A-82090, MARCH 15, 1937, 16 COMP. GEN. 852

A-82090, MARCH 15, 1937, 16 COMP. GEN. 852

TRAVELING EXPENSES - FIRST DUTY STATION - APPOINTMENTS FOR DUTY WITH PUERTO RICO RECONSTRUCTION ADMINISTRATION IN PUERTO RICO AN EMPLOYEE APPOINTED FOR DUTY WITH THE PUERTO RICO RECONSTRUCTION ADMINISTRATION AT THE MAXIMUM SALARY OF THE GRADE IN WHICH THE POSITION WAS CLASSIFIED MAY NOT BE REIMBURSED TRAVELING EXPENSES INCURRED IN REPORTING TO PUERTO RICO, HIS FIRST DUTY STATION, NOTWITHSTANDING THE PAYMENT OF SUCH EXPENSES WAS CONSIDERED BY THE ADMINISTRATIVE OFFICE AS A PART OF THE CONSIDERATION FOR HIS SERVICES, EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, APPLICABLE TO SAID ADMINISTRATION, HAVING LIMITED THE COMPENSATION PAYABLE FOR POSITIONS REQUIRED TO BE CLASSIFIED THEREUNDER.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, PUERTO RICO RECONSTRUCTION ADMINISTRATION, MARCH 15, 1937:

YOUR LETTER OF FEBRUARY 19, 1937, IS AS FOLLOWS:

THERE IS RETURNED FOR FURTHER CONSIDERATION THE REIMBURSEMENT EXPENSE VOUCHER OF FELIX E. TRISTANI, COVERING THE PERIOD JUNE 23 TO 28, 1936. IS REQUESTED THAT IN CONNECTION WITH THIS CASE THAT NOTICE BE TAKEN OF THE FOLLOWING FACTS AND STATEMENTS BEARING UPON THE ADMINISTRATIVE DETERMINATION TO THE EFFECT THAT THE VOUCHER IS A PROPER CHARGE AGAINST THE FUNDS OF THIS ADMINISTRATION.

THE PUERTO RICO RECONSTRUCTION ADMINISTRATION WAS CREATED BY EXECUTIVE ORDER NO. 7057, DATED MAY 28, 1935, BUT THE ORGANIZATION WAS NOT PLACED INTO ACTUAL OPERATION UNTIL AUGUST 1935. AT THAT TIME THE QUESTION WAS RAISED AS TO THE PROPER SALARY DESIGNATIONS FOR THE VARIOUS CLASSES OF EMPLOYMENT NECESSARY FOR EFFECTIVE OPERATION. THERE WAS CONSIDERABLE DOUBT AT THAT TIME AS TO THE CLASSIFICATION TO BE USED IN FIXING THE GRADES AND THE SALARIES OF THE VARIOUS EMPLOYEES. IT WILL BE NOTED THAT THE ABOVE-MENTIONED EXECUTIVE ORDER DECLARES THAT THE ADMINISTRATOR MAY "APPOINT, WITHOUT REGARD TO THE PROVISIONS OF THE CIVIL SERVICE LAWS, SUCH OFFICERS AND EMPLOYEES, AS MAY BE NECESSARY, TO PRESCRIBE THEIR DUTIES AND RESPONSIBILITIES, AND WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, FIX THEIR COMPENSATION.' THE NATURAL CONCLUSION TO BE DRAWN THEREFROM IS THAT NO CIVIL SERVICE EXAMINATION SHOULD BE REQUIRED FOR THE SELECTION OF PERSONNEL FOR THE ORGANIZATION NOR SHALL ANY OTHER OF THE VARIOUS RULES AND REGULATIONS OF THE CIVIL SERVICE COMMISSION BIND AND CONTROL THE ACTION OF THE ADMINISTRATOR IN HIS SELECTION OF OFFICERS AND EMPLOYEES TO PERFORM THE NECESSARY DUTIES OF THE ADMINISTRATION. LIKEWISE A FURTHER DEDUCTION IS THAT THE SALARY NECESSARILY REQUIRED IN ORDER TO SECURE THE SERVICES OF DESIRED INDIVIDUALS MAY BE FIXED BY AGREEMENT BETWEEN THE PARTIES INTERESTED, TAKING INTO CONSIDERATION THE NATURE OF THE DUTIES, THE EMERGENCY NATURE OF THE ORGANIZATION, AND THE RELATIVE POSITION OF PUERTO RICO TO THE MAINLAND OF THE UNITED STATES. 7 COMP. GEN. 203.

EXPERIENCED EMPLOYEES WERE DESIRED AND NECESSARY IN ORDER TO PLACE THE AUTHORIZED PROGRAM INTO EFFECTIVE OPERATION AT THE EARLIEST PRACTICABLE DATE. WHEN NEGOTIATING FOR THE SERVICES OF SUCH EXPERIENCED PERSONNEL THE SUBJECT OF TRAVEL EXPENSES TO AND FROM THE ISLAND OF PUERTO RICO INVARIABLY AROSE IN EVERY INSTANCE. AS CAN BE SEEN, THE TRANSPORTATION COST IN A REGULAR CASE FROM WASHINGTON, D.C., TO SAN JUAN, P.R., AND RETURN, IS CLOSE TO $200. THE INDIVIDUALS THUS WERE AND ARE UNWILLING TO BEAR THE EXPENSE THEMSELVES AND OTHERWISE WOULD REFUSE THE EMPLOYMENT OFFERED. CONSEQUENTLY SUCH A CONSIDERATION HAS PLAYED AN IMPORTANT PART IN THE NEGOTIATION FOR THE SERVICES OF PROSPECTIVE EMPLOYEES. IN THIS CASE AND OTHERS SIMILAR THERETO, THE ADMINISTRATION WAS GUIDED BY THE PROVISIONS OF THE ABOVE-MENTIONED EXECUTIVE ORDER. THUS, AS HAS PREVIOUSLY BEEN CALLED TO YOUR ATTENTION, THE PAYMENT OF THE EXPENSES FROM WASHINGTON, D.C., TO PUERTO RICO WERE CONSIDERED AS A PART OF THE CONSIDERATION FOR THE SERVICES OF THE EMPLOYEES AND NOT AS ADDITIONAL COMPENSATION IN THE "GUISE" OF TRAVELING EXPENSES.

IN ADDITION, IT IS STATED IN EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, THAT THE VARIOUS ESTABLISHMENTS OPERATED IN WHOLE OR IN PART FROM EMERGENCY FUNDS SHALL,"UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY ME," CLASSIFY THE POSITIONS OF EMPLOYEES IN ACCORDANCE WITH THE SALARY CLASSIFY THE POSITIONS OF EMPLOYEES IN ACCORDANCE WITH THE SALARY SCHEDULE THERE SET FORTH "NOT IN EXCESS OF THOSE PRESCRIBED THEREIN FOR THE CORRESPONDING GRADES.' IT WAS CONSIDERED THAT THE PORTION OF EXECUTIVE ORDER NO. 7057, DATED MAY 28, 1935, GIVING AUTHORITY TO THE ADMINISTRATOR TO FIX THE SALARIES OF EMPLOYEES OF THE PUERTO RICO RECONSTRUCTION ADMINISTRATION, WAS NOT SUBJECT TO THE PROVISIONS OF EXECUTIVE ORDER NO. 6746, IN REGARD TO THE SALARY AND CORRESPONDING GRADE DESIGNATIONS THEREIN TABULATED.

UNDER SUCH AN INTERPRETATION OF THE TWO EXECUTIVE ORDERS, WHEN READ TOGETHER, THERE SEEMED TO BE NO RESTRICTION UPON THE ADMINISTRATOR IN THE APPOINTMENT AND FIXING OF SALARIES OF EMPLOYEES OF THE PUERTO RICO RECONSTRUCTION ADMINISTRATION, OTHER THAN THOSE CONTAINED IN SECTION 3, PARAGRAPH 2, OF THE EMERGENCY RELIEF ACT OF 1935, PUBLIC RESOLUTION NO. 11, 74TH CONGRESS. IT WAS THUS CONSIDERED THAT THE ADMINISTRATOR WAS FREE TO DETERMINE THE DUTIES, SALARY STANDARDS, AND COMPENSATION OF EMPLOYEES ENGAGED TO CARRY OUT THE PROVISIONS OF EXECUTIVE ORDER NO. 7057. THEREFORE, SUCH CONTRACTS OF EMPLOYMENT AS WERE DEEMED NECESSARY AND EXPEDIENT BY THE ADMINISTRATOR SEEMED TO BE AUTHORIZED, SUBJECT, HOWEVER, TO THE PROVISIONS OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935.

WITH THAT UNDERSTANDING, IN THE DETERMINATION OF SALARY GRADUATIONS TO BE USED FOR CLASSIFYING THE EMPLOYEES OF THE ADMINISTRATION, THE STANDARDS OF THE CIVIL SERVICE COMMISSION WERE RECOGNIZED AND UTILIZED WHEREVER POSSIBLE. THOUGH NOT GOVERNED BY THE PROVISIONS OF 42 STAT. 1490 (1923), 5 U.S.C. 666 (1935), TO THE EFFECT THAT APPOINTMENTS SHALL BE MADE "AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF," THE SALARIES OF THE EMPLOYEES WERE FIXED CLOSELY IN CONFORMITY WITH THE COMPENSATION SCHEDULE ESTABLISHED BY 42 STAT. 1491 (1923), AS AMENDED BY 43 STAT. 669 (1924), 45 STAT. 776 (1928), AND 46 STAT. 1003 (1930), 5 U.S.C. 673 (1935). THE DUTIES CORRESPONDING TO THOSE THERE SET FORTH WERE USED AS MUCH AS POSSIBLE AS A GUIDE IN PRESCRIBING THE CLASSIFICATION OF EMPLOYEES OF THE ADMINISTRATION AS WELL AS THE SALARIES THEREOF, WITHIN THE DESIGNATED SALARY RANGE THERE SET FORTH.

SINCE THE MAJOR PORTION OF THE EMPLOYEES OF THE ADMINISTRATION DO NOT POSSESS A CIVIL SERVICE STANDING, THE GRADE DESIGNATIONS FIXED IN THE CLASSIFICATION ACT OF 1923 WERE NOT USED; BUT, FOR CONVENIENCE, AND IN ORDER TO AVOID CONFUSION, THE SYMBOL "EO" WAS USED TO INDICATE THE GRADE FIXED FOR THE CORRESPONDING CLASSIFICATION OF THE CIVIL SERVICE COMMISSION.

IN VIEW OF THE AUTHORITY UNDERSTOOD TO HAVE BEEN VESTED IN THE ADMINISTRATOR BY EXECUTIVE ORDER NO. 7057, IN CONNECTION WITH THE POWER TO FIX THE SALARIES OF EMPLOYEES OF THIS ADMINISTRATION, IF SUCH POWER IS NOT FOUND TO BE JUSTIFIED, THAT SINCE MR. TRISTANI, AS WELL AS OTHERS, WAS NOT AT FAULT AND AS THE ACTION TAKEN IN SUCH CASES WAS EXERCISED IN GOOD FAITH BY THIS ADMINISTRATION, THAT THE VOUCHER BE CERTIFIED IN THE AMOUNT CLAIMED, WITH THE UNDERSTANDING THAT THE DECISION WILL GOVERN IN ALL FUTURE LIKE TRANSACTIONS. 8 COMP. GEN. 317.

EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, REQUIRED---

* * * HEADS OF EXISTING EMERGENCY AGENCIES AND THOSE HEREAFTER CREATED AND (EXCEPT THE HEADS OF EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS) THE HEADS OF ALL OTHER AGENCIES OPERATED IN WHOLE OR IN PART FROM EMERGENCY FUNDS, THE COMPENSATION OF THE EMPLOYEES OF WHICH MAY BE FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, SHALL, UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY ME, CLASSIFY THE POSITIONS OF THE EMPLOYEES OF THEIR RESPECTIVE AGENCIES NOW IN THE SERVICE OR HEREAFTER APPOINTED IN ACCORDANCE WITH THE FOLLOWING SALARY SCHEDULE AND ADJUST AND FIX THE RATES OF COMPENSATION THEREFOR AT AMOUNTS NOT IN EXCESS OF THOSE PRESCRIBED THEREIN FOR THE CORRESPONDING GRADES:

THE LETTER OF APPOINTMENT DATED JUNE 19, 1936, INDICATES THAT MR. TRISTANI WAS APPOINTED TO A POSITION CLASSIFIED AS GRADE E.O.-7 AT A SALARY OF $2,000 PER ANNUM WHICH IS THE MAXIMUM AUTHORIZED FOR THAT GRADE BY THE EXECUTIVE ORDER. WHILE THE EXECUTIVE ORDER NO. 7057, ISSUED MAY 28, 1935, CREATING THE PUERTO RICO RECONSTRUCTION ADMINISTRATION, AUTHORIZED THE ADMINISTRATOR TO APPOINT WITHOUT REGARD TO THE CIVIL SERVICE LAWS SUCH OFFICERS AND EMPLOYEES AS MIGHT BE NECESSARY AND WITHOUT REGARD TO THE CLASSIFICATION ACT TO FIX THEIR COMPENSATION, IT DID NOT AUTHORIZE THE FIXING OF THEIR COMPENSATION WITHOUT REGARD TO THE PRIOR EXECUTIVE ORDER NO. 6746 WHICH BY ITS TERMS WAS APPLICABLE TO ALL EMERGENCY AGENCIES THEREAFTER CREATED. SECTION 1765, REVISED STATUTES, PROVIDES:

NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFOR EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

IT IS A WELL ESTABLISHED RULE THAT EMPLOYEES OF THE UNITED STATES MUST PLACE THEMSELVES AT THEIR FIRST DUTY STATION AT THEIR OWN EXPENSE UNLESS THE PAYMENT OF SUCH EXPENSES IS AUTHORIZED BY LAW OR BY A LAWFUL CONTRACT OF EMPLOYMENT. AS THIS EMPLOYEE'S POSITION WAS CLASSIFIED AND HIS RATE OF COMPENSATION FIXED IN ACCORDANCE WITH LAW AND HE WAS GIVEN THE MAXIMUM SALARY FOR THE GRADE IN WHICH HE WAS APPOINTED IT WAS NOT LAWFUL TO CONTRACT TO FURNISH HIM ALSO TRANSPORTATION TO HIS FIRST DUTY STATION. COMP. GEN. 390.

ACCORDINGLY, THE REFUSAL TO CERTIFY THE VOUCHER FOR PAYMENT WAS, THEREFORE, IN ACCORDANCE WITH LAW AND UPON REVIEW MUST AND IS SUSTAINED. THE VOUCHER WILL BE RETAINED IN THE FILES OF THIS OFFICE.