A-30394, JANUARY 30, 1930, 9 COMP. GEN. 325

A-30394: Jan 30, 1930

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CLASSIFICATION OF CIVILIAN EMPLOYEES - PAY STATUS PENDING FINAL ACTION BY PERSONNEL CLASSIFICATION BOARD WHERE THE FACT SHOWN THAT THE ACTION OF THE PERSONNEL CLASSIFICATION BOARD IN THE REALLOCATION OF A POSITION TO A HIGHER GRADE IS NOT FINAL BUT FURTHER CONSIDERATION IS IMMEDIATELY REQUESTED BY THE ADMINISTRATIVE OFFICE AND GIVEN BY THE PERSONNEL CLASSIFICATION BOARD. NO ADJUSTMENT IN THE SALARY RATE OF THE POSITION IS REQUIRED PENDING THE FINAL ACTION OF THE BOARD. AS FOLLOWS: THE INTERSTATE COMMERCE COMMISSION HAS IN ITS EMPLOY ONE HUNDRED AND FORTY-SIX EXAMINERS WHO ARE ASSIGNED TO ITS BUREAU OF FORMAL CASES AND ARE ENGAGED PRIMARILY IN THE CONDUCT OF HEARINGS BEFORE THE COMMISSION IN RATE CONTROVERSIES AND IN PREPARING PROPOSED REPORTS THEREIN.

A-30394, JANUARY 30, 1930, 9 COMP. GEN. 325

CLASSIFICATION OF CIVILIAN EMPLOYEES - PAY STATUS PENDING FINAL ACTION BY PERSONNEL CLASSIFICATION BOARD WHERE THE FACT SHOWN THAT THE ACTION OF THE PERSONNEL CLASSIFICATION BOARD IN THE REALLOCATION OF A POSITION TO A HIGHER GRADE IS NOT FINAL BUT FURTHER CONSIDERATION IS IMMEDIATELY REQUESTED BY THE ADMINISTRATIVE OFFICE AND GIVEN BY THE PERSONNEL CLASSIFICATION BOARD, NO ADJUSTMENT IN THE SALARY RATE OF THE POSITION IS REQUIRED PENDING THE FINAL ACTION OF THE BOARD.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN OF THE INTERSTATE COMMERCE COMMISSION, JANUARY 30, 1930:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 27, 1930, AS FOLLOWS:

THE INTERSTATE COMMERCE COMMISSION HAS IN ITS EMPLOY ONE HUNDRED AND FORTY-SIX EXAMINERS WHO ARE ASSIGNED TO ITS BUREAU OF FORMAL CASES AND ARE ENGAGED PRIMARILY IN THE CONDUCT OF HEARINGS BEFORE THE COMMISSION IN RATE CONTROVERSIES AND IN PREPARING PROPOSED REPORTS THEREIN. THESE EXAMINERS ARE IN GRADES P-1 TO P-8, INCLUSIVE. EXAMINER J. E. SNIDER, WITH FIFTY OTHERS, WAS ASSIGNED BY THE COMMISSION, WITH THE APPROVAL OF THE PERSONNEL CLASSIFICATION BOARD, TO GRADE P-3. MR. SNIDER APPEALED FOR A REALLOCATION TO GRADE P-6, WHICH THE COMMISSION CONSIDERED AND SENT, WITH ITS DISAPPROVAL, TO THE PERSONNEL CLASSIFICATION BOARD. AFTER SEVERAL HEARINGS BY THAT BOARD, AT WHICH THE REPRESENTATIVES OF THE COMMISSION ENDEAVORED TO CONVINCE THE BOARD THAT THE WORK PERFORMED BY MR. SNIDER WAS, NOT OF A GRADE HIGHER THAN P-3, THE COMMISSION RECEIVED FROM THE PERSONNEL CLASSIFICATION BOARD ON FRIDAY OF LAST WEEK ITS REALLOCATION OF MR. SNIDER FROM GRADE P-3 TO GRADE P-5. THIS RULING BY THE BOARD WAS CONSIDERED BY THE COMMISSION AND ITS SECRETARY WAS DIRECTED TO REQUEST THE BOARD TO REOPEN MR. SNIDER'S CASE. THE SECRETARY'S LETTER READ AS FOLLOWS:

"YOUR LETTER OF JANUARY 23, 1930, ADVISING THAT THE PERSONNEL CLASSIFICATION BOARD HAS APPROVED A CHANGE OF ALLOCATION FOR MR. J. E. SNIDER FROM P-3 TO P-5 HAS BEEN CONSIDERED BY THE COMMISSION, AND I AM DIRECTED TO REQUEST A REOPENING OF THIS CASE IN ORDER THAT ONE OR MORE OF THE COMMISSIONERS MAY APPEAR BEFORE YOUR BOARD TO EXPLAIN THE PREVIOUS ACTION OF THE COMMISSION IN DENYING MR. SNIDER'S APPEAL, AND TO STATE TO YOU THAT IF THE WORK PERFORMED BY MR. SNIDER FALLS WITHIN GRADE P-5, AS APPEARS TO BE YOUR LATEST ALLOCATION, IT IS THE OPINION OF THE COMMISSION THAT IT WILL BE COMPELLED UNDER THE LAW TO SUBMIT JOB SHEETS FOR A LARGE NUMBER OF ITS EXAMINERS ASSIGNING THEM TO HIGHER GRADES.'

A HEARING WAS ACCORDED THE COMMISSION AT TEN O-CLOCK THIS MORNING WHICH ONE OF THE COMMISSIONERS, OUR CHIEF EXAMINER, AND OUR PERSONNEL OFFICER ATTENDED. THE COMMISSIONER PRESENTED TO THE BOARD A STATEMENT AS PER THE ATTACHED. AFTER A SHORT DISCUSSION OF THE MATTER THE BOARD SUGGESTED THAT THE COMMISSION NOW SUBMIT AN APPEAL FOR A REALLOCATION OF MR. SNIDER FROM GRADE P-5 BACK TO GRADE P-3; THAT UNTIL SUCH APPEAL IS CONSIDERED AND DETERMINED BY THE BOARD MR. SNIDER WILL CONTINUE IN GRADE P-5 AND MUST BE PAID ACCORDINGLY.

IT IS OUR VIEW THAT THE BOARD CAN AND SHOULD REVOKE ITS ACTION OF LAST WEEK ALLOCATING MR. SNIDER FROM GRADE P-3 TO GRADE P-5 UNTIL A RECONSIDERATION AND REDETERMINATION OF HIS CASE. AT ANY RATE WE BELIEVE THAT IT WILL NOT BE IN THE INTEREST OF THE COMMISSION TO CHANGE MR. SNIDER'S ALLOCATION FROM P-3 TO ANY OTHER GRADE UNTIL A SIMILAR CHANGE CAN BE MADE IN RESPECT TO ALL EXAMINERS WHO MAY BE AFFECTED FROM THE LOWEST TO THE HIGHEST GRADE.

WILL YOU KINDLY ADVISE THE COMMISSION WHAT IT MAY DO IN THIS IMPORTANT MATTER AND OBLIGE.

THE MATTER OF WHAT THE COMMISSION MAY DO WITH A VIEW TO OBTAINING SUCH CLASSIFICATION FOR ITS EXAMINERS AS WILL BE JUST TO ALL CONCERNED IS, OF COURSE, ONE FOR THE COMMISSION AND THE PERSONNEL CLASSIFICATION BOARD. THERE IS INVOLVED IN THE MATTER SUBMITTED BY YOU, HOWEVER, AND REQUIRING THE ATTENTION OF THIS OFFICE, A QUESTION AS TO THE USE OF PUBLIC MONEY IN COMPENSATING MR. SNIDER FOR HIS SERVICES UNDER THE FACTS AS STATED. THE ACTION OF THE PERSONNEL CLASSIFICATION BOARD REPORTED TO YOU BY ITS LETTER DATED JANUARY 23, 1930, MAY PROPERLY BE REGARDED AS FINALLY AND DEFINITELY CLASSIFYING THE POSITION OCCUPIED BY MR. SNIDER IN GRADE P-5, HE IS ENTITLED TO BE PAID AT THE RATE OF $4,600 PER ANNUM, THE MINIMUM SALARY RATE OF GRADE P-5, FROM AND AFTER JANUARY 1, 1930. SEE DECISION OF SEPTEMBER 23, 1926, 6 COMP. GEN. 202, WHEREIN IT WAS HELD (QUOTING FROM THE SYLLABUS):

IN VIEW OF THE PROVISIONS OF GENERAL REGULATIONS NO. 54, DATED JULY 6, 1926, PRESCRIBING ONE PAY ROLL FOR EACH MONTH TO BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE, THE "PAY PERIOD" WITHIN THE MEANING OF DECISIONS DATED SEPTEMBER 8, 1924, 4 COMP. GEN. 280, AND FEBRUARY 26, 1925, 4 COMP. GEN. 721, IS THE ENTIRE MONTH. THE INCREASES AND DECREASES IN COMPENSATION RESULTING FROM THE ALLOCATION OR REALLOCATION OF A POSITION SHOULD BE MADE EFFECTIVE FROM THE FIRST OF THE MONTH IN WHICH NOTICE OF THE ALLOCATION OR REALLOCATION IS RECEIVED IN THE ADMINISTRATIVE OFFICE. THIS DECISION WILL BE EFFECTIVE FOR ALLOCATIONS OR REALLOCATIONS, NOTICE OF WHICH IS RECEIVED IN THE ADMINISTRATIVE OFFICE ON OR AFTER SEPTEMBER 1, 1926.

SEE, ALSO, IN THIS GENERAL CONNECTION, DECISION OF DECEMBER 12, 1928, 8 COMP. GEN. 296, WHEREIN, AFTER QUOTING A PORTION OF SECTION 4 OF THE ORIGINAL CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1489, IT WAS STATED:

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.

IT APPEARS FROM THE FACTS SUBMITTED BY YOU THAT MR. SNIDER APPEALED FROM THE ACTION CLASSIFYING THE POSITION OCCUPIED BY HIM IN GRADE P-3, CONTENDING THAT THE POSITION SHOULD BE IN GRADE P-6; THAT YOUR COMMISSION, NOT AGREEING WITH HIS CONTENTION,"DISAPPROVED" THE APPEAL; AND THAT, AFTER HEARINGS, THE PERSONNEL CLASSIFICATION BOARD REVIEWED AND REVISED THE ADMINISTRATIVE ACTION, CLASSIFYING THE POSITION IN GRADE P-5, AS PER ITS LETTER TO THE COMMISSION DATED JANUARY 23, 1930. IT WOULD APPEAR CLEAR THAT HAD THE PROCEEDINGS ENDED AT THIS POINT, UNDER THE TERMS OF THE STATUTE, SUCH REVIEW AND REVISION WOULD HAVE BECOME FINAL, AND, UNDER THE DECISION OF SEPTEMBER 23, 1926, SUPRA, THE EMPLOYEE WOULD HAVE BEEN ENTITLED TO PAY AT THE MINIMUM SALARY RATE OF GRADE P-5 FROM JANUARY 1, 1930. BUT FROM THE FACTS REPORTED BY YOU IT APPEARS THE PROCEEDINGS DID NOT STOP AT THIS POINT. YOUR COMMISSION, IT IS STATED, IMMEDIATELY PROTESTED THE BOARD'S ACTION AND REQUESTED FURTHER CONSIDERATION OF THE CASE. THIS REQUEST THE BOARD APPEARS TO HAVE GRANTED, AS FURTHER CONSIDERATION OF THE CASE HAS ACTUALLY OCCURRED.

THE MATTER AS PRESENTED DOES NOT APPEAR TO HAVE BEEN PRECISELY COVERED BY ANY REGULATION KNOWN TO THIS OFFICE OR BY ANY PROCEDURE HERETOFORE GENERALLY FOLLOWED. THE FACTS FORCE FORWARD, HOWEVER, A PAY QUESTION DEPENDENT FOR ANSWER ON WHETHER THE PRESENT STATUS OF THE CLASSIFICATION PROCEEDINGS REQUIRES OR PERMITS THE EMPLOYEE TO BE PAID ON THE BASIS OF OCCUPYING A POSITION FINALLY AND DEFINITELY CLASSIFIED IN GRADE P-5.

IN CLASSIFICATION MATTERS THE PRINCIPLE UNQUESTIONABLY MUST PREVAIL THAT ADMINISTRATIVE ACTION MAY NOT PROPERLY BE TAKEN FOR THE SOLE OR PRIMARY PURPOSE OF DELAY IN A CASE ON WHICH THE PERSONNEL CLASSIFICATION BOARD HAS ACTED IN CLASSIFYING. THERE MUST BE SUCH PROCEDURE AND A TIME IN ALL SUCH PROCEEDINGS WHEN THEY MAY PROPERLY BE CONSIDERED AS HAVING REACHED SUCH FINAL STAGE AS TO PERMIT, WITH SAFETY, PAYMENTS OF COMPENSATION; AND THE BOARD IS NOT TO BE UNDERSTOOD AS INTENDING TO TREAT AS A FINALITY AND AS FORECLOSING THE ADMINISTRATIVE OFFICE, WHAT, UNDER THE RECORD, MAY BE CONSIDERED AS TENTATIVE ACTION BY THE BOARD; THAT IS TO SAY, TENTATIVE BECAUSE OF THE SUBSEQUENT PRESENTATION MADE BY THE ADMINISTRATIVE OFFICE AND THE BOARD'S ACTION THEREON.

WHATEVER THE TECHNICAL SITUATION MAY BE BECAUSE OF THE INVOLVED STATE THE MATTER HAS BEEN PERMITTED TO ASSUME, THE BASIC REQUIREMENT FOR DEFINITENESS AND FINALITY OF CLASSIFICATION FOR PAY PURPOSES DOES NOT SO APPEAR FROM THE FACTS SUBMITTED AS TO NOW JUSTIFY PAYMENTS TO MR. SNIDER, THE OCCUPANT OF THE POSITION IN QUESTION, ON A BASIS OF OTHER THAN CLASSIFICATION IN GRADE P-3. ACCORDINGLY, PENDING THE FURTHER ACTION--- AND FINAL ACTION--- BY THE BOARD ON THE PRESENTATION WHICH THE ADMINISTRATIVE OFFICE HAS BEEN GRANTED BY IT PERMISSION TO MAKE, THE PAY STATUS OF THE EMPLOYEE WHILE IN THE POSITION IN QUESTION MUST REMAIN AS IT HAS BEEN.