A-34770, JANUARY 26, 1931, 10 COMP. GEN. 324

A-34770: Jan 26, 1931

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THE FIRST THREE OF WHICH ARE AUTOMATIC AND THE LAST TWO SELECTIVE. IS GREATER THAN THE NUMBER OF INSPECTORS IN GRADES 4 AND 5. AS FOLLOWS: I HAVE THE HONOR TO INVITE YOUR ATTENTION TO PUBLIC NO. 574. COPY OF WHICH WILL BE FOUND INCLOSED. 100 PER ANNUM WERE PROMOTED TO GRADE 1. 300 WERE PROMOTED TO GRADE 2. CONSIDERATION WAS GIVEN TO PROMOTING THOSE RECEIVING $2. IT WILL BE OBSERVED THAT THE ACT PROVIDES THAT PROMOTIONS TO GRADES 2 AND 3 SHALL BE "AT THE BEGINNING OF THE NEXT QUARTER FOLLOWING ONE YEAR'S SATISFACTORY SERVICE IN THE NEXT LOWER GRADE.'. THE QUESTION WHICH ARISES IN THIS CONNECTION IS WHETHER PROMOTIONS MAY BE MADE QUARTERLY OR ANNUALLY. SO FAR AS GRADES 4 AND 5 ARE CONCERNED.

A-34770, JANUARY 26, 1931, 10 COMP. GEN. 324

CLASSIFICATION - IMMIGRANT INSPECTORS - PROMOTION UNDER THE ACT OF MAY 29, 1928, 45 STAT. 954, CLASSIFYING IMMIGRANT INSPECTORS INTO FIVE GRADES AND FIXING THEIR SALARY RATES AT $2,100, $2,300, $2,500, $2,700, AND $3,000 PER ANNUM, RESPECTIVELY, THE FIRST THREE OF WHICH ARE AUTOMATIC AND THE LAST TWO SELECTIVE, NO PROMOTION MAY BE MADE FROM GRADE 3 TO GRADE 4 UNLESS AT THE TIME THE NUMBER OF INSPECTORS IN GRADES 1, 2, AND 3, WITH SALARY AT NOT EXCEEDING $2,500, THAT FIXED FOR GRADE 3, IS GREATER THAN THE NUMBER OF INSPECTORS IN GRADES 4 AND 5, WITH SALARY IN EXCESS OF $2,500 PER ANNUM. PROMOTION OF INSPECTORS TO AUTOMATIC GRADES 2 AND 3 MAY BE MADE ONLY AT THE BEGINNING OF THE NEXT QUARTER FOLLOWING ONE YEAR'S SATISFACTORY SERVICE IN THE NEXT LOWER GRADE. PROMOTION OF INSPECTORS TO SELECTIVE GRADES 4 AND 5 MAY BE MADE AT ANY TIME--- AT THE BEGINNING OF A QUARTER OR OTHERWISE--- AFTER NO LESS THAN ONE YEAR'S MERITORIOUS SERVICE IN GRADE 3 OR 4, AS THE CASE MAY BE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, JANUARY 26, 1931:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF DECEMBER 30, 1930, AS FOLLOWS:

I HAVE THE HONOR TO INVITE YOUR ATTENTION TO PUBLIC NO. 574, SEVENTIETH CONGRESS, AN ACT TO AMEND SECTION 24 OF THE IMMIGRATION ACT OF 1917, APPROVED MAY 29, 1928, COPY OF WHICH WILL BE FOUND INCLOSED. WHILE THE ACT ITSELF CONTAINS NO PROVISIONS FOR THE EFFECTIVE DATE THEREOF, NEVERTHELESS, IN VIEW OF THE HOUSE COMMITTEE REPORT, IT APPEARED TO BE THE INTENTION OF CONGRESS TO MAKE THE SAME EFFECTIVE AS OF JULY 1, 1928, OR WITH THE BEGINNING OF THE FISCAL YEAR 1929, UPON WHICH DATE ALL INSPECTORS RECEIVING LESS THAN $2,100 PER ANNUM WERE PROMOTED TO GRADE 1; THOSE RECEIVING $2,100 AND LESS THAN $2,300 WERE PROMOTED TO GRADE 2; THOSE RECEIVING $2,300 AND LESS THAN $2,500 TO GRADE 3; AND CONSIDERATION WAS GIVEN TO PROMOTING THOSE RECEIVING $2,500 AND LESS THAN $2,700 TO GRADE 4; AND THOSE RECEIVING MORE THAN $2,700 AND LESS THAN $3,000 TO GRADE 5; ONLY FIFTY PERCENTUM, HOWEVER, OF THOSE RECEIVING MORE THAN $2,500 BEING PROMOTED.

A QUESTION HAS NOW ARISEN AS TO WHETHER IN PROMOTING OFFICERS ABOVE GRADE 3, FIFTY PERCENTUM OF THE ENTIRE FORCE SHALL BE CONSIDERED AS A BASIS OF COMPUTATION, OR ONLY FIFTY PERCENTUM OF THE OFFICERS IN GRADES 3 AND 4 RESPECTIVELY, TO GRADES 4 AND 5 RESPECTIVELY.

IT WILL BE OBSERVED THAT THE ACT PROVIDES THAT PROMOTIONS TO GRADES 2 AND 3 SHALL BE "AT THE BEGINNING OF THE NEXT QUARTER FOLLOWING ONE YEAR'S SATISFACTORY SERVICE IN THE NEXT LOWER GRADE.' THE QUESTION WHICH ARISES IN THIS CONNECTION IS WHETHER PROMOTIONS MAY BE MADE QUARTERLY OR ANNUALLY, SO FAR AS GRADES 4 AND 5 ARE CONCERNED. IN OTHER WORDS, IF AN OFFICER WAS PROMOTED TO GRADE 3, SAY, ON OCTOBER 1, 1930, WOULD IT BE NECESSARY TO WAIT UNTIL JULY 1, 1932, BEFORE THAT OFFICER COULD BE RAISED TO GRADE 4, ALL CONDITIONS SO FAR AS A YEAR'S MERITORIOUS SERVICE IS CONCERNED HAVING BEEN MET BY THE OFFICER BY OCTOBER 1, 1931.

TO STATE IT DIFFERENTLY, IF AN OFFICER ENTERED THE SERVICE ON AUGUST 1, 1928, HE WOULD HAVE BEEN GIVEN A SALARY OF $2,100. ON JULY 1, 1929, HE WOULD NOT BE ELIGIBLE TO PROMOTION TO GRADE 2 AS HE WOULD NOT HAVE SERVED A YEAR IN GRADE 1. HOWEVER, IF THIS DEPARTMENT'S INTERPRETATION OF THE BILL IS THE CORRECT ONE, HE WOULD HAVE BEEN ELIGIBLE TO SUCH PROMOTION ON AUGUST 1, 1929, ALTHOUGH IF PROMOTIONS ARE MADE QUARTERLY, HIS PROMOTION WOULD NOT BECOME EFFECTIVE UNTIL OCTOBER 1, 1929. ON OCTOBER 1, 1930, HE WOULD GO TO GRADE 3, OR TO A SALARY OF $2,500 PER ANNUM. HOWEVER, ON JULY 1, 1931, HE WOULD NOT BE ELIGIBLE FOR PROMOTION TO GRADE 4, NOT HAVING SERVED A YEAR IN GRADE 3, AND THE QUESTION ARISES AS TO WHETHER ON OCTOBER 1, 1931, HE COULD BE CONSIDERED FOR SUCH PROMOTION OR WHETHER IT WOULD BE NECESSARY FOR HIM TO WAIT UNTIL JULY 1, 1932, WHICH WOULD MEAN THAT HE WOULD HAVE SERVED A YEAR AND NINE MONTHS IN GRADE 3.

THE QUESTION MIGHT BE RAISED BY ASKING WHETHER ONLY FIFTY PERCENTUM OF THE OFFICERS IN GRADES 3 AND 4 WHO HAD A YEAR'S MERITORIOUS SERVICE ON JULY 1 OF ANY GIVEN YEAR CAN BE PROMOTED, OR WHETHER FIFTY PERCENTUM OF THE OFFICERS IN THOSE GRADES WHO HAVE MET THE REQUIRED CONDITIONS CAN BE CONSIDERED FOR PROMOTION ON OCTOBER 1, JANUARY 1, AND APRIL 1, IN ADDITION TO JULY 1.

WHEN THIS BILL WAS FIRST UNDER CONSIDERATION AN OPINION WAS OBTAINED FROM THE SOLICITOR FOR THIS DEPARTMENT, A COPY OF WHICH WILL BE FOUND ENCLOSED AS OF POSSIBLE ASSISTANCE TO YOU IN PASSING UPON THE QUESTIONS RAISED IN THE FOREGOING. MAY I ASK THAT YOU KINDLY RETURN THIS COPY WHEN IT HAS SERVED ITS PURPOSE.

THE ACT OF MAY 29, 1928, 45 STAT. 954, 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: * * *

IT WILL BE NOTED THAT THE LAW REQUIRES AUTOMATIC PROMOTION UP TO AND INCLUDING GRADE 3, SALARY $2,500; THAT IS TO SAY, ALL INSPECTORS ADVANCE AUTOMATICALLY AFTER ONE YEAR'S SATISFACTORY SERVICE IN GRADE 1 TO GRADE 2, AND AFTER ONE YEAR'S SATISFACTORY SERVICE IN GRADE 2 TO GRADE 3. HENCE, SHOULD THERE BE NO TURNOVER DURING ANY PERIOD OF TWO YEARS, THERE WOULD BE NO INSPECTORS BELOW GRADE 3, SALARY $2,500. AND EVERY INSPECTOR WILL GO AUTOMATICALLY TO GRADE 3, SALARY $2,500, AT THE BEGINNING OF THE NEXT QUARTER FOLLOWING TWO YEARS OF SATISFACTORY SERVICE. BUT THERE AUTOMATIC PROMOTIONS CEASE. IN ORDER TO OBTAIN A PROMOTION ABOVE GRADE 3 IT IS NOT ENOUGH THAT THE SERVICE BE SATISFACTORY, ACCORDING TO THE FIXED STANDARD OF EFFICIENCY, BUT IT MUST BE MERITORIOUS, AND THE PROMOTION CAN BE MADE ONLY UPON THE RECOMMENDATION OF THE COMMISSIONER GENERAL OF IMMIGRATION AND IN THE DISCRETION OF THE SECRETARY OF LABOR, AND, OF COURSE, IT CAN BE MADE ONLY IF AND WHEN FUNDS ARE AVAILABLE THEREFOR. THEN THERE IS THE FURTHER RESTRICTION ON PROMOTIONS ABOVE GRADE 3 THAT "NOT TO EXCEED 50 PERCENTUM OF THE FORCE" MAY BE SO PROMOTED.

WHILE IT MIGHT BE REASONABLE AND LOGICAL FROM A CERTAIN STANDPOINT TO LIMIT THE NUMBER OF PROMOTIONS TO GRADE 4 TO 50 PERCENT OF THE NUMBER OF INSPECTORS IN GRADE 3 AND TO LIMIT THE PROMOTIONS TO GRADE 5 TO 50 PERCENT OF THE NUMBER OF INSPECTORS IN GRADE 4, THERE APPEARS NOTHING IN THE ACT TO INDICATE THAT SUCH WAS THE INTENT. THE EVIDENT CONCERN IN THIS RESPECT WAS NOT AS TO THE PROPORTIONATE NUMBER TO BE IN EACH GRADE, BUT AS TO THE NUMBER THAT SHOULD BE SELECTED TO GO ABOVE THE GRADE TO WHICH ALL WOULD ADVANCE AUTOMATICALLY AFTER TWO YEARS' SATISFACTORY SERVICE. THE TERM "50 PERCENTUM OF THE FORCE" CAN NOT BE CONSTRUED AS 50 PERCENT OF THE NUMBER IN GRADE 3 WITH RESPECT TO PROMOTIONS TO GRADE 4, AND 50 PERCENT OF THE NUMBER IN GRADE 4 WITH RESPECT TO PROMOTIONS TO GRADE 5. IT MEANS WHAT IT SAYS,"50 PERCENTUM OF THE FORCE," THE APPARENT PURPOSE BEING TO PRECLUDE ANY PROMOTION FROM GRADE 3 UNLESS, AT THE TIME THE NUMBER OF INSPECTORS WITH SALARY AT NOT EXCEEDING $2,500 BE GREATER THAN THE NUMBER WITH SALARY IN EXCESS OF $2,500. THIS IS THE ONLY EFFECT OF THE 50 PERCENT RESTRICTION, AND YOUR QUESTION WITH RESPECT THERETO IS ANSWERED ACCORDINGLY.

THE PROCEDURE PRESCRIBED BY THE STATUTE FOR PROMOTION OF INSPECTORS TO GRADES 2 AND 3 FROM THE NEXT LOWER GRADE IS DIFFERENT FROM THAT PRESCRIBED FOR PROMOTION OF INSPECTORS TO GRADES 4 AND 5 FROM THE NEXT LOWER GRADE. AS TO THE FORMER, PROMOTION MAY BE MADE ONLY AT THE BEGINNING OF THE NEXT QUARTER, TO WIT, JANUARY 1, APRIL 1, JULY 1, OR OCTOBER 1, FOLLOWING ONE YEAR'S SATISFACTORY SERVICE IN THE NEXT LOWER GRADE. AS TO THE LATTER, PROMOTION MAY BE MADE AT ANY TIME--- AT THE BEGINNING OF A QUARTER OR OTHERWISE--- AFTER NO LESS THAN ONE YEAR'S SERVICE IN GRADE 3 OR 4, AS THE CASE MAY BE.

REFERRING TO THE ILLUSTRATION IN THE LAST SENTENCE OF YOUR THIRD PARAGRAPH, PROMOTION OF THE INSPECTOR FROM GRADE 3 TO GRADE 4, IF OTHERWISE AUTHORIZED, COULD BE MADE AT ANY TIME AFTER SEPTEMBER 30, 1931. REFERRING TO THE ILLUSTRATION IN YOUR FOURTH PARAGRAPH, PROMOTION FROM GRADE 1 TO GRADE 2 WAS PROPER OCTOBER 1, 1929, TO GRADE 3, OCTOBER 1, 1930, AND PROMOTION TO GRADE 4 WILL BE PROPER AT ANY TIME AFTER SEPTEMBER 30, 1931.