B-26241, JUNE 30, 1942, 21 COMP. GEN. 1145

B-26241, JUNE 30, 1942, 21 COMP. GEN. 1145

COMPENSATION - WITHIN-GRADE PROMOTIONS - EMPLOYEES ENGAGED ON COOPERATIVE PROJECTS GEOLOGICAL SURVEY EMPLOYEES WHO ARE ENGAGED ON PROJECTS PURSUANT TO COOPERATIVE AGREEMENTS WITH STATES AND MUNICIPALITIES, THE EFFECT OF WHICH AGREEMENTS IS TO RESERVE TO THE STATE OR MUNICIPALITY SUPERVISORY CONTROL AS TO THE FIXING OF SALARIES, ARE NOT "OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES" FIXED BY THE CLASSIFICATION ACT WITHIN THE MEANING OF THE WITHIN-GRADE SALARY ADVANCEMENT STATUTE OF AUGUST 1, 1941, SO AS TO ENTITLE THEM AS A MATTER OF RIGHT TO WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE STATUTE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, JUNE 30, 1942:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 22, 1942, AS FOLLOWS:

YOUR OPINION IS REQUESTED AS TO THE PROPER PROCEDURE TO BE FOLLOWED BY THE GEOLOGICAL SURVEY OF THIS DEPARTMENT IN EFFECTING PAYMENT OF THE WITHIN-GRADE SALARY ADVANCEMENTS AUTHORIZED AND REQUIRED TO BE MADE BY THE ACT OF AUGUST 1, 1941 ( PUBLIC LAW 200, 77TH CONGRESS), IN THE FOLLOWING CIRCUMSTANCES.

BECAUSE THE " THIRD SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1942," CARRYING FUNDS NEEDED FOR PAYMENT OF THE SALARY INCREASES PROVIDED BY THE ACT OF AUGUST 1, 1941, WAS NOT APPROVED UNTIL DECEMBER 17, 1941, ACTUAL PAYMENT OF THE PROMOTIONS, EFFECTIVE OCTOBER 1, 1941, COULD NOT BE MADE BEFORE JANUARY 31, 1942. DURING THE PERIOD OCTOBER 1, 1941, TO JANUARY 31, 1942 A NUMBER OF EMPLOYEES WHOSE PROMOTIONS WERE RETROACTIVE TO OCTOBER 1, 1941 WERE ENGAGED ON VARIOUS CLASSES OF WORK CARRIED ON IN COOPERATION WITH THE STATES AND MUNICIPALITIES, AND IN SOME INSTANCES WERE PAID FOR A PART OR ALL OF THAT PERIOD DIRECTLY BY THE COOPERATING STATES AND MUNICIPALITIES. PAYMENT OF INCREASES IN COMPENSATION IS BEING WITHHELD FROM THOSE EMPLOYEES FOR THE PERIOD OR PERIODS DURING WHICH THEY WERE PAID AT THE EARLIER RATES ON STATE PAY ROLLS, PENDING A RULING THAT PAYMENT OF THE INCREASES FROM FEDERAL FUNDS IS PROPER.

THERE WOULD BE NO QUESTION IN THIS DEPARTMENT AS TO THE PROPRIETY OF PAYING FROM FEDERAL FUNDS THE SALARY INCREASES LEGALLY DUE THE EMPLOYEES INVOLVED EXCEPT FOR THE ACTION TAKEN BY THE AUDIT DIVISION OF THE GENERAL ACCOUNTING OFFICE IN THE AUDIT OF G. F. ALLEN'S VOUCHER NO. 1,864,535, SYMBOL NO. 106-100, PAID JUNE 6, 1939. IN THAT CASE AN EMPLOYEE WHO HAD BEEN REALLOCATED FROM $2,900 TO $3,200 PER ANNUM, EFFECTIVE APRIL 19, 1939, HAD BEEN PAID ON A STATE PAY ROLL FOR THE PERIOD APRIL 16 TO 30, 1939, AT THE RATE OF $2,900, AND SUBSEQUENTLY HAD BEEN PAID THE DIFFERENCE ON A FEDERAL PAY ROLL. THE AUDIT DIVISION RULED THAT, INASMUCH AS THE STATE HAD APPARENTLY AGREED TO PAY THE SALARY OF THE EMPLOYEE FOR THE PERIOD APRIL 16 TO 30, 1939, THERE APPEARED TO BE NO AUTHORITY FOR CHARGING THE INCREASE IN PAY TO FEDERAL FUNDS.

AS THE RULING OF THE AUDIT DIVISION APPEARS TO HAVE BEEN MADE WITHOUT A FULL UNDERSTANDING OF THE FACTS IN THAT CASE, AND IN ORDER THAT THERE MAY BE BEFORE THE GENERAL ACCOUNTING OFFICE INFORMATION THAT WILL BE OF VALUE IN REACHING AN OPINION ON THE QUESTION PRESENTED HEREIN, IT IS DEEMED DESIRABLE TO REVIEW BRIEFLY THE METHOD BY WHICH THE COOPERATIVE WORK OF THE GEOLOGICAL SURVEY IS CONDUCTED IN SO FAR AS FINANCING IS CONCERNED.

EACH COOPERATIVE UNDERTAKING IS BASED UPON AN AGREEMENT BETWEEN THE GEOLOGICAL SURVEY AND THE COOPERATING AGENCY WHEREBY EACH PARTY AGREES TO CONTRIBUTE SPECIFIED SUMS TOWARD THE COST OF THE WORK. THE AGREEMENT PROVIDES THAT EXPENSES OF THE WORK MAY BE PAID BY EITHER PARTY IN CONFORMITY WITH THE LAWS AND REGULATIONS RESPECTIVELY GOVERNING EACH PARTY, BUT THAT IN SO FAR AS MAY BE MUTUALLY AGREEABLE ALL EXPENSES ARE TO BE PAID IN THE FIRST INSTANCE BY THE GEOLOGICAL SURVEY WITH APPROPRIATE REIMBURSEMENT THEREAFTER BY THE COOPERATING AGENCY (AS RECOMMENDED BY THE COMPTROLLER GENERAL IN A LETTER TO THE SECRETARY OF THE INTERIOR DATED SEPTEMBER 15, 1925, A-11196). THE ESSENTIAL FEATURE IS THAT, AFTER FINAL ADJUSTMENTS AND REIMBURSEMENTS HAVE BEEN MADE, THE CONTRIBUTIONS OF THE TWO PARTIES SHALL ACCORD WITH THE AGREEMENT.

AS THESE COOPERATIVE AGREEMENTS DO NOT PROVIDE THAT EITHER PARTY IS TO ASSUME THE ENTIRE COST OF ANY ITEM OR TYPE OF EXPENSE, AND AS PAYMENT BY THE GEOLOGICAL SURVEY WOULD BE IN ACCORDANCE WITH THE PROCEDURE RECOMMENDED BY THE GENERAL ACCOUNTING OFFICE IN 1925, THERE WOULD APPEAR TO BE NO LEGAL PROHIBITION AGAINST THE PAYMENT FROM FEDERAL FUNDS OF SALARY INCREASES TO EMPLOYEES ENGAGED IN SUCH COOPERATIVE UNDERTAKINGS UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, SUPRA. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO A DECISION OF YOUR OFFICE, DATED AUGUST 16, 1932, CONCERNING THE APPLICATION OF THE ECONOMY ACT ( ACT OF JUNE 30, 1932, 47 STAT. 413), WHEREIN IT WAS HELD THAT, INASMUCH AS THE AMOUNTS CONTRIBUTED BY THE STATES TOWARD COOPERATIVE WORK PERFORMED BY THE GEOLOGICAL SURVEY WERE NOT SEGREGATED FOR THE COMPENSATION OF ANY PARTICULAR EMPLOYEE, SUCH COOPERATIVE EMPLOYEES, PAID PARTLY FROM FEDERAL FUNDS AND PARTLY FROM STATE FUNDS, WERE NOT EXCEPTED FROM THE APPLICATION OF THE PROVISIONS OF THAT ACT REQUIRING A REDUCTION IN COMPENSATION TO EFFECT SAVINGS, FOR A CERTAIN PERIOD OF TIME, IN GOVERNMENT EXPENDITURES COMING OUT OF THE TREASURY. 12 COMP. GEN. 250. SEE ALSO 12 COMP. GEN. 312.

THE PRESENT PROBLEM INVOLVES A SIMILAR QUESTION REGARDING PAYMENT OF THE COMPENSATION OF THE SAME TYPE OF FEDERAL COOPERATIVE EMPLOYEES, THE ONLY DIFFERENCE BEING THAT IN THE CASES CITED, A DECREASE IN COMPENSATION, AS THE RESULT OF FEDERAL LEGISLATIVE ACTION, WAS INVOLVED, WHEREAS, IN THE PRESENT CASE, AN INCREASE IN COMPENSATION, AS THE RESULT OF SIMILAR ACTION, IS INVOLVED.

INASMUCH AS SALARY INCREASES FOR A NUMBER OF COOPERATIVE EMPLOYEES ARE BEING WITHHELD PENDING CLARIFICATION OF THIS QUESTION, AN EARLY DECISION IN THE MATTER WILL BE APPRECIATED.

IN A DECISION OF JULY 26, 1936, 16 COMP. GEN. 49, 51, IT WAS HELD:

THE MEMORANDA ACCOMPANYING YOUR LETTER INDICATE THAT MANY POSITIONS ARE STATE CONTROLLED IN WHOLE OR IN PART. OBVIOUSLY THESE MAY NOT BE BROUGHT WITHIN THE TERMS OF THE CLASSIFICATION ACT. IF THE COOPERATIVE AGREEMENT UNDER WHICH THE AGENT IS OPERATING RESERVES TO THE STATE OR OTHER NON- FEDERAL AGENCY OR ORGANIZATION ANY SUPERVISORY CONTROL, EITHER AS TO DUTIES OR AS TO SALARIES, THE GOVERNMENT CANNOT APPLY THE PRINCIPLES OF CLASSIFICATION UNDER THE FEDERAL STATUTE WHICH REQUIRES THE FIXING OF SALARIES ON THE BASIS OF DUTIES PERFORMED. SEE, ALSO, 15 COMP. GEN. 852; COMPARE 17 ID. 362.

IF, AS STATED IN YOUR LETTER, THE COOPERATIVE AGREEMENTS PURSUANT TO WHICH THE INVOLVED EMPLOYEES ARE EMPLOYED AND PAID, PROVIDE "THAT EXPENSES OF THE WORK MAY BE PAID BY EITHER PARTY IN CONFORMITY WITH THE LAWS AND REGULATIONS RESPECTIVELY GOVERNING EACH PARTY" (QUOTING FROM YOUR LETTER), THERE HAS BEEN RESERVED TO THE STATE BY SUCH AGREEMENTS SUPERVISORY CONTROL--- AT LEAST, AS TO THE FIXING OF SALARIES. IT WOULD APPEAR, THEREFORE, THAT THE PROVISIONS OF THE CLASSIFICATION ACT, AS AMENDED, REASONABLY CANNOT BE APPLIED TO THE INVOLVED COOPERATIVE EMPLOYEES AND, ACCORDINGLY, THEY MAY NOT BE REGARDED AS "OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT" (QUOTING FROM SEC. 7 OF THE CLASSIFICATION ACT, AS AMENDED BY SEC. 2 OF THE ACT OF AUGUST 1, 1941, 55 STAT. 613) AND, BY VIRTUE OF THEIR STATUS, THEY ARE NOT ENTITLED TO WITHIN-GRADE SALARY ADVANCEMENTS AS A MATTER OF RIGHT UNDER THAT STATUTE. COMPARE THE PROVISIONS OF SECTION 4 OF THE ACT OF NOVEMBER 26, 1940, 54 STAT. 1214, 1215.

YOU ARE ADVISED, THEREFORE, THAT ON THE BASIS OF THE FACTS PRESENTED, THERE WOULD BE NO AUTHORITY TO PAY TO THE INVOLVED EMPLOYEES RETROACTIVELY EFFECTIVE INCREASES IN COMPENSATION COVERING THE PERIOD OCTOBER 1, 1941, TO JANUARY 31, 1942, UNDER THE TERMS OF THE ACT OF AUGUST 1, 1941, SUPRA.

THERE IS NO PURPOSE OR INTENT IN THIS DECISION TO PASS UPON THE LEGALITY OF INCREASES IN COMPENSATION MADE TO THESE EMPLOYEES, APPARENTLY EFFECTIVE FEBRUARY 1, 1942, WHICH MAY OR MAY NOT HAVE BEEN PROPERLY MADE IN ACCORDANCE WITH THE TERMS OF THE COOPERATIVE AGREEMENTS AND THE APPLICABLE LAWS AND REGULATIONS, INDEPENDENTLY OF THE WITHIN-GRADE SALARY ADVANCEMENT PLAN PROVIDED IN THE ACT OF AUGUST 1, 1941.