A-54647, APRIL 5, 1934, 13 COMP. GEN. 263

A-54647: Apr 5, 1934

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ARE REQUIRED TO BE EFFECTED PURSUANT TO THE TERMS OF EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18. SUCH ADMINISTRATIVE OFFICES HAVE NO ELECTION TO PROCEED UNDER THE REGULAR CLASSIFICATION ACT. ALL OF THE VARIOUS POSITIONS IN MY OFFICE HAVE BEEN INITIALLY CLASSIFIED IN ACCORDANCE WITH THE GRADES AND SALARY RATES LAID DOWN THEREIN. CONSEQUENTLY THE ASSIGNMENT OF GRADES TO SUCH POSITIONS WAS NOT CONSIDERED AS A RECLASSIFICATION OF THOSE POSITIONS. WAS THE PRIME OBJECT INTENDED TO BE ACCOMPLISHED BY THE ISSUANCE OF EXECUTIVE ORDER NO. 6440. THE PAY OF THE LAST OF THESE EMPLOYEES WAS ADJUSTED IN ACCORDANCE WITH THE GRADINGS THUS GIVEN THEM PURSUANT TO THE EXECUTIVE ORDER AND WERE CARRIED ON THE PAYROLL IN SUCH STATUS FOR THE PERIOD BEGINNING MARCH 1.

A-54647, APRIL 5, 1934, 13 COMP. GEN. 263

CLASSIFICATION PURSUANT TO EXECUTIVE ORDER - PROMOTION THE CLASSIFICATION OF POSITIONS AND THE FIXING OF SALARY RATES FOR PERSONNEL IN THE EMERGENCY ESTABLISHMENTS OF THE GOVERNMENT, INCLUDING THE OFFICE OF THE DIRECTOR OF EMERGENCY CONSERVATION WORK, NOT MADE SUBJECT TO THE CLASSIFICATION ACT BY STATUTE, ARE REQUIRED TO BE EFFECTED PURSUANT TO THE TERMS OF EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18, 1933, EXCLUSIVELY, AND SUCH ADMINISTRATIVE OFFICES HAVE NO ELECTION TO PROCEED UNDER THE REGULAR CLASSIFICATION ACT. ANY INCREASE IN COMPENSATION NECESSARY TO ADJUST INITIAL SALARY RATES PURSUANT TO EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18, 1933, WHICH WOULD EITHER EQUAL OR EXCEED THE AMOUNT OF ONE SALARY STEP IN THE CORRESPONDING CLASSIFICATION GRADE, WOULD CONSTITUTE AN ADMINISTRATIVE PROMOTION AND BE PROHIBITED BY SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR OF EMERGENCY CONSERVATION WORK, APRIL 5, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF MARCH 28, 1934, AS FOLLOWS:

IN COMPLIANCE WITH THE PROVISIONS OF EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18, 1933, ALL OF THE VARIOUS POSITIONS IN MY OFFICE HAVE BEEN INITIALLY CLASSIFIED IN ACCORDANCE WITH THE GRADES AND SALARY RATES LAID DOWN THEREIN.

PRIOR TO THE RECEIPT OF EXECUTIVE ORDER NO. 6440, NO ATTEMPT HAD BEEN MADE PREVIOUSLY TO CLASSIFY THESE POSITIONS, AND CONSEQUENTLY THE ASSIGNMENT OF GRADES TO SUCH POSITIONS WAS NOT CONSIDERED AS A RECLASSIFICATION OF THOSE POSITIONS, BUT RATHER AS AN INITIAL RATING OF EACH POSITION IN ORDER TO BRING THE SALARIES THEREOF IN STEP WITH THE SALARIES FOR LIKE POSITIONS IN THE REGULAR GOVERNMENT ESTABLISHMENTS. THIS, I TAKE IT, WAS THE PRIME OBJECT INTENDED TO BE ACCOMPLISHED BY THE ISSUANCE OF EXECUTIVE ORDER NO. 6440.

IN ARRIVING AT THE PROPER GRADES UNDER EXECUTIVE ORDER NO. 6440 FOR THE POSITIONS IN MY OFFICE ABOVE REFERRED TO, I ENDEAVORED TO BE GOVERNED BY THE DECISIONS OF YOUR OFFICE AND BY THE ADVISORY REPORT RENDERED BY A SPECIAL COMMITTEE OF THE EXECUTIVE COUNCIL WHICH INDICATED, FOR MY INFORMATION AND GUIDANCE, THE RATES OF COMPENSATION TO BE PAID TO THE EMPLOYEES FILLING POSITIONS THUS GRADED. THE PAY OF THE LAST OF THESE EMPLOYEES WAS ADJUSTED IN ACCORDANCE WITH THE GRADINGS THUS GIVEN THEM PURSUANT TO THE EXECUTIVE ORDER AND WERE CARRIED ON THE PAYROLL IN SUCH STATUS FOR THE PERIOD BEGINNING MARCH 1, 1934.

IN YOUR DECISION OF FEBRUARY 20, 1934, ADDRESSED TO THE SECRETARY OF THE INTERIOR, A-52844, YOU STATE THAT THE HEAD OF AN INDEPENDENT ESTABLISHMENT HAS AN ELECTION IN FIXING THE RATES OF COMPENSATION FOR EMERGENCY POSITIONS EITHER UNDER THE REGULAR CLASSIFICATION SCHEDULE OR PURSUANT TO THE EXECUTIVE ORDER, AND ACCORDINGLY I FIXED THE GRADINGS FOR MY OFFICE UNDER THE TERMS OF THE EXECUTIVE ORDER RATHER THAN UNDER THE SCHEDULES OF THE CLASSIFICATION ACT. AS A RESULT INCREASES OF PAY HAVE FOLLOWED IN SOME INSTANCES WHERE THE SALARY RECEIVED WAS LESS THAN THE MINIMUM OF THE GRADE TO WHICH ALLOCATED, AND IN OTHER INSTANCES DECREASES IN COMPENSATION HAVE RESULTED, ALL IN LINE, I BELIEVE, WITH THE OBJECT DESIGNED TO BE ACCOMPLISHED BY THE ISSUANCE OF THE EXECUTIVE ORDER, THAT IS, THE LEVELIZATION OF THE COMPENSATION OF SUCH EMPLOYEES IN EMERGENCY AGENCIES TO HARMONIZE WITH THE RATES OF COMPENSATION BEING PAID EMPLOYEES IN THE REGULAR ESTABLISHMENTS OF THE GOVERNMENT.

HOWEVER, SINCE COMPLETION OF THE ADJUSTMENTS REFERRED TO ABOVE, I HAVE RECEIVED A COPY OF YOUR DECISION TO THE SECRETARY OF AGRICULTURE UNDER DATE OF MARCH 17, 1934, A-52724, AND A READING THEREOF HAS RAISED SOME QUESTION IN MY OFFICE AS TO WHETHER MY INTERPRETATION OF YOUR DECISION OF FEBRUARY 20, 1934, IS CORRECT. AS I READ YOUR LATER DECISION IT WAS INTENDED TO REFER ONLY TO THOSE CASES WHEREIN THE HEADS OF DEPARTMENTS OR INDEPENDENT ESTABLISHMENTS ELECTED TO APPLY TO GRADES AND RATES UNDER THE REGULAR CLASSIFICATION SCHEDULE AND WHERE THE SALARY OF A GIVEN EMPLOYEE FELL BETWEEN THE MINIMUM AND MAXIMUM OF THE APPROPRIATE GRADE UNDER SUCH SCHEDULE AND WAS NOT ONE OF THE PRESCRIBED RATES IN THAT GRADE BUT THAT SAID DECISION WAS NOT INTENDED TO BE APPLICABLE TO INSTANCES ADJUSTED EITHER UNDER THE SCHEDULES IN THE EXECUTIVE ORDER OR UNDER THE REGULAR CLASSIFICATION SCHEDULE WHERE THE PAY WAS BELOW THE MINIMUM RATE PROVIDED FOR THE GRADE IN WHICH THE EMPLOYEE HAD BEEN PLACED IN COMPLIANCE WITH EXECUTIVE ORDER NO. 6440. IF THIS INTERPRETATION IS NOT CORRECT THEN IT WOULD APPEAR THAT THE EMPLOYEES IN MY OFFICE WOULD REMAIN AT THEIR OLD RATES OF PAY WHILE NEW EMPLOYEES WITHOUT ANY EXPERIENCE, HIRED EITHER TO FILL VACANCIES OR NEW POSITIONS, WOULD RECEIVE THE HIGHER RATES PROVIDED BY THE EXECUTIVE ORDER OR REGULAR CLASSIFICATION ACT, FOR THE SAME CLASS OF WORK, A PROCEDURE WHICH APPEARS TO ME TO BE OUT OF HARMONY WITH THE PURPOSE OF THE EXECUTIVE ORDER IN QUESTION.

IN VIEW OF THE QUESTION WHICH HAS ARISEN, HOWEVER, IT WOULD BE APPRECIATED IF YOU WOULD ADVISE ME WHETHER THE COURSE OF PROCEDURE ADOPTED BY ME AS ABOVE OUTLINED IS CORRECT.

IN DECISION OF FEBRUARY 20, 1934, 13 COMP. GEN. 223, 225, TO WHICH YOU REFER, IT WAS STATED AS FOLLOWS:

WHERE THE PERSONNEL OF A REGULAR ESTABLISHMENT OF THE GOVERNMENT TO WHICH EMERGENCY FUNDS HAVE BEEN ALLOTTED IS SUBJECT TO THE CLASSIFICATION ACT, AS AMENDED, AND THE ALLOTMENT HAS BEEN MADE FOR PERFORMANCE OF WORK SIMILAR TO THAT PERFORMED BY THE REGULAR FORCE, THE HEAD OF THE REGULAR ESTABLISHMENT HAS AN ELECTION IN FIXING RATES OF COMPENSATION FOR THE EMERGENCY POSITIONS EITHER UNDER THE REGULAR CLASSIFICATION SCHEDULE, OR PURSUANT TO THE EXECUTIVE ORDER.

THE DECISION HAS NO APPLICATION TO PERSONNEL OTHER THAN THOSE UNDER THE REGULAR ESTABLISHMENTS OF THE GOVERNMENT PAID FROM ALLOTTED EMERGENCY FUNDS. THE CLASSIFICATION OF POSITIONS, AND FIXING OF SALARY RATES, OF PERSONNEL UNDER THE EMERGENCY ESTABLISHMENTS OF THE GOVERNMENT, INCLUDING THE OFFICE OF THE DIRECTOR OF EMERGENCY CONSERVATION WORK, NOT MADE SUBJECT TO THE CLASSIFICATION ACT BY STATUTE, ARE REQUIRED TO BE EFFECTED PURSUANT TO THE TERMS OF THE EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18, 1933, EXCLUSIVELY.

IN DECISION OF MARCH 31, 1934, A-54605, IT WAS SAID:

THE CITED DECISION OF MARCH 17, 1934, A-52724, HELD AS FOLLOWS:

"* * * THEREFORE, IN APPLYING THE PROVISIONS OF SAID ORDER TO OFFICERS AND EMPLOYEES IN THE SERVICE WHEN IT BECAME EFFECTIVE THERE MUST NOT RESULT A PROMOTION WITHIN THE MEANING OF THE PROVISIONS OF SECTION 7, SUPRA. WHERE, HOWEVER, UNDER THE ADJUSTMENT, THE NET SALARY RATE TO BE PAID AFTER WITHHOLDING THE APPLICABLE PERCENTAGE REDUCTION DOES NOT EXCEED THE NET SALARY PREVIOUSLY PAID FOR PERFORMANCE OF SUBSTANTIALLY THE SAME DUTIES BY AN AMOUNT EQUAL TO OR IN EXCESS OF THE AMOUNT OF ONE SALARY STEP IN THE CORRESPONDING SALARY GRADE UNDER THE CLASSIFICATION ACT, VIZ, $60, $100, $200, OR $500 PER ANNUM, AS THE CASE MAY BE, SUCH AN ADJUSTMENT WOULD NOT CONSTITUTE AN ADMINISTRATIVE PROMOTION WITHIN THE MEANING OF SAID SECTION 7 OF THE ACT OF MARCH 3, 1933. SEE DECISION OF MARCH 12, 1934, A-54227.'

THIS PRINCIPLE WAS INTENDED TO BE, AND WAS, LIMITED TO CASES IN WHICH THE PROPER ADJUSTMENT AUTHORIZED BY THE EXECUTIVE ORDER WOULD NOT INCREASE THE NET SALARY RATE PREVIOUSLY PAID MORE THAN THE AMOUNT OF ONE SALARY STEP IN THE CORRESPONDING CLASSIFICATION GRADE. WHERE THE PROPER ADJUSTMENT--- THAT IS, BASED SOLELY UPON THE DUTIES OF THE POSITION--- WOULD RESULT IN AN INCREASE OF MORE THAN ONE SALARY STEP IN THE CORRESPONDING CLASSIFICATION GRADE, THE PROPER GRADE SHOULD BE SHOWN ON THE PAYROLL BUT THE RATE OF COMPENSATION TO BE PAID SHOULD REMAIN THE SAME SO LONG AS THE POSITION IS HELD BY THE SAME EMPLOYEE AND THE STATUTORY INHIBITION AGAINST PROMOTIONS CONTINUES. THE MERE FACT THAT AN EMPLOYEE'S FORMER SALARY IS BETWEEN TWO SALARY RATES PRESCRIBED IN THE EXECUTIVE ORDER DOES NOT AUTHORIZE PLACING THE POSITION IN THE HIGHER OF THE TWO GRADES OR LEAVING THE SALARY UNCHANGED. THE FIXING OF THE GRADE FOR THE POSITION SHOULD BE BASED ON THE DUTIES, RESPONSIBILITIES, ETC., WITHOUT REFERENCE TO THE FORMER SALARY OF THE INCUMBENT, AND IF THE SALARY FIXED IN THE EXECUTIVE ORDER FOR THE GRADE TO WHICH SO ALLOCATED IS LOWER THAN THE SALARY THERETOFORE BEING RECEIVED SUCH IS TO BE REDUCED ACCORDINGLY.

THESE PRINCIPLES ARE APPLICABLE IN FIXING THE INITIAL SALARY RATES OF ALL PERSONNEL OF THE EMERGENCY ESTABLISHMENTS PURSUANT TO THE EXECUTIVE ORDER OF NOVEMBER 18, 1933. HENCE, YOUR UNDERSTANDING OF THE DECISION OF MARCH 17, 1934, IS NOT CORRECT.

THE PARAGRAPH LAST ABOVE QUOTED FROM THE DECISION OF MARCH 31, 1934, IF STANDING ALONE, MIGHT BE UNDERSTOOD AS AUTHORIZING AN INCREASE EQUAL TO THE AMOUNT OF ONE SALARY STEP, BUT SUCH WAS NOT THE INTENT, AS IS SHOWN BY THE FULL TEXT OF THE DECISION. ANY INCREASE WHICH WOULD EITHER EQUAL OR EXCEED THE AMOUNT OF ONE SALARY STEP WOULD CONSTITUTE A PROMOTION AND IS PROHIBITED.

THE FACT THAT A NEWLY APPOINTED EMPLOYEE MAY BE PAID THE SALARY RATE PROPERLY FIXED FOR A POSITION PURSUANT TO THE TERMS OF THE EXECUTIVE ORDER, WHEREAS THE SALARY OF AN EMPLOYEE ALREADY IN AN IDENTICAL POSITION PRIOR TO ITS CLASSIFICATION PURSUANT TO THE EXECUTIVE ORDER, MAY NOT BE INCREASED TO SUCH RATE, ARISES BY REASON OF THE TERMS OF SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515, PROHIBITING ADMINISTRATIVE PROMOTIONS DURING THE FISCAL YEAR 1934, WHICH MAY NOT BE EVADED OR DISREGARDED BECAUSE OF RESULTING INEQUALITIES IN SALARY RATES. SUBSTANTIALLY THE SAME INEQUALITIES IN SALARY RATES RESULT BY OPERATION OF SECTION 3 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1934, 48 STAT. 304, PROHIBITING THE USE OF APPROPRIATED FUNDS TO PAY INCREASES IN COMPENSATION BY REASON OF THE REALLOCATION OF POSITIONS BY THE CIVIL SERVICE COMMISSION, WHICH HAS BEEN CONTINUED FOR THE FISCAL YEAR 1935 BY SECTION 24 OF THE INDEPENDENT OFFICES APPROPRIATION ACT FOR 1935, 48 STAT. 522. SEE 12 COMP. GEN. 649, 650; 13 ID. 1.