A-26082, FEBRUARY 27, 1929, 8 COMP. GEN. 467

A-26082: Feb 27, 1929

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THERE IS FOR DETERMINATION WHETHER THE INITIAL SALARY RATE OF $2. IS LEGAL AND PROPER. UPON REQUEST FROM THIS OFFICE THERE WAS FURNISHED UNDER DATE OF JANUARY 24. A CERTIFICATE SHOWING THE NUMBER OF YEARS' SATISFACTORY SERVICE OF THE CUSTOMS CLERKS WHO WERE SHOWN TO HAVE BEEN GIVEN AUTOMATIC INCREASES IN SALARY EFFECTIVE JULY 1. IT IS STATED IN THE CERTIFICATE THAT. WAS REINSTATED DEC. 5. IT IS UNDERSTOOD THE REINSTATEMENT ON DECEMBER 5. WAS AS A CLERK IN THE CUSTOMS SERVICE. PROVIDES AS FOLLOWS: THAT THE FOLLOWING ANNUAL RATES OF COMPENSATION ARE HEREBY ESTABLISHED FOR THE EMPLOYEES IN THE CUSTOMS SERVICE HEREINAFTER SPECIFIED: (C) CLERKS. 4 YEARS' SATISFACTORY SERVICE MUST HAVE BEEN CONTINUOUS TO ENTITLE CUSTOMS CLERKS TO THE RESPECTIVE SALARY GRADES FIXED BY THE LAW.

A-26082, FEBRUARY 27, 1929, 8 COMP. GEN. 467

COMPENSATION - AUTOMATIC INCREASE - CUSTOMS SERVICE EMPLOYEES THE 1, 2, 3, AND 4 YEARS' SATISFACTORY SERVICE REQUIRED TO ENTITLE CUSTOMS CLERKS TO PLACEMENT IN AUTOMATIC SALARY GRADES AS OF JULY 1, 1928, AND TO AUTOMATIC PROMOTION THEREAFTER UNDER THE ACT OF MAY 29, 1928, 45 STAT. 955, MUST BE CONTINUOUS AND IMMEDIATELY PRECEDING THE PLACEMENT OR PROMOTION, AND THERE MAY NOT BE INCLUDED TIME SERVED AS A CLERK IN SOME OTHER BRANCH OF THE GOVERNMENT, SUCH AS A POSTAL CLERK, OR AS A CUSTOMS INSPECTOR.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 27, 1929:

IN CONNECTION WITH THE AUDIT OF THE JULY, 1928, ACCOUNTS OF THE COLLECTOR OF CUSTOMS, ANTHONY CZARNECKI, CHICAGO, ILL., THERE IS FOR DETERMINATION WHETHER THE INITIAL SALARY RATE OF $2,100 PER ANNUM PAID FRANK G. TOREN, CLERK, EFFECTIVE JULY 1, 1928, IS LEGAL AND PROPER, HIS SALARY THEREFORE HAVING BEEN AT THE RATE OF $1,860 PER ANNUM.

UPON REQUEST FROM THIS OFFICE THERE WAS FURNISHED UNDER DATE OF JANUARY 24, 1929, A CERTIFICATE SHOWING THE NUMBER OF YEARS' SATISFACTORY SERVICE OF THE CUSTOMS CLERKS WHO WERE SHOWN TO HAVE BEEN GIVEN AUTOMATIC INCREASES IN SALARY EFFECTIVE JULY 1, 1928, UNDER THE ACT OF MAY 29, 1928, 45 STAT. 955. WITH RESPECT TO FRANK G. TOREN, IT IS STATED IN THE CERTIFICATE THAT---

FRANK G. TOREN SERVED AS CLERK IN THE POST OFFICE FROM FEB. 11, 1905, TO AUGUST 8, 1907; AND AS INSPECTOR IN THE CUSTOMS SERVICE AT CHICAGO FROM AUGUST 8, 1907, TO JULY 1, 1920, AND WAS REINSTATED DEC. 5, 1925.

IT IS UNDERSTOOD THE REINSTATEMENT ON DECEMBER 5, 1925, WAS AS A CLERK IN THE CUSTOMS SERVICE.

THE ACT OF MAY 29, 1928, SUPRA, 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 OF EMPLOYEES SPECIFIED IN SECTION 1 SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE SALARY RANGE.

THE CASE PRESENTS FOR CONSIDERATION AND DECISION THREE QUESTIONS UNDER THE CONTROLLING STATUTE, AS FOLLOWS: (1) WHETHER THE 1, 2, 3, AND 4 YEARS' SATISFACTORY SERVICE MUST HAVE BEEN CONTINUOUS TO ENTITLE CUSTOMS CLERKS TO THE RESPECTIVE SALARY GRADES FIXED BY THE LAW; (2) WHETHER SERVICE AS A POSTAL CLERK MAY BE INCLUDED IN COMPUTING LONGEVITY PLACEMENT IN THE AUTOMATIC SALARY GRADES OF CUSTOMS CLERKS EFFECTIVE JULY 1, 1928, OR FOR AUTOMATIC PROMOTION THEREAFTER; AND (3) WHETHER SERVICE AS CUSTOMS INSPECTOR MAY BE INCLUDED IN COMPUTING SUCH LONGEVITY OF CUSTOMS CLERKS.

(1) UNDER A SIMILAR STATUTE GOVERNING AUTOMATIC PROMOTION OF RAILWAY POSTAL CLERKS, ACT OF JUNE 5, 1920, 41 STAT. 1050, 1053 (SEE ALSO ACT OF FEBRUARY 28, 1925, 43 STAT. 1062), IT WAS HELD, IN DECISION OF NOVEMBER 29, 1922, 2 COMP. GEN. 363, AS FOLLOWS (QUOTING, IN PART, FROM THE SYLLABUS):

THE ONE YEAR'S SATISFACTORY SERVICE REQUIRED TO ENTITLE RAILWAY POSTAL CLERKS TO AUTOMATIC PROMOTION UNDER THE ACT OF JUNE 5, 1920, 41 STAT. 1050, 1053, MUST BE CONTINUOUS AND IMMEDIATELY PRECEDE THE PROMOTION, * *

ALSO, IN DECISION DATED FEBRUARY 21, 1922, 1 COMP. GEN. 444, WHEREIN WAS CITED 1 ID. 340, AND 24 COMP. DEC. 356, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

A SUBSTITUTE RAILWAY POSTAL CLERK WHO BECOMES COMPLETELY SEPARATED FROM THE SERVICE DURING THE FIRST CALENDAR YEAR OF HIS SERVICE AS SUCH AND WHO IS THEREAFTER REINSTATED WILL NOT BE ENTITLED TO RECEIVE THE PAY OF A SUBSTITUTE OF GRADE TWO UNTIL AFTER ONE FULL CALENDAR YEAR'S SERVICE AFTER REINSTATEMENT.

THE INSTANT CASE IS ANALOGOUS AND QUESTION (1) AS ABOVE STATED IS ANSWERED IN THE AFFIRMATIVE.

(2) IN DECISION OF SEPTEMBER 29, 1928, 8 COMP. GEN. 152, 153, WHEREIN WAS CONSIDERED THE CUSTOMS SERVICE ACT OF MAY 29, 1928, IT WAS HELD THAT TRANSFERS FROM SOME OTHER BRANCH OF THE GOVERNMENT SERVICE SHOULD BE CONSIDERED AS "NEW APPOINTMENTS" WITHIN THE MEANING OF SECTION 2 OF THE ACT, AND THAT EMPLOYEES SO TRANSFERRED SHOULD BE PAID INITIALLY AT THE MINIMUM SALARY RATE PROVIDED FOR EACH CLASS OF POSITIONS SPECIFIED IN THE ACT. IT FOLLOWS, THEREFORE, THAT PRIOR CLERICAL SERVICE IN SOME OTHER BRANCH OF THE GOVERNMENT, SUCH AS A POSTAL CLERK, COULD NOT BE INCLUDED IN COMPUTING LONGEVITY OF CUSTOMS CLERKS FOR PLACEMENT AS OF JULY 1, 1928, OR FOR AUTOMATIC PROMOTION THEREAFTER. SEE, GENERALLY, 4 COMP. GEN. 495, AS TO REINSTATEMENTS IN DIFFERENT POSITIONS CONSTITUTING, IN EFFECT,"NEW APPOINTMENTS" UNDER THE CLASSIFICATION ACT OF 1923, AND ARTICLE 1308, CUSTOMS REGULATIONS, 1923, LIMITING REINSTATEMENTS IN THE CUSTOMS SERVICE TO "WITHIN A PERIOD NOT EXCEEDING FIVE YEARS FROM THEIR SEPARATION FROM THE SERVICE UNDER THE PROVISIONS OF RULE IX OF THE CIVIL-SERVICE RULES, AS AMENDED.' SEE, ALSO, WHAT WAS STATED WITH RESPECT TO RAILWAY POSTAL CLERKS IN DECISION OF OCTOBER 28, 1927, 7 COMP. GEN. 295, 297. ACCORDINGLY, EVEN IF THE SERVICE PERFORMED BY TOREN AS A POSTAL CLERK AND AS A CUSTOMS CLERK HAD BEEN CONTINUOUS, QUESTION (2) WOULD BE ANSWERED IN THE NEGATIVE.

(3) THE DECISION OF SEPTEMBER 29, 1928, SUPRA, HELD, ALSO, THAT TRANSFERS FROM SOME OTHER BRANCH OF THE CUSTOMS SERVICE TO ANY OF THE CLASSES OF POSITIONS SPECIFIED IN THE ACT OF MAY 29, 1928, SHOULD BE CONSIDERED AS "NEW APPOINTMENTS" WITHIN THE MEANING OF SECTION 2THEREOF. WHAT HAS BEEN STATED IN THE ANSWER TO QUESTION (2) IS EQUALLY APPLICABLE IN ANSWERING THIS QUESTION. ACCORDINGLY, EVEN IF THE SERVICE PERFORMED BY TOREN AS CUSTOMS INSPECTOR AND CUSTOMS CLERK HAD BEEN CONTINUOUS, QUESTION (3) WOULD BE ANSWERED IN THE NEGATIVE.

ON JULY 1, 1928, FRANK G. TOREN WAS ENTITLED TO COUNT AS LONGEVITY UNDER THE PROVISIONS OF THE ACT OF MAY 29, 1928, ONLY THE SERVICE AS CUSTOMS CLERK FROM DECEMBER 5, 1925, TO AND INCLUDING JUNE 30, 1928, WHICH IS MORE THAN TWO YEARS' AND LESS THAN THREE YEARS' SERVICE. THEREFORE, HIS SALARY RATE FROM JULY 1, 1928, TO DECEMBER 4, 1928, INCLUSIVE, SHOULD HAVE BEEN $1,900 PER ANNUM, AND THEREAFTER $2,000 PER ANNUM. CREDIT FOR AN AMOUNT REPRESENTING THE DIFFERENCE BETWEEN THOSE RATES AND THE RATE PAID, $2,100 PER ANNUM, WILL BE DISALLOWED IN THE ACCOUNTS OF THE COLLECTOR. THE EMPLOYEE'S SALARY SHOULD BE ADJUSTED ACCORDINGLY.

IN THIS CONNECTION ATTENTION IS INVITED TO THE FOLLOWING FROM DECISION OF JUNE 16, 1927, 6 COMP. GEN. 826, 827:

* * * IT MAY BE STATED IN THIS CONNECTION THAT THE INTERESTS OF THE GOVERNMENT AND THE OTHERS CONCERNED WOULD BE BEST SERVED IF DOUBTFUL QUESTIONS OF LAW INVOLVING EXPENDITURES OF PUBLIC FUNDS UNDER NEW STATUTES WERE SUBMITTED TO THIS OFFICE AS SOON AS POSSIBLE AFTER THE PASSAGE OF THE ACT AND IN ADVANCE OF ANY EXPENDITURES THEREUNDER.