B-5103, AUGUST 4, 1939, 19 COMP. GEN. 157

B-5103: Aug 4, 1939

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IS NOT LIMITED IN ITS APPLICATION TO PERSONNEL TRANSFERRED FROM ONE EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT TO ANOTHER. IS EQUALLY APPLICABLE TO THE PERSONNEL OF AGENCIES. 1939: I HAVE YOUR LETTER OF JULY 22. II THE NATIONAL BITUMINOUS COAL COMMISSION IS ABOLISHED AND THE FUNCTIONS TRANSFERRED TO THE SECRETARY OF THE INTERIOR. THE OFFICE OF THE CONSUMERS' COUNSEL IS ABOLISHED AND THE FUNCTIONS TRANSFERRED TO THE OFFICE OF THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR. THE NATIONAL BITUMINOUS COAL COMMISSION AND THE OFFICE OF THE CONSUMERS' COUNSEL WERE ESTABLISHED "IN THE DEPARTMENT OF THE INTERIOR" BY THE ACT OF APRIL 26. THE QUESTION HERE PRESENTED IS WHETHER SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939 ( PUBLIC NO. 19.

B-5103, AUGUST 4, 1939, 19 COMP. GEN. 157

COMPENSATION - SALARY CHANGES - PERSONNEL TRANSFERRED WITHIN A DEPARTMENT UNDER REORGANIZATION PLAN SECTION 10 (B) OF THE REORGANIZATION ACT OF APRIL 3, 1939, 53 STAT. 563, PROHIBITING CHANGE IN CLASSIFICATION OR COMPENSATION AS SPECIFIED THEREIN IN ANY TRANSFER OF PERSONNEL UNDER TITLE I OF THE ACT, IS NOT LIMITED IN ITS APPLICATION TO PERSONNEL TRANSFERRED FROM ONE EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT TO ANOTHER, BUT IS EQUALLY APPLICABLE TO THE PERSONNEL OF AGENCIES, OR PERSONNEL USED IN THE ADMINISTRATION OF FUNCTIONS, TRANSFERRED UNDER SECTION 402 OF REORGANIZATION PLAN NO. II WITHIN A DEPARTMENT OR INDEPENDENT ESTABLISHMENT, AND ACCORDINGLY, APPLIES TO PERSONNEL OF THE NATIONAL BITUMINOUS COAL COMMISSION, AND THE OFFICE OF CONSUMERS' COUNSEL OF SAID COMMISSION, USED IN THE ADMINISTRATION OF FUNCTIONS TRANSFERRED FROM SAID AGENCIES TO THE SECRETARY OF THE INTERIOR, AND THE OFFICE OF THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR, RESPECTIVELY, BY SECTION 4 OF REORGANIZATION PLAN NO. II, NOTWITHSTANDING THE COMMISSION AND THE OFFICE OF CONSUMERS' COUNSEL HAD BEEN "ESTABLISHED IN THE DEPARTMENT OF THE INTERIOR" BY SECTION 2 OF THE ACT OF APRIL 26, 1937, 50 STAT. 72.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, AUGUST 4, 1939:

I HAVE YOUR LETTER OF JULY 22, 1939, AS FOLLOWS:

UNDER SECTION 4 OF REORGANIZATION PLAN NO. II THE NATIONAL BITUMINOUS COAL COMMISSION IS ABOLISHED AND THE FUNCTIONS TRANSFERRED TO THE SECRETARY OF THE INTERIOR; AND THE OFFICE OF THE CONSUMERS' COUNSEL IS ABOLISHED AND THE FUNCTIONS TRANSFERRED TO THE OFFICE OF THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR, UNDER THE DIRECTION AND SUPERVISION OF THE SECRETARY OF THE INTERIOR. THE NATIONAL BITUMINOUS COAL COMMISSION AND THE OFFICE OF THE CONSUMERS' COUNSEL WERE ESTABLISHED "IN THE DEPARTMENT OF THE INTERIOR" BY THE ACT OF APRIL 26, 1937, AND THE QUESTION HERE PRESENTED IS WHETHER SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939 ( PUBLIC NO. 19, 76TH CONGRESS), RELATING SPECIFICALLY TO "ANY TRANSFER OF PERSONNEL," HAS APPLICATION TO THE PERSONNEL OF THE FORMER NATIONAL BITUMINOUS COAL COMMISSION AND THE OFFICE OF THE CONSUMERS' COUNSEL INVOLVED IN THE REORGANIZATION. IT WOULD SEEM THAT THERE IS A REORGANIZATION OF FUNCTIONS WITHIN THE DEPARTMENT OF THE INTERIOR RATHER THAN A TRANSFER OF PERSONNEL, AS CONTEMPLATED IN SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939.

SECTIONS 2 (A), 2 (B) (1), AND 2 (B) (3) OF THE ACT OF APRIL 26, 1937, 50 STAT. 72, 74, PROVIDE, IN PART, AS FOLLOWS:

SEC. 2 (A). THERE IS HEREBY ESTABLISHED IN THE DEPARTMENT OF THE INTERIOR A NATIONAL BITUMINOUS COAL COMMISSION (HEREIN REFERRED TO AS COMMISSION), WHICH SHALL BE COMPOSED OF SEVEN MEMBERS APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, FOR A TERM OF FOUR YEARS. * * * THE COMMISSION IS AUTHORIZED TO APPOINT AND FIX THE COMPENSATION AND DUTIES OF A SECRETARY AND NECESSARY PROFESSIONAL, CLERICAL, AND OTHER ASSISTANTS. * * *

(B) (1) THERE IS HEREBY ESTABLISHED AN OFFICE IN THE DEPARTMENT OF THE INTERIOR TO BE KNOWN AS THE OFFICE OF THE CONSUMERS' COUNSEL OF THE NATIONAL BITUMINOUS COAL COMMISSION. THE OFFICE SHALL BE IN CHARGE OF A COUNSEL TO BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. * * *

(3) THE COUNSEL IS AUTHORIZED TO APPOINT AND FIX THE COMPENSATION AND DUTIES OF NECESSARY PROFESSIONAL, CLERICAL, AND OTHER ASSISTANTS. * * *

SECTION 4 OF THE REORGANIZATION PLAN NO. II PROVIDES, IN PART, AS FOLLOWS:

SEC. 4. DEPARTMENT OF THE INTERIOR.--- TRANSFERS, CONSOLIDATIONS, AND ABOLITIONS RELATING TO THE DEPARTMENT OF THE INTERIOR ARE HEREBY EFFECTED AS FOLLOWS:

(A) FUNCTIONS OF THE NATIONAL BITUMINOUS COAL COMMISSION TRANSFERRED. -- THE FUNCTIONS OF THE NATIONAL BITUMINOUS COAL COMMISSION (INCLUDING THE FUNCTIONS OF THE MEMBERS OF THE COMMISSION) ARE HEREBY TRANSFERRED TO THE SECRETARY OF THE INTERIOR TO BE ADMINISTERED UNDER HIS DIRECTION AND SUPERVISION BY SUCH DIVISION, BUREAU, OR OFFICE IN THE DEPARTMENT OF THE INTERIOR AS THE SECRETARY SHALL DETERMINE.

(B) NATIONAL BITUMINOUS COAL COMMISSION ABOLISHED.--- THE NATIONAL BITUMINOUS COAL COMMISSION AND THE OFFICES OF THE MEMBERS THEREOF ARE HEREBY ABOLISHED AND THE OUTSTANDING AFFAIRS OF THE COMMISSION SHALL BE WOUND UP BY THE SECRETARY OF THE INTERIOR.

(C) OFFICE OF CONSUMERS' COUNSEL ABOLISHED AND FUNCTIONS TRANSFERRED.--- THE OFFICE OF CONSUMERS' COUNSEL OF THE NATIONAL BITUMINOUS COAL COMMISSION IS HEREBY ABOLISHED AND ITS FUNCTIONS ARE TRANSFERRED TO, AND SHALL BE ADMINISTERED IN, THE OFFICE OF THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR UNDER THE DIRECTION AND SUPERVISION OF THE SECRETARY OF THE INTERIOR.

SECTION 402 OF THE SAME REORGANIZATION PLAN, UNDER THE HEADING " TRANSFER OF RECORDS, PROPERTY, AND PERSONNEL," CONTAINS THE FOLLOWING GENERAL PROVISION:

* * * ALL THE PERSONNEL USED IN THE ADMINISTRATION OF SUCH AGENCIES AND FUNCTIONS (INCLUDING OFFICERS WHOSE CHIEF DUTIES RELATE TO SUCH ADMINISTRATION) ARE HEREBY TRANSFERRED TO THE RESPECTIVE DEPARTMENTS OR AGENCIES CONCERNED, FOR USE IN THE ADMINISTRATION OF THE AGENCIES AND FUNCTIONS TRANSFERRED BY THIS PLAN: * * *

SECTION 10 (B) OF THE REORGANIZATION ACT OF APRIL 3, 1939, 53 STAT. 563, IS AS FOLLOWS:

ANY TRANSFER OF PERSONNEL UNDER THIS TITLE SHALL BE WITHOUT CHANGE IN CLASSIFICATION OR COMPENSATION, EXCEPT THAT THIS REQUIREMENT SHALL NOT OPERATE AFTER THE END OF THE FISCAL YEAR DURING WHICH THE TRANSFER IS MADE TO PREVENT THE ADJUSTMENT OF CLASSIFICATION OR COMPENSATION TO CONFORM TO THE DUTIES TO WHICH SUCH TRANSFERRED PERSONNEL MAY BE ASSIGNED.

THE REORGANIZATION PLANS WERE MADE EFFECTIVE JULY 1, 1939. PUBLIC RESOLUTION NO. 20 DATED JUNE 7, 1939, 53 STAT. 813.

SECTION 4 OF REORGANIZATION PLAN NO. II ABOLISHED THE NATIONAL BITUMINOUS COAL COMMISSION, THE OFFICES OF THE MEMBERS THEREOF, AND THE OFFICE OF THE CONSUMERS' COUNSEL OF THE NATIONAL BITUMINOUS COAL COMMISSION, BUT THE FUNCTIONS OF THE COMMISSION AND OF ITS MEMBERS WERE TRANSFERRED TO THE SECRETARY OF THE INTERIOR, AND THE FUNCTIONS OF THE OFFICE OF THE CONSUMERS' COUNSEL WERE TRANSFERRED TO THE OFFICE OF THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR UNDER THE DIRECTION AND SUPERVISION OF THE SECRETARY OF THE INTERIOR. ORDINARILY, THE ABOLISHMENT OF AN AGENCY OF THE GOVERNMENT ABOLISHES, ALSO, ALL POSITIONS THEREUNDER AND AUTOMATICALLY TERMINATES THE SERVICES OF ALL PERSONNEL THEREOF. 14 COMP. GEN. 738; 17 ID. 376. HOWEVER, IN THE INSTANT CASE, SECTION 402 OF REORGANIZATION PLAN NO. II, ABOVE QUOTED, SPECIFICALLY TRANSFERS NOT ONLY THE PERSONNEL USED IN THE ADMINISTRATION OF AN AGENCY TRANSFERRED, BUT, ALSO, THE PERSONNEL USED IN THE ADMINISTRATION OF FUNCTION PRIOR TO JULY 1, 1939, HAS BEEN ABOLISHED.

ACCORDINGLY, ALL OF THE PERSONNEL OF THE NATIONAL BITUMINOUS COAL COMMISSION, OTHER THAN THE MEMBERS OF THE COMMISSION WHOSE OFFICES WERE SPECIFICALLY ABOLISHED, WERE TRANSFERRED TO AND BECAME EMPLOYEES OF THE SECRETARY OF THE INTERIOR EFFECTIVE JULY 1, 1939, AND ALL OF THE PERSONNEL OF THE OFFICE OF CONSUMERS' COUNSEL OF THE NATIONAL BITUMINOUS COAL COMMISSION, OTHER THAN THE CONSUMERS' COUNSEL, WHOSE OFFICE WAS ABOLISHED, WERE TRANSFERRED TO THE OFFICE OF THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR EFFECTIVE JULY 1, 1939, AND LIKEWISE BECAME EMPLOYEES OF THE SECRETARY OF THE INTERIOR.

THERE IS NOTHING IN THE WORDING OF SECTION 10 (B) OF THE REORGANIZATION ACT, SUPRA, WHICH CAN BE CONSTRUED AS LIMITING ITS APPLICATION, AS URGED, TO PERSONNEL TRANSFERRED FROM ONE EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT TO ANOTHER. SAID SECTION IS EQUALLY APPLICABLE TO THE PERSONNEL OF AGENCIES, OR PERSONNEL USED IN THE ADMINISTRATION OF FUNCTIONS, TRANSFERRED UNDER SECTION 402 OF REORGANIZATION PLAN NO. II WITHIN A DEPARTMENT OR INDEPENDENT ESTABLISHMENT. THE TERM "AGENCY" IS DEFINED IN SECTION 2 OF THE REORGANIZATION ACT OF 1939, 53 STAT. 561, AS FOLLOWS:

WHEN USED IN THIS TITLE, THE TERM "AGENCY" MEANS ANY EXECUTIVE DEPARTMENT, COMMISSION, INDEPENDENT ESTABLISHMENT, CORPORATION OWNED OR CONTROLLED BY THE UNITED STATES, BOARD, BUREAU, DIVISION, SERVICE, OFFICE, AUTHORITY, OR ADMINISTRATION, IN THE EXECUTIVE BRANCH OF THE GOVERNMENT.

ACCORDINGLY, IT MUST BE HELD, IN ANSWER TO THE QUESTION PRESENTED, THAT SECTION 10 (B) OF THE REORGANIZATION ACT IS APPLICABLE TO THE PERSONNEL OF THE NATIONAL BITUMINOUS COAL COMMISSION AND OF THE OFFICE OF THE CONSUMERS' COUNSEL THE FUNCTIONS OF WHICH WERE TRANSFERRED UNDER SUBSECTIONS (A) AND (C), RESPECTIVELY, OF SECTION 4 OF REORGANIZATION PLAN NO. II. CF. B-4464, DATED JUNE 24, 1939.