B-3301, MAY 29, 1939, 18 COMP. GEN. 893

B-3301, MAY 29, 1939, 18 COMP. GEN. 893

COMPENSATION - PROMOTIONS - TRANSFERS - RESUMPTION OF ACTIVE EMPLOYMENT IN EMERGENCY POSITION AFTER INVOLUNTARY FURLOUGH AND INTERVENING PROBATIONAL APPOINTMENT SERVICE OF LESS THAN SIX MONTHS UNDER A PROBATIONAL APPOINTMENT, THOUGH NOT REGARDED AS CONSTITUTING A "PERMANENT" APPOINTMENT, FOR PURPOSES OF TRANSFER OR REINSTATEMENT WITHIN THE CLASSIFIED CIVIL SERVICE, IS NEVERTHELESS "PERMANENT," AS DISTINGUISHED FROM "TEMPORARY," FOR RETIREMENT PURPOSES, AND THE ACCEPTANCE OF THE SAID APPOINTMENT MUST BE HELD TO HAVE TERMINATED THE EMPLOYEE'S PRIOR INVOLUNTARY ADMINISTRATIVE FURLOUGH STATUS FROM A POSITION PAID FROM EMERGENCY FUNDS IN ANOTHER GOVERNMENT AGENCY, AND WHERE THE EMPLOYEE VOLUNTARILY RESIGNED FROM THE PERMANENT POSITION TO TAKE UP ACTIVE EMPLOYMENT ON THE FIRST WORK DAY THEREAFTER AT AN INCREASED SALARY UNDER HIS SUPPOSED ADMINISTRATIVE FURLOUGH STATUS, THE RESUMPTION OF SERVICE IN THE EMERGENCY POSITION MUST BE CONSIDERED, FOR INCREASED SALARY REFUND PURPOSES, AS A "TRANSFER" FROM THE PERMANENT POSITION TO A POSITION PAID FROM EMERGENCY FUNDS WITHIN THE MEANING OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, PROHIBITING SALARY INCREASES UPON TRANSFERS TO POSITIONS PAID FROM EMERGENCY FUNDS FOR A PERIOD OF AT LEAST SIX MONTHS.

COMPTROLLER GENERAL BROWN TO THE ADMINISTRATOR, FEDERAL EMERGENCY ADMINISTRATION OF PUBLIC WORKS, MAY 29, 1939:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 21, 1939, AS FOLLOWS:

MR. WILLIAM W. PEGRAM WAS APPOINTED IN THE PUBLIC WORKS ADMINISTRATION ON FEBRUARY 16, 1936 AS A RESIDENT ENGINEER INSPECTOR AT $3,200 PER ANNUM, GRADE EO 11, FOR ASSIGNMENT TO SEVERAL DOCKETS IN CALIFORNIA AND HE WORKED IN THAT CAPACITY UNTIL JUNE 30, 1937, WHEN HE WAS FURLOUGHED FROM THE SERVICE DUE TO THE COMPLETION OF THE PROJECTS ON WHICH HE WAS ASSIGNED. MR. PEGRAM WAS RETURNED TO ACTIVE DUTY ON MONDAY, JULY 11, 1938.

REFERENCE IS MADE TO THE ATTACHED COPY OF A LETTER FROM THE CIVIL SERVICE COMMISSION WHICH BROUGHT TO OUR ATTENTION FOR THE FIRST TIME THAT IN THE INTERIM MR. PEGRAM HAD BEEN EMPLOYED BY THE ENGINEER CORPS, WAR DEPARTMENT AT A SALARY OF $2,000 PER ANNUM FROM MARCH 5, TO JULY 9, 1938. AS WILL BE NOTED, THE CIVIL SERVICE COMMISSION SUGGESTS THAT THIS ORGANIZATION OFFICIALLY SEPARATE MR. PEGRAM AS OF MARCH 4, 1938, AND REAPPOINT HIM AS OF JULY 11, 1938, THE DATE ON WHICH HE RETURNED TO DUTY WITH THIS ORGANIZATION, WHICH IS IN ACCORDANCE WITH 12CG:501 HOLDING THAT THE APPOINTMENT TO A PERMANENT POSITION OF AN EMPLOYEE ON ADMINISTRATIVE FURLOUGH TERMINATES THE FURLOUGH. IF THIS CASE IS HANDLED AS THE CIVIL SERVICE COMMISSION SUGGESTS, IT WILL BE IN CONTRAVENTION OF EXECUTIVE ORDER 7070 REQUIRING PRESIDENTIAL APPROVAL FOR THE TRANSFER OF AN EMPLOYEE PAID FROM EMERGENCY FUNDS FROM ONE GOVERNMENT AGENCY TO ANOTHER AT A HIGHER SALARY, AND MAKE IT NECESSARY FOR MR. PEGRAM TO REFUND TO THE GOVERNMENT THE AMOUNT OF $600.

OUR FIELD REPRESENTATIVES HAVE THE AUTHORITY TO REASSIGN TO DUTY AS THE NEEDS OF THE SERVICE REQUIRE, EMPLOYEES WHO HAVE BEEN ADMINISTRATIVELY FURLOUGHED, WITHOUT OBTAINING PRIOR APPROVAL OF THIS OFFICE. IN THIS CASE, IT WAS NOT KNOWN TO THE FIELD OFFICER THAT MR. PEGRAM WAS EMPLOYED BY THE WAR DEPARTMENT AT THE TIME HE ASSIGNED HIM TO DUTY, NOR DID IT BECOME KNOWN TO THIS OFFICE UNTIL RECEIPT OF THE LETTER FROM THE CIVIL SERVICE COMMISSION ON MARCH 18, 1939.

MR. PEGRAM, BELIEVING HIMSELF TO BE AN EMPLOYEE OF THE PUBLIC WORKS ADMINISTRATION, UPON RECEIVING NOTIFICATION TO RETURN TO DUTY, FOLLOWED OUT INSTRUCTIONS AND IMMEDIATELY LEFT THE WAR DEPARTMENT AND REPORTED FOR HIS ASSIGNMENT ON JULY 11, 1938. THEREFORE, IT SEEMS UNFAIR THAT MR. PEGRAM BE REQUIRED TO REIMBURSE THE GOVERNMENT FOR THE DIFFERENCE BETWEEN THE $2,000 RATE AND THE $3,200 RATE WHICH HE WAS PAID FOR THE SIX MONTHS FOLLOWING HIS REASSIGNMENT TO DUTY IN THIS ORGANIZATION.

AFTER A REVIEW OF THE FACTS AS OUTLINED, YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER OR NOT IT IS MANDATORY THAT MR. PEGRAM REFUND TO THE GOVERNMENT THE $600 IN QUESTION.

THE LETTER TO YOU FROM THE UNITED STATES CIVIL SERVICE COMMISSION, DATED MARCH 18, 1939, IS AS FOLLOWS:

REFERENCE IS MADE TO YOUR REQUEST FOR SERVICE RECORD, FORM 2865, DATED MARCH 15, 1939, RELATIVE TO OBTAINING A RECORD OF MR. WILLIAM WESLEY PEGRAM, WHO CLAIMS TO HAVE RENDERED SERVICE WITH THE ENGINEER CORPS, WAR DEPARTMENT, DURING THE PERIOD MARCH 5 TO JULY 9, 1938, INCLUSIVE.

IN THIS CONNECTION THERE IS ALSO ON FILE IN THE COMMISSION A REQUEST FOR THE SERVICE RECORD OF MR. PEGRAM FILED BY THE ENGINEER CORPS REQUESTING RECORD OF SERVICE WITH THE PUBLIC WORKS ADMINISTRATION FOR THE PERIOD FEBRUARY 14, 1936, TO MARCH 4, 1938. WHEN IT WAS FOUND THAT THE WAR DEPARTMENT REQUESTED THIS RECORD IT WAS LEARNED THAT MR. PEGRAM WAS PROBATIONALLY APPOINTED EFFECTIVE MARCH 5, 1938, AND LAID OFF AT HIS OWN REQUEST AT THE TERMINATION OF JULY 9, 1938, DURING WHICH PERIOD HE WAS CARRIED IN AN ADMINISTRATIVE FURLOUGH STATUS ON THE ROLLS OF THE PUBLIC WORKS ADMINISTRATION.

INASMUCH AS THE COMPTROLLER GENERAL HAS HELD (SEE 12 COMPT. GEN. 501) THAT THE APPOINTMENT TO A PERMANENT POSITION OF AN EMPLOYEE ON ADMINISTRATIVE FURLOUGH TERMINATES THE FURLOUGH IT APPEARS NECESSARY THAT YOUR ADMINISTRATION TAKE THE NECESSARY STEPS TO TERMINATE THE APPOINTMENT OF MR. PEGRAM AT THE TERMINATION OF MARCH 4, 1938, AND REAPPOINT HIM JULY 11, 1938, THE DATE ON WHICH HE RETURNED TO DUTY FROM FURLOUGH.

IN VIEW OF THE FACT THAT MR. PEGRAM ACQUIRED A RETIREMENT STATUS WHILE SERVING WITH THE ENGINEER CORPS AND BECAUSE OF CONTINUITY OF SERVICE RETIREMENT DEDUCTIONS SHOULD HAVE BEEN WITHHELD FROM HIS SALARY FROM JULY 11, 1938.

IN ORDER THAT THE RETIREMENT ACCOUNT, FORM 2806 MAY REFLECT MR. PEGRAM'S SERVICE IN CHRONOLOGICAL ORDER IT WILL BE APPRECIATED IF SUCH AN ACCOUNT IS PREPARED SHOWING HIS ORIGINAL APPOINTMENT TOGETHER WITH ANY CHANGES (IF ANY), UP TO AND INCLUDING MARCH 4, 1938.

WHILE SERVICE UNDER THE PROBATIONAL APPOINTMENT IN THE WAR DEPARTMENT FROM MARCH 5, TO JULY 9, 1938, WAS LESS THAN 6 MONTHS AND WOULD NOT BE REGARDED AS "PERMANENT" FOR PURPOSES OF TRANSFER OR REINSTATEMENT WITHIN THE CLASSIFIED CIVIL SERVICE, THE ORIGINAL APPOINTMENT IS REGARDED BY THE CIVIL SERVICE COMMISSION AS "PERMANENT" AS DISTINGUISHED FROM "TEMPORARY" FOR THE PURPOSES OF RETIREMENT, WHICH STATUS THE EMPLOYEE RETAINED UPON TRANSFER OR REAPPOINTMENT WITHOUT BREAK IN SERVICE TO THE UNCLASSIFIED POSITION IN THE PUBLIC WORKS ADMINISTRATION. IT HAS BEEN HELD THAT A PERMANENT APPOINTMENT IN ONE POSITION AUTOMATICALLY TERMINATES AN INVOLUNTARY ADMINISTRATIVE FURLOUGH FROM ANOTHER PERMANENT POSITION. COMP. GEN. 76; ID. 501; 13 ID. 14. THIS RULE IS EQUALLY APPLICABLE TO TERMINATE AN ADMINISTRATIVE FURLOUGH FROM AN EMERGENCY POSITION. CF. 12 COMP. GEN. 403; 13 ID. 14; ID. 27, HOLDING IN EFFECT THAT DURING AN INVOLUNTARY FURLOUGH FROM AN EMERGENCY POSITION, AN EMPLOYEE MAY SERVE UNDER A TEMPORARY APPOINTMENT, AS DISTINGUISHED FROM A PERMANENT APPOINTMENT, IN ANOTHER POSITION IN ANOTHER BRANCH OF THE SERVICE WITHOUT TERMINATING THE FURLOUGH FROM THE PERMANENT OR EMERGENCY POSITION.

ACCORDINGLY, ACCEPTANCE BY MR. PEGRAM OF THE PERMANENT APPOINTMENT IN THE WAR DEPARTMENT ON MARCH 5, 1938, UNDER WHICH HE ACQUIRED A PERMANENT RETIREMENT STATUS, NECESSARILY MUST BE REGARDED AS HAVING AUTOMATICALLY TERMINATED THE ADMINISTRATIVE FURLOUGH FROM THE EMERGENCY POSITION IN THE PUBLIC WORKS ADMINISTRATION AS WELL AS THE EMERGENCY APPOINTMENT IN WHICH NO RETIREMENT STATUS WAS ORIGINALLY ACQUIRED.

PARAGRAPH 3 OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, ENTITLED "REGULATIONS GOVERNING APPOINTMENTS OF EMPLOYEES PAID FROM EMERGENCY FUNDS," PROVIDES AS FOLLOWS:

* * * THE SALARY OF THE EMPLOYEE TRANSFERRED TO A POSITION THE SALARY OF WHICH IS PAID FROM EMERGENCY FUNDS SHALL NOT BE INCREASED AT THE TIME OF THE TRANSFER EXCEPT UPON THE APPROVAL OF THE PRESIDENT, AND THEREAFTER NO INCREASE SHALL BE MADE IN THE SALARY OF SUCH EMPLOYEE PAID FROM EMERGENCY FUNDS FOR A PERIOD OF AT LEAST SIX MONTHS.

IN DECISION OF SEPTEMBER 24, 1935, 15 COMP. GEN. 243, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

AN APPOINTMENT TO A POSITION IN THE FEDERAL SERVICE, THE SALARY OF WHICH IS PAID FROM EMERGENCY FUNDS, IMMEDIATELY FOLLOWING OR SEVERAL DAYS SUBSEQUENT TO A VOLUNTARY TERMINATION OF SERVICES IN ANOTHER DEPARTMENT OR BRANCH OF THE FEDERAL SERVICE, IS A TRANSFER WITHIN THE TERMS OF EXECUTIVE ORDER NO. 7070, DATED JUNE 12, 1935, PROHIBITING SALARY INCREASES UPON TRANSFER "EXCEPT UPON THE APPROVAL OF THE PRESIDENT" * * *.

ALSO, THE DECISION OF JULY 16, 1936, 16 COMP. GEN. 34, HELD 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, ARE APPLICABLE TO APPOINTMENTS IN EMERGENCY POSITIONS AT INCREASED SALARIES NOTWITHSTANDING THE APPOINTMENTS ARE PROBATIONAL AND MADE FROM THE CIVIL SERVICE REGISTER.

SEE, ALSO, 15 COMP. GEN. 822. CF. 15 COMP. GEN. 710; 16 ID 200.

ACCORDINGLY, MR. PEGRAM HAVING BEEN REAPPOINTED EFFECTIVE ON MONDAY, JULY 11, 1938, AT THE RATE OF $3,200 PER ANNUM, IN A POSITION THE SALARY OF WHICH IS PAID FROM EMERGENCY FUNDS, ON THE FIRST WORK DAY AFTER A VOLUNTARY RESIGNATION EFFECTIVE SATURDAY, JULY 9, 1938, FROM A PERMANENT POSITION IN THE WAR DEPARTMENT, THE SALARY OF WHICH, AT THE RATE OF $2,000 PER ANNUM, WAS PAID FROM A REGULAR APPROPRIATION, WITHOUT THE APPROVAL OF THE PRESIDENT--- THE VOLUNTARY RESIGNATION HAVING BEEN FOR THE EXPRESS PURPOSE OF ACCEPTING THE EMERGENCY APPOINTMENT--- IN CONTRAVENTION OF THE TERMS OF EXECUTIVE ORDER NO. 7070, THERE IS NO ALTERNATIVE BUT TO HOLD THAT HE MUST REFUND THE AMOUNT OF $600, THE DIFFERENCE BETWEEN THE RATES OF $3,200 AND $2,000 PER ANNUM FOR 6 MONTHS.