B-81954, DECEMBER 23, 1948, 28 COMP. GEN. 377

B-81954, DECEMBER 23, 1948, 28 COMP. GEN. 377

COMPENSATION - DIFFERENTIAL FOR POSITIONS OUTSIDE CONTINENTAL UNITED STATES ALTHOUGH SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, AND SECTION 301 OF EXECUTIVE ORDER NO. 10000, ISSUED PURSUANT THERETO, CONTEMPLATE, DURING THE TRANSITIONAL PERIOD PRIOR TO THE ISSUANCE OF DEFINITIVE REGULATIONS, THE PAYMENT OF "ADDITIONAL COMPENSATION" ON A PERSONAL BASIS FOR POSITIONS OUTSIDE CONTINENTAL UNITED STATES, RETROACTIVE CORRECTIVE ACTION NEED NOT BE TAKEN AS TO OTHERWISE PROPER PAYMENTS MADE FOR SERVICES RENDERED PRIOR TO JANUARY 1, 1949, WHERE SUCH DIFFERENTIAL PAYMENTS WERE INCLUDED IN THE BASE UPON WHICH HAVE BEEN COMPUTED OVERTIME COMPENSATION, HOLIDAY PAY, NIGHT PAY DIFFERENTIAL, AND RETIREMENT DEDUCTIONS. IN COMPUTING THE LUMP-SUM PAYMENT FOR LEAVE TO BE PAID AN EMPLOYEE UPON SEPARATION FROM THE SERVICE UNDER SECTION 1 OF THE ACT OF DECEMBER 21, 1944, OR TO THE BENEFICIARY OR ESTATE OF A DECEASED EMPLOYEE UNDER SECTION 2 OF THAT ACT, IN AN AMOUNT EQUAL TO THE COMPENSATION THE EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF HIS CURRENT AND ACCRUED ANNUAL LEAVE, THERE SHOULD BE INCLUDED, IN PROPER CASES, THE "ADDITIONAL COMPENSATION" AUTHORIZED TO BE PAID PURSUANT TO SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, FOR POSITION OUTSIDE CONTINENTAL UNITED STATES.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, DECEMBER 23, 1948:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF NOVEMBER 30, 1948, IN WHICH YOU PROPOUND CERTAIN QUESTIONS UPON SALARY DIFFERENTIAL ARISING FROM THE CONCLUDING PARAGRAPH OF OFFICE DECISION DATED OCTOBER 27, 1948, B-80638, 28 COMP. GEN. 266, WHICH PARAGRAPH READS AS FOLLOWS:

HOWEVER, IT SHOULD BE NOTED THAT UNDER SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, SUPRA, AND THE REGULATIONS ISSUED THEREUNDER, SUCH ADDITIONAL COMPENSATION NO LONGER MAY BE CONSIDERED AS COMPENSATION FIXED FOR A POSITION AND PAYABLE TO THE OCCUPANT OF A POSITION AS PART OF THE SALARY FOR THAT POSITION, BUT NOW IS ADDITIONAL COMPENSATION PAYABLE UPON A PERSONAL BASIS, AND BY SECTION 208 (B) OF EXECUTIVE ORDER NO. 10000 (CONTRARY TO THE PREVIOUSLY RECOGNIZED PRACTICE) IT MAY NOT BE INCLUDED IN THE BASE USED IN COMPUTING OVERTIME, HOLIDAY PAY, AND RETIREMENT DEDUCTIONS.

IT IS STATED THAT, UNDER THE REGULATIONS OF THE COMMERCE DEPARTMENT, THE CONSTITUENT BUREAUS AND OFFICES HAVE BEEN PAYING EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES A DIFFERENTIAL OF NOT TO EXCEED 25 PERCENTUM IN ADDITION TO THE RATES OF PAY PROVIDED FOR COMPARABLE POSITIONS IN THE UNITED STATES, AND THAT SAID DIFFERENTIAL HAS BEEN CONSIDERED AS PART OF THE REGULAR COMPENSATION FOR THE POSITION AND HAS BEEN INCLUDED IN THE BASE UPON WHICH HAVE BEEN COMPUTED OVERTIME COMPENSATION, HOLIDAY PAY, AND RETIREMENT DEDUCTIONS, AS WELL AS PAYMENTS FOR PERIODS OF APPROVED ANNUAL AND SICK LEAVE, AND TERMINAL LEAVE UNDER THE ACT OF DECEMBER 21, 1944, 58 STAT. 845. ALSO, IT IS STATED THAT--- BECAUSE OF THE WORDING IN SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED BY SECTION 104 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT, 1949, 62 STAT. 1205, AND SECTION 301 OF EXECUTIVE ORDER NO. 10000 DATED SEPTEMBER 16, 1948--- THE ABOVE PRACTICES HAVE BEEN CONTINUED IN THE CONSTITUENT OFFICES AND BUREAUS OF THE COMMERCE DEPARTMENT UP TO THE PRESENT TIME. IT FURTHER IS STATED THAT IT APPEARS FROM THE PART OF THE DECISION OF OCTOBER 27, 1948, QUOTED ABOVE, THAT THE DEPARTMENT MAY HAVE PROCEEDED IN ERROR AND THAT IT WILL BE NECESSARY TO MAKE ADJUSTMENTS IN THE PAYMENTS THUS ERRONEOUSLY MADE. THEREFORE, YOU REQUEST TO BE ADVISED WHETHER SUCH INTERPRETATION OF THE DECISION IS CORRECT AND, IF SO, THAT THE DATE BE SPECIFIED UPON WHICH THE DEPARTMENT SHOULD HAVE BEGUN CONSIDERING THE DIFFERENTIAL PAYMENTS AS ADDITIONAL COMPENSATION PAYABLE UPON A PERSONAL BASIS RATHER THAN PAYABLE TO THE OCCUPANT OF A POSITION AS PART OF THE SALARY FOR THAT POSITION. ALSO, YOU REQUEST TO BE ADVISED WHETHER THE "NEW TYPE OF DIFFERENTIAL" SHOULD BE CONSIDERED AS PART OF THE BASE IN COMPUTING TERMINAL LEAVE PAYMENTS AND AMOUNTS DUE THE BENEFICIARIES OR ESTATES OF DECEASED EMPLOYEES UNDER THE ACT OF DECEMBER 21, 1944, 58 STAT. 845.

IT SEEMS CLEAR THAT SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED BY SECTION 104 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT, 1949, 62 STAT. 1205, QUOTED IN THE DECISION OF OCTOBER 27, 1948, AUTHORIZES THE PAYMENT OF "ADDITIONAL COMPENSATION" AND NOT AN INCREASE IN THE BASIC RATE OF COMPENSATION. SEE SECTION 208 (B) OF EXECUTIVE ORDER NO. 10000, SUPRA. ALSO, IT IS CLEAR THAT THE EFFECTIVE DATE OF SAID SECTION 207, AS SPECIFIED IN THE LAST PROVISO THEREOF, IS "SIXTY DAYS AFTER THE DATE OF APPROVAL OF THIS ACT, OR ON SUCH EARLIER DATE AS MAY BE SPECIFIED IN REGULATIONS ISSUED BY THE PRESIDENT.' SINCE THE REGULATIONS PRESCRIBED BY THE PRESIDENT IN EXECUTIVE ORDER NO. 10000 DATED SEPTEMBER 16, 1948, DO NOT PRESCRIBE AN EARLIER EFFECTIVE DATE IT MUST BE CONCLUDED THAT SAID SECTION 207 BECAME EFFECTIVE 60 DAYS AFTER THE DATE OF THE APPROVAL OF THE ACT, OR AUGUST 29, 1948.

SECTION 301 OF EXECUTIVE ORDER NO. 10000 PROVIDES AS FOLLOWS:

TEMPORARY REGULATIONS. DURING THE PERIOD COMMENCING WITH THE DATE OF THIS ORDER OR THE EFFECTIVE DATE OF SECTION 207 OF THE ACT (AS DEFINED IN SECTION 101 HEREOF), WHICHEVER SHALL OCCUR EARLIER, AND ENDING ON A DATE OR DATES FIXED BY THE SECRETARY OF STATE AND THE CIVIL SERVICE COMMISSION, RESPECTIVELY, AS THE EFFECTIVE DATES OF THE DESIGNATION OF PLACES AND OF THE FIXING OF ADDITIONAL RATES OF COMPENSATION, UNDER PARTS I AND II OF THIS ORDER, BUT IN NO EVENT LATER THAN JANUARY 1, 1949, AND NOTWITHSTANDING THE PROVISIONS OF PARTS I AND II OF THIS ORDER, THE PAYMENT OF SALARIES AND COMPENSATION (INCLUDING THE PAYMENT OF ADDITIONAL COMPENSATION) OF PERSONS SUBJECT TO THE PROVISIONS OF SAID SECTION 207 SHALL BE GOVERNED BY THE REGULATIONS AND PRACTICES IN EFFECT IN THE RESPECTIVE EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND WHOLLY OWNED GOVERNMENT CORPORATIONS IMMEDIATELY PRIOR TO APRIL 20, 1948) EXECUTIVE ORDER NO. 9962 OF MAY 24, 1948 IS HEREBY REVOKED.

IN VIEW OF THE SPECIFIC WORDING AS TO THE EFFECTIVE DATE OF SECTION 207 AS CONTAINED IN THE LAST PROVISION THEREOF, THERE IS CONSIDERABLE BASIS FOR THE VIEW THAT THE RATES ADOPTED FOR THE PERIOD COVERED BY SECTION 301 OF THE EXECUTIVE ORDER CONSTITUTE "ADDITIONAL COMPENSATION," AND ARE NOT A PART OF BASE PAY FOR THE PURPOSE OF COMPUTING OVERTIME, HOLIDAY PAY AND RETIREMENT DEDUCTIONS. HOWEVER, IT IS UNDERSTOOD THAT NOT ONLY THE DEPARTMENT OF COMMERCE BUT MOST, IF NOT ALL, OF THE OTHER OFFICES OF THE GOVERNMENT, AFTER READING SECTION 301 OF THE EXECUTIVE ORDER, SUPRA, CONCLUDED THAT THE "REGULATIONS AND PRACTICES IN EFFECT IN THE RESPECTIVE EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND WHOLLY OWNED GOVERNMENT CORPORATIONS IMMEDIATELY PRIOR TO APRIL 20, 1948," WERE AUTHORIZED TO BE CONTINUED IN ALL OF THEIR ASPECTS DURING THE PERIOD COVERED BY SECTION 301, AND THAT THE GENERAL PRACTICE DURING SUCH PERIOD HAS BEEN TO COMPUTE THE PAYMENT OF OVERTIME COMPENSATION, NIGHT PAY DIFFERENTIAL, AND HOLIDAY COMPENSATION UNDER THE PROVISIONS OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945, 59 STAT. 295, 296, 298, AS AMENDED BY THE FEDERAL EMPLOYEES' PAY ACT OF 1946, 60 STAT. 216, 217, 218, ON THE SALARY INCLUDING THE DIFFERENTIAL FOR SERVICE OUTSIDE THE UNITED STATES INSTEAD OF ON THE BASE PAY. HENCE, TO REQUIRE THAT RETROACTIVE CORRECTIVE ACTION BE TAKEN AT THIS LATE DATE WOULD RESULT IN CONSIDERABLE EXPENSE TO THE GOVERNMENT IN MAKING ANY NECESSARY ADJUSTMENTS. FURTHERMORE, IT IS UNDERSTOOD THAT THE SECRETARY OF STATE AND THE CIVIL SERVICE COMMISSION ARE PREPARED TO DEFINE ON OR BEFORE JANUARY 1, 1949, THE PLACES AT WHICH ADDITIONAL COMPENSATION WILL BE PAID AND THE PROPER RATES FOR PAYMENT AT EACH OF SUCH PLACES. FOR THE ABOVE REASONS, AND HAVING IN MIND THAT THE PROCEDURE PRESCRIBED IN SECTION 301 OF THE EXECUTIVE ORDER IS A TRANSITIONAL OR INTERIM ARRANGEMENT, THIS OFFICE WILL NOT REQUIRE ANY CORRECTIVE ACTION TO BE TAKEN WITH RESPECT TO OTHERWISE PROPER PAYMENTS MADE FOR SERVICES RENDERED PRIOR TO JANUARY 1, 1949.

THE LUMP-SUM PAYMENT TO AN EMPLOYEE FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF DECEMBER 21, 1944, 58 STAT. 845, OR TO THE BENEFICIARY OR ESTATE OF A DECEASED EMPLOYEE UNDER THE PROVISIONS OF SECTION 2 OF THAT ACT, 58 STAT. 845, IS REQUIRED BY THE SPECIFIC TERMS OF EACH OF THESE SECTIONS TO EQUAL "THE COMPENSATION THAT SUCH EMPLOYEE WOULD HAVE RECEIVED HAD HE REMAINED IN THE SERVICE UNTIL THE EXPIRATION OF THE PERIOD OF SUCH ANNUAL OR VACATION LEAVE.' PART OF THE ACT OF DECEMBER 21, 1944, SUPRA, PRESCRIBES THAT THE LUMP-SUM PAYMENT SHALL BE COMPUTED UPON THE BASIC COMPENSATION ONLY; AND IT HAS BEEN HELD IN A PROPER CASE THAT THE LUMP-SUM PAYMENT SHOULD INCLUDE COMPENSATION IN ADDITION TO THE BASIC PAY. 27 COMP. GEN. 92. IT APPEARS REASONABLE TO CONCLUDE, THEREFORE, THAT IN PROPER CASES THE "ADDITIONAL COMPENSATION" AUTHORIZED TO BE PAID PURSUANT TO AUTHORITY CONTAINED IN SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, SUPRA, PROPERLY IS FOR CONSIDERATION IN COMPUTING THE LUMP-SUM PAYMENTS IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 1 AND 2 OF THE ACT OF DECEMBER 21, 1944, SUPRA. IN THAT CONNECTION, SEE 27 COMP. GEN. 341.