B-9308, APRIL 10, 1940, 19 COMP. GEN. 853

B-9308, APRIL 10, 1940, 19 COMP. GEN. 853

COMPENSATION AND CLASSIFICATION CHANGES - REORGANIZATION ACT PROHIBITION EDUCATIONAL PERSONNEL PAID FROM FUNDS OF THE CIVILIAN CONSERVATION CORPS ALLOTTED TO THE WAR DEPARTMENT AND UNDER THE SPECIFIC SUPERVISION OF THAT DEPARTMENT ALTHOUGH APPOINTED UNDER AUTHORITY DELEGATED BY THE SECRETARY OF WAR TO THE OFFICE OF EDUCATION, ARE NOT EMPLOYEES OF SAID OFFICE, AND ARE NOT SUBJECT TO THE PROHIBITORY COMPENSATION AND CLASSIFICATION CHANGE PROVISIONS OF SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939, 53 STAT. 563.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE FEDERAL SECURITY ADMINISTRATOR, APRIL 10, 1940:

I HAVE YOUR LETTER OF MARCH 22, 1940, AS FOLLOWS:

A QUESTION HAS ARISEN AS TO THE APPLICATION OF SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939 TO SOME OF THE PERSONNEL CONNECTED WITH THE WORK OF THE CIVILIAN CONSERVATION CORPS.

THE WORK OF THE CIVILIAN CONSERVATION CORPS IS CARRIED ON COOPERATIVELY BY THE WAR DEPARTMENT, THE DEPARTMENT OF THE INTERIOR, AND THE DEPARTMENT OF AGRICULTURE, UNDER THE GENERAL SUPERVISION AND CONTROL OF THE DIRECTOR OF THE CIVILIAN CONSERVATION CORPS. THE FUNDS AVAILABLE FOR THIS WORK ARE APPROPRIATED TO THE CIVILIAN CONSERVATION CORPS AND FROM SUCH APPROPRIATIONS ALLOTMENTS ARE MADE BY THE DIRECTOR TO THE RESPECTIVE COOPERATING DEPARTMENTS ON BUDGET REQUESTS SUBMITTED BY THEM.

THESE COOPERATING DEPARTMENTS CUSTOMARILY EMPLOY WITH SUCH ALLOTTED FUNDS THE NECESSARY ADMINISTRATIVE PERSONNEL TO CARRY ON THEIR PHASE OF THE PROGRAM, BUT SUCH PERSONNEL HAVE BEEN CONSIDERED FOR ORDINARY PURPOSES AS BEING EMPLOYEES OF THE RESPECTIVE DEPARTMENTS. IN CARRYING OUT THE EDUCATIONAL ACTIVITIES IN THE SEVERAL CIVILIAN CONSERVATION CORPS CAMPS, THE WAR DEPARTMENT ISSUED THE FOLLOWING REGULATIONS REGARDING THE APPOINTMENT AND SEPARATION OF CIVILIAN CONSERVATION CORPS EDUCATIONAL PERSONNEL WHO ARE PAID FROM FUNDS ALLOTTED TO THE WAR DEPARTMENT BY THE DIRECTOR OF THE CIVILIAN CONSERVATION CORPS:

"THE OFFICE OF EDUCATION, DEPARTMENT OF THE INTERIOR, WILL ACT IN AN ADVISORY CAPACITY AND WILL COMMUNICATE DIRECTLY WITH THE SECRETARY OF WAR ON ALL MATTERS AFFECTING THE EDUCATIONAL PROGRAM OF THE CIVILIAN CONSERVATION CORPS. IT IS CHARGED WITH THE SELECTION AND APPOINTMENT OF CAMP EDUCATIONAL ADVISERS HEREINAFTER MENTIONED AND WILL RECOMMEND TO THE SECRETARY OF WAR THE OUTLINES OF INSTRUCTION, TEACHING PROCEDURES, AND TYPES OF TEACHING MATERIALS FOR USE IN THE CAMPS.

"CORPS AREA COMMANDERS.--- A. RESPONSIBILITY FOR THE PROMOTION AND CARRYING OUT OF THE EDUCATIONAL PROGRAM IS VESTED IN THE CORPS AREA COMMANDERS FOR THEIR RESPECTIVE CORPS AREAS. THEY WILL REPORT DIRECTLY TO THE WAR DEPARTMENT.

"B. DISMISSAL OF EDUCATIONAL PERSONNEL.--- (1) WHEN, IN THE JUDGMENT OF THE CORPS AREA COMMANDER, THE ASSISTANT CORPS AREA ADVISER OR A DISTRICT ADVISER OR A CAMP ADVISER OR OTHER AUTHORIZED EMPLOYEE HAS DEMONSTRATED BY HIS MISCONDUCT THAT HE IS UNSUITED FOR THE POSITION HE HOLDS, THE CORPS AREA COMMANDER MAY DISMISS SUCH ADVISER OR EMPLOYEE AT ONCE. PROMPT REPORT OF SUCH ACTION INCLUDING THE REASONS FOR DISMISSAL WILL BE SENT TO THE ADJUTANT GENERAL FOR TRANSMITTAL TO THE OFFICE OF EDUCATION.

"/2) WHEN, IN THE JUDGMENT OF THE CORPS AREA EDUCATIONAL ADVISER, THE ASSISTANT CORPS AREA ADVISER OR DISTRICT ADVISER OR CAMP ADVISER OR OTHER AUTHORIZED EMPLOYEE HAS DEMONSTRATED HIS INEFFICIENCY IN THE PERFORMANCE OF HIS DUTIES, THE CORPS AREA COMMANDER MAY, UPON RECOMMENDATION OF THE CORPS AREA EDUCATIONAL ADVISER, DISMISS SUCH ADVISER OR EMPLOYEE. PROMPT REPORT OF SUCH ACTION INCLUDING THE REASONS FOR DISMISSAL WILL BE SENT TO THE ADJUTANT GENERAL FOR TRANSMITTAL TO THE OFFICE OF EDUCATION.'

THE COMMISSIONER OF EDUCATION WHO, UNDER THE ABOVE REGULATIONS OF THE WAR DEPARTMENT, IS THE APPOINTING OFFICER OF THESE EMPLOYEES WHOSE SALARIES ARE PAID FROM FUNDS ALLOTTED TO THE WAR DEPARTMENT FROM CIVILIAN CONSERVATION CORPS APPROPRIATION, HAS FELT THAT PROMOTION OF THE CAMP EDUCATIONAL PERSONNEL IS PROHIBITED DURING THE PRESENT FISCAL YEAR BY THE OPERATION OF SECTION 10 (B) OF THE REORGANIZATION ACT. THE WAR DEPARTMENT FEELS THAT THESE EMPLOYEES ARE TECHNICALLY UNDER THE WAR DEPARTMENT AND, CONSEQUENTLY, ARE NOT EMPLOYEES TRANSFERRED TO THE FEDERAL SECURITY AGENCY UNDER THE REORGANIZATION ACT AND NOT BARRED FROM CHANGES IN CLASSIFICATION AND COMPENSATION.

YOUR DECISION IS REQUESTED ON THESE SPECIFIC QUESTIONS:

1. ARE THE CIVILIAN CONSERVATION CORPS EDUCATIONAL PERSONNEL APPOINTED BY THE COMMISSIONER OF EDUCATION, UNDER THE REGULATIONS OUTLINED ABOVE, WHOSE SALARIES ARE PAID FROM C.C.C. FUNDS ALLOTTED TO THE WAR DEPARTMENT, EMPLOYEES TRANSFERRED TO THE FEDERAL SECURITY AGENCY BY REORGANIZATION PLAN NO. 1, SUBJECT TO SECTION 10 (B) OF THE REORGANIZATION ACT?

2. IF YOUR ANSWER TO THIS QUESTION IS IN THE AFFIRMATIVE, ARE THE OTHER PERSONNEL PAID OUT OF FUNDS APPROPRIATED TO THE CIVILIAN CONSERVATION CORPS, BUT EMPLOYED BY THE SEVERAL COOPERATING DEPARTMENTS, ALSO EMPLOYEES OF THE CIVILIAN CONSERVATION CORPS TRANSFERRED TO THIS AGENCY BY REORGANIZATION PLAN NO. 1 SUBJECT TO SECTION 10 (B) OF THE REORGANIZATION ACT?

SECTIONS 2 AND 5 AND THE FIRST PROVISO OF SECTION 11 OF THE ACT OF JUNE 28, 1937, 50 STAT. 319, 320, AND 321, RESPECTIVELY, ESTABLISHING THE CIVILIAN CONSERVATION CORPS, PROVIDE AS FOLLOWS:

SEC. 2. THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, IS AUTHORIZED TO APPOINT A DIRECTOR AT A SALARY OF $10,000 PER ANNUM. THE DIRECTOR SHALL HAVE COMPLETE AND FINAL AUTHORITY IN THE FUNCTIONING OF THE CORPS, INCLUDING THE ALLOTMENT OF FUNDS TO COOPERATING FEDERAL DEPARTMENTS AND AGENCIES, SUBJECT TO SUCH RULES AND REGULATIONS AS MAY BE PRESCRIBED BY THE PRESIDENT IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT.

SEC. 5. THE DIRECTOR AND, UNDER HIS SUPERVISION, THE HEADS OF OTHER FEDERAL DEPARTMENTS OR AGENCIES COOPERATING IN THE WORK OF THE CORPS, ARE AUTHORIZED WITHIN THE LIMIT OF THE ALLOTMENTS OF FUNDS THEREFOR, TO APPOINT SUCH CIVILIAN PERSONNEL AS MAY BE DEEMED NECESSARY FOR THE EFFICIENT AND ECONOMICAL DISCHARGE OF THE FUNCTIONS OF THE CORPS WITHOUT REGARD TO THE CIVIL-SERVICE LAWS AND REGULATIONS.

SEC. 11. * * * PROVIDED, THAT FUNDS ALLOCATED TO GOVERNMENT AGENCIES FOR OBLIGATION UNDER THIS ACT MAY BE EXPENDED IN ACCORDANCE WITH THE LAWS, RULES, AND REGULATIONS GOVERNING THE USUAL WORK OF SUCH AGENCY, EXCEPT AS OTHERWISE STIPULATED IN THIS ACT: * * *

UNDER AUTHORITY OF THE PROVISIONS OF THE CITED ACT THE PRESIDENT ISSUED, AMONG OTHERS, EXECUTIVE ORDER NO. 8221, DATED AUGUST 21, 1939, EFFECTIVE JULY 1, 1939, PROVIDING, IN PART, AS FOLLOWS:

3. THE SECRETARY OF WAR, THE SECRETARY OF THE INTERIOR, THE SECRETARY OF AGRICULTURE, AND THE ADMINISTRATOR OF VETERANS' AFFAIRS ARE REQUESTED TO COOPERATE WITH THE DIRECTOR OF THE CIVILIAN CONSERVATION CORPS IN CARRYING OUT THE PURPOSES OF THE SAID ACT OF JUNE 28, 1937, AS AMENDED. EACH OF THE SAID SECRETARIES AND THE SAID ADMINISTRATOR SHALL APPOINT A REPRESENTATIVE WHO SHALL, UPON REQUEST OF THE DIRECTOR, CONFER WITH HIM AND UNDER HIS DIRECTION AID HIM IN PROSECUTING EFFECTIVELY THE PURPOSES CONTEMPLATED BY THE SAID ACT, AS AMENDED.

SECTION 5 OF THE STATUTE AUTHORIZES THE HEADS OF THE FEDERAL DEPARTMENTS OR AGENCIES COOPERATING IN THE WORK OF THE CIVILIAN CONSERVATION CORPS, UNDER THE SUPERVISION OF THE DIRECTOR OF THE CIVILIAN CONSERVATION CORPS, TO APPOINT CIVILIAN PERSONNEL. THE FIRST PROVISO TO SECTION 11 OF THE STATUTE AUTHORIZES FUNDS ALLOTTED TO SUCH COOPERATING DEPARTMENTS OR AGENCIES TO BE EXPENDED IN ACCORDANCE WITH THE LAWS, RULES, AND REGULATIONS GOVERNING THE USUAL WORK OF THE COOPERATING DEPARTMENT OR AGENCY. UNDER THAT STATUTORY AUTHORITY THE SECRETARY OF WAR IS THE APPOINTING POWER IN RESPECT OF THE PERSONNEL PAID FROM FUNDS PROVIDED FOR THE WORK OF THE CIVILIAN CONSERVATION CORPS ALLOTTED TO THE WAR DEPARTMENT, SUBJECT, OF COURSE, TO THE GENERAL SUPERVISION OF THE DIRECTOR OF THE CIVILIAN CONSERVATION CORPS. THERE IS NOTHING IN THE TERMS OF THE EXECUTIVE ORDER PROVIDING OTHERWISE.

WHILE STILL RETAINING THE POWER OF REMOVAL, THE SECRETARY OF WAR WAS WITHIN HIS AUTHORITY IN ISSUING THE REGULATIONS QUOTED IN YOUR SUBMISSION PROVIDING FOR THE SELECTION OF EDUCATIONAL EMPLOYEES BY THE OFFICE OF EDUCATION--- ANOTHER COOPERATING AGENCY. IT IS UNDERSTOOD THAT AFTER THEIR SELECTION AND APPOINTMENT THE PERFORMANCE OF THE DUTIES OF THE EDUCATIONAL PERSONNEL ARE UNDER THE SPECIFIC SUPERVISION AND DIRECTION OF THE WAR DEPARTMENT. CONSEQUENTLY, THE DELEGATION OF AUTHORITY WITH REGARD TO THE SELECTION OF EDUCATIONAL PERSONNEL DOES NOT CONSTITUTE THE EMPLOYEES THUS SELECTED (WHO ARE PAID FROM FUNDS ALLOTTED TO THE WAR DEPARTMENT), EMPLOYEES OF THE OFFICE OF EDUCATION, WHICH OFFICE, INCLUDING ITS FUNCTIONS AND PERSONNEL, WAS TRANSFERRED TO THE FEDERAL SECURITY AGENCY BY THE PRESIDENT'S REORGANIZATION PLAN NO. 1.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE, THUS RENDERING UNNECESSARY ANY SPECIFIC ANSWER TO QUESTION 2.