A-29246, DECEMBER 2, 1929, 9 COMP. GEN. 229

A-29246: Dec 2, 1929

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CLASSIFICATION OF CIVILIAN EMPLOYEES - LIGHTHOUSE SERVICE THE SALARY RATES OF FIELD EMPLOYEES UNDER THE LIGHTHOUSE SERVICE ARE CONTROLLED BY SECTION 3 OF THE ACT OF MAY 28. THE PROVISIONS OF WHICH ARE INCONSISTENT WITH THE GRANTING OF LONGEVITY INCREASES IN COMPENSATION BASED SOLELY ON ADMINISTRATIVE ACTION. CREDIT WAS WITHHELD IN THE SUM OF $6.67. WAS INCREASED JULY 1. IT WAS EXPLAINED THAT THIS SECOND PROMOTION WAS MADE PURSUANT TO THE PROVISIONS OF THE REGULATIONS OF THE LIGHTHOUSE SERVICE. THE QUESTIONS PRESENTED BY THIS ACCOUNT AND OTHER PAYROLL ACCOUNTS SUBMITTED TO THIS OFFICE ARE (1) WHETHER THE SALARY RATES OF FIELD EMPLOYEES UNDER THE LIGHTHOUSE SERVICE ARE CONTROLLED BY SECTION 3 OF THE ACT OF MAY 28.

A-29246, DECEMBER 2, 1929, 9 COMP. GEN. 229

CLASSIFICATION OF CIVILIAN EMPLOYEES - LIGHTHOUSE SERVICE THE SALARY RATES OF FIELD EMPLOYEES UNDER THE LIGHTHOUSE SERVICE ARE CONTROLLED BY SECTION 3 OF THE ACT OF MAY 28, 1928, 45 STAT. 776, THE PROVISIONS OF WHICH ARE INCONSISTENT WITH THE GRANTING OF LONGEVITY INCREASES IN COMPENSATION BASED SOLELY ON ADMINISTRATIVE ACTION. IN THE ABSENCE OF STATUTORY AUTHORITY THEREFOR, THE GRANTING OF LONGEVITY INCREASES IN COMPENSATION OF EMPLOYEES UNDER THE LIGHTHOUSE SERVICE MUST BE DISCONTINUED NOT LATER THAN DECEMBER 31, 1929.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, DECEMBER 2, 1929:

IN SETTLEMENT K-45947-C, DATED JUNE 20, 1929, COVERING THE COMMERCE ACCOUNT OF W. J. LAWTON, SPECIAL DISBURSING AGENT, FOR THE PERIOD JULY 1 TO SEPTEMBER 30, 1928, CREDIT WAS WITHHELD IN THE SUM OF $6.67, REPRESENTING THE AMOUNT PAID ON VOUCHER 1116 TO A. E. LARSON, MASTER, LIGHTHOUSE TENDER OAK, AS DIFFERENCE IN PAY AS MASTER FOR THE MONTH OF AUGUST, 1928, AT $2,800 PER ANNUM AND AT $2,880 PER ANNUM, IT APPEARING FROM VOUCHER 761, AUGUST, 1928, THAT THE MASTER'S COMPENSATION OF $2,700 PER ANNUM AS OF JUNE 30, 1928, WAS INCREASED JULY 1, 1928, TO $2,820 PER ANNUM UNDER THE ACT OF MAY 28, 1928, 45 STAT. 776, KNOWN AS THE WELCH ACT, AND FURTHER INCREASED AUGUST 1, 1928, TO $2,880 PER ANNUM.

IN LETTER FROM THE SPECIAL DISBURSING AGENT DATED SEPTEMBER 5, 1929, IT WAS EXPLAINED THAT THIS SECOND PROMOTION WAS MADE PURSUANT TO THE PROVISIONS OF THE REGULATIONS OF THE LIGHTHOUSE SERVICE, CIRCULAR LETTER N0. 369, DATED MARCH 12, 1923, AUTHORIZING AN INCREASE IN PAY OF $60 PER ANNUM FOR OFFICERS OF VESSELS AFTER 5 YEARS OF CONTINUOUS SERVICE AND AN ADDITIONAL $60 PER ANNUM AFTER THE EXPIRATION OF 10 YEARS' CONTINUOUS SERVICE, MR. LARSON HAVING COMPLETED 10 YEARS' CONTINUOUS SERVICE ON JULY 31, 1928.

THE QUESTIONS PRESENTED BY THIS ACCOUNT AND OTHER PAYROLL ACCOUNTS SUBMITTED TO THIS OFFICE ARE (1) WHETHER THE SALARY RATES OF FIELD EMPLOYEES UNDER THE LIGHTHOUSE SERVICE ARE CONTROLLED BY SECTION 3 OF THE ACT OF MAY 28, 1928, 45 STAT. 776; AND (2) IF SO, WHETHER THERE IS ANY LEGAL AUTHORITY FOR THE ADMINISTRATIVE REGULATIONS AUTHORIZING THE INCREASE OF COMPENSATION BASED ON LONGEVITY.

REPLYING TO OFFICE LETTER DATED SEPTEMBER 25, 1929, THE ACTING COMMISSIONER OF LIGHTHOUSES ADVISED UNDER DATE OF OCTOBER 10, 1929, AS FOLLOWS:

LIGHTHOUSE VESSEL EMPLOYEES ARE PAID FROM THE APPROPRIATION "SALARIES LIGHTHOUSE VESSELS.' THIS CLASS OF EMPLOYEE HAS NOT BEEN INCLUDED UNDER THE PROVISIONS OF THE CLASSIFICATION ACT SO AS TO PROVIDE PAY RANGES OF SEVERAL STEPS; AND THEIR PAY IS ADJUSTED FROM TIME TO TIME BY THE SECRETARY OF COMMERCE TO COMPARE WITH THE MERCHANT MARINE AND OTHER GOVERNMENT SERVICES SO FAR AS PRACTICABLE WITHIN THE APPROPRIATION MADE BY CONGRESS. IT IS CONSIDERED THAT SINCE THE SECRETARY OF COMMERCE HAS AUTHORITY TO FIX THE PAY OF THESE EMPLOYEES AS HE MAY CONSIDER PROPER AN EMPLOYEE'S PAY MAY, FOR PURPOSES OF ADMINISTRATION, BE ADJUSTED AT SUCH TIMES AND ON SUCH GROUNDS AS MAY BE ESTABLISHED BY DEPARTMENTAL POLICY IF NOT EXPRESSLY CONTRARY TO LAW. IN ACCORDANCE WITH SUCH UNDERSTANDING, THE INCREASES IN PAY REFERRED TO ARE MADE BASED ON THE LENGTH OF SERVICE OF THE EMPLOYEE AS MEASURING HIS EXPERIENCE AND MERITS, AND THE TERM "LONGEVITY" IS USED ADMINISTRATIVELY TO DISTINGUISH SUCH INCREASES FROM OTHER GENERAL PAY ADJUSTMENTS.

IT MAY BE ADDED THAT INCREASE OF PAY FOR LENGTH OF SERVICE IS NOT INVARIABLY GRANTED UNDER THIS SYSTEM, AS THERE HAVE BEEN CASES WHERE IT HAS BEEN WITHHELD ON ACCOUNT OF INEFFICIENCY. FURTHERMORE, WHEN A PROMOTION OF THIS KIND IS MADE THE ADDITIONAL PAY BECOMES MERGED SO THAT THE TOTAL PAY RECEIVED IS REGARDED AS THE BASE COMPENSATION, AND NOT SHOWN AS TWO AMOUNTS.

IN VIEW OF THE SPECIAL CIRCUMSTANCES AFFECTING THE CLASS OF EMPLOYEES IN QUESTION, IT IS BELIEVED THAT THE PROCEDURE DESCRIBED IS ONE WHICH IS WITHIN THE SCOPE OF DEPARTMENTAL REGULATION AND DOES NOT REQUIRE LEGISLATIVE AUTHORITY.

THE STATEMENTS DO NOT ENTIRELY AGREE WITH THE RECORDS OF THIS OFFICE, WHICH SHOW THAT THE SALARY RATES OF EMPLOYEES UNDER THE LIGHTHOUSE SERVICE WERE ADJUSTED EFFECTIVE JULY 1, 1924, PURSUANT TO THE PROVISIONS OF, AND UNDER AN APPROPRIATION PROVIDED BY THE ACT OF DECEMBER 6, 1924, 43 STAT. 704-706, AND AS EXTENDED OVER SUBSEQUENT FISCAL YEARS, AND AGAIN ADJUSTED EFFECTIVE JULY 1, 1928, PURSUANT TO THE PERMANENT PROVISIONS OF SECTION 3 OF THE ACT OF MAY 28, 1928, 45 STAT. 785, KNOWN AS THE WELCH ACT, WHICH READ:

THE HEADS OF THE SEVERAL EXECUTIVE DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS ARE AUTHORIZED TO ADJUST THE COMPENSATION OF CERTIAN CIVILIAN POSITIONS IN THE FIELD SERVICES, THE COMPENSATION OF WHICH WAS ADJUSTED BY THE ACT OF DECEMBER 6, 1924, TO CORRESPOND, SO FAR AS MAY BE PRACTICABLE, TO THE RATES ESTABLISHED BY THIS ACT FOR POSITIONS IN THE DEPARTMENTAL SERVICES IN THE DISTRICT OF COLUMBIA.

IN LETTER DATED DECEMBER 14, 1925, THE COMMISSIONER OF LIGHTHOUSES ADVISED THAT THE SALARY RATES HAD BEEN ADJUSTED UNDER THE ORIGINAL ACT OF DECEMBER 6, 1924, BUT STATED FURTHER AS FOLLOWS:

THE LONGEVITY SYSTEM IN FORCE FOR VESSEL OFFICERS AND CREWS OF THIS SERVICE, AS SET FORTH IN BUREAU CIRCULAR NO. 369 AND BUREAU LETTER DATED APRIL 30, 1924, TO THE SECRETARY OF COMMERCE EXTENDING THE LONGEVITY PAY TO OFFICERS ON VESSELS IN THE 13TH, 14TH, AND 15TH DISTRICTS, COPIES OF WHICH HAVE BEEN FURNISHED YOUR OFFICE HERETOFORE, WAS CONSIDERED AS REGULATORY MATTER FOR THE DEPARTMENT IN FIXING THE COMPENSATION OF LIGHTHOUSE SERVICE VESSEL EMPLOYEES, AND THE RATES OF PAY OF WHICH YOU WERE ADVISED IN LETTER OF OCTOBER 9, 1925, WERE ESTABLISHED SUBJECT TO THE OPERATION OF BUREAU CIRCULAR NO. 369, WHICH WAS CONTINUED AND STILL IS IN EFFECT AND WAS FULLY UNDERSTOOD AS MODIFYING THE RATES SO ESTABLISHED.

HOWEVER, WITH REFERENCE TO THE SAID CIRCULAR NO. 369, THIS OFFICE IN DECISION OF JANUARY 11, 1926, HELD AS FOLLOWS:

THE ACT OF DECEMBER 6, 1924, AUTHORIZED THE ADJUSTMENT OF COMPENSATION OF FIELD SERVICE EMPLOYEES TO CORRESPOND TO THE RATES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923 FOR POSITIONS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA, AND THE ACT OF JANUARY 22, 1925, PROVIDES THAT EMPLOYEES WHOSE PAY WAS THUS ADJUSTED MAY BE PAID FOR THE FISCAL YEAR 1926 RATES NOT IN EXCESS OF THOSE PERMITTED FOR THEM UNDER THE PROVISIONS OF THE ACT OF DECEMBER 6, 1924. THE COMMISSIONER OF LIGHTHOUSES STATES THAT THE LONGEVITY PRESCRIBED BY CIRCULAR 369 IS REGULATORY AND IN MODIFICATION OF THE ESTABLISHED RATES OF PAY. SUCH INDIVIDUAL INCREASES FOR LENGTH OF SERVICE, HOWEVER, ARE SPECIFICALLY PROHIBITED BY THE TERMS OF THE STATUTE THAT THE EMPLOYEES "MAY BE PAID * * * RATES NOT IN EXCESS" OF THOSE FIXED. THE LEGISLATIVE INTENT IS THAT THE RATES OF PAY ESTABLISHED FOR THE FISCAL YEAR 1925 SHALL NOT BE AUGMENTED BY ANY ADDITIONAL AMOUNT FOR ANY REASON WHATSOEVER. PAYMENT ON THE BASIS ESTABLISHED BY DEPARTMENTAL ACTION WILL BE PASSED DURING THE FISCAL YEAR 1926. IF, HOWEVER, THE SYSTEM OF LONGEVITY INCREASE IS TO BE CONTINUED THEREAFTER, LEGISLATION TO THAT EFFECT MUST AUTHORIZE IT.

EVIDENTLY THE ADMINISTRATIVE OFFICE DISREGARDED THE SAID DECISION OF THIS OFFICE. THERE CAN BE NO DOUBT BUT THAT THE SALARY RATES OF EMPLOYEES UNDER THE LIGHTHOUSE SERVICE ARE CONTROLLED BY THE PROVISIONS OF SECTION 3 OF THE ACT OF MAY 28, 1928, AND HAVE BEEN SO CONSIDERED. ACCORDINGLY, QUESTION 1 AS ABOVE STATED IS ANSWERED IN THE AFFIRMATIVE.

THE ALLOWANCE OF LONGEVITY INCREASES IN COMPENSATION IS INCONSISTENT WITH THE PROVISIONS OF SECTION 3 OF THE ACT OF MAY 28, 1928. BY SAID ACT ALL POSITIONS ARE REQUIRED TO BE PLACED OR ALLOCATED BY THE ADMINISTRATIVE OFFICE IN CERTAIN GRADES WITH A DEFINITE RANGE OF SALARY RATES CORRESPONDING WITH THE GRADE AND SALARY RANGE FIXED BY THE CLASSIFICATION ACT AS AMENDED FOR THE SAME OR SIMILAR POSITIONS IN THE DISTRICT OF COLUMBIA, AS NEAR AS MAY BE PRACTICABLE. IF THERE ARE NO POSITIONS IN THE DISTRICT OF COLUMBIA CORRESPONDING IDENTICALLY WITH CERTAIN POSITIONS IN THE LIGHTHOUSE SERVICE, THE POSITION MUST NEVERTHELESS BE PLACED OR ALLOCATED IN A DEFINITE GRADE AND THE SALARY RATES FIXED FOR THE POSITIONS MUST BE AT ONE OF THE SALARY RATES PRESCRIBED IN THE RANGE FOR THE GRADE. INCREASES OR DECREASES IN COMPENSATION MAY BE ONLY AT A SALARY RATE PRESCRIBED FOR THE SAME GRADE, UNLESS FOR GOOD CAUSE SHOWN THE POSITION IS REPLACED OR REALLOCATED BY THE ADMINISTRATIVE OFFICE IN ANOTHER GRADE. LONGEVITY INCREASES ARE NOT AUTHORIZED IN THE DISTRICT OF COLUMBIA AND, ACCORDINGLY, ARE NOT AUTHORIZED IN THE FIELD SERVICE. THE GIVING OF SUCH LONGEVITY INCREASES WOULD RESULT IN PAYMENT OF ODD SALARY RATES, AS, FOR INSTANCE, $2,880 PER ANNUM PAID TO A. E. LARSON, NOT PRESCRIBED BY THE CONTROLLING STATUTE, AND THEREFORE NOT AUTHORIZED; ALSO IN PAYMENT OF A SALARY RATE IN EXCESS OF THE GRADE IN WHICH THE POSITION HAS BEEN, OR SHOULD BE, PLACED OR ALLOCATED BY THE ADMINISTRATIVE OFFICE.

LONGEVITY INCREASES IN COMPENSATION FOR CIVILIAN EMPLOYEES IS A MATTER EXCLUSIVELY FOR THE DETERMINATION OF THE CONGRESS. SEE, FOR INSTANCE, THE POSTAL RECLASSIFICATION ACT OF FEBRUARY 28, 1925, 43 STAT. 1053, AND CUSTOMS CLASSIFICATION ACT OF MAY 29, 1928, 45 STAT. 955. NO STATUTORY AUTHORITY APPEARS TO HAVE BEEN GRANTED FOR LONGEVITY INCREASES OF COMPENSATION OF EMPLOYEES UNDER THE LIGHTHOUSE SERVICE. ACCORDINGLY QUESTION 2 IS ANSWERED IN THE NEGATIVE.

THE ADMINISTRATIVE OFFICE SHOULD IMMEDIATELY PROCEED TO MAKE PROPER ADJUSTMENT IN THE SALARY RATES FOR POSITIONS UNDER THE LIGHTHOUSE SERVICE IN ACCORDANCE WITH THE PURPOSE AND INTENT OF SECTION 3 OF THE ACT OF MAY 28, 1928, DISCONTINUING THE GRANTING OF LONGEVITY INCREASE OF COMPENSATION. ADJUSTMENTS MUST BE MADE EFFECTIVE IN ALL CASES NOT LATER THAN DECEMBER 31, 1929. PAYMENTS UNDER EXISTING ADMINISTRATIVE PRACTICE FOR PERIODS PRIOR TO JANUARY 1, 1930, WILL NOT BE DISTURBED IF OTHERWISE CORRECT.