A-56938, SEPTEMBER 5, 1934, 14 COMP. GEN. 193

A-56938: Sep 5, 1934

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ECONOMY ACT - REALLOCATION - NEW APPOINTEES - CLASSIFICATION - REDUCTION IN COMPENSATION RATE THE PROVISION OF THE ECONOMY ACT PROHIBITING PAYMENT OF ANY INCREASE IN COMPENSATION BY REASON OF THE REALLOCATION OF THE POSITION IS NOT APPLICABLE TO INDIVIDUALS APPOINTED TO THE REALLOCATED POSITION AFTER THE EFFECTIVE DATE OF THE REALLOCATION. THE PAYMENT TO AND ACCEPTANCE BY AN EMPLOYEE OF COMPENSATION AT A LESSER RATE THAN FIXED BY LAW FOR THE GRADE IN WHICH THE POSITION WAS CLASSIFIED BY THE PERSONNEL CLASSIFICATION BOARD DOES NOT CONSTITUTE IN LAW A WAIVER OF THE EMPLOYEES' RIGHT TO THE COMPENSATION FIXED BY LAW. SIMILAR PROHIBITORY LEGISLATION IS CONTAINED IN SECTION 6 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR 1935.

A-56938, SEPTEMBER 5, 1934, 14 COMP. GEN. 193

ECONOMY ACT - REALLOCATION - NEW APPOINTEES - CLASSIFICATION - REDUCTION IN COMPENSATION RATE THE PROVISION OF THE ECONOMY ACT PROHIBITING PAYMENT OF ANY INCREASE IN COMPENSATION BY REASON OF THE REALLOCATION OF THE POSITION IS NOT APPLICABLE TO INDIVIDUALS APPOINTED TO THE REALLOCATED POSITION AFTER THE EFFECTIVE DATE OF THE REALLOCATION. THE PAYMENT TO AND ACCEPTANCE BY AN EMPLOYEE OF COMPENSATION AT A LESSER RATE THAN FIXED BY LAW FOR THE GRADE IN WHICH THE POSITION WAS CLASSIFIED BY THE PERSONNEL CLASSIFICATION BOARD DOES NOT CONSTITUTE IN LAW A WAIVER OF THE EMPLOYEES' RIGHT TO THE COMPENSATION FIXED BY LAW, NOR BAR A CLAIM BY HIM FOR THE DIFFERENCE.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, SEPTEMBER 5, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 31, 1934, AS FOLLOWS:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA RESPECTFULLY REQUEST YOUR DECISION TO THE QUESTION HEREINAFTER PRESENTED.

SECTION 6 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR 1934 PROVIDES:

NO PART OF THE APPROPRIATIONS CONTAINED IN THIS ACT SHALL BE USED TO PAY ANY INCREASE IN THE SALARY OF ANY OFFICER OR EMPLOYEE OF THE DISTRICT OF COLUMBIA BY REASON OF THE REALLOCATION OF THE POSITION OF SUCH OFFICER OR EMPLOYEE TO A HIGHER GRADE AFTER JUNE 30, 1932, BY THE PERSONNEL CLASSIFICATION BOARD OR THE CIVIL SERVICE COMMISSION, AND SALARIES PAID ACCORDINGLY SHALL BE PAYMENT IN FULL.'

SIMILAR PROHIBITORY LEGISLATION IS CONTAINED IN SECTION 6 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR 1935.

IN YOUR DECISION TO THE UNITED STATES CIVIL SERVICE COMMISSION, UNDER DATE OF JULY 2, 1934 (A-55935), YOU HELD THAT SECTION 24 (F) OF THE ACT OF MARCH 28, 1934, PUBLIC, NO. 141, WHICH IS IDENTICAL WITH SECTION 6 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACTS FOR 1934 AND 1935, WITH A MINOR LANGUAGE CHANGE, IS NOT A PROHIBITION AGAINST THE REALLOCATION OF THE POSITION, BUT AGAINST THE PAYMENT OF ANY INCREASE IN THE SALARY OF ANY OFFICER OR EMPLOYEE BY REASON OF SUCH REALLOCATION, AND, ACCORDINGLY, WHERE THE REALLOCATED POSITION HAS BECOME VACANT, THE PAYMENT INITIALLY TO A NEW APPOINTEE OF THE MINIMUM SALARY RATE FIXED UNDER THE CLASSIFICATION ACT FOR THE POSITION AS REALLOCATED, WOULD NOT CONSTITUTE ANY INCREASE IN THE SALARY OF SUCH OFFICER OR EMPLOYEE AND WOULD NOT BE PROHIBITED BY THE STATUTORY PROVISION. IN OTHER WORDS, THE INHIBITION OF THE STATUTE RUNS AGAINST THE EMPLOYEE OCCUPYING THE POSITION AT THE TIME OF ITS REALLOCATION AND NOT AGAINST THE POSITION.

MR. ELWOOD SEAL WAS APPOINTED ASSISTANT CORPORATION COUNSEL OF THE DISTRICT OF COLUMBIA ON NOVEMBER 1, 1932, AT THE SALARY RATE OF $3,800 PER ANNUM. ON JULY 1, 1933, FOR THE REASONS STATED LATER, HIS SALARY WAS REDUCED TO $3,200 PER ANNUM. THE FACTS IN THIS CASE ARE AS FOLLOWS:

IN MARCH 1932, MR. THOMAS H. CAMERON, ASSISTANT CORPORATION COUNSEL, FILED AN APPEAL WITH THE PERSONNEL CLASSIFICATION BOARD FOR THE REALLOCATION OF HIS POSITION FROM P-3 AT $3,200 PER ANNUM TO P-4 AT $3,800 PER ANNUM. THIS APPEAL WAS ALLOWED BY THE PERSONNEL CLASSIFICATION BOARD, AND NOTICE FROM THAT BOARD WAS RECEIVED IN THE OFFICE OF THE AUDITOR OF THE DISTRICT OF COLUMBIA ON JULY 14, 1932, OF THE REALLOCATION OF THE POSITION TO P-4, WHILE THE POSITION WAS STILL OCCUPIED BY MR. CAMERON.

UNDER DATE OF NOVEMBER 1, 1932, THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA APPOINTED MR. ELWOOD SEAL TO THE POSITION OF ASSISTANT CORPORATION COUNSEL TO FILL THE POSITION MADE VACANT BY THE DEATH OF MR. CAMERON IN GRADE P-4 WITH SALARY AT THE RATE OF $3,800 PER ANNUM. MR. SEAL DREW THIS RATE OF SALARY UNTIL JUNE 30, 1933. ON JULY 1, 1933, DUE TO THE INTERPRETATION PLACED BY THE ACCOUNTING OFFICERS OF THE DISTRICT OF COLUMBIA ON SECTION 6 OF THE DISTRICT APPROPRIATION ACT FOR THE FISCAL YEAR 1934, HEREINBEFORE QUOTED, MR. SEAL'S SALARY WAS REDUCED TO $3,200 PER ANNUM, THE SALARY OF THE POSITION PRIOR TO ITS REALLOCATION. FOLLOWING THE RECEIPT OF YOUR DECISION ADDRESSED TO THE UNITED STATES CIVIL SERVICE COMMISSION UNDER DATE OF JULY 2, 1934 (A-55935), MR. SEAL WAS PLACED ON THE PAY ROLL, BEGINNING WITH JULY 16, 1934, AT A SALARY RATE OF $3,800 PER ANNUM.

MR. SEAL NOW HAS FILED A CLAIM, WITH THE APPROVAL OF THE CORPORATION COUNSEL OF THE DISTRICT, FOR THE DIFFERENCE BETWEEN THE SALARY RATES OF $3,800 PER ANNUM AND $3,200 PER ANNUM FOR THE PERIOD FROM JULY 1, 1933, TO JULY 15, 1934, INCLUSIVE, BASING HIS CLAIM ON YOUR DECISION OF JULY 2, 1934, PREVIOUSLY REFERRED TO. SHOULD THIS CLAIM BE ALLOWED, NO FUNDS ARE AVAILABLE IN THE APPROPRIATION FOR PERSONAL SERVICES OF THE OFFICE OF THE CORPORATION COUNSEL FOR THE FISCAL YEAR 1934 TO DISCHARGE IT. IT SHOULD BE NOTED THAT DURING THE PERIOD JULY 1, 1933, TO JULY 15, 1934, INCLUSIVE, MR. SEAL HAS ACCEPTED THE PAYMENT OF COMPENSATION FROM THE DISTRICT OF COLUMBIA AT THE SALARY RATE OF $3,200 PER ANNUM, WITHOUT PROTEST AND IN FULL SETTLEMENT OF ALL SERVICES RENDERED BY HIM TO THE DISTRICT OF COLUMBIA.

THE COMMISSIONERS WOULD APPRECIATE IT IF YOU WOULD ADVISE THEM WHETHER MR. SEAL IS LEGALLY ENTITLED TO THE DIFFERENCE IN PAY BETWEEN $3,800 PER ANNUM AND $3,200 PER ANNUM FOR THE PERIOD JULY 1, 1933, TO JULY 15, 1934, INCLUSIVE, SUBJECT TO ECONOMY LAW REDUCTIONS, IT BEING UNDERSTOOD THAT THERE IS NO UNEXPENDED BALANCE OF APPROPRIATION AVAILABLE FOR THIS PURPOSE FOR THE FISCAL YEAR 1934.

AS MR. SEAL WAS APPOINTED TO THE POSITION OF ASSISTANT CORPORATION COUNSEL AFTER IT HAD BEEN REALLOCATED TO P-4, THE PROHIBITION AGAINST THE PAYMENT OF ANY INCREASE IN COMPENSATION BY REASON OF THE REALLOCATION OF THE POSITION IS NOT APPLICABLE TO HIM--- A-55935, JULY 2, 1934 (14 COMP. GEN. 3/--- AND HE WAS PROPERLY PAID THE MINIMUM SALARY OF GRADE P-4 FROM THE DATE SO APPOINTED. IT DOES NOT APPEAR FROM YOUR SUBMISSION THAT THE REDUCTION IN HIS COMPENSATION TO $3,200 PER ANNUM WAS DUE TO LACK OF SUFFICIENT FUNDS AT THAT TIME TO PAY THE HIGHER RATE, AND AS A MATTER OF FACT, THE POSSIBLE CREATION OF A DEFICIENCY WOULD NOT HAVE BEEN A LAWFUL REASON FOR SUCH REDUCTION (6 COMP. GEN. 355). THE ALLOCATION OR REALLOCATION BY THE PERSONNEL CLASSIFICATION BOARD PURSUANT TO THE STATUTORY AUTHORITY VESTED IN IT BY THE CLASSIFICATION ACT FIXES THE SALARY TO BE PAID FOR THAT POSITION AND, IN THE ABSENCE OF A STATUTORY RESTRICTION APPLICABLE TO THE PARTICULAR CASE, THE ACCEPTANCE BY AN EMPLOYEE OF LESS THAN THE LAWFUL SALARY OF HIS POSITION DOES NOT CONSTITUTE IN LAW A WAIVER OF HIS RIGHT TO THE COMPENSATION FIXED BY LAW NOR BAR A CLAIM BY HIM FOR THE DIFFERENCE. COCHNOWER V. UNITED STATES, 248 U.S. 407, AND GLAVEY V. UNITED STATES, 182 U.S. 595. IT MUST BE HELD, THEREFORE, THAT MR. SEAL IS LAWFULLY ENTITLED TO THE DIFFERENCE BETWEEN THE SALARY RATES OF $3,200 AND $3,800 PER ANNUM FOR THE PERIOD JULY 1, 1933, TO JULY 15, 1934, SUBJECT TO APPLICABLE ECONOMY REDUCTIONS, IT BEING UNDERSTOOD, OF COURSE, THAT IF SALARY APPROPRIATION FOR THE FISCAL YEAR 1934, HAS BEEN EXHAUSTED, THE PAYMENT OF THAT PORTION OF HIS CLAIM MUST AWAIT A DEFICIENCY APPROPRIATION THEREFOR.