B-5212, OCTOBER 28, 1939, 19 COMP. GEN. 461

B-5212, OCTOBER 28, 1939, 19 COMP. GEN. 461

COMPENSATION AND CLASSIFICATION CHANGES - TRANSFERRED REORGANIZATION PLAN PERSONNEL - FEDERAL SECURITY AGENCY 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 COMMISSIONING IN THE RESERVE CORPS OF THE PUBLIC HEALTH SERVICE FOR ACTIVE DUTY AT THE SAME OR A DIFFERENT STATION AND AT A HIGHER RATE OF COMPENSATION, OF A MEDICAL OR DENTAL INTERNE AT A MARINE HOSPITAL, ETC., WHO HAS BEEN DISCONTINUED OR HAS RESIGNED, THE ESTABLISHED PRACTICE OF THE PUBLIC HEALTH SERVICE TO SELECT INTERNES OF DEMONSTRATED ABILITY FOR VACANCIES IN THE RESERVE CORPS BEING IN THE NATURE OF A REGULATION AND THUS HAVING BEEN CONTINUED IN FORCE UNDER THE PROVISIONS OF SECTION 8 (C) OF THE ACT. 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 PROMOTION OF A PUBLIC HEALTH SERVICE RESERVE OFFICER TO THE GRADE OF PASSED ASSISTANT SURGEON IN ACCORDANCE WITH REGULATIONS OF THE PUBLIC HEALTH SERVICE, THE PROVISIONS OF WHICH ARE CONTINUED IN FORCE BY SECTION 8 (C) OF THE ACT. 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 OF AN EMERGENCY CLERK WHOSE SERVICES WERE DISCONTINUED AFTER THE EFFECTIVE DATE OF THE SAID ACT, TO A DIFFERENT EMERGENCY POSITION AT A HIGHER RATE OF COMPENSATION, PROVIDED THE DISCONTINUANCE WAS NOT IN ANTICIPATION OF, OR FOR THE PURPOSE OF, SUCH REAPPOINTMENT. 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 SELECTION TO FILL AN ENTIRELY DIFFERENT POSITION, UPON THE CERTIFICATION OF THE CIVIL SERVICE COMMISSION FROM THE REGISTER OF ELIGIBLES, OF AN EMPLOYEE WHO OCCUPIED A TEMPORARY POSITION THE CIVIL SERVICE AUTHORITY FOR WHICH TERMINATED DURING THE FISCAL YEAR 1940, BUT ANY CHANGE IN CLASSIFICATION OR COMPENSATION MAY NOT BECOME EFFECTIVE PRIOR TO JULY 1, 1940. 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 SELECTION, UPON THE CERTIFICATION OF THE CIVIL SERVICE COMMISSION FROM THE REGISTER OF ELIGIBLES, OF AN EMPLOYEE PERFORMING DUTIES OF A POSITION IMPROPERLY ALLOCATED TO FILL THE POSITION AFTER PROPER ALLOCATION, BUT ANY CHANGE IN CLASSIFICATION OR COMPENSATION MAY NOT BECOME EFFECTIVE UNTIL JULY 1, 1940 SINCE ANY DISCONTINUANCE OF THE EMPLOYEE TO ACCEPT THE PROPERLY ALLOCATED POSITION FOR WHICH CERTIFIED WOULD BE IN ANTICIPATION OF, OR FOR THE PURPOSE OF, SUCH ACCEPTANCE. 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 ADMINISTRATIVE ASSIGNMENT, AT THE EMPLOYEE'S REQUEST, OF AN EMPLOYEE IN THE SUBPROFESSIONAL SERVICE TO PERFORM THE DUTIES OF A POSITION ESTABLISHED IN THE CUSTODIAL SERVICE AT A LOWER COMPENSATION RATE, BUT ANY CHANGE IN CLASSIFICATION OR COMPENSATION MAY NOT BECOME EFFECTIVE UNTIL JULY 1, 1940. 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 PREVENT CHANGES IN THE AMOUNT OF ANNUAL PART-TIME COMPENSATION CORRESPONDING TO THE INCREASE OR DECREASE IN THE SERVICES REQUIRED OF "PART-TIME" PHYSICIANS OF THE PUBLIC HEALTH SERVICE IF THEIR CLASSIFICATION ACT GRADES ARE NOT CHANGED DURING THE FISCAL YEAR 1940. THERE IS NOTHING IN SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939, 53 STAT. 563, JUSTIFYING ANY DISTINCTION BETWEEN REGULAR AND EMERGENCY APPROPRIATIONS IN THE APPLICATION OF THE RESTRICTIONS OF THE SAID SECTION ON CHANGES IN COMPENSATION AND CLASSIFICATION DURING THE FISCAL YEAR 1940.

COMPTROLLER GENERAL BROWN TO THE FEDERAL SECURITY ADMINISTRATOR, OCTOBER 28, 1939:

I HAVE YOUR LETTER OF SEPTEMBER 26, 1939, AS FOLLOWS:

UNDER DATE OF JULY 24, 1939, YOUR DECISION WAS REQUESTED WITH RESPECT TO A NUMBER OF QUESTIONS WHICH HAD ARISEN IN CONNECTION WITH THE APPLICATION OF SECTION 10-B OF THE REORGANIZATION ACT.

SINCE YOUR REPLY DATED AUGUST 22, 1939, B 5212, WAS RECEIVED, A NUMBER OF OTHER QUESTIONS HAVE ARISEN RESPECTING PERSONNEL OF THE PUBLIC HEALTH SERVICE. YOUR DECISION WITH RESPECT TO THE FOLLOWING QUESTIONS IS, THEREFORE, REQUESTED:

1. IT HAS BEEN THE PRACTICE FOR A NUMBER OF YEARS TO FILL VACANCIES IN THE RESERVE CORPS AT MARINE HOSPITALS AND FEDERAL PENAL AND CORRECTIONAL INSTITUTIONS BY SELECTING INTERNES WHO HAVE DEMONSTRATED THEIR ABILITY AND IN MANY CASES PASSED A WRITTEN EXAMINATION FOR APPOINTMENT IN THE REGULAR CORPS AS PRESCRIBED BY THE REGULATIONS OF THE PUBLIC HEALTH SERVICE. MEDICAL AND DENTAL INTERNES ARE USUALLY APPOINTED FOR A PERIOD OF ONE YEAR AND UPON THE EXPIRATION OF THIS PERIOD ARE EITHER DISCONTINUED OR COMMISSIONED IN THE RESERVE OR REGULAR CORPS FOR DUTY AT OTHER STATIONS.

WILL SECTION 10-B PROHIBIT A MEDICAL OR DENTAL INTERNE FROM BEING DISCONTINUED AND COMMISSIONED IN THE RESERVE CORPS AT A HIGHER RATE OF COMPENSATION TO FILL A VACANCY AT THE SAME OR DIFFERENT STATION?

2. A DENTAL INTERNE ON DUTY AT THE U.S. PENITENTIARY AT LEAVENWORTH, KANSAS, IS RESIGNING. AFTER THE RESIGNATION BECOMES EFFECTIVE MAY THIS INDIVIDUAL BE COMMISSIONED AS AN ASSISTANT DENTAL SURGEON OF THE RESERVE FOR ACTIVE DUTY AT THE FEDERAL REFORMATORY, EL RENO, OKLAHOMA, TO FILL AN EXISTING VACANCY PROVIDING HE DEFRAYS HIS OWN TRAVELING EXPENSES TO THE NEW STATION?

3. UNDER DATE OF MAY 23, 1939, A RESERVE OFFICER ON DUTY AT THE PUBLIC HEALTH SERVICE RELIEF STATION, SAN PEDRO, CALIFORNIA, WAS RECOMMENDED FOR PROMOTION TO THE GRADE OF PASSED ASSISTANT SURGEON. IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 84 OF THE REGULATIONS OF THE PUBLIC HEALTH SERVICE, THE RESERVE BOARD UNDER DATE OF JUNE 2, 1939, APPROVED HIS PROMOTION. ON JUNE 9, 1939, THE SECRETARY OF THE TREASURY APPROVED THE PROMOTION, EFFECTIVE DATE OF OATH. ON JUNE 13, 1939, THIS OFFICER WAS INSTRUCTED TO TAKE OATH OF OFFICE JULY 1, WHICH HE DID. IN VIEW OF THE ACTION TAKEN BEFORE JULY 1, IS THE PROMOTION OF THIS DOCTOR PROHIBITED BY SECTION 10-B?

4. 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?

5. ON JUNE 30, 1939, A CERTAIN EMPLOYEE OCCUPIED A TEMPORARY POSITION THE CIVIL SERVICE AUTHORITY FOR WHICH TERMINATED AUGUST 15; ON AUGUST 14, A CERTIFICATE OF ELIGIBLES WAS RECEIVED FROM THE CIVIL SERVICE COMMISSION TO FILL AN ENTIRELY DIFFERENT POSITION, THAT IS, DIFFERENT DESIGNATION, GRADE, AND PAY, AND ELIGIBLE NUMBER ONE ON THIS CERTIFICATE WAS THIS SAME INDIVIDUAL. WILL SECTION 10-B PROHIBIT THIS OFFICE FROM SELECTING ELIGIBLE NUMBER ONE TO FILL THE VACANCY EXISTING?

6. IN ANSWER TO QUESTION (I) ON CIVIL EMPLOYEES PLACED BEFORE YOU IN THE LETTER OF JULY 24, THE FOLLOWING REPLY WAS MADE:

"AS THESE QUESTIONS APPEAR TO BE BASED UPON SUPPOSED CONDITIONS WHICH MAY NOT ARISE DURING THE CURRENT FISCAL YEAR, THEY WILL NOT BE ANSWERED AT THIS TIME.' AS CONDITIONS ACTUALLY EXIST AS OUTLINED IN QUESTION (I) AND WILL CONTINUE TO OCCUR, YOUR FURTHER CONSIDERATION OF THIS QUESTION IS DESIRED. AT THE MARINE HOSPITAL IN DETROIT AN ATTENDANT WAS ON DUTY JUNE 30 AND JULY ST IN A POSITION WHERE HE PERFORMED DUTIES WHICH THE CIVIL SERVICE COMMISSION HAS ADVISED CONSTITUTED A MISASSIGNMENT AND WHICH POSITION THE COMMISSION STATES MUST BE FILLED BY AN ELIGIBLE FROM AN APPROPRIATE REGISTER. A REGISTER WAS REQUESTED OF THE COMMISSION AND THE NAME OF THIS MISASSIGNED EMPLOYEE APPEARS THEREON. CAN THE MEDICAL OFFICER, WHO MUST DISCONTINUE THE SERVICES OF THIS MAN AS AN ATTENDANT, IN THE CUSTODIAL SERVICE, THEN PROCEED TO SELECT AND APPOINT THIS INDIVIDUAL FROM THE REGISTER OF ELIGIBLES IN HAND TO FILL THE POSITION, WHICH WHEN PROPERLY ALLOCATED BY THE CIVIL SERVICE COMMISSION IS IN THE SUBPROFESSIONAL SERVICE AT A HIGHER RATE OF COMPENSATION WITH THE DESIGNATION OF " MEDICAL TECHNICIAN? " SIMILAR SITUATIONS HAVE ARISEN IN THE MARINE HOSPITALS AT BALTIMORE, MEMPHIS, AND FORT STANTON, AND WILL BE RECEIVED FROM MANY OTHERS BECAUSE THE CIVIL SERVICE COMMISSION IS DEMANDING THAT MISASSIGNED ATTENDANTS BE REPLACED BY CIVIL SERVICE ELIGIBLES SELECTED FROM APPROPRIATE REGISTERS. YOUR ATTENTION IS INVITED TO THE FACT THAT UNLESS THIS MAN IS SELECTED FROM THE CERTIFICATE ISSUED, HE WILL LOSE HIS RELATIVE POSITION ON THE REGISTER AND MIGHT NOT AGAIN BE REACHED FOR A PROBATIONAL APPOINTMENT.

7. AT THE NATIONAL INSTITUTE OF HEALTH AN EMPLOYEE SERVING AS A MINOR LABORATORY ASSISTANT IN THE SUBPROFESSIONAL SERVICE, GRADE TWO, AT $1,320 PER ANNUM, DESIRES TO BE PLACED IN ONE OF THE GUARD POSITIONS RECENTLY ESTABLISHED IN THE CUSTODIAL SERVICE, GRADE THREE, AT A COMPENSATION OF $1,200 PER ANNUM. DOES YOUR DECISION OF AUGUST 22, 1939, PROHIBIT THIS EMPLOYEE FROM ACCEPTING THE GUARD POSITION SINCE YOUR ANSWER TO QUESTION (M) PROHIBITS A DEMOTION IN GRADE OR REDUCTION IN COMPENSATION EXCEPT WHEN REQUIRED FOR DISCIPLINARY PURPOSES?

8. THERE ARE MANY SMALL STATIONS OF THE PUBLIC HEALTH SERVICE SUPERVISED BY LOCAL PHYSICIANS WHO ARE PAID SMALL ANNUAL COMPENSATIONS, BASED UPON AN EVALUATION OF THE SERVICES TO BE RENDERED BENEFICIARIES, AVAILABILITY FOR DUTY, AND RESPONSIBILITY AS OFFICIAL REPRESENTATIVE OF THE SERVICE. THESE PHYSICIANS ARE CLASSIFIED IN THE PROFESSIONAL SERVICE AND DESIGNATED AS "PART E," THEIR APPOINTMENTS BEING AUTHORIZED BY THE ACT OF MAY 14, 1937 (42 U.S.C. 67). IT HAS BEEN THE PRACTICE TO CHANGE THE ANNUAL PART-TIME COMPENSATION OF THESE PHYSICIANS TO CONFORM TO THE INCREASE OR DECREASE IN SERVICES REQUIRED OF THEM, BUT NOT TO CHANGE THE CLASSIFICATION GRADE. THE SURGEON GENERAL IS OF THE OPINION THAT THE ACT OF MAY 14, 1937, ABOVE REFERRED TO, IS CONTROLLING AND THAT SECTION 10-B OF THE REORGANIZATION ACT OF 1939 DOES NOT OPERATE DURING THE FISCAL YEAR 1940 TO PREVENT SUCH CHANGES IN ANNUAL PART-TIME COMPENSATION. IS THIS CORRECT?

9. WILL ALL YOUR ANSWERS TO QUESTIONS SUBMITTED RESPECTING CIVILIAN PERSONNEL BE AS EQUALLY APPLICABLE TO EMPLOYEES PAID FROM EMERGENCY FUNDS?

IN DECISION OF AUGUST 22, 1939, B-5212, 19 COMP. GEN. 237, 243, THE ANSWERS TO THE QUESTIONS IN THE FIRST SERIES, INVOLVING THE COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE, WERE PREFACED BY THE FOLLOWING GENERAL STATEMENT---

HOWEVER, IN THE APPLICATION OF SAID SECTION 10 (B) THERE MAY NOT BE OVERLOOKED THE PROVISIONS OF SECTION 8 (C) OF THE SAME ACT, 53 STAT. 563, AS FOLLOWS:

"ALL LAWS RELATING TO ANY AGENCY OR FUNCTION TRANSFERRED TO, OR CONSOLIDATED WITH, ANY OTHER AGENCY OR FUNCTION UNDER THE PROVISIONS OF THIS TITLE SHALL, INSOFAR AS SUCH LAWS ARE NOT INAPPLICABLE, REMAIN IN FULL FORCE AND EFFECT.'

THE VARIOUS PAY STATUTES APPLICABLE TO COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, AND THE ADMINISTRATIVE REGULATIONS ISSUED PURSUANT THERETO WHICH HAVE THE FORCE AND EFFECT OF LAW (PAR. 118 TO 124 OF THE REGULATIONS, UNITED STATES PUBLIC HEALTH SERVICE, 1931), PRESCRIBE A SCHEDULE OF RATES OF PAY AND ALLOWANCES FOR THE COMMISSIONED PERSONNEL OF THE PUBLIC HEALTH SERVICE BASED ON RANK, LENGTH OF SERVICE, ETC., AND UNDER THE PROVISIONS OF SECTION 8 (C) OF THE REORGANIZATION ACT, SUCH STATUTES AND REGULATIONS CONTINUE TO OPERATE WITH RESPECT TO SAID COMMISSIONED PERSONNEL AFFECTED BY THE REORGANIZATION ACT AND REORGANIZATION PLANS THEREUNDER.

THERE ARE FOR CONSIDERATION, ALSO, THE PROVISIONS OF SECTION 8 (A) OF THE REORGANIZATION ACT OF 1939, 53 STAT. 563, AS FOLLOWS:

ALL ORDERS, RULES, REGULATIONS, PERMITS, OR OTHER PRIVILEGES MADE,ISSUED, OR GRANTED BY OR IN RESPECT OF ANY AGENCY OR FUNCTION TRANSFERRED TO, OR CONSOLIDATED WITH, ANY OTHER AGENCY OR FUNCTION UNDER THE PROVISIONS OF THIS TITLE, AND IN EFFECT AT THE TIME OF THE TRANSFER OR CONSOLIDATION, SHALL CONTINUE IN EFFECT TO THE SAME EXTENT AS IF SUCH TRANSFER OR CONSOLIDATION HAD NOT OCCURRED, UNTIL MODIFIED, SUPERSEDED, OR REPEALED.

REGULATIONS OF THE PUBLIC HEALTH SERVICE, HAVING THE FORCE AND EFFECT OF LAW, PROVIDE FOR THE APPOINTMENT OF INTERNES (PARAGRAPHS 95 AND 96), AND, ALSO, FOR APPOINTMENT AND PROMOTION OF RESERVE OFFICERS (PARAGRAPHS 72 TO 87). IT APPEARS GENERALLY ACCEPTED THAT AN ADVANCED MEDICAL OR DENTAL STUDENT IS REQUIRED TO SERVE HIS INTERNSHIP BEFORE HE MAY QUALIFY FOR PRACTICE IN THE MEDICAL OR DENTAL PROFESSION GENERALLY. WHILE THE REGULATIONS OF THE PUBLIC HEALTH SERVICE DO NOT, IN EXPRESS TERMS, PROVIDE FOR APPOINTMENT AS RESERVE OFFICERS OF INTERNES, AFTER SERVICE FOR A SPECIFIED PERIOD, YET, IN LINE WITH THE GENERAL PRACTICE IN THE MEDICAL PROFESSION AND HAVING REGARD FOR THE PROVISIONS OF SECTION 8 (A) OF THE ACT ABOVE QUOTED, THE PRACTICE OF THE PUBLIC HEALTH SERVICE IN SELECTING INTERNES TO FILL VACANCIES IN THE RESERVE CORPS AS DESCRIBED UNDER QUESTION 1 OF YOUR SUBMISSION MAY BE REGARDED AS PARTAKING OF THE NATURE OF A REGULATION AND, AS SUCH, CONTINUED IN FORCE UNDER THE PROVISIONS OF SECTION 8 (C) OF THE REORGANIZATION ACT, SUPRA. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE.

THE PRINCIPLE UNDERLYING THE ANSWER TO QUESTION 1 IS EQUALLY APPLICABLE TO QUESTION 2--- THERE APPEARING NO DIFFERENCE, IN PRINCIPLE, BETWEEN THE MATTER OF AN INTERNE BEING DISCONTINUED FOR THE PURPOSE OF BEING COMMISSIONED IN THE RESERVE CORPS AND OF ONE WHO RESIGNS FOR THE PURPOSE OF ACCEPTING A COMMISSION IN THE RESERVE. THEREFORE, QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.

PARAGRAPH 84 OF THE REGULATIONS OF THE PUBLIC HEALTH SERVICE, TO WHICH YOU REFER, PROVIDES AS FOLLOWS:

A BOARD OF THREE OR MORE COMMISSIONED OFFICERS SHALL BE CONVENED FROM TIME TO TIME BY THE SURGEON GENERAL FOR THE PURPOSE OF RECOMMENDING OFFICERS FOR PROMOTION. RECOMMENDATIONS FOR PROMOTIONS MUST BE BASED SOLELY ON THE RECORD FOR FITNESS AND CAPACITY, WITHOUT REGARD TO SENIORITY, EXCEPT THAT SELECTIONS WILL ORDINARILY BE MADE FROM THE NEXT LOWER GRADE. VACANCIES IN THE HIGHER GRADES MAY BE FILLED BY ORIGINAL APPOINTMENT TO THE RESERVE, BUT WILL ORDINARILY BE FILLED BY SELECTION FROM OFFICERS IN THE RESERVE.

NO OFFICER SHALL BE PROMOTED WHO HAS BEEN FOUND PHYSICALLY UNFIT FOR DUTY IN THE GRADE FOR WHICH HE IS EXAMINED. REFERENCE IS MADE, ALSO, TO PARAGRAPH 31 OF THE SAME REGULATIONS, AS FOLLOWS:

ANY OFFICER ON DUTY IN THE SERVICE UNDER THE TERMS OF A COMMISSION IN THE RESERVE MAY BE EXAMINED FOR APPOINTMENT IN THE GRADE OF PASSED ASSISTANT SURGEON: PROVIDED, THIS SHALL APPLY ONLY TO OFFICERS WHO HAVE RENDERED FULL-TIME SERVICE DURING THE SEVEN YEARS LAST PAST AND WHOSE AGE IS NOT MORE THAN 39 YEARS; BUT NO OFFICER SHALL BE APPOINTED UNTIL AFTER PASSING THE EXAMINATION PRESCRIBED FOR ENTRANCE IN THE GRADE OF PASSED ASSISTANT SURGEON.

IF THE PROMOTION OF THE RESERVE OFFICER REFERRED TO IN QUESTION 3 OF THE GRADE OF PASSED ASSISTANT SURGEON WAS MADE IN ACCORDANCE WITH THE ABOVE QUOTED REGULATIONS, THE QUESTION IS ANSWERED IN THE NEGATIVE. SEE QUESTIONS AND ANSWERS (A), (B) AND (C), FIRST SERIES, DECISION OF AUGUST 22, 1939, B-5212.

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.

IN ANSWER TO QUESTION 5, YOU ARE ADVISED THAT THE EMPLOYEE REFERRED TO MAY BE SELECTED TO FILL THE POSITION UPON THE CERTIFICATION OF THE CIVIL SERVICE COMMISSION FROM THE REGISTER OF ELIGIBLES, BUT ANY CHANGE IN CLASSIFICATION OR COMPENSATION MAY NOT BECOME EFFECTIVE PRIOR TO JULY 1, 1940. SEE QUESTIONS AND ANSWERS (A), (B), (C), AND (D), SECOND SERIES, DECISION OF AUGUST 22, 1939, B-5212.

THE ANSWERS TO QUESTIONS 4 AND 5, SUPRA, ARE FOR CONSIDERATION IN ANSWERING QUESTION 6. REFERRING TO THE ANSWER TO QUESTION 4, IT SEEMS CLEAR THAT THE DISCONTINUANCE OF THE EMPLOYEE MENTIONED IN QUESTION 6 FROM A POSITION OF ATTENDANT IN THE CUSTODIAL SERVICE WOULD BE SOLELY FOR THE PURPOSE OF ACCEPTING THE POSITION WHICH "WHEN PROPERLY ALLOCATED BY THE CIVIL SERVICE COMMISSION IS IN THE SUBPROFESSIONAL SERVICE AT A HIGHER RATE OF COMPENSATION WITH THE DESIGNATION OF "MEDICAL TECHNICIAN," " INVOLVING BOTH A CHANGE OF CLASSIFICATION AND COMPENSATION. SECTION 10 (B) OF THE REORGANIZATION ACT WOULD PROHIBIT THIS CHANGE IN CLASSIFICATION AND COMPENSATION DURING THE FISCAL YEAR 1940. HOWEVER, REFERRING TO THE ANSWER TO QUESTION 5, SECTION 10 (B) OF THE REORGANIZATION ACT DOES NOT PROHIBIT THE SELECTION OF THIS EMPLOYEE WHO WAS IN THE SERVICE ON JUNE 30, 1939, FROM THE REGISTER OF ELIGIBLES ESTABLISHED BY THE CIVIL SERVICE COMMISSION, TO FILL A POSITION, THE DUTIES OF WHICH HE HAS BEEN PERFORMING THROUGH MISASSIGNMENT, BUT ANY CHANGE IN CLASSIFICATION OR COMPENSATION MAY NOT BECOME EFFECTIVE UNTIL JULY 1, 1940.

REFERRING TO QUESTION 7, THE EMPLOYEE MAY ACCEPT THE POSITION--- THAT IS, HE MAY BE ADMINISTRATIVELY ASSIGNED TO FILL THE POSITION--- AND MAY PERFORM THE DUTIES THEREOF, BUT SECTION 10 (B) OF THE REORGANIZATION ACT PRECLUDES ANY CHANGE IN HIS CLASSIFICATION OR COMPENSATION PRIOR TO JULY 1, 1940.

SECTION 67, TITLE 42, U.S. CODE, PROVIDES AS FOLLOWS:

AFTER MAY 14, 1937, FIELD EMPLOYEES OF THE PUBLIC HEALTH SERVICE, EXCEPT THOSE EMPLOYED ON A PER DIEM OR FEE BASIS, WHO RENDER PART-TIME DUTY AND ARE ALSO SUBJECT TO CALL AT ANY TIME FOR OTHER SERVICES, MAY BE PAID ANNUAL COMPENSATION FOR SUCH PART-TIME DUTY AND, IN ADDITION, SUCH FEES FOR SUCH OTHER SERVICES AS THE SECRETARY OF THE TREASURY MAY DETERMINE: PROVIDED, THAT THE TOTAL AMOUNT PAID TO ANY SUCH EMPLOYEE FOR ANY FISCAL YEAR SHALL IN NO CASE EXCEED THE AMOUNT OF THE MINIMUM ANNUAL SALARY RATE OF THE CLASSIFICATION GRADE OF THE EMPLOYEE. ( MAY 14, 1937, C. 180, TITLE I, SECTION 1, 50 STAT. 148.)

SECTION 8 (C) OF THE REORGANIZATION ACT, QUOTED AND APPLIED IN DECISION OF AUGUST 22, 1939, B-5212, PERMITS THE CONTINUED OPERATION OF THE 1937 STATUTE, ABOVE QUOTED, THE PROVISO OF WHICH LIMITS THE TOTAL AMOUNT TO BE PAID TO PART-TIME EMPLOYEES OF THE PUBLIC HEALTH SERVICE TO THE MINIMUM ANNUAL SALARY RATES OF THE CLASSIFICATION GRADES OF THE EMPLOYEES. SEE 17 COMP. GEN. 303. CONSEQUENTLY, IN ANSWER TO QUESTION 8 YOU ARE ADVISED THAT IF THE CLASSIFICATION ACT GRADES OF THE PART TIME EMPLOYEES REFERRED TO ARE NOT CHANGED DURING THE FISCAL YEAR 1940, SECTION 10 (B) OF THE REORGANIZATION ACT DOES NOT OPERATE DURING SAID FISCAL YEAR TO PREVENT CHANGES IN THE AMOUNT OF THE ANNUAL PART-TIME COMPENSATION CORRESPONDING TO THE INCREASE OR DECREASE IN THE SERVICES REQUIRED.

QUESTION 9 IS ANSWERED IN THE AFFIRMATIVE--- NOTHING APPEARING IN SECTION 10 (B) OF THE REORGANIZATION ACT JUSTIFYING ANY DISTINCTION BETWEEN REGULAR AND EMERGENCY APPROPRIATIONS IN THE APPLICATION OF THE RESTRICTIONS OF THE STATUTE.