B-6467, NOVEMBER 1, 1939, 19 COMP. GEN. 472

B-6467: Nov 1, 1939

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OF AN EMPLOYEE WHO RESIGNED OR WHOSE SERVICES WERE TERMINATED AFTER THE EFFECTIVE DATE OF THE SAID ACT. PROVIDED THE TERMINATION OR RESIGNATION WAS BONA FIDE AND NOT IN ANTICIPATION OF. SEVERAL QUESTIONS HAVE BEEN PRESENTED WHICH ARE SUBMITTED FOR YOUR EARLY DETERMINATION. WHO WERE IN THE SERVICE ON JUNE 30. IN THE REGULAR COURSE OF BUSINESS THERE WAS A BONA FIDE TERMINATION BY THE WORK PROJECTS ADMINISTRATION OF THE SERVICES OF THELMA M. HER NAME IS NO LONGER ON THE PAY ROLL. THERE IS NOW A POSITION IN THE ADMINISTRATION TO WHICH IT DESIRES TO APPOINT THIS PERSON. IF SHE IS APPOINTED MUST SHE RECEIVE HER PREVIOUS SALARY REGARDLESS OF WHETHER THE SALARY OF THE VACANT POSITION IS LOWER OR HIGHER THAN THAT WHICH THE EMPLOYEE PREVIOUSLY RECEIVED?

B-6467, NOVEMBER 1, 1939, 19 COMP. GEN. 472

COMPENSATION AND CLASSIFICATION CHANGES - TRANSFERRED REORGANIZATION PLAN PERSONNEL - REAPPOINTMENT AFTER BONA FIDE TERMINATION OR RESIGNATION 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 REAPPOINTMENT TO A DIFFERENT POSITION AT A DIFFERENT SALARY, OF AN EMPLOYEE WHO RESIGNED OR WHOSE SERVICES WERE TERMINATED AFTER THE EFFECTIVE DATE OF THE SAID ACT, PROVIDED THE TERMINATION OR RESIGNATION WAS BONA FIDE AND NOT IN ANTICIPATION OF, OR FOR THE PURPOSE OF, THE REAPPOINTMENT.

COMPTROLLER GENERAL BROWN TO THE FEDERAL WORKS ADMINISTRATOR, NOVEMBER 1, 1939:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF OCTOBER 7, 1939, AS FOLLOWS:

IN CONNECTION WITH SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939 (53 STAT. 563) AND REORGANIZATION PLAN NO. 1, SEVERAL QUESTIONS HAVE BEEN PRESENTED WHICH ARE SUBMITTED FOR YOUR EARLY DETERMINATION.

IN YOUR DECISION, B-5212, OF AUGUST 22, 1939, YOU CONCLUDED, IN EFFECT, THAT ALL OFFICERS AND EMPLOYEES OF AGENCY SUBJECT TO THE ACT CITED, WHO WERE IN THE SERVICE ON JUNE 30, 1939, MUST BE REGARDED AS HAVING BEEN TRANSFERRED UNDER THE REORGANIZATION ACT OF 1939, AND THEREFORE WITHIN THE PURVIEW OF SECTION 10 (B) OF THE ACT WHICH PROHIBITS, UNTIL JULY 1, 1940, ANY CHANGE IN CLASSIFICATION AND COMPENSATION OF PERSONNEL SO TRANSFERRED.

IN THE REGULAR COURSE OF BUSINESS THERE WAS A BONA FIDE TERMINATION BY THE WORK PROJECTS ADMINISTRATION OF THE SERVICES OF THELMA M. SCHAFFNER ON SEPTEMBER 14, 1939, AND HER NAME IS NO LONGER ON THE PAY ROLL. THERE IS NOW A POSITION IN THE ADMINISTRATION TO WHICH IT DESIRES TO APPOINT THIS PERSON, THE SALARY ATTACHING TO THE POSITION BEING DIFFERENT FROM THAT WHICH THE PERSON HELD AT THE TIME OF THE TERMINATION OF HER SERVICES. WOULD IT BE PERMISSIBLE TO APPOINT THIS PERSON AT A SALARY DIFFERENT FROM THAT WHICH SHE FORMERLY RECEIVED, OR, IF SHE IS APPOINTED MUST SHE RECEIVE HER PREVIOUS SALARY REGARDLESS OF WHETHER THE SALARY OF THE VACANT POSITION IS LOWER OR HIGHER THAN THAT WHICH THE EMPLOYEE PREVIOUSLY RECEIVED?

IF, INSTEAD OF A TERMINATION, THERE HAD BEEN A BONA FIDE RESIGNATION OF THE EMPLOYEE, AND THE ADMINISTRATION DESIRES TO APPOINT HER ANEW, WOULD YOUR ANSWER BE DIFFERENT FROM THAT IN WHICH A TERMINATION BY THE ADMINISTRATION IS INVOLVED? THE ADMINISTRATION WOULD, OF COURSE, USE PRECAUTION IN DETERMINING WHETHER THE RESIGNATION WAS BONA FIDE AND NOT FOR THE PURPOSE OF EVADING THE PROVISIONS OF SECTION 10 (B).

AS THE ADMINISTRATION HAS SEVERAL POSITIONS VACANT TO WHICH IT DESIRES TO APPOINT A FORMER EMPLOYEE AS SOON AS POSSIBLE, YOUR EARLIEST CONSIDERATION OF THE QUESTION HEREIN PRESENTED, WILL BE APPRECIATED.

AMONG THE QUESTIONS CONSIDERED IN DECISION OF OCTOBER 28, 1939, B 5212, 19 COMP. GEN. 461, TO THE FEDERAL SECURITY ADMINISTRATOR, WAS A QUESTION NUMBERED 4, STATED AS FOLLOWS:

THE SERVICES OF AN EMERGENCY CLERK EO-5 AT $1,620 PER ANNUM WERE DISCONTINUED SINCE THE EFFECTIVE DATE OF THE REORGANIZATION ACT. SINCE LAST MAY EFFORTS HAVE BEEN MADE TO LOCATE SOMEONE WITH SPECIAL TRAINING IN ANSWERING INQUIRIES FOR INFORMATION ON MEDICAL SUBJECTS BUT WITHOUT SUCCESS. WILL SECTION 10-B PROHIBIT THE REAPPOINTMENT OF THE SAME INDIVIDUAL TO A DIFFERENT EMERGENCY POSITION AT A HIGHER RATE OF COMPENSATION?

IN ANSWER TO SAID QUESTION IT WAS SAID:

WITH REFERENCE TO QUESTION 4, THERE IS FOR CONSIDERATION DECISION OF SEPTEMBER 24, 1935, 15 COMP. GEN. 243, 244, RELATIVE TO THE APPLICATION OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, WHICH PROHIBITED THE TRANSFER OF AN EMPLOYEE AT AN INCREASE IN COMPENSATION FROM ONE POSITION TO ANOTHER POSITION THE SALARY OF WHICH IS PAID FROM EMERGENCY FUND, UNLESS SUCH TRANSFER WAS APPROVED BY THE PRESIDENT. IN SAID DECISION IT WAS STATED IN PERTINENT PART, AS FOLLOWS:

"THERE IS NOTED THE STATEMENT IN THE SECOND PARAGRAPH OF YOUR LETTER THAT " THIS ADMINISTRATION HAS ATTEMPTED TO DISCOURAGE THE REQUESTING OF TERMINATIONS AND VOLUNTARY RESIGNATIONS FROM OTHER DEPARTMENTS BY EMPLOYEES SEEKING TO BE APPOINTED IN THE RESETTLEMENT ADMINISTRATION.' THIS CONNECTION I HAVE TO ADVISE THAT A VOLUNTARY TERMINATION, BY RESIGNATION OR OTHERWISE, FROM ANOTHER DEPARTMENT OR BRANCH OF THE FEDERAL SERVICE AND AN APPOINTMENT UNDER THE RESETTLEMENT ADMINISTRATION, EVEN THOUGH THERE BE A FEW DAYS' BREAK IN THE SERVICE, IS A TRANSFER WITHIN THE TERMS OF THE EXECUTIVE ORDER. ANY ATTEMPT TO EVADE THE CONSEQUENCES OF THE EXECUTIVE ORDER BY SUBTERFUGE MAY RESULT IN DISALLOWANCE OF CREDIT FOR PAYMENTS OF SALARY TO THE EMPLOYEE INVOLVED. * * *

"THE EXECUTIVE ORDER DOES NOT APPLY TO CASES IN WHICH THE SEPARATION FROM THE FORMER SERVICE WAS IN FACT INVOLUNTARY OR WAS DUE TO THE EXPIRATION OF THE PERIOD OF THE APPOINTMENT UNDER WHICH SERVING AT THE TIME OF OR PRIOR TO THE TRANSFER OR NEW APPOINTMENT.' SEE, ALSO, 15 COMP. GEN. 710, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

"THE PROVISIONS OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, PROHIBITING SALARY INCREASES UPON TRANSFER TO POSITIONS PAID FROM EMERGENCY FUNDS, EXCEPT UPON APPROVAL OF THE PRESIDENT, ARE NOT APPLICABLE TO APPOINTMENTS AFTER RESIGNATION FROM ANOTHER FEDERAL AGENCY OR ESTABLISHMENT WHERE THE RESIGNATION IS SUBSEQUENT TO RECEIPT OF NOTICE AND IN ANTICIPATION OF INVOLUNTARY SEPARATION. APPROPRIATE EXPLANATORY REMARKS SHOULD APPEAR ON PAY ROLL OR OTHERWISE IN THE ACCOUNTS IN SUCH CASES.' THUS, IN APPLYING THE EXECUTIVE ORDER, A SEPARATION OR A RESIGNATION AND REAPPOINTMENT WAS REGARDED AS A TRANSFER ONLY IF VOLUNTARY AND IN ANTICIPATION OF REAPPOINTMENT TO ANOTHER POSITION AT AN INCREASE IN COMPENSATION. THE SAME GENERAL RULES APPEAR PROPERLY FOR APPLICATION DURING THE FISCAL YEAR 1940, IN RESPECT OF THE OPERATION OF SECTION 10 (B) OF THE REORGANIZATION ACT. ACCORDINGLY, IF THE DISCONTINUANCE OF THE SERVICES OF THE EMERGENCY CLERK IN GRADE EO-5 AT $1,620 PER ANNUM WAS NOT MADE IN ANTICIPATION OF, OR FOR THE PURPOSE OF, REAPPOINTMENT OF THE CLERK TO A DIFFERENT EMERGENCY POSITION AT A HIGHER RATE OF COMPENSATION, QUESTION 4 IS ANSWERED IN THE NEGATIVE; OTHERWISE, IN THE AFFIRMATIVE.

THE PRINCIPLE STATED IN THE DISPOSITION OF QUESTION 4 IN THAT PART OF THE DECISION OF OCTOBER 28, 1939, ABOVE QUOTED, IS FOR APPLICATION TO THE MATTER PRESENTED HERE. ACCORDINGLY, IF THE TERMINATION OF THE SERVICES OF THELMA M. SCHAFFNER ON SEPTEMBER 14, 1939, WAS NOT MADE IN ANTICIPATION OF, OR FOR THE PURPOSE OF, REAPPOINTMENT TO A DIFFERENT POSITION INVOLVING A CHANGE IN CLASSIFICATION OR COMPENSATION, SECTION 10 (B) OF THE REORGANIZATION ACT DOES NOT APPLY TO PRECLUDE HERE REAPPOINTMENT TO ANOTHER POSITION AT A SALARY DIFFERENT FROM THAT WHICH SHE FORMERLY RECEIVED. THE STATED PRINCIPLE IS APPLICABLE, ALSO, TO A CASE WHERE THERE HAS "BEEN A BONA FIDE RESIGNATION OF THE EMPLOYEE, AND THE ADMINISTRATION DESIRES TO APPOINT HIM ANEW.' COMPARE QUESTION 6 AND ANSWER THERETO IN THE DECISION ABOVE CITED.