A-49709, JULY 6, 1933, 13 COMP. GEN. 1

A-49709: Jul 6, 1933

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IS APPLICABLE TO ANY OFFICER OR EMPLOYEE WHOSE POSITION AS OF JUNE 30. MILLER WAS PERFORMING DUTIES NOT CONTEMPLATED BY HIS THEN CURRENT CLASSIFICATION SHEET AND THAT THERE HAD BEEN A SUFFICIENT DEVELOPMENT IN THE DUTIES PERFORMED AND THE RESPONSIBILITIES ASSUMED TO WARRANT THE SUBMISSION OF A NEW CLASSIFICATION SHEET FOR THE EMPLOYEE. IT WAS ALSO STATED THAT ACTION ON THE APPEAL WOULD BE HELD IN ABEYANCE PENDING THE SUBMISSION OF A NEW CLASSIFICATION SHEET COVERING THE EMPLOYEE'S CURRENT DUTIES. COPY OF THIS LETTER IS ENCLOSED. IS ALSO ENCLOSED. THE COMMISSION IS IN DOUBT AS TO WHETHER THE CHANGE IN GRADE FROM CAF 9 TO CAF 12 SHOULD BE CONSIDERED AS A REALLOCATION OF THE POSITION OR AS AN ORIGINAL ALLOCATION AND BEFORE MAKING FURTHER PAYMENTS TO MR.

A-49709, JULY 6, 1933, 13 COMP. GEN. 1

CLASSIFICATION - REALLOCATION OF POSITIONS SINCE JUNE 30, 1932 SECTION 3 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1934, DATED JUNE 16, 1933, 48 STAT. 304, REQUIRING THE REDUCTION IN COMPENSATION TO THE RATE RECEIVED JUNE 30, 1932, IS APPLICABLE TO ANY OFFICER OR EMPLOYEE WHOSE POSITION AS OF JUNE 30, 1932, HAS SINCE BEEN REALLOCATED UPWARD BY THE PERSONNEL CLASSIFICATION BOARD OR THE CIVIL SERVICE COMMISSION, EITHER UPON THE BASIS OF THE SAME CLASSIFICATION SHEET WHICH DETERMINED THE PRIOR GRADE, OR ON THE BASIS OF A NEW CLASSIFICATION SHEET REDESCRIBING THE DUTIES AND RESPONSIBILITIES OF THE OFFICER OR EMPLOYEE CURRENT AS OF JUNE 30, 1932. HOWEVER, THE STATUTE DOES NOT REQUIRE A REDUCTION IN THE GRADE IN WHICH THE POSITION HAS BEEN PROPERLY ALLOCATED.

COMPTROLLER GENERAL MCCARL TO THE CHAIRMAN OF THE FEDERAL TRADE COMMISSION, JULY 6, 1933:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JUNE 28, 1933, AS FOLLOWS:

UNDER DATE OF FEBRUARY 24, 1933, THE FEDERAL TRADE COMMISSION TOOK ACTION ON AN APPEAL MADE BY MR. KENNETH A. MILLER, ACCOUNTANT, CAF GRADE 9, FOR THE REALLOCATION OF THE POSITION OCCUPIED BY HIM TO CAF GRADE 12, APPROVING OF SUCH REALLOCATION.

UNDER DATE OF FEBRUARY 28, 1933, THE COMMISSION TRANSMITTED THE APPEAL TO THE CIVIL SERVICE COMMISSION, COPY OF LETTER ENCLOSED, MARKED "EXHIBIT A.'

UNDER DATE OF MARCH 25, 1933, THE ACTING SECRETARY OF THE CIVIL SERVICE COMMISSION WROTE THE FEDERAL TRADE COMMISSION WITH REFERENCE TO THE APPEAL FILED BY MR. MILLER AND STATED THAT AN INVESTIGATION DISCLOSED THAT MR. MILLER WAS PERFORMING DUTIES NOT CONTEMPLATED BY HIS THEN CURRENT CLASSIFICATION SHEET AND THAT THERE HAD BEEN A SUFFICIENT DEVELOPMENT IN THE DUTIES PERFORMED AND THE RESPONSIBILITIES ASSUMED TO WARRANT THE SUBMISSION OF A NEW CLASSIFICATION SHEET FOR THE EMPLOYEE. IT WAS ALSO STATED THAT ACTION ON THE APPEAL WOULD BE HELD IN ABEYANCE PENDING THE SUBMISSION OF A NEW CLASSIFICATION SHEET COVERING THE EMPLOYEE'S CURRENT DUTIES. COPY OF THIS LETTER IS ENCLOSED, MARKED "EXHIBIT B.'

ON MARCH 27, 1933, THE FEDERAL TRADE COMMISSION TRANSMITTED A NEW CLASSIFICATION SHEET IN COMPLIANCE WITH REQUEST OF THE CIVIL SERVICE COMMISSION, A COPY OF THE LETTER OF TRANSMITTAL BEING ENCLOSED MARKED EXHIBIT C. A COPY OF THE NEW CLASSIFICATION SHEET INDICATING THAT THE CHANGE IN DUTIES BECAME EFFECTIVE JULY 5, 1930, IS ALSO ENCLOSED, MARKED EXHIBIT D. UNDER DATE OF MARCH 28, 1933, THE COMMISSION RECEIVED NOTIFICATION OF THE APPROVAL OF THE CIVIL SERVICE COMMISSION OF THE ALLOCATION TO CAF GRADE 12.

SECTION 3 OF THE INDEPENDENT OFFICES APPROPRIATION ACT FOR 1934, APPROVED JUNE 16, 1933, PROVIDES AS FOLLOWS:

"SEC. 3.--- NO PART OF THE APPROPRIATIONS CONTAINED IN THIS ACT OR PRIOR APPROPRIATION ACTS SHALL BE USED TO PAY ANY INCREASE IN THE SALARY OF ANY OFFICER OR EMPLOYEE OF THE UNITED STATES GOVERNMENT BY REASON OF THE REALLOCATION OF THE POSITION OF SUCH OFFICER OR EMPLOYEE TO A HIGHER GRADE AFTER JUNE 30, 1932, BY THE PERSONNEL CLASSIFICATION BOARD OR THE CIVIL SERVICE COMMISSION AND SALARIES PAID ACCORDINGLY SHALL BE PAYMENT IN FULL.'

BECAUSE OF THE ABOVE QUOTED PROVISIONS OF LAW AND THE FACT THAT THE ALLOCATION OF MR. MILLER'S POSITION TO CAF GRADE 12 RESULTED IN AN INCREASE OF SALARY, THE COMMISSION IS IN DOUBT AS TO WHETHER THE CHANGE IN GRADE FROM CAF 9 TO CAF 12 SHOULD BE CONSIDERED AS A REALLOCATION OF THE POSITION OR AS AN ORIGINAL ALLOCATION AND BEFORE MAKING FURTHER PAYMENTS TO MR. MILLER AT THE INCREASED SALARY THE COMMISSION IS DESIROUS OF SECURING YOUR DECISION IN THE MATTER. IN THIS CONNECTION YOU ARE ADVISED THAT THE CIVIL SERVICE COMMISSION ADVISED THIS OFFICE INFORMALLY BY PHONE THAT THE CHANGE IN GRADE FROM CAF 9 TO CAF 12 WAS BASED ON THE CHANGE OF DUTIES AND WAS CONSIDERED BY THE CIVIL SERVICE COMMISSION AS AN ORIGINAL ALLOCATION.

SECTION 3 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1934, DATED JUNE 16, 1933, 48 STAT. 304, QUOTED IN YOUR LETTER, IS APPLICABLE TO ANY OFFICER OR EMPLOYEE WHOSE POSITION AS OF JUNE 30, 1932, HAS SINCE BEEN REALLOCATED UPWARD BY THE PERSONNEL CLASSIFICATION BOARD OR THE CIVIL SERVICE COMMISSION, EITHER UPON THE BASIS OF THE SAME CLASSIFICATION SHEET WHICH DETERMINED THE PRIOR GRADE, OR ON THE BASIS OF A NEW CLASSIFICATION SHEET REDESCRIBING THE DUTIES AND RESPONSIBILITIES OF THE OFFICER OR EMPLOYEE CURRENT AS OF JUNE 30, 1932. IF THE DUTIES AND RESPONSIBILITIES OF AN OFFICER OR EMPLOYEE HAVE BEEN SO CHANGED AFTER JUNE 30, 1932, AS TO BE EQUIVALENT TO THE CREATION OF A NEW OR DIFFERENT POSITION AND TO REQUIRE A REALLOCATION UPWARD, THAT WOULD INVOLVE AN AN ADMINISTRATIVE PROMOTION AND AS SUCH BE PROHIBITED BY SECTION 202 OF THE ECONOMY ACT AND SECTION 7 OF THE ACT OF MARCH 3, 1933, UNLESS SPECIFICALLY AUTHORIZED BY THE PRESIDENT. THAT IS TO SAY, SUCH ACTION WOULD BE THE EQUIVALENT OF CREATING A NEW OR ADDITIONAL POSITION, THE FILLING OF WHICH WOULD REQUIRE THE AUTHORIZATION OF THE PRESIDENT.

THE FACTS IN THE INSTANT CASE SHOW THAT THE REALLOCATION UPWARD FROM GRADE CAF 9 TO GRADE CAF 12 APPROVED BY THE CIVIL SERVICE COMMISSION IN MARCH 1933 WAS BASED ON A NEW CLASSIFICATION SHEET DESCRIBING THE DUTIES AND RESPONSIBILITIES WHICH THE EMPLOYEE HAD HAD SINCE JULY 5, 1930.

YOU ARE ADVISED, THEREFORE, THAT THE PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 16, 1933, ARE APPLICABLE AND REQUIRE THE REDUCTION OF THE EMPLOYEE'S COMPENSATION EFFECTIVE JUNE 16, 1933, THE DATE OF THE ACT, FROM $4,600, THE MINIMUM SALARY RATE OF GRADE CAF 12 LESS 15 PERCENT, TO $3,200 PER ANNUM, THE MINIMUM SALARY RATE OF GRADE CAF 9, WHICH HE WAS RECEIVING JUNE 30, 1932, LESS 15 PERCENT. IT IS TO BE UNDERSTOOD, OF COURSE, THAT THE STATUTE DOES NOT REQUIRE A REDUCTION IN THE GRADE IN WHICH THE POSITION HAS BEEN PROPERLY ALLOCATED.