A-25355, DECEMBER 12, 1928, 8 COMP. GEN. 296

A-25355: Dec 12, 1928

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CLASSIFICATION OF CIVILIAN EMPLOYEES - AUTHORITY OF THE PERSONNEL CLASSIFICATION BOARD TO REALLOCATE POSITIONS AS AFFECTING SALARY PAYMENTS AS THE PERSONNEL CLASSIFICATION BOARD IS WITHOUT AUTHORITY UNDER THE ORIGINAL CLASSIFICATION ACT OF 1923. ACTION BY THE BOARD ON ITS OWN MOTION PURPORTING TO REALLOCATE DOWNWARD THE EXISTING ALLOCATION OF A POSITION IS WITHOUT EFFECT TO REDUCE THE SALARY RATE OF THE EMPLOYEE. THE QUESTION AS TO THE RIGHT OF THE PERSONNEL CLASSIFICATION BOARD TO MAKE THIS REALLOCATION WAS REFERRED BY ME TO THE JUDGE ADVOCATE GENERAL OF THE ARMY. ADVISED THAT IN HIS OPINION THE BOARD WAS WITHOUT AUTHORITY ON ITS OWN MOTION TO REVIEW THE ALLOCATIONS AND RECLASSIFY THE POSITIONS.

A-25355, DECEMBER 12, 1928, 8 COMP. GEN. 296

CLASSIFICATION OF CIVILIAN EMPLOYEES - AUTHORITY OF THE PERSONNEL CLASSIFICATION BOARD TO REALLOCATE POSITIONS AS AFFECTING SALARY PAYMENTS AS THE PERSONNEL CLASSIFICATION BOARD IS WITHOUT AUTHORITY UNDER THE ORIGINAL CLASSIFICATION ACT OF 1923, OR OTHERWISE, TO REVIEW ON ITS OWN MOTION, IN THE ABSENCE OF A REQUEST OR RECOMMENDATION BY AN ADMINISTRATIVE OFFICE OR AN APPEAL BY AN EMPLOYEE, ANY EXISTING ALLOCATION PREVIOUSLY APPROVED BY IT, ACTION BY THE BOARD ON ITS OWN MOTION PURPORTING TO REALLOCATE DOWNWARD THE EXISTING ALLOCATION OF A POSITION IS WITHOUT EFFECT TO REDUCE THE SALARY RATE OF THE EMPLOYEE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, DECEMBER 12, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF DECEMBER 3, 1928, AS FOLLOWS:

THE PERSONNEL CLASSIFICATION BOARD, WITHOUT NOTICE TO THE WAR DEPARTMENT OR TO THE EMPLOYEE CONCERNED AND WITHOUT REQUEST FROM THE WAR DEPARTMENT, ISSUED AN ORDER REALLOCATING FROM C.A.F., GRADE 6, TO C.A.F., GRADE 5, THE POSITION HELD BY MISS MABEL M. DONNELLY IN THE OFFICE OF THE QUARTERMASTER GENERAL, WAR DEPARTMENT, AND THE POSITION HELD BY MRS. DOROTHY H. HEADLEY IN THE SAME OFFICE, FROM C.A.F., GRADE 4, TO C.A.F., GRADE 3. THE ALLOCATION OF THESE POSITIONS TO THE HIGHER GRADES HAD PREVIOUSLY BEEN APPROVED BY THE CLASSIFICATION BOARD AND THERE HAD BEEN NO CHANGE IN THE DUTIES OF THESE POSITIONS SINCE FINAL APPROVAL OF THE ALLOCATIONS BY THE BOARD.

THE QUESTION AS TO THE RIGHT OF THE PERSONNEL CLASSIFICATION BOARD TO MAKE THIS REALLOCATION WAS REFERRED BY ME TO THE JUDGE ADVOCATE GENERAL OF THE ARMY, WHO UNDER DATE OF OCTOBER 11, 1928, ADVISED THAT IN HIS OPINION THE BOARD WAS WITHOUT AUTHORITY ON ITS OWN MOTION TO REVIEW THE ALLOCATIONS AND RECLASSIFY THE POSITIONS. AS SUSTAINING HIS VIEWS THE JUDGE ADVOCATE GENERAL CITED THE OPINION OF THE ATTORNEY GENERAL OF FEBRUARY 1, 1924 (34 OPS.ATTY.GEN. 98, 100), AND YOUR DECISION OF JUNE 26, 1928 (7 COMP. GEN. 820). THE JUDGE ADVOCATE GENERAL SUGGESTED THAT POSSIBLY THE PERSONNEL CLASSIFICATION BOARD MIGHT HAVE OVERLOOKED THE OPINION AND THE DECISION REFERRED TO ABOVE. APPRECIATING THE FORCE OF THE SUGGESTION THE ACTING SECRETARY OF WAR ADDRESSED A LETTER ON OCTOBER 11, 1928, TO THE PERSONNEL CLASSIFICATION BOARD INVITING ATTENTION TO THE PRECEDENTS REFERRED TO AND REQUESTED THAT IT REVOKE ITS ORDERS WITH REFERENCE TO THE REALLOCATION OF THE POSITIONS. TO THIS LETTER THE BOARD REPLIED UNDER DATE OF NOVEMBER 15, 1928, WITHOUT REFERRING TO THE AUTHORITIES CITED, TO THE EFFECT THAT AFTER CAREFUL REVIEW OF ALL THE FACTS IT IS STILL OF THE OPINION THAT THESE POSITIONS ARE NOW CORRECTLY ALLOCATED, AND THAT IT ADHERES TO ITS FORMER ACTION IN THE MATTER.

IN VIEW OF THE FACTS SET FORTH ABOVE AND CONTAINED IN THE FILE OF PAPERS HEREWITH TRANSMITTED, WHICH INCLUDES THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY AND THE CORRESPONDENCE ABOVE REFERRED TO, YOUR DECISION IS REQUESTED AS TO WHETHER THE ACTION OF THE PERSONNEL CLASSIFICATION BOARD UNDER THE CIRCUMSTANCES OF THESE CASES IS AUTHORIZED.

IT APPEARS FROM YOUR SUBMISSION THAT NEITHER THE ADMINISTRATIVE OFFICE NOR THE EMPLOYEES IN QUESTION REQUESTED ACTION BY THE PERSONNEL CLASSIFICATION BOARD WITH RESPECT TO THE PREVIOUSLY APPROVED ALLOCATIONS OF THE POSITIONS OCCUPIED BY THE TWO EMPLOYEES MENTIONED.

IN DECISION OF JUNE 26, 1928, 7 COMP. GEN. 820, 825, IT WAS STATED:

IT IS NOT UNDERSTOOD THAT THE BOARD HAS THE POWER UNDER THE ORIGINAL CLASSIFICATION ACT TO REVIEW, ON ITS OWN MOTION IN THE ABSENCE OF A REQUEST, OR RECOMMENDATION BY AN ADMINISTRATIVE OFFICE OR AN APPEAL BY THE EMPLOYEE, ANY EXISTING ALLOCATION PREVIOUSLY APPROVED BY IT. * * *

WHILE THIS STATEMENT WAS MADE IN CONNECTION WITH THE FINALITY OF ADMINISTRATIVE ADJUSTMENTS UNDER THE WELCH ACT OF MAY 28, 1928, 45 STAT. 776, IT WAS, NEVERTHELESS, INTENDED TO BE APPLICABLE WITH RESPECT TO THE FINALITY OF ALLOCATIONS AND REALLOCATIONS MADE INDEPENDENTLY OF THE APPLICATION OF THE ADMINISTRATIVE PROVISIONS OF THE SAID WELCH ACT. SEE, ALSO, 34 OP.ATTY.GEN. 98, 100.

THE PERSONNEL CLASSIFICATION BOARD DERIVES ITS AUTHORITY AND JURISDICTION ONLY FROM THE PROVISIONS APPEARING IN THE ORIGINAL CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1488. THE ONLY AUTHORITY VESTED IN THE BOARD UNDER SAID ACT IS THAT CONFERRED IN SECTIONS 3, 4, 5, 9, AND 12 THEREOF, PAGES 1489, 1490, AND 1491. SECTION 3 ESTABLISHED THE BOARD, DESIGNATED ITS PERSONNEL, PROVIDED FOR TEMPORARY DETAIL THERETO OF EMPLOYEES FROM THE EXECUTIVE DEPARTMENTS, AUTHORIZED THE BOARD TO MAKE ALL NECESSARY RULES AND REGULATIONS NOT INCONSISTENT WITH THE PROVISIONS OF THE ACT, TO SUBDIVIDE CLASSES OF POSITIONS IN THE DISTRICT OF COLUMBIA INTO GRADES AND CLASSES WITH TITLE ACCORDING TO THE KIND AND CHARACTER AND DIFFICULTY OF THE WORK, AND TO READJUST SUCH GRADES AND CLASSES WHEN NECESSARY. SECTION 5 RELATES TO THE FIELD SURVEY. SEE, ALSO, SECTION 2 OF THE WELCH ACT. SECTION 9 RELATES TO EFFICIENCY RATINGS. SECTION 12 AUTHORIZED AND DIRECTED THE BOARD TO MAKE RECOMMENDATIONS TO THE CONGRESS WITH RESPECT TO THE NECESSITY FOR ADJUSTMENTS IN THE COMPENSATION SCHEDULES. HENCE, THE ONLY PROVISION RELATIVE TO THE PROCEDURE FOR ALLOCATIONS AND REALLOCATIONS OF POSITIONS IS THAT APPEARING IN SECTION 4, WHICH IS AS FOLLOWS:

THAT AFTER CONSULTATION WITH THE BOARD, AND IN ACCORDANCE WITH THE UNIFORM PROCEDURE PRESCRIBED BY IT, THE HEAD OF EACH DEPARTMENT SHALL ALLOCATE ALL POSITIONS IN HIS DEPARTMENT IN THE DISTRICT OF COLUMBIA TO THEIR APPROPRIATE GRADES IN THE COMPENSATION SCHEDULES AND SHALL FIX THE RATE OF COMPENSATION OF EACH EMPLOYEE THEREUNDER, IN ACCORDANCE WITH THE RULES PRESCRIBED IN SECTION 6 HEREIN. SUCH ALLOCATION SHALL BE REVIEWED AND MAY BE REVISED BY THE BOARD AND SHALL BECOME FINAL UPON THEIR APPROVAL BY SAID BOARD. WHENEVER AN EXISTING POSITION OR A POSITION HEREAFTER CREATED BY LAW SHALL NOT FAIRLY AND REASONABLY BE ALLOCABLE TO ONE OF THE GRADES OF THE SEVERAL SERVICES DESCRIBED IN THE COMPENSATION SCHEDULES, THE BOARD SHALL ADOPT FOR SUCH POSITION THE RANGE OF COMPENSATION PRESCRIBED FOR A GRADE, OR A CLASS THEREOF, COMPARABLE THEREWITH AS TO QUALIFICATIONS AND DUTIES.

UNDER THIS SECTION ALL ACTION WITH RESPECT TO ALLOCATION OR REALLOCATION OF POSITIONS IS DIRECTED TO BE INITIATED BY OR THROUGH THE ADMINISTRATIVE OFFICE. APPEALS BY EMPLOYEES ARE NOT SPECIFICALLY PROVIDED BY THE STATUTE, BUT, WHEN MADE AND SUBMITTED THROUGH THE ADMINISTRATIVE OFFICE IN ACCORDANCE WITH CIRCULAR NO. 22 OF THE PERSONNEL CLASSIFICATION BOARD, DATED JULY 7, 1925, ARE NOT INCONSISTENT WITH THE TERMS OF THE STATUTE, AND, THEREFORE, MAY BE REGARDED AS AUTHORIZED UNDER SECTION 3 OF THE STATUTE PROVIDING THAT "THE BOARD SHALL MAKE ALL NECESSARY RULES AND REGULATIONS NOT INCONSISTENT WITH THE PROVISIONS OF THIS ACT.' WHEN THE ADMINISTRATIVE OFFICE HAS ACTED AND ALLOCATED OR REALLOCATED A POSITION, OR APPROVED OR DISAPPROVED AN APPEAL, THE BOARD IS REQUIRED TO REVIEW AND MAY REVISE THE ACTION OF THE ADMINISTRATIVE OFFICE. IT IS SPECIFICALLY PROVIDED THAT THE ALLOCATIONS WHEN REVIEWED SHALL BECOME FINAL UPON APPROVAL BY THE BOARD.

THE LAST SENTENCE OF THE SECTION RELATES ONLY TO SUCH POSITIONS EXISTING WHEN THE ACT WENT INTO EFFECT AND NEW POSITIONS THEREAFTER CREATED BY LAW, AS THE ADMINISTRATIVE OFFICE SHOULD FIND TO BE NOT FAIRLY AND REASONABLY ALLOCABLE TO ONE OF THE GRADES OF THE SEVERAL SERVICES DESCRIBED IN THE COMPENSATION SCHEDULE, AND REQUIRES THAT IN SUCH CASES THE BOARD SHALL DETERMINE THE MATTER AS NEAR AS MAY BE AND "ADOPT FOR SUCH POSITION THE RANGE OF COMPENSATION PRESCRIBED FOR A GRADE, OR A CLASS THEREOF, COMPARABLE THEREWITH AS TO QUALIFICATIONS AND DUTIES.' THIS AUTHORITY VESTED IN THE BOARD WAS INTENDED SOLELY FOR UNUSUAL POSITIONS WHICH THE ADMINISTRATIVE OFFICE WAS UNABLE TO RECOMMEND FOR ALLOCATION TO EXISTING GRADES UNDER THE DESCRIPTIONS GIVEN IN THE ACT, AND WAS NOT INTENDED TO VEST IN THE BOARD AN ORIGINAL JURISDICTION ON ITS OWN MOTION TO ALLOCATE AND REALLOCATE POSITIONS.

THERE HAS NOT BEEN OVERLOOKED THE INHERENT RIGHT IN SOME GOVERNMENT OFFICERS, BOARDS, AND COMMISSIONS TO ACT ON THEIR OWN MOTION ON MATTERS PROPERLY WITHIN THE SCOPE OF THEIR AUTHORITY; BUT THE VERY NATURE OF THE RELATIONSHIP BETWEEN THE PERSONNEL OF THE GOVERNMENT AND THE SEVERAL ADMINISTRATIVE OFFICES IMPELS THE VIEW THAT THE CONGRESS COULD NOT HAVE INTENDED ANY SUCH INHERENT RIGHT TO HAVE BEEN VESTED IN THE PERSONNEL CLASSIFICATION BOARD. COMPENSATION SCHEDULES WITH A RANGE OF SALARY RATES PROVIDING FOR INCREASES OF COMPENSATION FOR EFFICIENCY WERE ESTABLISHED FOR THE PURPOSE OF MAINTAINING STABILITY OF SALARY RATES IN THE GOVERNMENT SERVICE WHICH IS ESSENTIAL FOR THE BEST INTERESTS OF THE GOVERNMENT'S BUSINESS AND THE MORALE OF THE EMPLOYEES. IT WOULD BE MOST UNREASONABLE TO CONCLUDE, IN THE ABSENCE OF SPECIFIC AND DEFINITE STATUTORY LANGUAGE TO THAT EFFECT, THAT THE CONGRESS INTENDED THAT SALARY RATES WHICH HAD BEEN PAID OVER AN EXTENDED PERIOD MIGHT BE SUDDENLY REDUCED, AS ATTEMPTED IN THESE INSTANCES, BY THE VOLUNTARY ACTION OF A BOARD OR AUTHORITY ENTIRELY OUTSIDE OF, AND NOT SUBJECT TO THE JURISDICTION OF, THE ADMINISTRATIVE OFFICE IN WHICH THE EMPLOYEES PERFORM SERVICE AND ARE PAID.

PRIOR TO THE CLASSIFICATION ACT OF 1923 CHANGES IN SALARY RATES WERE IN MOST INSTANCES MADE ONLY BY THE CONGRESS, ON THE RECOMMENDATION OF THE HEADS OF THE DEPARTMENTS OR ESTABLISHMENTS CONCERNED, AND IT MAY NOT BE ASSUMED THAT THE CONGRESS INTENDED, BY THE CLASSIFICATION ACT, TO ESTABLISH A BOARD WHICH COULD, ON ITS OWN MOTION AND WITHOUT THE RECOMMENDATION OR ACTION OF THE ADMINISTRATIVE OFFICE, CHANGE THE SALARY RATES UPWARD OR DOWNWARD. THE CONGRESS VERY WISELY PROVIDED FOR FINALITY OF ACTION AND A PROCEDURE TO PROTECT AGAINST THE ARBITRARY ACTION OF EITHER THE ADMINISTRATIVE OFFICE OR THE PERSONNEL CLASSIFICATION BOARD BY REQUIRING THE COMBINED ACTION OF BOTH IN ALL CASES OF ALLOCATIONS OR REALLOCATIONS OF POSITIONS.

ANSWERING SPECIFICALLY THE QUESTION PRESENTED IN YOUR SUBMISSION, I HAVE TO ADVISE THAT IF THE PREVIOUSLY APPROVED ALLOCATIONS OF THE TWO POSITIONS REFERRED TO WERE NOT THEREAFTER MADE THE SUBJECT OF A REQUEST BY THE ADMINISTRATIVE OFFICE OR THE EMPLOYEES HOLDING THE POSITIONS FOR REALLOCATION BY THE PERSONNEL CLASSIFICATION BOARD, THE ACTION OF THE PERSONNEL CLASSIFICATION BOARD PURPORTING TO REALLOCATE THESE POSITIONS IN LOWER GRADES, WAS WITHOUT EFFECT TO CHANGE THE SALARY RATES OF THE EMPLOYEES WHICH MAY CONTINUE TO BE PAID IN ACCORDANCE WITH THE FORMER ALLOCATIONS PREVIOUSLY APPROVED. SEE DECISION OF NOVEMBER 8, 1928, A- 24901, 8 COMP. GEN. 248.