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President's authority under this act. Either most of the seven plans must be regarded as simply preliminary steps, or must be absorbed, now or later, in full legislation if we are to effect the efficiencies and economies sought by the Commission” (hearings before the Committee on Expenditures in the Executive Departments, U. S. Senate, 81st Cong., 1st sess., on Message of the President on Initial Program of Reorganization of the Executive Branch of the Government, and Reorganization Plans Nos. 1, 2, 3, 4, 5, 6, and 7 of 1949, June 30, 1949, p. 19).
Addressing himself to Reorganization Plan No. 3 of 1949 (reorganizations in the Post Office Department), Mr. Hoover' stated :
"The President's Plan No. 3 relates to the Post Office. Again it is a preliminary step, going as far as the President's authority under the Reorganization Act of 1949 permits. * * *” (hearings, etc., op. cit., p. 21).
Senator Long subsequently raised the question of whether a reorganization plan has the effect of law and whether it would supersede existing legislation, Mr. Hoover replied that he assumed that legislation on the whole of one of these questions might supersede one of these plans. The following colloquy occurred :
"Senator LONG. That is what I had in mind which caused me to wonder whether it is actually necessary for Congress to act any further if the President sent down the proper reorganization plans.
“Mr. HOOVER. I have been advised by all of our legal friends, that it would be utterly impossible, for instance, to reorganize the Post Office or the armed services or to provide a new accounting or budgeting system and a new personnel system in the Government without special legislation by the Congress. The President's authority, I am advised, does not extend that far” (hearings, etc., op. cit., p. 26).
Replying to a question by Senator Mundt concerning the manner in which one of the Hoover Commission's recommendations could be carried out, Mr. Hoover said:
* * The Commission's recommendations with regard to the Post Office were rather radical, but rather simple. They first proposed an overhead set-up very much as is provided in the President's plan. * * * And then the Commission recommended that senatorial confirmation of all officials except the Postmaster General and the Director of Posts should be abolished. That the civil service system should be adjusted to that Department to make it a system of open examinations on merit with proper regard to local selection of employees. That there be an entire revolution in the whole business methods of the Post Office. That there be a requirement that the Postmaster General should fix rates on subsidiary mail services * * * so that they would be self-supporting. And finally, that the Postmaster General should report the actual amount of subsidiaries for air and overseas mail, and that Congress should authorize the amounts in order to bring into the open the drains on the postal service. Those were four additonal items in the Post Office reorganization beyond that which may be accomplished under this Presidential authority. The important part of Post Office reoganization must be accomplished by special legislation” (hearings, etc., pp. 30, 31). [Emphasis supplied.] The Reorganization Act of 1949
A detailed analysis of the provisions of the Reorganization Act of 1949, as they relate to Reorganization Plans 2, 3, and 4 of 1952, is set forth in Staff Memorandum No. 82–2–28. However, in view of the fact that the President, the Director of the Bureau of the Budget, the Postmaster General and the Chairman of the Commission on Organization of the Executive Branch of the Government were all of the opinion that the transfer of the appointment of postmasters from the President, with Senate confirmation, to the Postmaster General required substantive legislation and could not be accomplished by the President under the Reorganization Act of 1949, some discussion appears to be in order.
The Reorganization Act of 1949 authorizes the President to submit reorganization plans to the Congress in order to accomplish certain stated purposes. Section 2 of the act sets forth these purposes; section 3 lists the types of reorganizations which are authorized; section 4 specifies certain provisions which a reorganization plan, authorized under section 3, may or must contain; and section 5 contains limitations with respect to the reorganizations which may be accomplished.
Section 3 of the Reorganization Act of 1949 authorizes the President to submit only those reorganization plans which would
1. Transfer all or any part of any agency or of all or any part of its functions to the jurisdiction and control of any other agency; or
2. Abolish all or any part of the functions of any agency;
3. Consolidate or coordinate the whole or any part of any agency, or all or any of its functions, with all or any part of any other agency, or its functions; or
4. Consolidate or coordinate any part of any agency or of its functions with any other part of the same agency or any of its functions; or
5. Authorize any officer to delegate any of his functions; or
6. Abolish all or any part of any agency which agency or part does not have, or upon the taking effect of any reorganization plan, will not have any
functions. An examination of the provisions of this section, in the light of the history of this and prior reorganization acts, reveals that the reorganizations contemplated are those which would involve (1) transfers of functions and/or agencies within the executive branch of the Government; (2) transfers or consolidations of functions and/or offices, bureaus, divisions, and other subdivisions of the same agency; and (3) abolition of functions and/or agencies. In prior instances of reorganization, the abolitions, transfers, and consolidations proposed were actually effected and resulted in a change in the structure, organization, and functions of agencies and individuals.
In contrast, although Reorganization Plan No. 2 of 1952 provides for the abolition of the existing office of postmaster at post offices of the first three classes, and the establishment of a new office entitled “Postmaster," it does not appear that any reorganization, transfer, or abolition of either functions or agencies will actually occur. Furthermore, the abolition of agencies, provided for in subsection (6) of section 3 of the act, is authorized only in the case of agencies whose functions have been abolished or transferred, leaving them with no functions to perform after the effective date of a reorganization plan. It is, therefore, difficult to find, in the types of reorganizations provided for in section 3 of the act, any authority for action which does nothing but change the method of appointment.
In this connection, the American Law Section of the Legislative Reference Service of the Library of Congress was requested by the committee to make an examination of all of the reorganization plans submitted by the President since the Reorganization Act of 1932, in order to determine whether any of these had proposed only the action contemplated by plan No. 2 of 1952. In a letter, dated April 24, 1952, addressed to this committee, Mr. Hugh P. Price wrote:
"We have examined all reorganization plans submitted under the acts of 1932, 1933, 1939, 1945, and 1949 without finding any instance in which the entire plan comprised merely a change in the method of appointment of personnel from appointment by the President with Senate confirmation to appointment by the head of a department or agency.”
Apparently recognizing that there was considerable doubt as to whether the action proposed was, in fact, authorized by the provisions of the Reorganization Act of 1949, the draftsmen of plan No. 2 of 1952 provided for the abolishment of existing offices and the establishment of what is characterized as “new offices," but which, to all intents and purposes, is actually the establishment of the same office. This raises the question of whether the proposal for a change in the method of appointing postmasters was not merely couched in the language of a reorganization in order to bring it under the provisions of the Reorganization Act of 1949.
This view seems to be amply substantiated by (1) the fact that the actual reorganization of the Post Office Department was accomplished by Reorganization Plan No. 3 of 1949; (2) the President, in his message transmitting plan No. 3 of 1949, stated that the plan “carries into effect those of the recommendations of the Commission on Organization of the executive branch of the Government respecting the Post Office Department which can be accomplished under the provisions of the Reorganization Act; (3) the testimony and statements of the Postmaster General and former President Herbert Hoover that a change in the method of appointment of postmasters required substantive legislation and could not be accomplished by reorganization plan; and (4) the Bureau of the Budget, in its analysis of the Hoover Commission recommendations, found that the purposes of plan No. 2 of 1952 would necessitate direct legislative action by the Congress.
LEGISLATIVE PROPOSALS DESIGNĚD TO CARRY OUT THE PURPOSES OF
REORGANIZATION PLAN NO. 2 OF 1952
During the Eighty-first Congress, a number of bills were introduced which would have transferred the appointment of all postmasters from the President, with Senate confirmation, to the Postmaster General, under civil service.
S. 2062 (H. R. 5177) was prepared by the legal staff of the Hoover Commission. It was designed to implement the Commission's recommendations contained in its report on the Post Office and included a section which would have carried out the purposes of Reorganization Plan No. 2 of 1952.
S. 2213 (H. R. 5643) was prepared by the Post Office Department and sub. mitted as an administratinn measure. It provided only for the appointment of postmasters by the Postmaster General and the elimination of Presidential appointment and Senate confirmation.
These bills were referred to the Senate Committee on Post Office and Civil Service which appointed a subcommittee to study and report on them. After extensive hearings, the subcommittee recommended that action on S. 2062 be indefinitely postponed, but that favorable action be taken on S. 2213. At an executive session of the full committee, S. 2213 was indefinitely postponed by a vote of eight to four. Eighty-second Congress
Six bills are presently pending in the Senate and the House of Representatives, any one of which, if enacted, would carry out the purposes of Reorganization Plan No. 2 of 1952.
S. 1148 (H. R. 3312, and H. R. 3691), drafted by the Citizens Committee for the Hoover Report contains, in addition, provisions which would implement certain of the Hoover Commission's recommendations relative to the post office, upon which the Congress has not yet acted. S. 1160 is substantially the same as S. 2213 of the Eighty-first Congress, and S. 2970 would provide for the appointment of postmasters, United States attorneys, United States marshals, and customs collectors by the heads of their respective departments, and the elimination of Presidential appointment with Senate confirmation. H. R. 5905 is similar to S. 1160. S. 1148, S. 1160, and the companion House bills were referred to the Committees on Post Office and Civil Service of the Senate and the House of Representatives; S. 2970 was referred to the Committee on Finance. No action has been taken on any of these measures to date.
PRESENT METHOD OF APPOINTING POSTMASTERS
Since 1917, first by Executive order, and since 1938, by the act of June 25, 1938 (Public Law 720, 75th Cong.), all postmasters are appointed in the civil service, after competitive examinations, pursuant to rules and regulations prescribed by the Civil Service Commission. Prior to 1938, postmasters of the first three classes served for terms of 4 years. Since 1938, they have had status and tenure and served for indefinite terms, in the same manner as all other civil-service employees. Postmasters of the first three classes are appointed by the President, by and with the advice and consent of the Senate. Postmasters of the fourth class have been appointed by the Postmaster General for indefinite terms since 1872. Procedures followed in appointment of postmasters of the first three classes
When the Postmaster General has determined that a vacancy exists, he may fill the position by (a) promotion of a classified employee within the postal service; or (b) open competitive examination. In either case, the applicants must meet residence requirements and the experience, training, and suitability standards established by the Civil Service Commission. According to information supplied by the Civil Service Commission, the following procedures are involved: A. Announcement, examination, eligibility determination, and rating · 1. The Postmaster General notifies the Civil Service Commission that a vacancy exists.
2. The Civil Service Commission issues an announcement of an examination which is posted in the post office where the vacancy exists, and is also publicized in local papers.
3. First-class postmaster applicants are given an unassembled examination and rated upon education, business or professional experience, qualifications, and suitabilityEducation is given a weight of 20; experience, qualifications, and suitability are given a combined weight of 80. No written examinations given because the work of first-class postmasters is largely administrative and supervisory, rather than clerical. The information furnished by applicants is carefully checked and verified by personal investigation performed by a Civil Service Commission investigator, who interviews a cross section of the patrons of the post office concerned, including some of the references of each applicant. Various persons in the local area are queried relative to their opinion of the applicants.
4. When the investigator, who is merely a fact-finder, completes his investigation, he files a report with the central offices of the Commission at Washington, where trained examiners review the information and determine whether the applicants are eligible, and the rating to be assigned.
5. Applicants for the position of postmasters of the second and third class are rated upon both a written examination, which is assigned a weight of 50 ; and education, business or professional experience, general qualifications and suitability, which is assigned a weight of 50. The written examination is designed to test the applicant's ability to understand terminology and interpret instructions, and his judgment and ability to deal with problems such as those which normally confront a postmaster. The applicant is graded upon his written examination solely upon the basis of the work which he did in the examination room, In assigning ratings on the subject of education, experience, general qualifications and suitability, consideration is given to the statements of experience on the application and to other evidence secured through investigation.
6. Information relative to suitability, etc., of the applicant is obtained by sending confidential inquiry forms to a representative cross section of the patrons of the post office for which the examination is held, including references given by each applicant. These inquiries request information relative to general qualifications, suitability and residence. When replies from these confidential inquiries reveal doubts as to the suitability or qualifications of an applicant, a personal investigation is made.
7. When all of the information is assembled, it is rated by examiners in the central office of the Commission, as in the case of first-class postmasters. However, second-class applicants must meet the minimum requirements with respect to experience and suitability before any credit can be given for the rating made in the written test, or for veteran preference. In order to meet the minimum requirements, an applicant must have demonstrated his ability to conduct business .affairs to an extent comparable with those of the postmaster of the post office for which he is a candidate.
8. In determining the rating for postmasters of all classes, due credit is allowed under the provisions of the Veterans Preference Act of 1944, as amended. B. Appointment
9. Upon completion of the examiners' review, the names of the three competitors at the top of the list of eligibles are certified by the Civil Service Commission to the Postmaster General.
10. The Postmaster General submits the names of the three top eligibles to the Congressman in whose district the vacancy exists, if the Congressman is of the same political party as the administration (unless the vacancy exists at the home post office of a Senator, in which event the list is submitted to him), for a recommendation with respect to one of the top three. If the Congressman is of a different political party than the administration, the list is submitted to a Senator for recommendation. If neither Congressmen nor Senators are from the same political party as the administration, the names go to the national committee of the political party of the administration, which contacts local individuals for recommendations. The Congressmen or Senators to whom the list of eligibles is submitted are referred to as "advisers".
11. The Congressman indicates his choice to the Postmaster General, who need not follow the recommendation, but usually does.
12. The Postmaster General then forwards the name of the person chosen to the President who transmits the nomination to the Senate for confirmation or rejection, C. Fourth-class postmasters
Although fourth-class postmasters are not affected by the plan, it should be noted that the procedures by which they are appointed are similar to those used
stmasters of the first three day, except that they
*1 *77 ogiro tu ante firmation. In fronttas e bere the Cintuantity ** 1,70%) ayar or mure. postmasters are appointed on the basis
Ciril Karote (osmixaim vertituat after written peamination and perwantmi intai antion to rimfidential inquiry form* *h as are used in connection with the appuntmant of krund, and third-clay p inaste in offices wbere the vithe is la than $1,70) a year, no written text is required. Perwiwal investigation is made by a poæt office in pector who reports his findings ventwarning the applicant'* muitability, qualifications, etc., to the Postmaster (Sewaai, When the name of the three tip eligibles are certified to the Postmaster (ateral try the ('ivil Service Commision the list is submitted to the apprenprint congressional advisors for recommendation as in the case of postmagtart of the first three classes.
NITE, 08 11 PRACTICE AND LEGALITY OY KUKMISSION OF LIST OF TOP THREE ELIGIBLES
TO MEMBER OF (ONGRESS FOR RECOMMENDATIONS
It appears that the practice of consulting the congressional delegation with respot to Vacancies in their districts began even before the establishment of the Government of the United States. Prof. Leonard D. White notes that “* * * from an early date it was the custom in the Post Office * * * to defer to the representatives of the people." In this connection, Professor White cites an entry in the diary of Richard Smith, a member of the Continental Congress in 1777 s followN; " 'Dr. Franklin, the Postmaster General desired the Delegates of New Jerney to nominate Deputy Postmasters (presently known as postmamters) throughout the colony which we did accordingly.'” (White, The Iederndimts, New York, 1948, pp. 83-84.)
The practice of conmulting congressional advisers continued after the establishment of the new Government, and Professor White observes that "The Postminstern Gheneral from 1789 to 1801 tried conscientiously to find proper persons (for DontMantepomitions). They sought advice from Members of Congress, from lending merchanth and local residents, from retiring postmasters and others
!!! (White, The Federalists, op. cit., p. 179). Further evidence of this practice is found in a letter written February 11, 17112. hy Timothy llokering, Postmaster General during part of George Washington's administration, advising two appointees of their appointment. He wrote: "At the request and on the recommendation of Mr. Bourne, your Representative in (longrenn, I have appointed you Postmaster * * *” (Letter Book of the Lonater (leneral, Book A, p. 406).
Describing the period between 1801 and 1829, Professor White states that “The Poantor General consulted various sources of information, and made his own inquiries of persons residing in localities where a vacancy had to be supplied. Roprenentatives and Senators were regular advisers. * * *” (White, The JolleinonNiin, New York, 1951, p. 323). Irmation of the practice
Athough the legality of this practice has never been passed upon by the quin, it has found by the Attorney General (Hon. Frank Murphy) of the tuited States to be expressly authorized by statute, in an opinion issued in 1939 in connection with the appointment of a fourth-class postmaster (39 Op. Atty. (pn. NTN). It appears that the postmaster in question was one of the top three #minunin who had been certified by the ('ivil Service Commission to the PostMantor General as eligible for appointment to a vacancy in Ohio. Following the tixual praction, the lastmaster General submitted the list to the Congressman in when istrict the vacancy existed, requesting him "to submit any representaflens he t to make reparding the character or residence of the eligibles." The ( W
a n Immended the appointment of one of the three and the aniel Goneral the appointed the individual recommended After mutigation, the chilil Serrick Commission found that the Congressman,
his men mission, and even morirated hr political considerations in recommening the intern The (lammission then retified the Mastmaster General
the intent was in violation of the Civil Service Act and its regulations which our intuents to the made soleil nxan the basis of merit and Without into smalara wal kunsiderations and that the app m ntment should be
e t the latester General thereudnarequested a ruling from the