A-30603, FEBRUARY 13, 1930, 9 COMP. GEN. 355

A-30603: Feb 13, 1930

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THE SALARY RATE OF WHICH IS SPECIFICALLY FIXED BY STATUTE OTHER THAN THE CLASSIFICATION ACT. WHICH IS AT OR WITHIN THE RANGE OF SALARY RATES PRESCRIBED BY THE CLASSIFICATION ACT. WHICH IS SPECIFICALLY PROVIDED FOR AT THE RATE OF $9. IT WAS HELD. QUOTING FROM THE SYLLABUS: THE SALARY AVERAGE IS TO BE COMPUTED ON THE BASIS OF THE TOTAL NUMBER OF PERSONS UNDER ANY GRADE RECEIVING COMPENSATION AT OR WITHIN THE RANGE OF RATES SPECIFICALLY FIXED BY THE CLASSIFICATION ACT OF MARCH 4. THERE WAS NOT INVOLVED IN THAT DECISION THE QUESTION HERE INVOLVED. THE SALARY RATE OF WHICH IS SPECIFICALLY FIXED BY STATUTE OTHER THAN THE CLASSIFICATION ACT. WHICH IS AT OR WITHIN THE RANGE OF SALARY RATES PRESCRIBED BY THE CLASSIFICATION ACT.

A-30603, FEBRUARY 13, 1930, 9 COMP. GEN. 355

CLASSIFICATION OF CIVILIAN EMPLOYEES - SALARY AVERAGE IN COMPUTING THE SALARY AVERAGE OF THE TOTAL NUMBER OF PERSONS UNDER ANY GRADE IN ANY BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT, THERE SHOULD BE EXCLUDED THE SALARY OF A PERSON OCCUPYING A POSITION, THE SALARY RATE OF WHICH IS SPECIFICALLY FIXED BY STATUTE OTHER THAN THE CLASSIFICATION ACT, AS AMENDED, WHICH IS AT OR WITHIN THE RANGE OF SALARY RATES PRESCRIBED BY THE CLASSIFICATION ACT, AS AMENDED, FOR THE GRADE IN WHICH THE POSITION HAS BEEN ALLOCATED.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, FEBRUARY 13, 1930:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF FEBRUARY 8, 1930, AS FOLLOWS:

THE APPROPRIATION FOR "SALARIES, DEPARTMENT OF JUSTICE," FOR THE FISCAL YEAR 1930, CONTAINED IN THE ACT OF JANUARY 25, 1929 (45 STAT. 1107), READS AS FOLLOWS:

"SALARIES: FOR ATTORNEY GENERAL, $15,000; SOLICITOR GENERAL, $10,000; ASSISTANT TO THE ATTORNEY GENERAL $9,000; AND OTHER PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA, INCLUDING THE SOLICITORS OF THE STATE, TREASURY, COMMERCE, AND LABOR DEPARTMENTS, AND THE OFFICE FORCES OF THE SOLICITORS OF THE TREASURY, COMMERCE, AND LABOR DEPARTMENTS, $1,194,300; IN ALL $1,228,300.'

THE SAID ACT ALSO PROVIDES (ON PAGE 1095) THAT:

"* * * THE AVERAGE OF THE SALARIES OF THE TOTAL NUMBER OF PERSONS UNDER ANY GRADE IN ANY BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT SHALL NOT AT ANY TIME EXCEED THE AVERAGE OF THE COMPENSATION RATES SPECIFIED FOR THE GRADE," BY THE CLASSIFICATION ACT AS AMENDED.

IN COMPUTING THE AVERAGE SALARIES OF POSITIONS UNDER THE DEPARTMENT OF JUSTICE IN PROFESSIONAL GRADE 8, THE QUESTION ARISES AS TO WHETHER THE POSITION OF ASSISTANT TO THE ATTORNEY GENERAL, WHICH IS SPECIFICALLY PROVIDED FOR AT THE RATE OF $9,000 PER ANNUM, SHOULD BE INCLUDED OR EXCLUDED IN COMPUTING THE AVERAGE. I AM UNABLE TO FIND ANY RULING FROM YOUR OFFICE ON THIS SPECIFIC QUESTION, AND I AM, THEREFORE, SUBMITTING IT FOR YOUR DECISION.

IN DECISION OF NOVEMBER 17, 1924, 4 COMP. GEN. 459, IT WAS HELD, QUOTING FROM THE SYLLABUS:

THE SALARY AVERAGE IS TO BE COMPUTED ON THE BASIS OF THE TOTAL NUMBER OF PERSONS UNDER ANY GRADE RECEIVING COMPENSATION AT OR WITHIN THE RANGE OF RATES SPECIFICALLY FIXED BY THE CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1488, FOR THAT GRADE, EXCLUDING THE SALARY OF THOSE PERSONS RECEIVING COMPENSATION ADMINISTRATIVELY FIXED UNDER AUTHORITY OF LAW AT RATES IN EXCESS OF THE MAXIMUM RATES SPECIFICALLY FIXED BY THE CLASSIFICATION ACT FOR THAT GRADE.

THERE WAS NOT INVOLVED IN THAT DECISION THE QUESTION HERE INVOLVED, TO WIT, WHETHER IN COMPUTING THE SALARY RANGE OF THE TOTAL NUMBER OF PERSONS UNDER ANY GRADE IN ANY BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT, THERE SHOULD BE INCLUDED OR EXCLUDED THE SALARY OF A PERSON OCCUPYING A POSITION, THE SALARY RATE OF WHICH IS SPECIFICALLY FIXED BY STATUTE OTHER THAN THE CLASSIFICATION ACT, AS AMENDED, WHICH IS AT OR WITHIN THE RANGE OF SALARY RATES PRESCRIBED BY THE CLASSIFICATION ACT, AS AMENDED, FOR THE GRADE IN WHICH SUCH POSITION HAS BEEN ALLOCATED. AS STATED IN THE BODY OF THAT DECISION,"THE SALARY AVERAGE DEPENDS ON THE TOTAL NUMBER OF PERSONS IN THE GRADE AND THE RATE OF COMPENSATION PAID THEM, WHICH IS SUBJECT TO ADJUSTMENT BY THE ADMINISTRATIVE OFFICE NOT TO EXCEED THE INVARIABLE RATE AVERAGE.' IN OTHER WORDS, THE AVERAGE PROVISION APPEARING IN THE ANNUAL APPROPRIATION ACTS IS A RESTRICTION DIRECTED TO THE ADMINISTRATIVE OFFICES AND WOULD SEEM TO RELATE ONLY TO THE TOTAL NUMBER OF PERSONS UNDER ANY GRADE OCCUPYING POSITIONS, THE SALARY RATES OF WHICH ARE SUBJECT TO ADJUSTMENT BY THE ADMINISTRATIVE OFFICE FROM TIME TO TIME UNDER THE CLASSIFICATION ACT, THE AVERAGE PROVISION BEGINNING WITH THE WORDS "THAT IN EXPENDING APPROPRIATIONS OR PORTIONS OF APPROPRIATIONS, CONTAINED IN THIS ACT, FOR THE PAYMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED.' THERE IS NO PURPOSE OR INTENT SHOWN BY THE FIXING OF THE SALARY FOR A POSITION AT A SPECIFIC RATE WITHIN THE RANGE PRESCRIBED BY THE CLASSIFICATION ACT FOR A CERTAIN GRADE, TO RESTRICT FURTHER THE ADMINISTRATIVE OFFICE. AS TO THE POSITION HERE IN QUESTION THE CONGRESS HAS ACTED IN FIXING THE SALARY RATE, PRECLUDING ANY ADJUSTMENT THEREOF BY THE ADMINISTRATIVE OFFICE. THE REASONABLE CONCLUSION IS THAT THE SALARY RATE THUS SPECIFICALLY FIXED BY THE CONGRESS BY OTHER STATUTES IS NOT REQUIRED TO BE INCLUDED IN COMPUTING THE SALARY AVERAGE OF THE TOTAL NUMBER PERSONS UNDER ANY GRADE.

YOU ARE ADVISED, THEREFORE, THAT THE POSITION OF ASSISTANT TO THE ATTORNEY GENERAL, WITH SALARY RATE SPECIFICALLY FIXED AT $9,000 PER ANNUM BY THE ANNUAL APPROPRIATION ACT, SHOULD BE EXCLUDED IN COMPUTING THE SALARY AVERAGE OF THE TOTAL NUMBER OF PERSONS UNDER GRADE P-8 IN THE APPROPRIATION UNIT IN QUESTION.