ADMINISTRATIVE ALLOCATION DOWNWARD OF POSITION HELD BY VETERAN

An administrative allocation or reallocation downward of a field position, subject to the Classification Act of 1923, as amended (5 U. S. C. 678a), which is based solely on duties and responsibilities of the position, is a reduction in rank or compensation of the occupant of the position within the meaning of section 14 of the Veterans' Preference Act of 1944 (5 U. S. C. 863).

THE PRESIDENT.

MARCH 31, 1947.

MY DEAR MR. PRESIDENT: I have the honor to comply with your request for my opinion on a question submitted by the Civil Service Commission concerning section 14 of the Veterans' Preference Act of 1944, approved June 27, 1944, c. 287, 58 Stat. 387, 390 (5 U. S. C. 863).

Section 14 provides that no employee entitled to preference thereunder shall be discharged, reduced in rank or compensation, etc., except for such cause as will promote the efficiency of the service and for reasons given in writing. Certain other procedural requirements are imposed, and the affected employee is given a right of appeal to the Civil Service Commission. The Commission, after investigation and consideration of the evidence produced, is required to submit its findings and recommendations to the proper administrative officer.

The question submitted by the Commission is as follows: "Is an administrative allocation or reallocation downward of a field position, subject to the Classification Act of 1923, as amended, which is based solely on duties and responsibilities of the position, a reduction in rank or compensation of the occupant of the position within the meaning of section 14 of the Veterans' Preference Act of 1944?”*

The Classification Act, as amended, authorizes the heads of the Departments and independent establishments to adjust compensation in certain positions in the field services to correspond so far as may be practicable to the rates established by law for the departmental services in the District of Columbia (5 U. S. C. 678a). By Executive Order No. 9512, of January

*A second question, submitted for consideration in the event of a negative answer, does not require an answer in view of the conclusion herein reached.

16, 1945, the heads of the departments and other agencies are required to comply with standards prescribed by the Civil Service Commission, and the Commission is authorized to determine by investigation the degree to which allocations comply with such standards, reporting any noncompliance to the President.

It appears, however, that questions other than that of compliance with prescribed standards may arise in connection with allocations. The Commission, which has heretofore entertained appeals in such cases under section 14 of the Veterans' Preference Act, makes the following explanation in the letter requesting that you obtain my opinion:

"The scope of investigations, hearings and findings and recommendations in section 14 appeals from decisions of employing agencies in allocation cases, is as follows:

"The allocation or reallocation feature, unless the appellant states that he does not question it. This feature has to do with the correctness or incorrectness of the allocation or reallocation of the position and it is purely a question of classification standards applicable to the duties and responsibilities of the position.

"Any other matters pertinent to a determination as to whether an injustice has been done the appellant; such as that discrimination, personal prejudice or bias entered into the allocation or reallocation; that he was purposely assigned different duties and responsibilities so that it would be necessary to allocate his position downward; that duties were arbitrarily taken away from him so that allocation downward would be necessary; that he was purposely transferred to another position which it was known would be reduced in grade; the allocation or reallocation was based on administrative action personal to the employee and not on the duties and responsibilities of the position, and any other pertinent complaints set forth by the appellant."

An allocation downward is, in the view of the Commission, a reduction in rank or compensation. Its position was set forth as follows in a letter of October 25, 1945, addressed to the Comptroller General:

"The Commission has accordingly held that an allocation or reallocation of a field position by administrative action which results in a reduction in grade is a reduction in rank

within the meaning of section 14 and has entertained appeals in such cases. This construction on the part of the Commission is considered to be in accordance with the letter and spirit of the law which was designed to safeguard the rights of preference eligibles and provide a right of appeal to a tribunal outside of the employing agency." (See 25 Comp. Gen. 620, 623, quoting the letter but not passing upon any question involved in this paragraph.)

I concur in this view. If the allocation downward is tainted with injustice of the sort described in the Commission's letter to you (previously quoted) there is clear violation of the Veterans' Preference Act. Nor do I perceive any reason for a different conclusion if it should appear that only unintended error was committed. In either case the veteran is accorded less compensation or rank than that provided by law, and the reduction is not, in the words of section 14, “for such cause as will promote the efficiency of the service." Both cases fall within the plain words of the section.

The objection has been raised by a Department of the Government that the Civil Service Commission when entertaining appeals under section 14 is not authorized "to determine the service, title and grade of a position" since the power to allocate positions in the field service is vested in the head of the department (act of July 3, 1930, c. 850, 46 Stat. 1003, 1005), subject only to the authority of the Commission under Executive Order No. 9512. However, in my opinion section 14 clearly authorizes the Commission to submit to the head of a department findings and recommendations in connection with an allocation or proposed allocation which it regards as erroneous, when the incumbent of the position is a veteran; and section 18 of the statute provides that "all acts and parts of acts inconsistent with the provisions hereof are hereby modified to conform herewith."

For the foregoing reasons the question submitted by the Civil Service Commission is answered in the affirmative.

Respectfully,

TOM C. CLARK.

COMPENSATION OF EMPLOYEES DETAILED TO ASSIST FOREIGN GOVERNMENTS

The act of August 8, 1946, c. 911, 60 Stat. 944, plainly authorizes the detailing of employees of the Weather Bureau to cooperate with foreign governments, and must be construed as authorizing the placing of such employees on a leave-without-pay status and arranging with the foreign government for payment of their compensation. Article I, Section 9, Clause 8, of the Constitution does not forbid the acceptance of compensation from a foreign government under an arrangement duly authorized by an act of the Congress.

The SECRETARY OF COMMERCE.

APRIL 17, 1947.

MY DEAR MR. SECRETARY: I refer to your request of April 1 for my opinion regarding the propriety of placing certain employees of the Weather Bureau on a leave-without-pay status and detailing them to serve as expert meteorologists for the Government of Eire. The circumstances and the nature of the proposed arrangement are more fully indicated by the following excerpts from a memorandum prepared by the Solicitor of your Department:

"The Director of the Meteorological Service, Department of Industry and Commerce of Eire, has requested the United States Weather Bureau of this Department to assist him in providing an adequate weather-forecasting service in aid of navigation, to promote safety and efficiency in international air navigation. The form of the requested cooperation is for the Department to provide volunteers from the personnel of the Weather Bureau, who are trained in making and issuing weather forecasts and advices in aid of aviation, to serve for a temporary period of two years in the Meteorological Service of Eire, or until such time as the Director of that Service can train a sufficient number of citizens of Eire to take over the full and complete weather-forecasting service that is required for the safety of international aviation. Such interim cooperation is beneficial to the air transport interests of the United States and contributes to the safety of American citizens who travel to Europe by air. * *

"It is understood that the employees in question would retain their full United States citizenship and would not take any oath of allegiance to the Government of Eire."

The following provisions of the act of August 8, 1946, c. 911, 60 Stat. 944, are applicable:

"In order to promote safety and efficiency in air navigation to the highest possible degree, the Chief of the Weather Bureau, under the direction of the Secretary of Commerce, shall, in addition to any other functions or duties pertaining to weather information for other purposes (4) establish and coordinate the international exchanges of meteorological information required for the safety and efficiency of air navigation; (5) participate in the development of an international basic meteorological reporting network, including the establishment, operation, and maintenance of reporting stations on the high seas, in polar regions, and in foreign countries in cooperation with other governmental agencies of the United States and the meteorological services of foreign countries and with persons engaged in air

It is my understanding that the question has been raised only because of the proposal that the foreign government pay the compensation of the detailed employees and the possibility of conflict with Article I, Section 9, Clause 8, of the Constitution, which reads as follows:

"No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.'

I concur in the conclusion of your Solicitor that the proposed arrangement is authorized by law and that there is no conflict with the constitutional provision. The act of August 8, 1946, plainly authorizes the detailing of the employees. It is silent on the question of compensation, although it must have been foreseen that questions relating thereto would arise. I think the required construction is that the Chief of the Weather Bureau, under the direction of the Secretary of Commerce, is left free to make appropriate arrangements with foreign governments respecting the payment, in whole or in part, of the compensation of employees detailed to cooperate with them. The constitutional provision was not intended to forbid, and by its terms does not forbid, the