A-58496, JANUARY 18, 1935, 14 COMP. GEN. 557

A-58496, JANUARY 18, 1935, 14 COMP. GEN. 557

REAPPOINTMENTS IN THE TREASURY DEPARTMENT OF FORMER EMPLOYEES OF THE BUREAU OF PROHIBITION OR ALCOHOLIC BEVERAGE UNIT, DEPARTMENT OF JUSTICE PERSONNEL OF THE SECRET SERVICE DIVISION, BUREAU OF NARCOTICS, AND THE SPECIAL INTELLIGENCE UNIT, BUREAU OF INTERNAL REVENUE, TREASURY DEPARTMENT, ENGAGED PRIMARILY IN DETECTING VIOLATIONS OF LAW AND IN AIDING IN THE APPREHENSION, CONVICTION, OR PUNISHMENT OF VIOLATORS, WHO WERE SEPARATED BETWEEN JUNE 10, 1933, AND DECEMBER 31, 1933, FROM POSITIONS HAVING SIMILAR DUTIES AND RESPONSIBILITIES UNDER THE PROHIBITION BUREAU OR THE ALCOHOLIC BEVERAGE UNIT, DEPARTMENT OF JUSTICE, ARE WITHIN THE TERMS OF THE PROVISO TO THE APPROPRIATION ACT OF JUNE 19, 1934, 48 STAT. 1061, PROHIBITING THE USE OF THE APPROPRIATIONS PROVIDED FOR THE TREASURY DEPARTMENT FOR PAYMENT OF THEIR SALARIES AFTER DECEMBER 1, 1934, UNLESS AND UNTIL THEY QUALIFY AS THE RESULT OF AN OPEN COMPETITIVE CIVIL SERVICE EXAMINATION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, JANUARY 18, 1935:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 26, 1934, AS FOLLOWS:

ON NOVEMBER 12TH YOU ADVISED THIS DEPARTMENT THAT THE LIMITATION ON EXPENDITURE BY THE TREASURY FOR SALARIES OF FORMER EMPLOYEES OF THE PROHIBITION UNIT OF THE DEPARTMENT OF JUSTICE, CONTAINED IN THE EMERGENCY APPROPRIATION ACT FOR 1935, IS CONFINED TO POSITIONS INVOLVING DUTIES OF THE CLASSES ENUMERATED IN THE PROVISO OR DUTIES SIMILAR THERETO.

I TRANSMIT HEREWITH MEMORANDA GIVING THE NAMES, SERVICE RECORDS, AND STATEMENTS OF DUTIES OF THREE GROUPS OF EMPLOYEES IN THE SECRET SERVICE DIVISION, THE BUREAU OF NARCOTICS, AND THE SPECIAL INTELLIGENCE UNIT, RESPECTIVELY, WHO WERE EMPLOYED AS PROHIBITION AGENTS IN THE DEPARTMENT OF JUSTICE AND WERE SEPARATED FROM THAT POSITION DURING THE PERIOD SPECIFIED IN THE LIMITING PROVISO REFERRED TO ABOVE. WHILE THE PRESENT DUTIES OF THESE EMPLOYEES INVOLVE INVESTIGATIVE WORK, THE CHARACTER OF INVESTIGATIONS WHICH THEY MAKE IS SO ENTIRELY DIFFERENT AND DISTINCT FROM THE DUTIES OF ANY OF THE POSITIONS ENUMERATED IN THE PROVISO IN QUESTION THAT THIS DEPARTMENT IS OF THE OPINION THAT ITS FUNDS MAY BE LEGALLY USED TO PAY THEIR SALARIES. HOWEVER, IN VIEW OF THE FACT THAT YOUR OFFICE MUST FINALLY DETERMINE THE LEGALITY OF SUCH PAYMENTS, THE MATTER IS SUBMITTED FOR YOUR DECISION.

SINCE PAYMENTS ARE BEING WITHHELD IN THESE CASES, PENDING YOUR DECISION, IT WILL BE APPRECIATED IF YOU WILL ADVISE ME WHAT MAY BE DONE AS SOON AS YOU CAN CONVENIENTLY DO SO.

THE APPROPRIATION ITEM, WITH THE PROVISO IN QUESTION, APPEARS IN THE ACT OF JUNE 19, 1934, 48 STAT. 1061, AS FOLLOWS:

COLLECTING THE INTERNAL REVENUE: FOR AN ADDITIONAL AMOUNT FOR EXPENSES OF ASSESSING AND COLLECTING THE INTERNAL-REVENUE TAXES, INCLUDING THE SAME OBJECTS SPECIFIED UNDER THIS HEAD, AND UNDER THE HEAD "SALARIES AND EXPENSES, BUREAU OF INDUSTRIAL ALCOHOL," IN THE TREASURY DEPARTMENT APPROPRIATION ACT, 1935, AND INCLUDING SO MUCH AS MAY BE NECESSARY FOR THE COMPENSATION OF ONE ADDITIONAL DEPUTY COMMISSIONER, TO BE IMMEDIATELY AVAILABLE, $10,000,000; OF WHICH NOT TO EXCEED $800,000 MAY BE EXPENDED FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA, AND NOT TO EXCEED $71,250 FOR THE PURCHASE OF PASSENGER-CARRYING AUTOMOBILES TO BE USED ON OFFICIAL BUSINESS: PROVIDED, THAT AFTER DECEMBER 1, 1934, NO PART OF THE APPROPRIATION MADE HEREIN OR HERETOFORE MADE FOR THE FISCAL YEAR 1935 SHALL BE USED TO PAY THE SALARY OF ANY PERSON FORMERLY EMPLOYED AS INVESTIGATOR, SPECIAL AGENT, SENIOR WAREHOUSEMAN, DEPUTY PROHIBITION ADMINISTRATOR, AGENT, ASSISTANT ATTORNEY, ASSISTANT PROHIBITION ADMINISTRATOR, SENIOR INVESTIGATOR, DEPUTY PRODUCTION ADMINISTRATOR, STOREKEEPER OR GAUGER, OR ANY OTHER POSITION IN THE PROHIBITION BUREAU OR ALCOHOLIC BEVERAGE UNIT, DEPARTMENT OF JUSTICE, WHO WAS SEPARATED FROM THE SERVICE OF SUCH BUREAU OR UNIT BETWEEN JUNE 10, 1933, AND DECEMBER 31, 1933, WHILE IN ANY SUCH POSITION IN THE TREASURY DEPARTMENT, UNLESS AND UNTIL SUCH PERSON SHALL BE APPOINTED THERETO AS A RESULT OF AN OPEN, COMPETITIVE EXAMINATION TO BE HEREAFTER HELD BY THE CIVIL SERVICE COMMISSION.

IN DECISION OF NOVEMBER 12, 1934, 14 COMP. GEN. 383, 384, IT WAS STATED, IN PART AS FOLLOWS:

* * * CLEARLY THE INHIBITION OF THE PROVISO APPLIES ONLY TO THESE APPROPRIATIONS FOR THE TREASURY DEPARTMENT WHICH OTHERWISE WOULD BE AVAILABLE FOR THE PAYMENT OF SALARIES FOR THE FISCAL YEAR 1935 OF PERSONS EMPLOYED "IN ANY SUCH POSITION"--- THAT IS, IN A POSITION UNDER THE TREASURY DEPARTMENT CORRESPONDING, AS TO DUTIES, TO ONE OR MORE OF THE CLASSES COVERED BY THE PROVISO, FORMERLY IN THE PROHIBITION BUREAU OR THE ALCOHOLIC BEVERAGE UNIT OF THE DEPARTMENT OF JUSTICE.

HOWEVER, THERE IS NO BASIS FOR HOLDING THAT THE PROVISO APPLIES ONLY TO THE SPECIFIC APPROPRIATION TO WHICH IT IS ATTACHED, OR ONLY TO APPROPRIATIONS FOR THE BUREAU OF INTERNAL REVENUE. THE TERMS OF THE STATUTE ARE NOT SO LIMITED, BUT INCLUDE BROADLY, IN ADDITION TO THE APPROPRIATION THEREBY MADE, ANY APPROPRIATION FOR ANY BRANCH OF THE TREASURY DEPARTMENT MADE PRIOR TO JUNE 19, 1934, FOR THE FISCAL YEAR 1935, BUT THE INHIBITION APPLIES ONLY WHILE THE FORMER EMPLOYEE IS "IN ANY SUCH POSITION IN THE TREASURY DEPARTMENT," THAT IS TO SAY, WHILE SERVING IN THE TREASURY DEPARTMENT IN A POSITION "CORRESPONDING, AS TO DUTIES, TO ONE OR MORE OF THE CLASSES COVERED BY THE PROVISO, FORMERLY IN THE PROHIBITION BUREAU OR THE ALCOHOLIC BEVERAGE UNIT OF THE DEPARTMENT OF JUSTICE.' (QUOTING FROM THE DECISION OF NOV. 12, 1934, SUPRA.)

IN COMPARING THE DUTIES OF THE POSITION OCCUPIED IN ANY BRANCH OF THE TREASURY DEPARTMENT WITH THE DUTIES OF ONE OR MORE OF THE CLASSES COVERED BY THE PROVISO FORMERLY IN THE PROHIBITION BUREAU OR THE ALCOHOLIC BEVERAGE UNIT OF THE DEPARTMENT OF JUSTICE, TITLES ARE NOT NECESSARILY CONTROLLING, BUT RATHER THE GENERAL CHARACTERISTICS OF THE DUTIES ACTUALLY PERFORMED. THE DUTIES IN CONNECTION WITH THE INVESTIGATION AND DETECTION OF LAW VIOLATIONS ARE OF THE SAME GENERAL CHARACTER, REQUIRING SUBSTANTIALLY THE SAME QUALIFICATIONS, IRRESPECTIVE OF THE PARTICULAR LAW OR LAWS VIOLATED. APPARENTLY THE OFFICERS AND EMPLOYEES PRIMARILY SOUGHT TO BE REACHED BY THE PROVISO WERE THOSE IN THE ENFORCEMENT GROUP, THAT IS, THOSE ENGAGED PRIMARILY IN DETECTING VIOLATIONS OF LAW, AND IN AIDING IN THE APPREHENSION, CONVICTION, OR PUNISHMENT OF THE VIOLATORS. NO DOUBT IT WAS DUE TO THEIR EXPERIENCE AND QUALIFICATIONS AS AGENTS, SPECIAL AGENTS, INVESTIGATORS, ETC., IN THE DEPARTMENT OF JUSTICE AND PRIOR THERETO, THAT THE EMPLOYEES WHOSE CASES ARE NOW PRESENTED WERE REAPPOINTED OR REINSTATED IN THE SECRET SERVICE DIVISION, THE BUREAU OF NARCOTICS, AND THE SPECIAL INTELLIGENCE UNIT, BUREAU OF INTERNAL REVENUE, TREASURY DEPARTMENT. THE FACT THAT THE LAW VIOLATIONS DETECTED OR INVESTIGATED IN POSITIONS UNDER THE TREASURY DEPARTMENT RELATE TO DIFFERENT LAWS THAN THE ALCOHOLIC BEVERAGE LAWS WHICH FORMED THE BASIS OF THEIR WORK IN THE DEPARTMENT OF JUSTICE, ALONE, DOES NOT EXEMPT SUCH PERSONNEL FROM THE INHIBITION OF THE PROVISO.

THE FACTS PRESENTED IN THE PAPERS FORWARDED WITH YOUR LETTER FAIL TO SHOW A SUFFICIENT DIFFERENTIATION BETWEEN THE DUTIES NOW PERFORMED BY THE EMPLOYEES IN THE THREE GROUPS MENTIONED IN YOUR PRESENT SUBMISSION AND THE DUTIES OF THE POSITIONS IN THE DEPARTMENT OF JUSTICE FROM WHICH THEY HAD BEEN SEPARATED TO EXEMPT THEM FROM THE INHIBITION OF THE PROVISO.