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B-140003, AUG. 28, 1959

B-140003 Aug 28, 1959
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THAT THE POSITION IS SUBJECT TO THE CLASSIFICATION ACT OF 1949. AUTHORIZES THE EMPLOYMENT OF A CIVILIAN CHAPLAIN AT THE UNITED STATES MILITARY ACADEMY AT A STATED ANNUAL SALARY AND THE SAME ALLOWANCES FOR QUARTERS AS ARE ALLOWED TO A CAPTAIN. THAT AUTHORITY WAS CONTINUED BY THE ACT OF AUGUST 10. THE CIVIL SERVICE COMMISSION IS AUTHORIZED AND DIRECTED TO DETERMINE FINALLY THE APPLICABILITY OF SECTIONS 201 AND 202 OF THAT ACT TO SPECIFIC POSITIONS. IS APPLICABLE TO THE FULL-TIME POSITION OF CHAPLAIN AT THE UNITED STATES MILITARY ACADEMY BECAUSE THE ACT IS APPLICABLE TO ALL CIVILIAN POSITIONS EXCEPT THOSE EXCEPTED BY SECTION 202 OF THE ACT. OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS. UNLESS THE SAME IS AUTHORIZED BY LAW.

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B-140003, AUG. 28, 1959

TO THE SECRETARY OF THE ARMY:

ON JUNE 23, 1959, THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER, PERSONNEL AND RESERVE FORCES) REQUESTED OUR DECISION AS TO WHETHER THE DEPARTMENT OF THE ARMY MAY CONTINUE TO FURNISH TO THE CHAPLAIN AT THE UNITED STATES MILITARY ACADEMY EITHER QUARTERS IN KIND WITHOUT REDUCTION IN SALARY OR MONETARY ALLOWANCES IN LIEU THEREOF, IN VIEW OF THE FINAL DETERMINATION OF THE CIVIL SERVICE COMMISSION,DATED APRIL 21, 1959, THAT THE POSITION IS SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED.

THE ACT OF FEBRUARY 18, 1896, AS AMENDED, 10 U.S.C. 1137, 1952 ED., AUTHORIZES THE EMPLOYMENT OF A CIVILIAN CHAPLAIN AT THE UNITED STATES MILITARY ACADEMY AT A STATED ANNUAL SALARY AND THE SAME ALLOWANCES FOR QUARTERS AS ARE ALLOWED TO A CAPTAIN. THAT AUTHORITY WAS CONTINUED BY THE ACT OF AUGUST 10, 1956, ENACTING INTO POSITIVE LAW TITLE 10 OF THE U.S.C. 70A STAT. 239, 10 U.S.C. 4227.

UNDER SECTION 203 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C.1083, THE CIVIL SERVICE COMMISSION IS AUTHORIZED AND DIRECTED TO DETERMINE FINALLY THE APPLICABILITY OF SECTIONS 201 AND 202 OF THAT ACT TO SPECIFIC POSITIONS, OFFICERS, AND EMPLOYEES. PURSUANT TO SUCH AUTHORITY, THE COMMISSION HAS DETERMINED THAT THE CLASSIFICATION ACT OF 1949, AS AMENDED, IS APPLICABLE TO THE FULL-TIME POSITION OF CHAPLAIN AT THE UNITED STATES MILITARY ACADEMY BECAUSE THE ACT IS APPLICABLE TO ALL CIVILIAN POSITIONS EXCEPT THOSE EXCEPTED BY SECTION 202 OF THE ACT, 5 U.S.C. 1082, AND THE POSITION OF CHAPLAIN AT THE MILITARY ACADEMY DOES NOT FALL WITHIN ANY OF THE EXCEPTIONS. REGARDING THE EFFECT OF THE REENACTMENT OF THE STATUTORY PAY RATE FOR THE CHAPLAIN IN SECTION 4337 OF TITLE 10 BY THE ACT OF AUGUST 10, 1956, THE COMMISSION STATED IN PERTINENT PART AS FOLLOWS:

"THE ERRONEOUS REENACTMENT OF THE STATUTORY PAY RATE FOR THE CIVILIAN CHAPLAIN IN SECTIONS 4337 AND 9337 OF TITLE 10 BY THE ACT OF AUGUST 10, 1956, CH. 1041, SEC. 1, 70A STAT. 1, DOES NOT ALTER THE APPLICATION OF THE CLASSIFICATION ACT. SECTION 49 (A) OF THE ACT OF AUGUST 10, 1056, 70A STAT. 640, WHICH STATES THE LEGISLATIVE PURPOSE NOT TO MAKE SUBSTANTIVE CHANGES, AND THE SIMILAR STATEMENT IN H.REPT. 970, 84TH CONGRESS, AT PP. 8-10, MAKE IT NECESSARY TO RESORT TO THE ANTECEDENT STATUTES IN ORDER TO CONSTRUE THE RECODIFIED PROVISION (FOURCO GLASS CO. V. TRANSMIRRA PRODUCTS CORP., 353 U.S. 227, 77 S.CT. 791, 1 L.E.2D 790, 113 P.Q. 236).'

SECTIONS 70, 71, AND 75 (A) OF TITLE 5 OF THE U.S.C. PROVIDE, RESPECTIVELY:

"NO OFFICER IN ANY BRANCH OF THE PUBLIC SERVICE, OR ANY OTHER PERSON WHOSE SALARY, PAY, OR EMOLUMENTS ARE FIXED BY LAW OR REGULATIONS, SHALL RECEIVE ANY ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION, IN ANY FORM WHATEVER, FOR THE DISBURSEMENT OF PUBLIC MONEY, OR FOR ANY OTHER SERVICE OR DUTY WHATEVER, UNLESS THE SAME IS AUTHORIZED BY LAW, AND THE APPROPRIATION THEREFORE EXPLICITLY STATES THAT IT IS FOR SUCH ADDITIONAL PAY, EXTRA ALLOWANCE, OR COMPENSATION.

"NO CIVIL OFFICER OF THE GOVERNMENT SHALL RECEIVE ANY COMPENSATION OR PERQUISITES, DIRECTLY OR INDIRECTLY FROM THE TREASURY OR PROPERTY OF THE UNITED STATES BEYOND HIS SALARY OR COMPENSATION ALLOWED BY LAW.

"THE HEAD OF AN EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT, WHERE, IN HIS JUDGMENT, CONDITIONS OF EMPLOYMENT REQUIRE IT, MAY CONTINUE TO FURNISH CIVILIANS EMPLOYED IN THE FIELD SERVICE WITH QUARTERS, HEAT, LIGHT, HOUSEHOLD EQUIPMENT, SUBSISTENCE, AND LAUNDRY SERVICE; AND APPROPRIATIONS OF THE CHARACTER USED BEFORE MARCH 5, 1928, FOR SUCH PURPOSES ARE HEREBY MADE AVAILABLE THEREFOR: PROVIDED, THAT THE REASONABLE VALUE OF SUCH ALLOWANCES SHALL BE DETERMINED AND CONSIDERED AS PART OF THE COMPENSATION IN FIXING THE SALARY RATE OF SUCH CIVILIANS.'

THE PURPOSE AND INTENT OF THE CONGRESS IN ENACTING THE CLASSIFICATION ACT OF 1949 WAS TO PROVIDE A PLAN FOR CLASSIFICATION OF POSITIONS AND FOR RATES OF BASIC COMPENSATION WHEREBY IN DETERMINING THE RATE OF BASIC COMPENSATION WHICH AN OFFICER OR EMPLOYEE SHALL RECEIVE, THE PRINCIPLE OF EQUAL PAY FOR SUBSTANTIALLY EQUAL WORK SHALL BE FOLLOWED, AND VARIATIONS IN RATES OF BASIC COMPENSATION PAID TO DIFFERENT OFFICERS AND EMPLOYEES SHALL BE IN PROPORTION TO SUBSTANTIAL DIFFERENCES IN THE DIFFICULTY, RESPONSIBILITY, AND QUALIFICATION REQUIREMENTS OF THE WORK PERFORMED. THERE IS NO PROVISION IN THAT ACT FOR TAKING INTO CONSIDERATION THE VALUE OF A QUARTERS ALLOWANCE OR THE FURNISHING OF QUARTERS IN KIND, IN FIXING THE GRADE AND SALARY OF A POSITION BROUGHT WITHIN THE PURVIEW OF THE ACT.

WHILE THERE MAY BE SPECIAL STATUTORY PROVISIONS WHICH AUTHORIZE QUARTERS ALLOWANCE OR QUARTERS IN KIND IN ADDITION TO THE SALARY OF A POSITION UNDER THE CLASSIFICATION ACT OF 1949, WE DO NOT REGARD THAT TO BE THE SITUATION IN THIS CASE. HERE, THE CIVIL SERVICE COMMISSION HAS DETERMINED THAT THE CLASSIFICATION ACT OF 1949, AS AMENDED, SUPERSEDED THE COMPENSATION PROVISIONS OF THE ACT OF FEBRUARY 18, 1896, 29 STAT. 8, AS AMENDED. BY REASON OF THAT DETERMINATION WE VIEW THE AUTHORITY IN THAT ACT FOR THE FURNISHING OF A QUARTERS ALLOWANCE OR QUARTERS IN KIND FOR THE POSITION OF CHAPLAIN TO LIKEWISE HAVE BEEN SUPERSEDED, THE COMPENSATION AND QUARTERS PROVISION BEING SO CLOSELY CONNECTED AS TO BE INSEPARABLE.

THEREFORE, WE CONCLUDE THAT THERE IS NO PROVISION OF LAW IN EFFECT TODAY AUTHORIZING THE FURNISHING OF QUARTERS OR QUARTERS ALLOWANCE IN LIEU THEREOF TO THE CHAPLAIN AT THE UNITED STATES MILITARY ACADEMY IN ADDITION TO THE SALARY FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AND THE GRANTING THEREOF WOULD BE IN CONTRAVENTION OF SECTIONS 70, 71, OR 75 (A) OF TITLE 5 OF THE U.S.C. SUPRA. ..END :

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