A-10432, JULY 29, 1925, 5 COMP. GEN. 73

A-10432: Jul 29, 1925

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WHICH IS THE EQUIVALENT OF THE RATE OF $7. 1925: I HAVE YOUR LETTER OF JULY 9. INVOLVING A FIELD EMPLOYEE OF THE RECLAMATION SERVICE WHOSE COMPENSATION WAS PAID FROM THE RECLAMATION FUND. AS FOLLOWS: WHILE THE CLASSIFICATION ACT IN ALL ITS PHASES WAS NOT EXTENDED TO THE FIELD SERVICE THEREBY. THE AUTHORITY IN THE APPROPRIATION ACT TO ADJUST THE RATES OF PAY OF PERSONNEL IN THE FIELD SERVICES THEREIN APPROPRIATED FOR REQUIRES THAT THE DUTIES AND RESPONSIBILITIES OF A POSITION WILL DETERMINE THE CLASS TO WHICH SUCH POSITION BELONGS AND THE GRADE TO WHICH IT SHALL BE ALLOCATED. THE RULE FOR DETERMINING THE SALARY RATE OF POSITIONS IN THE FIELD SERVICE AS ANNOUNCED IN THE PRECEDING PARAGRAPH HEREOF IS APPLICABLE TO TEMPORARY POSITIONS AS WELL AS PERMANENT POSITIONS. 4 COMP.

A-10432, JULY 29, 1925, 5 COMP. GEN. 73

CLASSIFICATION OF CIVILIAN EMPLOYEES - MAXIMUM PER DIEM RATE FOR FIELD SERVICE FIELD EMPLOYEES OF THE RECLAMATION SERVICE MAY NOT BE PAID COMPENSATION AT A RATE IN EXCESS OF $20.83 1/3 PER DIEM, WHICH IS THE EQUIVALENT OF THE RATE OF $7,500 PER ANNUM, THE MAXIMUM RATE FIXED BY THE CLASSIFICATION ACT OF 1923 FOR POSITIONS IN THE DISTRICT OF COLUMBIA.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JULY 29, 1925:

I HAVE YOUR LETTER OF JULY 9, 1925, REQUESTING DECISION WHETHER COMPENSATION IN EXCESS OF $20.83 1/3 PER DIEM MAY BE PAID TO MESSRS. M. GOODWIN, THOMAS E. CAMPBELL, AND JOHN A. WIDTSOE, EMPLOYED AS--- ADJUSTMENT ADVISERS IN THE BUREAU OF RECLAMATION, AT $25 PER DIEM WHEN ACTUALLY EMPLOYED, TO MAKE SURVEYS OF CERTAIN OF THE RECLAMATION PROJECTS, AS REQUIRED BY SUBSECTION K OF SECTION 4 OF THE ACT OF DECEMBER 5, 1924 (43 STAT. 703). * * *

THE DECISION OF MARCH 12, 1925, 4 COMP. GEN. 755, INVOLVING A FIELD EMPLOYEE OF THE RECLAMATION SERVICE WHOSE COMPENSATION WAS PAID FROM THE RECLAMATION FUND, HELD, WITH REFERENCE TO THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, AS FOLLOWS:

WHILE THE CLASSIFICATION ACT IN ALL ITS PHASES WAS NOT EXTENDED TO THE FIELD SERVICE THEREBY, THE AUTHORITY IN THE APPROPRIATION ACT TO ADJUST THE RATES OF PAY OF PERSONNEL IN THE FIELD SERVICES THEREIN APPROPRIATED FOR REQUIRES THAT THE DUTIES AND RESPONSIBILITIES OF A POSITION WILL DETERMINE THE CLASS TO WHICH SUCH POSITION BELONGS AND THE GRADE TO WHICH IT SHALL BE ALLOCATED. AFTER DETERMINING THE CORRESPONDING GRADE UNDER THE CLASSIFICATION ACT TO WHICH A GIVEN FIELD-SERVICE POSITION SHOULD BE ALLOCATED, THE SALARY OF THE PERSON HOLDING SUCH POSITION SHOULD THEN BE FIXED IN ACCORDANCE WITH THE RULES LAID DOWN IN THE CLASSIFICATION ACT. COMP. GEN. 625, 626. AS TO THE RULE FOR DETERMINING THE MAXIMUM PER DIEM EQUIVALENT OF THE PER ANNUM RATES FIXED UNDER THE CLASSIFICATION ACT, SEE 3 COMP. GEN. 877.

THE RULE FOR DETERMINING THE SALARY RATE OF POSITIONS IN THE FIELD SERVICE AS ANNOUNCED IN THE PRECEDING PARAGRAPH HEREOF IS APPLICABLE TO TEMPORARY POSITIONS AS WELL AS PERMANENT POSITIONS. 4 COMP. GEN. 54; ID. 296. ACCORDINGLY PAYMENT FOR SERVICES RENDERED SUBSEQUENT TO DECEMBER 6, 1924, BY A CONSULTING ENGINEER IN THE RECLAMATION SERVICE AT A PER DIEM RATE IN EXCESS OF THE PER ANNUM RATE FIXED UNDER THE CLASSIFICATION ACT FOR CORRESPONDING SERVICE AT THE SEAT OF GOVERNMENT WOULD NOT BE AUTHORIZED.

PAYMENTS MADE TO FIELD EMPLOYEES OF THE RECLAMATION SERVICE FOR SERVICES RENDERED ON AND PRIOR TO DECEMBER 6, 1924, AT RATES AUTHORIZED UNDER LAWS IN EFFECT PRIOR TO SAID DATE WILL NOT BE DISTURBED.

THE AUTHORITY CONTAINED IN THE ACT OF DECEMBER 6, 1924, SUPRA, COVERED THE FISCAL YEAR 1925. 4 COMP. GEN. 582; ID. 599. THE ACT OF JANUARY 22, 1925, 43 STAT. 764, EXTENDED UNTIL JUNE 30, 1926, THE COVERED THE FISCAL YEAR 1925. 4 COMP. GEN. 582; ID. 599. THE ACT OF SALARY ADJUSTMENTS AUTHORIZED UNDER THE FORMER ACT OF DECEMBER 6, 1924. DECISION OF JUNE 30, 1925, 4 COMP. GEN. 1077, HELD THAT THE DECISIONS OF THIS OFFICE UNDER THE ACT OF DECEMBER 6, 1924, WOULD BE APPLICABLE FOR THE LIFE OF THE ACT OF JANUARY 22, 1925, VIZ, UNTIL JUNE 30, 1926, AND THAT, THEREFORE, THE MAXIMUM RATE OF COMPENSATION PAYABLE FOR A POSITION IN ANY OF THE FIELD SERVICES MENTIONED IN THE ACT OF DECEMBER 6, 1924, WOULD BE AT THE RATE OF $7,500 PER ANNUM, THE PER DIEM EQUIVALENT OF WHICH IS THE RATE OF $20.83 1/3 PER DIEM.

YOU CONTEND IN SUPPORT OF THE VIEW THAT THE MAXIMUM RATES FIXED BY THE CLASSIFICATION ACT SHOULD NOT BE APPLIED TO THE POSITIONS HELD BY THE THREE EMPLOYEES IN QUESTION; FIRST, BECAUSE NO PART OF THEIR COMPENSATION HAS BEEN PAID FROM THE FUNDS APPROPRIATED BY THE ACT OF DECEMBER 6, 1924, BUT FROM A SPECIAL APPROPRIATION MADE BY THE ACT OF JANUARY 20, 1925, 43 STAT. 755; SECOND, THAT THE DUTIES PERFORMED BY THESE THREE EMPLOYEES "ARE MOST DECIDEDLY OF AN UNUSUAL NATURE, FOREIGN TO THE ORDINARY AND USUAL WORK OF THE BUREAU OF RECLAMATION," CITING 4 COMP. GEN. 241, AND SUGGESTING THAT IT IS "DOUBTFUL WHETHER THESE ASSIGNMENTS COULD BE CLASSIFIED AS "POSITIONS," AS THE TERM IS DEFINED IN THE CLASSIFICATION ACT; " THIRD, THAT THE RATE OF $25 PER DIEM WHILE ACTUALLY EMPLOYED WAS AGREED TO PRIOR TO THE ENACTMENT OF THE ACT OF DECEMBER 6, 1924, AND THAT ,TO REDUCE THIS RATE NOW, AFTER A LARGE PART OF THE WORK HAS BEEN COMPLETED, WOULD NOT ONLY WORK A HARDSHIP ON EMPLOYEES AFFECTED BUT WOULD BE A BREACH OF GOOD FAITH ON THE PART OF THE UNITED STATES; " AND FOURTH, THAT THE TERMS OF THE ACT OF DECEMBER 6, 1924, REQUIRE THE COMPENSATION OF FIELD POSITIONS TO BE ADJUSTED TO CORRESPOND TO RATES OF SIMILAR POSITIONS IN THE DISTRICT OF COLUMBIA ONLY WHERE IT IS PRACTICABLE TO DO SO, AND THAT IT HAS BEEN IMPRACTICABLE IN THIS CASE FOR THE REASON THAT THERE ARE NO POSITIONS IN THE DISTRICT OF COLUMBIA THE DUTIES OF WHICH CORRESPOND TO THOSE PERFORMED BY THE EMPLOYEES IN QUESTION.

THE CONTENTION WILL BE CONSIDERED IN THE ORDER ABOVE STATED.

FIRST. THE APPROPRIATION FROM WHICH THE COMPENSATION OF THESE EMPLOYEES IS PAID PROVIDES AS FOLLOWS:

RECLAMATION FUND, SPECIAL FUND: THE FOLLOWING SUM IS APPROPRIATED OUT OF THE SPECIAL FUND IN THE TREASURY OF THE UNITED STATES, CREATED BY THE ACT OF JUNE 17, 1902, AND THEREIN DESIGNATED ,THE RECLAMATION FUND: "

FOR CARRYING INTO EFFECT THE PROVISIONS OF SUBSECTION K OF SECTION 4 OF THE SECOND DEFICIENCY ACT, FISCAL YEAR 1924, APPROVED DECEMBER 5, 1924, TO REMAIN AVAILABLE UNTIL JUNE 30, 1926, $150,000: PROVIDED, THAT THE EXPENDITURES FROM THIS APPROPRIATION FOR EACH RECLAMATION PROJECT SHALL BE CONSIDERED AS SUPPLEMENTAL TO THE APPROPRIATION FOR THAT PROJECT AND SHALL BE ACCOUNTED FOR ACCORDINGLY.

OBVIOUSLY, THE SAME RESTRICTIONS APPLICABLE TO PAYMENTS FROM THE RECLAMATION FUND WOULD BE APPLICABLE TO PAYMENTS FROM THIS ADDITIONAL APPROPRIATION, INCLUDING THE RESTRICTIONS ON THE PAYMENT OF COMPENSATION, FOR THE REASON THAT THE ADDITIONAL APPROPRIATION IS EXPRESSLY MADE A PART OF THE RECLAMATION FUND, TO BE "ACCOUNTED FOR ACCORDINGLY.'

SECOND. AN EXAMINATION OF THE TERMS OF SUBSECTION K OF THE ACT OF DECEMBER 5, 1924, 43 STAT. 703, AUTHORIZING THE WORK PERFORMED BY THESE EMPLOYEES, DISCLOSES THAT THE DUTIES INVOLVED THEREIN ARE NOT SO DIFFERENT FROM THE DUTIES WHICH MIGHT BE REQUIRED OF EMPLOYEES OF THE RECLAMATION SERVICE AS TO EXCLUDE THEM FROM THE REQUIREMENTS OF THE ACT OF DECEMBER 6, 1924.

THIRD. THE FACT THAT THE RATE OF COMPENSATION AT $25 PER DIEM WAS FIXED PRIOR TO DECEMBER 6, 1924, DID NOT JUSTIFY THE PAYMENT OF THAT RATE INDEFINITELY CONTRARY TO LAW. THE REASONS FOR THE ACTION OF THIS OFFICE IN THE DECISION OF APRIL 21, 1925, IN AUTHORIZING PAYMENT AT THE RATE OF $30 PER DIEM OF A CONSULTING ENGINEER OF THE RECLAMATION SERVICE UNTIL FEBRUARY 15, 1925, FOR A PARTICULAR PIECE OF WORK, ARE NOT APPLICABLE TO THE EMPLOYMENT OF THE PERSONS HERE IN QUESTION FOR THE ENTIRE FISCAL YEAR 1926. A REDUCTION IN COMPENSATION OF GOVERNMENT EMPLOYEES REQUIRED BY THE TERMS OF GENERAL LAWS WOULD NOT BE A BREACH OF GOOD FAITH ON THE PART OF THE UNITED STATES.

FOURTH. THE PROPER ALLOCATION OF FIELD POSITIONS TO GRADES CORRESPONDING TO GRADES WHEREIN ARE ALLOCATED SIMILAR POSITIONS IN THE DISTRICT OF COLUMBIA IS A MATTER OF ADMINISTRATION. THE DESCRIPTION OF DUTIES OF TYPICAL TASKS UNDER THE TERMS OF THE CLASSIFICATION ACT IN REGULATIONS PROMULGATED BY THE PERSONNEL CLASSIFICATION BOARD IS MOST COMPREHENSIVE, IN VIEW OF WHICH DIFFICULTY SHOULD NOT BE EXPERIENCED IN ALLOCATING THE POSITIONS IN QUESTION TO APPROPRIATE GRADES WITH THE AID OF THE PERSONNEL CLASSIFICATION BOARD. HOWEVER, REGARDLESS OF THE MATTER OF ALLOCATION, THE MAXIMUM RATE OF COMPENSATION PRESCRIBED BY THE CLASSIFICATION ACT IS AT THE PER ANNUM RATE OF $7,500, OR $20.83 1/3 PER DIEM, UNLESS A HIGHER RATE IS SPECIFICALLY AUTHORIZED BY STATUTE. IT WOULD NOT BE IMPRACTICABLE, AT LEAST, TO FIX THAT RATE AS THE MAXIMUM RATE OF COMPENSATION FOR ALL FIELD POSITIONS NOT OTHERWISE FIXED BY STATUTE.

THE DUTIES OF POSITIONS IN THE FIELD SERVICE IN GENERAL AND THE DUTIES OF POSITIONS IN THE DISTRICT OF COLUMBIA IN GENERAL ARE NOT SO MATERIALLY DIFFERENT AS TO JUSTIFY A HIGHER MAXIMUM RATE OF COMPENSATION FOR FIELD POSITIONS THAN FOR POSITIONS IN THE DISTRICT OF COLUMBIA. BY FIXING A MAXIMUM RATE OF COMPENSATION FOR POSITIONS IN THE DISTRICT OF COLUMBIA, AND PROVIDING FOR ADJUSTMENT OF COMPENSATION OF FIELD POSITIONS TO CORRESPOND THEREWITH, CONGRESS HAS IN EFFECT RESTRICTED THE ADMINISTRATIVE OFFICES IN FIXING THE COMPENSATION OF FIELD POSITIONS TO A RATE NOT IN EXCESS OF THAT FOR THE POSITION IN THE DISTRICT OF COLUMBIA.

YOU ARE ADVISED, THEREFORE, THAT COMPENSATION MAY NOT BE PAID TO MESSRS. F. M. GOODWIN, THOMAS E. CAMPBELL, AND JOHN A. WIDTSOE, IN EXCESS OF $20.83 1/3 PER DIEM.