A-53351, FEBRUARY 1, 1934, 13 COMP. GEN. 209

A-53351: Feb 1, 1934

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AMENDED - ADMINISTRATIVE PROMOTIONS - VACANT POSITIONS AN INCREASE IN THE SALARY RATE OF A VACANT EXISTING POSITION FOR PERFORMANCE OF SUBSTANTIALLY THE SAME DUTIES DURING THE FISCAL YEAR 1934 IS PROHIBITED AS AN ADMINISTRATIVE PROMOTION UNDER THE TERMS OF SECTION 7 OF THE ACT OF MARCH 3. BY WHICH YOU FOUND NO OBJECTION TO CERTAIN PROPOSED CHANGES OF PERSONNEL IN THE AMERICAN FOREIGN SERVICE IN CASES IN WHICH THERE WAS TO BE A SAVING IN APPROPRIATED FUNDS. YOUR OPINION IS RESPECTFULLY REQUESTED ON THE LEGALITY OF A CHANGE OF PERSONNEL PROPOSED BY THE AMERICAN MINISTER AT ASUNCION. THE MINISTER IS UNABLE TO FIND A SUITABLE TRANSLATOR AT THE SALARY OFFERED. ARE AVAILABLE AT $480 PER ANNUM.

A-53351, FEBRUARY 1, 1934, 13 COMP. GEN. 209

ECONOMY ACT, AMENDED - ADMINISTRATIVE PROMOTIONS - VACANT POSITIONS AN INCREASE IN THE SALARY RATE OF A VACANT EXISTING POSITION FOR PERFORMANCE OF SUBSTANTIALLY THE SAME DUTIES DURING THE FISCAL YEAR 1934 IS PROHIBITED AS AN ADMINISTRATIVE PROMOTION UNDER THE TERMS OF SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515, NOTWITHSTANDING THERE WOULD BE NO INCREASE IN THE TOTAL CHARGE AGAINST APPROPRIATED FUNDS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, FEBRUARY 1, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 20, 1934, AS FOLLOWS:

REFERRING TO YOUR DECISIONS A-50674 OF AUGUST 28, 1933, AND A-51182 OF SEPTEMBER 29, 1933, BY WHICH YOU FOUND NO OBJECTION TO CERTAIN PROPOSED CHANGES OF PERSONNEL IN THE AMERICAN FOREIGN SERVICE IN CASES IN WHICH THERE WAS TO BE A SAVING IN APPROPRIATED FUNDS, OR AT LEAST NO INCREASED EXPENDITURE FROM APPROPRIATED FUNDS, YOUR OPINION IS RESPECTFULLY REQUESTED ON THE LEGALITY OF A CHANGE OF PERSONNEL PROPOSED BY THE AMERICAN MINISTER AT ASUNCION, PARAGUAY, AS FOLLOWS:

THERE HAS BEEN VACANT IN THE LEGATION SINCE FEBRUARY 15, 1933, THE POSITION OF TRANSLATOR AT $228 PER ANNUM, BUT DUE TO LOCAL CONDITIONS AT ASUNCION RESULTING FROM THE DISTURBANCES IN THE CHACO, THE MINISTER IS UNABLE TO FIND A SUITABLE TRANSLATOR AT THE SALARY OFFERED. HOWEVER, THE SERVICES OF A HIGHLY RECOMMENDED AND QUALIFIED PERSON RESIDING AT ASUNCION, NOT A PARAGUAYAN CITIZEN, ARE AVAILABLE AT $480 PER ANNUM, AND THE MINISTER URGENTLY RECOMMENDS HIS EMPLOYMENT.

IN ORDER TO PROVIDE FUNDS FOR THE PURPOSE, THE AUTHORIZED SALARIES OF VARIOUS POSITIONS IN THE LEGATION WOULD BE READJUSTED AS INDICATED BELOW:

TABLE.

PRESENT PROPOSED PRESENT PROPOSED

RATE RATE RATE RATE TRANSLATOR, VACANCY ---- $228 $480 GARDENER --- $120 $94 MAJOR DOMO -------------- 348 273 ASSISTANT

GARDENER --- 108 85 JANITRESS -------- ----- 216 170 DO ------ 108 85

DO -------------- 132 104 ---- ---- MESSENGER -------------- 144 113 1,404 1,404

IN THE TWO DECISIONS YOU CITE THERE WAS NOT INVOLVED ANY INCREASE IN THE SALARY RATE OF ANY INDIVIDUAL EMPLOYEE OR OF ANY INDIVIDUAL VACANT POSITION, WHEREAS IN THE INSTANT MATTER, IT IS PROPOSED TO INCREASE THE SALARY RATE OF A VACANT EXISTING POSITION FROM $228 TO $480 PER ANNUM FOR PERFORMANCE OF SUBSTANTIALLY THE SAME DUTIES.

SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515, REENACTING SECTION 202 OF THE ECONOMY ACT, WITH AN AMENDMENT NOT HERE MATERIAL, PROVIDES:

NO ADMINISTRATIVE PROMOTIONS IN THE CIVIL BRANCH OF THE UNITED STATES GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA SHALL BE MADE DURING THE FISCAL YEAR ENDING JUNE 30, 1934: PROVIDED, THAT THE FILLING OF A VACANCY, WHEN AUTHORIZED BY THE PRESIDENT, BY THE APPOINTMENT OF AN EMPLOYEE OF A LOWER GRADE, SHALL NOT BE CONSTRUED AS AN ADMINISTRATIVE PROMOTION, BUT NO SUCH APPOINTMENT SHALL INCREASE THE COMPENSATION OF SUCH EMPLOYEE TO A RATE IN EXCESS OF THE MINIMUM RATE OF THE GRADE TO WHICH SUCH EMPLOYEE IS APPOINTED, UNLESS SUCH MINIMUM RATE WOULD REQUIRE AN ACTUAL REDUCTION IN COMPENSATION: PROVIDED FURTHER, THAT THE RESTORATION OF EMPLOYEES TO THEIR FORMER GRADES OR THEIR ADVANCEMENT TO INTERMEDIATE GRADES FOLLOWING REDUCTIONS OF COMPENSATION FOR DISCIPLINARY REASONS SHALL NOT BE CONSTRUED TO BE ADMINISTRATIVE PROMOTIONS FOR THE PURPOSES OF THIS SECTION. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO COMMISSIONED, COMMISSIONED WARRANT, WARRANT, AND ENLISTED PERSONNEL, AND CADETS, OF THE COAST GUARD.

IN DECISION OF AUGUST 17, 1932, 12 COMP. GEN. 254, IT WAS STATED:

WITH REFERENCE TO THE SUGGESTIONS THAT IF THE 8 1/3 PERCENT MUST BE DEDUCTED "IT WILL BE NECESSARY TO EMPLOY THEM AT SUCH A RATE AS TO ALLOW THEM THE AMOUNT DEMANDED AFTER THE DEDUCTION HAS BEEN MADE," ATTENTION IS INVITED TO THE FACT THAT SECTION 202 OF THE ECONOMY ACT PROHIBITS ADMINISTRATIVE PROMOTIONS DURING THE FISCAL YEAR 1933. THE EFFECT OF THIS RESTRICTION IS THAT SALARY RATES AS OF JUNE 30, 1932, FOR ANY CLASS OF POSITIONS, EITHER PERMANENT, TEMPORARY, EMERGENCY, OR SEASONAL, MAY NOT BE INCREASED DURING THE FISCAL YEAR 1933, REGARDLESS OF WHETHER THE PARTICULAR POSITION INVOLVED WAS OR WAS NOT OCCUPIED ON JUNE 30, 1932.

YOU ARE ADVISED, THEREFORE, THAT ON THE BASIS OF THE FACTS PRESENTED, THE PROPOSED INCREASE IN THE SALARY RATE OF THE VACANT EXISTING POSITION FOR PERFORMANCE OF SUBSTANTIALLY THE SAME DUTIES WOULD NOT BE AUTHORIZED, NOTWITHSTANDING--- DUE TO THE REDUCTION OF THE SALARIES OF OTHER POSITIONS --- THERE WOULD BE NO INCREASE IN THE TOTAL CHARGE AGAINST APPROPRIATED FUNDS.