A-54740, JUNE 7, 1934, 13 COMP. GEN. 412

A-54740: Jun 7, 1934

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MAY BE GRANTED (1) TO EMPLOYEES WHOSE GROSS RATES WERE REDUCED 15 PERCENT CONTEMPORANEOUSLY WITH CLASSIFICATION UNDER EXECUTIVE ORDER NO. 6440. (3) EMPLOYEES WHOSE EMERGENCY POSITIONS WERE CLASSIFIED PRIOR TO FEBRUARY 1. AS AN ADMINISTRATIVE POLICY WHO WERE PAID A GROSS RATE LESS 15 PERCENT. (4) EMPLOYEES WHOSE EMERGENCY POSITIONS UPON CLASSIFICATION UNDER THE EXECUTIVE ORDER WERE PLACED IN A HIGHER OR LOWER GRADE THAN PREVIOUSLY. IF THEIR GROSS RATE WAS REDUCED 15 PERCENT PRIOR TO FEBRUARY 1. (5) EMPLOYEES WHOSE EMERGENCY POSITIONS WERE NOT CLASSIFIED PRIOR TO FEBRUARY 1. WERE CLASSIFIED UNDER THE EXECUTIVE ORDER. IF 15 PERCENT WAS DEDUCTED FROM THE GROSS COMPENSATION PRIOR TO FEBRUARY 1.

A-54740, JUNE 7, 1934, 13 COMP. GEN. 412

COMPENSATION - PERCENTAGE REDUCTION - REFUND FIVE PERCENT RESTORATION OF COMPENSATION FOR PERIODS SUBSEQUENT TO FEBRUARY 1, 1934, MAY BE GRANTED (1) TO EMPLOYEES WHOSE GROSS RATES WERE REDUCED 15 PERCENT CONTEMPORANEOUSLY WITH CLASSIFICATION UNDER EXECUTIVE ORDER NO. 6440, OF NOVEMBER 18, 1933; (2) EMPLOYEES TRANSFERRED FROM REGULAR CLASSIFIED POSITIONS TO EMERGENCY POSITIONS WITHOUT CHANGE IN GRADE OR COMPENSATION OR SUBSTANTIAL CHANGE IN DUTIES; (3) EMPLOYEES WHOSE EMERGENCY POSITIONS WERE CLASSIFIED PRIOR TO FEBRUARY 1, 1934, AS AN ADMINISTRATIVE POLICY WHO WERE PAID A GROSS RATE LESS 15 PERCENT; (4) EMPLOYEES WHOSE EMERGENCY POSITIONS UPON CLASSIFICATION UNDER THE EXECUTIVE ORDER WERE PLACED IN A HIGHER OR LOWER GRADE THAN PREVIOUSLY, IF THEIR GROSS RATE WAS REDUCED 15 PERCENT PRIOR TO FEBRUARY 1, 1934; AND (5) EMPLOYEES WHOSE EMERGENCY POSITIONS WERE NOT CLASSIFIED PRIOR TO FEBRUARY 1, 1934, BUT WERE CLASSIFIED UNDER THE EXECUTIVE ORDER, IF 15 PERCENT WAS DEDUCTED FROM THE GROSS COMPENSATION PRIOR TO FEBRUARY 1, 1934. FIVE PERCENT RESTORATION OF COMPENSATION FOR PERIODS SUBSEQUENT TO FEBRUARY 1, 1934, MAY NOT BE GRANTED TO ANY EMPLOYEE WHOSE GROSS COMPENSATION WAS NOT REDUCED 15 PERCENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, JUNE 7, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 21, 1934, AS FOLLOWS:

IN LETTER TO YOURSELF OF MAY 10 IN THE MATTER OF SENATOR WALSH'S INQUIRY OF YOUR OFFICE AS TO THE FACTS IN THE CASE OF R. C. HILLS, ONE OF OUR FORMER EMPLOYEES, THE DEPARTMENT AFTER FURNISHING THE INFORMATION CALLED FOR STATED THAT THERE WERE BEFORE IT A NUMBER OF QUESTIONS AS TO THE 5- PERCENT PAY CUT RESTORATION UNDER THE PROVISIONS IN THE INDEPENDENT OFFICES APPROPRIATION ACT FOR 1935 WHICH WE PLANNED TO SUBMIT TO YOU IN THE NEAR FUTURE. IT IS THE PURPOSE OF THE PRESENT COMMUNICATION TO PRESENT THESE QUESTIONS. ALL RELATE TO POSITIONS PAYABLE FROM N.I.R.A. FUNDS ALLOTTED TO THE DEPARTMENT.

1. WHERE EMPLOYEES HITHERTO PAID AT GROSS RATES WERE CUT 15 PERCENT CONTEMPORANEOUSLY WITH CLASSIFICATION UNDER EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18, 1933, MAY THEY RECEIVE THE 5-PERCENT RESTORATION FOR THE PERIODS SUBSEQUENT TO FEBRUARY 1, 1934, FOR WHICH A DEDUCTION OF 15 PERCENT WAS MADE FROM THEIR COMPENSATION?

2. CERTAIN EMPLOYEES WERE TRANSFERRED FROM CLASSIFIED POSITIONS UNDER REGULAR FUNDS IN THIS OR OTHER FEDERAL BRANCHES TO POSITIONS PAYABLE FROM THE N.I.R.A. ALLOTMENTS WITHOUT CHANGE IN GRADE OR COMPENSATION OR SUBSTANTIAL CHANGE IN DUTIES. THE PRIOR 15-PERCENT REDUCTION WAS CONTINUED. THEY HAVE NOT BEEN RECLASSIFIED UNDER THE PRESIDENT'S ORDER ON THE SUPPOSITION THAT THIS WAS NOT REQUIRED. SOME OF THESE TRANSFERS WERE MADE BEFORE AND SOME AFTER NOVEMBER 18, 1933. MAY THESE EMPLOYEES RECEIVE THE 5-PERCENT RESTORATION?

3. CERTAIN EMPLOYEES DIRECTLY APPOINTED TO POSITIONS UNDER THE EMERGENCY FUNDS WERE CLASSIFIED AT APPOINTMENT UNDER THE CLASSIFICATION ACT AND PAID AT GROSS RATES LESS THE 15-PERCENT REDUCTION. THIS WAS DONE AS A MATTER OF DEPARTMENT POLICY BEFORE NOVEMBER 18, 1933, IN COMPLIANCE WITH EXECUTIVE ORDER NO. 6440 AFTER THAT DATE. AS IN CASE 2 ABOVE, THOSE WHO WERE APPOINTED AND CLASSIFIED BEFORE NOVEMBER 18, WERE NOT RECLASSIFIED. MAY THIS LATTER CLASS RECEIVE THE 5-PERCENT RESTORATION?

4. CERTAIN EMPLOYEES WERE APPOINTED AT RATES WHICH WERE APPROXIMATELY BUT NOT EXACTLY 85 PERCENT OF THE GROSS RATE DEEMED PROPERLY PAYABLE. THIS WAS THE INTENTION OF THE DEPARTMENT AND THE UNDERSTANDING WITH THE APPOINTEE; BUT THE APPOINTMENTS DID NOT NAME A GROSS RATE AND A PERCENTAGE DEDUCTION. THEY WERE IN FORM ABSOLUTE APPOINTMENTS AT THE RATES STATED. SOME OF THE POSITIONS WERE WITHIN THE CLASSIFICATION GRADES, OTHERS WERE COOPERATIVE POSITIONS OF THE "AGENT" TYPE WHERE THE SCALE OF PAY VARIED TO MEET THE RATES IN COOPERATING STATES. SOME OF THESE APPOINTMENTS WERE MADE BEFORE, SOME AFTER NOVEMBER 18, 1933. MAY THERE BE A 5-PERCENT RESTORATION IN THESE CASES?

5. FROM THE PAY OF THE EMPLOYEES IN THE LAST PARAGRAPH A FURTHER DEDUCTION OF 15 PERCENT WAS MADE SUBSEQUENT TO AND ON ACCOUNT OF EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18. THIS WAS LESS A DETERMINATION OF THEIR RIGHTS THAN A MEASURE OF PERHAPS EXTREME PRECAUTION. THE PROJECT OFFICERS BY WHOM THE ACTION WAS INITIATED FEARED THAT THE RATES IN THE ORIGINAL APPOINTMENTS, DESPITE THE DEPARTMENT'S INTENTION, WOULD BE REGARDED AS GROSS RATHER THAN NET. IRRESPECTIVE OF YOUR DECISION OF QUESTION 4 ABOVE MAY THIS ADDITIONAL 15-PERCENT DEDUCTION MADE PURSUANT TO EXECUTIVE ORDER NO. 6440 BE REFUNDED TO THE EMPLOYEES? IF NOT, MAY THERE BE A PROSPECTIVE RETURN TO THE PRIOR RATE WITHOUT CONTRAVENTION OF THE ANTIPROMOTION LAW?

6. CERTAIN EMPLOYEES WHO HAD BEEN CLASSIFIED AND WHO WERE RECEIVING 85 PERCENT OF THEIR GROSS CLASSIFICATION RATE WERE UPON RECLASSIFICATION PURSUANT TO EXECUTIVE ORDER NO. 6440 PLACED IN A HIGHER GRADE BUT WERE EITHER PAID NO MORE THAN BEFORE ON ACCOUNT OF THE ANTIPROMOTION PROVISION IN THE ECONOMY ACT OR WERE ADVANCED BUT ONE STEP IN THEIR GRADE, UNDER YOUR DECISION. MAY THESE EMPLOYEES RECEIVE THE 5-PERCENT RESTORATION?

7. CERTAIN CLASSES OF POSITIONS TYPIFIED BY HUNTERS PAID FROM THE APPROPRIATION FOR CONTROL OF PREDATORY ANIMALS, BUREAU OF BIOLOGICAL SURVEY, HAVE NEVER BEEN CLASSIFIED WITH RESPECT TO THE REGULAR FUNDS. THIS WAS BECAUSE NONE OF THE POSITIONS DESCRIBED IN THE CLASSIFICATION ACT BORE ANY ANALOGY WHATEVER TO THIS EMPLOYMENT. A SIMILAR OBSTACLE EXISTED AS TO THEIR CLASSIFICATION UNDER EXECUTIVE ORDER NO. 6440, AND THE EMPLOYEES WERE NEVER CLASSIFIED THEREUNDER. AT APPOINTMENT, HOWEVER, THEY WERE REDUCED BY THE CUSTOMARY 15 PERCENT. MAY THESE EMPLOYEES RECEIVE A 5 -PERCENT RESTORATION?

8. CERTAIN "FOREMEN" APPOINTMENTS, E.G., FOREMEN OF THE HUNTERS MENTIONED IN THE PRECEDING PARAGRAPH WERE NOT ORIGINALLY DEEMED SUSCEPTIBLE OF CLASSIFICATION, BUT THIS JUDGMENT WAS REVERSED ON THE DISCOVERY OF ANALOGY BETWEEN THESE AND OTHER FOREMEN POSITIONS IN N.I.R.A. WORK, AND CLASSIFICATIONS, EFFECTIVE MARCH 1, 1934, WERE MADE UNDER THE EXECUTIVE ORDER. THE APPOINTMENTS WERE AT THE GROSS RATE LESS 15 PERCENT. MAY THESE EMPLOYEES RECEIVE A 5-PERCENT RESTORATION FOR THE MONTH OF FEBRUARY?

YOUR EARLY CONSIDERATION AND DECISION OF THESE QUESTIONS IS SOLICITED IN VIEW OF THEIR RELATION TO CURRENT PAY ROLLS.

IN DECISION OF APRIL 10, 1934, 13 COMP. GEN. 272, IT IS HELD AS FOLLOWS:

THE PORTION QUOTED FROM SECTION 21 OF SAID ACT OF MARCH 28, 1934, CAN HAVE NO APPLICATION TO EMPLOYEES WHOSE COMPENSATION WAS OR IS NOT ADJUSTED PURSUANT TO THE TERMS OF SECTIONS 2 AND 3 OF THE ACT OF MARCH 20, 1933, 48 STAT. 12, OF WHICH IT CONSTITUTES AN AMENDMENT. THEREFORE, IF THE SALARIES OF EMPLOYEES IN EMERGENCY AGENCIES WERE NOT ADJUSTED EFFECTIVE PRIOR TO APRIL 1, 1934, PURSUANT TO EXECUTIVE ORDER NO. 6440, DATED NOVEMBER 18, 1933, AS EXTENDED TO OTHER EMERGENCY AGENCIES BY EXECUTIVE ORDER NO. 6554, DATED JANUARY 10, 1934, SO AS TO PROVIDE A FIXED SALARY LESS A PERCENTAGE REDUCTION TO CORRESPOND WITH THE PERCENTAGE REDUCTION PROVIDED FOR UNDER SECTIONS 2 AND 3 OF THE ACT OF MARCH 20, 1933, SUPRA, AS AMENDED, THERE IS NO BASIS OR AUTHORITY UNDER WHICH SAID EMPLOYEES MAY BE PAID EITHER FIVE PERCENT OR ANY OTHER AMOUNT OF COMPENSATION IN ADDITION TO THAT ALREADY RECEIVED FOR THE PERIOD FEBRUARY 1 TO MARCH 31, 1934, INCLUSIVE, OR FOR ANY PERIOD PRIOR TO THE EFFECTIVE DATE OF ADMINISTRATIVE ACTION UNDER THE EXECUTIVE ORDERS. IN OTHER WORDS, THE PROVISION IN THE ACT OF MARCH 28, 1934, REDUCING FROM 15 TO 10, EFFECTIVE FEBRUARY 1, 1934, THE PERCENTAGE REDUCTION FROM CERTAIN SALARIES, HAS NO EFFECT WHATEVER ON SALARIES PAID FOR FEBRUARY AND MARCH 1934 FROM WHICH THE 15 PERCENT REDUCTION WAS NOT ACTUALLY MADE AND INDICATED ON THE ROLLS.

ACCORDINGLY, QUESTIONS 1, 2, AND 3 ARE ANSWERED IN THE AFFIRMATIVE.

QUESTION 4 IS ANSWERED IN THE NEGATIVE.

THE FACTS AS TO THE COMPENSATION OF THE EMPLOYEES MENTIONED IN QUESTION 5 ARE NOT CLEAR. THE QUESTION SEEMS TO RELATE TO EMPLOYEES WITH RESPECT TO WHOM IT IS SAID THEIR SALARIES WERE ORIGINALLY FIXED APPROXIMATELY 15 PERCENT OF WHAT IT WAS THOUGHT THEY SHOULD BE, AND THAT IN ADJUSTING THE SALARIES OF THESE EMPLOYEES UNDER THE EXECUTIVE ORDER OF NOVEMBER 18, 1933, THEY WERE SIMPLY FIXED AT 15 PERCENT LESS THAN WHAT THEY HAD BEEN THERETOFORE. IF THESE ARE THE FACTS, THE REDUCED SALARY RATE ADMINISTRATIVELY FIXED MUST BE REGARDED AS HAVING BEEN THE LEGAL SALARY RATE FOR THE POSITION. BUT, IN ANY EVENT, THERE IS NO AUTHORITY UNDER EXISTING LAW FOR REFUNDING THE AMOUNT BY WHICH THESE SALARIES WERE REDUCED IN MAKING ADJUSTMENTS UNDER THE EXECUTIVE ORDER OF NOVEMBER 18, 1933, NOR FOR RESTORING SUCH SALARY RATES PROSPECTIVELY TO WHAT THEY WERE BEFORE SUCH ADJUSTMENTS WERE MADE UNDER SAID EXECUTIVE ORDER.

IF THERE WAS NO DEDUCTION OF THE 15 PERCENT MADE FROM THE TOTAL COMPENSATION FIXED IN THE LOWER GRADE AND INDICATED ON THE ROLLS RELATIVE TO THE EMPLOYEES MENTIONED IN QUESTION 6, THERE IS NO AUTHORITY TO PAY AN ADDITIONAL 5 PERCENT, BUT IF THE 15 PERCENT DEDUCTION WAS ACTUALLY MADE FROM THE TOTAL COMPENSATION FIXED IN THE LOWER GRADE AND INDICATED ON THE ROLLS, RESTORATION OF 5 PERCENT IS AUTHORIZED.

IF THE EMPLOYEES MENTIONED IN QUESTIONS 7 AND 8 WERE IN THE SERVICE PRIOR TO APRIL 1, 1933, THE EFFECTIVE DATE OF THE ACT REQUIRING THE 15 PERCENT DEDUCTION, AND THEIR TOTAL RATES OF COMPENSATION WERE ACTUALLY REDUCED BY 15 PERCENT EFFECTIVE APRIL 1, 1933, SOLELY BY REASON OF SAID STATUTORY PROVISION, RESTORATION OF THE 5 PERCENT IS AUTHORIZED.