A-33659, OCTOBER 20, 1930, 10 COMP. GEN. 178

A-33659: Oct 20, 1930

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COMPENSATION - INCREASE - REFUSAL TO ACCEPT WHEN THE SALARY RATE OF A CLASSIFIED POSITION IS INCREASED WITHIN THE GRADE BY ADMINISTRATIVE ACTION. THE REFUSAL OF THE EMPLOYEE OCCUPYING THAT POSITION TO ACCEPT THE INCREASE WILL NOT PREVENT HIM FROM THEREAFTER FILING A CLAIM FOR THE DIFFERENCE BETWEEN THE AMOUNT ACTUALLY RECEIVED AND THE AMOUNT OF COMPENSATION SO FIXED. IT WAS STATED AS FOLLOWS: THIS HAS REFERENCE TO YOUR LETTER OF MARCH 11TH RETURNING A COPY OF A LETTER ADDRESSED TO MR. WALSH IS RECEIVING A SALARY OF $3. WALSH WAS ORIGINALLY PROMOTED FROM $3. WAS CANCELLED AT MR. HE WAS AGAIN PROMOTED FROM $3. THERE IS NOTHING TO INDICATE THAT HIS PROMOTION FROM $3. WAS CANCELLED. CERTIFIED COPIES HAVE BEEN FURNISHED OF THE ORDER OF CANCELLATION OF THE FIRST PROMOTION OF OCTOBER 1.

A-33659, OCTOBER 20, 1930, 10 COMP. GEN. 178

COMPENSATION - INCREASE - REFUSAL TO ACCEPT WHEN THE SALARY RATE OF A CLASSIFIED POSITION IS INCREASED WITHIN THE GRADE BY ADMINISTRATIVE ACTION, THE INCREASED RATE BECOMES THE ONLY LAWFUL RATE FOR THAT POSITION UNTIL CANCELED, OR OTHERWISE CHANGED BY SUBSEQUENT ADMINISTRATIVE ACTION, AND THE REFUSAL OF THE EMPLOYEE OCCUPYING THAT POSITION TO ACCEPT THE INCREASE WILL NOT PREVENT HIM FROM THEREAFTER FILING A CLAIM FOR THE DIFFERENCE BETWEEN THE AMOUNT ACTUALLY RECEIVED AND THE AMOUNT OF COMPENSATION SO FIXED, LESS THE LAWFUL RETIREMENT DEDUCTIONS.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 20, 1930:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT THE CLAIM OF CHARLES E. WALSH FOR $1,310.69, REPRESENTING THE DIFFERENCE IN SALARY BETWEEN THE RATE OF $3,000 AND $3,300 PER ANNUM FOR THE PERIOD SEPTEMBER 1, 1925, TO MARCH 7, 1930, LESS RETIREMENT DEDUCTIONS OF 2 1/2 PERCENT FROM SEPTEMBER 1, 1925, TO JUNE 30, 1926, AND OF 3 1/2 PERCENT FROM JULY 1, 1926, TO MARCH 7, 1930, FOR SERVICES RENDERED AS SPECIAL EXPERT (SUBDISTRICT MANAGER), NEW YORK REGIONAL OFFICE, UNITED STATES VETERANS' BUREAU. THE CLAIM HAS BEEN ADMINISTRATIVELY APPROVED FOR PAYMENT.

IN A LETTER DATED MARCH 21, 1930, FROM THE ASSISTANT DIRECTOR OF THE VETERANS' BUREAU TO THE REGIONAL MANAGER AT NEW YORK, IT WAS STATED AS FOLLOWS:

THIS HAS REFERENCE TO YOUR LETTER OF MARCH 11TH RETURNING A COPY OF A LETTER ADDRESSED TO MR. CHARLES E. WALSH, CHANGING HIS DESIGNATION FROM PERMANENT SUBDISTRICT MANAGER, AT A SALARY OF $3,300 PER ANNUM, TO PERMANENT CONTACT REPRESENTATIVE, CAF SERVICE, GRADE 7, AT A SALARY OF $3,100 PER ANNUM, STATING YOU BELIEVE AN ERROR HAS BEEN MADE SINCE YOUR RECORDS INDICATE MR. WALSH IS RECEIVING A SALARY OF $3,000 PER ANNUM.

ACCORDING TO THE RECORDS OF CENTRAL OFFICE, MR. WALSH WAS ORIGINALLY PROMOTED FROM $3,000 TO $3,300 PER ANNUM EFFECTIVE OCTOBER 1, 1924. THIS PROMOTION, HOWEVER, WAS CANCELLED AT MR. WALSH'S REQUEST. HE WAS AGAIN PROMOTED FROM $3,000 TO $3,300 PER ANNUM EFFECTIVE SEPTEMBER 1, 1925, AND, ALTHOUGH MR. WALSH DECLINED TO ACCEPT THIS INCREASE IN SALARY, THERE IS NOTHING TO INDICATE THAT HIS PROMOTION FROM $3,000 TO $3,300 PER ANNUM EFFECTIVE SEPTEMBER 1, 1925, WAS CANCELLED.

CERTIFIED COPIES HAVE BEEN FURNISHED OF THE ORDER OF CANCELLATION OF THE FIRST PROMOTION OF OCTOBER 1, 1924, OF THE ORDER OF PROMOTION FROM $3,000 TO $3,300 PER ANNUM EFFECTIVE SEPTEMBER 1, 1925, AND OF THE ORDER OF CHANGE IN STATUS FROM PERMANENT SUBDISTRICT MANAGER AT A SALARY RATE OF $3,300 PER ANNUM TO PERMANENT CONTACT REPRESENTATIVE EFFECTIVE MARCH 8, 1930.

IN REPORT TO HIS OFFICE DATED AUGUST 18, 1930, THE DIRECTOR OF THE VETERANS' BUREAU STATES:

YOU ARE ADVISED THAT SINCE THERE WAS NO CHANGE IN THE DUTIES OF MR. WALSH AT THE TIME OF HIS PROMOTION, SEPTEMBER 1, 1925, HE WAS NOT REQUIRED TO TAKE THE OATH OF OFFICE IN ACCORDANCE WITH BUREAU REGULATIONS IN EFFECT AT THAT TIME.

A CERTIFIED TRUE COPY OF THE BUREAU REGULATION DATED JUNE 2, 1924, PERTAINING TO THIS SUBJECT IS INCLOSED AS YOU REQUESTED.

THE REGULATION REFERRED TO PROVIDES AS FOLLOWS:

13. ADDITIONAL OATH OF OFFICE.--- A NEW OATH OF OFFICE (PERSONNEL FORM NO. 3209) SHOULD BE PREPARED AND THE ORIGINAL SUBMITTED DIRECT TO THE PERSONNEL DIVISION, CENTRAL OFFICE, UPON A CHANGE IN THE DESIGNATION OR NATURE OF APPOINTMENT OF ALL EMPLOYEES. A NEW OATH OF OFFICE IS NOT REQUIRED UPON INCREASES IN COMPENSATION UNLESS A CHANGE IN POSITION IS EFFECTED AT THE SAME TIME. (SEE COMP. DEC. 1:4, DATED OCTOBER 6, 1894, AND 24:547, MARCH 26, 1918.)

SEE, ALSO, DECISION OF JUNE 26, 1924, 3 COMP. GEN. 1001, 1005 AS TO NECESSITY FOR OATHS OF OFFICE UPON CHANGE IN STATUS UNDER THE CLASSIFICATION ACT.

UNDER THE ACT OF DECEMBER 6, 1924, 43 STAT. 704, AS EXTENDED THROUGH SUBSEQUENT FISCAL YEARS BY ANNUAL APPROPRIATION ACTS, AND MADE PERMANENT BY SECTION 3 OF THE WELCH ACT OF MAY 28, 1928, 45 STAT. 785, AND SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, AUTHORIZING AND REQUIRING ADMINISTRATIVE OFFICES TO ESTABLISH FIELD GRADES OR SALARY RANGES CORRESPONDING, SO FAR AS PRACTICABLE, TO THE GRADES PRESCRIBED BY THE CLASSIFICATION ACT, AS AMENDED, FOR THE DEPARTMENTAL SERVICE, THE FIXING OF SALARY RATES WITHIN THE FIELD GRADE OR SALARY RANGE IS A MATTER FOR ADMINISTRATIVE ACTION, AND THE SALARY RATE THUS FIXED FOR A POSITION, WHETHER AT THE MINIMUM OR ABOVE THE MINIMUM, IS AS LAWFULLY THE ONLY SALARY FOR THAT POSITION AS THOUGH THE SAME HAD BEEN SPECIFICALLY FIXED BY THE STATUTE ITSELF. WHEN AN ADMINISTRATIVE OFFICE FIXES A DIFFERENT--- THAT IS A HIGHER OR LOWER SALARY RATE--- THAN HAD BEEN RECEIVED BY AN EMPLOYEE, WITHIN THE GRADE OR SALARY RANGE, THE NEW RATE BECOMES THE ONLY LAWFUL RATE FOR THAT PARTICULAR POSITION, AND NO ACCEPTANCE OR OTHER ACTION BY THE EMPLOYEE IS NECESSARY TO PUT SUCH NEW RATE INTO EFFECT. SALARY RATE THUS ADMINISTRATIVELY FIXED MAY BE CHANGED ONLY BY AUTHORIZED ADMINISTRATIVE ACTION AND NOT BY ANY OBJECTION OR REJECTION BY THE EMPLOYEE.

IN DECISION OF MARCH 19, 1925, A-8427, ADDRESSED TO THE SERGEANT AT ARMS, HOUSE OF REPRESENTATIVES, IT WAS STATED:

YOU MAY ONLY MAKE PAYMENT OF SALARY AT THE RATE FIXED BY LAW. DECLINING TO RECEIVE PAYMENT OF SALARY AT THE RATE FIXED BY LAW OR THE DIFFERENCE IN AMOUNT BETWEEN THE OLD AND THE NEW RATE OF SALARY DOES NOT NECESSARILY AFFECT THE RIGHT THERETO, NOR AS A GENERAL RULE PRECLUDE THE INDIVIDUAL OR HIS LEGAL REPRESENTATIVES FROM SUBSEQUENTLY MAKING A CLAIM AS FOR UNPAID SALARY. THE ACCOUNTS OF THE GOVERNMENT ARE ENTITLED TO BE KEPT AND PAYMENTS MADE SO THAT THE TRANSACTIONS WILL APPEAR THEREFROM AS CLOSED, AND IF ONE DOES NOT FOR PERSONAL REASONS WISH TO RETAIN THE WHOLE AMOUNT WHICH THE LAW PROVIDES HE SHALL BE PAID, HE IS FREE TO REMIT BACK TO THE UNITED STATES SUCH AMOUNT AS HE DOES NOT WISH TO RETAIN WITH A STATEMENT OF HIS REASONS THEREFOR. THE TRANSACTION WILL THEN APPEAR AS AN ACQUITTANCE TO THE UNITED STATES OF ANY FUTURE CLAIMS FOR SALARY AND THE REMITTANCE BACK MADE BY THE INDIVIDUAL IS IN THE STATUS SUBSTANTIALLY OF A GIFT TO THE UNITED STATES WHICH MAY PROPERLY GO INTO THE GENERAL FUNDS OF THE TREASURY WITHOUT BEING SUBJECT TO FUTURE CLAIMS FOR UNPAID SALARY, AS WOULD BE POSSIBLE SHOULD ANY OTHER RULE BE FOLLOWED.

IN THIS CASE A SALARY RATE FOR THE POSITION HELD BY THE CLAIMANT WAS ADMINISTRATIVELY ADVANCED FROM $3,000 TO $3,300 PER ANNUM EFFECTIVE SEPTEMBER 1, 1925, AND WAS NOT CANCELED OR OTHERWISE CHANGED BY AUTHORIZED ADMINISTRATIVE ACTION UNTIL MARCH 8, 1930. THEREFORE, THE ONLY LAWFUL SALARY RATE FOR THE POSITION OCCUPIED BY CLAIMANT FROM SEPTEMBER 1, 1925, TO AND INCLUDING MARCH 7, 1930, WAS $3,300 PER ANNUM.

ACCORDINGLY, THERE IS CERTIFIED DUE CLAIMANT THE DIFFERENCE BETWEEN $3,300 AND $3,000 PER ANNUM FOR THE PERIOD FROM SEPTEMBER 1, 1925, TO MARCH 7, 1930, LESS THE AUTHORIZED RETIREMENT DEDUCTIONS WHICH WILL BE TRANSFERRED TO THE RETIREMENT FUND.