B-7114, DECEMBER 4, 1939, 19 COMP. GEN. 548

B-7114: Dec 4, 1939

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THE DUTIES OF WHICH NOW DIFFER FROM THOSE EXISTING AT THE TIME THE POSITIONS WERE ESTABLISHED. REASSIGNMENT OR REAPPOINTMENT OF EMPLOYEES CURRENTLY AS THE NEEDS OF THE SERVICE MAY REQUIRE IS NOT PROHIBITED BY THE SAID SECTION BUT CLASSIFICATION OR COMPENSATION CHANGES IN SUCH CASES MUST BE DELAYED UNTIL THE EXPIRATION OF THE FISCAL YEAR 1940. NOT BEING APPLICABLE AS THERE WAS NO COMPENSATION OR CLASSIFICATION INVOLVED IN THE ORIGINAL EMPLOYMENT. 1939: I HAVE YOUR LETTER OF NOVEMBER 13. AS FOLLOWS: SOME QUESTIONS HAVE ARISEN INVOLVING THE EFFECT OF SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939 ( PUBLIC. 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.'.

B-7114, DECEMBER 4, 1939, 19 COMP. GEN. 548

COMPENSATION AND CLASSIFICATION CHANGES - TRANSFERRED REORGANIZATION PLAN PERSONNEL - RESIGNATION IN ANTICIPATION OF REAPPOINTMENT, AND REAPPOINTMENT WITH COMPENSATION OF EMPLOYEE FORMERLY EMPLOYED WITHOUT COMPENSATION RESIGNATIONS OF BIOLOGICAL SURVEY PERSONNEL IN CERTAIN FIELD POSITIONS, THE DUTIES OF WHICH NOW DIFFER FROM THOSE EXISTING AT THE TIME THE POSITIONS WERE ESTABLISHED, FOR THE SOLE PURPOSE OF REAPPOINTMENT, AT DIFFERENT SALARY RATES, TO OTHER POSITIONS WHICH MORE ACCURATELY REFLECT THE PRESENT ADMINISTRATIVE NEED, WOULD NECESSARILY BE VOLUNTARY RESIGNATIONS FOR THE SOLE PURPOSE OF, AND IN ANTICIPATION OF, REAPPOINTMENT TO OTHER POSITIONS INVOLVING CHANGES IN CLASSIFICATION AND COMPENSATION AND THEREFORE CONSTITUTE AN EVASION OF THE FISCAL YEAR 1940 PROHIBITORY PERSONNEL COMPENSATION AND CLASSIFICATION CHANGE PROVISIONS OF SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939, 53 STAT. 563. REASSIGNMENT OR REAPPOINTMENT OF EMPLOYEES CURRENTLY AS THE NEEDS OF THE SERVICE MAY REQUIRE IS NOT PROHIBITED BY THE SAID SECTION BUT CLASSIFICATION OR COMPENSATION CHANGES IN SUCH CASES MUST BE DELAYED UNTIL THE EXPIRATION OF THE FISCAL YEAR 1940. DECISIONS B-5212, OCTOBER 28, 1939, 19 COMP. GEN. 461; AND B-6467, NOVEMBER 1, 1939, 19 COMP. GEN. 472, AMPLIFIED. AN EMPLOYEE OF THE BIOLOGICAL SURVEY WHO HAS BEEN SERVING SINCE PRIOR TO THE FISCAL YEAR 1940 AS DEPUTY GAME WARDEN WITHOUT COMPENSATION, MAY CURRENTLY BE APPOINTED AS DEPUTY GAME WARDEN, GRADE 5, AT A PER DIEM SALARY, WHEN ACTUALLY EMPLOYED, THE FISCAL YEAR 1940 PROHIBITORY PERSONNEL COMPENSATION AND CLASSIFICATION CHANGE PROVISIONS OF SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939, 53 STAT. 563, NOT BEING APPLICABLE AS THERE WAS NO COMPENSATION OR CLASSIFICATION INVOLVED IN THE ORIGINAL EMPLOYMENT.

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

I HAVE YOUR LETTER OF NOVEMBER 13, 1939, AS FOLLOWS:

SOME QUESTIONS HAVE ARISEN INVOLVING THE EFFECT OF SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939 ( PUBLIC, NO. 19, 76TH CONG.). THIS SECTION STATES:

"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 PROBLEM IS WHETHER THERE IS ANYTHING IN THE REORGANIZATION ACT WHICH WOULD PREVENT AN EMPLOYEE WHOSE CHANGE IN STATUS IS RESTRICTED BY SECTION 10 (B) FROM RESIGNING AND BEING REINSTATED AT A DIFFERENT GRADE AND SALARY. THE QUESTION HAS ARISEN REGARDING THE FOLLOWING SPECIFIC POSITIONS IN THE BUREAU OF BIOLOGICAL SURVEY:

1

AN EMPLOYEE HAS HELD A POSITION AS GARDENER AT $1,500 PER ANNUM IN ONE OF THE BUREAU CIVILIAN CONSERVATION CORPS CAMPS IN NORTH DAKOTA SINCE MARCH 9, 1936. PRINCIPALLY HIS DUTIES HAVE RELATED TO THE ESTABLISHMENT OF A REGIONAL NURSERY. THE NURSERY HAS NOW BEEN DEVELOPED TO A STATE SO THAT IT NO LONGER REQUIRES HIS FULL-TIME SUPERVISION. INSTEAD THE NEED AT THE CAMP NOW IS FOR A SQUAD FOREMAN AT $1,200 PER ANNUM FOR THE SUPERVISION OF SMALL CREWS OF ENROLLEES. CAN THIS EMPLOYEE RESIGN HIS PRESENT POSITION AND BE REINSTATED AS A SQUAD FOREMAN AT $1,200 PER ANNUM?

2

AN EMPLOYEE HAS HELD A POSITION AT A BIOLOGICAL SURVEY CIVILIAN CONSERVATION CORPS CAMP AS JUNIOR FOREMAN AT $1,680 PER ANNUM SINCE MAY 25, 1937. THE WORK OF THE CAMP HAS PROGRESSED TO A POINT WHERE IT CAN BE HANDLED EFFECTIVELY BY VACATING THE POSITION OF JUNIOR FOREMAN AND SUBSTITUTING A SQUAD FOREMAN POSITION. THE CHANGE IN THE DUTIES TO BE PERFORMED REQUIRES THAT THE POSITION BE CLASSIFIED AS THAT OF SQUAD FOREMAN. CAN THIS EMPLOYEE RESIGN AS JUNIOR FOREMAN AND BE REINSTATED AS SQUAD FOREMAN?

3

AN EMPLOYEE HAS HELD THE POSITION AS BLACKSMITH AT A BIOLOGICAL SURVEY CAMP SINCE AUGUST 19, 1935, AT $1,320 PER ANNUM. IT IS IN THE INTEREST OF THE SERVICE AT THE PRESENT TIME TO ELIMINATE THE POSITION OF BLACKSMITH AT THIS CAMP AND TRANSFER THE WORK TO THE CAMP MECHANIC. THE SERVICES OF A SUBFOREMAN AT $1,500 PER ANNUM ARE URGENTLY NEEDED AT THIS CAMP. THE EMPLOYEE IN QUESTION IS CONSIDERED WELL QUALIFIED FOR THIS POSITION. CAN HE RESIGN AS BLACKSMITH AND BE REINSTATED AS SUBFOREMAN?

4

AN EMPLOYEE OF THE BIOLOGICAL SURVEY HAS BEEN SERVING SINCE MAY 25, 1939, AS UNITED STATES DEPUTY GAME WARDEN WITHOUT COMPENSATION. IT IS IN THE PUBLIC INTEREST AT THIS TIME TO CHANGE HIS STATUS TO UNITED STATES DEPUTY GAME WARDEN, FIELD, GRADE 5, AT A SALARY OF $3.50 PER DIEM WHEN ACTUALLY EMPLOYED BUT NOT TO EXCEED $540 IN A YEAR. CAN THIS EMPLOYEE RESIGN HIS PRESENT POSITION AND BE REINSTATED AS UNITED STATES DEPUTY GAME WARDEN, FIELD, GRADE 5?

IN A LETTER OF JUNE 16, 1939, TO THE BUREAU OF THE BUDGET THE CIVIL SERVICE COMMISSION ATES,"NOTHING APPEARS IN THE REORGANIZATION ACT HOWEVER, WHICH WOULD PREVENT AN EMPLOYEE WHOSE CHANGE IN STATUS IS RESTRICTED BY SECTION 10 (B) FROM RESIGNING AND BEING REINSTATED IN THE SUCCESSOR AGENCY AT A HIGHER GRADE AND SALARY.' ACCORDING TO THIS INTERPRETATION THERE WOULD SEEM TO BE NO OBJECTION TO THE REINSTATEMENT OF AN INDIVIDUAL AT A LOWER GRADE AND SALARY.

YOUR OPINION ON THIS MATTER IS RESPECTFULLY REQUESTED.

THE BUREAU OF BIOLOGICAL SURVEY UNDER THE DEPARTMENT OF AGRICULTURE ITS FUNCTIONS, AND PERSONNEL, WERE TRANSFERRED TO THE DEPARTMENT OF THE INTERIOR BY OPERATION OF SECTIONS 4 (F) AND 402 OF THE PRESIDENT'S REORGANIZATION PLAN NO. II.

IN DECISIONS OF OCTOBER 28, 1939, B-5212, 19 COMP. GEN. 461, AND NOVEMBER 1, 1939, B-6467, 19 COMP. GEN. 472, COPIES OF WHICH ARE ENCLOSED, IT WAS HELD THAT THE SAME GENERAL RULE STATED IN THE DECISIONS OF THIS OFFICE FOR APPLICATION 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, IS PROPERLY FOR APPLICATION DURING THE FISCAL YEAR 1940 IN RESPECT OF THE OPERATION OF SECTION 10 (B) OF THE REORGANIZATION ACT. THE RULE FOR APPLYING THE EXECUTIVE ORDER, SO FAR AS HERE MATERIAL, WAS STATED IN DECISIONS OF SEPTEMBER 24, 1935, 15 COMP. GEN. 243, AND FEBRUARY 18, 1936, 15 COMP. GEN. 710, AND IS TO THE EFFECT THAT A SEPARATION OR RESIGNATION AND REAPPOINTMENT WAS REGARDED AS A TRANSFER WITHIN THE MEANING OF THE EXECUTIVE ORDER ONLY IF THE SEPARATION OR RESIGNATION WAS VOLUNTARY FOR THE SOLE PURPOSE OF, AND IN ANTICIPATION OF, REAPPOINTMENT TO ANOTHER POSITION AT AN INCREASE IN COMPENSATION.

IN CASES 1, 2, AND 3, PRESENTED IN YOUR LETTER, IT IS APPARENT FROM THE FACTS STATED THAT THE RESIGNATION OF EACH OF THE EMPLOYEES WOULD BE VOLUNTARY FOR THE SOLE PURPOSE OF, AND IN ANTICIPATION OF, REAPPOINTMENT TO ANOTHER POSITION INVOLVING A CHANGE IN CLASSIFICATION AND COMPENSATION DURING THE FISCAL YEAR 1940. THE PURPOSE OF SECTION 10 (B) OF THE REORGANIZATION ACT IS TO MAINTAIN DURING THE FISCAL YEAR 1940 THE SAME CLASSIFICATION AND COMPENSATION HELD BY TRANSFERRED EMPLOYEES ON JUNE 30, 1939, REGARDLESS OF THE DUTIES TO WHICH THEY MAY BE ASSIGNED OR THE POSITIONS TO WHICH THEY MAY BE APPOINTED CURRENTLY AS THE NEEDS OF THE SERVICE MAY REQUIRE. TO PERMIT THE EMPLOYEES IN QUESTION TO RESIGN FOR THE SOLE PURPOSE OF REAPPOINTMENT TO ANOTHER POSITION INVOLVING A CHANGE IN CLASSIFICATION AND COMPENSATION DURING THE FISCAL YEAR 1940 WOULD CONSTITUTE AN EVASION OF THE RESTRICTIONS OF THE STATUTE AND MAY NOT BE AUTHORIZED.

IF THERE BE NO NEED OR PURPOSE TO REDUCE THE TOTAL NUMBER OF EMPLOYEES OF THE BUREAU OF BIOLOGICAL SURVEY, BUT THERE IS A NEED FOR A LESS NUMBER OF EMPLOYEES IN ONE GRADE DOING ONE CLASS OF WORK AND A NEED FOR A GREATER NUMBER OF EMPLOYEES IN ANOTHER GRADE DOING ANOTHER CLASS OF WORK, SECTION 10 (B) OF THE REORGANIZATION ACT DOES NOT PROHIBIT REASSIGNMENT OR REAPPOINTMENT OF EMPLOYEES CURRENTLY AS THE NEEDS OF THE SERVICE MAY REQUIRE, BUT ANY ADJUSTMENT OF CLASSIFICATION OR COMPENSATION IN SUCH CASES MUST BE HELD IN ABEYANCE UNTIL JULY 1, 1940.

REFERRING TO CASE 4, AS THE EMPLOYEE HAS NO CLASSIFICATION OR COMPENSATION, SECTION 10 (B) OF THE REORGANIZATION ACT WOULD NOT OPERATE TO PROHIBIT HIS APPOINTMENT AS PROPOSED.