A-64663, SEPTEMBER 24, 1935, 15 COMP. GEN. 243

A-64663, SEPTEMBER 24, 1935, 15 COMP. GEN. 243

OFFICERS AND EMPLOYEES - TRANSFERRED TO POSITIONS PAID FROM EMERGENCY FUNDS AN APPOINTMENT TO A POSITION IN THE FEDERAL SERVICE, THE SALARY OF WHICH IS PAID FROM EMERGENCY FUNDS, IMMEDIATELY FOLLOWING OR SEVERAL DAYS SUBSEQUENT TO A VOLUNTARY TERMINATION OF SERVICES IN ANOTHER DEPARTMENT OR BRANCH OF THE FEDERAL SERVICE, IS A TRANSFER WITHIN THE TERMS OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, PROHIBITING SALARY INCREASES UPON TRANSFER "EXCEPT UPON THE APPROVAL OF THE PRESIDENT," BUT THE PROVISIONS OF SAID EXECUTIVE ORDER ARE NOT APPLICABLE TO INVOLUNTARY SEPARATIONS OR SEPARATIONS BECAUSE OF THE EXPIRATION OF THE PERIOD OF APPOINTMENT UNDER WHICH SERVING AT THE TIME OF, OR PRIOR TO, THE TRANSFER OR NEW APPOINTMENT. UNDER THE TERMS OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, THE PRESIDENT'S APPROVAL OF A TRANSFER, WITH INCREASED COMPENSATION, TO A POSITION, THE SALARY OF WHICH IS TO BE PAID FROM EMERGENCY FUNDS, IF REQUESTED AT OR ABOUT THE TIME OF TRANSFER, RELATES BACK TO THE DATE OF ENTRY UPON DUTY UNDER THE APPROVED APPOINTMENT AND PAYMENT OF THE INCREASED SALARY MAY BE MADE FROM THAT DATE, BUT THERE IS NO AUTHORITY FOR THE ESTABLISHMENT FROM WHICH THE EMPLOYEE IS BEING TRANSFERRED TO CONTINUE TO PAY SALARY TO THE EMPLOYEE AFTER APPOINTMENT AND ENTRY UPON DUTY OF THE NEW POSITION. EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, DOES NOT PROVIDE FOR PROMOTIONS WITH APPROVAL OF THE PRESIDENT AS DISTINGUISHED FROM TRANSFERS AT AN INCREASE. AN EMPLOYEE TRANSFERRED TO A POSITION IN THE FEDERAL SERVICE, THE SALARY OF WHICH IS PAID FROM EMERGENCY FUNDS, AT A SALARY LOWER THAN THAT RECEIVED IN THE POSITION FROM WHICH TRANSFERRED, MAY BE PROMOTED WITHIN THE 6 MONTHS' PERIOD PRESCRIBED BY EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, WITHOUT PRESIDENTIAL APPROVAL, TO A SALARY NOT IN EXCESS OF THE RATE HE WAS RECEIVING AT THE TIME OF TRANSFER.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR, RESETTLEMENT ADMINISTRATION, SEPTEMBER 24, 935:

THERE WAS RECEIVED YOUR LETTER OF SEPTEMBER 10, 1935, AS FOLLOWS:

I HAVE YOUR LETTER OF AUGUST 21 QUOTING PART OF A LETTER RECEIVED BY YOU FROM A RESIDENT OF THE DISTRICT OF COLUMBIA IN WHICH IT IS STATED THAT MANY EMPLOYEES HAVE BEEN TRANSFERRED FROM OTHER DEPARTMENTS TO THE RESETTLEMENT ADMINISTRATION AT HIGHER SALARIES THROUGH "FRIENDSHIP AND POLITICAL PULL, AND CONTRARY TO THE PRESIDENT'S RECENT EXECUTIVE ORDER PROHIBITING INCREASE OF SALARY ON TRANSFER," AND SPECIFICALLY REFERRING TO THE CASE OF MR. BENJAMIN BROTMAN.

IN REPLY TO YOUR LETTER I MAY STATE THAT ALL POSITIONS IN THE WASHINGTON OFFICE OF THE RESETTLEMENT ADMINISTRATION HAVE BEEN AND ARE BEING CLASSIFIED ACCORDING TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND THAT ALL FIELD POSITIONS ARE BEING CLASSIFIED UNDER THE EXECUTIVE ORDER CLASSIFICATION. 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. THE EXECUTIVE ORDER OF JUNE 12 HAS BEEN STRICTLY COMPLIED WITH IN ALL CASES. THERE MAY BE INSTANCES IN WHICH TRANSFERS HAVE BEEN MADE AT AN INCREASE, BUT WE HAVE NO KNOWLEDGE OF THEM. WE HAVE ALWAYS DECIDED THESE CASES IN STRICT ACCORDANCE WITH THE EXECUTIVE ORDER AND HAVE ENDEAVORED TO GET ALL FACTS OBTAINABLE.

IN THE CASE OF MR. BENJAMIN BROTMAN, WE WERE ADVISED BY THE EMPLOYEES' COMPENSATION COMMISSION THAT MR. BROTMAN WAS WORKING THERE UNDER AN EMERGENCY APPOINTMENT, PAID THROUGH CIVIL WORKS APPROPRIATION FUNDS, WHICH EXPIRED JUNE 30, 1935. IT IS THE CONTENTION OF THIS ADMINISTRATION, THEREFORE, THAT MR. BROTMAN WAS A FREE AGENT ON JULY 1,1935, ON WHICH DAY HE WAS APPOINTED TO A POSITION IN THE RESETTLEMENT ADMINISTRATION, AND THAT, BEING A FREE AGENT, NO TRANSFER WAS INVOLVED, IN WHICH CASE PRESIDENTIAL APPROVAL WAS NOT REQUIRED.

PARAGRAPHS 2 AND 3 OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, PROVIDE AS FOLLOWS:

2. NO OFFICER OR REPRESENTATIVE OF ANY DEPARTMENT OR AGENCY SHALL CONTRACT OR NEGOTIATE WITH AN EMPLOYEE OF ANOTHER DEPARTMENT OR AGENCY WITH A VIEW TO EFFECTING THE TRANSFER OF SUCH EMPLOYEE UNTIL PERMISSION FOR SUCH CONTACT OR NEGOTIATION HAS BEEN GIVEN BY THE HEAD OF THE DEPARTMENT OR AGENCY IN WHICH SUCH EMPLOYEE IS EMPLOYED.

3. IF SUCH TRANSFER IS APPROVED, THE SALARY OF THE EMPLOYEE TRANSFERRED TO A POSITION, THE SALARY OF WHICH IS PAID FROM EMERGENCY FUNDS, SHALL NOT BE INCREASED AT THE TIME OF THE TRANSFER EXCEPT UPON THE APPROVAL OF THE PRESIDENT, AND THEREAFTER NO INCREASE SHALL BE MADE IN THE SALARY OF SUCH EMPLOYEE PAID FROM EMERGENCY FUNDS FOR A PERIOD OF AT LEAST SIX MONTHS.

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 PAY ROLLS COVERING THE FIRST SALARY PAYMENT TO EMPLOYEES APPOINTED FOR SERVICE IN THE RESETTLEMENT ADMINISTRATION AFTER JUNE 12, 1935, SHOULD SHOW WHETHER ANY OF SAID TRANSFERRED EMPLOYEES HAD SERVED AT A LOWER RATE OF COMPENSATION IN ANY OTHER DEPARTMENT OR ESTABLISHMENT SUBSEQUENT TO JUNE 12, 1935, AND, IF SO, THERE SHOULD BE A SHOWING THAT THE APPOINTMENT IS NOT IN CONTRAVENTION OF THE TERMS OF THE EXECUTIVE ORDER.

THERE HAS BEEN PRESENTED INFORMALLY A MEMORANDUM PREPARED IN THE RESETTLEMENT ADMINISTRATION EXPLAINING THE DELAY THAT HAS OCCURRED IN THE MATTER OF REQUESTING THE PRESIDENT'S APPROVAL OF TRANSFERS AT AN INCREASE IN SALARY AND INDICATING THAT CERTAIN DOUBTS HAVE ARISEN AS TO THE PROPER CONSTRUCTION OR APPLICATION OF THE EXECUTIVE ORDER IN QUESTION.

IF AT OR ABOUT THE TIME OF TRANSFER TO A POSITION THE SALARY OF WHICH IS TO BE PAID FROM EMERGENCY FUNDS THE PRESIDENT IS ASKED TO APPROVE THE TRANSFER AT AN INCREASE, THE PRESIDENT'S APPROVAL, WHEN GIVEN, MAY RELATE BACK TO THE DATE OF ENTRY UPON DUTY UNDER THE APPOINTMENT AND WILL AUTHORIZE PAYING THE INCREASE FROM THAT DATE OR FROM ANY DATE SUBSEQUENT THERETO, IF, PENDING THE PRESIDENT'S ACTION, THE ESTABLISHMENT TO WHICH THE EMPLOYEE IS TRANSFERRED HAS PAID THE EMPLOYEE NO COMPENSATION. ALSO, THE PRESIDENT'S APPROVAL MAY RELATE BACK IN THE SAME MANNER IF THE EMPLOYEE HAS BEEN PAID COMPENSATION, BUT OF COURSE, THE ADDITIONAL COMPENSATION PAYABLE WOULD BE ONLY THE DIFFERENCE BETWEEN THE OLD RATE AND THE INCREASED RATE AUTHORIZED BY THE PRESIDENT. THERE IS NO AUTHORITY FOR THE ESTABLISHMENT FROM WHICH THE EMPLOYEE IS BEING TRANSFERRED TO CONTINUE TO PAY SALARY TO THE EMPLOYEE AFTER HE IS APPOINTED BY AND ENTERS UPON DUTY UNDER THE ESTABLISHMENT TO WHICH HE IS BEING TRANSFERRED.

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.

THE EXECUTIVE ORDER DOES NOT PROVIDE FOR PROMOTIONS WITH APPROVAL OF THE PRESIDENT AS DISTINGUISHED FROM TRANSFERS AT AN INCREASE. HENCE, IF AN EMPLOYEE BE TRANSFERRED AT THE SAME SALARY HE WAS RECEIVING IN THE OTHER ESTABLISHMENT, AND A REQUEST FOR TRANSFER AT AN INCREASE (EITHER EFFECTIVE AT DATE OF THE TRANSFER OR AT SOME SUBSEQUENT DATE) IS NOT MADE AT OR NEAR THE TIME OF THE TRANSFER--- AND APPROVED--- A PROMOTION WITHIN THE 6 MONTHS' PERIOD IS ABSOLUTELY PROHIBITED.

THE "INCREASE" WHICH IS PROHIBITED WITHIN THE 6 MONTHS' PERIOD BY PARAGRAPH 3 OF THE EXECUTIVE ORDER IS AN INCREASE OVER THE SALARY RECEIVED IN THE POSITION FROM WHICH TRANSFERRED, AND, THEREFORE, IF AN RECEIVING IN THE SERVICE FROM WHICH TRANSFERRED, HE COULD, WITHOUT PRESIDENTIAL APPROVAL, BE PROMOTED WITHIN THE 6 MONTHS' PERIOD, BUT NOT TO A SALARY IN EXCESS OF THE RATE HE WAS RECEIVING AT TIME OF THE TRANSFER.

WITH REFERENCE TO THE CASE OF BENJAMIN BROTMAN, A REPORT IS BEING REQUESTED FROM THE UNITED STATES EMPLOYEES' COMPENSATION COMMISSION AS TO THE FACTS RELATIVE TO THE TERMINATION OF HIS SERVICES UNDER THAT COMMISSION.