effects of Colonel Wallace. Had shipment been by freight the quartermaster probably would have under the provisions of paragraph 14-c, Army Regulations 30-960, consolidated the effects of the various officers, in which case it may be reasonably assumed that if the effects of Colonel Wallace had been shipped in one lot by freight, as was the second lot, they would have moved as a carload, at the carload rate of $1.29 per hundred pounds on a minimum carload of 12,000 pounds. Accordingly, the officer is entitled to credit on account of shipment of the second lot, for 732 pounds at $1.29 per hundred pounds, or in the sum of $9.44. The cost of this shipment being $13.40, there is for collection from the officer as excess $3.96. (A-56551) COMPENSATION-ADMINISTRATIVE PROMOTIONS The terms of section 24 of the act of March 28, 1934, 48 Stat. 523, providing that administrative promotions may be made from savings in appropriations or apportionments for personnel on an annual basis are broad enough to permit savings on an annual basis to be shown under each "bureau, office, or other appropriation unit" (quoting from the average provision), but to authorize promotions the savings must exist with respect to the entire appropriation or apportionment involved, and promotions are not authorized in a particular bureau on the basis of the savings therein unless justified on the basis of the appropriation as a whole. Comptroller General McCarl to the Secretary of Agriculture, July 25, 1934: There has been received your letter of July 9, 1934, as follows: Herewith is a proposed circular on promotion procedure in this Department during the fiscal year 1935 under section 24 of the Independent Offices Appropriation Act of March 28, 1934. The Department would appreciate your criticism of this draft, with indication of any changes you think desirable either from the standpoint of the legal sufficiency of the plan or by way of simplification. In discussion of the subject in the Department the thought has been advanced that the savings might properly be figured by bureau groups, rather than on the basis of appropriations, by analogy with the use of bureau units in the determination of grade averages under the Personnel Classification Act. If you deem this permissible, it will, of course, be possible to dispense with some of the detail of the proposed plan. An early response will be very helpful, since it is desired to establish the promotion basis and procedure with the least possible delay. The portion of section 24 of the act of March 28, 1934, 48 Stat. 523, here material provides as follows: (2) Section 7 (prohibiting administrative promotions) of the Treasury-Post Office Appropriation Act, fiscal year 1934, is amended by adding after the first proviso thereof a colon and the following: "Provided further, That administrative promotions may be made during the fiscal year 1935 to the extent that funds are available therefor, on an annual basis, from savings made in the amounts apportioned for personal services from the applicable appropriations for the fiscal year 1935." The savings are required to be shown under "appropriations." This term is broad enough to permit the savings to be shown under 7556°-35--6 each "bureau, office, or other appropriation unit" (quoting from the average provision), as suggested in your letter, but to authorize promotions the savings must exist with respect to the entire appropriation or apportionment involved, and promotions are not authorized in a particular bureau on the basis of the savings therein unless justified on the basis of the appropriation as a whole. One paragraph of the proposed circular is as follows: Bureaus planning to submit recommendations for promotions during 1935 should, therefore, as soon as practicable and in any event before forwarding any such recommendation, present to the Secretary through the Office of Budget and Finance a request for apportionment of the amount expendable for 1935 under each separate appropriation administered. In the event the appropriation for salaries and expenses, 1935, does not differ materially from the estimate in the 1935 Budget the amount recommended for apportionment should be the gross of all positions in such estimates, whether classified or unclassified, integral or fractional, excluding temporary positions and excluding also savings on account of lapses and furloughs. If the appropriation varies materially from the estimate the apportionment may be adjusted accordingly. At the same time there should be submitted a statement of the amount necessary to pay throughout the year all positions as of July 1, 1934, whether filled or vacant, excluding temporaries. No account should be taken in this statement of lapses or vacancies. It is understood that the recommendations for apportionments are to be from the regular appropriations only, and do not include any indefinite appropriations under section 21 (e) of the act of March 28, 1934, 48 Stat. 522, and that the term "gross of all positions is meant not the aggregate of the total salary rates of the positions appearing in the estimate but only 90 percent thereof. With this understanding this office has no criticism to offer at this time with. respect to the proposed circular. (A-56610) OFFICERS AND EMPLOYEES-HOLDING TWO POSITIONS-RETIRED ARMY AND NAVY OFFICERS HOLDING TEMPORARY POSITIONS An officer of the Army, retired after 30 years' service, or an officer of the Navy, retired after 40 years' service, is not prohibited by the act of July 31, 1894, 28 Stat. 205, as amended, from holding a temporary Federal office or position under appointment by the President or the head of a department, notwithstanding his retired pay is at a rate in excess of $2,500 per annum, and if both the retired pay and civilian compensation exceed the rate of $3,000 per annum, he may elect, under the terms of section 212 of the Economy Act, for the period of temporary civilian employment, between his retired pay and the compensation fixed for the temporary civilian office or position. Comptroller General McCarl to the Secretary of Labor, July 25, 1934: There has been received your letter of July 11, 1934, as follows: Admiral Henry A. Wiley, United States Navy, retired, who was appointed on June 28, 1934, by President Roosevelt to serve as a member of the National Steel Labor Relations Board in connection with the Department of Labor, has asked whether as a member of such Board he may elect between his retired pay and the pay allowed to each member of the Board. The Executive order establishing the Board states that "each member of the Board shall receive necessary traveling and subsistence expenses and, in addition thereto, $40 per diem." On June 16th in the similar case of Brigadier General Pelham B. Glassford, who was appointed by me to act as a conciliator for the United States Department of Labor, you wrote me as follows: 66 You are advised, therefore, that as the rate of retired pay and the rate of compensation in the civilian position, which is only part time, both exceed $3,000 per annum, General Glassford is not entitled to retired pay for nonworkdays in his civilian position but must elect which form of payment he will receive, and unless and until he has done so—there being no evidence of record as to receipt of civilian compensation-the voucher in question is not authorized to be paid." In a letter of June 29, 1934, also concerning General Glassford, you indicated your belief that, as General Glassford was serving in a purely temporary capacity and that his salary was not being paid on an annual basis but on a per diem basis, his service as a conciliator was not in contravention of the act of July 31, 1894. In an informal conversation last week Mr. Yates, of your office, told Mr. Eliot, associate solicitor of this Department, that apparently the case of Admiral Wiley was covered by the same considerations as that of General Glassford. Admiral Wiley, like General Glassford, is employed on a temporary basis, with his salary to be paid on a per diem basis for the days when he is actually employed as a member of the Board. The Board may be abolished by the President whenever, in his opinion, it has completed the duties it is authorized to perform. Taking your opinion of June 16th and Mr. Yates' informal opinion together, it would appear that Admiral Wiley would be permitted to serve as a member of the Board during its existence, electing during that time whether to take his retired pay or instead to accept his daily pay as a member of the board. He is anxious, however, to have this confirmed in a written opinion by you so that he may know exactly where he stands. In view of the emergency nature of the work of the Board, I shall greatly appreciate a prompt reply. In letter to you dated June 29, 1934, in the case of General Glassford, it was stated as follows: That is, as General Glassford is understood to have been retired after thirty years' service, and as his retired pay is in excess of $2,500 per annum, there was a question whether his employment as conciliator of the Department of Labor was not prohibited by said statute [act of July 31, 1894], which provides: * * No person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred dollars shall be appointed to or hold any other office to which compensation is attached unless specially heretofore or hereafter specially authorized thereto by law; but this shall not apply to retired officers of the Army or Navy whenever they may be elected to public office or whenever the President shall appoint them to office by and with the advice and consent of the Senate." The statute was amended May 31, 1924, 43 Stat. 245, but the amendment is not here material. Based on the act of March 4, 1913, 37 Stat. 738, providing "That the Secretary of Labor shall have power * * * to appoint commissioners of conciliation in labor disputes whenever in his judgment the interests of industrial peace may require it to be done", and on your letter indicating that his services are merely intermittent, without definite tenure, and as his salary is not paid on an annual basis but on a per diem basis when actually employed, it may be concluded, in line with the early interpretation of said statute, that the employment of this retired Army officer as conciliator on the basis indicated, to serve either without compensation or with the compensation stated, but without receiving retired pay, whichever he may elect, pursuant to the principle stated in the decision of June 16, will not be in contravention of the act of July 31, 1894. United States v. Hartwell, 6 Wall. 385, 393; 22 Op. Atty. Gen. 184; 24 id. 12, 14; 2 Comp. Dec. 271; id, 467. Compare, however, 1 Comp. Gen. 220. It is understood that Admiral Wiley was retired September 30, 1929, on his own application after 40 years' service, pursuant to the terms of section 1443, Revised Statutes. There is no difference in applying the terms of the act of July 31, 1894, 28 Stat. 205, the principle stated thereunder in letter to you of June 29, 1934, supra, and section 212 of the Economy Act, between an Army officer retired after 30 years' service and a Navy officer retired after 40 years' service. You are advised, therefore, that, in view of its temporary character, the appointment of Admiral Wiley as a member of the National Steel Labor Relations Board by Executive Order No. 6751, dated June 28, 1934, is not prohibited by the act of 1894, supra, notwithstanding his retired pay is in excess of $2,500 per annum, and he may elect, for the period of such temporary employment, between his retired pay and the per diem compensation allowed by the Executive order as a member of said Board. (A-56617) OFFICERS AND EMPLOYEES-EXPERTS-SECURITIES AND Where a statute authorizes the employment of both "experts" and other "officers and employees ", such as the Act of June 5, 1934, 48 Stat. 881, creating the Securities and Exchange Commission, it must be regarded that the term "experts" is intended to include only those specially qualified by education and experience in a particular line to perform a special service essential to the accomplishment of the legislative purpose-and who are not, generally, obtainable under operation of the civil-service laws and regulations. All officers and employees of the Securities and Exchange Commission, other than those qualifying as "experts", are subject to the civil-service laws and regulations, the Classification Act, and section 203 of the Economy Act, requiring the approval of the President to the filling of vacancies, including the filling of all newly-created positions. Comptroller General McCarl to the Chairman, Securities and Exchange Commission, July 25, 1934: There has been received your letter of July 13, 1934, as follows: Section 4 (b) cf the "Securities Exchange Act of 1934 ", approved June 5, 1934 (Public No. 291, 73d Congress), provides as follows: The Commission is authorized to appoint and fix the compensation of such officers, attorneys, examiners, and other experts as may be necessary for carrying out its functions under this Act, without regard to the provisions of other laws applicable to the employment and compensation of officers and employees of the United States, and the Commission may, subject to the civil-service laws, appoint such other officers and employees as are necessary in the execution of its functions and fix their salaries in accordance with the Classification Act of 1923, as amended." The Securities and Exchange Commission interprets this legislation to mean that the Commission is authorized to appoint the "officers, attorneys, examiners, and other experts" mentioned in the first part of the paragraph without regard to section 203 of the Economy Act as amended, which provides that the filling of positions must be authorized or approved in writing by the President of the United States. The Commission is now considering the organization of its staff of employees and requests that you render an opinion as to whether the Commission is correct in its interpretation of section 4 (b) of the Securities Exchange Act of 1934. It will be greatly appreciated if this matter can be expedited. There is stated in the quoted statutory provisions the authority for appointing and fixing the rates of compensation of two separate and distinct classes of personnel, viz: (1) "Officers, attorneys, examiners, and other experts ", i.e., officers, attorneys, examiners, etc., when the duties involved require the services of persons qualifying as expert" in the particular line; and (2) "other officers and employees." That the two classes are not intended to be regarded on the basis of the same duties and responsibilities is clearly shown from the fact that the Congress has authorized separate procedures for their employment and for fixing their rates of compensation. Where a statute authorizes the employment of both "experts" and other "officers and employees ", it must be regarded that the term "experts" is intended to include only those exceptionally qualified by education and experience in a particular line to perform a special service essential to accomplishment of the legislative purpose-and who are not, generally, obtainable under operation of the civil-service laws and regulations. All officers and employees of the Commission, other than those qualifying as "experts" in the performance of some special line or class of duties required of the Commission, are subject to the civilservice laws and regulations, the Classification Act, section 203 of the Economy Act (requiring the approval of the President in the filling of vacancies, including the filling of all newly created positions), etc. In cases in which it is established that employment of experts is necessary in carrying out the functions of the Commission, officers, attorneys, examiners, and others so qualifying as above indicated may be employed "without regard to the provisions of other laws applicable to the employment and compensation of officers and employees of the United States", including section 203 of the Economy Act. Your question is answered accordingly. (A-55103) HOLIDAYS-GOVERNMENT PRINTING OFFICE-PER-ANNUM Per-annum employees of the Government Printing Office are not entitled to gratuity pay for legal holidays occurring during a period of leave of absence without pay on which no work is performed. |