A-16794, JANUARY 7, 1927, 6 COMP. GEN. 455

A-16794: Jan 7, 1927

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WHO ARE TRANSFERRED TO PERMANENT PER ANNUM POSITIONS WHICH ARE SUBJECT TO THE CLASSIFICATION ACT. VACANCIES ARE FILLED BY ELIGIBLES CERTIFIED BY THE CIVIL SERVICE COMMISSION AND ARE USUALLY PAID AN ENTRANCE SALARY OF $3.04 PER DIEM. THOSE DEMONSTRATING ABILITY AND EFFICIENCY IN THEIR WORK ARE PROMOTED TO HIGHER RATES. AS IT IS DIFFICULT TO RETAIN COMPETENT LABORERS FOR $3.04 PER DIEM. MANY OF THESE EMPLOYEES HAVE BEEN INTERMITTENTLY IN THEIR PRESENT EMPLOYMENT FOR A LONG PERIOD OF YEARS AND HAVE BEEN CONTINUED IN THEIR PER DIEM STATUS AFTER THE CONSOLIDATION OF THE OFFICE OF PUBLIC BUILDINGS AND GROUNDS PENDING ESTABLISHING THEIR CIVIL-SERVICE STATUS. IT HAS SEEMED BEST TO MAKE FULL EXPLANATION OF THE CASE AND TO OBTAIN IN ADVANCE YOUR CONFIRMATION OF THE PROPRIETY OF THE METHOD BY WHICH IT IS PROPOSED TO CARRY OUT THE INTENTIONS OF CONGRESS IN REGARD TO CHANGING THE OLD OFFICE OF PUBLIC BUILDINGS AND GROUNDS TO A PART OF THE CONSOLIDATED OFFICE OF PUBLIC BUILDINGS AND PUBLIC PARKS.

A-16794, JANUARY 7, 1927, 6 COMP. GEN. 455

CLASSIFICATION OF CIVILIAN EMPLOYEES - TRANSFERS FROM UNCLASSIFIED TO CLASSIFIED POSITIONS TEMPORARY PER DIEM EMPLOYEES UNDER THE OFFICE OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL, NOT SUBJECT TO THE PROVISIONS OF THE CLASSIFICATION ACT, WHO ARE TRANSFERRED TO PERMANENT PER ANNUM POSITIONS WHICH ARE SUBJECT TO THE CLASSIFICATION ACT, MUST ENTER THE CLASSIFIED PER ANNUM POSITIONS AT THE MINIMUM SALARY RATE OF THE GRADE TO WHICH TRANSFERRED, SUCH TRANSFERS CONSTITUTING, IN EFFECT, NEW APPOINTMENTS.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, OFFICE OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL, JANUARY 7, 1927:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF DECEMBER 20, 1926, AS FOLLOWS:

UNDER AUTHORITY CONTAINED IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR GENERAL EXPENSES, 1927, THIS OFFICE MAINTAINS A FORCE OF TEMPORARY PER DIEM EMPLOYEES FOR SEASONAL OR INTERMITTENT WORK. VACANCIES ARE FILLED BY ELIGIBLES CERTIFIED BY THE CIVIL SERVICE COMMISSION AND ARE USUALLY PAID AN ENTRANCE SALARY OF $3.04 PER DIEM. THOSE DEMONSTRATING ABILITY AND EFFICIENCY IN THEIR WORK ARE PROMOTED TO HIGHER RATES, AS IT IS DIFFICULT TO RETAIN COMPETENT LABORERS FOR $3.04 PER DIEM. HOWEVER, MANY OF THESE EMPLOYEES HAVE BEEN INTERMITTENTLY IN THEIR PRESENT EMPLOYMENT FOR A LONG PERIOD OF YEARS AND HAVE BEEN CONTINUED IN THEIR PER DIEM STATUS AFTER THE CONSOLIDATION OF THE OFFICE OF PUBLIC BUILDINGS AND GROUNDS PENDING ESTABLISHING THEIR CIVIL-SERVICE STATUS.

THE CURRENT APPROPRIATION FOR SALARIES CONTEMPLATED THE TRANSFER TO AN ANNUAL EMPLOYMENT STATUS OF A NUMBER OF THE LATTER WHOSE EMPLOYMENT AGGREGATES A CONSIDERABLE PART OF EACH YEAR, AND EQUALIZATION OF LABOR THROUGHOUT THE YEAR, IN SO FAR AS POSSIBLE, SO AS TO REDUCE THE NUMBER OF PER DIEM EMPLOYEES NEEDED. IT WOULD MANIFESTLY BE IN THE INTEREST OF ECONOMY AND EFFICIENCY TO FILL VACANCIES IN THE REGULAR PER ANNUM FORCE BY THE TRANSFER OF LABORERS ENGAGED ON TEMPORARY PER DIEM WORK WHOSE CHARACTER MERITS PERMANENT APPOINTMENT AND WHOSE WORK CAN BE SO DISTRIBUTED AS TO JUSTIFY REGULAR PERMANENT EMPLOYMENT. HOWEVER, IT WOULD BE MOST UNJUST TO THEM AND WOULD EVIDENTLY RESULT IN THE RESIGNATION OF MANY OF THEM IF THEIR TRANSFER TO A PERMANENT PER ANNUM STATUS HAD TO BE MADE AT THE MINIMUM SALARY OF THE GRADE. AS THESE WOULD NOT BE NEW APPOINTMENTS BUT A CHANGE IN THE STATUS OF THE EMPLOYEE WITHOUT ANY MATERIAL CHANGE IN THE CHARACTER OF HIS DUTIES, MADE DESIRABLE AS A RESULT OF THE ACT OF FEBRUARY 26, 1925, IT SEEMS PROPER TO TRANSFER THESE EMPLOYEES TO PERMANENT POSITIONS AND ADJUST THEIR COMPENSATION IN ACCORDANCE WITH PARAGRAPHS 3 AND 4, SECTION 6, OF THE CLASSIFICATION ACT.

BUT IN ORDER TO PREVENT THE POSSIBILITY OF MISUNDERSTANDING OF THE SITUATION AND OF AN EXCEPTION BY YOUR OFFICE, IT HAS SEEMED BEST TO MAKE FULL EXPLANATION OF THE CASE AND TO OBTAIN IN ADVANCE YOUR CONFIRMATION OF THE PROPRIETY OF THE METHOD BY WHICH IT IS PROPOSED TO CARRY OUT THE INTENTIONS OF CONGRESS IN REGARD TO CHANGING THE OLD OFFICE OF PUBLIC BUILDINGS AND GROUNDS TO A PART OF THE CONSOLIDATED OFFICE OF PUBLIC BUILDINGS AND PUBLIC PARKS.

THE APPROPRIATION FOR GENERAL EXPENSES UNDER THE MAJOR HEADING "PUBLIC BUILDINGS AND PUBLIC PARKS" IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT DATED MAY 10, 1926, 44 STAT. 448, PROVIDES:

* * * AND INCLUDING PERSONAL SERVICES OF TEMPORARY PER DIEM EMPLOYEES AT RATES OF PAY APPROVED BY THE DIRECTOR, NOT EXCEEDING CURRENT RATES OF PAY FOR SIMILAR EMPLOYMENT IN THE DISTRICT OF COLUMBIA; * * *.

THE SAME APPROPRIATION IN THE PRECEDING PARAGRAPH PROVIDES:

FOR PERSONAL SERVICES IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, $342,130.

IT IS UNDERSTOOD FROM YOUR SUBMISSION THAT DUE TO REORGANIZATION OF THE OFFICE OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL, UNDER AUTHORITY OF THE ACT OF FEBRUARY 26, 1925, 43 STAT. 983, TRANSFERS ARE PROPOSED FROM THE TEMPORARY PER DIEM POSITIONS PAID UNDER THE FIRST- MENTIONED APPROPRIATION TO PERMANENT PER ANNUM POSITIONS PAID UNDER THE SECOND-MENTIONED APPROPRIATION. IT IS ASSUMED THAT THE PROPOSED TRANSFERS ARE TO FILL EXISTING VACANCIES IN ALLOCATED POSITIONS, OR, IF OTHERWISE, THAT THE CREATION OF THE ADDITIONAL PER ANNUM POSITIONS HAS BEEN APPROVED BY THE PERSONNEL CLASSIFICATION BOARD AND THE NEW POSITIONS ALLOCATED IN THE PROPER GRADE, 5 COMP. GEN. 202, AND THAT THE ONLY QUESTION PRESENTED IS WHETHER TRANSFERS FROM THE TEMPORARY PER DIEM POSITIONS, NOT SUBJECT TO CLASSIFICATION, TO THE POSITIONS SUBJECT TO CLASSIFICATION ARE "NEW APPOINTMENTS" WITHIN THE MEANING OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT DATED MARCH 4, 1923, 42 STAT. 1490, REQUIRING ALL NEW APPOINTMENTS TO BE MADE AT THE MINIMUM SALARY RATE OF THE GRADE.

YOU SUGGEST THAT THE COMPENSATION SHOULD BE ADJUSTED UNDER RULES 3 AND 4 OF SECTION 6 OF THE CLASSIFICATION ACT. THOSE RULES WERE APPLICABLE ONLY TO ADJUSTMENTS IN COMPENSATION MADE AS OF JULY 1, 1924, WHEN THE CLASSIFICATION ACT WENT INTO EFFECT, AND CAN HAVE NO APPLICATION TO THE PRESENT SITUATION.

IT HAS BEEN HELD THAT A TRANSFER FROM AN UNCLASSIFIED FIELD POSITION, NOT SUBJECT TO THE CLASSIFICATION ACT, TO THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA, SUBJECT TO THE CLASSIFICATION ACT, IS, IN EFFECT, A "NEW APPOINTMENT" WITHIN THE MEANING OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT, AUTHORIZING PAYMENT INITIALLY IN THE DEPARTMENTAL POSITION ONLY AT THE MINIMUM SALARY RATE OF THE GRADE IN WHICH THE POSITION IS PROPERLY ALLOCATED. 3 COMP. GEN. 1006; 4 ID. 263. IN THE LATTER DECISION, IT WAS STATED:

* * * THE RULE THAT A NEW APPOINTMENT MUST BE AT THE MINIMUM SALARY RATE OF THE GRADE IS INTENDED NOT ONLY FOR THE PURPOSE OF REQUIRING A NEW APPOINTEE TO BEGIN AT THE MINIMUM SALARY, BUT ALSO FOR THE PROTECTION AND BENEFIT OF THOSE ALREADY IN A GRADE. IT IS LARGELY FOR THIS LATTER REASON THAT I BELIEVE THE PERSONS HOLDING UNCLASSIFIED POSITIONS IN THE FIELD WHEN TRANSFERRED TO THE DEPARTMENTAL SERVICE SHOULD BE REQUIRED TO COME IN AT THE MINIMUM SALARY RATE. * * *.

THE SAME REASONING MAY BE APPLIED HERE. THERE IS FOR CONSIDERATION NOT ONLY THE PROVISIONS OF THE CLASSIFICATION ACT, BUT ALSO THE AVERAGE PROVISION APPEARING IN THE ANNUAL APPROPRIATION ACTS. THE TEMPORARY PER DIEM POSITIONS FROM WHICH THE TRANSFERS ARE PROPOSED HAVE NOT BEEN CLASSIFIED AND ALLOCATED AND WERE NOT SUBJECT TO THE AVERAGE PROVISION. APPARENTLY, THE PER DIEM RATES OF COMPENSATION WERE FIXED ADMINISTRATIVELY WITHOUT REGARD TO THE SALARY RATES FIXED IN THE CLASSIFICATION ACT OR THE NECESSITY TO MAINTAIN AN AVERAGE.

IT EVIDENTLY WAS NOT CONTEMPLATED BY EITHER THE CLASSIFICATION ACT OR THE AVERAGE PROVISION, THAT UNCLASSIFIED TEMPORARY EMPLOYEES SHOULD BE TRANSFERRED TO CLASSIFIED PERMANENT POSITIONS AT SALARY RATES ABOVE THE MINIMUM, THEREBY PERMITTING POSITIONS AT SALARY RATES ABOVE THE MINIMUM, THEREBY PERMITTING THE PROPER AVERAGE TO BE EXCEEDED IN THE GRADE TO WHICH THE TRANSFERS ARE MADE TO THE POSSIBLE DETRIMENT OF PERMANENT EMPLOYEES ALREADY IN THE GRADE. OF COURSE, IF THE CONDITION OF THE AVERAGE IN THE GRADE TO WHICH THE TRANSFERS ARE PROPOSED WOULD PERMIT, AND THE COMPARATIVE EFFICIENCY OF THE TRANSFERRED EMPLOYEES WOULD JUSTIFY, INCREASES IN COMPENSATION ABOVE THE MINIMUM SALARY RATE COULD BE AUTHORIZED AFTER THE TRANSFER. BUT IF THE PROPER AVERAGE SHOULD BE EXCEEDED, SUCH INCREASES IN COMPENSATION ABOVE THE MINIMUM SALARY RATE WOULD NOT BE AUTHORIZED.

IT MUST BE HELD, THEREFORE, THAT THE INITIAL SALARY RATE AUTHORIZED TO BE PAID TO THE EMPLOYEES TRANSFERRED FROM THE UNCLASSIFIED TEMPORARY PER DIEM POSITIONS TO THE CLASSIFIED PERMANENT PER ANNUM POSITIONS IS THE MINIMUM SALARY RATE OF THE GRADE IN WHICH THE POSITIONS TO WHICH TRANSFERRED IS PROPERLY ALLOCATED.