B-2454, APRIL 5, 1939, 18 COMP. GEN. 766

B-2454, APRIL 5, 1939, 18 COMP. GEN. 766

ALIEN EMPLOYMENT AND CONTINUANCE IN EMPLOYMENT - WORK RELIEF AND RELIEF APPROPRIATION RESOLUTION OF FEBRUARY 4, 1939 - STATUTORY PROHIBITION APPLICATION THE PROVISION IN SECTION 2 OF THE JOINT RESOLUTION OF FEBRUARY 4, 1939, PUBLIC RESOLUTION NO. 1, 53 STAT. 508, THAT "NO ALIEN SHALL BE GIVEN EMPLOYMENT OR CONTINUED IN EMPLOYMENT ON ANY PROJECT" PROSECUTED UNDER APPROPRIATIONS CONTAINED IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, 52 STAT. 809, OR THE PUBLIC RESOLUTION OF FEBRUARY 4, 1939, 53 STAT. 507, IS APPLICABLE TO PROJECT EMPLOYEES AS BROADLY DISTINGUISHED FROM ADMINISTRATIVE EMPLOYEES, BUT THE FACT THAT THE DUTIES ASSIGNED TO AN EMPLOYEE REQUIRE PERFORMANCE OF SUPERVISORY AND ADMINISTRATIVE FUNCTIONS DOES NOT NECESSARILY CONSTITUTE HIM AN ADMINISTRATIVE EMPLOYEE, FOR, IF THE SAID FUNCTIONS ARE PERFORMED EXCLUSIVELY WITH RESPECT TO A PARTICULAR PROJECT AND THE COMPENSATION IS PAID FROM FUNDS ALLOTTED FOR SUCH PROJECT, THE EMPLOYEE MUST BE CONSIDERED A PROJECT EMPLOYEE WITHIN THE ALIEN EMPLOYMENT LIMITATION IN QUESTION. 18 COMP. GEN. 668, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, APRIL 5, 1939:

THERE HAS BEEN RECEIVED A LETTER OF MARCH 14, 1939, FROM THE ADMINISTRATOR, PUERTO RICO RECONSTRUCTION ADMINISTRATION, AS FOLLOWS:

IN YOUR OPINION DATED FEBRUARY 16, 1939, B-1500, DEALING WITH THE EFFECT OF SECTION 11 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, AS AMENDED BY SECTION 2 OF PUBLIC RESOLUTION NO. 1, 76TH CONGRESS, APPROVED FEBRUARY 4, 1939, YOU ADVISED THE SECRETARY OF AGRICULTURE AS FOLLOWS:

"* * * I AM CONSTRAINED TO HOLD THAT THE EFFECT OF THE PROVISION AS ENACTED IS THAT ONLY PERSONS EMPLOYED ON PROJECTS ARE REQUIRED TO MAKE AFFIDAVITS AS TO THEIR CITIZENSHIP.

"* * * I HAVE TO ADVISE THAT THE CITIZENSHIP AFFIDAVITS SHOULD BE REQUIRED OF ALL PROJECT EMPLOYEES * * *.'

IT IS NOT CLEARLY UNDERSTOOD WHAT WAS MEANT BY THE TERMS "EMPLOYED ON PROJECTS" AND "PROJECT EMPLOYEES" IN THE OPINION ABOVE REFERRED TO.

IF "EMPLOYED ON A PROJECT" WAS INTENDED TO EMBRACE ALL PERSONS RECEIVING COMPENSATION FROM FUNDS ALLOCATED TO A PROJECT, AS DISTINGUISHED FROM ADMINISTRATIVE EXPENSES, THERE WOULD APPEAR TO BE NO DIFFICULTY. HOWEVER, SINCE A PERSON MAY BE PERFORMING ADMINISTRATIVE AND SUPERVISORY FUNCTIONS IN CONNECTION WITH A SINGLE PROJECT, BECAUSE OF WHICH FACT HE IS RECEIVING HIS COMPENSATION FROM PROJECT FUNDS, I SHOULD LIKE TO BE ADVISED WHETHER THE NATURE OF HIS SERVICES RATHER THAN THE SOURCE FROM WHICH HIS COMPENSATION IS PAID DETERMINES WHETHER AN EMPLOYEE IS A PROJECT EMPLOYEE OR AN ADMINISTRATIVE EMPLOYEE.

IF THE NATURE OF HIS SERVICES IS THE PROPER TEST, I SHOULD LIKE TO SUBMIT THE FOLLOWING CASE FOR YOUR CONSIDERATION:

THE DIRECTOR OF A COMMUNITY CENTER OPERATED BY THIS ADMINISTRATION APPEARS TO BE A FRENCH CITIZEN, ALTHOUGH SHE WAS BORN IN PUERTO RICO AND HAS RESIDED CONTINUOUSLY THEREIN. HER DUTIES EMBRACE THE PLANNING AND DIRECTION OF ALL SOCIAL ACTIVITIES OF THE COMMUNITY CENTER, AND SHE HAS THREE EMPLOYEES UNDER HER CHARGE: AN ATHLETIC INSTRUCTOR, A HOMEWORK INSTRUCTOR, AND A JANITOR.

SINCE HER EMPLOYMENT IS EXCLUSIVELY RELATED TO THIS ONE PROJECT, HER COMPENSATION IS PAID OUT OF FUNDS ALLOTTED BY THE PRESIDENT OF THE UNITED STATES IN HIS LETTER OF SEPTEMBER 3, 1938, FOR THE FOLLOWING PROJECT:

"FEDERAL PROJECT UNDER LIMITATION 3: SOCIAL AND MEDICAL SERVICE WORK INCLUDING THE ESTABLISHMENT AND OPERATION OF COMMUNITY CENTERS, MEDICAL AND HEALTH CARE, RECREATION; AND INVESTIGATION WORK FOR THE PURPOSE OF CLASSIFYING EMPLOYEES, LABORERS, AND APPLICANTS AS TO THEIR NEED OF RELIEF, $263,000.00.'

PLEASE ADVISE AT YOUR EARLIEST CONVENIENCE (1) WHETHER THE SOURCE OF COMPENSATION IS DETERMINATIVE OF THE STATUS OF AN EMPLOYEE, (2) IF YOUR ANSWER TO QUESTION NO. 1 IS IN THE NEGATIVE, WHETHER THE NATURE OF THE DUTIES IS THE PROPER CRITERION TO DETERMINE WHETHER AN EMPLOYEE IS A PROJECT EMPLOYEE OR AN ADMINISTRATIVE EMPLOYEE WITHIN THE MEANING OF THE ABOVE-CITED ACT, AND (3) IF THE ANSWER TO QUESTION NO. 2 IS IN THE AFFIRMATIVE, WHETHER, UNDER THE FACTS PRESENTED, THE EMPLOYEE IN QUESTION IS REQUIRED TO FILE AN AFFIDAVIT OF CITIZENSHIP AS A CONDITION PRECEDENT TO EMPLOYMENT UPON THE PROJECT ABOVE REFERRED TO.

SECTION 2 OF THE JOINT RESOLUTION OF FEBRUARY 4, 1939, PUBLIC RESOLUTION NO. 1, 53 STAT. 508, AMENDED SECTION 11 OF THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, 52 STAT. 813, TO READ AS FOLLOWS:

NO ALIEN SHALL BE GIVEN EMPLOYMENT OR CONTINUED IN EMPLOYMENT ON ANY PROJECT PROSECUTED UNDER THE APPROPRIATIONS CONTAINED IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938 OR THIS JOINT RESOLUTION: PROVIDED, THAT NO PART OF THE MONEY HEREIN APPROPRIATED SHALL BE AVAILABLE TO PAY ANY PERSON THIRTY DAYS AFTER THE APPROVAL OF THIS JOINT RESOLUTION WHO DOES NOT MAKE AFFIDAVIT AS TO UNITED STATES CITIZENSHIP, SUCH AFFIDAVIT TO BE CONSIDERED PRIMA FACIE EVIDENCE OF SUCH CITIZENSHIP: * * *

THE SPECIFIC TERMS OF THE LAW ARE THAT "NO ALIEN SHALL BE GIVEN EMPLOYMENT OR CONTINUED IN EMPLOYMENT ON ANY PROJECT" PROSECUTED UNDER THE APPROPRIATIONS CONTAINED IN THE EMERGENCY RELIEF APPROPRIATION ACT OF 1938, 52 STAT. 809, OR THE PUBLIC RESOLUTION OF FEBRUARY 4, 1939, 53 STAT. 507. THIS IS ANALOGOUS TO SAYING THAT NO PERSON WHO IS AN ALIEN SHALL BE EMPLOYED ON ANY PROJECT PROSECUTED WITH SUCH FUNDS. THE TEST IN SUCH CASES, THEREFORE, IS NOT WHAT MAY BE THE DUTIES OF AN EMPLOYEE BUT WHETHER THE PERSON IS EMPLOYED ON A PROJECT AND WHAT FUNDS ARE USED TO PAY HIS COMPENSATION. IN OTHER WORDS, THE FACT THAT THE DUTIES ASSIGNED TO AN EMPLOYEE MAY REQUIRE HIM TO PERFORM SUPERVISORY AND ADMINISTRATIVE FUNCTIONS DOES NOT NECESSARILY CONSTITUTE HIM AN ADMINISTRATIVE EMPLOYEE, AS DISTINGUISHED FROM A PROJECT EMPLOYEE, WITHIN THE PURVIEW OF THE STATUTE HERE INVOLVED. IF SUCH FUNCTIONS ARE PERFORMED EXCLUSIVELY WITH RESPECT TO A PARTICULAR PROJECT, AND HIS COMPENSATION IS PAID FROM FUNDS ALLOTTED FOR SUCH PROJECT, THE EMPLOYEE MUST BE CONSIDERED AS EMPLOYED ON A PROJECT WITHIN THE MEANING OF THE PROVISION IN QUESTION.

THE FOREGOING WOULD APPEAR TO ANSWER THE FIRST TWO QUESTIONS SUBMITTED. AS TO THE THIRD QUESTION RELATING TO THE SPECIFIC CASE OF THE DIRECTOR OF THE COMMUNITY CENTER, IT MAY BE SAID THAT SINCE SHE IS EMPLOYED EXCLUSIVELY ON FEDERAL PROJECT NO. O.P. 705-3-25, APPROVED BY PRESIDENTIAL LETTER 2390, SEPTEMBER 3, 1938, AND HER COMPENSATION IS PAID FROM FUNDS ALLOTTED FOR THAT PROJECT, SHE MUST BE CONSIDERED AS A PROJECT EMPLOYEE, OR AS EMPLOYED ON A PROJECT, WITHIN THE MEANING OF THE INHIBITION OF SECTION 2 OF THE JOINT RESOLUTION OF FEBRUARY 4, 1939, AGAINST THE EMPLOYMENT OF ALIENS.