A-21569, MARCH 22, 1928, 7 COMP. GEN. 587

A-21569, MARCH 22, 1928, 7 COMP. GEN. 587

CLASSIFICATION OF CIVILIAN EMPLOYEES - AVERAGE PROVISION - TRANSFERS EXCEPTION (3) TO THE AVERAGE PROVISION APPEARING IN ANNUAL APPROPRIATION ACTS AS A RESTRICTION ON PAYMENT OF SALARY RATES UNDER THE CLASSIFICATION ACT, UNDER WHICH AN EMPLOYEE MAY BE TRANSFERRED FROM ONE POSITION TO ANOTHER POSITION IN THE SAME OR DIFFERENT GRADE IN THE SAME OR DIFFERENT BUREAU, OFFICE, OR APPROPRIATION UNIT, IS FOR THE PROTECTION OR BENEFIT OF THE EMPLOYEE TRANSFERRED, AND DOES NOT AUTHORIZE AN ADMINISTRATIVE OFFICE TO MAKE A PAPER TRANSFER AND RETRANSFER OF AN EMPLOYEE SOLELY FOR THE PURPOSE OF PERMITTING THE PROMOTION OF OTHER EMPLOYEES IN THE GRADE FROM WHICH THE TRANSFER WAS MADE, WHICH WOULD HAVE CAUSED THE PROPER AVERAGE TO BE EXCEEDED HAD THE PAPER TRANSFER NOT BEEN MADE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, MARCH 22, 1928:

UNDER DATE OF MARCH 7, 1928, THIS OFFICE ADDRESSED YOU AS FOLLOWS:

IN THE AUDIT OF ACCOUNTS OF J. B. CALLAHAN, DISBURSING OFFICER OF THE DEPARTMENT OF THE INTERIOR, FOR THE MONTH OF JULY, 1927, THE QUESTION IS PRESENTED WHETHER THE TRANSFER ON JULY 1, 1927, OF PARK A. COLE FROM GRADE CAF-4, SALARY RATE OF $2,040 PER ANNUM, OFFICE OF THE SECRETARY, TO THE SAME GRADE AND SALARY RATE, OFFICE OF THE SOLICITOR,WHICH IS A DIFFERENT APPROPRIATION UNIT, AND RETRANSFER ON JULY 16, 1927, BACK TO THE SAME POSITION UNDER THE OFFICE OF THE SECRETARY, WAS AN ACTUAL TRANSFER OR MERELY ON PAPER, AND TO PERMIT THE PROMOTION OF OTHER EMPLOYEES ON JULY 1, 1927, IN GRADE CAF-4, OFFICE OF THE SECRETARY, WHICH PROMOTIONS WOULD HAVE CAUSED THE PROPER AVERAGE OF THE GRADE TO BE EXCEEDED HAD THE TRANSFER NOT BEEN SET UP.

THE PAY ROLL FOR JULY, 1927, FOR THE OFFICE OF THE SOLICITOR CONTAINS A NOTATION OPPOSITE THE NAME OF COLE THAT HE WAS DETAILED TO THE OFFICE OF THE SECRETARY DURING THE FIRST 15 DAYS OF JULY HE WAS SUPPOSED TO HAVE BEEN TRANSFERRED TO AND ON THE ROLLS OF THE OFFICE OF THE SOLICITOR. THIS WOULD INDICATE THAT HE WAS NOT SEPARATED FROM HIS DESK IN THE OFFICE OF THE SECRETARY, PERFORMING THE SAME CHARACTER OF WORK, AND THAT THE TRANSFER WAS MERELY A PAPER FORMALITY. IF THE TRANSFER OF COLE HAD NOT BEEN MADE FROM THE OFFICE OF THE SECRETARY, THE AVERAGE OF THE SALARY RATES OF ALL EMPLOYEES IN GRADE CAF-4, OFFICE OF THE SECRETARY, AS OF JULY 1, 1927, AT THE SALARY RATES AUTHORIZED BY SEVERAL PROMOTIONS, WOULD HAVE BEEN $1,864.61, OR IN EXCESS OF THE AVERAGE SALARY RATE FOR THE GRADE, $1,860 PER ANNUM.

THE PAY ROLLS ALSO DISCLOSE A SIMILAR OPERATION WITH RESPECT TO THE TRANSFER ON JULY 1, 1927, OF HORACE D. DEHART, PRIVATE SECRETARY TO THE ASSISTANT SECRETARY OF THE INTERIOR, FROM GRADE CAF-7, SALARY RATE OF $2,800 PER ANNUM, IS THE SAME GRADE AND SALARY RATE, OFFICE OF THE SOLICITOR, AND RETRANSFER JULY 16, 1927, BACK TO THE SAME POSITION UNDER THE OFFICE OF THE SECRETARY. THERE IS A NOTATION ON THE PAY ROLL THAT HE WAS DETAILED TO THE OFFICE OF THE SECRETARY DURING THE FIRST 15 DAYS OF JULY HE WAS SUPPOSED TO HAVE BEEN TRANSFERRED TO AND ON THE ROLLS OF THE OFFICE OF THE SOLICITOR.

IT IS DEEMED BEST TO BRING TO YOUR ATTENTION WHAT THE RECORD SEEMS TO DISCLOSE, AND IN VIEW OF THE PRESENT UNCERTAINTY OF THE PAY ROLLS, THIS OFFICE SHOULD BE FURNISHED FURTHER INFORMATION RESPECTING THE TWO TRANSFERS IN QUESTION AND A STATEMENT OF THE VIEWS OF THE DEPARTMENT AS TO THE APPLICATION OF THE TERMS OF THE AVERAGE PROVISION WITH PARTICULAR REFERENCE TO EXCEPTION (3) IN THE EVENT THAT THE TRANSFERS WERE, IN FACT, MERELY PAPER FORMALITIES. PROMPT ACTION WILL BE APPRECIATED.

THE SECOND AND THIRD PARAGRAPHS OF YOUR REPLY OF MARCH 10, 1928, ARE AS FOLLOWS:

THE SOLICITOR'S OFFICE, WHILE A SEPARATE APPROPRIATION UNIT AND CARRIED UNDER SEPARATE HEADINGS IN THE APPROPRIATION ACT, IS, BECAUSE OF THE NATURE OF ITS WORK, IN CLOSER ADMINISTRATIVE RELATION TO THE SECRETARY'S OFFICE THAN THE BUREAUS OF THE DEPARTMENT, AND THE APPROPRIATION FOR THE SOLICITOR'S OFFICE HAS BEEN USED WHENEVER IN THE OPINION OF THE HEAD OF THE DEPARTMENT IT WAS NECESSARY FOR ADMINISTRATIVE REASONS TO MEET SOME TEMPORARY NEED OF THE SECRETARY'S OFFICE, AND THE SAME IS TRUE OF THE APPROPRIATION FOR THE SECRETARY'S OFFICE WITH RESPECT TO THE SOLICITOR'S OFFICE. THIS IS A PRACTICE OF MANY YEARS STANDING. BEFORE THE CLASSIFICATION ACT, WHEN POSITIONS WERE STATUTORY AT A FIXED SALARY, EMPLOYEES OF BOTH OFFICES WERE CONSIDERED FOR PROMOTION TO ANY VACANCY IN EITHER OFFICE, WITHOUT ANY CHANGE IN DUTIES, WITH THE RESULT THAT THE TRANSFERS SO MADE WERE MERELY PAPER TRANSACTIONS. THE DETAILS RESULTING WERE MADE UNDER THE AUTHORITY OF THE ACT OF MAY 28, 1896 (SEC. 38, TITLE 5, U.S. CODE), WHICH PROVIDES THAT THE HEAD OF A DEPARTMENT MAY, FROM TIME TO TIME, ALTER THE DISTRIBUTION AMONG THE VARIOUS BUREAUS AND OFFICES OF HIS DEPARTMENT. BOTH OFFICES ARE COVERED BY ONE PAY ROLL, AND ONE ACCOUNT CARRYING BOTH OFFICES IS SET UP ON THE BOOKS OF THE DISBURSING OFFICER AND OF THE TREASURY DEPARTMENT.

BOTH THE DISBURSING OFFICE AND THE ASSISTANT SECRETARY'S OFFICE, IN WHICH MR. COLE AND MR. DEHART ARE EMPLOYED, ARE ENGAGED UPON WORK COMING FROM ALL OR MANY BUREAUS AND OFFICES OF THE DEPARTMENT, INCLUDING THE SOLICITOR'S OFFICE, AND TO ALLOW ANY BUREAU OR OFFICE TO CONTRIBUTE TO THE PAYMENT FOR THE SERVICES RENDERED DOES NOT APPEAR TO BE INCONSISTENT WITH YOUR DECISIONS OF JUNE 30, 1926 (5 COMP. GEN. 1036), AND JANUARY 21, 1927 (A-16958), IN WHICH IT WAS STATED IN EFFECT THAT THERE APPEARS TO BE NO REASON WHY THE SALARY OF AN EMPLOYEE MAY NOT BE PRORATED AMONG THE DIFFERENT APPROPRIATIONS SO AS TO CHARGE EACH APPROPRIATION WITH THE VALUE OF THE SERVICES RENDERED TO THE BUREAU FOR WHICH SUCH APPROPRIATION IS MADE.

THE OFFICE OF THE SECRETARY AND THE OFFICE OF THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR ARE SEPARATE AND DISTINCT APPROPRIATION UNITS, AND THE AVERAGE OF THE SALARY RATES OF EMPLOYEES IN EACH GRADE IN EACH UNIT MUST BE COMPUTED AND MAINTAINED INDEPENDENTLY, UNDER THE REQUIREMENTS OF THE AVERAGE PROVISION APPEARING IN THE ANNUAL APPROPRIATION ACTS. THIS REQUIREMENT OF LAW MAY NOT BE DEFEATED BY ANY METHOD SUCH AS TEMPORARY DETAILS OR TRANSFERS OF EMPLOYEES BETWEEN TWO OR MORE APPROPRIATION UNITS SOLELY FOR THAT PURPOSE.

YOU STATE THAT THE TWO EMPLOYEES IN QUESTION ARE ENGAGED UPON WORK COMING FROM ALL OR MANY OF THE BUREAUS OR OFFICES OF THE DEPARTMENT, INCLUDING THE SOLICITOR'S OFFICE, AND CITE THE DECISIONS OF THIS OFFICE DATED JUNE 30, 1926, 5 COMP. GEN. 1036, AND JANUARY 21, 1927, A-16958, IN JUSTIFICATION OF THE TEMPORARY TRANSFER AND DETAIL OF THE EMPLOYEES AS INDICATED. THE FIRST OF THESE DECISIONS INVOLVED THE ENGINEERS OF THE DEPARTMENT OF AGRICULTURE PERFORMING WORK FOR MORE THAN ONE BUREAU OF THE DEPARTMENT, AND THE SECOND INVOLVED THE EMPLOYMENT OF A CARPENTER TO PERFORM WORK FOR MORE THAN ONE BUREAU UNDER THE TREASURY DEPARTMENT. THERE WAS AUTHORIZED THE PRORATING OF THE AMOUNT OF COMPENSATION OF THE EMPLOYEES BETWEEN THE APPROPRIATIONS UNDER THE DIFFERENT BUREAUS FOR WHICH WORK WAS PERFORMED ON THE BASIS OF THE AMOUNT OF WORK FOR EACH BUREAU. THESE DECISIONS WERE NOT INTENDED TO AND DID NOT AUTHORIZE TEMPORARY TRANSFERS AND DETAILS OF EMPLOYEES BETWEEN THE VARIOUS BUREAUS OR OFFICES FOR WHICH THE WORK WAS PERFORMED, BUT THERE WAS CONTEMPLATED ONLY THE PRORATING OF APPROPRIATIONS AND THE CONTINUOUS ASSIGNMENT OF THE EMPLOYEE OR EMPLOYEES INVOLVED TO A BUREAU FOR ADMINISTRATIVE PURPOSES. FURTHERMORE, THERE IS NO ANALOGY BETWEEN THE CASES CONSIDERED IN SAID DECISIONS AND THE CASES HERE UNDER CONSIDERATION. EMPLOYEES IN THE HEAD OFFICE OR ADMINISTRATIVE OFFICE OF AN EXECUTIVE DEPARTMENT, SUCH AS UNDER THE OFFICE OF THE SECRETARY OF THE INTERIOR, AND WHO HANDLE, IN THE DAILY ROUTINE, WORK EMANATING FROM THE VARIOUS BUREAUS OR OFFICES OF THE DEPARTMENT, ARE IN AN ENTIRELY DIFFERENT STATUS FROM THE ENGINEER AND CARPENTER CONSIDERED IN THE FORMER DECISIONS. THE SALARY APPROPRIATIONS UNDER THE OFFICE OF THE SECRETARY ARE EXCLUSIVELY AVAILABLE FOR THE SALARIES OF SUCH EMPLOYEES, AND THERE IS NO AUTHORITY TO PAY THE COMPENSATION OF EMPLOYEES UNDER THE OFFICE OF THE SECRETARY FROM APPROPRIATIONS PROVIDED FOR THE BUREAUS OR OFFICES OF THE DEPARTMENT. COMP. GEN. 82. ANY ADMINISTRATIVE PRACTICE TO THE CONTRARY SHOULD BE DISCONTINUED.

IN RESPONSE TO THE REQUEST OF THIS OFFICE FOR THE VIEWS OF THE DEPARTMENT AS TO THE CONSTRUCTION GIVEN TO EXCEPTION (3) TO THE AVERAGE PROVISION AS APPLIED TO THE PURPORTED TRANSFER OF THE EMPLOYEES IN QUESTION, THIS OFFICE WAS ADVISED--- LAST PARAGRAPH OF YOUR REPLY OF MARCH 10, 1928--- AS FOLLOWS:

EXCEPTION (3) TO THE SO-CALLED "AVERAGE-SALARY PROVISION" APPEARING IN THE APPROPRIATION ACT FOR THE CURRENT FISCAL YEAR PROVIDES THAT THE SAID RESTRICTION SHALL NOT APPLY SO AS TO REQUIRE THE REDUCTION IN SALARY OF ANY PERSON WHO IS TRANSFERRED FROM ONE POSITION TO ANOTHER POSITION IN THE SAME OR DIFFERENT GRADE IN THE SAME OR DIFFERENT BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT. FOR THE PURPOSE OF THE AVERAGE PROVISION THE POSITION MUST NECESSARILY BE CONSIDERED IN THE OFFICE COVERED BY THE APPROPRIATION FROM WHICH PAID. IT IS THE VIEW OF THIS DEPARTMENT THAT ONE OF THE PURPOSES OF THAT EXCEPTION WAS TO PERMIT ADMINISTRATIVE TRANSFERS FROM ONE ROLL TO ANOTHER WITHIN THE DEPARTMENT WITHOUT REQUIRING THE EMPLOYEE TO LOSE SALARY. WE OFTEN FIND IT NECESSARY TO TRANSFER AN EMPLOYEE FROM ONE ROLL TO ANOTHER FOR VARIOUS ADMINISTRATIVE REASONS, INCLUDING THE CONSERVATION OF APPROPRIATIONS, AND IT WOULD BE MANIFESTLY UNFAIR TO THE EMPLOYEE TO HAVE TO REDUCE HIS SALARY WHEN THOSE ADMINISTRATIVE CHANGES BECOME NECESSARY. WE FEEL THAT THIS EXCEPTION AUTHORIZED THE CHANGES REFERRED TO.

IF THE TRANSFERS HAD, IN FACT, BEEN BONA FIDE, EXCEPTION (3) TO THE AVERAGE PROVISION CLEARLY WOULD HAVE SAVED THE EMPLOYEES FROM LOSS OF SALARY. BUT THE POINT THIS OFFICE HAS RAISED IS WHETHER EXCEPTION (3) OF THE AVERAGE PROVISION MAY BE CONSIDERED AS AUTHORIZING AN ADMINISTRATIVE OFFICE TO TRANSFER TEMPORARILY EMPLOYEES RECEIVING THE HIGHER SALARY RATES, OUT OF THE GRADE WITHOUT LOSS OF SALARY SO AS TO INCREASE THE SALARY RATES OF THE LOWER PAID EMPLOYEES IN THE GRADE, AND THEN TO RETURN SUCH EMPLOYEES TO THE GRADE, THE APPARENT PURPOSE OF THE TRANSACTION BEING NOT TO MEET AN ACTUAL NEED OF THE SERVICE TO WHICH THE TRANSFER IS MADE BUT TO EVADE THE AVERAGE PROVISION OF THE STATUTE. THE PAY ROLLS IN THE PRESENT INSTANCE INDICATE SUCH AN ACTION, AND THE EXPLANATION MADE DOES NOT CLEARLY SHOW THE TRANSACTION TO BE OTHERWISE, NOR SHOW THE NECESSITY FOR THE TWO TEMPORARY TRANSFERS, DETAILS, AND RETRANSFERS.

EXCEPTION (3) TO THE AVERAGE PROVISION PERMITTING THE TRANSFER OF AN EMPLOYEE FROM ONE POSITION TO ANOTHER POSITION IN THE SAME OR DIFFERENT GRADE IN THE SAME OR DIFFERENT BUREAU, OFFICE, OR APPROPRIATION UNIT WITHOUT LOSS OF SALARY, WAS INTENDED FOR THE PROTECTION OR BENEFIT OF THE EMPLOYEE TRANSFERRED, BUT WAS NOT INTENDED AS A MEANS TO ENABLE THE ADMINISTRATIVE OFFICES TO TRANSFER AND RETRANSFER EMPLOYEES BETWEEN DIFFERENT BUREAUS, OFFICES OR APPROPRIATION UNITS FOR THE SOLE PURPOSE OF EVADING THE RESTRICTIONS OF THE AVERAGE PROVISION.

WHILE SUCH A PRACTICE IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE OFFICE, THIS OFFICE WILL NOT HEREAFTER RECOGNIZE SUCH PAPER TRANSFERS IN THE AUDIT OF ACCOUNTS OF PERSONNEL PAYMENTS, BUT WILL DISALLOW THE EXCESS OVER THE PROPER AVERAGE FOR THE GRADE WHICH WILL REQUIRE A READJUSTMENT IN THE SALARY RATES IN ORDER THAT THE PROPER AVERAGE BE NOT EXCEEDED. AS LONG AS THE AVERAGE PROVISION APPEARS IN THE ANNUAL APPROPRIATION ACTS, IT WILL BE EXPECTED THAT THE ADMINISTRATIVE OFFICES WILL ENDEAVOR TO COMPLY WITH THE SPIRIT AND INTENT OF THE STATUTORY RESTRICTIONS THUS MADE ON PERSONNEL PAYMENTS IN THE DISTRICT OF COLUMBIA, AND WILL NOT RESORT TO SUCH MEANS AS WOULD APPEAR TO HAVE BEEN USED IN THESE CASES TO EVADE THE RESTRICTIONS.

IN VIEW OF THE TIME THAT HAS ELAPSED, AND THE EVIDENT MISCONSTRUCTION OF THE SPIRIT AND INTENT OF THE AVERAGE PROVISION, THERE WILL NOT NOW BE REQUIRED ANY ADJUSTMENT IN THE SALARY RATES IN THE TWO CASES HEREIN CONSIDERED.