B-5004, AUGUST 5, 1939, 19 COMP. GEN. 160

B-5004: Aug 5, 1939

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APPOINTMENTS TO WHICH ARE AUTHORIZED BY THE CIVIL SERVICE COMMISSION UNDER EXECUTIVE ORDER NO. 8043. ARE EXEMPT FROM THE CLASSIFICATION ACT OF 1923. IS NOT FOR AFFIRMATIVE DETERMINATION. - THAT IS. THAT THEY ARE EXEMPT FROM CLASSIFICATION. - MERELY BECAUSE THEY ARE CIVIL SERVICE RULE EXEMPTED POSITIONS. OR THAT THEY ARE IN THE FIELD SERVICE. IS FOR DETERMINATION ON THE BASIS OF WHETHER EXEMPTED FROM CLASSIFICATION BY STATUTE. 1939: I HAVE YOUR LETTER OF JULY 18. THE DEPARTMENT WILL BE PLEASED TO RECEIVE YOUR DECISION AS TO WHETHER THE CLASSIFICATION ACT OF 1923. ARE SEPARATE AND DISTINCT WITH ENTIRELY DIFFERENT SCOPES AND PURPOSES. 17 COMP. THE FACT THAT APPOINTMENTS TO THE POSITIONS LISTED IN YOUR LETTER ARE EXEMPTED FROM COMPETITIVE EXAMINATION DOES NOT EXEMPT THE POSITIONS FROM THE CLASSIFICATION ACT.

B-5004, AUGUST 5, 1939, 19 COMP. GEN. 160

CLASSIFICATION - FIELD SERVICE - COAST AND GEODETIC SURVEY - CIVIL SERVICE RULE EXEMPTED POSITIONS OF VARIOUS TYPES, ETC. WHETHER VARIOUS TYPE POSITIONS IN THE FIELD SERVICE OF THE COAST AND GEODETIC SURVEY, APPOINTMENTS TO WHICH ARE AUTHORIZED BY THE CIVIL SERVICE COMMISSION UNDER EXECUTIVE ORDER NO. 8043, DATED JANUARY 31, 1939, WITHOUT EXAMINATION OR WITH NONCOMPETITIVE EXAMINATION, ARE EXEMPT FROM THE CLASSIFICATION ACT OF 1923, AS AMENDED, IS NOT FOR AFFIRMATIVE DETERMINATION--- THAT IS, THAT THEY ARE EXEMPT FROM CLASSIFICATION--- MERELY BECAUSE THEY ARE CIVIL SERVICE RULE EXEMPTED POSITIONS, OR TEMPORARY POSITIONS, OR MIXED CLASSIFICATION EXEMPT AND NONEXEMPT POSITIONS, OR THAT THEY ARE IN THE FIELD SERVICE, BUT IS FOR DETERMINATION ON THE BASIS OF WHETHER EXEMPTED FROM CLASSIFICATION BY STATUTE, AND THE INTERPRETATIONS IN THE NUMEROUS CITED DECISIONS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF COMMERCE, AUGUST 5, 1939:

I HAVE YOUR LETTER OF JULY 18, 1939, AS FOLLOWS:

UNDER DATE OF MAY 15, 1939, THE CIVIL SERVICE COMMISSION ADVISED THIS DEPARTMENT THAT APPOINTMENTS TO THE FOLLOWING POSITIONS IN THE FIELD SERVICE OF THE COAST AND GEODETIC SURVEY MAY BE MADE UNDER EXECUTIVE ORDER NO. 8043 OF JANUARY 31, 1939, WITHOUT REFERENCE TO THE CIVIL SERVICE COMMISSION'S REGISTERS OF ELIGIBLES:

APPOINTMENTS TO POSITIONS OF SEISMOGRAPH TENDER AND TIDE OBSERVERS, UNDER SCHEDULE A, SUBDIVISION I, PARAGRAPH 6, WHERE THE COMPENSATION IN EACH CASE DOES NOT EXCEED $540 PER ANNUM.

APPOINTMENTS TO THE FOLLOWING POSITIONS UNDER SCHEDULE A, SUBDIVISION XI, PARAGRAPH 7, FOR SHORT PERIODS DURING THE CONDUCT OF SEASONAL SURVEYING OPERATIONS, THE APPOINTEES IN NO CASE TO SERVE MORE THAN SIX MONTHS IN ANY ONE CALENDAR YEAR:

"BENCH-MARK SETTERS, COOKS, HANDS, HELMSMEN, HYDROGRAPHIC OBSERVERS, LAUNCH ENGINEERS, LOADSMEN, LIGHTKEEPERS, MECHANICS, RADIOMEN, RECORDERS, RODMEN, SIGNAL BUILDER, STEEL HAULERS, TRUCK DRIVERS, UMBRELLAMEN, AND WATCHMEN.'

ACCORDINGLY, THE DEPARTMENT WILL BE PLEASED TO RECEIVE YOUR DECISION AS TO WHETHER THE CLASSIFICATION ACT OF 1923, AS AMENDED, HAS ANY APPLICATION IN CONNECTION WITH MAKING SUCH APPOINTMENTS.

EXECUTIVE ORDER NO. 8043, DATED JANUARY 31, 1939, ANNOUNCED SCHEDULES A AND B OF CIVIL SERVICE RULES COMPRISING EXEMPTED POSITIONS, APPOINTMENTS TO WHICH MAY BE MADE WITHOUT EXAMINATION OR WITH NONCOMPETITIVE EXAMINATION.

THE CIVIL SERVICE LAWS AND REGULATIONS, HAVING TO DO WITH APPOINTMENTS, AND THE CLASSIFICATION ACT OF 1923, HAVING TO DO WITH THE FIXING OF SALARY RATES, ARE SEPARATE AND DISTINCT WITH ENTIRELY DIFFERENT SCOPES AND PURPOSES. 17 COMP. GEN. 578; 18 ID. 796. THE FACT THAT APPOINTMENTS TO THE POSITIONS LISTED IN YOUR LETTER ARE EXEMPTED FROM COMPETITIVE EXAMINATION DOES NOT EXEMPT THE POSITIONS FROM THE CLASSIFICATION ACT. COMP. GEN. 827; 18 ID. 223.

IN DECISION OF JULY 7, 1939, B-4565, 19 COMP. GEN. 20, IT WAS STATED:

* * * THE SETTLED RULE HAS BEEN THAT IF A STATUTE AUTHORIZING THE EMPLOYMENT OF PERSONAL SERVICES DOES NOT EXPRESSLY PROVIDE THAT SALARY RATES MAY BE FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT, THE TERMS OF THE CLASSIFICATION ACT REQUIRE ITS APPLICATION. THE RULE IS STATED IN DECISION OF JUNE 24, 1937, 16 COMP. GEN. 1107, 1109, AS FOLLOWS:

"* * * ACCORDINGLY, THERE WAS ADOPTED THE GENERAL RULE THAT, IN THE ABSENCE OF STATUTORY EXEMPTION, THE SALARY RATES OF PERSONNEL OF ALL FEDERAL AGENCIES, BOTH IN THE DEPARTMENTAL AND FIELD SERVICES, ARE REQUIRED TO BE FIXED IN ACCORDANCE WITH THE SCHEDULES OR RATES PRESCRIBED IN THE CLASSIFICATION ACT, AS AMENDED. SEE 14 COMP. GEN. 420; ID. 762; DECISION OF NOVEMBER 4, 1936, A-80878; DECISION OF OCTOBER 20, 1936, A- 80867; AND DECISION OF OCTOBER 15, 1936, A 80021.' SEE, ALSO, 17, COMP. GEN. 578.

NOTHING APPEARS IN THE WORDING OF THE APPROPRIATION ITEMS FOR THE COAST AND GEODETIC SURVEY, ACT OF JUNE 29, 1939, 53 STAT. 885, 914, EXEMPTING ANY CIVILIAN POSITION FROM THE TERMS OF THE CLASSIFICATION ACT. AS THE POSITIONS LISTED IN YOUR LETTER ARE FIELD POSITIONS, THERE IS FOR CONSIDERATION IN DETERMINING WHETHER SALARY RATES OF THE POSITIONS MUST BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED, SECTION 2 OF THE BROOKHART SALARY ACT, DATED JULY 3, 1930, 46 STAT. 1005, WHICH PROVIDES AS FOLLOWS:

THE HEADS OF THE SEVERAL EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS ARE AUTHORIZED AND DIRECTED TO ADJUST THE COMPENSATION OF CERTAIN CIVILIAN POSITIONS IN THE FIELD SERVICES, THE COMPENSATION OF WHICH WAS ADJUSTED BY THE ACT OF DECEMBER 6, 1924 (43 STAT. 604), TO CORRESPOND, SO FAR AS MAY BE PRACTICABLE, TO THE RATES ESTABLISHED BY THE ACT OF MAY 28, 1928 ( U.S.C., SUPP. 3, TITLE 5, SEC. 673), AND BY THIS ACT FOR POSITIONS IN THE DEPARTMENTAL SERVICES IN THE DISTRICT OF COLUMBIA: *

IN A DECISION DATED JANUARY 6, 1932, TO THE SECRETARY OF WAR, 11 COMP. GEN. 259, IT WAS HELD AS FOLLOWS, QUOTING FROM THE FIRST PARAGRAPH OF THE SYLLABUS:

THE TEST FOR DETERMINING WHETHER A FIELD POSITION IS SUBJECT TO THE PRINCIPLES OF CLASSIFICATION UNDER THE TERMS OF SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, IS THE ACTION TAKEN BY THE PERSONNEL CLASSIFICATION BOARD AS TO THE SAME OR SIMILAR POSITION IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA. SEE, ALSO, 14 COMP. GEN. 420; ID. 763; 15 ID. 128; 16 ID. 1107; 17 ID. 578; 18 ID. 887.

SECTION 5 OF THE ORIGINAL CLASSIFICATION ACT OF 1923, APPROVED MARCH 4, 1923, 42 STAT. 1489, CONTAINS A PROVISION AS FOLLOWS:

THAT THE COMPENSATION SCHEDULES SHALL APPLY ONLY TO CIVILIAN EMPLOYEES IN THE DEPARTMENTS WITHIN THE DISTRICT OF COLUMBIA AND SHALL NOT APPLY TO EMPLOYEES IN POSITIONS THE DUTIES OF WHICH ARE TO PERFORM OR ASSIST IN APPRENTICE, HELPER, OR JOURNEYMAN WORK IN A RECOGNIZED TRADE OR CRAFT AND SKILLED AND SEMISKILLED LABORERS, EXCEPT SUCH AS ARE UNDER THE DIRECTION AND CONTROL OF THE CUSTODIAN OF A PUBLIC BUILDING OR PERFORM WORK WHICH SUBORDINATE, INCIDENTAL, OR PREPARATORY TO WORK OFA PROFESSIONAL, SCIENTIFIC, OR TECHNICAL CHARACTER. * * * AS TO THE APPLICATION OF THIS PROVISION IN THE FIELD SERVICE, SEE DECISION OF APRIL 18, 1939, 18 COMP. GEN. 796.

THE FACT THAT A POSITION MAY BE TEMPORARY DOES NOT EXEMPT IT FROM THE CLASSIFICATION ACT IF THE DUTIES THEREOF OTHERWISE BRING IT WITHIN THE SCOPE THEREOF. 4 COMP. GEN. 296; ID. 743; ID. 851. THE RULE REGARDING POSITIONS WITH MIXED DUTIES PARTLY WITHIN AND PARTLY WITHOUT THE SCOPE OF THE CLASSIFICATION ACT IS STATED IN DECISION OF MAY 20, 1925, 4 COMP. GEN. 959.

YOU DO NOT STATE WHETHER ANY OF THE POSITIONS INVOLVED ARE REQUIRED TO BE FILLED BY "VESSEL EMPLOYEES" AFFECTED BY THE ACT OF FEBRUARY 26, 1931, 46 STAT. 1421, PROVIDING AS FOLLOWS:

THAT THE SECRETARY OF COMMERCE IS AUTHORIZED, IN HIS DISCRETION, TO CONTINUE THE SYSTEM OF PAY AND ALLOWANCES, INCLUDING ALLOWANCES FOR LONGEVITY, FOR OFFICERS AND MEN ON VESSELS OF THE DEPARTMENT OF COMMERCE, THAT WAS IN OPERATION AS OF JULY 1, 1929, UNTIL SUCH TIMEAS LEGISLATION SHALL BE ENACTED PURSUANT TO SECTION 2 OF THE ACT APPROVED MAY 28, 1928 (45 STAT. 785), OR SIMILAR LEGISLATION AFFECTING THE CLASSIFICATION OF VESSEL EMPLOYEES IN THE FIELD SERVICE OF THE GOVERNMENT.

IN THE ABSENCE OF A DESCRIPTION OF THE DUTIES AND RESPONSIBILITIES INVOLVED, THIS OFFICE CANNOT ADVISE YOU AS TO WHETHER ANY OR ALL OF THE POSITIONS LISTED IN YOUR LETTER ARE WITHIN OR WITHOUT THE PURVIEW OF THE CLASSIFICATION ACT, AS AMENDED. HOWEVER, IT MAY BE STATED GENERALLY THAT IF THERE BE NO SIMILAR POSITIONS IN THE DEPARTMENTAL SERVICE WITHIN THE PURVIEW OF THE CLASSIFICATION ACT, UNDER THE GENERAL RULES STATED IN THE CITED DECISIONS, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO THE FIXING OF THE SALARY RATES OF THE POSITIONS IN QUESTION WITHOUT REGARD TO THE CLASSIFICATION ACT, AS AMENDED.