A-10732, AUGUST 26, 1925, 5 COMP. GEN. 148

A-10732: Aug 26, 1925

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IS NOT SUBJECT TO ALLOCATION UNDER THE CLASSIFICATION ACT OF 1923. UNLESS AND UNTIL A HIGHER RATE OF COMPENSATION IS FIXED BY EXECUTIVE ORDER OR BY STATUTE. 1925: I HAVE YOUR LETTER OF AUGUST 4. AS FOLLOWS: IT IS RESPECTFULLY REQUESTED THAT I BE ADVISED WHETHER I AM AUTHORIZED TO PAY THE ATTACHED VOUCHER IN FAVOR OF DANIEL C. THE POSITION OF STUDENT ASSISTANT IN THE BUREAU OF STANDARDS IS EXCEPTED FROM ALLOCATION UNDER THE CLASSIFICATION ACT OF 1923. PROVIDING: THAT THE COMPENSATION SCHEDULES * * * SHALL NOT APPLY TO EMPLOYEES IN POSITIONS THE DUTIES OF WHICH ARE TO * * * PERFORM WORK WHICH IS SUBORDINATE. SUBDIVISION XI OF SCHEDULE A IS HEADED "DEPARTMENT OF COMMERCE.'. IT IS IN FULL FORCE AND EFFECT AT THE PRESENT TIME.

A-10732, AUGUST 26, 1925, 5 COMP. GEN. 148

COMPENSATION - STUDENT ASSISTANTS OF THE BUREAU OF STANDARDS THE POSITION OF STUDENT ASSISTANT IN THE BUREAU OF STANDARDS, DEPARTMENT OF COMMERCE, IS NOT SUBJECT TO ALLOCATION UNDER THE CLASSIFICATION ACT OF 1923. UNLESS AND UNTIL A HIGHER RATE OF COMPENSATION IS FIXED BY EXECUTIVE ORDER OR BY STATUTE, STUDENT ASSISTANTS IN THE BUREAU OF STANDARDS, DEPARTMENT OF COMMERCE, MAY NOT BE PAID COMPENSATION IN EXCESS OF THE RATE OF $300 PER ANNUM FIXED BY EXECUTIVE ORDER OF JUNE 12, 1917, STILL IN FORCE.

COMPTROLLER GENERAL MCCARL TO C. E. MOLSTER, DISBURSING CLERK, DEPARTMENT OF COMMERCE, AUGUST 26, 1925:

I HAVE YOUR LETTER OF AUGUST 4, 1925, AS FOLLOWS:

IT IS RESPECTFULLY REQUESTED THAT I BE ADVISED WHETHER I AM AUTHORIZED TO PAY THE ATTACHED VOUCHER IN FAVOR OF DANIEL C. VAUGHAN FOR $40.00, COVERING SALARY FOR SERVICES RENDERED THE BUREAU OF STANDARDS, THIS DEPARTMENT, FROM JUNE 13TH TO JULY 12TH, INC., 1925.

IT APPEARS FROM THE ACCOMPANYING PAPERS THAT THE EXECUTIVE ORDER OF JUNE 12, 1917, AUTHORIZED THE APPOINTMENT OF STUDENT ASSISTANTS AT A RATE NOT TO EXCEED $300 PER YEAR AND THAT THE CIVIL SERVICE COMMISSION UNDER DATE OF NOVEMBER 25, 1924, AUTHORIZED THE APPOINTMENT OF THESE EMPLOYEES AT THE RATE OF $480 PER YEAR.

THE POSITION OF STUDENT ASSISTANT IN THE BUREAU OF STANDARDS IS EXCEPTED FROM ALLOCATION UNDER THE CLASSIFICATION ACT OF 1923, SECTION 5 THEREOF, 42 STAT. 1489, PROVIDING:

THAT THE COMPENSATION SCHEDULES * * * SHALL NOT APPLY TO EMPLOYEES IN POSITIONS THE DUTIES OF WHICH ARE TO * * * PERFORM WORK WHICH IS SUBORDINATE, INCIDENTAL OR PREPARATORY TO WORK OF A PROFESSIONAL, SCIENTIFIC, OR TECHNICAL CHARACTER * * *.

SECTION 2, EIGHTH PARAGRAPH, OF THE CIVIL SERVICE ACT OF JANUARY 16, 1883, 22 STAT. 404, PROVIDES THAT EXCEPTIONS TO THE CIVIL SERVICE RULES SHALL BE SET FORTH IN CONNECTION WITH SUCH RULES. SCHEDULE A SETS FORTH IN CONNECTION WITH THE CIVIL SERVICE RULES A LIST OF "EXCEPTED" POSITIONS WHICH MAY BE FILLED WITHOUT EXAMINATION OR UPON NONCOMPETITIVE EXAMINATION. SUBDIVISION XI OF SCHEDULE A IS HEADED "DEPARTMENT OF COMMERCE.' EXECUTIVE ORDER NO. 2637, DATED JUNE 12, 1917, AMENDED THIS SUBDIVISION TO INCLUDE "STUDENT ASSISTANTS IN THE BUREAU OF STANDARDS WHOSE SALARY SHALL NOT EXCEED A RATE OF $300 A YEAR EACH WHILE EMPLOYED.' AS THIS EXECUTIVE ORDER HAS NEVER BEEN REVOKED NOR MODIFIED, IT IS IN FULL FORCE AND EFFECT AT THE PRESENT TIME.

IN RESPONSE TO A REQUEST MADE BY THE SECRETARY OF COMMERCE TO HAVE THE PRESIDENT MODIFY SUBDIVISION XI OF SCHEDULE A SO AS TO AUTHORIZE THE PAYMENT OF $480 PER ANNUM TO STUDENT ASSISTANTS, THE CIVIL SERVICE COMMISSION STATED, UNDER DATE OF NOVEMBER 25, 1924:

THE COMMISSION IS IN RECEIPT BY REFERENCE OF NOVEMBER 19 OF LETTER FROM THE DIRECTOR, BUREAU OF STANDARDS, RECOMMENDING THAT SCHEDULE A, SUBDIVISION XI, PARAGRAPH 4, BE AMENDED TO PERMIT THE APPOINTMENT OF STUDENT ASSISTANTS AT A SALARY OF $480 PER ANNUM INSTEAD OF $300, AS AT PRESENT.

IN THIS CONNECTION YOUR ATTENTION IS CALLED TO CIRCULAR LETTER NO. 1600, ISSUED AUGUST 22, 1924, STATING THAT NEW APPOINTMENTS COMING WITHIN THE PROVISIONS OF PARAGRAPH 6, SUBDIVISION I, OF SCHEDULE A MAY BE MADE TO A SALARY NOT EXCEEDING $480 PER ANNUM. THIS PARAGRAPH FORMERLY PERMITTED APPOINTMENTS OF THIS NATURE TO BE MADE AT $300 PER ANNUM, BUT, IN VIEW OF THE FACT THAT THE CONGRESSIONAL BONUS PERMITTED EMPLOYEES SO APPOINTED TO RECEIVE $180 IN ADDITION THERETO, THE COMMISSION IS OF OPINION THAT IN VIEW OF READJUSTMENT OF BASIC SALARIES DUE TO THE DISCONTINUANCE OF THE BONUS THE APPOINTMENTS AT $480 PER ANNUM ARE PERMISSIBLE. IT IS BELIEVED THAT THE SAME REASONING WOULD APPLY IN THE CASE OF STUDENT ASSISTANTS APPOINTED UNDER SUBDIVISION XI OF SCHEDULE A.

IT IS NOT DEEMED ADVISABLE AT THIS TIME TO RECOMMEND TO THE PRESIDENT A CHANGE IN THE RULES TO SUBSTITUTE $480 FOR $300. NO OBJECTION WILL BE INTERPOSED TO THE APPOINTMENT OF STUDENT ASSISTANTS UNDER THE PROVISION OF SCHEDULE A UNDER CONSIDERATION AT $480 PER ANNUM.

BY DIRECTION OF THE COMMISSION:

SUBDIVISION I OF THE SCHEDULE A MENTIONED IN THE LETTER OF THE CIVIL SERVICE COMMISSION IS HEADED "THE ENTIRE CLASSIFIED SERVICE," AND PARAGRAPH 6 THEREOF EXCEPTS FROM EXAMINATION APPOINTMENTS TO POSITIONS THE SALARY OF WHICH IS $300 OR LESS UNDER CERTAIN CONDITIONS. CIRCULAR LETTER NO. 1600, DATED AUGUST 22, 1924, OF THE CIVIL SERVICE COMMISSION PURPORTED TO AUTHORIZE AN INCREASE IN THE RATE OF COMPENSATION FOR THESE GENERALLY EXCEPTED POSITIONS TO $480 PER ANNUM. THIS DOES NOT APPEAR TO HAVE HAD EXECUTIVE APPROVAL, NOR DOES THE ORDER OF THE COMMISSION, ASSUMING THAT IT WAS APPROVED BY THE PRESIDENT, HAVE ANY EFFECT ON THE EXECUTIVE ORDER NO. 2637 OF JUNE 12, 1917, SPECIFICALLY APPLICABLE TO STUDENT ASSISTANTS IN THE BUREAU OF STANDARDS. IN OTHER WORDS, BY ANALOGY THERE IS FOR APPLICATION HERE THE RULE OF STATUTORY CONSTRUCTION THAT WHERE THERE IS BOTH A GENERAL AND SPECIFIC PROVISION OF LAW THE SPECIFIC PROVISION CONTROLS. UNLESS AND UNTIL A HIGHER RATE OF COMPENSATION IN EXCESS OF $300 PER ANNUM, THE SO-CALLED BONUS AUTHORIZED PRIOR TO THE FISCAL YEAR 1925 NO LONGER BEING AUTHORIZED BY LAW, AND NO SPECIFIC PROVISION APPEARING FOR INCLUDING THE AMOUNT IN BASIC COMPENSATION.