WHICH PROVIDES THAT ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS, IS A MATTER WITHIN THE JURISDICTION OF THE CIVIL SERVICE COMMISSION. 4 COMP. GEN. 54 AND A-15372, AUGUST 30, 1926, AMPLIFIED.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE TREASURY, JULY 31, 1939:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JUNE 26, 1939, AS FOLLOWS:

THE QUESTION HAS ARISEN CONCERNING THE AUTHORITY OF THIS DEPARTMENT TO INCREASE THE SALARY OF CARL S. SHOUP, AN EMPLOYEE OF THIS DEPARTMENT, WHO IS SERVING UNDER A TEMPORARY APPOINTMENT MADE PURSUANT TO SECTION 4 OF CIVIL SERVICE RULE VIII.

THE CIVIL SERVICE COMMISSION HAS DECLINED TO LEND ITS APPROVAL TO SUCH A PROMOTION, STATING THAT IT FELT ITSELF BOUND BY THE DECISIONS OF YOUR OFFICE OF JULY 14, 1924, AUGUST 30, 1926, AND AUGUST 31, 1934. WHILE THOSE DECISIONS ARE UNDOUBTEDLY CORRECT, IT WOULD SEEM, AS INDICATED IN THE ATTACHED OPINION OF THE GENERAL COUNSEL OF THE TREASURY DEPARTMENT, THAT THE QUESTIONS THEREIN PRESENTED TO YOU WERE BASED UPON THE ASSUMPTION, WHICH IT IS BELIEVED YOU WILL AGREE WAS ERRONEOUS, THAT AN EXTENSION OF A TEMPORARY APPOINTMENT CONSTITUTES A NEW APPOINTMENT WITHIN THE MEANING OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923. YOUR DECISIONS DO NOT APPEAR TO HAVE BEEN DIRECTLY CONCERNED WITH THAT PARTICULAR POINT.

IN VIEW OF THAT FACT, AND IN THE LIGHT OF THE VIEW EXPRESSED IN THE ATTACHED OPINION, IT IS RESPECTFULLY REQUESTED THAT THE MATTER BE GIVEN YOUR CONSIDERATION. THE CIVIL SERVICE COMMISSION WILL BE ADVISED OF THE SUBMISSION OF THIS MATTER TO YOU AND A COPY OF THE ATTACHED OPINION WILL BE SENT TO THAT OFFICE.

THE FACTS WITH RESPECT TO MR. SHOUP'S EMPLOYMENT ARE STATED IN THE OPINION OF THE GENERAL COUNSEL OF THE TREASURY DEPARTMENT AS FOLLOWS:

FROM 1934 UNTIL THE PRESENT TIME, SHOUP HAS BEEN EMPLOYED BY THE TREASURY DEPARTMENT FOR VARYING PERIODS OF TIME AS A TAX EXPERT. ON SEPTEMBER 27, 1938, HE RECEIVED A TEMPORARY APPOINTMENT, EFFECTIVE OCTOBER 1, 1938, AS A CONSULTING EXPERT, P-8, AT A COMPENSATION OF $22.22 PER DIEM WHEN ACTUALLY EMPLOYED, THE RATE BEING THE EQUIVALENT OF $8,000 PER ANNUM, WHICH IS THE MINIMUM SALARY FIXED FOR GRADE 8 BY THE CLASSIFICATION ACT OF 1923, 42 STAT. 1492, AS AMENDED ( U.S.C. TITLE 5, SEC. 673). THAT APPOINTMENT WAS APPROVED BY THE CIVIL SERVICE COMMISSION ON OCTOBER 19, 1938, FOR A PERIOD OF THREE MONTHS. AT THE EXPIRATION OF THE THREE MONTHS, AUTHORITY WAS REQUESTED OF THE COMMISSION FOR AN EXTENSION OF SUCH APPOINTMENT AT AN INCREASED COMPENSATION OF $25.00 PER DIEM. THE COMMISSION, HOWEVER, IN A LETTER UNDER DATE OF JANUARY 13, 1939, DECLINED TO GRANT AUTHORITY FOR THE EXTENSION OF THE APPOINTMENT AT A RATE OF COMPENSATION ABOVE $22.22 PER DIEM. THE COMMISSION, AFTER RECONSIDERING THE QUESTION, ADHERED TO THAT POSITION IN A LETTER UNDER DATE OF MARCH 18, 1939. * * *

SECTION 4 OF CIVIL SERVICE RULE NO. VIII, PURSUANT TO WHICH MR. SHOUP WAS TEMPORARILY APPOINTED, PROVIDES AS FOLLOWS:

JOB EMPLOYMENT.--- WHEN THERE IS WORK OF A TEMPORARY CHARACTER, AT THE COMPLETION OF WHICH THE SERVICES OF AN ADDITIONAL EMPLOYEE WILL NOT BE REQUIRED, A TEMPORARY APPOINTMENT MAY BE MADE WITH THE PRIOR CONSENT OF THE COMMISSION FOR A PERIOD NOT TO EXCEED 3 MONTHS, AND MAY WITH LIKE CONSENT OF THE COMMISSION BE EXTENDED FOR A FURTHER PERIOD OF 3 MONTHS. SUCH TEMPORARY APPOINTMENT SHALL BE MADE THROUGH CERTIFICATION FROM THE COMMISSION'S ELIGIBLE REGISTERS UNLESS THE COMMISSION SHALL DECIDE IN ANY CASE THAT THERE ARE NO AVAILABLE ELIGIBLES. SUCH TEMPORARY APPOINTMENT SHALL NOT EXTEND BEYOND 6 MONTHS, UNLESS THERE ARE NO ELIGIBLES AVAILABLE FOR THE ADDITIONAL PERIOD OR UNDER UNUSUAL CIRCUMSTANCES WHICH SEEM TO THE COMMISSION TO JUSTIFY AN EXTENSION BEYOND SIX MONTHS; AND IN NO CASE SHALL SUCH TEMPORARY APPOINTMENT EXTEND BEYOND 6 MONTHS FOR ANY PURPOSE OTHER THAN TO COMPLETE THE JOB OF WORK FOR WHICH THE PERSON WAS ORIGINALLY EMPLOYED. THE COMMISSION MAY RESTRICT CERTIFICATION FOR TEMPORARY APPOINTMENT TO SUCH ELIGIBLES AS BY REASON OF RESIDENCE OR OTHER CONDITIONS ARE IMMEDIATELY AVAILABLE.

IT IS UNDERSTOOD THE CIVIL SERVICE COMMISSION REFUSED TO EXTEND THE ORIGINAL APPOINTMENT OF MR. SHOUP FOR AN ADDITIONAL PERIOD AT A RATE OF COMPENSATION IN EXCESS OF $22.22 PER DIEM, ON THE BASIS OF ITS RULING AS SET FORTH IN A FOOTNOTE TO RULE VIII ON PAGE 37 OF THE CIVIL SERVICE RULES, AMENDED TO JUNE 30, 1937, AS FOLLOWS:

PROMOTION OF TEMPORARIES NOT PERMISSIBLE.--- TEMPORARY APPOINTMENTS ARE AUTHORIZED IN THE ABSENCE OF ELIGIBLES WHO ARE WILLING TO ACCEPT SERVICE UNDER CERTAIN SPECIFIC CONDITIONS AND AT A CERTAIN SALARY AS SET FORTH BY A DEPARTMENT OR OFFICE. AS THERE MAY BE ELIGIBLES WHO ARE WILLING TO ACCEPT APPOINTMENT AT A HIGHER SALARY OR UNDER DIFFERENT CONDITIONS FROM THOSE SPECIFIED BY THE DEPARTMENT OR OFFICE, IT WOULD BE UNFAIR TO SUCH ELIGIBLES TO ALLOW THE PROMOTION OF THE PERSONS TEMPORARILY APPOINTED. FURTHERMORE, SINCE TEMPORARY APPOINTMENTS IN POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923 ARE SUBJECT TO THE REQUIREMENTS OF THAT ACT THAT ALL NEW APPOINTMENTS MUST BE MADE AT THE MINIMUM RATE OF THE GRADE OR GRADES THEREOF, INCLUDING EXTENSIONS OF TEMPORARY APPOINTMENTS AND PROBATIONARY APPOINTMENTS. NO SALARY INCREASES WILL BE ALLOWED DURING TEMPORARY EMPLOYMENT IN POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923. NO CHANGE MAY BE MADE IN THE DUTIES OF A TEMPORARY APPOINTEE WITHOUT THE PRIOR CONSENT OF THE COMMISSION (MINUTE OF COMMISSION, NOV. 12, 1926, BASED ON DECISION, COMP. GEN., AUG. 30, 1926).

IN THE DECISION OF AUGUST 30, 1926 (A-15372), REFERRED TO IN THE ABOVE- QUOTED FOOTNOTE, COMPTROLLER GENERAL MCCARL, IN CONSIDERING THE APPLICATION OF CIVIL SERVICE RULE VIII TO RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923, STATED:

THE QUESTIONS NOW SUBMITTED RELATE TO WHETHER THE COMMISSION SHOULD AUTHORIZE ANY PROMOTION OF TEMPORARY APPOINTEES, IN VIEW OF THE PROVISIONS OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT, AS FOLLOWS:

"6. ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.'

IN DECISION OF JULY 14, 1924, 4 COMP. GEN. 54, 55, IT WAS HELD:

"* * * RULE 6 DOES NOT MEAN THAT ONLY THE FIRST APPOINTMENT GIVEN AN EMPLOYEE UNDER CIVIL SERVICE RULES AND REGULATIONS IS REQUIRED TO BE AT THE MINIMUM RATE, BUT THAT ANY NEW APPOINTMENT, REGARDLESS OF THE TEMPORARY OR PERMANENT CHARACTER THEREOF, MUST BE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS. NO OTHER CONSTRUCTION IS POSSIBLE UNDER THE TERMS OF THE RULE. THE PERMANENT APPOINTMENT OF AN EMPLOYEE SERVING UNDER A TEMPORARY APPOINTMENT IS A "NEW" APPOINTMENT AND MUST BE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS; ALSO A SECOND TEMPORARY APPOINTMENT OF AN EMPLOYEE MUST BE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS. * * *

"THE CLASSIFICATION ACT EXPRESSLY INCLUDES TEMPORARY EMPLOYEES. THE EMPLOYEE IN QUESTION 2 IS HOLDING A "POSITION" WITHIN THE MEANING OF THAT TERM AS USED IN THE CLASSIFICATION ACT AND IS THEREFORE SUBJECT TO ALL THE RULES OF SECTION 6 THEREOF.'

IT IS UNDERSTOOD THAT UNDER ALL OF THE SECTIONS OF RULE VIII THE DURATION OF INDIVIDUAL TEMPORARY APPOINTMENTS DOES NOT EXCEED THREE MONTHS, AT THE EXPIRATION OF WHICH ANOTHER TEMPORARY APPOINTMENT NOT TO EXCEED THREE MONTHS IS ISSUED IF NECESSARY AND PROPER. IN VIEW OF THE REQUIREMENTS OF LAW THAT THE INITIAL SALARY RATE UNDER ALL TEMPORARY APPOINTMENTS, INCLUDING THE SECOND MINIMUM SALARY RATE OF THE GRADE IN WHICH THE POSITION IS ALLOCATED, AND BECAUSE OF THE VERY NATURE OF AND REASONS FOR, TEMPORARY APPOINTMENTS, IT WOULD APPEAR TO BE ONLY REASONABLE AND PROPER FOR THE COMMISSION TO PRESCRIBE A GENERAL RULE THAT NO PROMOTION IS AUTHORIZED UNDER ANY TEMPORARY APPOINTMENT COMING WITHIN THE PROVISIONS OF THE CLASSIFICATION ACT.

IT APPEARS THAT PRIOR TO THE CLASSIFICATION ACT OF 1923, TEMPORARY EMPLOYEES COULD BE PROMOTED WITH THE CONSENT OF THE CIVIL SERVICE COMMISSION BUT THAT THE COMMISSION WILL NOT NOW APPROVE PROMOTIONS TO TEMPORARY EMPLOYEES BECAUSE OF THE DECISION QUOTED ABOVE AND THE REQUIREMENT OF THE CLASSIFICATION ACT THAT "ALL NEW APPOINTMENTS" BE MADE AT THE MINIMUM RATE OF THE GRADE. IT IS SUGGESTED IN YOUR SUBMISSION, SUPRA, THAT AN EXTENSION OF AN ORIGINAL TEMPORARY APPOINTMENT UNDER CIVIL SERVICE RULE VIII IS NOT A NEW APPOINTMENT WITHIN THE MEANING OF THE CLASSIFICATION ACT OF 1923, AND THE GENERAL COUNSEL OF THE TREASURY DEPARTMENT HAS STATED IN THIS RESPECT THAT---

THE VERY WORDING OF THE ABOVE SECTION (SECTION 4, RULE VIII) CLEARLY INDICATES THAT, UNDER ORDINARY CIRCUMSTANCES, IF A TEMPORARY APPOINTEE THEREUNDER IS CONTINUED IN THE SERVICE FOR LONGER THAN THREE MONTHS, HE IS NOT CONTINUED UNDER A NEW APPOINTMENT, BUT RATHER UNDER THE ORIGINAL ONE WHICH HAS BEEN EXTENDED. THE WORDS "EXTEND" OR "EXTENSION" HAVE BEEN CONSTRUED WITH REFERENCE TO MANY DIFFERENT TYPES OF SITUATIONS, BUT ALWAYS TO DESCRIBE AN ENLARGEMENT, CONTINUATION, OR PROLONGATION OF THE SPACE, TIME, OR STATUS OF SOME SUBJECT IN EXISTENCE, RATHER THAN THE CREATION OF SOMETHING NEW. * * *

I AM IN ACCORD WITH THE VIEW THAT AN "EXTENDED" APPOINTMENT IS NOT STRICTLY A "NEW" APPOINTMENT WITHIN THE MEANING OF THE CLASSIFICATION ACT, THE WORDS "EXTEND," "EXTENDED," AND "EXTENSION," AS USED IN CIVIL SERVICE RULE VIII CLEARLY RELATING TO THE ORIGINAL APPOINTMENT AND NOT TO A NEW APPOINTMENT. HOWEVER, THE FACT THAT A TEMPORARY EMPLOYEE IS CONTINUED IN THE SERVICE FOR LONGER THAN 3 MONTHS DOES NOT NECESSARILY MEAN THAT HIS ORIGINAL APPOINTMENT HAS BEEN EXTENDED. THE DETERMINATION OF THIS WOULD DEPEND UPON WHETHER THE CONTINUANCE IN THE SERVICE AFTER THE PERIOD FOR WHICH APPOINTED WAS, IN FACT, BY VIRTUE OF AN ACTUAL EXTENSION OF THE ORIGINAL APPOINTMENT, OR BY VIRTUE OF A NEW APPOINTMENT. AS TO THIS, THE TERMS OF THE CIVIL SERVICE COMMISSION'S AUTHORIZATION WOULD APPEAR TO BE CONTROLLING.

THE MATTER OF AUTHORIZING TEMPORARY APPOINTMENTS IS A DISCRETIONARY ONE EXCLUSIVELY WITHIN THE JURISDICTION OF THE CIVIL SERVICE COMMISSION, AND WHETHER, IN A PARTICULAR CASE, AN ORIGINAL APPOINTMENT IS TO BE EXTENDED, AS SUCH, OR WHETHER THE EMPLOYEE'S SERVICES ARE TO BE CONTINUED BY VIRTUE OF A NEW APPOINTMENT IS A MATTER FOR THE COMMISSION TO DETERMINE IN THE EXERCISE OF ITS AUTHORITY AND DISCRETION. SO, ALSO, IS THE MATTER OF PROMOTIONS WITHIN THE JURISDICTION OF THE CIVIL SERVICE COMMISSION, SECTION 4 OF THE ACT OF AUGUST 23, 1912, 37 STAT. 413, PROVIDING THAT " ALL PROMOTIONS, DEMOTIONS, OR DISMISSALS SHALL BE GOVERNED BY PROVISIONS OF THE CIVIL SERVICE ES.' HENCE, IT IS NOT THE PROVINCE OF THIS OFFICE TO DETERMINE WHEN, OR UNDER WHAT CONDITIONS OF EMPLOYMENT, A TEMPORARY APPOINTMENT IS TO BE MADE, EXTENDED, OR TERMINATED AND RENEWED. IN THIS CONNECTION IT IS TO BE NOTED THAT THE DECISION OF AUGUST 30, 1926, HEREINBEFORE QUOTED, DID NOT PURPORT TO ANNOUNCE A RULE, BINDING UPON THE CIVIL SERVICE COMMISSION, TO THE EFFECT THAT NO PROMOTION IS AUTHORIZED UNDER A TEMPORARY APPOINTMENT. THE ONLY EFFECT OF THE DECISION IN THIS RESPECT WAS TO ADVISE THE COMMISSION IN SUBSTANCE THAT IT HAD THE AUTHORITY TO PRESCRIBE SUCH A RULE--- NOT THAT IT MUST PRESCRIBE SUCH A RULE. FURTHERMORE, AN ANSWER TO THE QUESTION WHETHER AN EMPLOYEE SERVING UNDER A TEMPORARY APPOINTMENT MAY BE PROMOTED IS NOT NECESSARILY DETERMINATIVE OF THE QUESTION WHETHER, AFTER THE EXPIRATION OF THE PERIOD FOR WHICH APPOINTED, A TEMPORARY EMPLOYEE MAY BE CONTINUED IN THE SERVICE AT AN INCREASED SALARY. OF COURSE, THE COMPENSATION TO BE PAID A TEMPORARY EMPLOYEE IS A MATERIAL PART OF HIS APPOINTMENT AND THERE MAY BE SOME QUESTION AS TO WHETHER A CONTINUATION IN THE SERVICE AT AN INCREASED RATE OF COMPENSATION COULD BE REGARDED AS BY VIRTUE OF AN EXTENSION OF THE ORIGINAL APPOINTMENT--- WHICH WAS AT A DIFFERENT RATE OF COMPENSATION--- OR AS BY VIRTUE OF A NEW APPOINTMENT. THAT, HOWEVER, IS A MATTER WHICH APPEARS TO BE PROPERLY FOR THE CONSIDERATION OF THE CIVIL SERVICE COMMISSION.