A-55654, MAY 31, 1934, 13 COMP. GEN. 399

A-55654: May 31, 1934

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

NO SERVICE RENDERED BY A FOREIGN SERVICE OFFICER DURING THE FISCAL YEARS 1933 AND 1934 MAY BE INCLUDED IN COMPUTING THE "CONTINUOUS PERIOD OF NINE MONTHS OR MORE" TO DETERMINE WHETHER HE IS ENTITLED TO AN AUTOMATIC INCREASE IN COMPENSATION ON JULY 1. WAS IN THE SAME CLASS IN WHICH HE WILL BE SERVING ON JULY 1. WILL BE ENTITLED TO THE ONE INCREMENT ONLY OF $100 OR $200 AS THE CASE MAY BE. NOT TO EITHER OF THE TWO INCREMENTS WHICH WOULD HAVE BEEN PAYABLE ON THE FIRST DAYS OF THE FISCAL YEARS 1933 AND 1934 HAD IT NOT BEEN FOR SECTION 201 OF THE ECONOMY ACT. THAT NOTWITHSTANDING THE PROVISIONS OF SECTION 10 OF THIS ACT ALL FOREIGN SERVICE OFFICERS HAVING A RATING OF SATISFACTORY OR BETTER WHO SHALL HAVE BEEN IN CLASSES 5.

A-55654, MAY 31, 1934, 13 COMP. GEN. 399

COMPENSATION - RESTORATION OF AUTOMATIC PROMOTIONS - FOREIGN SERVICE PURSUANT TO THE PROVISIONS OF SECTION 24 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, REMOVING FOR THE FISCAL YEAR 1935 THE SUSPENSION ON AUTOMATIC PROMOTIONS MADE BY SECTION 201 OF THE ECONOMY ACT, NO SERVICE RENDERED BY A FOREIGN SERVICE OFFICER DURING THE FISCAL YEARS 1933 AND 1934 MAY BE INCLUDED IN COMPUTING THE "CONTINUOUS PERIOD OF NINE MONTHS OR MORE" TO DETERMINE WHETHER HE IS ENTITLED TO AN AUTOMATIC INCREASE IN COMPENSATION ON JULY 1, 1934, UNDER THE TERMS OF THE FOREIGN SERVICE ACT OF FEBRUARY 23, 1931, 46 STAT. 1207, BUT THERE MAY BE INCLUDED FOR SUCH PURPOSE ONLY SERVICE RENDERED PRIOR TO JULY 1, 1932, IN THE SAME CLASS IN WHICH SERVING ON JULY 1, 1934. A FOREIGN SERVICE OFFICER, WHO, FOR A CONTINUOUS PERIOD OF NINE MONTHS OR MORE PRIOR TO JULY 1, 1932, WAS IN THE SAME CLASS IN WHICH HE WILL BE SERVING ON JULY 1, 1934, WILL BE ENTITLED TO THE ONE INCREMENT ONLY OF $100 OR $200 AS THE CASE MAY BE, PAYABLE AS FROM THE FIRST DAY OF THE FISCAL YEAR 1935 AS PROVIDED BY THE STATUTE, AND NOT TO EITHER OF THE TWO INCREMENTS WHICH WOULD HAVE BEEN PAYABLE ON THE FIRST DAYS OF THE FISCAL YEARS 1933 AND 1934 HAD IT NOT BEEN FOR SECTION 201 OF THE ECONOMY ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF STATE, MAY 31, 1934:

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

A PORTION OF SECTION 33 OF PUBLIC NO. 715--- 71ST CONGRESS APPROVED FEBRUARY 23, 1931, READS AS FOLLOWS:

"SEC. 33. THAT NOTWITHSTANDING THE PROVISIONS OF SECTION 10 OF THIS ACT ALL FOREIGN SERVICE OFFICERS HAVING A RATING OF SATISFACTORY OR BETTER WHO SHALL HAVE BEEN IN CLASSES 5, 6, 7, OR 8 FOR A CONTINUOUS PERIOD OF 9 MONTHS OR MORE, SHALL, ON THE FIRST DAY OF EACH FISCAL YEAR RECEIVE AN INCREASE OF SALARY OF $100, EXCEPT THAT NO OFFICER SHALL RECEIVE A SALARY ABOVE THE MAXIMUM OF HIS CLASS AND ALL SUCH OFFICERS IN CLASSES 1, 2, 3, OR 4 SHALL IN THE SAME CIRCUMSTANCES RECEIVE AN INCREASE OF $200; * * * INCREASES IN SALARY UNDER THE TERMS OF THIS SECTION SHALL BE PAID TO FOREIGN SERVICE OFFICERS ONLY AS THE RIGHT TO SUCH INCREASES ACCRUES AFTER THE EFFECTIVE DATE OF THIS ACT. * * *.'

SECTION 201 OF THE ACT MAKING APPROPRIATIONS FOR THE LEGISLATIVE BRANCH OF THE GOVERNMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1933, PROVIDED IN PART AS FOLLOWS:

"ALL PROVISIONS OF LAW WHICH CONFER UPON CIVILIAN OR NONCIVILIAN OFFICERS OR EMPLOYEES OF THE UNITED STATES GOVERNMENT * * * AUTOMATIC INCREASES IN COMPENSATION BY REASON OF LENGTH OF SERVICE OR PROMOTION ARE SUSPENDED DURING THE FISCAL YEAR ENDING JUNE 30, 1933; BUT THIS SECTION SHALL NOT BE CONSTRUED TO DEPRIVE ANY PERSON OF ANY INCREMENT OF COMPENSATION RECEIVED THROUGH AN AUTOMATIC INCREASE IN COMPENSATION PRIOR TO JULY 1, 1932.'

THIS LIMITATION WAS CONTINUED THROUGH 1934 AND IS TO APPLY TO 1935, EXCEPT AS PROVIDED IN TITLE II, SECTION 24 (E) (1) OF PUBLIC NO. 141--- 73D CONGRESS, INDEPENDENT OFFICES APPROPRIATION ACT, 1935, AS FOLLOWS:

"THIS SECTION SHALL NOT APPLY DURING THE FISCAL YEAR ENDING JUNE 30, 1935, EXCEPT TO THE EXTENT THAT IT SUSPENDS THE LONGEVITY INCREASES PROVIDED FOR IN THE TENTH PARAGRAPH OF SECTION 1 OF THE PAY ADJUSTMENT ACT OF 1922. THIS AMENDMENT SHALL NOT AUTHORIZE THE PAYMENT OF BACK MPENSATION.'

IN VIEW OF THE ABOVE I CONTEMPLATE GRANTING ON JULY 1, 1934, TO THE OFFICERS ELIGIBLE THERETO THE INCREASES INDICATED IN SECTION 33 OF THE ACT APPROVED FEBRUARY 23, 1931, SINCE THIS ACT SPECIFIES THAT ON THE FIRST DAY OF EACH FISCAL YEAR THE INCREASE SHALL BE RECEIVED. THE PROVISO THAT THE WITHDRAWAL OF THE PROHIBITION DOES "NOT AUTHORIZE THE PAYMENT OF BACK COMPENSATION" APPEARS TO MEAN PAY WHICH WOULD HAVE BEEN DUE ON JULY 1, 1932, AND JULY 1, 1933, AND TO HAVE NO REFERENCE TO THE PERIOD OF EARNING SUCH PROMOTION WHICH IS THE NINE MONTHS PRIOR TO THE DATE OF THE INCREASE. IN OTHER WORDS, THE FACT THAT IN ORDER TO GET HIS INCREASE AN OFFICER MUST HAVE SERVED NINE MONTHS OR MORE, DURING WHICH PERIOD NO INCREASE WAS PAYABLE, DOES NOT SEEM TO PREVENT HIS RECEIVING THE INCREASE ON JULY 1, 1934. THIS CONCLUSION IS FURTHER BORNE OUT BY THE FACT THAT SUCH OFFICERS HAD ON JULY 1, 1932, BY REASON OF NINE MONTHS' SERVICE IN A CLASS PRIOR THERETO, BECOME ENTITLED, UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 23, 1931, TO THESE INCREASES HAD NOT THE ECONOMY LEGISLATION SUSPENDED THEM AS OF JULY 1, 1932. IT IS ALSO NOTED THAT IN MAKING THESE SUSPENSIONS THE ECONOMY LEGISLATION PROVIDED SPECIFICALLY THAT IT WAS NOT TO BE CONSTRUED AS DEPRIVING ANY PERSON OF ANY INCREASE HE HAD RECEIVED PRIOR TO JULY 1, 1932.

FURTHERMORE, UNDER THE PROVISIONS OF SECTIONS 21, (D) AND (E) OF TITLE II OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1935, IT WOULD APPEAR THAT THE AMOUNTS NECESSARY TO MEET THESE INCREASED AND THE RESTORATION OF THE ADDITIONAL 5 PERCENT OF THE SALARIES ARE APPROPRIATED AND MADE AVAILABLE AT ONCE AND THAT IT IS UNNECESSARY TO OBTAIN DEFICIENCY APPROPRIATIONS.

I WOULD APPRECIATE A DECISION CONFIRMING MY UNDERSTANDING AS OUTLINED ABOVE OR CLARIFYING THE SITUATION IF I HAVE NOT INTERPRETED THE PROVISIONS OF LAW CORRECTLY.

SECTION 10 OF THE FOREIGN SERVICE ACT OF MAY 24, 1924, AS AMENDED BY SECTION 7 OF THE ACT OF FEBRUARY 23, 1931, 46 STAT. 1207, PROVIDES IN PART, AS FOLLOWS:

SEC. 10. THAT THE OFFICERS IN THE FOREIGN SERVICE SHALL HEREAFTER BE GRADED AND CLASSIFIED AS FOLLOWS WITH THE SALARIES OF EACH CLASS HEREIN AFFIXED THERETO, EXCEPT AS INCREASES IN SALARIES ARE AUTHORIZED IN SECTION 33 OF THIS ACT, BUT NOT EXCEEDING IN NUMBER FOR EACH CLASS A PROPORTION OF THE TOTAL NUMBER OF OFFICERS IN THE SERVICE REPRESENTED IN THE FOLLOWING PERCENTAGE IMITATIONS:

AMBASSADORS AND MINISTERS AS NOW OR HEREAFTER PROVIDED: FOREIGN SERVICE OFFICERS AS FOLLOWS: CLASS 1, 6 PERCENTUM, $9,000 TO $10,000; CLASS 2, 7 PERCENTUM, $8,000 TO $8,900; CLASS 3, 8 PERCENTUM, $7,000 TO $7,900; CLASS 4, 9 PERCENTUM, $6,000 TO $6,900; CLASS 5, 10 10 PERCENTUM, $5,000 TO $5,900; CLASS 6, 14 PERCENTUM, $4,500 TO $4,900; CLASS 7, $4,000 TO $4,400; CLASS 8, $3,500 TO $3,900; UNCLASSIFIED, $2,500 TO $3,400:

IN DECISION OF MAY 24, 1934, A-55507, 13 COMP. GEN. 384, TO THE POSTMASTER GENERAL, IT WAS HELD AS FOLLOWS:

IT IS TO BE NOTED THAT SECTION 201 OF THE ECONOMY ACT COMPLETELY SUSPENDED THE OPERATION OF ALL FEDERAL STATUTES AUTHORIZING AUTOMATIC INCREASES IN COMPENSATION. CONSEQUENTLY, ALL SUCH STATUTES MUST NECESSARILY BE REGARDED AS NOT HAVING BEEN IN EXISTENCE DURING THE PERIOD JUNE 1, 1932, TO JUNE 30, 1934, INCLUSIVE. HENCE, NOT ONLY WAS THE GRANTING OF THE AUTOMATIC INCREASE IN COMPENSATION PROHIBITED, BUT ALSO NO SERVICE DURING THAT PERIOD MAY BE INCLUDED IN COMPUTING LONGEVITY TO DETERMINE EITHER THE AMOUNT OR THE EFFECTIVE DATE OF AN AUTOMATIC INCREASE IN COMPENSATION, AS BOTH WOULD NECESSARILY BE BASED UPON A STATUTE NOT OPERATIVE DURING SUCH PERIOD. IT NECESSARILY FOLLOWS THERE MAY BE INCLUDED FOR THE PURPOSES OF SECTION 4 OF THE ACT OF FEBRUARY 28, 1925, ONLY PERIODS OF SERVICE PRIOR TO JULY 1, 1932, AND ON AND AFTER JULY 1, 1934, DURING THE FISCAL YEAR 1935. SEE THE DECISIONS CONSIDERING THE APPLICATION OF SECTION 103 OF THE ECONOMY ACT, PURSUANT TO WHICH THE RIGHT TO RECEIVE ANNUAL LEAVE OF ABSENCE WITH PAY WAS "SUSPENDED" DURING THE PERIOD JUNE 30, 1932, TO AND INCLUDING MARCH 31, 1933, HOLDING THAT NO LEAVE ACCRUED DURING THE PERIOD THE ACT WAS IN EFFECT. 12 COMP. GEN. 575; ID. 601; ID. 609, 613; ID. 621.

THE SAME GENERAL RULE THUS STATED IS FOR APPLICATION UNDER SECTIONS 10AND 33 OF THE FOREIGN SERVICE ACT, SUPRA. HENCE, NO SERVICE RENDERED BY A FOREIGN SERVICE OFFICER DURING THE FISCAL YEARS 1933 AND 1934 MAY BE INCLUDED IN COMPUTING THE "CONTINUOUS PERIOD OF 9 MONTHS OR MORE" TO DETERMINE WHETHER HE IS ENTITLED TO AN AUTOMATIC INCREASE IN COMPENSATION ON JULY 1, 1934, BUT THERE MAY BE INCLUDED FOR SUCH PURPOSE ONLY SERVICE RENDERED PRIOR TO JULY 1, 1932, IN THE SAME CLASS IN WHICH SERVING ON JULY 1, 1934.

A FOREIGN SERVICE OFFICER WHO, FOR A CONTINUOUS PERIOD OF 9 MONTHS OR MORE PRIOR TO JULY 1, 1932, WAS IN THE SAME CLASS IN WHICH HE WILL BE SERVING ON JULY 1, 1934, WILL BE ENTITLED TO THE ONE INCREMENT ONLY OF $100 OR $200, AS THE CASE MAY BE, PAYABLE AS FROM THE FIRST DAY OF THE FISCAL YEAR 1935 AS PROVIDED BY THE STATUTE, AND NOT TO EITHER OF THE TWO INCREMENTS WHICH WOULD HAVE BEEN PAYABLE ON THE FIRST DAYS OF THE FISCAL YEARS 1933 AND 1934 HAD IT NOT BEEN FOR SECTION 201 OF THE ECONOMY ACT.

YOUR UNDERSTANDING IS CORRECT THAT IT IS NOT NECESSARY TO OBTAIN A DEFICIENCY APPROPRIATION FOR PAYMENT OF THE AMOUNT NECESSARY TO MEET AUTOMATIC INCREASES IN COMPENSATION AUTHORIZED BY LAW TO BE PAID JULY 1, 1934, NOR FOR RESTORATION OF THE ADDITIONAL 5 PERCENT OF SALARIES EFFECTIVE FEBRUARY 1, 1934, AND THE ADDITIONAL 5 PERCENT EFFECTIVE JULY 1, 1934. SEE SECTION 21 (E) OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, PROVIDING IN PART AS FOLLOWS:

(E) THERE IS HEREBY APPROPRIATED SO MUCH AS MAY BE NECESSARY FOR THE PAYMENT OF SUMS DUE, AND PAYABLE OUT OF THE TREASURY OF THE UNITED STATES, BY REASON OF THE DIMINUTION UNDER THIS TITLE IN THE PERCENTAGE OF REDUCTION OF COMPENSATION AND OTHER AMENDMENTS TO EXISTING LAWS MADE HEREBY; AND LIMITATIONS ON AMOUNTS FOR PERSONAL SERVICES ARE HEREBY RESPECTIVELY INCREASED IN PROPORTION TO THE INCREASE IN APPROPRIATIONS FOR PERSONAL SERVICES MADE IN THIS SUBSECTION. * * * ..END :