A-59827, FEBRUARY 2, 1935, 14 COMP. GEN. 589

A-59827: Feb 2, 1935

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COMPENSATION - ADMINISTRATIVE PROMOTIONS - CENSUS EMPLOYEES THE STATUTORY RESTRICTION AGAINST ADMINISTRATIVE PROMOTIONS IS NOT THE STATUTORY RESTRICTION AGAINST ADMINISTRATIVE PROMOTIONS IS/NOT LIMITED TO SALARIES PAID UNDER THE CLASSIFICATION ACT. IS APPLICABLE TO ANY CIVILIAN OFFICER OR EMPLOYEE OF THE GOVERNMENT NOT OTHERWISE EXEMPTED. AS FOLLOWS: THE BUREAU OF THE CENSUS IS NOW ENGAGED IN THE FIELDWORK INCIDENT TO THE TAKING OF THE 1935 CENSUS OF AGRICULTURE PROVIDED FOR IN SECTION 16 OF THE ACT TO PROVIDE FOR THE FIFTEENTH AND SUBSEQUENT DECENNIAL CENSUSES. WHEN THE INSTRUCTIONS FOR THE MAKING OF THESE APPOINTMENTS WERE MADE UP. IT WAS THE INTENTION TO FIX THE COMPENSATION OF THOSE WHOSE DUTIES WARRANTED A DIFFERENCE IN PAY.

A-59827, FEBRUARY 2, 1935, 14 COMP. GEN. 589

COMPENSATION - ADMINISTRATIVE PROMOTIONS - CENSUS EMPLOYEES THE STATUTORY RESTRICTION AGAINST ADMINISTRATIVE PROMOTIONS IS NOT THE STATUTORY RESTRICTION AGAINST ADMINISTRATIVE PROMOTIONS IS/NOT LIMITED TO SALARIES PAID UNDER THE CLASSIFICATION ACT, NOR TO POSITIONS FILLED PURSUANT TO THE CIVIL-SERVICE LAWS, BUT IS APPLICABLE TO ANY CIVILIAN OFFICER OR EMPLOYEE OF THE GOVERNMENT NOT OTHERWISE EXEMPTED, INCLUDING CENSUS EMPLOYEES, AND PROHIBITS ANY INCREASE IN COMPENSATION FOR THE SAME DUTIES AND RESPONSIBILITIES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, FEBRUARY 2, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF JANUARY 17, 1935, AS FOLLOWS:

THE BUREAU OF THE CENSUS IS NOW ENGAGED IN THE FIELDWORK INCIDENT TO THE TAKING OF THE 1935 CENSUS OF AGRICULTURE PROVIDED FOR IN SECTION 16 OF THE ACT TO PROVIDE FOR THE FIFTEENTH AND SUBSEQUENT DECENNIAL CENSUSES, APPROVED JUNE 18, 1929. SECTION 3 OF THIS ACT PROVIDES AS OLLOWS:

"THAT SPECIAL AGENTS, SUPERVISORS, SUPERVISORS' CLERKS, ENUMERATORS, AND INTERPRETERS MAY BE APPOINTED BY THE DIRECTOR OF THE CENSUS TO CARRY OUT THE PROVISIONS OF THIS ACT AND OF THE ACT TO PROVIDE FOR A PERMANENT CENSUS OFFICE, APPROVED MARCH 6, 1902, AND ACTS AMENDATORY THEREOF OR SUPPLEMENTAL THERETO, SUCH APPOINTMENTS TO BE MADE WITHOUT REGARD TO THE CIVIL-SERVICE LAWS OR THE CLASSIFICATION ACT OF 1923 AS AMENDED, EXCEPT THAT SUCH SPECIAL AGENTS SHALL BE APPOINTED IN ACCORDANCE WITH THE CIVIL- SERVICE LAWS. THE DIRECTOR OF THE CENSUS MAY DELEGATE TO THE SUPERVISORS AUTHORITY TO APPOINT ENUMERATORS. THE ENLISTED MEN AND OFFICERS OF THE ARMY, NAVY, AND MARINE CORPS MAY BE APPOINTED AND COMPENSATED FOR THE ENUMERATION OF ARMY, NAVY, MARINE, AND OTHER MILITARY POSTS. EMPLOYEES OF THE DEPARTMENT OF COMMERCE AND OTHER DEPARTMENTS AND INDEPENDENT OFFICES OF THE GOVERNMENT MAY, WITH THE CONSENT OF THE HEAD OF THE RESPECTIVE DEPARTMENT OR OFFICE, BE EMPLOYED AND COMPENSATED FOR FIELDWORK IN CONNECTION WITH THE FIFTEENTH DECENNIAL CENSUS. THE SPECIAL AGENTS, SUPERVISORS, SUPERVISORS' CLERKS, ENUMERATORS, AND INTERPRETERS THUS APPOINTED SHALL RECEIVE COMPENSATION AT RATES TO BE FIXED BY THE DIRECTOR OF THE CENSUS * * *.'

ACTING UNDER THIS PROVISION OF LAW, THE DIRECTOR OF THE CENSUS HAS APPOINTED THE PRINCIPAL CLERKS EMPLOYED UNDER THE SUPERVISION OF THE VARIOUS DISTRICT SUPERVISORS' OFFICES ALL LOCATED OUTSIDE OF THE DISTRICT OF COLUMBIA, AT A COMPENSATION OF $4.94 PER DAY EVERY DAY. WHEN THE INSTRUCTIONS FOR THE MAKING OF THESE APPOINTMENTS WERE MADE UP, IT WAS THE INTENTION TO FIX THE COMPENSATION OF THOSE WHOSE DUTIES WARRANTED A DIFFERENCE IN PAY, AT THE RATE OF $6.59 PER DAY EVERY DAY. HOWEVER, THROUGH A CLERICAL INADVERTENCE, ALL THE APPOINTMENTS OF THESE PRINCIPAL CLERKS WERE MADE AT THE RATE OF $4.94 PER DAY EVERY DAY. NEARLY ALL OF THESE PERSONS HAVE BEEN APPOINTED AND ENTERED ON DUTY AT THE RATE OF $4.94 PER DAY EVERY DAY. IT IS THE DESIRE OF THE DIRECTOR TO RECTIFY THE MISTAKE AND FIX THE COMPENSATION OF CERTAIN OF THESE EMPLOYEES AT $6.59 PER DAY EVERY DAY, BASED UPON THEIR ASSIGNMENT AND TYPE OF WORK PERFORMED. THESE APPOINTMENTS ARE ALL OF A TEMPORARY NATURE AND WILL NOT EXCEED A PERIOD OF FOUR MONTHS DURATION.

IN VIEW OF THE FACT THAT THE PERSONS SO APPOINTED ARE EXPRESSLY EXEMPTED FROM THE CLASSIFICATION ACT OF 1923 AS AMENDED AND OF THE AUTHORITY OF THE DIRECTOR OF THE CENSUS TO FIX THE RATES OF COMPENSATION FOR THESE EMPLOYEES, IT IS RESPECTFULLY REQUESTED THAT THIS DEPARTMENT MAY BE ADVISED WHETHER THERE IS ANY PROVISION OF LAW WHICH WILL PREVENT THE DIRECTOR UNDER THE CIRCUMSTANCES IN CHANGING THE COMPENSATION OF CERTAIN OF THESE TEMPORARY EMPLOYEES FROM $4.94 TO $6.59 PER DAY EVERY DAY. VIEW OF THE FACT THAT THESE EMPLOYEES ARE ALREADY AT WORK AND THAT THEIR TERM OF EMPLOYMENT WILL BE TERMINATED VERY SHORTLY, IT IS RESPECTFULLY REQUESTED THAT THIS DECISION MAY BE RENDERED AS SOON AS POSSIBLE.

SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515, PROVIDES AS FOLLOWS:

NO ADMINISTRATIVE PROMOTIONS IN THE CIVIL BRANCH OF THE UNITED STATES GOVERNMENT OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA SHALL BE MADE DURING THE FISCAL YEAR ENDING JUNE 30, 1934: PROVIDED, THAT THE FILLING OF A VACANCY, WHEN AUTHORIZED BY THE PRESIDENT, BY THE APPOINTMENT OF AN EMPLOYEE OF A LOWER GRADE, SHALL NOT BE CONSTRUED AS AN ADMINISTRATIVE PROMOTION, BUT NO SUCH APPOINTMENT SHALL INCREASE THE COMPENSATION OF SUCH EMPLOYEE TO A RATE IN EXCESS OF THE MINIMUM RATE OF THE GRADE TO WHICH SUCH EMPLOYEE IS APPOINTED, UNLESS SUCH MINIMUM RATE WOULD REQUIRE AN ACTUAL REDUCTION IN COMPENSATION: PROVIDED FURTHER, THAT THE RESTORATION OF EMPLOYEES TO THEIR FORMER GRADES OR THEIR ADVANCEMENT TO INTERMEDIATE GRADES FOLLOWING REDUCTIONS OF COMPENSATION FOR DISCIPLINARY REASONS SHALL NOT BE CONSTRUED TO BE ADMINISTRATIVE PROMOTIONS FOR THE PURPOSES OF THIS SECTION. THE PROVISIONS OF THIS WARRANT SHALL NOT APPLY TO COMMISSIONED, COMMISSIONED WARRANT, WARRANT, AND ENLISTED PERSONNEL, AND CADETS OF THE COAST GUARD.

SECTION 24 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, PROVIDES IN PART AS FOLLOWS:

TITLE II OF THE ACT ENTITLED "AN ACT TO MAINTAIN THE CREDIT OF THE UNITED STATES GOVERNMENT," APPROVED MARCH 20, 1933, IS AMENDED BY INSERTING AT THE END THEREOF THE FOLLOWING:

"/B) THE FOLLOWING SECTIONS OF THE TREASURY-POST OFFICE APPROPRIATION ACT, FISCAL YEAR 1934, ARE HEREBY CONTINUED IN FULL FORCE AND EFFECT DURING THE FISCAL YEAR ENDING JUNE 30, 1935: SECTIONS 7 (PROHIBITING ADMINISTRATIVE PROMOTIONS): PROVIDED, THAT ADJUSTMENTS OF CHARGES FOR QUARTERS, SUBSISTENCE OR LAUNDRY, OR OTHER SIMILAR CHARGES, SHALL NOT BE INTERPRETED AS CONSTITUTING ADMINISTRATIVE PROMOTIONS, AND 18 (SUSPENDING REENLISTMENT ALLOWANCES).

"/2) SECTION 7 (PROHIBITING ADMINISTRATIVE PROMOTIONS) OF THE TREASURY- POST OFFICE APPROPRIATION ACT, FISCAL YEAR 1934, IS AMENDED BY ADDING AFTER THE FIRST PROVISO THEREOF A COLON AND THE FOLLOWING: "PROVIDED FURTHER, THAT ADMINISTRATIVE PROMOTIONS MAY BE MADE DURING THE FISCAL YEAR 1935 TO THE EXTENT THAT FUNDS ARE AVAILABLE THEREFOR, ON AN ANNUAL BASIS, FROM SAVINGS MADE IN THE AMOUNTS APPORTIONED FOR PERSONAL SERVICES FROM THE APPLICABLE APPROPRIATIONS FOR THE FISCAL YEAR 1935.'"

THIS STATUTORY RESTRICTION AGAINST ADMINISTRATIVE PROMOTIONS IS NOT LIMITED TO SALARIES PAID UNDER THE CLASSIFICATION ACT NOR TO POSITIONS FILLED PURSUANT TO THE CIVIL SERVICE LAWS, BUT IS APPLICABLE TO ANY CIVILIAN OFFICER OR EMPLOYEE OF THE GOVERNMENT NOT OTHERWISE SPECIFICALLY EXEMPTED. NOTWITHSTANDING THE ADMINISTRATIVE AUTHORITY TO FIX SALARY RATES AND THE ALLEGED ADMINISTRATIVE MISTAKE IN FIXING THE INITIAL SALARY RATES OF THESE CENSUS EMPLOYEES, AN INCREASE IN COMPENSATION FOR THE SAME DUTIES AND RESPONSIBILITIES AS PROPOSED, WOULD BE AN "ADMINISTRATIVE PROMOTION" WITHIN THE MEANING OF THE QUOTED STATUTES AND WOULD BE AUTHORIZED DURING THE CURRENT FISCAL YEAR ONLY IF THERE ARE SHOWN SAVINGS ON AN ANNUAL BASIS IN THE PERSONNEL APPROPRIATIONS CHARGEABLE WITH THE SALARY PAYMENTS. SEE 13 COMP. GEN. 419; ID. 450; 14 ID. 87.