B-126462, FEB. 14, 1956

B-126462, FEB. 14, 1956

TO THE HONORABLE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO LETTER OF DECEMBER 27, 1955, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, REQUESTING A DECISION AS TO WHETHER THERE MAY BE PAID TO THE GOVERNMENT COMPTROLLER OF THE VIRGIN ISLANDS A 25 PERCENT COST-OF-LIVING ALLOWANCE OUT OF THE APPROPRIATIONS OF YOUR DEPARTMENT.

THE POSITION OF GOVERNMENT COMPTROLLER OF THE VIRGIN ISLANDS WAS CREATED BY SECTION 17 OF THE REVISED ORGANIC ACT OF THE VIRGIN ISLANDS, 68 STAT. 505 (48 U.S.C., SUPP. II, 1599). SECTION 17 OF THAT ACT PROVIDES, IN PART, AS FOLLOWS:

"/A) THE SECRETARY OF THE INTERIOR SHALL APPOINT A GOVERNMENT COMPTROLLER WHO SHALL RECEIVE A SALARY OF NOT TO EXCEED $12,500 PER ANNUM. THE GOVERNMENT COMPTROLLER SHALL HOLD OFFICE FOR A TERM OF TEN YEARS AND UNTIL HIS SUCCESSOR IS APPOINTED AND QUALIFIED UNLESS SOONER REMOVED BY THE SECRETARY OF THE INTERIOR FOR CAUSE. THE GOVERNMENT COMPTROLLER SHALL NOT BE ELIGIBLE FOR REAPPOINTMENT.'

THAT SECTION ALSO PROVIDES THAT THE GOVERNMENT COMPTROLLER SHALL SUBMIT SUCH REPORTS AS MAY BE REQUIRED BY THE GOVERNOR OF THE ISLANDS, THE COMPTROLLER GENERAL OF THE UNITED STATES AND THE SECRETARY OF THE INTERIOR. IT FURTHER PROVIDES THAT THE OFFICE OF THE GOVERNMENT COMPTROLLER SHALL BE UNDER THE GENERAL SUPERVISION OF THE SECRETARY OF THE INTERIOR BUT SHALL NOT BE A PART OF ANY EXECUTIVE DEPARTMENT IN THE GOVERNMENT OF THE VIRGIN ISLANDS. SECTION 20 (C) OF THE ACT PROVIDES THAT THE SALARY OF THE COMPTROLLER SHALL BE PAID BY THE GOVERNMENT OF THE VIRGIN ISLANDS (48 U.S.C., SUPP. II, 1641). WE HAVE BEEN INFORMALLY ADVISED BY YOUR DEPARTMENT THAT THE PRESENT GOVERNMENT COMPTROLLER'S SALARY IS $12,500.

THE ADMINISTRATIVE ASSISTANT SECRETARY SAYS THAT ON THE BASIS OF THE ABOVE SECTIONS OF THE REVISED ORGANIC ACT AND SINCE THE COMPTROLLER IS APPOINTED BY AND SUPERVISED BY A FEDERAL OFFICER AND IS PERFORMING A FEDERAL FUNCTION, YOUR DEPARTMENT IS OF THE OPINION THAT THE GOVERNMENT COMPTROLLER IS A "FEDERAL EMPLOYEE AND AN EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR.' HE ALSO STATES THEREIN THAT THE FACT THAT THE REVISED ORGANIC ACT PROVIDES THAT HIS SALARY SHALL BE PAID BY THE TERRITORIAL GOVERNMENT IS THOUGHT TO BE IRRELEVANT. HE POINTS OUT THAT THIS OFFICE HAS, ON A NUMBER OF OCCASIONS, RULED THAT THE STATUS OF A PERSON AS A FEDERAL OR NON-FEDERAL EMPLOYEE IS NOT AFFECTED BY THE SOURCE OF THE FUNDS FROM WHICH HE IS COMPENSATED. HE FURTHER STATES THAT THIS BEING SO, IT IS BELIEVED THAT YOUR DEPARTMENT MAY BE REQUIRED TO PAY THE COMPTROLLER A COST-OF-LIVING ALLOWANCE UNDER SECTION 207 OF THE ACT OF APRIL 20, 1948, AS AMENDED, EXECUTIVE ORDER NO. 10000, PROMULGATED PURSUANT TO THAT SECTION, AND THE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION IMPLEMENTING THAT EXECUTIVE ORDER.

SECTION 207 OF THE ACT OF APRIL 20, 1948, AS AMENDED, BY SECTION 104 OF THE ACT OF JUNE 30, 1948, 62 STAT. 1205 (5 U.S.C. 118H) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"ANY APPROPRIATIONS OR FUNDS AVAILABLE TO THE EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND WHOLLY OWNED GOVERNMENT CORPORATIONS FOR THE PAYMENT OF SALARIES AND COMPENSATION TO PERSONS STATIONED OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA WHOSE RATES OF BASIC COMPENSATION ARE FIXED BY STATUTE, SHALL BE AVAILABLE FOR THE PAYMENT OF ADDITIONAL COMPENSATION TO SUCH PERSONS, BASED ON LIVING COSTS SUBSTANTIALLY HIGHER THAN IN THE DISTRICT OF COLUMBIA, * * * PROVIDED, THAT SUCH ADDITIONAL COMPENSATION * * * SHALL BE PAID ONLY IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT * * *.

EXECUTIVE ORDER NO. 10000, DATED SEPTEMBER 16, 1948, ISSUED PURSUANT TO THAT SECTION PROVIDES IN SECTION 207 THAT "EVERY EXECUTIVE DEPARTMENT * * * SHALL PAY A TERRITORIAL COST-OF-LIVING ALLOWANCE * * * TO EACH OF ITS EMPLOYEES WHOSE BASIC COMPENSATION IS FIXED BY STATUTE AND WHO IS LOCATED AT THE POST FOR WHICH THAT ALLOWANCE HAS BEEN FIXED.' CIVIL SERVICE COMMISSION REGULATIONS IMPLEMENTING EXECUTIVE ORDER NO. 10000 DESIGNATE THE VIRGIN ISLANDS AS AN AREA IN WHICH 25 PERCENT OF THE RATE OF BASIC COMPENSATION SHALL BE PAID AS A COST-OF LIVING ALLOWANCE.

UNDER SECTION 207 OF THE ACT OF APRIL 20, 1948, AS AMENDED, ONLY "PERSONS WHOSE RATES OF BASIC COMPENSATION ARE FIXED BY STATUTE" MAY BE PAID, OUT OF THE APPROPRIATIONS OF YOUR DEPARTMENT, THE ADDITIONAL COMPENSATION REFERRED TO IN SUCH SECTION. ALTHOUGH SECTION 17 (A) OF THE REVISED ORGANIC ACT OF THE VIRGIN ISLANDS SPECIFIES THE MAXIMUM SALARY THE GOVERNMENT COMPTROLLER MAY RECEIVE, THE SECTION DOES NOT FIX HIS SALARY. IT APPEARS THAT UNDER SECTION 17 (A) THE SALARY OF THIS OFFICIAL MUST BE FIXED ADMINISTRATIVELY. HENCE, THE GOVERNMENT COMPTROLLER OF THE VIRGIN ISLANDS--- EVEN THOUGH IT BE ASSUMED FOR PURPOSE OF THIS DECISION, BUT WITHOUT PASSING UPON THE MATTER, THAT HE IS A FEDERAL OFFICER OR EMPLOYEE- -- DOES NOT COME WITHIN THE PURVIEW OF SECTION 207 OF THE ACT OF APRIL 20, 1948, AS AMENDED, SINCE HIS SALARY IS NOT FIXED BY STATUTE. ACCORDINGLY, WE HOLD THAT THE GOVERNMENT COMPTROLLER OF THE VIRGIN ISLANDS MAY NOT BE PAID A ..END :