Page images

fication act and other general compensation statutes, and to include only those classes of positions the duties of which usually are performed by American citizens. See decision of January 23, 1931, 10 Comp. Gen. 322, 323, wherein it was stated:

While section 2 of the Brookhart Salary Act, above quoted, is broad enough to embrace all employees carried under Group 4-B, including drafting groups, in the schedule of wages for civil employees under the Naval Establishments, and makes no distinction between different classes of employees who come within said Group 4-B, nevertheless, I am constrained to view the matter, as you have done, that the Congress could not have intended to include employees beyond the continental limits of the United States theretofore paid under native and alien schedules which are not at all comparable with the schedules established by the classification act for positions in the District of Columbia. The entire basis of the classification of civilian employees, and the establishment of the salary rates prescribed by the classification act, as originally enacted and as amended, have been on the American standard of living and not on the standards maintained among natives living in the insular or island possessions of the United States.

See, also, 13 Comp. Gen. 370 (relative to the 40-Hour Week statute); 18 id. 206, 209 (relative to the holiday statute); and 20 Comp. Gen. 552 (relative to employment of natives in clerical and stenographic positions in the Selective Service System in Puerto Rico).

The Executive order does not specify the classes of positions "for which citizens of the United States are recruited." As previously stated herein, the act of November 26, 1940, does not vest authority in the President to extend the classification act and to fix a differential in salary solely on the basis of citizenship status, but rather, on the basis of the geographical location of the duties to be performed. The matter is one for determination on the basis of the duties usually performed by American citizens, and the duties usually performed by natives, having in mind, also, that the recruiting of citizens of the United States to the positions at the locations stated in the Executive order is necessary in connection with national defense projects. In the absence of any direction in the Executive order, it is proper to assume that the matter is one for determination by the joint action of the particular administrative office concernedin this instance the War Department-and the Civil Service Commission based upon the conditions existing at the various locations outside the continental limits of the United States mentioned in the Executive order. Compare 14 Comp. Gen. 70; 16 id. 250; id. 703; 17 id. 537; 20 id. 451. When such action shall have been taken, it is to be assumed that the Civil Service Commission will refrain from taking any classification action upon positions the duties of which are to be performed by natives, and the salaries of which are authorized to be paid under native schedules, and that the Commission will limit its allocation of positions to those which have been determined by such joint action to be "positions * for which citizens of the United States are recruited." As to any position determined by such joint action to be in this class and which has been allocated by the

* **

Civil Service Commission to a grade prescribed by the classification act, the filling of the position by a noncitizen, otherwise qualified, would not have the effect of excluding the position from the requirements contained in the provisions of Executive Order 8955. Accordingly, this office is unable to confirm the views expressed in paragraph 3 of your letter.

As to the questions presented in paragraph 4, the differential is payable to the incumbent of a position which has been determined to be one "for which citizens of the United States are recruited" and which has been properly allocated to a grade by the Civil Service Commission, regardless of whether the incumbent be a citizen or noncitizen, if otherwise qualified. Any question involving the competitive classified Civil Service status of the incumbent is not for determination by this office. The allocation of a position once made and payment of the authorized differential in that grade as required by the Executive order are not affected by the citizenship status of an individual incumbent.

In decision of August 22, 1939, 19 Comp. Gen. 237, 245, it was stated, in pertinent part, as follows:

(0) The rule of long standing has been that the change in classification grade and compensation rate pursuant to the reallocation of a position approved by the Cvil Service Commission is effective from the beginning of the pay period current when the notice of the approval of the reallocation by the Civil Service Commission is received in the administrative office. 4 Comp. Gen. 280; id. 395; 5 id. 202; 6 id. 202; id. 355; id. 530; 8 id. 40; 9 id. 128; 10 id. 284; 11 id. 395; and 18 id. 794. *

Reference to the decisions cited in the above-quoted decision will show that the rule has been applied to the first allocation of positions previously occupied but not theretofore required to be allocated as well as to the reallocation of positions. No reason is perceived why the same general rule should not be applied to the allocation or reallocation of positions coming within the purview of Executive Order 8955, including the effective date of the differential based on the minimum salary rate of the grade resulting from such allocation or reallocation. The general rule has been stated that a new position, as distinguished from an identical additional position which does not require allocation action by the Civil Service Commission, should be allocated prior to appointment in order to determine the legal salary rate payable. 4 Comp. Gen. 827; 5 id. 202. However, this office recognizes that during the present war emergency when the force of civilian employees subject to the classification act has been greatly expanded and numerous new positions are required to be created, the positions must be filled promptly, in many cases prior to final allocation action by the Civil Service Commission. In such cases, if the delay be short, no payment of salary should be made until the salary rate legally payable based on the allocation of the position shall have been determined. Of course,

it should be borne in mind that identical additional positions, having identical duties and responsibilities as positions already allocated by the Commission, do not require allocation action. 9 Comp. Gen. 101; 11 id. 321. Also, in the instant matter, where distance and other considerations involved may delay final allocation action by the Civil Service Commission for an extended period, in order that the employees affected may not be without income for subsisting purposes, this office will not object to the fixing of a tentative salary rate by administrative action for new unallocated positions, as distinguished from identical additional positions, as nearly as may be administratively determined to be in the proper grade, which salary rate may be paid pending the final allocation action of the Civil Service Commission, subject to proper adjustment when notice of the allocation of the position by the Civil Service Commission shall have been received in the administrative office. Referring to the illustration stated in the first sentence of paragraph 5, and assuming that the appointment of February 11, 1942, fixed the rate of compensation to be paid initially, the differentials would be payable from the beginning of the pay period current when notice of the allocation approval by the Civil Service Commission on March 25, 1942, was received in the War Department. The other questions in this paragraph have been answered above.

The answer to the questions in paragraph 5 answers, also, the question presented in paragraph 6. That is to say, the employee would not have a claim for the differential from the date of the Executive order, but from the beginning of the pay period current when notice of the allocation of the position by the Civil Service Commission was received in the War Department.

In answer to the question presented in paragraph 7, if a position is determined by the joint action of the Civil Service Commission and the administrative office not to be of a class "for which citizens of the United States are recruited" and the employee is properly paid on the basis of a native schedule administratively adopted, no differential would be payable to the incumbent of such position, regardless of whether he be a native or an American citizen

If in the case referred to in paragraph 8 the position has been allocated by the Civil Service Commission, the salary rate of the incumbent, including the differential, should be computed on the basis of United States currency and any payments in Newfoundland currency should be the equivalent in American currency. The mere fact that the employees may be paid in Newfoundland currency would not forfeit his right to the differential.

In decision of November 22, 1941, 21 Comp. Gen. 478, it was held as follows (quoting from the syllabus):

The granting under authority of section 15 of the Federal Highway Act of 1940 of a percentage differential of the base pay incident to the assignment of an employee from the continental United States for engineering services outside

the continental United States is not an "equivalent increase in compensation" within the meaning of section 2 of the uniform within-grade salary-advancement statute of August 1, 1941, and does not affect the employee's eligibility to a withingrade salary-advancement under the latter act. Decision B-20925, October 27, 1941, 21 Comp. Gen. 369 distinguished.

In line with said decision the "waiting period" in the case illustrated in paragraph 9 of your letter would be computed from October 1,





In view of section 3678, Revised Statutes, limiting expenditure of public funds solely to the objects for which they are appropriated, an executive agency of the Government, in the absence of specific statutory authority therefor, may lend an employee already on its rolls to a congressional investigating committee only where the investigation relates to matters ordinarily handled by the lending agency and, thus, will further the purposes for which the agency's appropriations are made, and where the absence of the employee will not be detrimental to the work of the agency or necessitate the hiring of an additional employee.

In the absence of specific statutory authority therefor, an agency in the executive branch of the Government may not employ a person solely for the purpose of detailing or lending such employee to a committee created by a House or Senate resolution, notwithstanding the terms of the resolution may specifically so provide such a resolution not having the force and effect of a statute.

The broad statutory authority granted the Administrator of the Federal Housing Administration to “appoint such other officers and employees as necessary" is limited to the personnel necessary to perform the functions of the Administration, and, therefore, funds appropriated by acts not specifically providing for payment of compensation of employees assigned to congressional investigating committees may not be used for that purpose where the matters being investigated are unrelated to the work of the Administration, even though the Senate and House resolutions creating such committees provide for the loan of employees.

Comptroller General Warren to the National Housing Administrator, April 27, 1942:

I have the Federal Housing Commissioner's letter of April 9, 1942, as follows:

This will confirm my telephone conversation of this morning with you regarding the exception made with respect to the salary of Mr. Charles P. Clark, assigned from this Administration to the Special Committee of the Senate of which Senator Truman is chairman.

This matter was brought up as a result of an exception made by the Audit Division of the General Accounting Office, as follows:

MARCH 30, 1942.

Disb. Officer: G. F. Allen, Sym. 13-971, D. O. Vou. No. 61218.
Dept. and Bu.: Federal Loan Agency (Federal Housing Adm.) Bu. Vou. No.
Appropriation: Administrative Expenses, Federal Housing Period, July 1941,
Administration, 1942.


Credit for $351.23

Certifying Officer Lester H. Thompson paid to See Below:

will be withheld for the reason stated below unless a satisfactory explanation is made or the amount deposited prior to the next settlement of your account: Pay roll, July 1-15, 1941.

[blocks in formation]

Paid 1,440 per annum 15 days

These employees are to be detailed to a Congressional Committee
for an extended period, therefore, the above appropriation for
expenses of the Federal Housing Administration is not avail-
able for payment of salary to these employees during the
period of the detail. Sec. 3678 Rev. Stat. 6 Comp. Gen. 836.
sgm 52387 EC.


With respect to Miss Tomai and Mrs. Budd, they were assigned on July 2, 1941, to the Special Committee to Study the Progress of the National Defense Program, Congressman Carl Vinson, Chairman, established under H. Res. 179, 77th Congress. At the time of the assignment both persons were in the employ of the Federal Housing Administration. Their assignments were terminated on April 7, 1942, and January 15, 1942, respectively. Mrs. Budd is no longer in the employ of the Administration and Miss Tomai has been placed in her former position. H. Res. 179 authorized the detail of certain personnel to this Committee. It would therefore appear that the assignment of these two persons is permissible.

With respect to Charles P. Clark, who was the immediate subject of our conversation, he was employed by this Administration on April 10, 1941, and immediately assigned to the Special Committee to Investigate Contracts under the National Defense Program, Senator Harry Truman, Chairman, established under S. Res. 71, as amended by S. Res. 146, 77th Congress. His assignment has not as yet been terminated. With reference to the assignment of Mr. Clark and the other employees, the Congressional Committee involved are engaged in the study and investigation of the progress of the National Defense Program. There was an urgent demand in each instance by the particular Committee involved that personnel be supplied to it to aid in the completion of its work. It was our belief, in view of the unsettled international picture, the extreme importance of the entire defense program, and the resultant necessity of the highest degree of cooperation on the part of all branches of the Government to aid in the successful consummation of this program, that the Administration should cooperate in this matter. For this reason these assignments were made. As stated above, Mr. Clark is the only one whose assignment has not been terminated. It is respectfully requested that the exception be waived in these cases. If, however, Mr. Clark's assignment is no longer authorized he will be terminated immediately upon receipt of advice from you to that effect.

Since the Federal Housing Administration is no longer an independent agency but rather is one of the "constituent units in the National Housing Agency," and is "under the direction and supervision of a National Housing Administrator" (see secs. 1 and 3 of E. O. 9070, February 24, 1942), the decision on the matter presented by the Federal Housing Commissioner is being rendered to you as the head of the agency or establishment involved. See 31 U. S. C. 74 (third paragraph); also, 19 Comp. Gen. 150, id. 400.

House Resolution 162, agreed to April 2, 1941, authorized the Committee on Military Affairs and the Committee on Naval Affairs of the House of Representatives to conduct studies and investigations of the National Defense Program insofar as it relates to matters coming within the jurisdiction of such committees, respectively.

House Resolution 179, agreed to April 15, 1941, in addition to allocating not to exceed $25,000 from the contingent fund of the House for expenses incurred by the Committee on Naval Affairs for the investigations authorized by House Resolution 162, supra, provided as follows:

SEC. 3. The head of each executive department is hereby requested to detail to said committee such number of legal and expert assistants and investigators as said committee may from time to time deem necessary.

« PreviousContinue »