A-35680, APRIL 9, 1931, 10 COMP. GEN. 458

A-35680: Apr 9, 1931

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COMPENSATION - CENSUS EMPLOYEES - SALARY STATUS UPON RETRANSFER TO THE PERMANENT ROLL CENSUS EMPLOYEES ARE NOT ENTITLED. TO THE INCREASE IN COMPENSATION TO WHICH THEY WOULD HAVE BEEN ENTITLED UNDER THE TERMS OF THE BROOKHART SALARY ACT HAD THEY REMAINED ON THE PERMANENT ROLL. RESTORE SUCH EMPLOYEES TO THE SAME SALARY STATUS ON THE PERMANENT ROLL TO WHICH THEY WOULD HAVE BEEN ENTITLED BY VIRTUE OF THE BROOKHART SALARY ACT. NOTWITHSTANDING THE AVERAGE PROVISION WHICH WILL BE CONSIDERED AS NOT APPLICABLE TO PREVENT SUCH ADJUSTMENTS IN ORDER TO CARRY OUT THE SPIRIT AND INTENT OF THE CENSUS ACT. THAT THEY WOULD HAVE RECEIVED HAD THEY REMAINED ON THE PERMANENT ROLL. (46 STAT. 21) A NUMBER OF PERMANENT EMPLOYEES OF THE CENSUS BUREAU OF THIS DEPARTMENT WERE TRANSFERRED TO AND ARE NOW SERVING UNDER TEMPORARY APPOINTMENT ON FIFTEENTH DECENNIAL CENSUS WORK.

A-35680, APRIL 9, 1931, 10 COMP. GEN. 458

COMPENSATION - CENSUS EMPLOYEES - SALARY STATUS UPON RETRANSFER TO THE PERMANENT ROLL CENSUS EMPLOYEES ARE NOT ENTITLED, AS A MATTER OF STATUTORY RIGHT, UPON RETRANSFER FROM THE TEMPORARY TO THE PERMANENT ROLL, TO THE INCREASE IN COMPENSATION TO WHICH THEY WOULD HAVE BEEN ENTITLED UNDER THE TERMS OF THE BROOKHART SALARY ACT HAD THEY REMAINED ON THE PERMANENT ROLL, BUT THE ADMINISTRATIVE OFFICE MAY, WITHIN AVAILABLE APPROPRIATIONS, RESTORE SUCH EMPLOYEES TO THE SAME SALARY STATUS ON THE PERMANENT ROLL TO WHICH THEY WOULD HAVE BEEN ENTITLED BY VIRTUE OF THE BROOKHART SALARY ACT, OR REALLOCATION OF PERMANENT POSITIONS TO A HIGHER GRADE, HAD THEY REMAINED ON THE PERMANENT ROLL, NOTWITHSTANDING THE AVERAGE PROVISION WHICH WILL BE CONSIDERED AS NOT APPLICABLE TO PREVENT SUCH ADJUSTMENTS IN ORDER TO CARRY OUT THE SPIRIT AND INTENT OF THE CENSUS ACT. IF SUCH ACTION WOULD VIOLATE THE AVERAGE PROVISION, CENSUS EMPLOYEES MAY NOT BE GRANTED ADMINISTRATIVE PROMOTIONS WITHIN THEIR GRADES ON THE PERMANENT ROLL, UPON THEIR RETRANSFER FROM THE TEMPORARY ROLL, THAT THEY WOULD HAVE RECEIVED HAD THEY REMAINED ON THE PERMANENT ROLL.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, APRIL 9, 1931:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MARCH 4, 1931, AS FOLLOWS:

PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 18, 1929, (46 STAT. 21) A NUMBER OF PERMANENT EMPLOYEES OF THE CENSUS BUREAU OF THIS DEPARTMENT WERE TRANSFERRED TO AND ARE NOW SERVING UNDER TEMPORARY APPOINTMENT ON FIFTEENTH DECENNIAL CENSUS WORK. DUE TO THE COMPLETION OF CERTAIN LINES OF WORK PRIOR TO DECEMBER 31, 1932, IT WILL BE NECESSARY FROM TIME TO TIME TO RETRANSFER TO THE PERMANENT ROLL CERTAIN OF THESE PERMANENT EMPLOYEES. THESE EMPLOYEES AS A GENERAL RULE HAVE BEEN RECEIVING HIGHER SALARIES IN THEIR TEMPORARY ASSIGNMENTS THAN IN THEIR FORMAL PERMANENT POSITIONS. YOUR LETTER OF JULY 5, 1929, IT WAS STATED THEY MAY BE RETRANSFERRED TO THEIR FORMER PERMANENT POSITIONS AT THE SAME SALARIES THEY WERE RECEIVING IMMEDIATELY PRECEDING THE TRANSFER TO THE TEMPORARY ROLL.

THE DEPARTMENT FEELS THAT THESE EMPLOYEES SHOULD NOT BY REASON OF THESE TEMPORARY ASSIGNMENTS BE DEPRIVED OF THE NORMAL INCREASES WHICH THEY WOULD HAVE RECEIVED AS THE RESULT OF LEGISLATION OR ADMINISTRATIVE ACTION HAD THEY REMAINED IN THEIR PERMANENT POSITIONS.

FOR THE INFORMATION AND GUIDANCE OF THE DEPARTMENT IN RETURNING THESE EMPLOYEES TO THEIR PERMANENT POSITIONS YOUR DECISION IS RESPECTFULLY REQUESTED ON THE FOLLOWING QUESTIONS:

1. MAY A PERMANENT EMPLOYEE ON THE TEMPORARY ROLL WHO WOULD HAVE BEEN ENTITLED TO INCREASE OF PAY UNDER THE BROOKHART SALARY ACT, IF HE HAD REMAINED ON THE PERMANENT ROLL, HAVE THE BENEFIT OF SUCH INCREASE ON HIS RETRANSFER TO THE PERMANENT ROLL, IF APPROPRIATIONS ARE AVAILABLE?

2. IF THE POSITION HELD BY THE EMPLOYEE AT THE TIME HE WAS TRANSFERRED FROM THE PERMANENT TO THE TEMPORARY ROLL HAS IN THE MEANTIME BEEN ALLOCATED TO A HIGHER GRADE WHICH CARRIED AN INCREASE OF PAY, MAY HE BE RETRANSFERRED TO THE NEW GRADE AND HAVE THE BENEFIT OF SUCH SALARY INCREASE?

3. AT THE TIME OF TRANSFER TO THE TEMPORARY ROLL AN EMPLOYEE WAS IN GRADE 4, RECEIVING A SALARY OF $2,040 PER ANNUM. HIS PRESENT SALARY ON THE TEMPORARY ROLL IS $2,300. ON RETRANSFER TO THE PERMANENT ROLL MAY HE RECEIVE THE MAXIMUM SALARY OF GRADE 4, $2,160, EVEN THOUGH IT RESULTS IN INCREASING THE AVERAGE SALARY IN SUCH GRADE BEYOND THE AVERAGE SALARY FIXED FOR THE GRADE, OR MUST HE RETURN TO THE PERMANENT ROLL AT A SALARY OF $2,040?

4.IF IT IS CERTIFIED ADMINISTRATIVELY THAT AN EMPLOYEE WOULD HAVE BEEN ADVANCED TO A HIGHER SALARY STEP WITHIN HIS GRADE IF HE HAD REMAINED ON THE PERMANENT ROLL, MAY HE BE REAPPOINTED AT SUCH HIGHER SALARY RATE ON HIS RETRANSFER TO THE PERMANENT ROLL, IF APPROPRIATIONS ARE AVAILABLE?

SECTION 3 OF THE CENSUS ACT OF JUNE 18, 1929, 46 STAT. 21, CONTAINS THE FOLLOWING PROVISO:

* * * PROVIDED, THAT CENSUS EMPLOYEES WHO MAY BE TRANSFERRED TO ANY SUCH TEMPORARY POSITIONS SHALL NOT LOSE THEIR PERMANENT CIVIL-SERVICE STATUS BY REASON OF SUCH TRANSFER: * * *

IN DECISION OF JULY 5, 1929, A-27801, QUESTION (3) WAS QUOTED FROM YOUR SUBMISSION OF JUNE 28, 1929, AND ANSWERED, AS FOLLOWS:

"/3) WOULD THE PERMANENT EMPLOYEES OF THE BUREAU WHO MIGHT BE TRANSFERRED TEMPORARILY TO THE DECENNIAL CENSUS ROLL HAVE TO BE REAPPOINTED ON JANUARY 1, 1933, AT THE MINIMUM SALARY OF THEIR FORMER CLASSIFICATION GRADES?

QUESTION 3 IS NOT ENTIRELY FREE FROM DOUBT AS THE PROVISION IN THE CENSUS ACT QUOTED IN YOUR SUBMISSION ONLY SPECIFICALLY SAVES TO TRANSFERRED EMPLOYEES "THEIR PERMANENT CIVIL-SERVICE ATUS.' HOWEVER, TAKING THE ACT AS A WHOLE THE INTENT OF THE CONGRESS APPEARS TO BE TO MAKE EXPERIENCED EMPLOYEES READILY AVAILABLE FOR CENSUS WORK AND THAT SUCH EMPLOYEES SHOULD NOT SUFFER ANY DETRIMENT BY REASON THEREOF. ACCORDINGLY, I HAVE TO ADVISE THAT EMPLOYEES TRANSFERRED TO THE TEMPORARY CENSUS FORCE, UPON TERMINATION OF THE NEED FOR THEIR SERVICES ON SUCH FORCE, MAY, IN THE ABSENCE OF ANY INTERVENING LEGISLATION WITH RESPECT THERETO, BE RESTORED TO THE PERMANENT POSITIONS FORMERLY HELD BY THEM IF THEN VACANT AND BE PAID AT THE SAME SALARY RATE RECEIVED IMMEDIATELY PRIOR TO THEIR TRANSFER TO THE TEMPORARY CENSUS FORCE. THE DECISIONS IN 4 COMP. GEN. 1030; 5 ID. 302; 6 ID. 455, ARE NOT CONSIDERED APPLICABLE TO THE PRESENT SITUATION.

IN DECISION OF OCTOBER 1, 1930, 10 COMP. GEN. 145, 149, HOLDING THAT PERMANENT EMPLOYEES WHO WERE ON THE TEMPORARY ROLL UNDER THE BUREAU OF THE CENSUS WERE NOT ENTITLED TO AUTOMATIC INCREASE IN COMPENSATION UNDER THE TERMS OF THE BROOKHART SALARY ACT, IT WAS STATED:

* * * THE PROVISO IN THE CENSUS STATUTE SAVES TO THE EMPLOYEES TRANSFERRED TO THE TEMPORARY FORCES THEIR "PERMANENT CIVIL-SERVICE STATUS" AND UNDER THE DECISION LAST ABOVE QUOTED THERE IS SAVED ONLY THE RATE OF COMPENSATION "RECEIVED IMMEDIATELY PRIOR TO THEIR TRANSFER TO THE TEMPORARY CENSUS FORCE" AND NOT ANY INCREASE THAT MAY BE AUTHORIZED TO OTHER EMPLOYEES BY INTERVENING LEGISLATION. BUT, HOWEVER THIS MAY BE, THERE IS NOT NOW INVOLVED THE QUESTION AS TO THE MAXIMUM RATE OF COMPENSATION WHICH MAY BE PAID THESE EMPLOYEES UPON THEIR RETURN TO THE PERMANENT ROLL.

ACCORDINGLY, IT MUST BE HELD GENERALLY THAT CENSUS EMPLOYEES ARE NOT ENTITLED, AS A MATTER OF STATUTORY RIGHT, UPON RETRANSFER FROM THE TEMPORARY TO THE PERMANENT ROLL, TO THE INCREASES IN COMPENSATION WHICH WOULD HAVE BEEN GRANTED TO THEM UNDER THE TERMS OF THE BROOKHART SALARY ACT HAD THEY REMAINED ON THE PERMANENT ROLL. THAT IS, A DEFICIENCY MAY NOT BE INCURRED TO GRANT SUCH INCREASES, NOR WOULD THE EMPLOYEES HAVE A CLAIM FOR THE AMOUNT THEREOF.

HOWEVER, IT CLEARLY APPEARS THAT IT WAS NOT THE SPIRIT AND INTENT OF THE STATUTE THAT EMPLOYEES HAVING A PERMANENT CIVIL-SERVICE STATUS SHOULD SUFFER A LOSS IN THEIR PERMANENT STATUS BY REASON OF SERVICE ON THE TEMPORARY ROLL DURING THE PEAK OF THE CENSUS. IT WOULD SEEM TO BE LEGAL AND PROPER, WITHIN AVAILABLE APPROPRIATIONS, TO RESTORE SUCH EMPLOYEES TO THE SAME SALARY STATUS ON THE PERMANENT ROLL THAT THEY WOULD HAVE BEEN ENTITLED TO BY VIRTUE OF THE BROOKHART SALARY ACT, OR REALLOCATION OF PERMANENT POSITION TO A HIGHER GRADE, HAD THEY REMAINED ON THE PERMANENT ROLL, NOTWITHSTANDING THE AVERAGE PROVISION WHICH WILL BE CONSIDERED AS NOT APPLICABLE TO PREVENT SUCH ADJUSTMENTS IN ORDER TO CARRY OUT THE SPIRIT AND INTENT OF THE CENSUS ACT.

QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE.

REFERRING TO QUESTION 3, ASSUMING THE TRANSFER TO THE TEMPORARY ROLL WAS MADE ON OR AFTER JULY 1, 1928, AND PRIOR TO JULY 3, 1930, WHEN THE EMPLOYEE WAS RECEIVING $2,040 PER ANNUM ON THE PERMANENT ROLL, WHICH WAS THEN THE NEXT TO THE HIGHEST SALARY RATE PRESCRIBED BY THE WELCH ACT FOR GRADE CAF 4, THE SALARY RATE ON RETRANSFER TO THE PERMANENT ROLL MAY NOT EXCEED $2,100 PER ANNUM--- THE RATE TO WHICH THE EMPLOYEE WOULD HAVE BEEN ENTITLED UNDER THE BROOKHART SALARY ACT--- IF PAYMENT OF THE MAXIMUM RATE OF $2,160 PER ANNUM WOULD CAUSE THE PROPER AVERAGE OF THE GRADE TO BE EXCEEDED.

QUESTION 4 IS ANSWERED IN THE AFFIRMATIVE PROVIDED THE PAYMENT OF THE HIGHER SALARY RATE WOULD NOT CAUSE THE PROPER AVERAGE OF THE GRADE TO BE EXCEEDED, AND IN THE NEGATIVE IF PAYMENT OF THE HIGHER SALARY RATE WOULD CAUSE THE PROPER AVERAGE FOR THE GRADE TO BE EXCEEDED. AS ADMINISTRATIVE PROMOTIONS RETROACTIVELY APPROVED MAY NOT BE RECOGNIZED, THERE WILL BE CONSIDERED AS SAVED THE EMPLOYEES WITHIN AVAILABLE APPROPRIATIONS WITHOUT REGARD TO THE AVERAGE PROVISION, ONLY INCREASES IN COMPENSATION AUTHORIZED BY LAW EITHER UNDER THE TERMS OF THE BROOKHART SALARY ACT OR ON THE BASIS OF REALLOCATIONS TO HIGHER GRADES MADE UNDER THE GENERAL TERMS OF THE CLASSIFICATION ACT.