A-18691, JUNE 16, 1927, 6 COMP. GEN. 826

A-18691: Jun 16, 1927

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POST OFFICE DEPARTMENT SUBSTITUTE SERVICE OF EMPLOYEES IN THE MOTOR-VEHICLE SERVICE OF THE POST OFFICE DEPARTMENT WAS NOT AUTHORIZED TO BE INCLUDED IN COMPUTING THE LENGTH OF SERVICE FOR THE PURPOSE OF SALARY CLASSIFICATION AS OF JANUARY 1. THE GENERAL ACCOUNTING OFFICE WILL DEFER COLLECTION OF EXCESS PAYMENTS OF SALARY FOR PERIODS PRIOR THERETO UNTIL THE ADMINISTRATIVE OFFICE SHALL HAVE HAD AN OPPORTUNITY TO PRESENT THE MATTER TO THE CONGRESS WITH A VIEW TO OBTAINING VALIDATING LEGISLATION. REQUESTING DECISION WHETHER SUBSTITUTE SERVICE OF EMPLOYEES IN THE MOTOR-VEHICLE SERVICE WAS AUTHORIZED TO BE INCLUDED IN COMPUTING LENGTH OF SERVICE FOR THE PURPOSE OF FIXING THEIR SALARY CLASSIFICATION IN AUTOMATIC GRADES AS OF JANUARY 1.

A-18691, JUNE 16, 1927, 6 COMP. GEN. 826

PROMOTIONS, AUTOMATIC - MOTOR-VEHICLE SERVICE, POST OFFICE DEPARTMENT SUBSTITUTE SERVICE OF EMPLOYEES IN THE MOTOR-VEHICLE SERVICE OF THE POST OFFICE DEPARTMENT WAS NOT AUTHORIZED TO BE INCLUDED IN COMPUTING THE LENGTH OF SERVICE FOR THE PURPOSE OF SALARY CLASSIFICATION AS OF JANUARY 1, 1925, OR FOR AUTOMATIC PROMOTIONS SUBSEQUENT THERETO, UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1060. ADJUSTMENTS IN THE SALARIES OF EMPLOYEES IN THE MOTOR-VEHICLE SERVICE OF THE POST OFFICE DEPARTMENT, NECESSITATED BY REASON OF ERRONEOUS ADMINISTRATIVE ACTION HERETOFORE TAKEN IN AUTHORIZING INCLUSION OF SUBSTITUTE SERVICE IN COMPUTING LENGTH OF SERVICE FOR ALLOCATION AND PROMOTION OF EMPLOYEES IN THE MOTOR-VEHICLE SERVICE, MAY BE MADE EFFECTIVE AS OF JULY 1, 1927, AND THE GENERAL ACCOUNTING OFFICE WILL DEFER COLLECTION OF EXCESS PAYMENTS OF SALARY FOR PERIODS PRIOR THERETO UNTIL THE ADMINISTRATIVE OFFICE SHALL HAVE HAD AN OPPORTUNITY TO PRESENT THE MATTER TO THE CONGRESS WITH A VIEW TO OBTAINING VALIDATING LEGISLATION.

COMPTROLLER GENERAL MCCARL TO THE POSTMASTER GENERAL, JUNE 16, 1927:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MAY 27, 1927, REQUESTING DECISION WHETHER SUBSTITUTE SERVICE OF EMPLOYEES IN THE MOTOR-VEHICLE SERVICE WAS AUTHORIZED TO BE INCLUDED IN COMPUTING LENGTH OF SERVICE FOR THE PURPOSE OF FIXING THEIR SALARY CLASSIFICATION IN AUTOMATIC GRADES AS OF JANUARY 1, 1925, AND FOR AUTOMATIC PROMOTIONS THEREAFTER UNDER PROVISIONS OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1060.

YOU STATE THAT THE ADMINISTRATIVE OFFICE HAS HERETOFORE AUTHORIZED THE COUNTING OF SUCH SUBSTITUTE SERVICE FOR THE ALLOCATION AND PROMOTION OF EMPLOYEES IN THE MOTOR-VEHICLE SERVICE UNDER REGULATIONS PROMULGATED JULY 1, 1922, AND REQUEST, IF IT IS CONCLUDED SUCH ACTION WAS UNLAWFUL, THAT NECESSARY READJUSTMENTS IN THE SALARIES OF EMPLOYEES BE MADE EFFECTIVE AS OF JULY 1, 1927, AND THAT ACTION BY THIS OFFICE LOOKING TO ANY COLLECTION OF EXCESS PAYMENTS, EITHER FROM THE POSTMASTER OR FROM THE EMPLOYEE, BE DEFERRED UNTIL THE MATTER MAY BE PRESENTED TO THE CONGRESS.

IT WAS HELD IN DECISION OF JUNE 9, 1927, A-18584, 6 COMP. GEN. 805, AS FOLLOWS:

THERE IS NO STATUTORY PROVISION WHATEVER IN THE ACT OF FEBRUARY 28, 1925, SUPRA, OR OTHERWISE, AUTHORIZING DRIVER-MECHANICS IN THE MOTOR VEHICLE SERVICE TO INCLUDE PRIOR SERVICE IN TEMPORARY OR SUBSTITUTE POSITIONS PRIOR TO THEIR APPOINTMENT IN REGULAR PERMANENT POSITIONS FOR THE PURPOSE OF DETERMINING THE AUTOMATIC GRADE IN WHICH THEY SHOULD HAVE BEEN ALLOCATED AS OF JANUARY 1, 1925. SECTION 11 OF THE ACT, 43 STAT. 1065, PROVIDED FOR THE COUNTING OF SUBSTITUTE SERVICE IN THE CASES OF CLERKS IN THE FIRST AND SECOND CLASS POST OFFICES AND THE RAILWAY MAIL SERVICE, AND LETTER CARRIERS IN THE CITY DELIVERY SERVICE, AND IT MUST BE CONCLUDED, IN VIEW THEREOF, THAT IF THE CONGRESS HAD INTENDED THE SAME PRIVILEGES FOR EMPLOYEES IN THE MOTOR VEHICLE SERVICE IT WOULD HAVE EXPRESSLY SO PROVIDED. * * *

WHAT WAS STATED IN SAID DECISION WITH RESPECT TO DRIVER-MECHANICS IS EQUALLY APPLICABLE TO ALL OTHER EMPLOYEES UNDER THE MOTOR-VEHICLE SERVICE. ANY AUTHORITY GRANTED BY ADMINISTRATIVE REGULATION IN FORCE PRIOR TO JANUARY 1, 1925, FOR COUNTING SUBSTITUTE SERVICE OF MOTOR VEHICLE EMPLOYEES IN COMPUTING LENGTH OF SERVICE, THEN HAD NO STATUTORY SANCTION AND WAS NOT RECOGNIZED IN THE ACT OF FEBRUARY 28, 1925. THEREFORE THE ADMINISTRATIVE PRACTICE SHOULD HAVE BEEN DISCONTINUED IN MAKING ADJUSTMENTS UNDER THE ACT OF FEBRUARY 28, 1925, EFFECTIVE JANUARY 1, 1925. YOU STATE THAT THE PROVISION WAS INADVERTENTLY OMITTED FROM THE STATUTE. THIS DOES NOT REASONABLY APPEAR FROM THE STATUTE, AND, EVEN IF TRUE, WOULD NOT HAVE JUSTIFIED OR AUTHORIZED THE ADMINISTRATIVE OFFICE IN CONSTRUING THE STATUTE AS THOUGH THE PROVISION FOR COUNTING SUBSTITUTE SERVICE OF EMPLOYEES IN THE MOTOR-VEHICLE SERVICE HAD APPEARED IN THE STATUTE. IT MAY BE STATED IN THIS CONNECTION THAT THE INTERESTS OF THE GOVERNMENT AND THE OTHERS CONCERNED WOULD BE BEST SERVED IF DOUBTFUL QUESTIONS OF LAW INVOLVING EXPENDITURES OF PUBLIC FUNDS UNDER NEW STATUTES WERE SUBMITTED TO THIS OFFICE AS SOON AS POSSIBLE AFTER THE PASSAGE OF THE ACT AND IN ADVANCE OF ANY EXPENDITURES THEREUNDER.

AS REQUESTED, THE ADJUSTMENTS IN THE SALARIES OF EMPLOYEES IN THE MOTOR- VEHICLE SERVICE, NECESSITATED BY REASON OF THE ERRONEOUS ACTION OF THE ADMINISTRATIVE OFFICE HERETOFORE TAKEN, MAY BE MADE EFFECTIVE AS OF JULY 1, 1927, AND THIS OFFICE WILL DEFER ACTION IN COLLECTING EXCESS PAYMENTS OF SALARY FOR PERIODS PRIOR TO JULY 1, 1927, UNTIL THE ADMINISTRATIVE OFFICE SHALL HAVE HAD AN OPPORTUNITY TO PRESENT THE MATTER TO THE CONGRESS WITH A VIEW OF OBTAINING VALIDATING LEGISLATION.