A-64204, AUGUST 5, 1935, 15 COMP. GEN. 100

A-64204, AUGUST 5, 1935, 15 COMP. GEN. 100

CLASSIFICATION OF CIVILIAN POSITION - FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS THE PERSONNEL OF THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS ARE AUTHORIZED TO BE CLASSIFIED ONLY PURSUANT TO THE PROCEDURE PRESCRIBED BY EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, AND NOT UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, PURSUANT TO THE AUTHORITY VESTED BY EXECUTIVE ORDER NO. 7092, DATED JULY 3, 1935, IN THE HEADS OF EMERGENCY AGENCIES CREATED UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, AUGUST 5, 1935:

THERE WAS RECEIVED YOUR LETTER OF JULY 25, 1935, AS FOLLOWS:

EXECUTIVE ORDER NO. 7092, DATED JULY 3, 1935, CONTAINS THE FOLLOWING PROVISIONS:

"* * * IT IS ORDERED THAT THE HEADS OF THE AGENCIES HERETOFORE OR HEREAFTER ESTABLISHED UNDER THE SAID EMERGENCY RELIEF APPROPRIATION ACT OF 1935 MAY ELECT TO CLASSIFY THE POSITIONS OF THE EMPLOYEES OF THEIR RESPECTIVE AGENCIES, NOW IN THE SERVICE OR HEREAFTER APPOINTED, AND FIX THE RATES OF COMPENSATION THEREFOR EITHER IN ACCORDANCE WITH THE SALARY SCHEDULE CONTAINED IN EXECUTIVE ORDER NO. 6746, OF JUNE 21, 1934, OR IN ACCORDANCE WITH THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.

"THIS EXECUTIVE ORDER SHALL APPLY TO ALL APPOINTMENTS WHICH HAVE BEEN OR MAY HEREAFTER BE MADE TO POSITIONS IN ANY OF THE AGENCIES HERETOFORE OR HEREAFTER ESTABLISHED UNDER THE SAID EMERGENCY RELIEF APPROPRIATION ACT OF 1935.

"EXECUTIVE ORDER NO. 6746, OF JUNE 21, 1934, IS HEREBY MODIFIED TO THE EXTENT NECESSARY TO EFFECTUATE THE PURPOSES OF THIS ORDER.'

POSITIONS IN THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS HAVING BEEN CLASSIFIED IN ACCORDANCE WITH EXECUTIVE ORDER NO. 6746 AND COMPENSATION FIXED AT AMOUNTS NOT IN EXCESS OF THOSE PRESCRIBED BY THE SALARY SCHEDULE CONTAINED THEREIN FOR THE CORRESPONDING GRADES, YOUR DECISION OF THE FOLLOWING QUESTIONS IS RESPECTFULLY REQUESTED.

1. ARE THE PROVISIONS OF EXECUTIVE ORDER NO. 7092 APPLICABLE TO POSITIONS IN THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS WHICH, BY THE TERMS OF EXECUTIVE ORDER NO. 7064, DATED JUNE 7, 1935, IS AUTHORIZED TO CONTINUE TO PERFORM FUNCTIONS UNDER TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT AND TO PERFORM FUNCTIONS UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935?

2. IF THE ANSWER TO QUESTION 1 IS "YES," MAY APPOINTMENTS BE MADE AT RATES LESS THAN THOSE PRESCRIBED BY THE SALARY SCHEDULE CONTAINED IN EXECUTIVE ORDER NO. 6746 FOR THE GRADES IN WHICH THE POSITIONS ARE ALLOCATED?

3. IF THE ANSWER TO QUESTION 2 IS "NO," IS IT REQUIRED IN THOSE CASES IN WHICH APPOINTMENTS HAVE BEEN MADE AT RATES LESS THAN THOSE PRESCRIBED BY THE SCHEDULE CONTAINED IN EXECUTIVE ORDER NO. 6746 THAT THE SALARIES BE INCREASED TO THE EXACT RATES SPECIFIED IN THE SCHEDULE FOR THE GRADES IN WHICH THE POSITIONS HAVE BEEN ALLOCATED?

4. IF THE ANSWER TO QUESTION 3 IS "YES," WHAT SHOULD BE THE EFFECTIVE DATE OF SUCH SALARY INCREASES?

5. IF THE ANSWER TO QUESTION 1 IS "YES," (A) ARE EMPLOYEES OF THE CLASSES MENTIONED IN PARAGRAPH NUMBERED (3) OF EXECUTIVE ORDER NO. 6746 (LABORERS, SKILLED TRADESMEN, ETC.) HERETOFORE OR HEREAFTER APPOINTED EXCEPTED FROM CLASSIFICATION? (B) IF NOT, SHOULD EMPLOYEES OF SUCH CLASSES HERETOFORE APPOINTED BE CLASSIFIED AND THEIR SALARIES ADJUSTED TO THE EXACT RATES PRESCRIBED BY EXECUTIVE ORDER NO. 6746 FOR THE GRADES IN WHICH THEIR POSITIONS MAY BE ALLOCATED?

6. IN THE REGULAR BUREAUS AND OFFICES OF THE INTERIOR DEPARTMENT SOME POSITIONS WITH SALARIES PAID FROM ALLOTTED EMERGENCY FUNDS HAVE BEEN CLASSIFIED IN ACCORDANCE WITH EXECUTIVE ORDER NO. 6746 AND COMPENSATION FIXED AT AMOUNTS NOT IN EXCESS OF THE RATES PRESCRIBED BY THE SALARY SCHEDULE CONTAINED THEREIN FOR THE CORRESPONDING GRADES. IT HAS BEEN ASSUMED THAT EXECUTIVE ORDER NO. 7092 IS NOT APPLICABLE IN SUCH CASES AS THE BUREAUS AND OFFICES WERE NOT ESTABLISHED UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, BUT AN EXPRESSION OF YOUR OPINION ON THIS POINT ALSO WILL BE APPRECIATED.

THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS IS AN EMERGENCY AGENCY WITHIN THE MEANING OF EXECUTIVE ORDER NO. 6746 OF JUNE 21, 1934, AND ITS PREDECESSOR, EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18, 1933. DECISION OF APRIL 5, 1934, 13 COMP. GEN. 263, IT WAS HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

THE CLASSIFICATION OF POSITIONS AND THE FIXING OF SALARY RATES FOR PERSONNEL IN THE EMERGENCY ESTABLISHMENTS OF THE GOVERNMENT, INCLUDING THE OFFICE OF THE DIRECTOR OF EMERGENCY CONSERVATION WORK, NOT MADE SUBJECT TO THE CLASSIFICATION ACT BY STATUTE, ARE REQUIRED TO BE EFFECTED PURSUANT TO THE TERMS OF EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18, 1933, EXCLUSIVELY, AND SUCH ADMINISTRATIVE OFFICES HAVE NO ELECTION TO PROCEED UNDER THE REGULAR CLASSIFICATION ACT.

EXECUTIVE ORDER NO. 7092 OF JULY 3, 1935, PROVIDES AS FOLLOWS:

BY VIRTUE OF AND PURSUANT TO THE AUTHORITY VESTED IN ME UNDER THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, APPROVED APRIL 8, 1935 (PUBLIC RESOLUTION NO. 11, 74TH CONGRESS), AND AS PRESIDENT OF THE UNITED STATES, IT IS ORDERED THAT THE HEADS OF THE AGENCIES HERETOFORE OR HEREAFTER ESTABLISHED UNDER THE SAID EMERGENCY RELIEF APPROPRIATION ACT OF 1935 MAY ELECT TO CLASSIFY THE POSITIONS OF THE EMPLOYEES OF THEIR RESPECTIVE AGENCIES, NOW IN THE SERVICE OR HEREAFTER APPOINTED, AND FIX THE RATES OF COMPENSATION THEREFOR EITHER IN ACCORDANCE WITH THE SALARY SCHEDULE CONTAINED IN EXECUTIVE ORDER NO. 6746, OF JUNE 21, 1934, OR IN ACCORDANCE WITH THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.

THIS EXECUTIVE ORDER SHALL APPLY TO ALL APPOINTMENTS WHICH HAVE BEEN OR MAY HEREAFTER BE MADE TO POSITIONS IN ANY OF THE AGENCIES HERETOFORE OR HEREAFTER ESTABLISHED UNDER THE SAID EMERGENCY RELIEF APPROPRIATION ACT OF 1935.

EXECUTIVE ORDER NO. 6746, OF JUNE 21, 1934, IS HEREBY MODIFIED TO THE EXTENT NECESSARY TO EFFECTUATE THE PURPOSES OF THIS ORDER.

SECTION 12 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1935, APPROVED APRIL 8, 1935, PROVIDES AS FOLLOWS:

THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS ESTABLISHED UNDER TITLE II OF THE NATIONAL INDUSTRIAL RECOVERY ACT IS HEREBY CONTINUED UNTIL JUNE 30, 1937, AND IS AUTHORIZED TO PERFORM SUCH OF ITS FUNCTIONS UNDER SAID ACT AND SUCH FUNCTIONS UNDER THIS JOINT RESOLUTION AS MAY BE AUTHORIZED BY THE PRESIDENT. ALL SUMS APPROPRIATED TO CARRY OUT THE PURPOSES OF SAID ACT SHALL BE AVAILABLE UNTIL JUNE 30, 1937. * * *

THIS ACT SPECIFICALLY RECOGNIZES AND STATES THAT THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS WAS ESTABLISHED UNDER THE NATIONAL INDUSTRIAL RECOVERY ACT--- NOT UNDER SAID EMERGENCY RELIEF APPROPRIATION ACT OF 1935--- THE LATTER STATUTE PROVIDING ONLY FOR THE PERFORMANCE OF THE FUNCTIONS OF THE SAID EMERGENCY AGENCY UNDER EITHER STATUTE AS MAY BE AUTHORIZED BY THE PRESIDENT. IT MAY NOT BE HELD, THEREFORE, THAT THE FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS WAS ,ESTABLISHED UNDER THE SAID EMERGENCY RELIEF APPROPRIATION ACT OF 1935," WITHIN THE MEANING OF THE EXECUTIVE ORDER NO. 7092 OF JULY 3, 1935.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE MAKING IT UNNECESSARY TO ANSWER QUESTIONS 2, 3, 4, AND 5.

REFERRING TO QUESTION 6, WHILE EXECUTIVE ORDER NO. 7092 OF JULY 3, 1935, WOULD NOT BE APPLICABLE TO EMERGENCY POSITIONS UNDER THE DEPARTMENT OF THE INTERIOR, SUCH POSITIONS MAY BE CLASSIFIED, AND THE SALARY RATES THEREOF FIXED, PURSUANT TO THE PROCEDURE PRESCRIBED BY THE CLASSIFICATION ACT OF 1923 (SEE 14 COMP. GEN. 867), UNDER THE AUTHORITY CONTAINED IN THE PARAGRAPH OF EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, IMMEDIATELY FOLLOWING THE SCHEDULE OF SALARY RATES.