LIBRARY OE THE UNIVERSITY of ILLINOIS Evasions of the Civil Service Law through Constructions placed on Special Legisla¬ tion ; Growth of the Practice. A REPORT PREPARED BY THE INVESTIGATING COMMITTEE OF THE National Civil-Service Reform League, 1901 . Evasions of the Civil Service Law through Constructions placed on Special Legisla¬ tion ; Growth of the Practice. A REPORT. To the Council of the National Civil Service Reform League : Your special committee, appointed to enquire into the con¬ dition of the Federal Civil Service, begs leave to offer the fol¬ lowing report in regard to certain appointments made without examination: The civil service rules defining the classified service are so framed as to apply to new positions, when these are created, of the same general description as those already included. Such positions, whether established under Executive authority or created by Congress, fall naturally under the appropriate classified division, except where Congress by express legisla¬ tion, provides otherwise. The employees of the Census Bureau and the two thousand or more clerks employed under the War “emergency” acts, were thus excluded, and are not within the scope of this report. A large number of positions have, however, been created by recent legislation, where there was no express exclusion, but where some ambiguity, or difference from the usual form in the language of appropriation bills, providing for salaries or other compensation, has been construed by appointing officers to amount to an exclusion. Large and important classes have been so treated, the only reason alleged being that under the terms of particular acts the Department officer has been authorized to “ select ”, or to “employ”, rather than to “appoint”; though it is difficult to believe that in such cases these words are used in any other than their synonymous sense. 4 The construction, under which such exemptions occur, so far as we can learn, are, in most cases, purely arbitrary. The number of exemptions made under them is growing, and it would appear that a new means for successfully circumvent¬ ing the civil service law has been discovered, the development of which, unless checked by the President and heads of De¬ partments—who very clearly have the power to check it—will result very unfortunately. A number of examples are here given: THE RURAL FREE DELIVERY SERVICE. I.—All appointments in the Rural Free Delivery Service are made without examination for the reason that in the ap¬ propriation act that service was spoken of as “Experimental”. In a debate in Congress Mr. Loud, the chairman of the House Committee on Post-offices and Post Roads, stated that the use of this word placed the office outside the classified service. This claim could not, however, be rightly based merely on the ground that the service, at the outset, was to be temporary, as Mr. Loud meant to imply. Appointments that are tempo¬ rary-—a description that in this case would certainly seem to be synonymous with u experimental -are subject to the same general provisions of the Civil Service rules as those that are permanent. But, however that may be, it is evident that the time is now past when this branch of the service can be con¬ sidered experimental. In the words of the First Assistant Postmaster-General (P. M. General’s Report, Nov. 3, 1900, P- ” 3 ): “The service popularly] known as 4 Rural Free Delivery’ must hereafter be considered by the Department and provided for by Congress as a permanent and expanding feature of the postal administration.’ There is certainly nothing in the special act which would prevent the President from now classifying this service by executive order. It is possible that the rural carriers could not be conveniently included, since their work is not always continuous and is frequently done in connection with some private employment—a carrier, for instance, furnishing the facilities for the conveyance of the mails in connection with some business of his own. But the Post Office Department has appointed a large number of special agents in this service who perform continuous administrative and clerical work, and who could easily be classified. In all the large cities there 5 are numbers of these special agents, about forty being so em¬ ployed in Washington alone. It is submitted that these places should be made subject to future competitive examination, and that this would be of great advantage to the service. THE FOREST RESERVE EMPLOYEES. II.—By an act passed June 4, 1897, Congress created the “ Forest Reserve Bureau” to be charged, under the direction of the Secretary of the Interior, with the care and administra¬ tion of the National forest reserves, and on July 1, 1898, an appropriation of $175,000 was made to cover the employment of the., necessary superintendents, inspectors, surveyors, for¬ estry agents, rangers, etc. The appropriation act, in this case, provided merely that these employees should be “ appointed ” by the Secretary of the Interior, and “ wholly with reference to their fitness and without regard for their political affilia¬ tions ”. There was nothing in this language to interfere with appointments under the civil service law; rather the reverse. It is understood, however, that Mr. Bliss, who was then Sec¬ retary, claimed the rules did not apply for the reason that none of the general provisions defining the classified service exactly fitted these particular positions. The Civil Service Commis¬ sion held the other view and so stated in a letter addressed to the Secretary on July 29, 1898, asking his authority for the appointments without examination that had already been made, and for the names of the appointees. This letter the Secretary did not answer. The Commission still holds its view but the “ Forest Reserve Bureau” has been treated as entirely unclassified. The number of employees, meanwhile, has grown, the annual appropriations for their salaries, which were again $175,000 in 1898, having been increased to $335,000 in 1900, and $325,000 in 1901. How far the De¬ partment has been able to make its selections, in the absence of protective rules, “with reference to fitness wholly, and with¬ out regard for political affiliations ” your Committee is unable to say. If, however, there be a doubt as to whether these positions are embraced by the present rules within the classified service, there can be no question whatever, that they ought speedily to be incorporated within this service. To subject such places permanently to the usual methods of arbitrary appointment, permitting their use as party spoil, would result in the degradation of the service to such an extent as to nullify 6 the forest reserve policy of the government. The Bureau can easily be classified by an order of the President, with the approval of the Secretary of the Interior. APPOINTMENTS BY MR. HEATH. III. —In the report to the Commission of changes in the Post Office Department, for the month of June, 1899, there appeared the names of twenty-four persons as “ temporary clerks in the office of the First Assistant Postmaster-General”. These clerks, whose tenure it may be remarked, has become virtually permanent, were appointed without the required ex¬ aminations. The act providing for them referred merely to “the employment during the nine months beginning July 1, 1899, of such additional temporary force .... necessary to the prompt, efficient and accurate despatch of the business in the office of the First Assistant.” There was nothing in it denying this employment to those on the eligible lists of the Commission, who had qualified for it and who were entitled to it. The Commission informed the First Assistant, Mr. Perry Heath, that his appointments were illegal and should be dis¬ continued. No reply was made to this letter, and Mr. Heath's appointees remained undisturbed. In the provision for their continuance for another year, contained in the appropriation act of April 17, 1900, they were described as “rendered necessary because of increase of work incident to the war with Spain.” As all appointments so described had been exempted by Congress from the operation of the Civil Service act, they were by virtue of this enactment nominally validated from that time forward. In the act of March 3, 1901, provision was made for their continuance for the current year. STOCKMEN AT THE INDIAN AGENCIES. IV. —In the Interior Department, the act making appro¬ priations for the year ending June 30, 1902, contains the fol¬ lowing clause: “ To enable the Secretary of the Interior to employ practical farm¬ ers, and practical stockmen, subject only to such examination as to qualification as the Secretary of the Interior may prescribe, in addition to the Agency farmers now employed, at wages not exceeding $65.00 per month, to superintend and direct farming and stock-raising among such Indians as are making effort for self-support, sixty-five thousand dollars.” The appointments of farmers and stockmen since the 7 passage of this act have been made without examination. As the act expressly refers to tests prescribed by the Secretary of the Interior alone, it is probable that it permits this to be done, but the situation is unfortunate, since about twenty per¬ sons were appointed as farmers and stockmen prior to the act, by competitive examination. To have two sets of men doing the same work, appointed in two different ways, seems not only illogical, but calculated to imperil the classified part of this service. It is submitted that the President, with the con¬ currence of the Secretary of the Interior, may very properly establish a rule for the uniform examination of all these farm¬ ers and stockmen by the examiners of the Civil Service Com¬ mission ; or that the Secretary, having the right to prescribe any examinations he sees fit, may himself accept those of the Civil Service Commission. On the ioth day of June, the above cases were brought to the notice of the President, in a communication addressed to him by the Chairman of your Committee, and he was respect¬ fully urged to include each and all of them within the classi¬ fied service, through specific executive orders. EVASIONS OF THE RULES ON VARIOUS OTHER PRETEXTS. Further cases that have come to your Committee's know!-. edge include the following: V.—The Deficiency Bill of March 3, 1899, made, an ap¬ propriation of $15,000 for the reproduction, under the direction . of the Commissioner of the General Land Office, of official plats of United States surveys, diagrams and correspondence, constituting the files of the office of the register of the General Land Office at Bismarck, N. D., which were destroyed by fire in August, 1896. The force of copyists, numbering fourteen, was employed without reference to the Civil Service law. Their employment was continued beyond the year appropriated for,, further provision being made for it in the act of February 9, . 1900. In this case it is the understanding that the Depart¬ ment contends that the language of the act implied that the ... work was of the “ emergency” order, and not subject to the rules, and it seems that the copyists are carried on the rolls nominally as “laborers". Those on the eligible lists who might be selected are thus debarred. It appears that the pro¬ visions recently made by Congress for clerical work in the. reproduction of records of the Land Office have been construed 8 in the same way in nine other cases, the appropriations in these cases aggregating $47,000. VI.—In establishing the new reference library in the Government Printing Office, Congress provided that the libra¬ rian, or as the act reads, “ the person or persons who shall have charge of such library ”, should be “selected and appointed by the Public Printer”. This the Public Printer construed as an exemption and examinations for appointment were not held. In a letter of the Civil Service Commission to the Attor¬ ney-General, dated March 9, 1901, it is pointed out that all clerks of United States District Attorneys have been appointed without examination, although the rules except “not to exceed one private Secretary or Confidential clerk ” to each of these officers. There are at least five who have two clerks and one who has five, all of whom were appointed without compliance with the law. The Attorney-General, in reply, refers to an act of May, 1887, authorizing District Attorneys to em¬ ploy .... the necessary clerical assistants, etc.” Under a construction followed by the office, he states the persons so “employed” are not considered as “appointed”, within the meaning of the civil service rules. The Commission did not feel that it could do otherwise than accept the Department’s decision, and the exemption stands. In the act of July 1, 1898, $2,000 was appropriated “for temporary typewriters and stenographers in the Department of State”, “to be selected by the Secretary”. These appoint¬ ments were made without examination, though it does not appear that they were treated at the outset as positively ex¬ cept ed. One of the appointees, Mrs. Caroline Galbreath, sought to obtain a permanent appointment by taking the type¬ writing examinations of the Commission in September, 1899, but she failed to pass. Application was then made, to the Commission, for permission to retain her permanently under the clause of the President’s order of May, 1899, continuing temporary employees holding positions on that date. The Commission declined to issue a certificate on the ground that the clause in question referred only to those who had been temporarily appointed under the rules, and in the absence of an eligible list. An adequate list existed when Mrs. Galbreath was put to work. When the question was referred to Attorney- General Griggs, he gave an opinion to the effect that a cerU- 9 ficate should not be issued under the circumstances, but that as the act authorized the Secretary of State to “select” and not to “appoint”, none of the rules applied, and the personal appointment might be continued. Your Committee believes that this opinion is essentially in error, and that even if there were a difference in the terms used, the opportunity for an appointing officer to “select” is fully afforded when, as the rules provide, three names are certified, from among which his choice may be made. So far as its effect on the case of Mrs. Galbreath is concerned, however, the opinion governs until set aside by some competent authority. This employee, with others, has been continued from year to year under further appropriations, made in the same language, passed February 24, 1899; February 9, 1900; and March 3, 1901. Your Committee submit that if the practice of securing exemptions by the methods described in this report should not be checked by Congress or by the President, it will be possible for the opponents of the merit system to bring about a gradual nullification of the Civil Service act, without incurring the odium of directly attacking it. It is true that, in the absence of direct legislative prohibition, executive officers might accept the rules and employ the machinery of the Civil Service Com¬ mission in making appointments-—and that they should do so. But the cases referred to seem to show that their action is more apt to be in favor of the law’s opponents whenever the latter make the terms of the appropriation bills literally different, although really synonymous with those of the Civil Service act. The action of the President in this regard—-and upon the cases already submitted to him as herein stated—is awaited with much interest. Respectfully submitted, William Dudley Foulke, Richard Henry Dana, William A. Aiken, Charles Richardson, George McAneny. 112 099016468