B-5994, SEPTEMBER 21, 1939, 19 COMP. GEN. 383

B-5994, SEPTEMBER 21, 1939, 19 COMP. GEN. 383

COMPENSATION AND CLASSIFICATION CHANGES - TRANSFERRED REORGANIZATION PLAN PERSONNEL - PROJECT EMPLOYEES AND ADMINISTRATIVE EMPLOYEES PAID FROM EMERGENCY RELIEF FUNDS PROJECT WORKERS PAID EITHER A SECURITY WAGE, OR A SALARY IN A SUPERVISORY CAPACITY, FROM PROJECT FUNDS ALLOTTED UNDER EMERGENCY RELIEF APPROPRIATION ACTS, WHO ARE NOT APPOINTED TO POSITIONS--- AS DISTINGUISHED FROM ADMINISTRATIVE EMPLOYEES PAID THE REGULAR RATE OF COMPENSATION FOR THE POSITION TO WHICH REGULARLY APPOINTED FROM ALLOCATIONS FOR ADMINISTRATIVE EXPENSES--- ARE NOT TO BE REGARDED AS "PERSONNEL" WITHIN THE MEANING OF SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939, 53 STAT. 563, PROHIBITING ANY CHANGE IN CLASSIFICATION OR COMPENSATION DURING THE FISCAL YEAR 1940, OF ,PERSONNEL" TRANSFERRED UNDER TITLE I OF THE SAID ACT, AND, ACCORDINGLY, THE SAID SECTION DOES NOT PROHIBIT EITHER THE ASSIGNMENT OF A RELIEF WORKER BEING PAID THE SECURITY WAGE TO BE A PROJECT SUPERVISORY EMPLOYEE WITH DIFFERENT DUTIES AND COMPENSATION, OR THE ASSIGNMENT OF A PROJECT SUPERVISORY EMPLOYEE TO THE DUTIES OF, AND AT THE COMPENSATION RATE RECEIVED BY, A SIMILAR EMPLOYEE WHO HAS RESIGNED, EVEN THOUGH A CHANGE OF COMPENSATION IS INVOLVED. THE FISCAL YEAR 1940 PROHIBITORY PERSONNEL COMPENSATION AND CLASSIFICATION CHANGE PROVISIONS OF SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939, 53 STAT. 563, DO NOT PROHIBIT THE ASSIGNMENT OF A TEMPORARY EMPLOYEE OF THE OFFICE OF EDUCATION PAID FROM REGULAR APPROPRIATED FUNDS, UPON EXPIRATION OF HIS TEMPORARY APPOINTMENT DURING THE FISCAL YEAR 1940, AS A PROJECT WORKER WITH A FEDERAL PROJECT OF THE OFFICE OF EDUCATION AT A RATE DIFFERENT FROM THE RATE UNDER HIS TEMPORARY APPOINTMENT. THE FISCAL YEAR 1940 PROHIBITORY PERSONNEL COMPENSATION AND CLASSIFICATION CHANGE PROVISIONS OF SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939, 53 STAT. 563, DO NOT PROHIBIT THE PROBATIONARY APPOINTMENT OF A PROJECT SUPERVISORY EMPLOYEE ASSIGNED TO A FEDERAL PROJECT OF THE OFFICE OF EDUCATION--- UPON HIS CERTIFICATION TO THE SAID OFFICE BY THE CIVIL SERVICE COMMISSION FOR SUCH APPOINTMENT -- TO A PERMANENT POSITION, WITH PAYMENT FROM REGULAR APPROPRIATED FUNDS AT A HIGHER SALARY THAN HE RECEIVED AS A PROJECT WORKER. ADMINISTRATIVE EMPLOYEES PAID FROM EMERGENCY RELIEF ACT ALLOTMENTS FOR ADMINISTRATIVE EXPENSES--- AS DISTINGUISHED FROM PROJECT WORKERS PAID FROM PROJECT FUNDS--- ARE APPOINTED TO POSITIONS AND ARE OFFICERS AND EMPLOYEES OF THE UNITED STATES, AND WHERE SUCH EMPLOYEES WERE TRANSFERRED FROM THE INTERIOR DEPARTMENT TO THE FEDERAL SECURITY AGENCY PURSUANT TO THE TERMS OF THE REORGANIZATION ACT OF 1939, 53 STAT. 563, AND SECTION 201 OF THE PRESIDENT'S REORGANIZATION PLAN NO. 1, SECTION 10 (B) OF THE SAID ACT PRECLUDES ANY CHANGE IN THEIR CLASSIFICATION OR COMPENSATION DURING THE FISCAL YEAR 1940.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE FEDERAL SECURITY ADMINISTRATOR, SEPTEMBER 21, 1939:

I HAVE YOUR LETTER OF SEPTEMBER 7, 1939, AS FOLLOWS:

THE REORGANIZATION ACT OF 1939 ( PUBLIC, NO. 19, 76TH CONG.), CONTAINS, IN SECTION 10 (B), THE FOLLOWING LANGUAGE WITH RESPECT TO THE ADJUSTMENT OF CLASSIFICATION OR COMPENSATION DURING THE PRESENT FISCAL YEAR:

"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.'

A QUESTION HAS ARISEN WITHIN THIS AGENCY AS TO THE EFFECT OF THIS LANGUAGE ON PERSONNEL ADMINISTRATION WITH RESPECT TO PROJECT WORKERS IN THE OFFICE OF EDUCATION WHO ARE PAID WITH FUNDS APPROPRIATED BY CONGRESS IN EMERGENCY RELIEF APPROPRIATION ACTS.

A FEDERAL AGENCY PROJECT IN THE OFFICE OF EDUCATION UNDER THE VARIOUS E.R.A. ACTS OPERATES FROM FISCAL PERIOD TO FISCAL PERIOD UPON THE BASIS OF AN APPLICATION FOR FUNDS MADE BY THE OFFICE OF EDUCATION TO THE WORK PROJECTS ADMINISTRATION. DIFFERENT AMOUNTS ARE ALLOCATED EACH YEAR AND THE WORK UNDERTAKEN EACH YEAR FREQUENTLY VARIES IN ITS SPECIFIC ASPECTS. FOR EXAMPLE, THE FEDERAL EDUCATIONAL RADIO PROJECT HAS RECEIVED THE FOLLOWING ALLOCATIONS SINCE DECEMBER 1935, $75,000, $113,000, $128,698, $295,000, AND $250,000. EACH OF THESE ALLOCATIONS COVERED A SEPARATE PROJECT WHICH WAS ENDED AT THE END OF THE FISCAL YEAR. EACH OF THESE ALLOCATIONS HAD A SEPARATE OFFICIAL PROJECT NUMBER; WAS COVERED BY A SEPARATE PRESIDENTIAL LETTER; HAD A DIFFERENT EMPLOYMENT LOAD; AND AT THE END OF THE FISCAL YEAR, THE UNEXPENDED FUNDS REVERTED TO THE TREASURY.

IN ADDITION, EACH PROJECT IS SUBJECT TO THE RELIEF EMPLOYMENT REQUIREMENTS OF THE WORK PROJECTS ADMINISTRATION, AND THE FORMS AND EMPLOYMENT PROCEDURES ARE THOSE SPECIFIED FOR W.P.A. PROJECTS. ALL PERSONS WORKING ON PROJECT FUNDS ARE ASSIGNED THROUGH THE LOCAL W.P.A. OFFICES BY MEANS OF W.P.A. FORM 402. THESE PERSONS FALL IN TWO CLASSES--- THOSE EMPLOYED AT THE SECURITY WAGE WHO ARE CERTIFIED FOR RELIEF, AND THOSE TERMED NONRELIEF OR SUPERVISORY EMPLOYEES. AUTHORITY FOR PAYMENTS AND RATES OF EACH ARE THE ASSIGNMENT SLIPS, W.P.A. FORM 402, AND ADMINISTRATIVE ORDERS OF STATE W.P.A. ADMINISTRATORS.

WHILE THE OFFICE OF EDUCATION CONSTITUTED A PART OF THE DEPARTMENT OF THE INTERIOR, THE SECRETARY OF THE INTERIOR, AS A DEPARTMENTAL REGULATION, REQUIRED, IN ADDITION TO THE ASSIGNMENT BY FORM 402, THAT ALL NONRELIEF PERSONNEL SHOULD BE APPOINTED THROUGH THE DEPARTMENTAL CLASSIFICATION DIVISION. HOWEVER, THIS APPOINTMENT WAS NOT NECESSARY FOR PAY-ROLL PURPOSES SINCE FORM 402 MET ALL REQUIREMENTS. THE SUPERVISORY PERSONNEL WAS PAID ON W.P.A. FORM 509.

A FEDERAL AGENCY OPERATING A FEDERAL AGENCY PROJECT UNDER AN APPLICATION OF FUNDS THROUGH THE W.P.A. IS ALSO ALLOTTED A SMALL FUND FOR ADMINISTRATIVE PURPOSES IN ADDITION TO SUPERVISORY PERSONS. THIS FUND RANGES BETWEEN 3.4 PERCENT AND 5 PERCENT OF THE TOTAL ALLOCATION. PERSONS PAID FROM THIS FUND MUST BE APPOINTED BY THE AGENCY HAVING FINAL JURISDICTION OVER THE WORK AND NO ASSIGNMENT SLIP OR W.P.A. FORM 402 IS NECESSARY.

AS AN ANALOGY, AND TO MAKE THE POSITIONS OF THESE CLASSES OF EMPLOYEES MORE CLEARLY DIFFERENTIATED, IT MAY BE SAID THAT THE CERTIFIED WORKERS CORRESPOND TO THE 2,500,000 PERSONS EMPLOYED ON PROJECTS UNDER THE W.P.A. WHO ARE PAID THE SECURITY WAGE; THE SUPERVISORY EMPLOYEES CORRESPOND TO W.P.A. PROJECT FOREMEN, ENGINEERS, TIMEKEEPERS, ETC., ON THE PROJECT SITE WHO ARE ASSIGNED BY MEANS OF W.P.A. FORM 402, AND WHO MUST BE REGISTERED AT THE UNITED STATES EMPLOYMENT SERVICE OFFICE. THE ADMINISTRATIVE EMPLOYEES ON A FEDERAL PROJECT CORRESPOND TO THE W.P.A. EMPLOYEES WHO ARE LOCATED IN THE STATE, REGIONAL, AND FEDERAL HEADQUARTERS OFFICES OF W.P.A.

IN THE OFFICE OF EDUCATION, WHICH WAS TRANSFERRED FROM THE DEPARTMENT OF THE INTERIOR TO THE FEDERAL SECURITY AGENCY, FIVE TYPES OF CASES HAVE ARISEN UNDER SECTION 10 (B) OF THE REORGANIZATION ACT WHICH MUST BE SETTLED IN ORDER TO ESTABLISH NEW WORKING BUDGETS FOR THE PROJECTS THAT HAVE BEEN APPROVED FOR THE CURRENT FISCAL YEAR. ACCORDINGLY, I WOULD GREATLY APPRECIATE IT IF AT YOUR EARLIEST CONVENIENCE YOU WOULD GIVE ME YOUR ADVICE WITH RESPECT TO THE FOLLOWING QUESTIONS:

(1) WHERE A RELIEF WORKER AT THE SECURITY WAGE HAS PROVED HIMSELF CAPABLE AND QUALIFIED, AND WHERE EMERGENCY FUNDS ARE AVAILABLE TO CHANGE HIS STATUS FROM A CERTIFIED WORKER TO A SUPERVISORY EMPLOYEE IN LINE WITH W.P.A. GENERAL LETTER NO. 282, DATED AUGUST 16, 1939, STATING "IN ALL INSTANCES WHERE THERE ARE CERTIFIED PROJECT EMPLOYEES OR CERTIFIED PERSONS AWAITING ASSIGNMENT WHO POSSESS THE REQUIRED SKILLS, TRAINING, EXPERIENCE, AND ABILITY TO FILL SUPERVISORY AND ADMINISTRATIVE POSITIONS, SUCH PERSONS SHALL BE GIVEN PREFERENCE IN EMPLOYMENT IN SUCH POSITIONS," DOES SECTION 10 (B) OF THE REORGANIZATION ACT PREVENT THE ASSIGNMENT BY W.P.A. FORM 402 OF SUCH A PERSON TO A PROJECT SUPERVISORY POSITION WHERE A CHANGE OF DUTIES AND COMPENSATION IS INVOLVED?

(2) WHERE ONE PROJECT SUPERVISORY EMPLOYEE RESIGNS AND ANOTHER SUPERVISORY EMPLOYEE FILLS THE VACANT POSITION AND UNDERTAKES THE DUTIES OF THE PERSON RESIGNING, MAY THE PERSON FILLING THE VACATED POSITION RECEIVE THE SAME COMPENSATION AS THE EMPLOYEE WHO RESIGNED IF A CHANGE IN COMPENSATION IS INVOLVED?

(3) WHEN A PERSON HAS BEEN CARRIED ON REGULAR FUNDS OF THE OFFICE OF EDUCATION ON A TEMPORARY APPOINTMENT WHICH EXTENDS, FOR EXAMPLE, FROM APRIL 20, 1939, TO JULY 19, 1939, MAY HE AT THE END OF THIS TEMPORARY APPOINTMENT BE ASSIGNED TO A FEDERAL PROJECT OF THE OFFICE OF EDUCATION BY MEANS OF W.P.A. FORM 402 AT A RATE DIFFERENT FROM THE RATE UNDER HIS TEMPORARY APPOINTMENT PARTICULARLY IF THE PROJECT RATE IS LOWER? COURSE, FOR THE PART OF THE NEW FISCAL YEAR DURING WHICH SUCH EMPLOYEE'S TEMPORARY APPOINTMENT EXTENDS, THERE WOULD BE NO CHANGE IN COMPENSATION.

(4) WHERE A PROJECT SUPERVISORY EMPLOYEE IS ASSIGNED BY MEANS OF W.P.A. FORM 402 TO A FEDERAL PROJECT OF THE OFFICE OF EDUCATION AT A RATE OF $150 PER MONTH, THEN ON AUGUST 21, 1939, HE IS CERTIFIED TO THE OFFICE OF EDUCATION BY THE CIVIL SERVICE COMMISSION FOR A PROBATIONARY APPOINTMENT TO A PERMANENT POSITION AT $2,000 PER ANNUM, MAY THE EMPLOYEE RECEIVE $2,000 PER ANNUM UNDER HIS CIVIL SERVICE APPOINTMENT FROM REGULAR OFFICE OF EDUCATION FUNDS?

(5) WHERE AN ADMINISTRATIVE EMPLOYEE ON A PROJECT PAID FROM ADMINISTRATIVE FUNDS HAS PERFORMED EXCEPTIONALLY MERITORIOUS SERVICES DURING THE FISCAL YEAR 1938-39, AND UPON THE APPROVAL OF A NEW SIMILAR PROJECT FOR THE FISCAL YEAR 1939-40 IT IS DESIRED TO RECOGNIZE AND REWARD THIS OUTSTANDING SERVICE, MAY THE EMPLOYEE BE APPOINTED TO A HIGHER PROFESSIONAL GRADE AT AN INCREASED SALARY?

IN CASES (1), (2), (4), AND (5) THE EMPLOYEES WERE PAID FROM FEDERAL AGENCY PROJECTS UNDER THE E.R.A. ACT OF 1938; THEY ARE NOW PAID FROM FEDERAL AGENCY PROJECTS UNDER THE E.R.A. ACT OF 1939.

THE WORD "PERSONNEL" AS USED IN SECTION 10 (B) OF THE REORGANIZATION ACT, QUOTED IN YOUR LETTER, WOULD SEEM TO RELATE TO "OFFICERS" AND "EMPLOYEES" OF THE UNITED STATES, AS THOSE TERMS ARE USED GENERALLY IN STATUTES INVOLVING FEDERAL PERSONNEL. THIS VIEW HAS SUPPORT WHEN CONSIDERED IN THE LIGHT OF THE TERMS OF SECTION 10 (A) OF THE ACT, AS FOLLOWS:

WHENEVER THE EMPLOYMENT OF ANY PERSON IS TERMINATED BY A REDUCTION OF PERSONNEL AS A RESULT OF A REORGANIZATION EFFECTED UNDER THIS TITLE, SUCH PERSON SHALL THEREAFTER BE GIVEN PREFERENCE, WHEN QUALIFIED, WHENEVER AN APPOINTMENT IS MADE IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, BUT SUCH PREFERENCE SHALL NOT BE EFFECTIVE FOR A PERIOD LONGER THAN TWELVE MONTHS FROM THE DATE THE EMPLOYMENT OF SUCH PERSON IS SO TERMINATED.

UNDER THE QUOTED STATUTE A "PERSON" WHO IS NOT AN OFFICER OR EMPLOYEE OF THE UNITED STATES AND WHOSE SERVICES ARE TERMINATED, WOULD HAVE NO PREFERENTIAL ELIGIBILITY FOR "APPOINTMENT" AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES "IN THE EXECUTIVE BRANCH OF THE GOVERNMENT.'

PROJECT WORKERS PAID UPON A SECURITY WAGE BASIS OR SUPERVISORY AND ADMINISTRATIVE EMPLOYEES ENGAGED UPON PROJECTS AND PAID FROM PROJECT FUNDS UPON A MONTHLY SALARY BASIS, WHO ARE NOT APPOINTED TO POSITIONS-- AS DISTINGUISHED FROM ADMINISTRATIVE EMPLOYEES PAID THE REGULAR RATE OF COMPENSATION FOR THE POSITION TO WHICH REGULARLY APPOINTED FROM ALLOCATIONS FOR ADMINISTRATIVE EXPENSES--- ARE NOT REGARDED AS OFFICERS OR EMPLOYEES OF THE UNITED STATES FOR ANNUAL OR SICK LEAVE PURPOSES. (15 COMP. GEN. 1129; 16 ID. 181; ID. 394.) PROJECT WORKERS AND PROJECT SUPERVISORY PERSONNEL HAVE BEEN EXPRESSLY EXCLUDED FROM LEAVE PRIVILEGES BY THE PRESIDENT'S UNIFORM ANNUAL AND SICK LEAVE REGULATIONS (SECTION 19 (E) OF THE ANNUAL LEAVE REGULATIONS AND SECTION 23 (F) OF THE SICK LEAVE REGULATIONS, EXECUTIVE ORDERS NOS. 7845 AND 7846, DATED MARCH 21, 1938) BECAUSE OF THE PROVISION IN THE ANNUAL AND SICK LEAVE ACTS OF MARCH 14, 1936 (49 STAT. 1161 AND 1162), LIMITING THE LEAVE PRIVILEGES TO "CIVILIAN OFFICERS AND EMPLOYEES OF THE UNITED STATES WHEREVER STATIONED AND OF THE GOVERNMENT OF THE DISTRICT OF COLUMBIA," WITH CERTAIN EXCEPTIONS NOT HERE MATERIAL. ALSO, THE ADMINISTRATIVE AND SUPERVISORY PERSONNEL ENGAGED ON W.P.A. PROJECTS HAVE BEEN HELD AS NOT BEING "IN THE SERVICE OF THE UNITED STATES" WITHIN THE PURVIEW OF SECTION 6 OF THE ACT OF JUNE 30, 1906, 34 STAT. 763, WHICH PRESCRIBES RULES FOR DIVISION OF TIME AND COMPUTATION OF PAY FOR SERVICES OF "ANY PERSON IN THE SERVICE OF THE UNITED STATES" WHOSE COMPENSATION IS UPON AN ANNUAL OR MONTHLY BASIS. (17 COMP. GEN. 359, 361.) IN VIEW OF THE SEVERAL HOLDINGS IN THE ABOVE-CITED DECISIONS OF THIS OFFICE IT WOULD APPEAR LOGICAL TO CONCLUDE THAT PROJECT WORKERS PAID EITHER A SECURITY WAGE OR A SALARY IN A SUPERVISORY CAPACITY ARE NOT TO BE REGARDED AS "PERSONNEL" WITHIN THE MEANING OF SECTION 10 (B) OF THE REORGANIZATION ACT.

ACCORDINGLY, QUESTION (1) IS ANSWERED IN THE NEGATIVE, AND QUESTIONS (2), (3), AND (4) ARE ANSWERED IN THE AFFIRMATIVE.

REFERRING TO QUESTION (5), THE ADMINISTRATIVE EMPLOYEES PAID FROM ADMINISTRATIVE FUNDS, OR FROM ALLOTMENTS FOR ADMINISTRATIVE EXPENSES, ARE, IN FACT, APPOINTED TO POSITIONS, AND ARE OFFICERS AND EMPLOYEES OF THE UNITED STATES. HENCE, IF SAID EMPLOYEES WERE TRANSFERRED FROM THE DEPARTMENT OF THE INTERIOR TO THE FEDERAL SECURITY AGENCY PURSUANT TO THE TERMS OF THE REORGANIZATION ACT AND SECTION 201 OF THE PRESIDENT'S REORGANIZATION PLAN NO. 1, SECTION 10 (B) OF THE REORGANIZATION ACT PRECLUDES ANY CHANGE IN THEIR CLASSIFICATION OR OR COMPENSATION DURING THE FISCAL YEAR 1940. THIS QUESTION IS ANSWERED IN THE NEGATIVE.