A-23616, JULY 24, 1928, 8 COMP. GEN. 27

A-23616: Jul 24, 1928

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WERE AUTHORIZED TO BE TRANSFERRED TO. ARE FOR DETERMINATION UNDER THE PROVISIONS OF THE ACT OF MAY 28. WHICH WERE TRANSFERRED TO THE FEDERAL POWER COMMISSION EFFECTIVE JULY 1. AS FOLLOWS: REFERENCE IS HAD TO YOUR DECISION OF JUNE 8 (A-23203) IN WHICH IN ANSWERING THE COMMISSION'S LETTER OF MAY 31 (INCORPORATED IN THE DECISION) THE SITUATION WITH RESPECT TO PERSONNEL FOR THIS COMMISSION WAS DISCUSSED. ALLOCATIONS WERE MADE AND THE SHEETS WERE RETURNED TO THE COMMISSION ON JUNE 30. ALLOCATION WAS MADE BY THE PERSONNEL CLASSIFICATION BOARD TO GRADE 4 OF THE COMPENSATION SCHEDULES FOR THAT SERVICE AS AMENDED BY THE ACT APPROVED MAY 28. ALLOCATION WAS MADE BY THE BOARD TO GRADE 11 OF THE COMPENSATION SCHEDULES FOR THAT SERVICE AS AMENDED BY THE ACT APPROVED MAY 28.

A-23616, JULY 24, 1928, 8 COMP. GEN. 27

CLASSIFICATION OF CIVILIAN EMPLOYEES - APPLICATION OF ACT OF MAY 28, 1928 - FEDERAL POWER COMMISSION THE POSITIONS OF EMPLOYEES PERFORMING WORK OF THE FEDERAL POWER COMMISSION ON AND PRIOR TO JUNE 30, 1928, UNDER DETAIL FROM, AND PAID UNDER APPROPRIATIONS FOR THE DEPARTMENTS OF WAR, INTERIOR, AND AGRICULTURE, IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA AND SUBJECT TO THE ORIGINAL CLASSIFICATION ACT OF 1923, WERE AUTHORIZED TO BE TRANSFERRED TO, AND PAID UNDER THE APPROPRIATIONS FOR THE FEDERAL POWER COMMISSION, EFFECTIVE JULY 1, 1928, UNDER THE TERMS OF THE APPROPRIATION ACT OF MAY 16, 1928, 45 STAT. 579, WITHOUT THE CREATION OF NEW POSITIONS TO BE SUBMITTED TO THE PERSONNEL CLASSIFICATION BOARD FOR ORIGINAL ALLOCATION, AND THE GRADES AND SALARY RATES FOR SUCH POSITIONS EFFECTIVE JULY 1, 1928, ARE FOR DETERMINATION UNDER THE PROVISIONS OF THE ACT OF MAY 28, 1928, 45 STAT. 776, AS APPLIED BY THE DECISION OF JUNE 2, 1928, 7 COMP. GEN. 760, BASED ON THE POSITIONS HELD JUNE 30, 1928, UNDER THE DEPARTMENTS OF WAR, INTERIOR, AND AGRICULTURE. THE SALARY RATES OF EMPLOYEES OCCUPYING FIELD POSITIONS ON AND PRIOR TO JUNE 30, 1928, UNDER THE DEPARTMENTS OF WAR, INTERIOR, AND AGRICULTURE, NOT SUBJECT TO THE ORIGINAL CLASSIFICATION ACT OF 1923, WHICH WERE TRANSFERRED TO THE FEDERAL POWER COMMISSION EFFECTIVE JULY 1, 1928, UNDER AUTHORITY OF THE ACT OF MAY 16, 1928, 45 STAT. 579, SHOULD BE PAID EFFECTIVE JULY 1, 1928, AT A RATE IN THE GRADE IN WHICH THE PERSONNEL CLASSIFICATION BOARD ALLOCATED SUCH POSITIONS UNDER THE TERMS OF THE CLASSIFICATION ACT, AS AMENDED BY THE ACT OF MAY 28, 1928, 45 STAT. 776, SUBJECT TO THE CONDITION IN THE ACT OF MAY 16, 1928, THAT THE TRANSFERS TO THE FEDERAL POWER COMMISSION "MAY BE MADE WITHOUT REDUCTION IN SALARY.'

COMPTROLLER GENERAL MCCARL TO O. C. MERRILL, EXECUTIVE SECRETARY, FEDERAL POWER COMMISSION, JULY 24, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 7, 1928 (OPS) , REQUESTING DECISION OF A QUESTION PRESENTED, AS FOLLOWS:

REFERENCE IS HAD TO YOUR DECISION OF JUNE 8 (A-23203) IN WHICH IN ANSWERING THE COMMISSION'S LETTER OF MAY 31 (INCORPORATED IN THE DECISION) THE SITUATION WITH RESPECT TO PERSONNEL FOR THIS COMMISSION WAS DISCUSSED; AND ALSO TO THE FOLLOWING STATUTES:

(INDEPENDENT OFFICES ACT, 1928, APPROVED FEBRUARY 11, 1927./--- * * * PROVIDED, THAT THE ANNUAL ESTIMATES OF THE FEDERAL POWER COMMISSION FOR THE FISCAL YEAR 1929 SHALL INCLUDE THE SALARIES OF ALL CIVILIAN EMPLOYEES WHOSE SERVICE WITH THE COMMISSION HAS BECOME PERMANENT THROUGH DETAIL FROM ANY EXECUTIVE DEPARTMENT.

(INDEPENDENT OFFICES ACT, 1929, APPROVED MAY 16, 1928./--- FOR EVERY EXPENDITURE REQUISITE FOR AND INCIDENT TO THE WORK OF THE FEDERAL POWER COMMISSION AS AUTHORIZED BY LAW, * * * $108,840, OF WHICH AMOUNT NOT TO EXCEED $87,840 SHALL BE AVAILABLE FOR PERSONAL SERVICES, AND OF THIS AMOUNT NOT TO EXCEED $83,840 SHALL BE AVAILABLE FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923: PROVIDED, THAT THE TRANSFER OF CIVILIAN EMPLOYEES TO THE ROLLS OF THE FEDERAL POWER COMMISSION ON JULY 1, 1928, MAY BE MADE WITHOUT REDUCTION IN SALARY.

IN PURSUANCE OF THIS LEGISLATION, THE COMMISSION ON MAY 12 FORWARDED TO THE PERSONNEL CLASSIFICATION BOARD CLASSIFICATION SHEETS LOOKING TO AND FOR THE PURPOSE OF ALLOCATION UNDER THE CLASSIFICATION ACT OF1923 OF 27 POSITIONS TO THE COMMISSION'S DEPARTMENTAL SERVICE, IN ORDER THAT, ALLOCATIONS BEING MADE, APPROPRIATE ACTION COULD BE TAKEN TO TRANSFER THE EMPLOYEES TO THE COMMISSION'S ROLLS ON OR AFTER JULY 1, 1928, ALL THROUGH PREVIOUS ASSIGNMENT TO THE WORK OF THE COMMISSION HAVING ATTAINED THE PERMANENT STATUS SPECIFIED IN THE STATUTE FIRST ABOVE QUOTED. ALLOCATIONS WERE MADE AND THE SHEETS WERE RETURNED TO THE COMMISSION ON JUNE 30.

I TRANSMIT HEREWITH LETTER DATED JUNE 30, 1928, FROM THE SECRETARY TO THE BOARD, TOGETHER WITH BOARD ACTION NO. 11618 AND EIGHT CLASSIFICATION SHEETS, WHICH SHOW---

(1) IN THE CASE OF SEVEN EMPLOYEES WHOSE ALLOCATION HAD BEEN RECOMMENDED BY THE COMMISSION TO GRADE 4 OF THE PROFESSIONAL AND SCIENTIFIC SERVICE UNDER THE CLASSIFICATION ACT OF 1923, ALLOCATION WAS MADE BY THE PERSONNEL CLASSIFICATION BOARD TO GRADE 4 OF THE COMPENSATION SCHEDULES FOR THAT SERVICE AS AMENDED BY THE ACT APPROVED MAY 28, 1928, THESE TO BE EFFECTIVE JULY 1, 1928.

(2) IN THE CASE OF ONE EMPLOYEE WHOSE ALLOCATION HAD BEEN RECOMMENDED BY THE COMMISSION TO GRADE 11 OF THE CLERICAL, ADMINISTRATIVE AND FISCAL SERVICE UNDER THE CLASSIFICATION ACT OF 1923, ALLOCATION WAS MADE BY THE BOARD TO GRADE 11 OF THE COMPENSATION SCHEDULES FOR THAT SERVICE AS AMENDED BY THE ACT APPROVED MAY 28, 1928, TO BE EFFECTIVE JULY 1, 1928.

THE STATUS OF EACH EMPLOYEE WITH RESPECT TO CLASSIFICATION UNDER THE ACT OF 1923, PREVIOUS TO JULY 1, 1928, FOLLOWS:

SHEET NO. 1. EDWARD C. BEBB. POSITION ALLOCATED ON JANUARY 1, 1928, TO ENGINEER, P-4, OFFICE OF THE SECRETARY, INTERIOR DEPARTMENT, BY TRANSFER FROM ENGINEER, GRADE 15, INDIAN FIELD SERVICE. NO SUBSEQUENT CHANGE IN ALLOCATION OR IN DUTIES. SERVICE AT THE COMMISSION PERMANENT SINCE NOVEMBER 1, 1920.

SHEET NO. 2. RICHARD W. CUSHING. POSITION HAS NEVER BEEN ALLOCATED TO THE DEPARTMENTAL SERVICE, HAVING BEEN A FIELD SERVICE POSITION IN THE ENGINEER DEPARTMENT AT LARGE DURING MR. CUSHING'S SERVICE AT THE COMMISSION DATING FROM JULY 1, 1925. ASSIGNMENT TO THE COMMISSION'S WORK MADE UNDER AUTHORITY OF DECISION OF THE COMPTROLLER DATED OCTOBER 4, 1920. SERVICE AT THE COMMISSION PERMANENT SINCE JULY 1, 1925.

SHEET NO. 3. NELSON B. KEELER. POSITION ALLOCATED, EFFECTIVE JULY 1, 1924, TO ELECTRICAL ENGINEER, P-4, OFFICE OF THE CHIEF OF ENGINEERS. APRIL 1, 1925, MR. KEELER WAS TRANSFERRED TO THE ENGINEER DEPARTMENT AT LARGE, A FIELD SERVICE, IN WHICH STATUS HIS POSITION HAS SINCE REMAINED. ASSIGNMENT TO THE COMMISSION'S WORK WAS MADE UNDER AUTHORITY OF DECISION OF THE COMPTROLLER DATED OCTOBER 4, 1920. THERE HAS BEEN NO CHANGE IN MR. KEELER'S DUTIES SINCE JULY 1, 1924. SERVICE AT THE COMMISSION PERMANENT SINCE MAY 16, 1923.

SHEET NO. 4. JOHN G. MATHERS. POSITION ALLOCATED JULY 1, 1924, TO ENGINEER (HYDRAULIC), P-4, U.S. GEOLOGICAL SURVEY. MR. MATHERS WAS ASSIGNED TO DUTY AT THE COMMISSION ON AUGUST 1, 1927, AS HYDRAULIC ENGINEER. THERE HAS BEEN NO SUBSEQUENT CHANGE IN ALLOCATION OR IN DUTIES. SERVICE AT THE COMMISSION PERMANENT SINCE AUGUST 1, 1927.

SHEET NO. 5. RALPH R. RANDELL. POSITION ALLOCATED JULY 1, 1924, TO ENGINEER, P-4, U.S. FOREST SERVICE. THERE HAS BEEN NO SUBSEQUENT CHANGE IN ALLOCATION OR IN DUTIES. SERVICE AT THE COMMISSION PERMANENT SINCE AUGUST 16, 1920.

SHEET NO. 6. JAMES F. LAWSON. POSITION ALLOCATED JULY 1, 1924, TO ATTORNEY, P-4, U.S. FOREST SERVICE. THERE HAS BEEN NO SUBSEQUENT CHANGE IN ALLOCATION OR IN DUTIES. SERVICE AT THE COMMISSION PERMANENT SINCE NOVEMBER 24, 1920.

SHEET NO. 27. FRED F. HENSHAW. THIS POSITION WAS FILLED BY APPOINTMENT OF MR. ROYAL W. DAVENPORT ON OCTOBER 1, 1920. IT WAS ALLOCATED JULY 1, 1924, TO ENGINEER (HYDRAULIC), P-4, U.S. GEOLOGICAL SURVEY, AT WHICH TIME MR. DAVENPORT WAS ON DUTY BY ASSIGNMENT TO THE COMMISSION. MR. DAVENPORT WAS RELIEVED FROM DUTY AT THE COMMISION AND ADVANCED TO ANOTHER GRADE, MR. HENSHAW BEING TRANSFERRED INTO THE POSITION, AND ASSIGNED TO DUTY AT THE COMMISSION ON MAY 1, 1928. THERE HAS BEEN NO SUBSEQUENT CHANGE IN ALLOCATION OR IN DUTIES. SERVICE AT THE COMMISSION PERMANENT SINCE MAY 1, 1928.

SHEET NO. 12. SAMUEL MEISELS. POSITION ALLOCATED MAY 31, 1927 (BOARD ACTION NO. 8436) TO GRADE 11, C.A. AND F. SERVICE, APPOINTMENT ISSUING, EFFECTIVE JUNE 16, 1927, AS ASSISTANT CHIEF ACCOUNTANT AND AUDITOR, BUREAU OF PLANT INDUSTRY, AND MR. MEISELS BEING ASSIGNED TO DUTY AT THE COMMISSION. THERE HAS BEEN NO SUBSEQUENT CHANGE IN ALLOCATION OR IN DUTIES, SERVICE AT THE COMMISSION PERMANENT SINCE OCTOBER 7, 1925, OF THE BOARD'S ACTION.

THE COMMISSION BELIEVES THAT THE BOARD'S ACTION IN ALLOCATING THE LEGAL AND ENGINEERING POSITIONS TO GRADE P-4, AND THE ACCOUNTING POSITION TO GRADE CAF-11, INSTEAD OF TO GRADE P-5 AND CAF-12 OF THE WELCH ACT, RESPECTIVELY, IS NOT IN ACCORD WITH THE PROVISIONS OR THE INTENT OF THAT ACT.

IT IS NECESSARY, THEREFORE, TO PRESENT FOR YOUR DECISION THE QUESTION WHETHER, WITH RESPECT TO THE EIGHT POSITIONS LISTED, THE COMMISSION IS AUTHORIZED TO ISSUE APPOINTMENTS TO THE ATTORNEY AND TO ANY OR ALL THE ENGINEERS NAMED UNDER GRADE P-5, AND TO THE ACCOUNTANT UNDER GRADE CAF-12 OF THE WELCH ACT, THE APPOINTMENTS CARRYING THEREWITH THE SALARY RATES UNDER THOSE GRADES AS DETERMINED BY THE METHOD SHOWN IN YOUR DECISION OF JUNE 2, 1928.

ATTENTION IS PARTICULARLY CALLED TO THE PECULIAR SITUATION OF THESE EMPLOYEES ARISING FROM THE FACT THAT THEIR "TRANSFER" FROM THE DEPARTMENTS TO THE COMMISSION WAS A MERE TECHNICAL TRANSFER, AND THAT THERE WAS NO CREATION IN THE ORDINARY MEANING OF THE TERM OF NEW POSITIONS FOR ALLOCATION. FOR PERIODS OF TIME VARYING FROM 2 MONTHS TO 8 YEARS AND AVERAGING 4 1/3 YEARS, THE ONLY CONNECTION WHICH THESE INDIVIDUALS HAVE HAD WITH THE DEPARTMENTS HAS BEEN RESTRICTED TO SALARY PAYMENTS. DURING THE ENTIRE TIME THEY HAVE BEEN EMPLOYED EXCLUSIVELY ON THE WORK OF THE COMMISSION, HAVE PERFORMED ALL THEIR WORK IN THE OFFICES OF THE COMMISSION, AND WITH RESPECT TO THE WORK TO BE PERFORMED, TO THE HOURS OF DUTY, TO DISCIPLINE, AND TO ALL SIMILAR MATTERS THEY HAVE BEEN SUBJECT EXCLUSIVELY TO THE CONTROL OF THE COMMISSION. THIS SITUATION WAS RECOGNIZED IN THE INDEPENDENT OFFICES ACT OF 1928, WHERE THESE EMPLOYEES ARE DESCRIBED AS THOSE "WHOSE SERVICE WITH THE COMMISSION HAS BECOME PERMANENT.'

IT WILL BE ASSUMED FOR THE PURPOSES OF THIS DECISION THAT THE PRINCIPAL DUTIES OF ALL THE POSITIONS PRESENTED FOR CONSIDERATION ARE PERFORMED IN THE DISTRICT OF COLUMBIA, THAT ALL OF SUCH POSITIONS WERE AND ARE NOW POSITIONS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA AND SUBJECT TO THE ORIGINAL CLASSIFICATION ACT OF 1923, AND AS AMENDED BY THE ACT OF MAY 28, 1928, AND THAT NONE OF THE POSITIONS, INCLUDING THOSE HELD BY RICHARD W. CUSHING AND NELSON B. KEELER, ARE NOW FIELD POSITIONS TO WHICH THE CLASSIFICATION ACT, AS AMENDED, IS NOT APPLICABLE, AND THAT THE ALLOCATIONS UNDER THE ACT OF 1923, REFERRED TO IN THE SUBMISSION WERE MADE WITH REFERENCE TO THE DUTIES PERFORMED UNDER THE FEDERAL POWER COMMISSION. IF THE FACTS ARE NOT AS THUS ASSUMED, THIS DECISION WILL NOT BE FOR APPLICATION.

PRIOR TO JULY 1, 1928, THE WORK OF THE FEDERAL POWER COMMISSION WAS PERFORMED BY EMPLOYEES DETAILED FROM THE DEPARTMENTS OF WAR, INTERIOR, AND AGRICULTURE. THE ACT OF MAY 16, 1928, 45 STAT. 579, QUOTED IN YOUR SUBMISSION, MADE AN APPROPRIATION UNDER THE HEADING "FEDERAL POWER COMMISSION" FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, WITH THE FOLLOWING EXPRESS PROVISO:

* * * PROVIDED, THAT THE TRANSFER OF CIVILIAN EMPLOYEES TO THE ROLLS OF THE FEDERAL POWER COMMISSION ON JULY 1, 1928, MAY BE MADE WITHOUT REDUCTION IN SALARY.

EVIDENTLY THIS PROVISO WAS INTENDED TO HAVE THE EFFECT OF QUALIFYING THE USE OF THE APPROPRIATION PROVIDED FOR PERSONAL SERVICES UNDER THE FEDERAL POWER COMMISSION "IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923," BY AUTHORIZING THE DETAILED EMPLOYEES WORKING IN EXISTING POSITIONS UNDER THE COMMISSION AND PAID UNDER APPROPRIATIONS FOR OTHER DEPARTMENTS, TO BE TRANSFERRED TO THE ROLLS OF THE COMMISSION AND PAID UNDER THE APPROPRIATION THUS PROVIDED FOR THE COMMISSION. DECISION OF JUNE 8, 1928, A-23203. TO ACCOMPLISH THIS RESULT THERE WAS AUTHORIZED ONLY A CHANGE IN THE APPROPRIATION UNDER WHICH THE SALARIES WERE TO BE PAID, AND NOT THE CREATION OF NEW POSITIONS WITH IDENTICAL DUTIES, SUCH AS MIGHT REQUIRE SUBMISSION THEREOF TO THE PERSONNEL CLASSIFICATION BOARD FOR ORIGINAL ALLOCATION. THE COMMISSION APPEARS TO HAVE ERRED IN ASSUMING THAT THE ENACTMENT OF THIS APPROPRIATION PROVISION REQUIRED SUBMITTING TO THE PERSONNEL CLASSIFICATION BOARD NEW SHEETS FOR SUCH OF THESE POSITIONS AS HAD BEEN ALLOCATED UNDER THE ORIGINAL CLASSIFICATION ACT OF 1923. IN VIEW THEREOF, THE RECENT ACTION OF THE PERSONNEL CLASSIFICATION BOARD WITH RESPECT TO THOSE POSITIONS WHICH, PRIOR, TO JULY 1, 1928, HAD BEEN ALLOCATED UNDER THE ORIGINAL CLASSIFICATION ACT, WAS UNNECESSARY AND INSTEAD THE APPROPRIATION AUTHORITY MUST PREVAIL, AND ALSO AS TO ALL OF SUCH POSITIONS THE AUTOMATIC PROVISIONS OF THE ACT OF MAY 28, 1928, ARE APPLICABLE. THE PLACEMENT OF SUCH POSITIONS IN GRADES P-5 AND CAF-12 AND THE FIXING OF THE SALARY RATES THEREIN AS OF JULY 1, 1928, SHOULD BE ACCOMPLISHED UNDER THE ACT OF MAY 28, 1928, AS CONSTRUED BY THIS OFFICE IN DECISION OF JUNE 2, 1928, 7 COMP. GEN. 760. THE RESULT WILL BE AS FOLLOWS:

NAME ORIGINAL AMENDED

STATUTE STATUTE

GRADE P-5 GRADE P-5 EDWARD C. BEBB- - - - - - - - - - - - - - - - $4,000 $4,600 JOHN G. MATHERS - - - - - - - - - - - - - - - 3,800 4,600 RALPH R. RANDELL- - - - - - - - - - - - - - 3,800 4,600 JAMES F. LAWSON - - - - - - - - - - - - - - 4,200 4,800 FRED F. HENSHAW - - - - - - - - - - - - - - - 4,200 4,800

GRADE GRADE

CAF-11 CAF-12 SAMUEL MEISELS

$3,800 $4,600

BUT THE POSITIONS HELD BY RICHARD W. CUSHING AND NELSON B. KEELER ON JUNE 30, 1928, APPEAR TO HAVE BEEN FIELD POSITIONS AND NOT SUBJECT TO THE ORIGINAL CLASSIFICATION ACT OF 1923, PRIOR TO JULY 1, 1928. THIS BEING TRUE, THE AUTOMATIC PROVISIONS OF THE ACT OF MAY 28, 1928, COULD NOT BE APPLIED, AND THE POSITIONS WERE PROPERLY FOR SUBMISSION TO THE PERSONNEL CLASSIFICATION BOARD FOR ORIGINAL ALLOCATIONS IN THE SAME MANNER AS NEWLY CREATED POSITIONS. ACCORDINGLY THE SALARY OF THE EMPLOYEES HOLDING THESE TWO POSITIONS SHOULD BE PAID AT A RATE IN THE GRADE TO WHICH HERETOFORE ALLOCATED BY THE PERSONNEL CLASSIFICATION BOARD UNDER THE ACT OF MAY 28, 1928--- SUBJECT TO THE PROVISION THAT THEY SHALL SUFFER NO REDUCTION IN COMPENSATION BY REASON OF THEIR TRANSFER TO THE ROLLS OF THE COMMISSION AS OF JULY 1, 1928--- UNLESS AND UNTIL REALLOCATED UPON REVIEW AT THE REQUEST OF THE ADMINISTRATIVE OFFICE OR UPON APPEAL BY THE EMPLOYEES. THUS, THE SALARY RATE OF RICHARD W. CUSHING, WHO RECEIVED $3,400 ON THE FIELD ROLL PRIOR TO JULY 1, 1928, SHOULD BE FIXED AT THE RATE OF $3,800, EFFECTIVE JULY 1, 1928, THE MINIMUM SALARY RATE OF NEW GRADE P-4. THE SALARY RATE OF NELSON B. KEELER, WHO RECEIVED $4,200 ON THE FIELD ROLL PRIOR TO JULY 1, 1928, MAY BE FIXED AT THE SAME RATE IN NEW GRADE P-4, UNDER THE PROVISO TO THE APPROPRIATION ACT FOR THE FEDERAL POWER COMMISSION, WHICH PROVIDES THAT THE TRANSFERS "MAY BE MADE WITHOUT REDUCTION IN SALARY.'