A-24392, SEPTEMBER 29, 1928, 8 COMP. GEN. 152

A-24392: Sep 29, 1928

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ARE REQUIRED BY SECTION 2 OF SAID ACT TO BE MADE AT THE MINIMUM SALARY RATE PROVIDED FOR EACH OF THE CLASSES OF POSITIONS SPECIFIED BY THE ACT. INFORMATION ON THE FOLLOWING QUESTIONS IS REQUESTED: 1. IF ANSWER IS NEGATIVE. PLEASE STATE SALARY TO WHICH EMPLOYEE IS ENTITLED UNDER PROPOSED CHANGE. 2. IS HIS PROMOTION TO CLERK AT $2. IF ANSWER IS NEGATIVE. PLEASE STATE SALARY TO WHICH EMPLOYEE IS ENTITLED UNDER PROPOSED CHANGE. " IS SUBSEQUENT TO THE WELCH ACT. ARE NOT APPLICABLE TO THE CLASSES OF EMPLOYEES AND POSITIONS FOR WHICH SALARY RATES ARE SPECIFICALLY FIXED BY THE ACT OF MAY 29. THAT THE FOLLOWING ANNUAL RATES OF COMPENSATION ARE HEREBY ESTABLISHED FOR THE EMPLOYEES IN THE CUSTOMS SERVICE HEREINAFTER SPECIFIED: (C) CLERKS.

A-24392, SEPTEMBER 29, 1928, 8 COMP. GEN. 152

CUSTOMS SERVICE - COMPENSATION UNDER ACT OF MAY 29, 1928, 45 STAT. 955 UNDER THE ACT OF MAY 29, 1928, 45 STAT. 955, AUTHORIZING THE ADJUSTMENT OF COMPENSATION OF CERTAIN EMPLOYEES IN THE CUSTOMS SERVICE, ALL NEW APPOINTMENTS TO THE CLASSES OF POSITIONS SPECIFIED IN SECTION 1 OF THE ACT, INCLUDING EMPLOYEES TRANSFERRED FROM SOME OTHER BRANCH OF THE CUSTOMS SERVICE OR SOME OTHER BRANCH OF THE GOVERNMENT SERVICE, AND APPOINTMENTS FROM PRIVATE LIFE, ARE REQUIRED BY SECTION 2 OF SAID ACT TO BE MADE AT THE MINIMUM SALARY RATE PROVIDED FOR EACH OF THE CLASSES OF POSITIONS SPECIFIED BY THE ACT, THE SAVING CLAUSE IN SECTION 3 THEREOF AGAINST LOSS OF SALARY HAVING RELATION ONLY TO EMPLOYEES HOLDING THE SAME POSITION SUBSEQUENT TO JULY 1, 1928, AS THEY HELD PRIOR THERETO.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, SEPTEMBER 29, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 5, 1928, AS FOLLOWS:

IN CONNECTION WITH THE ADMINISTRATION OF THE BACHARACH BILL (H.R. 13143) , WHICH FIXES THE ENTRANCE SALARY OF CLERKS IN THE CUSTOMS SERVICE AT $1,700 PER ANNUM AND AUTHORIZES INCREASES IN THEIR PAY TO $1,800 AFTER ONE YEAR'S SATISFACTORY SERVICE, $1,900 AFTER TWO YEARS' SATISFACTORY SERVICE, $2,000 AFTER THREE YEARS' SATISFACTORY SERVICE AND $2,100 AFTER FOUR YEARS' SATISFACTORY SERVICE, INFORMATION ON THE FOLLOWING QUESTIONS IS REQUESTED:

1. THE APPRAISER OF MERCHANDISE AT NEW YORK HAS RECOMMENDED THE PROMOTION OF AN EMPLOYEE IN GRADE CAF-4, WHO RECEIVES $1,800 PER ANNUM AND HAS NO CLERICAL SERVICE TO HIS CREDIT, TO A VACANCY AS CLERK AT $2,000 PER ANNUM. HAS THE TREASURY DEPARTMENT THE AUTHORITY TO APPROVE THE PROMOTION OF THIS MAN TO CLERK AT $2,000 PER ANNUM? IF ANSWER IS NEGATIVE, PLEASE STATE SALARY TO WHICH EMPLOYEE IS ENTITLED UNDER PROPOSED CHANGE.

2. THE COLLECT OF CUSTOMS AT PHILADELPHIA, PA., HAS RECOMMENDED THE PROMOTION OF AN EMPLOYEE IN GRADE CAF-4, WHO RECEIVES $1,920 PER ANNUM AND WHO HAS LESS THAN THREE YEARS' CLERICAL SERVICE TO HIS CREDIT, TO A VACANCY AS CLERK AT $2,100 PER ANNUM. IS HIS PROMOTION TO CLERK AT $2,100 PERMISSIBLE? IF ANSWER IS NEGATIVE, PLEASE STATE SALARY TO WHICH EMPLOYEE IS ENTITLED UNDER PROPOSED CHANGE.

THE ACT TO WHICH YOU REFER DATED MAY 29, 1928, 45 STAT. 955, ENTITLED "AN ACT TO ADJUST THE COMPENSATION OF CERTAIN EMPLOYEES IN THE CUSTOMS SERVICE," IS SUBSEQUENT TO THE WELCH ACT, OF MAY 28, 1928. ACCORDINGLY, SECTION 3 OF THE WELCH ACT AND THE PRIOR ACT OF DECEMBER 6, 1924, 43 STAT. 704, MENTIONED IN SAID SECTION 3, AS EXTENDED THROUGH SUBSEQUENT FISCAL YEARS UNTIL JULY 1, 1928, ARE NOT APPLICABLE TO THE CLASSES OF EMPLOYEES AND POSITIONS FOR WHICH SALARY RATES ARE SPECIFICALLY FIXED BY THE ACT OF MAY 29, 1928.

IN SO FAR AS HERE MATERIAL, THE ACT OF MAY 29, 1928, PROVIDES AS FOLLOWS.

THAT THE FOLLOWING ANNUAL RATES OF COMPENSATION ARE HEREBY ESTABLISHED FOR THE EMPLOYEES IN THE CUSTOMS SERVICE HEREINAFTER SPECIFIED:

(C) CLERKS, ENTRANCE SALARY $1,700; CLERKS HAVING ONE YEAR'S SATISFACTORY SERVICE, $1,800; CLERKS HAVING TWO YEARS' SATISFACTORY SERVICE, $1,900; CLERKS HAVING THREE YEARS' SATISFACTORY SERVICE, $2,000; CLERKS HAVING FOUR YEARS' SATISFACTORY SERVICE, $2,100; THEREAFTER PROMOTION OF CLERKS TO HIGHER RATES OF COMPENSATION SHALL BE IN ACCORDANCE WITH EXISTING LAW.

SEC. 2. ALL NEW APPOINTMENTS SPECIFIED IN SECTION 1 SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE SALARY RANGE.

SEC. 3. NOTHING IN THIS ACT SHALL BE CONSTRUED TO PREVENT THE PROMOTION OF ANY EMPLOYEE AT ANY TIME TO A VACANT POSITION IN A HIGHER GRADE, AND WHEN SO PROMOTED SUCH EMPLOYEE SHALL RECEIVE THE COMPENSATION FIXED IN ACCORDANCE WITH LAW FOR SUCH POSITION, AND NOTHING HEREIN CONTAINED SHALL BE CONSTRUED TO REDUCE THE RATE OF COMPENSATION OF ANY EMPLOYEE IN THE CUSTOMS SERVICE.

SEC. 5. (A) SECTIONS 1 AND 2 OF THIS ACT SHALL TAKE EFFECT ON JULY 1, 1928.

(B) THE REMAINED OF THIS ACT SHALL TAKE EFFECT FROM THE DATE OF ITS ENACTMENT.

THE QUESTIONS ARE ANSWERED IN THE ORDER STATED AS FOLLOWS:

1. YOU DO NOT STATE THE CHARACTER OF THE DUTIES OF THE POSITION HELD BY THIS EMPLOYEE PRIOR OR SUBSEQUENT TO JULY 1, 1928, OR WHETHER THE POSITION IS BEING PAID IN ANY OF THE GRADES OR CLASSIFICATIONS AS PRESCRIBED BY THE ABOVE QUOTED ACT. HOWEVER, FROM YOUR STATEMENTS IN THE QUESTION, IT IS ASSUMED THAT THE POSITION NOW OCCUPIED BY THE EMPLOYEE IS NOT WITHIN ANY OF THE GRADES OR CLASSIFICATIONS SPECIFIED IN THE ABOVE QUOTED ACT BUT IS IN GRADE CAF-4 AS FIXED BY THE ADMINISTRATIVE OFFICE UNDER SECTION 3 OF THE WELCH ACT. SEE ACT OF DECEMBER 6, 1924, 43 STAT. 710. IF SO, SECTION 2 OF THE ABOVE QUOTED ACT WOULD AUTHORIZE THE APPOINTMENT OF THE EMPLOYEE AS A CLERK ONLY AT THE ENTRANCE SALARY OF $1,700 PER ANNUM, THE SAVING CLAUSE IN SECTION 3 HAVING RELATION ONLY TO EMPLOYEES HOLDING THE SAME POSITION SUBSEQUENT TO JULY 1, 1928, AS THEY HELD PRIOR THERETO. IT WOULD SEEM THAT THE CONGRESS SOUGHT BY SECTION 2 TO PROTECT THE ADVANCEMENT OF EMPLOYEES ALREADY IN THE GRADES OR CLASSIFICATIONS OR HAVING THE DESIGNATIONS SPECIFIED IN THE ACT, VIZ (A) LABORERS, (B) VERIFIERS, OPENERS, AND PACKERS, (C) CLERKS, (D) CUSTOMS GUARDS, (E) INSPECTORS, AND (F) STATION INSPECTORS, BY REQUIRING THAT "ALL NEW APPOINTMENTS OF EMPLOYEES SPECIFIED IN SECTION 1 SHALL BE AT THE MINIMUM RATE OF THE APPROPRIATE SALARY RANGE.' THAT IS, ALL EMPLOYEES APPOINTED TO ANY OF SUCH POSITIONS FROM SOME OTHER BRANCH OF THE CUSTOMS SERVICE, SOME OTHER BRANCH OF THE GOVERNMENT SERVICE, OR FROM PRIVATE LIFE SHOULD BE CONSIDERED AS "NEW APPOINTMENTS" WITHIN THE MEANING OF SECTION 2 AND PAID INITIALLY AT THE MINIMUM SALARY RATE PROVIDED FOR EACH CLASS OF POSITIONS. AN ANALOGOUS SITUATION IS FOUND IN THE RAILWAY MAIL SERVICE UNDER THE ACT OF MAY 27, 1908, 35 STAT. 413, PROVIDING,"THAT HEREAFTER RAILWAY POSTAL CLERKS ON ENTERING THE SERVICE SHALL RECEIVE THE SALARY OF THE LOWEST GRADE," AND SECTION 7 OF THE ACT OF FEBRUARY 28, 1925, 43 STAT. 1065, PROVIDING, "ALL ORIGINAL APPOINTMENTS SHALL BE MADE TO THE RANK OF SUBSTITUTE RAILWAY POSTAL CLERK.' SEE 4 COMP. GEN. 992, 993. THE SAME RESTRICTION IS NOT APPLICABLE TO OTHER BRANCHES OF THE POSTAL SERVICE AND THE CONGRESS EVIDENTLY INTENDED THUS TO PROTECT THE ADVANCEMENT OF RAILWAY MAIL CLERKS TO VACANCIES IN HIGHER POSITIONS. SEE 7 COMP. GEN. 295, 297. EVIDENTLY THERE WAS A SIMILAR INTENT BY THE INSTANT LAW. THE PROVISIONS OF THE FIRST PART OF SECTION 3 OF THE ACT HAVE NOT BEEN OVERLOOKED. THE RIGHT THERE SAVED TO PROMOTION TO "A VACANT POSITION IN A HIGHER GRADE" REFERS TO "ANY EMPLOYEE" ALREADY IN THE CLASSIFICATIONS, GRADES, OR DESIGNATIONS AS PRESCRIBED BY THE ACT ITSELF, AND NOT TO THE CUSTOMS SERVICE GENERALLY, AND THE SECTION SHOULD NOT BE CONSIDERED AS AUTHORIZING THE NEW APPOINTMENT OF EMPLOYEES BY TRANSFER AND PROMOTION FROM SOME OTHER BRANCH OF THE CUSTOMS SERVICE OR SOME OTHER BRANCH OF THE GOVERNMENT SERVICE TO A VACANT POSITION ABOVE THE MINIMUM SALARY RATE FIXED FOR THE GRADES, CLASSIFICATIONS, OR DESIGNATIONS MENTIONED IN THE ACT ITSELF. ACCORDINGLY, QUESTION 1 IS ANSWERED BY STATING THAT THE LAW DOES NOT AUTHORIZE THE PROMOTION OF THIS MAN TO CLERK AT $2,000 PER ANNUM. HIS INITIAL SALARY RATE WOULD BE $1,700 PER ANNUM.

2. AGAIN YOU DO NOT STATE THE CHARACTER OF THE DUTIES PERFORMED BY THIS EMPLOYEE BEFORE AND AFTER JULY 1, 1928. IF THIS EMPLOYEE WAS A CLERK IN THE CUSTOMS SERVICE PRIOR TO JULY 1, 1928, WITH MORE THAN TWO YEARS' SERVICE AND LESS THAN THREE YEARS' SERVICE AS A CLERK IN THE CUSTOMS SERVICE, HIS SALARY RATE EFFECTIVE JULY 1, 1928, UNDER THE RATES FIXED UNDER SECTION 1 (C) OF THE ACT OF MAY 29, 1928, WOULD HAVE BEEN $1,900 PER ANNUM, BUT IF HE WAS RECEIVING $1,920 PER ANNUM PRIOR TO JULY 1, 1928, AS A CLERK IN THE CUSTOMS SERVICE, HE MAY CONTINUE TO RECEIVE THAT SALARY RATE UNDER THE SAVING CLAUSE OF SECTION 3 OF THE STATUTE, AS LONG AS HE HOLDS THE SAME POSITION AND UNTIL HE HAS HAD THREE YEARS' SATISFACTORY SERVICE AS A CLERK, WHEN HE WOULD BE ELIGIBLE FOR THE SALARY RATE OF $2,000 PER ANNUM. SEE 3 COMP. GEN. 937,938. HOWEVER, IF THIS EMPLOYEE WAS NOT A CLERK IN THE CUSTOMS SERVICE JUNE 30, 1928, NOR AN EMPLOYEE WITH A CLASSIFICATION OR DESIGNATION SPECIFIED IN THE ACT OF MAY 29, 1928, HE WOULD BE REQUIRED TO ENTER A CLERKSHIP AT THE ENTRANCE SALARY RATE OF $1,700 PER ANNUM UNDER SECTION 2 OF THE ACT. QUESTION 2 IS ANSWERED ACCORDINGLY.