A-29881, JANUARY 23, 1930, 9 COMP. GEN. 313

A-29881: Jan 23, 1930

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CREDIT FOR THE ITEM WAS WITHHELD BECAUSE OF A NOTATION APPEARING ON THE VOUCHER INDICATING THE INSPECTOR FIRST ENTERED ON DUTY JUNE 1. THAT HE WAS ENTITLED TO BE PAID ONLY AT THE INITIAL SALARY RATE OF $2. INSPECTORS SHALL BE PROMOTED SUCCESSIVELY TO GRADES 2 AND 3 AT THE BEGINNING OF THE NEXT QUARTER FOLLOWING ONE YEAR'S SATISFACTORY SERVICE (DETERMINED BY A STANDARD OF EFFICIENCY WHICH IS TO BE DEFINED BY THE COMMISSIONER GENERAL OF IMMIGRATION. UPON THE RECOMMENDATION OF THE COMMISSIONER GENERAL OF IMMIGRATION: * * * THE COMMISSIONER GENERAL OF IMMIGRATION HAS SUBMITTED THE FOLLOWING STATEMENT: INSPECTOR ALLEN IS NOT A NEW APPOINTEE. HE WAS ORIGINALLY APPOINTED TO THE POSITION OF IMMIGRANT INSPECTOR ON DECEMBER 2.

A-29881, JANUARY 23, 1930, 9 COMP. GEN. 313

COMPENSATION - IMMIGRATION INSPECTORS - REINSTATEMENT OR TRANSFER FROM OTHER POSITIONS UNDER THE PROVISIONS OF THE ACT OF MAY 29, 1928, 45 STAT. 954, EMPLOYEES MAY BE REINSTATED AND/OR TRANSFERRED FROM SOME OTHER BRANCH OF THE GOVERNMENT SERVICE, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, TO THE POSITION OF IMMIGRATION INSPECTOR WITH INITIAL SALARY RATE UPON REINSTATEMENT AND/OR TRANSFER IN AN AUTOMATIC SALARY GRADE OR SELECTIVE SALARY GRADE ABOVE THE MINIMUM. 8 COMP. GEN. 467 DISTINGUISHED.

DECISION BY THE COMPTROLLER GENERAL MCCARL, JANUARY 23, 1930:

THE DEPARTMENT OF LABOR, THROUGH THE COMMISSIONER GENERAL OF IMMIGRATION, HAS REQUESTED REVIEW OF THE ACTION OF THIS OFFICE IN NOT ALLOWING CREDIT IN SETTLEMENT K-51561-L, ACCOUNTS OF J. R. DEMOREST, DISBURSING CLERK, FOR $24 PAID TO IMMIGRATION INSPECTOR HARRY C. ALLEN, REPRESENTING THE DIFFERENCE IN SALARY BETWEEN THE RATE OF $2,100 AND $2,700 PER ANNUM FOR THE PERIOD JUNE 1 TO 15, 1929. CREDIT FOR THE ITEM WAS WITHHELD BECAUSE OF A NOTATION APPEARING ON THE VOUCHER INDICATING THE INSPECTOR FIRST ENTERED ON DUTY JUNE 1, 1929, AS A NEW APPOINTEE, AND, THEREFORE, THAT HE WAS ENTITLED TO BE PAID ONLY AT THE INITIAL SALARY RATE OF $2,100 PER ANNUM, THE RATE PRESCRIBED FOR GRADE 1 OF IMMIGRATION INSPECTORS BY THE ACT OF MAY 29, 1928, 45 STAT. 954, WHICH PROVIDES IN PART AS FOLLOWS:

IMMIGRANT INSPECTORS SHALL BE DIVIDED INTO FIVE GRADES, AS FOLLOWS: GRADE 1, SALARY $2,100; GRADE 2, SALARY $2,300; GRADE 3, SALARY $2,500; GRADE 4, SALARY $2,700; GRADE 5, SALARY $3,000; AND, HEREAFTER, INSPECTORS SHALL BE PROMOTED SUCCESSIVELY TO GRADES 2 AND 3 AT THE BEGINNING OF THE NEXT QUARTER FOLLOWING ONE YEAR'S SATISFACTORY SERVICE (DETERMINED BY A STANDARD OF EFFICIENCY WHICH IS TO BE DEFINED BY THE COMMISSIONER GENERAL OF IMMIGRATION, WITH THE APPROVAL OF THE SECRETARY OF LABOR) IN THE NEXT LOWER GRADE; NOT TO EXCEED 50 PERCENTUM OF THE FORCE TO GRADES 4 AND 5 FOR MERITORIOUS SERVICE AFTER NO LESS THAN ONE YEAR'S SERVICE IN GRADES 3 AND 4, RESPECTIVELY; PROVIDED FURTHER, THAT PROMOTION ABOVE GRADE 3 SHALL BE AT THE DISCRETION OF THE SECRETARY OF LABOR, UPON THE RECOMMENDATION OF THE COMMISSIONER GENERAL OF IMMIGRATION: * * *

THE COMMISSIONER GENERAL OF IMMIGRATION HAS SUBMITTED THE FOLLOWING STATEMENT:

INSPECTOR ALLEN IS NOT A NEW APPOINTEE. ON THE CONTRARY, HE WAS ORIGINALLY APPOINTED TO THE POSITION OF IMMIGRANT INSPECTOR ON DECEMBER 2, 1907, AND SERVED IN THAT CAPACITY UNTIL JULY 16, 1915. HE WAS REINSTATED ON OCTOBER 17, 1916, AND SERVED AS AN IMMIGRANT INSPECTOR UNTIL THE CLOSE OF MARCH 6, 1918, AT WHICH TIME HE WAS TRANSFERRED TO THE U.S. EMPLOYMENT SERVICE. HE WAS RETRANSFERRED TO THE IMMIGRATION SERVICE ON APRIL 1, 1921, AND REMAINED IN THIS SERVICE TO THE CLOSE OF JUNE 30, 1924, AT WHICH TIME HE WAS AGAIN TRANSFERRED TO THE EMPLOYMENT SERVICE. INSPECTOR ALLEN IS A TRAINED CHINESE INVESTIGATOR, AND IN NO SENSE CAN BE TERMED A "NEW EMPLOYEE," WHO WOULD BE, AS A MATTER OF COURSE, ELIGIBLE FOR APPOINTMENT ONLY AT THE ENTRANCE SALARY OF $2,100 PER ANNUM PROVIDED FOR IN THE ACT OF MAY 29, 1928.

INSPECTOR ALLEN WAS RECEIVING $2,600 PER ANNUM IN THE EMPLOYMENT SERVICE, WHICH IS ALSO UNDER THE JURISDICTION OF THE DEPARTMENT OF LABOR, AND AS THE IMMIGRANT INSPECTOR PAY BILL MAKES NO PROVISION FOR SALARY OF $2,600 PER ANNUM, HE WAS GIVEN THE NEXT HIGHER SALARY RATE, IN ACCORDANCE WITH PRINCIPLE ESTABLISHED BY PARAGRAPH 4 OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923. IN THE CIRCUMSTANCES, THE DEPARTMENT FEELS THAT INSPECTOR ALLEN'S ALLOCATION TO GRADE 4, WITH COMPENSATION AT THE RATE OF $2,700 PER ANNUM, IS NOT A VIOLATION OF THE ACT OF MAY 29, 1928, AND SHOULD BE PERMITTED TO STAND.

THE QUESTION INVOLVED IS WHETHER, UNDER THE PROVISIONS OF SAID STATUTE, EMPLOYEES MAY BE REINSTATED AND/OR TRANSFERRED FROM SOME OTHER BRANCH OF THE GOVERNMENT SERVICE, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, TO THE POSITION OF IMMIGRATION INSPECTOR WITH INITIAL SALARY RATE UPON REINSTATEMENT AND) OR TRANSFER IN AN AUTOMATIC SALARY GRADE OR SELECTIVE SALARY GRADE ABOVE THE MINIMUM.

THERE IS NO PROVISION IN THE STATUTE OR OTHERWISE SPECIFYING THE GRADE OR SALARY RATE AT WHICH ORIGINAL APPOINTMENTS SHALL BE MADE TO THE POSITION OF IMMIGRATION INSPECTOR, SIMILAR TO THAT CONTROLLING NEW APPOINTMENTS IN THE CUSTOMS SERVICE APPEARING IN THE CUSTOMS CLASSIFICATION ACT OF THE SAME DATE. SEE 8 COMP. GEN. 467. WHILE IT WOULD APPEAR TO BE CONTEMPLATED THAT NEW APPOINTMENTS TO THE POSITION OF IMMIGRATION INSPECTOR FROM PRIVATE LIFE SHOULD BE IN GRADE 1 AT THE MINIMUM SALARY RATE OF $2,100 PER ANNUM, THERE IS NO EXPRESS REQUIREMENT OF LAW THAT REINSTATED OR TRANSFERRED EMPLOYEES MUST ENTER THE POSITION OF IMMIGRATION INSPECTOR IN GRADE 1. THE SITUATION MAY BE COMPARED TO THAT OF CLERKS IN FIRST AND SECOND CLASS POST OFFICES AND CARRIERS IN THE CITY DELIVERY SERVICE CONSIDERED IN DECISION OF OCTOBER 28, 1927, 7 COMP. GEN. 295, WHEREIN IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE POST OFFICE DEPARTMENT HAS AUTHORITY OF LAW TO REINSTATE OR TRANSFER EMPLOYEES FROM SOME OTHER BRANCH OF THE POSTAL SERVICE, OR THE GOVERNMENT SERVICE GENERALLY, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, TO POSITIONS AS CLERKS IN FIRST AND SECOND CLASS POST OFFICES OR CARRIERS IN THE CITY DELIVERY SERVICE AND PAY THEM INITIALLY UPON REINSTATEMENT OR TRANSFER IN THE AUTOMATIC SALARY GRADES ABOVE THE MINIMUM.

THE SITUATION AS TO NEW APPOINTMENTS IN THE CUSTOMS SERVICE HAS PROPERLY BEEN COMPARED TO NEW APPOINTMENTS IN THE RAILWAY POSTAL SERVICE AND REQUIRED TO BE AT THE MINIMUM, WHEREAS THE SITUATION IN THE IMMIGRATION INSPECTOR SERVICE MAY PROPERLY BE COMPARED TO NEW APPOINTMENTS OF CLERKS IN FIRST AND SECOND CLASS POST OFFICES AND CARRIERS IN THE CITY DELIVERY SERVICE WHICH MAY BE ABOVE THE MINIMUM. THE DISTINCTION BETWEEN THESE TWO CLASSES OF CASES WAS CAREFULLY DRAWN IN THE DECISION OF OCTOBER 28, 1927, SUPRA.

ACCORDINGLY, CREDIT WILL BE ALLOWED FOR THE ITEM IN QUESTION IF OTHERWISE CORRECT.