A-25175, DECEMBER 7, 1928, 8 COMP. GEN. 286

A-25175: Dec 7, 1928

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DISTRICT OF COLUMBIA THERE WAS NO AUTHORITY UNDER THE PROVISIONS OF THE ACT OF MAY 28. THE SALARY RATES OF THE ENTIRE PERSONNEL OF SAID OFFICE ARE REQUIRED TO BE PROPERLY ADJUSTED AS OF JULY 1. THERE IS PRESENTED THE LEGALITY OF ADJUSTMENTS AS OF JULY 1. SHOW THAT WITH RESPECT TO MOST OF THE PERSONNEL THE SAME SALARY RATE WAS PAID ON AND AFTER JULY 1. THAT IN SOME INSTANCES THERE WAS A NET PROMOTION OF ONE SALARY RATE IN A GRADE. THAT IN OTHER INSTANCES THERE WAS AN ACTUAL REDUCTION OR DEMOTION. EVIDENTLY THE PROCEDURE ON WHICH THIS RESULT WAS ACCOMPLISHED WAS. THIS PROCEDURE WAS NOT ONLY CONTRARY TO THE SPIRIT AND INTENT OF THE PROVISIONS OF THE WELCH ACT. WAS IN DIRECT CONTRAVENTION OF THE LAW.

A-25175, DECEMBER 7, 1928, 8 COMP. GEN. 286

CLASSIFICATION OF CIVILIAN EMPLOYEES - APPLICATION OF ACT OF MAY 28, 1928 - OFFICE OF RECORDER OF DEEDS, DISTRICT OF COLUMBIA THERE WAS NO AUTHORITY UNDER THE PROVISIONS OF THE ACT OF MAY 28, 1928, 45 STAT. 776, FOR THE ACTION OF THE RECORDER OF DEEDS OF THE DISTRICT OF COLUMBIA, IN FIRST REDUCING THE COMPENSATION OF THE PERSONNEL OF HIS OFFICE, EFFECTIVE JULY 1, 1928, AND THEN COMPUTING THE AUTOMATIC SALARY INCREASES AUTHORIZED BY SAID STATUTE EFFECTIVE JULY 1, 1928, ON THE REDUCED SALARY RATES FIXED BY THE ADMINISTRATIVE OFFICE, THE NET RESULT BEING THE PAYMENT OF THE SAME SALARY RATE, OR A LOWER SALARY RATE ON AND AFTER JULY 1, 1928. THE SALARY RATES OF THE ENTIRE PERSONNEL OF SAID OFFICE ARE REQUIRED TO BE PROPERLY ADJUSTED AS OF JULY 1, 1928, TO GRANT THE AUTOMATIC INCREASES AUTHORIZED AND REQUIRED BY LAW, AND A SUPPLEMENTAL PAY ROLL SHOULD BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE FOR AUDIT.

COMPTROLLER GENERAL MCCARL TO THE RECORDER OF DEEDS OF THE DISTRICT OF COLUMBIA, DECEMBER 7, 1928:

IN THE AUDIT OF PAY-ROLL ACCOUNTS COVERING THE OFFICE OF THE RECORDER OF DEEDS OF THE DISTRICT OF COLUMBIA, THERE IS PRESENTED THE LEGALITY OF ADJUSTMENTS AS OF JULY 1, 1928, IN THE SALARY RATES OF EMPLOYEES IN YOUR OFFICE, UNDER THE PROVISIONS OF THE ACT OF MAY 28,1928, 45 STAT. 776, KNOWN AS THE WELCH ACT.

THE PAY ROLLS FOR JUNE AND JULY, 1928, SHOW THAT WITH RESPECT TO MOST OF THE PERSONNEL THE SAME SALARY RATE WAS PAID ON AND AFTER JULY 1, AS PRIOR THERETO; THAT IN SOME INSTANCES THERE WAS A NET PROMOTION OF ONE SALARY RATE IN A GRADE; AND THAT IN OTHER INSTANCES THERE WAS AN ACTUAL REDUCTION OR DEMOTION.

EVIDENTLY THE PROCEDURE ON WHICH THIS RESULT WAS ACCOMPLISHED WAS, FIRST, TO ATTEMPT TO GIVE THE EMPLOYEE A DEMOTION EFFECTIVE JULY 1, 1928, TO A LOWER SALARY RATE IN HIS GRADE AS ESTABLISHED UNDER THE CLASSIFICATION ACT OF 1923, THEN TO ALLOW THE AUTOMATIC INCREASE AUTHORIZED AND REQUIRED BY THE WELCH ACT TO OPERATE ON THE REDUCED RATE, AND THEN, IN SOME CASES, TO GIVE A PROMOTION IN AN AMOUNT NECESSARY TO BRING THE SALARY RATE UP TO THAT RECEIVED PRIOR TO JULY 1, 1928, OR, IN A FEW INSTANCES, ONE SALARY RATE ABOVE THE RATE PREVIOUSLY RECEIVED. THIS PROCEDURE WAS NOT ONLY CONTRARY TO THE SPIRIT AND INTENT OF THE PROVISIONS OF THE WELCH ACT, BUT WAS IN DIRECT CONTRAVENTION OF THE LAW. THE NET RESULT APPARENTLY WOULD BE BUT A SMALL INCREASE, IF ANY, IN TOTAL PERSONNEL PAYMENTS FOR THE FISCAL YEAR 1929, OVER THAT FOR THE FISCAL YEAR 1928, ALTHOUGH THE SAME AMOUNT WAS APPROPRIATED FOR THE TWO FISCAL YEARS, TO WIT, $96,000, AND A PROPOSED SUBMISSION FOR DEFICIENCY UNDER THE WELCH ACT IN AN AMOUNT GREATER THAN AUTHORIZED. THE REASON OR THEORY ON WHICH THIS ACTION WAS TAKEN IS NOT ENTIRELY CLEAR, BUT THE EVIDENT EFFECT WAS TO MAINTAIN APPROXIMATELY THE SAME SALARY RATES AT THE EXPENSE OF A DEFICIENCY UNDER THE WELCH ACT IN ORDER THAT THE REGULAR APPROPRIATION FOR THE CURRENT YEAR MIGHT GAIN THEREBY, POSSIBLY TO TAKE CARE OF PROMOTIONS MADE DURING THE LATTER HALF OF THE FISCAL YEAR 1928, FOR CONTINUANCE OF WHICH DURING THE FISCAL YEAR 1929 THERE MIGHT NOT OTHERWISE HAVE BEEN SUFFICIENT FUNDS. FOR APPROPRIATIONS COVERING THE TWO FISCAL YEARS IN QUESTION, SEE ACTS OF MARCH 2, 1927, 44 STAT. 1301, AND MAY 21, 1928, 45 STAT. 649.

IN DECISION OF JUNE 25, 1928, 7 COMP. GEN. 808, APPLICABLE TO POSITIONS IN THE DISTRICT OF COLUMBIA, IT WAS HELD AS FOLLOWS:

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 ADJUSTMENTS 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.

AS THE FACTS IN THE SUBMISSION ON WHICH THAT DECISION WAS BASED RELATED ONLY TO REALLOCATIONS EFFECTIVE DURING JULY, 1928 (SEE ALSO DECISION OF JULY 28, 1928, 8 COMP. GEN. 40, 42), THE GENERAL RULE THEREIN STATED THAT ADJUSTMENTS IN SALARY RATES UNDER THE WELCH ACT WERE "TO BE BASED ON THE GRADE AND SALARY RATE HELD JUNE 30, 1928," WAS NOT SPECIFICALLY APPLIED TO CHANGES IN SALARY RATES WITHIN A GRADE MADE EFFECTIVE BY THE ADMINISTRATIVE OFFICE ON JULY 1, 1928, THE SAME DATE THE AUTOMATIC PROVISIONS OF THE WELCH ACT WERE EFFECTIVE. BUT THE GENERAL RULE WAS STATED CLEARLY AND DEFINITELY ENOUGH TO HAVE CAUSED NO CONFUSION OR DOUBT IN THE MATTER. THE RULE WAS INTENDED TO APPLY TO CASES WHERE THERE WERE SALARY INCREASES OR DECREASES WITHIN A GRADE MADE EFFECTIVE BY THE ADMINISTRATIVE OFFICE JULY 1, 1928, THAT IS, SUCH INCREASES OR DECREASES WERE NOT TO ENTER INTO THE ADJUSTMENTS UNDER THE WELCH ACT WHICH WERE REQUIRED TO BE BASED SOLELY ON THE GRADE AND SALARY RATE HELD JUNE 30, 1928, TO BE COMPUTED IN ACCORDANCE WITH THE COMPARATIVE SALARY SCHEDULE PROMULGATED IN DECISION OF THIS OFFICE DATED JUNE 2, 1928, WHICH WAS PREFACED BY THE FOLLOWING EXPLANATORY STATEMENT:

THE COMPARATIVE SALARIES, EFFECTIVE JULY 1, 1928, FOR ALL POSITIONS IN THE DISTRICT OF COLUMBIA, ON THE BASIS OF THE RATE RECEIVED JUNE 30,1928, ARE AS FOLLOWS:

WITH THESE TWO DECISIONS ISSUED IN JUNE, PRIOR TO THE EFFECTIVE DATE OF THE WELCH ACT, STATING THAT THE SALARY RATE ON JUNE 30, 1928, WAS TO BE THE BASIS FOR THE AUTOMATIC INCREASES UNDER THE WELCH ACT, THERE SHOULD HAVE BEEN NO DOUBT IN THE MATTER SUCH AS IS EXPRESSED IN YOUR LETTER DATED NOVEMBER 13, 1928, WHEREIN THE STATEMENT IS MADE THAT THE ACTION OF THE RECORDER OF DEEDS WAS BASED UPON AN INFORMAL OPINION BY A REPRESENTATIVE OF THIS OFFICE TO THE EFFECT THAT THE SALARY RATE EFFECTIVE JULY 1, 1927, RATHER THAN THAT HELD JUNE 30, 1928, WAS TO CONTROL. IN THIS CONNECTION YOUR ATTENTION IS INVITED TO DECISION OF THIS OFFICE DATED JUNE 9, 1925, 4 COMP. GEN. 1024, HOLDING AS FOLLOWS (QUOTING FROM THE SYLLABUS):

OPINIONS EXPRESSED ORALLY BY OFFICERS AND EMPLOYEES OF THE GENERAL ACCOUNTING OFFICE ARE NOT AUTHORIZED, DO NOT CONSTITUTE OFFICIAL ACTION, AND CAN NOT UNDER ANY CIRCUMSTANCES BE RECOGNIZED AS CONTROLLING THE ACTION OF THE OFFICE ON ANY MATTER THAT MAY COME BEFORE IT FOR OFFICIAL DETERMINATION.

IT IS NOT UNDERSTOOD ON WHAT THEORY THE CONCLUSION COULD HAVE BEEN REACHED THAT THE SALARY RATE EFFECTIVE JULY 1, 1927, SHOULD BE THE BASIS FOR THE WELCH ACT ADJUSTMENTS WHICH WERE TO BE MADE EFFECTIVE JULY 1, 1928.

WITH RESPECT TO THE ADMINISTRATIVE ACTION PURPORTING TO MAKE REDUCTIONS IN SALARY RATES AS OF JULY 1, 1928, YOUR ATTENTION IS INVITED TO THE FOLLOWING PROVISION FROM SECTION 9 OF THE ORIGINAL CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1491:

REDUCTIONS IN COMPENSATION AND DISMISSALS FOR INEFFICIENCY SHALL BE MADE BY HEADS OF DEPARTMENTS IN ALL CASES WHENEVER THE EFFICIENCY RATINGS WARRANT, AS PROVIDED HEREIN, SUBJECT TO THE APPROVAL OF THE BOARD.

IT IS UNDERSTOOD THAT IN NONE OF THE CASES HERE UNDER CONSIDERATION WAS DEMOTION MADE FOR INEFFICIENCY OR WITH THE APPROVAL OF THE PERSONNEL CLASSIFICATION BOARD. IN THE ABSENCE THEREOF, OR OF A REDUCTION IN THE TOTAL AMOUNT APPROPRIATED FOR PERSONNEL, THERE WAS NO AUTHORITY FOR THE DEMOTIONS AS INDICATED ON THE PAY ROLLS. YOUR ATTENTION IS INVITED, ALSO, TO THE SAVING CLAUSE IN SECTION 1 OF THE ACT OF MAY 28, 1928, KNOWN AS THE WELCH ACT,"THAT NOTHING CONTAINED IN THIS ACT SHALL OPERATE TO DECREASE THE PAY OF ANY PRESENT EMPLOYEE.' IT WOULD APPEAR, THEREFORE, THAT THE ADMINISTRATIVE ACTION WAS UNLAWFUL.

YOU ARE ADVISED, THEREFORE, THAT THE SALARY RATES OF ALL EMPLOYEES UNDER THE OFFICE OF THE RECORDER OF DEEDS SHOULD BE READJUSTED EFFECTIVE AS OF JULY 1, 1928, AND TO CONTINUE EFFECTIVE THEREAFTER, IN ACCORDANCE WITH THE DECISIONS OF THIS OFFICE; AND THAT ONLY THE PROPER AMOUNTS OF INCREASES DIRECTLY RESULTING FROM THE WELCH ACT SHOULD BE SUBMITTED TO THE CONGRESS UNDER THE WELCH ACT FOR A DEFICIENCY APPROPRIATION.

FOR ASSISTANCE IN MAKING THE PROPER ADJUSTMENTS, THE FOLLOWING EXAMPLES, TAKEN FROM THE PAY ROLLS FOR JUNE AND JULY, ARE GIVEN: CHART

GRADE RATE WELCH ACT

DEFICIENCY 1. RECORDER OF DEEDS:

JUNE 30, 1928- - - - - - - - - - - CAF-12 $5,600

JULY 1, 1928 - - - - - - - - - - - CAF-13 6,000 $400 2. FIRST DEPUTY RECORDER:

JUNE 30, 1928- - - - - - - - - - - CAF-10 3,500

JULY 1, 1928 - - - - - - - - - - -" " 3,700 200 3. SECOND DEPUTY RECORDER:

JUNE 30, 1928- - - - - - - - - - - CAF-8 2,900

JULY 1, 1928 - - - - - - - - - - - CAF-3 3,100 200

(THE ABOVE THREE OFFICERS WERE GIVEN

NO NET INCREASE IN COMPENSATION, BUT

IT WAS PROPOSED TO CHARGE THE AMOUNTS

AS INDICATED TO THE DEFICIENCY.) 4. IDA JENKINS STRACHAN:

JUNE 30, 1928- - - - - - - - - - - CAF-3 1,740

JULY 1, 1928 - - - - - - - - - - - " " 1,800 60

(THIS EMPLOYEE'S NET INCREASE OF

$60 PER ANNUM WAS CORRECT, BUT IT WAS

PROPOSED TO CHARGE $120 TO THE

DEFICIENCY.) 5. RUBY B. CAVE:

JUNE 30, 1928- - - - - - - - - - - CAF-3 1,620

JULY 1, 1928 - - - - - - - - - - - " " 1,740 120

(THE NET INCREASE GIVEN THIS

EMPLOYEE WAS ONLY $60 AND SHOULD HAVE

BEEN $120.) 6. ROMEO W. HORAD:

JUNE 30, 1928- - - - - - - - - - - CAF-2 1,680

JULY 1, 1928 - - - - - - - - - - - " " 1,740 60

(THE ROLL SHOWED THIS EMPLOYEE AS

REDUCED TO $1,620 EFFECTIVE JULY 1,

1928, A NET LOSS OF $60, ALTHOUGH

IT WAS PROPOSED TO CHARGE $60 TO THE

DEFICIENCY.)

IF YOU ARE IN DOUBT AS TO THE PROPER ADJUSTMENT IN ANY PARTICULAR CASE, THE SAME SHOULD BE SPECIFICALLY SUBMITTED TO THIS OFFICE FOR DECISION. SUPPLEMENTAL PAY ROLLS PURSUANT TO THIS DECISION SHOULD BE SUBMITTED TO THIS OFFICE FOR AUDIT.