B-153178, APR. 3, 1967

B-153178, APR. 3, 1967

TO THE EXECUTIVE SECRETARY:

YOUR LETTER OF MARCH 16, 1967, REQUESTS OUR OPINION WHETHER SEVERANCE PAY AUTHORIZED BY THE FEDERAL EMPLOYEES SALARY ACT OF 1965, PROPERLY MAY BE ALLOWED TO TWO FORMER SECRETARIAL EMPLOYEES OF THE UNITED STATES-PUERTO RICO COMMISSION ON THE STATUS OF PUERTO RICO, ESTABLISHED PURSUANT TO THE ACT OF FEBRUARY 20, 1964, 78 STAT. 17, PUB.L. 88-271.

YOUR LETTER RELATES THE MATERIAL FACTS AS FOLLOWS:

"THE COMMISSION WAS ESTABLISHED BY PUBLIC LAW 88-271, APPROVED FEBRUARY 20, 1964. THIS LEGISLATION INVITED THE PARTICIPATION OF THE COMMONWEALTH OF PUERTO RICO IN THE WORK OF THE COMMISSION WITH THE EQUAL SHARING OF THE EXPENSES OF THE COMMISSION. THE LEGISLATIVE ASSEMBLY OF PUERTO RICO ACCEPTED THIS INVITATION BY ENACTING LAW NO. 9, IN APRIL, 1964, THUS FORMING A JOINT UNITED STATES-PUERTO RICO COMMISSION WITH A JOINT BUDGET.

"ALL PERSONNEL APPOINTMENTS TO THE COMMISSION STAFF WERE UNDER THE EXCEPTED SERVICE. PRIOR TO APPOINTMENT, EMPLOYEES WERE INFORMED OF THE TEMPORARY NATURE OF THE COMMISSION AND OF THE FACT THAT THERE WERE NO RE- EMPLOYMENT RIGHTS BASED ON EMPLOYMENT WITH THE COMMISSION. SALARIES OF COMMISSION EMPLOYEES WERE ADMINISTRATIVELY DETERMINED, BUT IN GENERAL FOLLOWED THE GENERAL SCHEDULE COMPENSATION RATE OF FEDERAL EMPLOYEES. SALARY INCREASES GRANTED BY THE FEDERAL EMPLOYEES SALARY ACT OF 1965 WERE FOLLOWED BY ADMINISTRATIVE DETERMINATION FOR FULL TIME EMPLOYEES OF THE COMMISSION. COMMISSION EMPLOYEES WERE NOT SUBJECT TO THE CLASSIFICATION ACT, AND THE COMMISSION WAS AUTHORIZED BY PUBLIC LAW 88-271 TO MAKE PERSONNEL APPOINTMENTS WITHOUT REGARD TO CIVIL SERVICE LAWS, RULES AND REGULATIONS.'

IN FURTHERANCE OF THE BASIC QUESTION YOU ASK (1) WHETHER IT IS MANDATORY OR OPTIONAL FOR THE COMMISSION TO GRANT SEVERANCE PAY AND (2) IF THE EMPLOYEES ARE ALLOWED SEVERANCE PAY WHETHER THE EXPENSE MUST BE SHARED EQUALLY BY THE COMMONWEALTH OF PUERTO RICO AND THE UNITED STATES AS A COMMISSION EXPENSE, OR WHETHER IT MAY BE CHARGED SOLELY TO FUNDS APPROPRIATED BY THE UNITED STATES.

SO FAR AS HERE PERTINENT PUB.L. 88-271 PROVIDES IN SECTION 2 (C) "FOR THE EQUAL SHARING OF THE EXPENSES OF THE COMMISSION" BETWEEN THE COMMONWEALTH OF PUERTO RICO AND THE UNITED STATES. THE COMMONWEALTH BY APPROPRIATE LEGISLATION AND APPROPRIATIONS PARTICIPATED IN THE COMMISSION. THE COMMISSION WAS COMPOSED OF THIRTEEN MEMBERS, SEVEN OF WHOM WERE APPOINTED BY THE UNITED STATES AND SIX BY PUERTO RICO.

SECTION 3 (B) READS:

"THE COMMISSION IS AUTHORIZED TO APPOINT AND FIX THE COMPENSATION OF AN EXECUTIVE SECRETARY AND SUCH OTHER ADDITIONAL PERSONNEL AS MAY BE NECESSARY TO ENABLE THE COMMISSION TO CARRY OUT ITS FUNCTIONS WITHOUT REGARD TO THE CIVIL SERVICE LAWS, RULES, AND REGULATIONS, BUT ANY FEDERAL EMPLOYEE SUBJECT TO THOSE LAWS, RULES, AND REGULATIONS, WHO MAY BE DETAILED TO THE COMMISSION (WHICH DETAIL IS HEREBY AUTHORIZED) SHALL RETAIN HIS CIVIL SERVICE STATUS WITHOUT INTERRUPTION OR LOSS OF STATUS OR PRIVILEGE.'

SECTION 4 REQUIRES THAT THE REPORT OF THE COMMISSION BE SUBMITTED WITHIN ABOUT TWO YEARS AFTER THE COMMISSION'S ORGANIZATION, AND SECTION 5 AUTHORIZES AN APPROPRIATION BY THE UNITED STATES NOT TO EXCEED $250,000.

BY PUB.L. 89-84, APPROVED JULY 24, 1965, 79 STAT. 261, THE REPORTING DATE WAS EXTENDED TO SEPTEMBER 30, 1966, AND THE APPROPRIATION AUTHORIZATION WAS AMENDED TO READ "$465,000" IN LIEU OF ,$250,000.'

THE LIFE OF THE COMMISSION WAS LIMITED BY LAW AND WE NOTE THAT THE EMPLOYEES ENGAGED UNDER SECTION 3 (B) OF PUB.L. 88-271 WERE INFORMED OF THE TEMPORARY NATURE OF THE COMMISSION.

WE UNDERSTAND THAT THE FUNDS APPROPRIATED BY THE UNITED STATES AND BY THE COMMONWEALTH WERE POOLED OR COMMINGLED FOR THE PURPOSE OF EQUAL SHARING OF THE EXPENSES OF THE COMMISSION. WE UNDERSTAND FURTHER THAT THE UNOBLIGATED FUNDS SO APPROPRIATED WILL BE DIVIDED EQUALLY BETWEEN THE UNITED STATES AND THE COMMONWEALTH UPON LIQUIDATION OF THE AFFAIRS OF THE COMMISSION.

SECTION 9 (A) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965 PROVIDES THAT THE SEVERANCE PAY PROVISIONS THEREOF SHALL APPLY TO EACH CIVILIAN OFFICER OR EMPLOYEE IN OR UNDER---

"/1) THE EXECUTIVE BRANCH OF THE UNITED STATES, INCLUDING EACH CORPORATION WHOLLY OWNED OR CONTROLLED BY THE UNITED STATES * * *"

IN VIEW OF THE SPECIAL RELATIONSHIP OF THE COMMONWEALTH OF PUERTO RICO TO THE UNITED STATES, REFLECTED BY THE LEGISLATIVE HISTORY OF PUB.L. 88-271, AND SINCE THE EMPLOYEES ARE APPOINTED BY ,THE COMMISSION," OUR OPINION IS THAT EMPLOYEES OF THE COMMISSION MAY NOT BE CONSIDERED AS EMPLOYEES IN OR UNDER THE EXECUTIVE BRANCH OF THE GOVERNMENT OF THE UNITED STATES.

THEREFORE, WE HOLD THAT THE EMPLOYEES IN QUESTION WERE NOT UNDER SECTION 9 (A) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1965 AND CONSEQUENTLY ARE NOT ENTITLED TO SEVERANCE PAY UNDER THE STATUTORY PROVISIONS.

IN ANSWER TO YOUR FURTHER QUESTION DESIGNATED BY US ABOVE AS (1), OUR VIEW IS THAT BECAUSE OF THE MIXED NATURE OF THE COMMISSION AND SECTION 3 (B) OF PUB.L. 88-271, IT WAS OPTIONAL WITH THE COMMISSION TO PROVIDE BY REGULATION FOR SEVERANCE PAY. IF THAT BODY LAWFULLY STILL IS IN BEING, WE SEE NO OBJECTION TO IT NOW SO REGULATING.

RESPONSIVE TO YOUR FURTHER QUESTION (2), IF THE COMMISSION DOES BY REGULATION OR ORDER PROVIDE FOR SEVERANCE PAY THE BURDEN OF THE COST WOULD FALL UPON THE COMMISSION'S FUNDS AND MUST BE SHARED EQUALLY BY THE UNITED STATES AND THE COMMONWEALTH AS PROVIDED IN SECTION 2 (C) OF PUB.L. 88- 271.