A-13517, APRIL 29, 1926, 5 COMP. GEN. 872

A-13517: Apr 29, 1926

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THE SALARY OF A CLERK AND VICE CONSUL WHICH IS EQUAL TO. FOR THE PERIOD THE CLERK AND VICE CONSUL IS IN CHARGE OF THE CONSULATE DURING THE ABSENCE OF THE PRINCIPAL OFFICER. THERE IS FOR CONSIDERATION THE LEGALITY OF THE PAYMENT TO HIMSELF OF $150 ADDITIONAL COMPENSATION DURING THE PERIOD HE WAS IN CHARGE OF THE CONSULATE. WAS AT THE RATE OF $1. HIS SALARY WAS AT THE RATE OF $2. IT IS UNDERSTOOD TO BE THE ADMINISTRATIVE PRACTICE TO FIX A BASIC COMPENSATION FOR CLERKS AT CONSULATES AND AN ADDITIONAL COMPENSATION WHILE AT THEIR POSTS OF DUTY. THE TOTAL IS CONSIDERED AS THE REGULAR COMPENSATION OF THE CLERK WHILE AT HIS POST OF DUTY. ATTACHED TO THE VOUCHER ON WHICH THE PAYMENT HERE IN QUESTION WAS MADE IS A PAPER DATED JUNE 9.

A-13517, APRIL 29, 1926, 5 COMP. GEN. 872

FOREIGN SERVICE - SALARY OF VICE CONSUL IN CHARGE OF CONSULATE IN VIEW OF THE PROVISIONS OF SECTIONS 1764 AND 1765, REVISED STATUTES, THE SPECIFIC APPROPRIATION FOR "CHARGES D-AFFAIRES AD INTERIM," AND THE RESTRICTIONS CONTAINED IN SECTION 1685, REVISED STATUTES, AS AMENDED BY THE ACT OF MAY 24, 1924, 43 STAT. 143, THE SALARY OF A CLERK AND VICE CONSUL WHICH IS EQUAL TO, OR MORE THAN ONE HALF, THAT OF THE PRINCIPAL OFFICER OF THE CONSULATE, MAY NOT BE INCREASED BY THE DEPARTMENT OF STATE AND CHARGED TO THE APPROPRIATION FOR CLERK HIRE AT CONSULATES, FOR THE PERIOD THE CLERK AND VICE CONSUL IS IN CHARGE OF THE CONSULATE DURING THE ABSENCE OF THE PRINCIPAL OFFICER.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 29, 1926:

IN THE SETTLEMENT OF THE ACCOUNTS OF R. FRAZIER POTTS, CLERK AND VICE CONSUL, UNITED STATES CONSULATE, PARA, BRAZIL, FOR THE QUARTER ENDED SEPTEMBER 30, 1925, THERE IS FOR CONSIDERATION THE LEGALITY OF THE PAYMENT TO HIMSELF OF $150 ADDITIONAL COMPENSATION DURING THE PERIOD HE WAS IN CHARGE OF THE CONSULATE.

IT APPEARS THAT THE SALARY OF MR. POTTS AS CLERK AND VICE CONSUL PRIOR TO JULY 1, 1925, WAS AT THE RATE OF $1,800 PLUS $200, A TOTAL OF $2,000 PER ANNUM, AND THAT BEGINNING JULY 1, 1925, HIS SALARY WAS AT THE RATE OF $2,000 PLUS $200, OR A TOTAL OF $2,200 PER ANNUM. IT IS UNDERSTOOD TO BE THE ADMINISTRATIVE PRACTICE TO FIX A BASIC COMPENSATION FOR CLERKS AT CONSULATES AND AN ADDITIONAL COMPENSATION WHILE AT THEIR POSTS OF DUTY, AND THAT THE $200 ADDITIONAL IN THIS CASE REPRESENTS THE ADDITIONAL COMPENSATION AUTHORIZED FOR MR. POTTS WHILE AT HIS POST OF DUTY. THE TOTAL IS CONSIDERED AS THE REGULAR COMPENSATION OF THE CLERK WHILE AT HIS POST OF DUTY.

ATTACHED TO THE VOUCHER ON WHICH THE PAYMENT HERE IN QUESTION WAS MADE IS A PAPER DATED JUNE 9, 1925 PURPORTING TO ADVISE THAT MR. POTTS HAD BEEN GRANTED---

A TEMPORARY ALLOWANCE AT THE RATE OF $600 * * * IN ADDITION TO HIS REGULAR COMPENSATION * * * DURING THE PERIOD HE IS IN CHARGE. THE AMOUNT INVOLVED WILL BE CONSIDERED AS A SPECIAL ALLOWANCE.

FOR THE PERIOD JULY 1 TO SEPTEMBER 30, 1925, THIS INCREASED HIS TOTAL COMPENSATION TO THE ANNUAL RATE OF $2,800, OR AN INCREASE OF $150 FOR THE QUARTER. THIS PAYMENT HAS BEEN APPROVED BY THE DEPARTMENT OF STATE AS A CHARGE UNDER THE APPROPRIATION "ALLOWANCE FOR CLERK HIRE AT UNITED STATES CONSULATES," ACT OF FEBRUARY 27, 1925, 43 STAT. 1017, PROVIDING AS FOLLOWS:

FOR ALLOWANCE FOR CLERK HIRE AT CONSULATES, TO BE EXPENDED UNDER THE DIRECTION OF THE SECRETARY OF STATE, $1,550,000. * * *

THE AUTHORITY VESTED IN THE SECRETARY OF STATE RELATIVE TO THE EXPENDITURE OF THIS APPROPRIATION IS NOT AN UNLIMITED AUTHORITY BUT IS TO BE EXERCISED SUBJECT TO STATUTORY RESTRICTIONS AND LIMITATIONS. IN THIS CONNECTION THERE IS FOR CONSIDERATION THE PROVISIONS OF SECTIONS 1764 AND 1765, REVISED STATUTES. THERE IS FOR CONSIDERATION ALSO THE SPECIFIC APPROPRIATION MADE IN THE SAID ACT OF FEBRUARY 27, 1925, 43 STAT. 1015-16, AS FOLLOWS:

CHARGES D-AFFAIRES AD INTERIM

FOR SALARIES OF FOREIGN SERVICE OFFICERS OR VICE CONSULS WHILE ACTING AS CHARGES D-AFFAIRES AD INTERIM OR WHILE IN CHARGE OF A CONSULATE GENERAL OR CONSULATE DURING THE ABSENCE OF THE PRINCIPAL OFFICER, $45,000:PROVIDED, THAT AFTER JUNE 30, 1924, VICE CONSULS WHILE IN CHARGE OF A CONSULATE GENERAL OR CONSULATE DURING THE ABSENCE OF THE PRINCIPAL OFFICER SHALL BE ENTITLED TO ADDITIONAL COMPENSATION IN THE SAME MANNER AND UNDER THE SAME CONDITIONS AS FOREIGN-SERVICE OFFICERS AS PROVIDED IN SECTION 17 OF THE ACT OF MAY 24, 1924.

SECTION 17 OF THE ACT OF MAY 24, 1924, 43 STAT. 143, REFERRED TO IN PROVISION JUST QUOTED, PROVIDES AS FOLLOWS:

THAT SECTION 1685 OF THE REVISED STATUTES AS AMENDED BY THE ACT ENTITLED "AN ACT FOR THE IMPROVEMENT OF THE FOREIGN SERVICE, APPROVED FEBRUARY 5, 1915," IS HEREBY AMENDED TO READ AS FOLLOWS:

"SEC. 1685. THAT FOR SUCH TIME AS ANY FOREIGN SERVICE OFFICER SHALL BE LAWFULLY AUTHORIZED TO ACT AS CHARGE D-AFFAIRES AD INTERIM OR TO ASSUME CHARGE OF A CONSULATE GENERAL OR CONSULATE DURING THE ABSENCE OF THE PRINCIPAL OFFICER AT THE POST TO WHICH HE SHALL HAVE BEEN ASSIGNED, HE SHALL, IF HIS SALARY IS LESS THAN ONE-HALF THAT OF SUCH PRINCIPAL OFFICER, RECEIVE IN ADDITION TO HIS SALARY AS FOREIGN SERVICE OFFICER COMPENSATION EQUAL TO THE DIFFERENCE BETWEEN SUCH SALARY AND ONE-HALF OF THE SALARY PROVIDED BY LAW FOR THE AMBASSADOR, MINISTER, OR PRINCIPAL CONSULAR OFFICER, AS THE CASE MAY BE.'

UNDER THIS STATUTE ADDITIONAL SALARY TO A VICE CONSUL AUTHORIZED TO TAKE CHARGE OF A CONSULATE IN THE ABSENCE OF THE PRINCIPAL OFFICER IS AUTHORIZED ONLY "IF HIS SALARY IS LESS THAN ONE-HALF THAT OF SUCH PRINCIPAL OFFICER.' THEREFORE, IF THE SALARY OF THE VICE CONSUL AUTHORIZED TO TAKE CHARGE OF THE CONSULATE IN THE ABSENCE OF THE PRINCIPAL OFFICER IS EQUAL TO, OR MORE THAN ONE-HALF THAT OF THE PRINCIPAL OFFICER, NO ADDITIONAL COMPENSATION IS AUTHORIZED. THE LAW HAVING THUS PRESCRIBED THE CONDITIONS AND CIRCUMSTANCES UNDER WHICH ADDITIONAL COMPENSATION MAY BE PAID TO A VICE CONSUL AUTHORIZED TO TAKE CHARGE OF A CONSULATE, IT MUST BE HELD THAT THE PROVISION THUS MADE IS EXCLUSIVE AND PRECLUDES THE ALLOWANCE OF ADDITIONAL COMPENSATION UNDER ANY OTHER CIRCUMSTANCES AND CONDITIONS OR BY THE USE OF ANY OTHER APPROPRIATION.

THE REGULAR SALARY OF THE CONSUL, J. D. HICKERSON, THE PRINCIPAL OFFICER IN CHARGE OF THE PARA CONSULATE, WAS AT THE RATE OF $3,500 PER ANNUM DURING THE QUARTER ENDED SEPTEMBER 30, 1925. THE REGULAR SALARY OF MR. POTTS, THE CLERK AND VICE CONSUL AUTHORIZED TO TAKE CHARGE IN THE ABSENCE OF THE PRINCIPAL OFFICER, WAS $2,200 PER ANNUM FOR THE SAME PERIOD, WHICH IS MORE THAN ONE-HALF OF THAT RECEIVED BY THE PRINCIPAL OFFICER.

ACCORDINGLY, THE ACTION OF THE DEPARTMENT OF STATE IN ATTEMPTING TO INCREASE THE SALARY OF MR. POTTS AT THE RATE OF $600 PER ANNUM DURING THE PERIOD HE WAS IN CHARGE OF THE CONSULATE AT PARA, BRAZIL WAS UNAUTHORIZED, AND CREDIT FOR THE AMOUNT OF $150 AS ADDITIONAL COMPENSATION FOR THE QUARTER ENDED SEPTEMBER 30, 1925, MUST BE AND IS DISALLOWED. THE ACCOUNTS OF THIS OFFICER FOR ANY OTHER PERIOD DURING WHICH THIS QUESTION IS INVOLVED WILL BE ADJUSTED AND SETTLED ACCORDINGLY.