A-33344, SEPTEMBER 23, 1930, 10 COMP. GEN. 134

A-33344: Sep 23, 1930

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THE FEDERAL RADIO COMMISSION WAS AUTHORIZED TO APPOINT TWO ASSISTANT CHIEF ENGINEERS. THESE POSITIONS WERE ALLOCATED BY THE COMMISSION AND THE PERSONNEL CLASSIFICATION BOARD TO GRADE 7 OF THE PROFESSIONAL AND SCIENTIFIC SERVICE. THE QUESTION IS PRESENTED WHETHER THE COMMISSION MAY PAY $7. PROVIDES AS FOLLOWS: THE COMMISSION IS AUTHORIZED TO APPOINT A CHIEF ENGINEER WHO SHALL RECEIVE A SALARY OF $10. AS THE ONLY RESTRICTION IS THE MAXIMUM RATE THAT MAY BE PAID EACH. THE COMMISSION IS AUTHORIZED TO FIX THE SALARY RATE OF EACH AT $7. THE AVERAGE PROVISION APPEARING IN THE ANNUAL APPROPRIATION ACTS IS A GENERAL RESTRICTION ON THE PAYMENT OF SALARIES OF PERSONNEL IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA SUBJECT TO THE CLASSIFICATION ACT.

A-33344, SEPTEMBER 23, 1930, 10 COMP. GEN. 134

CLASSIFICATION OF CIVILIAN EMPLOYEES - SALARY AVERAGE WHERE A STATUTE AUTHORIZES AN ADMINISTRATIVE OFFICE TO FIX THE SALARY RATE OF ONE OR MORE POSITIONS IN A GRADE AT NOT TO EXCEED A SPECIFIC RATE, THE OFFICERS OR EMPLOYEES OCCUPYING THOSE POSITIONS MAY BE PAID AT ANY RATE NOT IN EXCESS OF THE MAXIMUM EXPRESSLY AUTHORIZED, WITHOUT REGARD TO THE AVERAGE PROVISION APPEARING IN THE ANNUAL APPROPRIATION ACTS.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN OF THE FEDERAL RADIO COMMISSION, SEPTEMBER 23, 1930:

THERE HAS BEEN RECEIVED A LETTER DATED SEPTEMBER 10, 1930, FROM THE SECRETARY OF THE FEDERAL RADIO COMMISSION, PRESUMABLY BY YOUR DIRECTION, AS FOLLOWS:

BY THE ACT APPROVED DECEMBER 18, 1929 (PUBLIC 25, 71ST CONGRESS), THE FEDERAL RADIO COMMISSION WAS AUTHORIZED TO APPOINT TWO ASSISTANT CHIEF ENGINEERS,"THE SALARIES NOT TO EXCEED $7,500 EACH PER ANNUM.' THESE POSITIONS WERE ALLOCATED BY THE COMMISSION AND THE PERSONNEL CLASSIFICATION BOARD TO GRADE 7 OF THE PROFESSIONAL AND SCIENTIFIC SERVICE. TO DATE, ONLY ONE OF THESE POSITIONS HAS BEEN FILLED AND THE INCUMBENT'S SALARY HAS BEEN FIXED AT $7,000 PER ANNUM.

THE QUESTION IS PRESENTED WHETHER THE COMMISSION MAY PAY $7,500 EACH TO TWO ASSISTANT CHIEF ENGINEERS WITHOUT REGARD TO THE "AVERAGE" PROVISION CONTAINED IN THE INDEPENDENT OFFICES ACT, APPROVED APRIL 19, 1930 (PUBLIC 158, 71ST CONGRESS).

SECTION 3 OF THE ACT OF DECEMBER 18, 1929, PUBLIC NO. 25, 46 STAT. 50, PROVIDES AS FOLLOWS:

THE COMMISSION IS AUTHORIZED TO APPOINT A CHIEF ENGINEER WHO SHALL RECEIVE A SALARY OF $10,000 PER ANNUM, AND NOT TO EXCEED TWO ASSISTANTS TO SUCH CHIEF ENGINEER AT SALARIES NOT TO EXCEED $7,500 EACH PER ANNUM. MAY APPOINT SUCH OTHER TECHNICAL ASSISTANTS AS IT MAY FROM TIME TO TIME FIND NECESSARY FOR THE PROPER PERFORMANCE OF ITS DUTIES AND AS FROM TIME TO TIME MAY BE APPROPRIATED FOR BY CONGRESS.

THIS STATUTE AUTHORIZES THE COMMISSION TO APPOINT TWO ASSISTANTS TO THE CHIEF ENGINEER AT ANY SALARY NOT IN EXCESS OF $7,500 PER ANNUM. AS THE ONLY RESTRICTION IS THE MAXIMUM RATE THAT MAY BE PAID EACH, THE COMMISSION IS AUTHORIZED TO FIX THE SALARY RATE OF EACH AT $7,500 PER ANNUM. THE AVERAGE PROVISION APPEARING IN THE ANNUAL APPROPRIATION ACTS IS A GENERAL RESTRICTION ON THE PAYMENT OF SALARIES OF PERSONNEL IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA SUBJECT TO THE CLASSIFICATION ACT. THE SPECIFIC RESTRICTION APPLICABLE ONLY TO THESE TWO POSITIONS HAS THE EFFECT OF REMOVING THEM FROM THE GENERAL RESTRICTION IN THE AVERAGE PROVISION. OTHERWISE, IF ONLY THE TWO POSITIONS WERE IN THE GRADE, THE COMMISSION WOULD BE FURTHER LIMITED AND COULD FIX THE RATE OF $7,500 PER ANNUM FOR ONLY ONE POSITION, THE OTHER BY SUCH ACTION BEING LIMITED TO $6,500 PER ANNUM, OR BOTH WOULD BE LIMITED TO $7,000 PER ANNUM. THIS WOULD PLAINLY DEFEAT THE INTENT OF THE LAW. SEE, GENERALLY, 4 COMP. GEN. 459, AND 9 ID. 355.