A-24813, OCTOBER 22, 1928, 8 COMP. GEN. 204

A-24813: Oct 22, 1928

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IS THE MINIMUM SALARY RATE OF $8. AS THE ASSISTANT SECRETARIES OF STATE ARE RECEIVING $9. THERE ARE FOR CONSIDERATION IN CONNECTION WITH THIS QUESTION TWO PROVISIONS OF LAW. THERE WAS ONLY THE ONE SALARY RATE OF $7. THE APPLICATION OF THE TWO PROVISIONS OF LAW ABOVE INDICATED MAY AFFECT THE SALARY RATES OF POSITIONS IN THOSE GRADES THE SAME AS IN OTHER GRADES SUBJECT TO THE CLASSIFICATION ACT IN WHICH THERE IS MORE THAN ONE SALARY RATE. SAID PROVISION OF LAW IS EQUALLY AS APPLICABLE SINCE THE PASSAGE OF THE WELCH ACT AS PRIOR THERETO. RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT IS AS FOLLOWS: "ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.'.

A-24813, OCTOBER 22, 1928, 8 COMP. GEN. 204

CLASSIFICATION OF CIVILIAN EMPLOYEES - APPLICATION OF ACT OF MAY 28, 1928 - UNDERSECRETARY AND ASSISTANT SECRETARIES OF STATE IN ACCORDANCE WITH RULE 6 OF SECTION 6 OF THE ORIGINAL CLASSIFICATION ACT OF 1923, THE INITIAL SALARY RATE PAYABLE TO THE UNDERSECRETARY OF STATE UNDER NEW APPOINTMENT SUBSEQUENT TO JULY 1, 1928, IN GRADE CAF-15, WITH SALARY RATES OF $8,000, $8,500, AND $9,000 PER ANNUM AS FIXED BY THE ACT OF MAY 28, 1928, 45 STAT. 776, IS THE MINIMUM SALARY RATE OF $8,000 PER ANNUM, AND AS THE ASSISTANT SECRETARIES OF STATE ARE RECEIVING $9,000 PER ANNUM, THE MAXIMUM SALARY RATE IN THE SAME GRADE, BY OPERATION OF THE AUTOMATIC PROVISIONS OF THE ACT OF MAY 28, 1928, ANY INCREASE IN THE COMPENSATION OF THE UNDERSECRETARY ABOVE THE SALARY RATE OF $8,000, WHILE THE ASSISTANT SECRETARIES RETAIN THE SALARY RATE OF $49,000 PER ANNUM, WOULD CAUSE THE ALREADY EXCESSIVE AVERAGE TO BE FURTHER EXCEEDED AND WOULD BE UNLAWFUL.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, OCTOBER 22, 1928:

THERE HAS BEEN RECEIVED YOUR LETTER OF OCTOBER 15, 1928, REQUESTING DECISION WHETHER THE UNDERSECRETARY OF STATE MAY BE PAID IN GRADE CAF 15 AT THE SALARY RATE OF $9,000 PER ANNUM UNDER HIS APPOINTMENT EFFECTIVE SEPTEMBER 1, 1928, THE POSITIONS OF ASSISTANT SECRETARIES OF STATE BEING IN THE SAME GRADE AND THE PRESENT INCUMBENTS OF SAID POSITIONS RECEIVING THE SALARY RATE OF $9,000 PER ANNUM BY OPERATION OF THE AUTOMATIC PROVISIONS OF THE WELCH ACT, EFFECTIVE JULY 1, 1928. DECISION OF JUNE 21, 1928, 7 COMP. GEN. 804, 806.

THERE ARE FOR CONSIDERATION IN CONNECTION WITH THIS QUESTION TWO PROVISIONS OF LAW. FIRST, RULE 6 OF SECTION 6 OF THE ORIGINAL CLASSIFICATION ACT OF 1923, 42 STAT. 1490, AND SECOND, THE AVERAGE PROVISION APPEARING IN THE ANNUAL APPROPRIATION ACTS SINCE THE ORIGINAL CLASSIFICATION ACT WENT INTO EFFECT, THE SPECIFIC PROVISION APPLICABLE HERE BEING IN THE ACT OF FEBRUARY 15, 1928, 45 STAT. 64.

PRIOR TO JULY 1, 1928, THE APPLICATION OF THESE PROVISIONS OF LAW DID NOT AFFECT THE SALARY RATES OF SUCH POSITIONS AS THOSE OF UNDERSECRETARY AND ASSISTANT SECRETARIES OF THE DEPARTMENT OF STATE FOR THE REASON THAT IN THE GRADES IN WHICH THOSE POSITIONS HAD BEEN ALLOCATED UNDER THE TERMS OF THE ORIGINAL CLASSIFICATION ACT, GRADE CAF-14, THERE WAS ONLY THE ONE SALARY RATE OF $7,500 PER ANNUM. DUE TO THE FACT THAT THE CORRESPONDING GRADE UNDER THE WELCH ACT, VIZ, CAF 15, NOW HAS A SALARY RANGE OF $8,000, $8,500, AND $9,000 PER ANNUM, THE APPLICATION OF THE TWO PROVISIONS OF LAW ABOVE INDICATED MAY AFFECT THE SALARY RATES OF POSITIONS IN THOSE GRADES THE SAME AS IN OTHER GRADES SUBJECT TO THE CLASSIFICATION ACT IN WHICH THERE IS MORE THAN ONE SALARY RATE. THERE APPEARS NO PROVISION IN THE LAW TO INDICATE AN INTENT TO EXCEPT FROM THE AVERAGE PROVISION ANY OF THE HIGHER GRADES PROVIDED FOR UNDER THE CLASSIFICATION ACT AS AMENDED. SAID PROVISION OF LAW IS EQUALLY AS APPLICABLE SINCE THE PASSAGE OF THE WELCH ACT AS PRIOR THERETO.

RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT IS AS FOLLOWS: "ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.' THE APPOINTMENT MADE EFFECTIVE SEPTEMBER 1, 1928, TO THE POSITION OF UNDERSECRETARY WAS UNQUESTIONABLY A NEW APPOINTMENT. YOU MENTION THE FACT THAT SAID APPOINTMENT WAS IN THE NATURE OF A TRANSFER FROM WORK UNDER THE DEPARTMENT IN MEXICO. HOWEVER, IT HAS BEEN CONSISTENTLY HELD THAT A TRANSFER FROM THE FIELD SERVICE, WHICH IS NOT SUBJECT TO THE CLASSIFICATION ACT OR THE AVERAGE PROVISION, TO THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA, WHICH IS SUBJECT TO THE CLASSIFICATION ACT AND THE AVERAGE PROVISION, CONSTITUTES, IN EFFECT, A NEW APPOINTMENT. 3 COMP. GEN. 1001, 1006; 4 COMP. GEN. 263; ID. 493, 499; ID. 1003; ID. 1030; 6 ID. 768. THE SAME RULE HAS BEEN APPLIED TO TRANSFERS FROM UNCLASSIFIED TO CLASSIFIED POSITIONS WHEREIN THE FIELD SERVICE IS NOT INVOLVED. 6 COMP. GEN. 455. IT MUST BE CONCLUDED, THEREFORE, THAT RULE 6 OF SECTION 6 OF THE ORIGINAL CLASSIFICATION ACT IS APPLICABLE TO THE APPOINTMENT TO THE THEN VACANT POSITION OF UNDERSECRETARY OF STATE, AND THAT THE ONLY INITIAL SALARY RATE AUTHORIZED BY LAW WAS THE MINIMUM SALARY RATE OF GRADE CAF-15, VIZ, $8,000 PER ANNUM. SEE ALSO DECISION OF JULY 28, 1928, 8 COMP. GEN. 40, 43.

WITH REFERENCE TO THE AVERAGE PROVISION, ATTENTION IS INVITED TO THE SPECIFIC APPROPRIATION HERE INVOLVED AS IT APPEARS IN THE ACT OF FEBRUARY 15, 1928, 45 STAT. 64, AS FOLLOWS:

SALARIES: FOR SECRETARY OF STATE, $15,000; UNDERSECRETARY OF STATE AND OTHER PERSONAL SERVICES, IN THE DISTRICT OF COLUMBIA IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, INCLUDING TEMPORARY EMPLOYEES, $1,130,760; IN ALL, $1,145,760: PROVIDED, THAT IN EXPENDING APPROPRIATIONS OR PORTIONS OF APPROPRIATIONS CONTAINED IN THIS ACT FOR THE PAYMENT FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, THE AVERAGE OF THE SALARIES OF THE TOTAL NUMBER OF PERSONS UNDER ANY GRADE IN ANY BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT SHALL NOT AT ANY TIME EXCEED THE AVERAGE OF THE COMPENSATION RATES SPECIFIED FOR THE GRADE BY SUCH ACT, AND IN GRADES IN WHICH ONLY ONE POSITION IS ALLOCATED THE SALARY OF SUCH POSITION SHALL NOT EXCEED THE AVERAGE OF THE COMPENSATION RATES FOR THE GRADE EXCEPT THAT IN UNUSUALLY MERITORIOUS CASES OF ONE POSITION IN A GRADE ADVANCES MAY BE MADE TO RATES HIGHER THAN THE AVERAGE OF THE COMPENSATION RATES OF THE GRADE BUT NOT MORE OFTEN THAN ONCE IN ANY FISCAL YEAR AND THEN ONLY TO THE NEXT HIGHER RATE: PROVIDED, THAT THIS RESTRICTION SHALL NOT APPLY (1) TO GRADES 1, 2, 3, AND 4 OF THE CLERICAL-MECHANICAL SERVICE, OR (2) TO REQUIRE THE REDUCTION IN SALARY OF ANY PERSON WHOSE COMPENSATION WAS FIXED AS OF JULY 1, 1924, IN ACCORDANCE WITH THE RULES OF SECTION 6 OF SUCH ACT, (3) TO REQUIRE THE REDUCTION IN SALARY OF ANY PERSON WHO IS TRANSFERRED FROM ONE POSITION TO ANOTHER POSITION IN THE SAME OR DIFFERENT GRADE IN THE SAME OR A DIFFERENT BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT, OR (4) TO PREVENT THE PAYMENT OF A SALARY UNDER ANY GRADE AT A RATE HIGHER THAN THE MAXIMUM RATE OF THE GRADE WHEN SUCH HIGHER RATE IS PERMITTED BY THE CLASSIFICATION ACT OF 1923, AND IS SPECIFICALLY AUTHORIZED BY OTHER LAW.

THE POSITIONS OF UNDERSECRETARY AND ASSISTANT SECRETARIES OF STATE ARE ALL IN ONE GRADE AND UNDER ONE BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT. THEREFORE, THERE WOULD APPEAR NO VALID REASON OR AUTHORITY FOR HOLDING THAT THE AVERAGE PROVISION IS NOT APPLICABLE TO THEM THE SAME AS IT IS APPLICABLE TO THE OCCUPANTS OF OTHER POSITIONS PROVIDED FOR UNDER SAID APPROPRIATION. AS TO THE PURPOSE AND EFFECT OF THE AVERAGE PROVISION, SEE 3 COMP. GEN. 1001, 1002.

I CAN FIND NO BASIS OF LAW FOR EXEMPTING THE POSITIONS OF UNDERSECRETARY AND ASSISTANT SECRETARIES OF STATE FROM THE OPERATION OF THE AVERAGE PROVISION. AS THE ASSISTANT SECRETARIES ARE NOW RECEIVING COMPENSATION AT THE MAXIMUM SALARY RATE OF THE GRADE, $9,000 PER ANNUM, ANY INCREASE IN THE COMPENSATION OF THE UNDERSECRETARY ABOVE THE SALARY RATE OF $8,000, AT WHICH HE WAS REQUIRED UNDER RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT TO BE APPOINTED, WHILE THE ASSISTANT SECRETARIES RETAIN THE SALARY RATE OF $9,000 PER ANNUM, WOULD CAUSE THE ALREADY EXCESSIVE AVERAGE TO BE FURTHER EXCEEDED AND WOULD BE UNLAWFUL.

IN YOUR LETTER YOU EXPRESS THE FOLLOWING VIEW:

THE DEPARTMENT IS INCLINED TO THE VIEW THAT SINCE THE SO-CALLED WELCH ACT, APPROVED MAY 28, 1928, PROVIDED THAT "THE POSITIONS AND EMPLOYEES" AFFECTED BY THE ACT SHOULD RETAIN IN THE NEW CLASSIFICATION SCHEDULES "THE SAME RELATIVE POSITION OR POSITIONS" WITHIN THEIR RESPECTIVE GRADES AS THEY OCCUPIED AT THE TIME THE LAW WENT INTO FORCE AND SINCE THE POSITION OF UNDERSECRETARY HAS BEEN PLACED IN THE $9,000 CLASS OF GRADE 15 AS REQUIRED BY THE LAW, AND YOUR RULING THEREON, THE POSITION IS TO BE REGARDED AS FIXED AT THAT RATE OF SALARY UNLESS AND UNTIL A DIFFERENT SALARY SHALL BE PRESCRIBED BY THE CONGRESS, AND THE FACT THAT THE PRESENT OCCUPANT OF THE POSITION DID NOT OCCUPY IT ON JULY 1, WHEN THE WELCH ACT BECAME EFFECTIVE, DOES NOT ALTER THE SITUATION. IT IS SUGGESTED THAT TO HOLD THAT THE NEW APPOINTEE MUST REMAIN AT THE BOTTOM OF THE GRADE AND THAT A PROMOTION WITHIN THE GRADE MUST BE GOVERNED BY THE AVERAGE RULE LAID DOWN IN THE APPROPRIATION ACT WOULD BRING ABOUT A SITUATION UNDER WHICH THE UNDERSECRETARY OF STATE, WHO RANKS NEXT TO THE SECRETARY, WOULD RECEIVE LESS COMPENSATION THAN THE ASSISTANT SECRETARIES AND WOULD SEEM TO NULLIFY IN A LARGE MEASURE THE PURPOSE SOUGHT TO BE ACCOMPLISHED BY THE WELCH ACT WHICH WAS, AS STATED IN THE ABOVE QUOTATION, TO PLACE THE POSITIONS AS WELL AS THE EMPLOYEES IN CERTAIN RELATIVE POSITIONS IN THE GRADES PROVIDED FOR IN THAT ACT.

THE TERM "CLASS" IS NOT SYNONYMOUS WITH THE TERM "SALARY RATE" IN A GRADE. THAT IS, THERE IS NO SUCH THING AS "THE $9,000 CLASS OF GRADE 15" AS YOU TERM IT. CLASS REFERS TO THE DIFFERENT KINDS OF POSITIONS IN THE GRADE AND IT HAS BEEN HELD THAT THE TERM "CLASS" HAS NO SPECIAL SIGNIFICANCE IN THE APPLICATION OF RULE 6 OF SECTION 6 OF THE ORIGINAL CLASSIFICATION ACT AND OF THE AVERAGE PROVISION. 4 COMP. GEN. 334. THERE WAS NOTHING IN THE OPERATION OF THE WELCH ACT THAT DEFINITELY FIXED A SALARY RATE ABOVE THE MINIMUM AS THE PERMANENT SALARY RATE FOR A POSITION BECOMING VACANT JULY 1, 1928, OR THEREAFTER. THE TERM "VACANT POSITION" MEANS A VACANT PLACE IN A GRADE, THE SALARY OF WHICH IS NOT NECESSARILY THAT OF THE LAST INCUMBENT BUT MAY BE FIXED AT ANY AUTHORIZED RATE WITHIN THE GRADE WHICH DOES NOT DO VIOLENCE EITHER TO THE RULES PRESCRIBED BY THE ORIGINAL CLASSIFICATION ACT, OR THE AVERAGE PROVISION. SEE 4 COMP. GEN. 126, 128.

THE MATTER OF THE UNDERSECRETARY OF STATE, AS RANKING OFFICER, RECEIVING LESS COMPENSATION THAN THE ASSISTANT SECRETARIES OF STATE, IS BUT THE NECESSARY RESULT OF THE OPERATION OF EXISTING LAW, AND IF THE LAW IS THOUGHT TO BE UNJUST, OR UNREASONABLE, OR NOT IN THE BEST INTEREST OF THE SERVICE, THAT IS A MATTER FOR SUBMISSION TO THE CONGRESS FOR ITS CONSIDERATION OF WHETHER THE LAW SHOULD BE REPEALED OR MODIFIED.