A-4015, JULY 19, 1924, 4 COMP. GEN. 79

A-4015: Jul 19, 1924

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1924: I HAVE YOUR LETTER OF JULY 15. IN A POSITION WHICH WAS VACATED BY THE RESIGNATION SINCE JULY 1. OF AN EMPLOYEE WHO WAS RECEIVING $2. YOUR OPINION IS REQUESTED AS TO WHETHER SUCH TRANSFER WOULD BE IN VIOLATION OF THE CLASSIFICATION ACT OF 1923. WOULD YOUR ANSWER BE THE SAME IF THE RESIGNATION WAS FROM A POSITION AT THE MINIMUM SALARY? REGARDLESS OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT IN WHICH THE POSITION IS LOCATED. IN WHICH APPROPRIATIONS FOR THE PUBLIC HEALTH SERVICE ARE MADE. OR (2) TO REQUIRE THE REDUCTION IN SALARY OF ANY PERSON WHOSE COMPENSATION IS FIXED. OR (3) TO PREVENT THE PAYMENT OF A SALARY UNDER ANY GRADE AT A RATE HIGHER THAN THE MAXIMUM RATE OF THE GRADE WHEN SUCH HIGHER RATE IS PERMITTED BY "THE CLASSIFICATION ACT OF 1923.

A-4015, JULY 19, 1924, 4 COMP. GEN. 79

CLASSIFICATION OF CIVILIAN EMPLOYEES - TRANSFERS BETWEEN GRADES ANY NEW ADJUSTMENT OF SALARIES BY TRANSFER, REINSTATEMENTS, ETC., IN A GRADE IN WHICH THE AVERAGE HAS ALREADY BEEN EXCEEDED DUE TO THE EXCEPTIONS EXPRESSED IN THE AVERAGE PROVISION OF THE APPROPRIATION ACT, MUST TEND TO REDUCE THE AVERAGE, AND TO THAT END ALL SUCH TRANSFERS, REINSTATEMENTS, ETC., MUST BE MADE AT THE MINIMUM SALARY OF THE GRADE.

ACTING COMPTROLLER GENERAL GINN TO THE SECRETARY OF THE TREASURY, JULY 19, 1924:

I HAVE YOUR LETTER OF JULY 15, 1924, AS FOLLOWS:

THE SURGEON GENERAL OF THE U.S. PUBLIC HEALTH BUREAU HAS RECOMMENDED THE TRANSFER OF A BOOKKEEPER AT $1,680 PER ANNUM, CAF 3, IN THE WAR DEPARTMENT TO BOOKKEEPER AT $2,000 PER ANNUM, CAF-5, IN THE PUBLIC HEALTH BUREAU, IN A POSITION WHICH WAS VACATED BY THE RESIGNATION SINCE JULY 1, 1924, OF AN EMPLOYEE WHO WAS RECEIVING $2,300 PER ANNUM, THE AVERAGE OF THE SALARIES OF THE TOTAL NUMBER OF PERSONS IN SAID GRADE IN THE PUBLIC HEALTH BUREAU BEING IN EXCESS OF THE AVERAGE OF THE COMPENSATION RATES SPECIFIED FOR SAID GRADE.

YOUR OPINION IS REQUESTED AS TO WHETHER SUCH TRANSFER WOULD BE IN VIOLATION OF THE CLASSIFICATION ACT OF 1923. WOULD YOUR ANSWER BE THE SAME IF THE RESIGNATION WAS FROM A POSITION AT THE MINIMUM SALARY?

SECTION 10 OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1491, PROVIDES AS FOLLOWS:

THAT, SUBJECT TO SUCH RULES AND REGULATIONS AS THE PRESIDENT MAY FROM TIME TO TIME PRESCRIBE, AND REGARDLESS OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT IN WHICH THE POSITION IS LOCATED, AN EMPLOYEE MAY BE TRANSFERRED FROM A POSITION IN ONE GRADE TO A VACANT POSITION WITHIN THE SAME GRADE AT THE SAME RATE OF COMPENSATION, OR PROMOTED TO A VACANT POSITION IN A HIGHER GRADE AT A HIGHER RATE OF COMPENSATION, IN ACCORDANCE WITH CIVIL SERVICE RULES, ANY PROVISION OF EXISTING STATUTES TO THE CONTRARY NOTWITHSTANDING: PROVIDED, THAT NOTHING HEREIN SHALL BE CONSTRUED TO AUTHORIZE OR PERMIT THE TRANSFER OF AN EMPLOYEE OF THE UNITED STATES TO A POSITION UNDER THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, OR AN EMPLOYEE OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA TO A POSITION UNDER THE UNITED STATES.

THE ACT OF APRIL 4, 1924, 43 STAT. 64, IN WHICH APPROPRIATIONS FOR THE PUBLIC HEALTH SERVICE ARE MADE, PROVIDES AS FOLLOWS:

* * * PROVIDED, THAT IN EXPENDING APPROPRIATIONS OR PORTIONS OF APPROPRIATIONS, CONTAINED IN THIS ACT, FOR THE PAYMENT FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA IN ACCORDANCE WITH ,THE CLASSIFICATION ACT OF 1923," THE AVERAGE OF THE SALARIES OF THE TOTAL NUMBER OF PERSONS UNDER ANY GRADE OR CLASS THEREOF 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 SUCH ACT: PROVIDED, THAT THIS RESTRICTION SHALL NOT APPLY (1) TO GRADES 1, 2, 3, AND 4 OF THE CLERICAL-MECHANICAL SERVICE, OR (2) TO REQUIRE THE REDUCTION IN SALARY OF ANY PERSON WHOSE COMPENSATION IS FIXED, AS OF JULY 1, 1924, IN ACCORDANCE WITH THE RULES OF SECTION 6 OF SUCH ACT, OR (3) TO PREVENT THE PAYMENT OF A SALARY UNDER ANY GRADE AT A RATE HIGHER THAN THE MAXIMUM RATE OF THE GRADE WHEN SUCH HIGHER RATE IS PERMITTED BY "THE CLASSIFICATION ACT OF 1923," AND IS SPECIFICALLY AUTHORIZED BY OTHER LAW.

THIS PROVISION WAS ENACTED SUBSEQUENT TO THE CLASSIFICATION ACT AND THEREFORE ANY PROVISION APPEARING IN THE CLASSIFICATION ACT IN CONFLICT WITH THIS PROVISION WITH REFERENCE TO AVERAGE IS RENDERED INEFFECTIVE THEREBY TO THE EXTENT THAT IT IS IN CONFLICT WITH THE SAID AVERAGE PROVISION. THEREFORE TRANSFERS AUTHORIZED UNDER SECTION 10 OF THE CLASSIFICATION ACT MAY BE MADE ONLY WHEN THEY MAY BE ACCOMPLISHED WITHOUT VIOLATION OF THE AVERAGE PROVISION.

SECTION 10 OF THE CLASSIFICATION ACT AUTHORIZES TRANSFERS "TO A VACANT POSITION IN A HIGHER GRADE AT A HIGHER RATE OF COMPENSATION.' BUT THIS MAY NOT BE ACCOMPLISHED IF IT IS PROPOSED TO PAY THE EMPLOYEE TRANSFERRED A RATE OF COMPENSATION WHICH WILL VIOLATE THE AVERAGE PROVISION. IT IS ASSUMED THAT THE PRESENT EXCESS IN THE GRADE IS DUE TO THE EXCEPTIONS MADE BY THE AVERAGE PROVISION ITSELF. IT WAS HELD IN DECISION OF JUNE 26,1924, TO THE CIVIL SERVICE COMMISSION, 3 COMP. GEN. 1001, THAT IN FIXING THE INITIAL SALARIES ON JULY 1, 1924, THESE EXCEPTED SALARIES MIGHT BE ELIMINATED IN DETERMINING THE AVERAGE. BUT IT WAS ALSO HELD IN SAID DECISION THAT ANY NEW ADJUSTMENTS OF SALARIES AFTER THE ESTABLISHMENT OF THE INITIAL SALARIES MUST NOT VIOLATE THE AVERAGE PROVISION. THE TRANSFER CONTEMPLATED IN THIS CASE INVOLVES A NEW ADJUSTMENT AFTER JULY 1, 1924; THEREFORE THE SALARY OF ALL PERSONS IN THE GRADE, INCLUDING THOSE WHO WERE EXCEPTED IN THE ALLOCATION, MUST BE CONSIDERED IN DETERMINING WHETHER THE TRANSFER WILL VIOLATE THE AVERAGE PROVISION.

CLEARLY IT WAS NOT THE INTENT OF CONGRESS THAT ALL APPOINTMENTS IN OR TRANSFERS TO A GRADE MUST CEASE ON AND AFTER JULY 1 IF THE AVERAGE OF THE GRADE HAS ALREADY BEEN EXCEEDED. CONSIDERING THE TRANSFER PROVISION IN CONNECTION WITH THE AVERAGE PROVISION, THE RULE WILL BE THAT ANY NEW ADJUSTMENT OF SALARIES BY TRANSFER, REINSTATEMENTS, ETC., IN A GRADE IN WHICH THE AVERAGE HAS ALREADY BEEN EXCEEDED DUE TO THE EXCEPTIONS EXPRESSED IN THE AVERAGE PROVISION OF THE APPROPRIATION ACT, MUST TEND TO REDUCE THE EXCESS AVERAGE SO THAT EVENTUALLY THE AVERAGE WILL NOT BE EXCEEDED, AND THIS CAN BE ACCOMPLISHED MOST EXPEDITIOUSLY BY REQUIRING THE TRANSFERS, REINSTATEMENTS, ETC., TO BE AT THE MINIMUM RATE OF SALARY OF THE GRADE.

ACCORDINGLY, IN THE CASE SUBMITTED THE TRANSFER TO THE PUBLIC HEALTH SERVICE OF THE BOOKKEEPER AT A SALARY OF $2,000 IS NOT AUTHORIZED, BUT UNDER THE RULE ABOVE STATED THE TRANSFER MAY BE MADE ONLY AT THE MINIMUM SALARY OF THE GRADE, VIZ, $1,860.

IF THE TRANSFER IS TO FILL A VACANCY CAUSED BY A RESIGNATION FROM A POSITION AT THE MINIMUM SALARY OF THE GRADE AND THE AVERAGE OF THE GRADE IS EXCEEDED, THE TRANSFER WOULD BE AUTHORIZED AT THE MINIMUM SALARY.