A-51833, SEPTEMBER 1, 1934, 14 COMP. GEN. 185

A-51833: Sep 1, 1934

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1932 WHERE AN EMPLOYEE IS PROHIBITED BY SECTION 3 OF THE ACT OF JUNE 16. THE APPROVAL OF THE PRESIDENT TO THE SAME INCREASE WHICH WOULD HAVE BEEN PROHIBITED BY THE STATUTE MAY NOT BE REGARDED AS TAKING THE CASE OUT OF THE STATUTE. AS FOLLOWS: REFERENCE IS MADE TO DEPARTMENT LETTER OF OCTOBER 26. YOUR OPINION WAS THEN REQUESTED AS TO WHETHER THE SALARY OF MR. TO THE QUESTION AS PRESENTED YOUR ANSWER WAS IN THE NEGATIVE. FOSS WAS ADVANCED FROM A POSITION IN GRADE CAF-9 TO AN EXISTING VACANCY IN AN ENTIRELY DIFFERENT POSITION PREVIOUSLY ALLOCATED BY THE PERSONNEL CLASSIFICATION BOARD IN GRADE CAF-11. IT IS THE VIEW OF THE DEPARTMENT THAT HE SHOULD NOT BE DENIED THE MINIMUM SALARY OF THE HIGHER GRADE POSITION.

A-51833, SEPTEMBER 1, 1934, 14 COMP. GEN. 185

CLASSIFICATION - REALLOCATION OF POSITIONS SINCE JUNE 30, 1932 WHERE AN EMPLOYEE IS PROHIBITED BY SECTION 3 OF THE ACT OF JUNE 16, 1933, 48 STAT. 304, FROM RECEIVING AN INCREASE IN COMPENSATION AS THE RESULT OF THE REALLOCATION OF HIS POSITION SINCE JUNE 30, 1932, BASED ON THE DUTIES AND RESPONSIBILITIES AS OF JUNE 30, 1932, THE APPROVAL OF THE PRESIDENT TO THE SAME INCREASE WHICH WOULD HAVE BEEN PROHIBITED BY THE STATUTE MAY NOT BE REGARDED AS TAKING THE CASE OUT OF THE STATUTE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, SEPTEMBER 1, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 16, 1934, AS FOLLOWS:

REFERENCE IS MADE TO DEPARTMENT LETTER OF OCTOBER 26, 1933, AND TO YOUR REPLY THERETO UNDER DATE OF NOVEMBER 14, 1933 (A-51833), RELATIVE TO THE ADVANCEMENT OF JOHN A. FOSS, AN EMPLOYEE OF THE BUREAU OF INTERNAL REVENUE, FROM GRADE CAF-9 TO GRADE CAF-11.

YOUR OPINION WAS THEN REQUESTED AS TO WHETHER THE SALARY OF MR. FOSS MIGHT BE RESTORED RETROACTIVELY, IF AUTHORIZED BY THE PRESIDENT IN CONFORMITY WITH THE PROVISIONS OF SECTION 202 OF THE ECONOMY ACT. TO THE QUESTION AS PRESENTED YOUR ANSWER WAS IN THE NEGATIVE.

INASMUCH AS MR. FOSS WAS ADVANCED FROM A POSITION IN GRADE CAF-9 TO AN EXISTING VACANCY IN AN ENTIRELY DIFFERENT POSITION PREVIOUSLY ALLOCATED BY THE PERSONNEL CLASSIFICATION BOARD IN GRADE CAF-11, IT IS THE VIEW OF THE DEPARTMENT THAT HE SHOULD NOT BE DENIED THE MINIMUM SALARY OF THE HIGHER GRADE POSITION.

YOUR OPINION ACCORDINGLY IS REQUESTED WHETHER, UPON THE AUTHORIZATION OF THE PRESIDENT, THE CIVIL SERVICE COMMISSION CONCURRING, MR. FOSS MAY BE ADMINISTRATIVELY PROMOTED TO THE MINIMUM SALARY OF GRADE CAF-11 FROM AND AFTER AUTHORIZATION BY THE PRESIDENT AND THE APPROVAL OF THE SECRETARY.

THE CONCLUSION OF THE DECISION OF NOVEMBER 14, 1933, WAS AS FOLLOWS:

THE CHARACTER OF THE ADVANCEMENT OF MR. FOSS AS A REALLOCATION RATHER THAN AS AN ADMINISTRATIVE PROMOTION WAS FIXED PRIOR TO JUNE 16, 1933, THE EFFECTIVE DATE OF THE ACT, AND THE PRESIDENT'S APPROVAL AT THIS TIME WOULD NOT AUTHORIZE REGARDING THE INCREASE AS INCIDENT TO THE FILLING OF A VACANCY RATHER THAN TO A REALLOCATION.

THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.

WHILE THE PARTICULAR QUESTION PRESENTED WAS WHETHER THE SALARY OF MR. FOSS MIGHT BE RESTORED RETROACTIVELY AS OF JUNE 16, 1933, THE CONCLUSION OF THE DECISION AND THE REASONING ON WHICH THE SAME WAS BASED ARE SUFFICIENTLY BROAD TO ANSWER THE QUESTION NOW PRESENTED IN THE NEGATIVE. THAT IS, THE ADJUSTMENT IN THE STATUS OF THE EMPLOYEE MUST NOW BE REGARDED AS HAVING BEEN A REALLOCATION WITHIN THE MEANING OF THE STATUTE PROHIBITING AN INCREASE IN COMPENSATION, AND THE APPROVAL OF THE PRESIDENT TO THE SAME INCREASE WHICH WOULD BE PROHIBITED BY SAID STATUTE MAY NOT BE REGARDED AS TAKING THE CASE OUT OF THE STATUTE. THE PRESENT STATUS OF MR. FOSS IS THAT OF HOLDING A POSITION IN CAF-11 THE SALARY OF WHICH HE IS PRECLUDED FROM RECEIVING DURING THE PRESENT FISCAL YEAR BY A PROVISION IN SECTION 24 OF TITLE II OF THE ACT OF MARCH 28, 1934. MANIFESTLY AN EMPLOYEE CANNOT BE TRANSFERRED AND PROMOTED TO A POSITION HE HAS BEEN LEGALLY HOLDING FOR OVER A YEAR. WHETHER THE COMPENSATION OF THIS EMPLOYEE MAY BE INCREASED TO ONE OF THE HIGHER RATES AUTHORIZED UNDER GRADE CAF-9 IS DEPENDENT UPON THE EXISTENCE OF THE CONDITIONS BY SECTION 24, TITLE II, OF THE ACT OF MARCH 28, 1934.