A-56123, JUNE 25, 1934, 13 COMP. GEN. 466

A-56123: Jun 25, 1934

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IS SUBJECT TO THE AVERAGE PROVISION AND LIMITED TO A RATE NOT IN EXCESS OF THE MATHEMATICAL AVERAGE OF THE GRADE. IS BEFORE ME. I NOTE THAT THIS OPINION PLACES NO LIMIT UPON THE AMOUNT OF INCREASE INSOFAR AS THE VARIOUS STEP-UPS ARE AUTHORIZED UNDER THE RECLASSIFICATION ACT. YOUR OPINION IS REQUESTED. IT IS ASSUMED THAT YOUR OFFICE OR POSITION IS THE ONE IN QUESTION. THE RECORDS OF THIS OFFICE DISCLOSE THAT THERE IS NO OTHER OFFICE OR POSITION UNDER THE OFFICE OF THE RECORDER OF DEEDS ALLOCATED IN GRADE CAF-13. THAT YOUR PRESENT SALARY RATE IS THE MINIMUM RATE OF THE GRADE. THAT THIS RESTRICTION SHALL NOT APPLY * * * (5) TO REDUCE THE COMPENSATION OF ANY PERSON IN A GRADE IN WHICH ONLY ONE POSITION IS ALLOCATED.

A-56123, JUNE 25, 1934, 13 COMP. GEN. 466

COMPENSATION - ADMINISTRATIVE PROMOTIONS - AVERAGE PROVISIONS THE ADMINISTRATIVE PROMOTION DURING THE FISCAL YEAR 1935 OF AN OFFICER OR EMPLOYEE OCCUPYING THE ONLY OFFICE OR POSITION IN A GRADE PRESCRIBED BY THE CLASSIFICATION ACT, FROM SAVINGS ON AN ANNUAL BASIS, IS SUBJECT TO THE AVERAGE PROVISION AND LIMITED TO A RATE NOT IN EXCESS OF THE MATHEMATICAL AVERAGE OF THE GRADE.

COMPTROLLER GENERAL MCCARL TO THE RECORDER OF DEEDS, DISTRICT OF COLUMBIA, JUNE 25, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 12, 1934, AS FOLLOWS:

A COPY OF YOUR OPINION, A-54807, DATED JUNE 9, 1934, AS EXPRESSED TO THE SECRETARY OF THE NAVY, RELATIVE TO ADMINISTRATION PROMOTIONS DURING THE FISCAL YEAR 1935, IS BEFORE ME.

I NOTE THAT THIS OPINION PLACES NO LIMIT UPON THE AMOUNT OF INCREASE INSOFAR AS THE VARIOUS STEP-UPS ARE AUTHORIZED UNDER THE RECLASSIFICATION ACT.

YOUR OPINION IS REQUESTED, THEREFORE, ON THE FOLLOWING QUESTIONS:

(1) WHETHER AN ADMINISTRATIVE OR EXECUTIVE OFFICIAL MAY INCREASE HIS

SALARY FROM THE MINIMUM OF HIS GRADE TO THE MAXIMUM OF THE GRADE,

OR

(2) WHETHER HE MAY ONLY INCREASE HIS SALARY FROM THE MINIMUM OF THE

GRADE TO THE AVERAGE OF THE GRADE.

DUE REGARD BEING HAD TO THERE BEING AVAILABLE SUFFICIENT FUNDS, IN KEEPING WITH YOUR OPINION.

IT IS ASSUMED THAT YOUR OFFICE OR POSITION IS THE ONE IN QUESTION. THE RECORDS OF THIS OFFICE DISCLOSE THAT THERE IS NO OTHER OFFICE OR POSITION UNDER THE OFFICE OF THE RECORDER OF DEEDS ALLOCATED IN GRADE CAF-13, WITH A SALARY RANGE FROM $5,600 TO $6,400 PER ANNUM, AND THAT YOUR PRESENT SALARY RATE IS THE MINIMUM RATE OF THE GRADE.

THE ACT OF JUNE 4, 1934, 48 STAT. 847, INCLUDING THE APPROPRIATION FOR THE OFFICE OF THE RECORDER OF DEEDS OF THE DISTRICT OF COLUMBIA CONTAINS THE SO-CALLED "AVERAGE PROVISION" IN PART AS FOLLOWS:

* * * PROVIDED, THAT IN EXPENDING APPROPRIATIONS OR PORTIONS OF APPROPRIATION CONTAINED IN THIS ACT FOR THE PAYMENT OF PERSONAL SERVICES IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, WITH THE EXCEPTION OF THE TWO CIVILIAN COMMISSIONERS THE AVERAGE OF THE SALARIES OF THE TOTAL NUMBER OF PERSONS UNDER ANY GRADE IN ANY BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT SHALL NOT AT ANY TIME EXCEED THE AVERAGE OF THE COMPENSATION RATES SPECIFIED FOR THE GRADE BY SUCH ACT, AS AMENDED: PROVIDED, THAT THIS RESTRICTION SHALL NOT APPLY * * * (5) TO REDUCE THE COMPENSATION OF ANY PERSON IN A GRADE IN WHICH ONLY ONE POSITION IS ALLOCATED.

ORIGINALLY THE AVERAGE PROVISION (ACT OF APR. 4, 1924, 43 STAT. 64) CONTAINED NO REFERENCE TO ONE POSITION IN A GRADE, AND IN DECISION OF JULY 19, 1924, 4 COMP. GEN. 77, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

WHERE THERE IS ONLY ONE EMPLOYEE IN A GRADE NO COMPARATIVE EFFICIENCY RATING CAN BE MADE, AND IF THE EMPLOYEE IS DETERMINED ADMINISTRATIVELY TO HAVE ATTAINED THE PROPER EFFICIENCY, HIS COMPENSATION MAY BE FIXED AT ANY RATE OF PAY WITHIN HIS GRADE.

FOR THE FISCAL YEAR 1926 THE AVERAGE PROVISION CONTAINED THE FOLLOWING (QUOTING FROM THE ACT OF MAR. 3, 1925, 43 STAT. 1217):

* * * AND IN GRADES IN WHICH ONLY ONE POSITION IS ALLOCATED THE SALARY OF SUCH POSITION SHALL NOT EXCEED THE AVERAGE OF THE COMPENSATION RATES FOR THE GRADE: PROVIDED, THAT THIS RESTRICTION SHALL NOT APPLY * * * (2) TO REQUIRE THE REDUCTION IN SALARY OF ANY PERSON WHOSE COMPENSATION WAS FIXED AS OF JULY 1, 1924, IN ACCORDANCE WITH THE RULES OF SECTION 6 OF SUCH ACT

THIS PROVISION WAS CONSTRUED AND APPLIED IN DECISION OF MAY 11, 1925 (4 COMP. GEN. 932).

FOR THE FISCAL YEARS 1927 TO 1932, INCLUSIVE, THE AVERAGE PROVISION CONTAINED THE FOLLOWING (QUOTING FROM THE ACT OF MAY 10, 1926, 44 STAT. 418):

* * * AND IN GRADES IN WHICH ONLY ONE POSITION IS ALLOCATED THE SALARY OF SUCH POSITION SHALL NOT EXCEED THE AVERAGE OF THE COMPENSATION RATES FOR THE GRADE EXCEPT THAT IN UNUSUALLY MERITORIOUS CASES ONE POSITION IN A GRADE ADVANCES MAY BE MADE TO RATES HIGHER THAN THE AVERAGE OF THE COMPENSATION RATES OF THE GRADE BUT NOT MORE OFTEN THAN ONCE IN ANY FISCAL YEAR AND THEN ONLY TO THE NEXT HIGHER RATE * * *.

THIS WAS CONSTRUED AND APPLIED IN DECISION OF AUGUST 26, 1926, 6 COMP. GEN. 160.

FOR THE FISCAL YEARS 1933 AND 1934, DURING WHICH PROMOTIONS WITHIN THE GRADE WERE PROHIBITED BY SECTION 202 OF THE ECONOMY ACT, AND SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515, THE AVERAGE PROVISION HAS BEEN THE SAME AS FOR THE FISCAL YEAR 1935, QUOTED ABOVE.

IN VIEW OF THIS LEGISLATIVE HISTORY OF THE AVERAGE PROVISION, AND AS EXCEPTION (5) PROVIDES THAT THE RESTRICTIONS SHALL NOT APPLY "TO REDUCE THE COMPENSATION OF ANY PERSON IN A GRADE IN WHICH ONLY ONE POSITION IS ALLOCATED," THERE CAN BE NO DOUBT BUT THAT THE AVERAGE PROVISION FOR THE FISCAL YEAR 1935 IS APPLICABLE TO PROHIBIT THE INCREASE IN COMPENSATION OF THE PERSON HOLDING THE ONLY OFFICE OR POSITION IN A GRADE UNDER A BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT TO A RATE ABOVE THE MATHEMATICAL AVERAGE OF THE GRADE, UNLESS EXPRESSLY EXCEPTED FROM THE RESTRICTIONS THEREOF.

AS YOUR OFFICE HAS NOT BEEN EXPRESSLY EXCEPTED FROM THE RESTRICTIONS OF THE AVERAGE PROVISION, AND AS YOUR PRESENT SALARY IS $5,600 PER ANNUM, THE MINIMUM RATE OF THE GRADE, QUESTION (1) IS ANSWERED IN THE NEGATIVE, AND QUESTION (2) IN THE AFFIRMATIVE, PROVIDED THERE ARE AVAILABLE SUFFICIENT SAVINGS ON AN ANNUAL BASIS AS STATED IN DECISION OF JUNE 9, 1934, A-54807, 13 COMP. GEN. 419.