A-5749, NOVEMBER 17, 1924, 4 COMP. GEN. 459

A-5749: Nov 17, 1924

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CLASSIFICATION OF CIVILIAN EMPLOYEES - SALARY AVERAGE THE SALARY AVERAGE IS TO BE COMPUTED ON THE BASIS OF THE TOTAL NUMBER OF PERSONS UNDER ANY GRADE RECEIVING COMPENSATION AT OR WITHIN THE RANGE OF RATES SPECIFICALLY FIXED BY THE CLASSIFICATION ACT OF MARCH 4. 1924: I HAVE YOUR LETTER OF OCTOBER 9. REQUESTING DECISION OF THE QUESTION WHETHER THE SALARIES OF EMPLOYEES WHICH ARE IN EXCESS OF THE MAXIMUM RATES SPECIFICALLY FIXED BY THE CLASSIFICATION ACT AND WHICH ARE SPECIFICALLY AUTHORIZED BY OTHER LAW SHOULD BE INCLUDED IN COMPUTING THE AVERAGE OF THE GRADE TO WHICH SUCH POSITIONS HAVE BEEN ALLOCATED. YOU STATE AS FOLLOWS: THERE ARE TWELVE PERSONS BEING PAID FOR PERSONAL SERVICES OUT OF THIS APPROPRIATION WHOSE POSITIONS HAVE BEEN ALLOCATED BY THE PERSONNEL CLASSIFICATION BOARD TO GRADE 6 OF THE PROFESSIONAL AND SCIENTIFIC SERVICE .

A-5749, NOVEMBER 17, 1924, 4 COMP. GEN. 459

CLASSIFICATION OF CIVILIAN EMPLOYEES - SALARY AVERAGE THE SALARY AVERAGE IS TO BE COMPUTED ON THE BASIS OF THE TOTAL NUMBER OF PERSONS UNDER ANY GRADE RECEIVING COMPENSATION AT OR WITHIN THE RANGE OF RATES SPECIFICALLY FIXED BY THE CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1488, FOR THAT GRADE, EXCLUDING THE SALARY OF THOSE PERSONS RECEIVING COMPENSATION ADMINISTRATIVELY FIXED UNDER AUTHORITY OF LAW AT RATES IN EXCESS OF THE MAXIMUM RATES SPECIFICALLY FIXED BY THE CLASSIFICATION ACT FOR THAT GRADE.

COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL, NOVEMBER 17, 1924:

I HAVE YOUR LETTER OF OCTOBER 9, 1924, REQUESTING DECISION OF THE QUESTION WHETHER THE SALARIES OF EMPLOYEES WHICH ARE IN EXCESS OF THE MAXIMUM RATES SPECIFICALLY FIXED BY THE CLASSIFICATION ACT AND WHICH ARE SPECIFICALLY AUTHORIZED BY OTHER LAW SHOULD BE INCLUDED IN COMPUTING THE AVERAGE OF THE GRADE TO WHICH SUCH POSITIONS HAVE BEEN ALLOCATED.

YOU REFER TO THE PROVISION IN THE ACT OF MAY 28, 1924, 43 STAT. 218, FOR "INVESTIGATION AND PROSECUTION OF WAR FRAUDS," EXPRESSLY MADE AVAILABLE FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA, CONTAINING THE FOLLOWING PROVISO:

* * * PROVIDED FURTHER, THAT NOT MORE THAN TWO PERSONS SHALL BE EMPLOYED HEREUNDER AT A RATE OF COMPENSATION EXCEEDING $10,000 PER ANNUM EACH, WHOSE AGGREGATE COMPENSATION SHALL NOT EXCEED $30,000, BUT THE ATTORNEY GENERAL MAY FIX THE COMPENSATION OF NOT TO EXCEED 6 PERSONS AT NOT TO EXCEED $10,000 EACH.

YOU STATE AS FOLLOWS:

THERE ARE TWELVE PERSONS BEING PAID FOR PERSONAL SERVICES OUT OF THIS APPROPRIATION WHOSE POSITIONS HAVE BEEN ALLOCATED BY THE PERSONNEL CLASSIFICATION BOARD TO GRADE 6 OF THE PROFESSIONAL AND SCIENTIFIC SERVICE --- 5 AT THE RATE OF $10,000 PER ANNUM, 2 AT THE RATE OF $7,500 PER ANNUM, 1 AT THE RATE OF $7,000 PER ANNUM, AND 4 AT THE RATE OF $6,000 PER ANNUM.

I DESIRE TO INCREASE THE SALARY OF AN ATTORNEY NOW RECEIVING $6,000 PER ANNUM, AND WHO OCCUPIES ONE OF THE POSITIONS ABOVE ENUMERATED, TO THE NEXT HIGHER RATE IN THE GRADE; THAT IS, $6,500 PER ANNUM.

THE CLASSIFICATION ACT FIXES THE RATE OF COMPENSATION FOR GRADE 6 OF THE PROFESSIONAL AND SCIENTIFIC SERVICE AS FOLLOWS:

THE ANNUAL RATES OF COMPENSATION FOR POSITIONS IN THIS GRADE SHALL BE $6,000, $6,500, $7,000, AND $7,500, UNLESS A HIGHER RATE IS SPECIFICALLY AUTHORIZED BY LAW.

THE "AVERAGE" PROVISION IN THE APPROPRIATION ACT FOR THE DEPARTMENT OF JUSTICE, 43 STAT. 205, CONTAINS THE FOLLOWING EXCEPTION, WHICH IS COMMON TO THE AVERAGE PROVISIONS APPEARING IN ALL THE APPROPRIATION ACTS FOR THE FISCAL YEAR 1925:

* * * (3) TO PREVENT THE PAYMENT OF A SALARY UNDER ANY GRADE AT A RATE HIGHER THAN THE MAXIMUM RATE OF THE GRADE WHEN SUCH HIGHER RATE IS PERMITTED BY THE CLASSIFICATION ACT OF 1923, AND IS SPECIFICALLY AUTHORIZED BY OTHER LAW.

THE RATE OF $10,000 PER ANNUM IS IN EXCESS OF THE MAXIMUM RATE OF $7,500 PER ANNUM SPECIFICALLY FIXED FOR GRADE 6 OF THE PROFESSIONAL AND SCIENTIFIC SERVICE AND IS SPECIFICALLY AUTHORIZED BY OTHER LAW. THE RATE AVERAGE FOR ALL THE GRADES UNDER THE CLASSIFICATION ACT IS AN INVARIABLE AMOUNT BASED ON THE RATES SPECIFICALLY MENTIONED IN THE ACT. IN GRADE 6 OF THE PROFESSIONAL AND SCIENTIFIC SERVICE, HERE FOR CONSIDERATION, THE RATE AVERAGE IS $6,750 PER ANNUM. THE SALARY AVERAGE DEPENDS ON THE TOTAL NUMBER OF PERSONS IN THE GRADE AND THE RATE OF COMPENSATION PAID THEM, WHICH IS SUBJECT TO ADJUSTMENT BY THE ADMINISTRATIVE OFFICE NOT TO EXCEED THE INVARIABLE RATE AVERAGE. WERE THE SALARIES OF THOSE PERSONS WHOSE COMPENSATION IS FIXED ADMINISTRATIVELY UNDER AUTHORITY OF LAW AT RATES ABOVE THE MAXIMUM SPECIFICALLY MENTIONED IN THE CLASSIFICATION ACT TO BE INCLUDED IN COMPUTING THE SALARY AVERAGE IN THE GRADE IN WHICH THE POSITIONS HAVE BEEN ALLOCATED, IT IS OBVIOUS THAT NO EFFECT COULD BE GIVEN TO THE QUOTED EXCEPTION TO THE AVERAGE PROVISION, NOR TO THE EXPRESS AUTHORITY OF LAW FOR FIXING RATES IN EXCESS OF THE MAXIMUM RATES SPECIFICALLY MENTIONED FOR THE GRADE. THEREFORE IT IS REASONABLE TO CONCLUDE THE INTENT TO BE THAT THE SALARY AVERAGE IS TO BE COMPUTED ON THE BASIS OF THE "TOTAL NUMBER OF PERSONS UNDER ANY RADE" RECEIVING COMPENSATION AT OR WITHIN THE RANGE OF THE RATES SPECIFICALLY FIXED BY THE CLASSIFICATION ACT FOR THAT GRADE, NOT INCLUDING THE SALARIES OF PERSONS RECEIVING COMPENSATION ADMINISTRATIVELY FIXED UNDER AUTHORITY OF LAW AT RATES IN EXCESS OF THE MAXIMUM RATES SPECIFICALLY MENTIONED IN THE CLASSIFICATION ACT FOR SAID GRADE.

ACCORDINGLY, IN THE PRESENT CASE, THE FIVE POSITIONS NOW PAID AT THE RATE OF $10,000 PER ANNUM ARE NOT REQUIRED TO BE INCLUDED IN COMPUTING THE AVERAGE FOR THE GRADE. THE SALARY AVERAGE FOR THE REMAINDER OF THE SEVEN POSITIONS OF THE GRADE IS $6,571.42 PER ANNUM, LESS THAN $6,750 PER ANNUM, THE RATE AVERAGE FOR THE GRADE. THE PROMOTION OFF ONE OF THE PERSONS FROM $6,000 TO $6,500 PER ANNUM WOULD BE AUTHORIZED, AS THE INCREASED SALARY AVERAGE RESULTING THEREFROM, $6,642.85, WOULD STILL REMAIN BELOW THE RATE AVERAGE FOR THE GRADE.