A-23821, JULY 28, 1928, 8 COMP. GEN. 40

A-23821: Jul 28, 1928

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ARE FIELD EMPLOYEES AND NOT SUBJECT TO THE CLASSIFICATION ACT OF 1923. IS THE DATE IN JULY OF RECEIPT OF NOTICE IN THE ADMINISTRATIVE OFFICE. IS AGAIN FOR APPLICATION. OR TO NEW POSITIONS FOR WHICH APPROPRIATIONS WERE INCLUDED IN THE ESTIMATES FOR THE CURRENT FISCAL YEAR. WHAT INFORMATION IS CONSIDERED IN THE "REMARKS" COLUMN OF THE JULY. IN A CASE WHERE THERE WAS AN INCREASE IN SALARY RATE AUTHORIZED BY THE WELCH ACT AND ALSO A REALLOCATION IN GRADE APPROVED BY THE PERSONNEL CLASSIFICATION BOARD DURING THE MONTH AND WHICH UNDER PRIOR DECISIONS OF THIS OFFICE. THESE QUESTIONS WILL BE CONSIDERED AND ANSWERED IN THE ORDER STATED. 1. " "A GOVERNMENT ESTABLISHMENT IN THE EXECUTIVE BRANCH OF THE UNITED STATES GOVERNMENT WHICH IS NOT A PART OF AN EXECUTIVE DEPARTMENT.'.

A-23821, JULY 28, 1928, 8 COMP. GEN. 40

CLASSIFICATION OF CIVILIAN EMPLOYEES - APPLICATION OF ACT OF MAY 28, 1928 - FEDERAL TRADE COMMISSION EMPLOYEES IN THE BRANCH OFFICES OF THE FEDERAL TRADE COMMISSION OUTSIDE OF WASHINGTON, D.C., ARE FIELD EMPLOYEES AND NOT SUBJECT TO THE CLASSIFICATION ACT OF 1923. THE INCREASES IN SALARIES OF EMPLOYEES IN THE FEDERAL TRADE COMMISSION'S BRANCH OFFICES OUTSIDE OF WASHINGTON, D.C., DUE TO ADJUSTMENTS UNDER SECTION 3 OF THE ACT OF MAY 28, 1928, 45 STAT. 785, MAY BE PROPERLY INCLUDED IN THE AMOUNT TO BE REPORTED AS A DEFICIENCY FOR SUBMISSION TO THE CONGRESS. THE EFFECTIVE DATE OF REALLOCATIONS APPROVED BY THE PERSONNEL CLASSIFICATION BOARD DURING THE MONTH OF JULY, 1928, IS THE DATE IN JULY OF RECEIPT OF NOTICE IN THE ADMINISTRATIVE OFFICE. ON AND AFTER AUGUST 1, 1928, THE GENERAL RULE ANNOUNCED IN 4 COMP. GEN. 280, 6 ID. 202, IS AGAIN FOR APPLICATION. PAY ROLLS FOR JULY, 1928, SHOULD SHOW BOTH THE AUTOMATIC INCREASE IN SALARY AUTHORIZED BY THE ACT OF MAY 28, 1928, 45 STAT. 766, AND THE EFFECTIVE DATE IN JULY OF ANY REALLOCATIONS OF POSITIONS, VIZ, DATE OF RECEIPT OF NOTICE IN THE ADMINISTRATIVE OFFICE. IN THE CASE OF NEW APPOINTMENTS MADE DURING THE CURRENT FISCAL YEAR TO POSITIONS EXISTING AND VACANT JUNE 30, 1928, OR TO NEW POSITIONS FOR WHICH APPROPRIATIONS WERE INCLUDED IN THE ESTIMATES FOR THE CURRENT FISCAL YEAR, THE DIFFERENCE BETWEEN THE SALARY OF THE POSITION AT THE MINIMUM SALARY RATE OF THE GRADE IN WHICH ALLOCATED, OR FOR WHICH ESTIMATED, UNDER THE ORIGINAL CLASSIFICATION ACT OF 1923, AND THE SALARY OF SAID POSITION AS INCREASED OR ALLOCATED UNDER THE ACT OF MAY 28, 1928, 45 STAT. 776, MAY BE PROPERLY INCLUDED IN THE AMOUNT TO BE REPORTED AS A DEFICIENCY FOR SUBMISSION TO THE CONGRESS.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN OF THE FEDERAL TRADE COMMISSION, JULY 28, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 19, 1928, REQUESTING DECISION OF QUESTIONS WHICH MAY BE STATED AS FOLLOWS:

1. WHETHER OR NOT THE FEDERAL TRADE COMMISSION'S BRANCH OFFICE EMPLOYEES OUTSIDE OF WASHINGTON, D.C., MAY BE PROPERLY TERMED DEPARTMENTAL SERVICE EMPLOYEES AND SUBJECT TO THE CLASSIFICATION ACT OF 1923.

2. WHETHER THE INCREASES IN SALARIES OF EMPLOYEES IN THE FEDERAL TRADE COMMISSION'S BRANCH OFFICES OUTSIDE OF WASHINGTON, D.C., DUE TO ADJUSTMENTS MADE UNDER SECTION 3 OF THE ACT OF MAY 28, 1928, 45 STAT. 785, KNOWN AS THE WELCH ACT, MAY BE PROPERLY INCLUDED IN THE AMOUNT TO BE REPORTED AS A DEFICIENCY FOR SUBMISSION TO THE CONGRESS AT ITS NEXT SESSION.

3. WHAT INFORMATION IS CONSIDERED IN THE "REMARKS" COLUMN OF THE JULY, 1928, PAY ROLL UNDER GENERAL REGULATIONS OF THIS OFFICE, NO. 34, SUPPLEMENT NO. 4, IN A CASE WHERE THERE WAS AN INCREASE IN SALARY RATE AUTHORIZED BY THE WELCH ACT AND ALSO A REALLOCATION IN GRADE APPROVED BY THE PERSONNEL CLASSIFICATION BOARD DURING THE MONTH AND WHICH UNDER PRIOR DECISIONS OF THIS OFFICE, WOULD BE EFFECTIVE JULY 1, 1928.

4. WHETHER IN THE CASE OF NEW APPOINTMENTS MADE DURING THE CURRENT FISCAL YEAR THE DIFFERENCE BETWEEN THE SALARY OF THE POSITION UNDER THE CLASSIFICATION ACT OF 1923 AND THE SALARY OF SAID POSITION AS INCREASED UNDER THE WELCH ACT MAY BE INCLUDED IN THE AMOUNT OF THE DEFICIENCY AUTHORIZED UNDER THE WELCH ACT TO BE REPORTED TO THE NEXT SESSION OF THE CONGRESS.

THESE QUESTIONS WILL BE CONSIDERED AND ANSWERED IN THE ORDER STATED.

1. SECTION 2 OF THE ORIGINAL CLASSIFICATION ACT OF 1923, DATED MARCH 4, 1923, 42 STAT. 1488, INCLUDED WITH THE TERM "DEPARTMENT," "A GOVERNMENT ESTABLISHMENT IN THE EXECUTIVE BRANCH OF THE UNITED STATES GOVERNMENT WHICH IS NOT A PART OF AN EXECUTIVE DEPARTMENT.' THE FEDERAL TRADE COMMISSION FALLS WITHIN SUCH A DESIGNATION. SECTION 5 OF THE SAME STATUTE PROVIDES "THAT THE COMPENSATION SCHEDULES SHALL APPLY ONLY TO CIVILIAN EMPLOYEES IN THE DEPARTMENTS WITHIN THE DISTRICT OF COLUMBIA.' THIS PROVISION WOULD EXCLUDE FROM THE CLASSIFICATION ACT ALL EMPLOYEES WHOSE PRINCIPAL DUTIES ARE REQUIRED TO BE PERFORMED OUTSIDE THE DISTRICT OF COLUMBIA, WHETHER THEIR HEADQUARTERS ARE IN THE DISTRICT OF COLUMBIA OR ELSEWHERE. SEE 4 COMP. GEN. 291, AND DECISION OF JUNE 26, 1928, A-23388, 7 COMP. GEN. 816. FOR THE GENERAL DISTINCTION BETWEEN DEPARTMENTAL AND FIELD SERVICES SEE 21 COMP. DEC. 709; 27 ID. 643; 5 COMP. GEN. 272, 273. THE LAST OF THE DECISIONS JUST CITED CONTAINS THE FOLLOWING:

* * * WHAT IS KNOWN AS A "FIELD FORCE" IS ENGAGED, DIRECTLY OR INDIRECTLY, IN EXECUTING THE LAWS LOCALLY, WHILE A "DEPARTMENTAL" FORCE IS ENGAGED IN GENERAL SUPERVISORY AND ADMINISTRATIVE DIRECTION AND CONTROL OF THE VARIOUS FIELD FORCES * * *.

ACCORDINGLY IT MUST BE HELD THAT EMPLOYEES IN THE BRANCH OFFICES OF THE FEDERAL TRADE COMMISSION OUTSIDE THE DISTRICT OF COLUMBIA ARE NOT SUBJECT TO THE ORIGINAL CLASSIFICATION ACT OF 1923. THE PERSONNEL CLASSIFICATION BOARD AS CONSTITUTED FEBRUARY 21, 1928, CORRECTLY DENIED FURTHER JURISDICTION TO ALLOCATE POSITIONS IN THE BRANCH OFFICES OF THE COMMISSION FOR THE REASON THAT SUCH POSITIONS ARE IN THE FIELD SERVICE.

2. THE DOUBT AS TO THIS QUESTION ARISES FROM THE FACT THAT THE APPROPRIATION ACT OF DECEMBER 6, 1924, 43 STAT. 704, CONTAINED NO APPROPRIATION FOR THE FEDERAL TRADE COMMISSION. THIS WAS DUE TO THE FACT THAT AT THE TIME THE EMPLOYEES IN THE BRANCH OFFICES OF THE COMMISSION HAD BEEN CONSIDERED BY THE PERSONNEL CLASSIFICATION BOARD AS THEN CONSTITUTED AS SUBJECT TO THE CLASSIFICATION ACT ITSELF AND THE SALARY RATES WERE ADJUSTED ACCORDINGLY. IN VIEW OF THIS UNUSUAL CONDITION AND OF THE FACT THAT THE SALARY RATES OF THE EMPLOYEES IN THE BRANCH OFFICES OF THE COMMISSION WERE IN FACT ADJUSTED UNDER THE ORIGINAL CLASSIFICATION ACT, WHICH WAS EQUIVALENT TO AN ADJUSTMENT UNDER THE ACT OF DECEMBER 6, 1924, WITHIN THE MEANING OF SECTION 3 OF THE WELCH ACT, YOU ARE ADVISED THAT THE COMMISSION WAS AUTHORIZED TO FURTHER ADJUST THE SALARY RATES OF SUCH EMPLOYEES, EFFECTIVE JULY 1, 1928, IN ACCORDANCE WITH THE PROVISIONS OF SECTION 3 OF THE WELCH ACT. ANY DEFICIENCY CREATED BY REASON THEREOF MAY BE REPORTED TO THE CONGRESS AT ITS NEXT SESSION UNDER AUTHORITY OF THE WELCH ACT.

3. AS THE BASIS FOR THIS QUESTION YOU SUBMIT THE FOLLOWING ILLUSTRATION:

* * * A SPECIFIC INSTANCE IS THAT OF AN EMPLOYEE OF GRADE CAF-2, WHO RECEIVED A SALARY OF $1,320 PER ANNUM UP TO AND INCLUDING JUNE 30, 1928, WHOSE ALLOCATION TO GRADE CAF-3 WAS APPROVED BY THE PERSONNEL CLASSIFICATION BOARD UNDER DATE OF JULY 11, 1928. UNTIL THE ALLOCATION WAS APPROVED OF BY THE PERSONNEL CLASSIFICATION BOARD THIS PERSON WAS CONSIDERED AS AN EMPLOYEE OF GRADE CAF-2 WITH A SALARY OF $1,440 PER ANNUM, AN ADDITIONAL $120 HAVING BEEN ADDED AS THE RESULT OF THE WELCH ACT. UPON THE APPROVAL OF THE ALLOCATION OF GRADE CAF-3 HE AUTOMATICALLY ENTERS THE GRADE AT THE MINIMUM SALARY THEREOF, $1,620 PER ANNUM, SUCH INCREASE BEING EFFECTIVE AS OF JULY 1, 1928. SHOULD THE $120 INCREASE PROVIDED FOR BY THE WELCH ACT AND THE $120 INCREASE OVER THE MINIMUM OF OLD GRADE CAF-3 PROVIDED FOR BY THE WELCH ACT, OR A TOTAL OF $240, BE INDICATED IN THE "REMARKS COLUMN" OR SHOULD JUST THE $120 REPRESENTING THE INCREASE OVER THE MINIMUM IN GRADE CAF-3 BE SHOWN?

IN DECISION OF JUNE 25, 1928, A-23379, 7 COMP. GEN. 808, IT WAS STATED:

THE ADJUSTMENT IN SALARY RATES UNDER THE ACT OF MAY 28, 1928, 45 STAT. 776, AMENDING THE CLASSIFICATION ACT OF 1923, KNOWN AS THE WELCH ACT, IS TO BE BASED ON THE GRADE AND SALARY RATE HELD JUNE 30, 1928. ANY ALLOCATION, REALLOCATION, OR CHANGE IN SALARY RATE IN A GRADE, EFFECTIVE AFTER JULY 1, 1928, IS NOT FOR CONSIDERATION IN MAKING THE ADJUSTMENT REQUIRED TO BE MADE UNDER THE WELCH ACT AS OF JULY 1, 1928. THEREFORE, ADJUSTMENTS UNDER THE WELCH ACT SHOULD BE MADE ON THE BASIS OF THE EXISTING GRADE, ON THE EFFECTIVE DATE OF THE ACT, WHICH IS JULY 1, 1928, UNDER THE PROVISIONS OF SECTION 5, BEFORE ANY CHANGE OF GRADE IS MADE RESULTING FROM A REALLOCATION EFFECTIVE THEREAFTER.

IN OTHER WORDS, SINCE THE AUTOMATIC INCREASES UNDER THE WELCH ACT ARE AUTHORIZED AND REQUIRED TO BE MADE EFFECTIVE JULY 1, 1928, BASED ON THE GRADE AND SALARY RATE HELD JUNE 30, 1928, THE GENERAL RULE ANNOUNCED IN PRIOR DECISIONS OF THIS OFFICE (4 COMP. GEN. 280; 6 ID. 202) THAT ADJUSTMENTS IN SALARY RATES AS A RESULT OF REALLOCATIONS ARE EFFECTIVE FROM THE BEGINNING OF THE MONTH IN WHICH NOTICE OF THE REALLOCATION IS RECEIVED IN THE ADMINISTRATIVE OFFICE, DOES NOT APPLY TO REALLOCATIONS APPROVED BY THE PERSONNEL CLASSIFICATION BOARD DURING THE MONTH OF JULY, 1928. ALL REALLOCATIONS OF POSITIONS, NOTICE OF APPROVAL OF WHICH IS RECEIVED IN THE ADMINISTRATIVE OFFICE DURING THE MONTH OF JULY, 1928, WILL BE EFFECTIVE FOR PAY PURPOSES FROM THE DATE OF RECEIPT OF THE NOTICE IN THE ADMINISTRATIVE OFFICE. ON AND AFTER AUGUST 1, 1928, THE GENERAL RULE WILL AGAIN BE FOR APPLICATION. IN THE ILLUSTRATION GIVEN YOU DO NOT STATE THE DATE OF RECEIPT OF NOTICE OF THE REALLOCATION IN THE ADMINISTRATIVE OFFICE, BUT EVIDENTLY, IT WAS ON OR AFTER JULY 11, 1928. ANSWERING THE SPECIFIC QUESTION PRESENTED, I HAVE TO ADVISE THAT THE PAY ROLLS FOR JULY, 1928, SHOULD SHOW BOTH THE ACTION REQUIRED UNDER THE WELCH ACT AS OF JULY 1, 1928, AND THE FACT OF THE REALLOCATION WITH THE DATE OF RECEIPT OF NOTICE OF THE APPROVAL THEREOF.

4. THE GRADE AND SALARY RATE AS OF JULY 1, 1928, OF EXISTING POSITIONS WHICH HAD BEEN ALLOCATED PRIOR TO JUNE 30, 1928, AND WERE VACANT ON THAT DATE, BUT WHICH HAD BEEN INCLUDED IN THE ESTIMATES ON WHICH THE APPROPRIATIONS FOR THE FISCAL YEAR 1929 WERE BASED, SHOULD BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MAY 28, 1928, AS APPLIED BY THE DECISIONS OF THIS OFFICE. NEW APPOINTMENTS TO SUCH POSITIONS DURING THE CURRENT FISCAL YEAR SHOULD BE MADE AT THE MINIMUM SALARY RATE OF THE PROPER GRADE AS PER SCHEDULE IN THE AMENDED STATUTE, AND THE DIFFERENCE BETWEEN THE MINIMUM SALARY RATE OF THE GRADE THAT WOULD HAVE BEEN PAYABLE UNDER THE ORIGINAL CLASSIFICATION ACT PRIOR TO JULY 1, 1928, AND THE MINIMUM SALARY RATE OF THE GRADE AUTHORIZED UNDER THE AMENDATORY STATUTE OF MAY 28, 1928, PROPERLY MAY BE INCLUDED IN THE DEFICIENCY TO BE REPORTED AS A RESULT OF THE WELCH ACT. NEW POSITIONS NOT EXISTING JUNE 30, 1928, MUST BE ALLOCATED PURSUANT TO THE PROCEDURE PRESCRIBED IN THE ORIGINAL CLASSIFICATION ACT TO A GRADE ESTABLISHED UNDER THE AMENDATORY STATUTE. IF ANY SUCH WERE INCLUDED IN THE ESTIMATES ON WHICH THE APPROPRIATIONS FOR THE FISCAL YEAR 1929 WERE BASED, THE DIFFERENCE, IF ANY, BETWEEN THE MINIMUM SALARY RATE OF THE GRADE UNDER THE ORIGINAL STATUTE, AND FOR WHICH ESTIMATES WERE MADE, AND THE MINIMUM SALARY RATE OF THE GRADE UNDER THE WELCH ACT IN WHICH THE NEW POSITION IS ALLOCATED, PROPERLY MAY BE INCLUDED IN THE DEFICIENCY TO BE REPORTED AS A RESULT OF THE WELCH ACT.