A-95797, JULY 20, 1938, 18 COMP. GEN. 67

A-95797, JULY 20, 1938, 18 COMP. GEN. 67

PERSONAL SERVICE - CIVIL SERVICE LAWS AND CLASSIFICATION ACT APPLICABILITY - EMPLOYMENT WITH FUNDS ALLOTTED FEDERAL AGENCIES FROM 1938 PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT FUNDS APPROPRIATED IN THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938, APPROVED JUNE 21, 1938, 52 STAT. 809, ARE NOT AVAILABLE FOR THE EMPLOYMENT OF PERSONAL SERVICES, WITHOUT REGARD TO THE CIVIL SERVICE LAWS, RULES AND REGULATIONS, BY FEDERAL AGENCIES TO WHICH FUNDS MAY BE ALLOTTED UNDER SAID ACT FOR FEDERAL CONSTRUCTION PROJECTS, EXCEPT AS TO SUCH AGENCIES AS OTHERWISE ARE EXEMPTED BY LAW FROM COMPLIANCE WITH SUCH LAWS, RULES AND REGULATIONS. 17 COMP. GEN 1114, AFFIRMED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, JULY 20, 1938:

I HAVE YOUR LETTER OF JULY 14, 1938, AS FOLLOWS:

THERE HAS COME TO MY ATTENTION YOUR LETTER OF JUNE 25 (A-95797) DIRECTED TO THE SECRETARY OF THE NAVY, IN WHICH YOU HAVE RULED, AS TO THE EMPLOYMENT OF ARCHITECTS AND ENGINEERS BY THE NAVY DEPARTMENT FOR THE PROSECUTION OF FEDERAL PROJECTS FOR WHICH ALLOTMENTS ARE MADE UNDER THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938, THAT "IF THE ALLOTTED FUNDS ARE PROPOSED TO BE USED TO PAY FOR THE SERVICES OF SUCH ARCHITECTS AND ENGINEERS AS MAY BE EMPLOYED DIRECTLY IN THE PROSECUTION OF PARTICULAR PROJECTS FOR WHICH THE ALLOTMENTS ARE MADE TO THE NAVY UNDER TITLE II OF SAID ACT, THE PROCUREMENT OF SUCH SERVICES MUST BE BY DIRECT EMPLOYMENT IN ACCORDANCE WITH THE CIVIL SERVICE LAWS AND REGULATIONS * *

IT IS MY UNDERSTANDING OF YOUR RULING THAT THE PROCUREMENT OF SERVICES GENERALLY FOR THE PROSECUTION OF FEDERAL PROJECTS FOR WHICH FUNDS ARE ALLOTTED MUST BE ACCOMPLISHED IN ACCORDANCE WITH THE CIVIL SERVICE LAWS, AS YOU STATE THAT "AS TO THE EMPLOYMENT OF SUCH SERVICES UNDER SUCH ALLOTMENTS AS MAY BE DIRECTLY INCIDENT TO THE PROSECUTION OF THE PARTICULAR PROJECTS FOR WHICH ALLOTMENTS ARE MADE TO SUCH AGENCIES, THERE IS NO EXEMPTION IN SAID TITLE OR OTHERWISE FROM THE GENERAL REQUIREMENTS OF LAW APPLICABLE TO THE EMPLOYMENT OF PERSONNEL BY THE AGENCY CONCERNED.'

THE APPLICATION OF SUCH A RULING WOULD HAVE A VERY SERIOUS EFFECT UPON THE ADMINISTRATION OF THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938. THAT ACT AUTHORIZES THE EXPENDITURE OF FUNDS THEREIN APPROPRIATED FOR, AMONG OTHER THINGS, THE MAKING OF ALLOTMENTS TO FINANCE FEDERAL PROJECTS; IT PROHIBITS THE ALLOTMENT OF ANY FUNDS FOR ANY PROJECTS WHICH, IN THE DETERMINATION OF THE ADMINISTRATOR, CANNOT BE COMMENCED PRIOR TO JANUARY 1, 1939, AND SUBSTANTIALLY COMPLETED PRIOR TO JUNE 30, 1940. IS UNNECESSARY FOR ME TO EMPHASIZE TO YOU THE FACT THAT IT WAS THE INTENT AND PURPOSE OF THE CONGRESS, IN ENACTING THIS LEGISLATION, THAT THE PROJECTS TO BE UNDERTAKEN BE COMMENCED AND PROSECUTED TO COMPLETION AS RAPIDLY AS POSSIBLE, IN ORDER THAT THE BENEFITS CONTEMPLATED BY THE EXPENDITURE OF THE FUNDS APPROPRIATED MIGHT BE FULLY REALIZED.

IT IS MY CONVICTION, AND I THINK IT IS EVIDENT, THAT IF THE PROCUREMENT OF SERVICES FOR THE PROSECUTION OF FEDERAL PROJECTS FOR WHICH SUCH ALLOTMENTS ARE MADE MUST BE ACCOMPLISHED IN ACCORDANCE WITH THE CIVIL SERVICE LAWS, DELAY WILL BE EXPERIENCED IN THE PROCUREMENT OF THOSE SERVICES TO SUCH AN EXTENT THAT THE ACCOMPLISHMENT OF THE PURPOSES OF THE ACT, AS I HAVE POINTED THEM OUT ABOVE, WILL BE SERIOUSLY JEOPARDIZED, IF NOT RENDERED IMPOSSIBLE. WHILE I DO NOT WISH TO BE UNDERSTOOD AS QUESTIONING THE DESIRABILITY OF PROCURING SERVICES FOR THE FEDERAL GOVERNMENT IN THE MANNER AND UNDER THE CONDITIONS SET UP BY THE CIVIL SERVICE LAWS, IT IS NEVERTHELESS MY DUTY IN THE ADMINISTRATION OF AN EXTRAORDINARY EMERGENCY PROGRAM WHICH HAS BEEN AUTHORIZED BY THE CONGRESS TO MAKE EVERY EFFORT TO CARRY OUT THE DIRECTIONS OF THE CONGRESS IN MAKING THAT PROGRAM EFFECTIVE.

IT IS FOR THE ABOVE REASONS THAT I URGE YOU TO RECONSIDER THE RULING MADE IN THE LETTER TO WHICH I HAVE REFERRED, AND IN SO DOING I WISH TO POINT OUT THOSE CONSIDERATIONS WHICH CONVINCE ME THAT SUCH AN UNDESIRABLE RULING IS NOT REQUIRED OR ACTUALLY SUPPORTED BY THE LEGISLATION. THAT CONCLUSION CAN BE TESTED BY A BRIEF REVIEW OF THE LEGISLATION UNDER WHICH THIS ADMINISTRATION HAS RECEIVED AND DOES NOW RECEIVE ITS AUTHORITY TO PROSECUTE THE PROGRAM OF PUBLIC WORKS PRESCRIBED BY THE CONGRESS.

TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT (49 (48) STAT. 200), UNDER THE AUTHORITY OF WHICH THIS ADMINISTRATION WAS ESTABLISHED, AUTHORIZED THE PRESIDENT TO "APPOINT, WITHOUT REGARD TO THE CIVIL SERVICE LAWS, SUCH OFFICER AND EMPLOYEES, AND TO UTILIZE SUCH FEDERAL OFFICERS AND EMPLOYEES, * * * AS HE MAY FIND NECESSARY.' THE PRESIDENT WAS LIKEWISE AUTHORIZED TO DELEGATE ANY OF HIS FUNCTIONS AND POWERS UNDER TITLE II TO SUCH OFFICERS, AGENTS, AND EMPLOYEES AS HE MIGHT DESIGNATE. THESE PROVISIONS MUST BE TAKEN WITH THE PROVISIONS OF SECTION 203 (A), WHICH AUTHORIZED THE PRESIDENT, THROUGH THE ADMINISTRATOR OR SUCH OTHER AGENCIES AS HE MIGHT DESIGNATE, TO CONSTRUCT OR FINANCE CONSTRUCTION OF, AMONG OTHERS, FEDERAL PROJECTS OF THE TYPE CONSIDERED IN YOUR LETTER. THE DESIGNATION OF ANY AGENCY TO PROSECUTE FEDERAL PROJECTS INVESTED THAT AGENCY WITH THE AUTHORITY TO EMPLOY THE PERSONNEL NECESSARY FOR THE PROSECUTION OF THOSE PROJECTS UNDER TITLE II OF THE ACT WITHOUT REGARD TO THE CIVIL SERVICE LAWS. THAT AUTHORITY HAS NOT TO MY KNOWLEDGE BEEN QUESTIONED UNDER THAT ACT NOR UNDER THE SUCCEEDING LEGISLATION UP TO THE TIME OF YOUR RULING UNDER DATE OF JUNE 25.

THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, DESIGNED IN PART TO CONTINUE THE PUBLIC WORKS ADMINISTRATION, AGAIN SPECIFICALLY AUTHORIZED THE PRESIDENT IN SECTION 3 TO APPOINT THE NECESSARY OFFICERS AND EMPLOYEES WITHOUT REGARD TO THE CIVIL SERVICE LAWS, AND IT CONTINUED THE PUBLIC WORKS ADMINISTRATION FOR THE PURPOSE OF PERFORMING SUCH OF ITS FUNCTIONS UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT AND UNDER THE ACT OF 1935 AS MIGHT BE AUTHORIZED BY THE PRESIDENT. THESE PROVISIONS CONSIDERED IN THE LIGHT OF THE CONTINUITY OF PURPOSE DISPLAYED IN THESE TWO ENACTMENTS, AND THE SIMILARITY OF PROCEDURE PROVIDED BY EACH, EFFECTED A CONTINUATION OF THE EXEMPTION FROM THE OPERATION OF THE CIVIL SERVICE LAWS, AND THE PROPRIETY OF THAT EXEMPTION HAS REMAINED UNQUESTIONED UNTIL NOW.

IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936 (49 STAT. 1609), AUTHORITY WAS GIVEN FOR THE USE OF ADDITIONAL FUNDS BY THIS ADMINISTRATION, WITHOUT LIMITATION ON THE AUTHORIZATION TO EMPLOY PERSONNEL AS CONTAINED IN THE 1935 ACT WHICH REMAINED IN FORCE AND EFFECT, BY ITS OWN EXPRESS TERMS, UNTIL JUNE 30, 1937. THUS IN THE CONTINUATION OF THE PROGRAM THE EXEMPTION FROM THE OPERATION OF THE CIVIL SERVICE LAWS WAS NOT AFFECTED.

THE PUBLIC WORKS ADMINISTRATION EXTENSION ACT OF 1937 (50 STAT. 357) CONTINUED THIS ADMINISTRATION AND ITS FUNCTIONS AND DECLARED THAT "ALL PROVISIONS OF LAW EXISTING ON JUNE 29, 1937, AND RELATING TO THE AVAILABILITY OF FUNDS FOR CARRYING OUT ANY OF THE FUNCTIONS OF SUCH ADMINISTRATION ARE HEREBY CONTINUED UNTIL JULY 1, 1939 * * *.' THE ENTIRE ABSENCE OF FURTHER DIRECTION BY THE CONGRESS IN THAT ACT IS CONCLUSIVE TO THE EFFECT THAT NO CHANGE IN THE AUTHORITY THEN EXISTING WAS CONTEMPLATED OR EFFECTED. IT IS OBVIOUS, OF COURSE, THAT THIS STATUTE CONTINUED THE CIVIL SERVICE EXEMPTION WHICH WAS ONE OF THE "PROVISIONS OF LAW EXISTING ON JUNE 29, 1937, AND RELATING TO THE AVAILABILITY OF FUNDS.'

THE PUBLIC WORKS ADMINISTRATION ACT OF 1938 MUST THEN BE CONSTRUED IN THE LIGHT OF THE LAW IN EFFECT ON JUNE 21, 1938, AFFECTING THE PUBLIC WORKS PROGRAM AND GOVERNING ITS PROSECUTION. I FIND NOTHING IN THAT ACT WHICH POINTS TO ANY INTENTION OF THE CONGRESS TO CHANGE THE LAW RELATIVE TO THE EMPLOYMENT OF PERSONNEL, BUT I DO FIND THE SPECIFIC AUTHORITY FOR THE EXPENDITURE OF THE FUNDS APPROPRIATED, SUBJECT TO THE APPROVAL OF THE PRESIDENT, FOR THE MAKING OF ALLOTMENTS TO FINANCE FEDERAL PROJECTS, AND I LIKEWISE FIND THE PROVISIONS THAT "ALL PROVISIONS OF LAW EXISTING ON THE DATE OF ENACTMENT HEREOF, AND RELATING TO THE AVAILABILITY OF FUNDS FOR CARRYING OUT ANY OF THE FUNCTIONS OF SUCH ADMINISTRATION ARE HEREBY CONTINUED TO THE END OF SUCH FISCAL YEAR," REFERENCE BEING MADE TO THE FISCAL YEAR ENDING JUNE 30, 1941.

CONSEQUENTLY IT IS MY CONVICTION THAT THE BASIS OF YOUR RULING, THAT "THERE IS NO EXEMPTION IN SAID TITLE OR OTHERWISE FROM THE GENERAL REQUIREMENTS OF LAW APPLICABLE TO THE EMPLOYMENT OF PERSONNEL BY THE AGENCY CONCERNED" IS ERRONEOUS. FURTHERMORE IT SEEMS THAT IT IS UNNECESSARY TO FIND IN THE ACT OF JUNE 21, 1938, A SPECIFIC EXEMPTION FROM THE APPLICATION OF THE CIVIL SERVICE LAWS. THERE BEING NO PROVISION TO THE CONTRARY IN THAT ACT, THE EXEMPTION THERETOFORE ESTABLISHED AND CONTINUED BY PRIOR LEGISLATION REMAINS IN EFFECT BY REASON OF THE TERMS OF THE 1938 ACT ITSELF.

IN VIEW OF THE NECESSITY FOR GETTING FEDERAL PROJECTS UNDER WAY AT THE EARLIEST POSSIBLE MOMENT, I HOPE THAT YOU WILL GIVE THIS MATTER YOUR IMMEDIATE AND FAVORABLE CONSIDERATION.

THERE APPEARS TO BE NO QUESTION OF THE AUTHORITY TO EMPLOY PERSONAL SERVICES WITHOUT REGARD TO CIVIL SERVICE LAWS, RULES, AND REGULATIONS UNDER FUNDS APPROPRIATED TO CARRY OUT THE PROVISIONS OF TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT (48 STAT. 200) AND UNDER FUNDS APPROPRIATED BY THE SUBSEQUENT EMERGENCY RELIEF APPROPRIATION ACT OF 1935 (49 STAT. 115) AND THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936 (49 STAT. 1609), THERE BEING SPECIFIC PROVISIONS TO THAT EFFECT IN BOTH THE NATIONAL INDUSTRIAL RECOVERY ACT AND THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, AND A SPECIFIC PROVISION IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936 THAT THE FUNDS ALLOTTED THEREUNDER FOR ADMINISTRATIVE EXPENSES "SHALL BE AVAILABLE FOR EXPENDITURE FOR THE SAME PURPOSES FOR WHICH FUNDS HAVE BEEN ALLOTTED FOR ADMINISTRATIVE EXPENSES UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935.' FURTHERMORE, THE FUNDS APPROPRIATED UNDER SAID ACTS WERE EXPRESSLY MADE AVAILABLE FOR USE IN THE DISCRETION AND UNDER THE DIRECTION OF THE PRESIDENT.

HOWEVER, A DIFFERENT SITUATION IS PRESENTED WITH RESPECT TO THE PUBLIC WORKS ADMINISTRATION EXTENSION ACT OF 1937 (50 STAT. 357) AND THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938, APPROVED JUNE 21, 1938, PUBLIC RESOLUTION NO. 122. SECTION 201 OF THE PUBLIC WORKS ADMINISTRATION EXTENSION ACT OF 1937 PROVIDES:

THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS (HEREIN CALLED THE ADMINISTRATION) IS HEREBY CONTINUED UNTIL JULY 1, 1939, AND UNTIL SUCH DATE IS HEREBY AUTHORIZED TO CONTINUE TO PERFORM ALL FUNCTIONS WHICH IT IS AUTHORIZED TO PERFORM ON JUNE 29, 1937. ALL PROVISIONS OF LAW EXISTING ON JUNE 29, 1937, AND RELATING TO THE AVAILABILITY OF FUNDS FOR CARRYING OUT ANY OF THE FUNCTIONS OF SUCH ADMINISTRATION ARE HEREBY CONTINUED UNTIL JULY 1, 1939, EXCEPT THAT THE DATE SPECIFIED IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936, PRIOR TO WHICH, IN THE DETERMINATION OF THE FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS (HEREIN CALLED THE ADMINISTRATOR), A PROJECT CAN BE SUBSTANTIALLY COMPLETED IS HEREBY CHANGED FROM "JULY 1, 1938" TO "JULY 1, 1939.'

IT SHOULD BE NOTED THAT UNDER THIS SECTION THERE ARE EXTENDED ONLY "THE PROVISIONS OF LAW EXISTING ON JUNE 29, 1937, AND RELATING TO THE AVAILABILITY OF FUNDS FOR CARRYING OUT ANY OF THE FUNCTIONS" OF THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS. NO PROVISION APPEARS IN SAID ACT FOR CONTINUING THE PROVISIONS OF TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT, OR FOR CONTINUING THE AVAILABILITY OF FUNDS APPROPRIATED FOR CARRYING OUT THE PROVISIONS OF SAID TITLE, EXCEPT INSOFAR AS SUCH PROVISIONS OR FUNDS RELATE TO CARRYING OUT THE FUNCTIONS OF THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS. CONSEQUENTLY, SAID ACT MAY NOT BE CONSTRUED AS EXTENDING TO AGENCIES OTHER THAN THE PUBLIC WORKS ADMINISTRATION THE AUTHORITY TO EMPLOY PERSONNEL WITHOUT REGARD TO CIVIL SERVICE LAWS, RULES, AND REGULATIONS EXCEPT AS MAY BE NECESSARY TO ENABLE THEM TO COOPERATE IN CARRYING OUT THE FUNCTIONS OF THE PUBLIC WORKS ADMINISTRATION WITH FUNDS THERETOFORE MADE AVAILABLE UNDER PRIOR ACTS FOR USE IN THE DISCRETION AND UNDER THE DIRECTION OF THE PRESIDENT. IN THIS CONNECTION SEE DECISION OF THIS OFFICE OF JULY 24, 1937, A-87886, TO THE SECRETARY OF THE TREASURY.

ALSO, IN THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938 (TITLE II OF THE ACT OF JUNE 21, 1938, PUB.RES. 122), THERE APPEARS NOTHING THAT CAN BE CONSTRUED AS REVIVING THE GENERAL AUTHORITY WHICH HAD EXISTED UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT AND THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935 FOR EMPLOYMENTS WITHOUT REGARD TO THE CIVIL SERVICE LAWS, RULES, AND REGULATIONS. SECTION 201 (A) OF SAID ACT OF JUNE 21, 1938, PROVIDES:

IN ORDER TO INCREASE EMPLOYMENT BY PROVIDING FOR USEFUL PUBLIC WORKS PROJECTS OF THE KIND AND CHARACTER WHICH THE FEDERAL EMERGENCY ADMINISTRATOR OF PUBLIC WORKS (HEREIN CALLED THE ADMINISTRATOR) HAS HERETOFORE FINANCED OR AIDED IN FINANCING, PURSUANT TO TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT, THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, THE EMERGENCY RELIEF APPROPRIATION ACT OF 1936, OR THE PUBLIC WORKS ADMINISTRATION EXTENSION ACT OF 1937, THERE IS HEREBY APPROPRIATED, OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED, TO REMAIN AVAILABLE UNTIL JUNE 30, 1940, THE SUM OF $965,000,000, TO BE EXPENDED BY SUCH ADMINISTRATOR, SUBJECT TO THE APPROVAL OF THE PRESIDENT, FOR (1) THE MAKING OF ALLOTMENTS TO FINANCE FEDERAL PROJECTS, OR (2) THE MAKING OF LOANS OR GRANTS, OR BOTH, TO STATES, TERRITORIES, POSSESSIONS, POLITICAL SUBDIVISIONS, OR OTHER PUBLIC BODIES (HEREIN CALLED PUBLIC AGENCIES), OR (3) THE CONSTRUCTION AND LEASING OF PROJECTS, WITH OR WITHOUT THE PRIVILEGE OF PURCHASE, TO ANY SUCH PUBLIC AGENCIES: PROVIDED, THAT NO FUNDS APPROPRIATED UNDER THIS TITLE SHALL BE AVAILABLE FOR THE ACQUISITION OF LAND TO ENLARGE INDIAN RESERVATIONS. IT WILL BE NOTED THAT THE REFERENCE TO THE PRIOR ACTS IN THIS SECTION IS ONLY FOR THE PURPOSE OF INDICATING THE KIND AND CHARACTER OF PROJECTS AUTHORIZED TO BE UNDERTAKEN AND PROSECUTED UNDER THE FUNDS APPROPRIATED IN SAID SUBSECTION. THERE IS NOTHING IN THAT SECTION, OR ELSEWHERE IN THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938, EITHER IN SPECIFIC TERMS OR BY NECESSARY IMPLICATION, WHICH MAY BE CONSTRUED AS AUTHORIZING THE EMPLOYMENT OF PERSONAL SERVICES WITHOUT REGARD TO THE CIVIL SERVICE LAWS, RULES AND REGULATIONS AND THE CLASSIFICATION ACT OF 1923, AS AMENDED, BY AGENCIES ALLOTTED FUNDS UNDER SECTION 201 (C) OR AS AUTHORIZING THE EXPENDITURES OF SUCH FUNDS BY SUCH AGENCIES UNDER THE PROVISIONS OF TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT OR THE PRIOR EMERGENCY RELIEF APPROPRIATION ACTS.

THE FUNDS FROM WHICH THE ALLOTMENTS TO FEDERAL AGENCIES FOR FEDERAL CONSTRUCTION PROJECTS ARE AUTHORIZED TO BE MADE BY THE ADMINISTRATOR, SUBJECT TO THE APPROVAL OF THE PRESIDENT, ARE FUNDS APPROPRIATED IN SECTION 201 (A) FOR SPECIFIC PURPOSES AND ARE NOT MADE AVAILABLE FOR USE IN THE DISCRETION AND UNDER THE DIRECTION OF THE PRESIDENT. WHEN THE CONGRESS INTENDS TO AUTHORIZE THE USE OF APPROPRIATED FUNDS FOR THE EMPLOYMENT OF PERSONAL SERVICES WITHOUT REGARD TO THE CIVIL SERVICE LAWS, RULES, AND REGULATIONS, IT EXPRESSLY SO PROVIDES EITHER IN THE ACT CREATING THE AGENCY INVOLVED OR IN THE APPROPRIATION. NO SUCH PROVISION HAS BEEN MADE WITH RESPECT TO THE EMPLOYMENTS HERE IN QUESTION.

AS POINTED OUT ABOVE WITH REFERENCE TO SECTION 201 OF THE PUBLIC WORKS ADMINISTRATION EXTENSION ACT OF 1937, THE SIMILAR PROVISION IN SECTION 202 OF THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938, CONTINUING TO JUNE 30, 1941, THE PROVISIONS OF CERTAIN LAWS, IS EXPRESSLY LIMITED TO THOSE "RELATING TO THE AVAILABILITY OF FUNDS FOR CARRYING OUT ANY OF THE FUNCTIONS" OF THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, AND, CLEARLY, THE EMPLOYMENT OF PERSONAL SERVICES IN AN EXECUTIVE DEPARTMENT OR ESTABLISHMENT OTHER THAN THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS IS NOT A FUNCTION OF SAID ADMINISTRATION.

I HAVE GIVEN MOST CAREFUL CONSIDERATION TO THE MATTERS SET FORTH IN YOUR LETTER BUT I AM CONSTRAINED TO ADHERE TO THE CONCLUSION EXPRESSED IN THE DECISION OF JUNE 25, 1938, 17 COMP. GEN. 1114, TO THE SECRETARY OF THE NAVY, TO THE EFFECT THAT THE FUNDS APPROPRIATED IN THE PUBLIC WORKS ADMINISTRATION APPROPRIATION ACT OF 1938 ARE NOT AVAILABLE FOR THE EMPLOYMENT OF PERSONAL SERVICES, WITHOUT REGARD TO THE CIVIL SERVICE LAWS, RULES AND REGULATIONS, BY FEDERAL AGENCIES TO WHICH FUNDS MAY BE ALLOTTED UNDER SAID ACT FOR FEDERAL CONSTRUCTION PROJECTS, EXCEPT AS TO SUCH AGENCIES AS OTHERWISE ARE EXEMPTED BY LAW FROM COMPLIANCE WITH SUCH LAWS, RULES AND REGULATIONS.