A-61845, JULY 2, 1935, 15 COMP. GEN. 6

A-61845: Jul 2, 1935

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THE ADMINISTRATIVE FINDING THAT A POSITION IS "ADDITIONAL" RATHER THAN "NEW. " IS NOT NECESSARILY CONCLUSIVE. OF THE POSITION ARE PRACTICALLY IDENTICAL WITH THOSE OF THE POSITION OR POSITIONS ON THE BASIS OF WHICH THE ADMINISTRATIVE OFFICE HAD FIXED THE COMPENSATION THEREOF. 1935: THERE WAS RECEIVED YOUR LETTER OF APRIL 30. ADDITIONAL POSITIONS WHICH ARE "IDENTICAL IN ALL RESPECTS" WITH OTHER POSITIONS IN THE SAME APPROPRIATION UNIT PREVIOUSLY ALLOCATED TO THE SAME GRADE. - "THE FUNCTION OF THE PERSONNEL CLASSIFICATION BOARD (NOW THE COMMISSION) HAS BEEN COMPLETED SO FAR AS IDENTICAL POSITIONS ARE CONCERNED WHEN IT HAS FINALLY ALLOCATED THE DUTIES OF ONE OF SUCH IDENTICAL POSITIONS. THE LAW IMPOSES UPON IT NO RESPONSIBILITY RESPECTING THE NUMBER OF PERSONS NECESSARY IN SUCH POSITIONS TO ENABLE THE ADMINISTRATIVE OFFICE TO PERFORM THE WORK REQUIRED OF IT BY LAW * * * NEW POSITIONS WHICH THE ADMINISTRATIVE OFFICERS ARE REQUIRED BY THE CLASSIFICATION ACT ABOVE QUOTED TO REPORT TO THE BOARD FOR APPROVAL OF ALLOCATIONS ARE THOSE HAVING DUTIES AND RESPONSIBILITIES WHICH DIFFER FROM EXISTING ALLOCATED POSITIONS IN THE SAME BUREAU.

A-61845, JULY 2, 1935, 15 COMP. GEN. 6

CLASSIFICATION OF CIVILIAN POSITIONS - "NEW" OR "ADDITIONAL" POSITIONS - JURISDICTION OF CIVIL SERVICE COMMISSION IF AND WHEN AN ADMINISTRATIVE OFFICE REPORTS TO THE CIVIL SERVICE COMMISSION FOR RECORD PURPOSES THE CREATION OF AN "ADDITIONAL" POSITION AS DEFINED IN DECISION OF SEPTEMBER 3, 1929, 9 COMP. GEN. 101, THE ADMINISTRATIVE FINDING THAT A POSITION IS "ADDITIONAL" RATHER THAN "NEW," IS NOT NECESSARILY CONCLUSIVE, BUT INVOLVES A QUESTION OF FACT, FOR ASCERTAINMENT BY THE CIVIL SERVICE COMMISSION, AS TO WHETHER THE RESPONSIBILITIES, AS WELL AS THE DUTIES, OF THE POSITION ARE PRACTICALLY IDENTICAL WITH THOSE OF THE POSITION OR POSITIONS ON THE BASIS OF WHICH THE ADMINISTRATIVE OFFICE HAD FIXED THE COMPENSATION THEREOF.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JULY 2, 1935:

THERE WAS RECEIVED YOUR LETTER OF APRIL 30, 1935, AS FOLLOWS:

THE COMMISSION DESIRES TO PRESENT FOR YOUR CONSIDERATION AND DECISION A MATTER WHICH BEARS UPON THE PROPER APPLICATION OF YOUR DECISION OF SEPTEMBER 3, 1929, A-27735, 9 COMP. GEN. 101, WHICH PERMITS A DEPARTMENT TO ALLOCATE, WITHOUT THE COMMISSION'S PRIOR APPROVAL, ADDITIONAL POSITIONS WHICH ARE "IDENTICAL IN ALL RESPECTS" WITH OTHER POSITIONS IN THE SAME APPROPRIATION UNIT PREVIOUSLY ALLOCATED TO THE SAME GRADE. THE DECISION STATES---

"THE FUNCTION OF THE PERSONNEL CLASSIFICATION BOARD (NOW THE COMMISSION) HAS BEEN COMPLETED SO FAR AS IDENTICAL POSITIONS ARE CONCERNED WHEN IT HAS FINALLY ALLOCATED THE DUTIES OF ONE OF SUCH IDENTICAL POSITIONS, AND THE LAW IMPOSES UPON IT NO RESPONSIBILITY RESPECTING THE NUMBER OF PERSONS NECESSARY IN SUCH POSITIONS TO ENABLE THE ADMINISTRATIVE OFFICE TO PERFORM THE WORK REQUIRED OF IT BY LAW * * * NEW POSITIONS WHICH THE ADMINISTRATIVE OFFICERS ARE REQUIRED BY THE CLASSIFICATION ACT ABOVE QUOTED TO REPORT TO THE BOARD FOR APPROVAL OF ALLOCATIONS ARE THOSE HAVING DUTIES AND RESPONSIBILITIES WHICH DIFFER FROM EXISTING ALLOCATED POSITIONS IN THE SAME BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT, AND CARE SHOULD BE EXERCISED TO SUBMIT ALL SUCH POSITIONS PROMPTLY FOR ALLOCATION.'

THE DECISION REFERRED TO THE PRIOR DECISION OF SEPTEMBER 16, 1925, 5 COMP. GEN. 202, AND STATED THAT SUCH DECISION "WAS INTENDED TO REFER PRIMARILY TO THE CREATION OF POSITIONS HAVING DUTIES SIMILAR TO, BUT DIFFERING FROM, EXISTING POSITIONS.'

IN 1930, THE PERSONNEL CLASSIFICATION BOARD ALLOCATED A POSITION OF LEGISLATIVE CLERK IN THE VETERANS' ADMINISTRATION, OCCUPIED BY HELEN F. FREEMAN, TO GRADE CAF-6. THE DUTIES OF THE POSITION AS DESCRIBED ON THE CLASSIFICATION SHEET SUBMITTED AT THAT TIME WERE AS FOLLOWS:

"RESPONSIBLE FOR THE MAINTAINING OF THE LEGISLATIVE FILES OF THE VETERANS' ADMINISTRATION; SUPERVISES THE CLERICAL WORK PERTAINING TO LEGISLATION; MAINTAINS A LEGISLATIVE HISTORY OF THE VARIOUS ACTS ADMINISTERED BY THE VETERANS' ADMINISTRATION; RECEIVES AND SUPERVISES THE DISTRIBUTION OF BILLS, REPORTS, AND ACTS AND DOCUMENTS RELEASED BY THE U.S. GOVERNMENT PRINTING OFFICE UNDER THE PROVISIONS OF SECTION 215, TITLE 44, U.S. CODE; READS AND MARKS THE DAILY CONGRESSIONAL RECORD FOR THE USE OF THE ADMINISTRATOR OF VETERANS' AFFAIRS AND THE PERSONNEL OF HIS OFFICE; MAINTAINS CONTACT WITH THE COMMITTEES OF CONGRESS AS TO THE TIME OF THE HOLDING OF HEARINGS; SECURES PRINTED HEARINGS AND ANY OTHER INFORMATION NECESSARY TO LEGISLATIVE WORK; SUPERVISES THE COMPILATION OF REFERENCE BOOKS AND REPORTS TO BE USED BY THE ADMINISTRATOR OF VETERANS' AFFAIRS AND THE PERSONNEL OF HIS OFFICE.'

THE BOARD'S ALLOCATION WAS BASED NOT ONLY UPON THE DUTIES PERFORMED, BUT ON THE RESPONSIBILITIES INVOLVED, IN THAT THERE WAS CONCENTRATED IN THIS SINGLE POSITION THE ENTIRE IMMEDIATE RESPONSIBILITY FOR THE MAINTENANCE OF ALL THE LEGISLATIVE FILES OF THE VETERANS' ADMINISTRATION AND THE SUPERVISORY RESPONSIBILITY FOR THE WORK OF THREE ASSISTANTS IN GRADE CAF- 4. RECENTLY THE VETERANS' ADMINISTRATION ESTABLISHED TWO ADDITIONAL POSITIONS OF LEGISLATIVE CLERK DESCRIBED IN EXACTLY THE SAME LANGUAGE, ALLOCATED BOTH OF THEM TO CAF-6 WITHOUT REFERENCE TO THE COMMISSION UNDER THE DECISION REFERRED TO, AND APPOINTED TO SUCH POSITIONS EDRIE E. LLEWELLYN AND FLORENCE M. MASTERTON.

AS THE ACCOMPANYING CORRESPONDENCE WILL SHOW, THE COMMISSION CALLED THE ATTENTION OF THE VETERANS' ADMINISTRATION TO THE FACT THAT THE ORIGINAL CAF-6 ALLOCATION TOOK INTO CONSIDERATION NOT ONLY THE ACTUAL TASKS PERFORMED BY MISS FREEMAN AS AN INDIVIDUAL, BUT THE SCOPE AND CHARACTER OF HER RESPONSIBILITY, I.E., THE DIRECTION AND SUPERVISION OF THREE CAF-4 SUBORDINATES AND THE RESPONSIBILITY FOR THE MAINTENANCE OF THE LEGISLATIVE FILES, AND THAT WHEN THE RESPONSIBILITY FOR THE PERFORMANCE OF A GIVEN FUNCTION, PREVIOUSLY CONCENTRATED IN A SINGLE POSITION, IS REDISTRIBUTED AMONG THREE POSITIONS, NO ONE OF THE THREE IS IDENTICAL TO THAT SINGLE ONE FROM WHICH PART OF THE RESPONSIBILITY, NAMELY THAT PART TRANSFERRED TO THE OTHER TWO POSITIONS, HAS BEEN TAKEN.

AS A MATTER OF FACT, THE SUBTRACTION OF RESPONSIBILITY FROM THE POSITION PREVIOUSLY ALLOCATED SO CHANGES IT (1) AS TO MAKE IT A POSITION THE EXISTING DUTIES AND RESPONSIBILITIES OF WHICH HAVE NOT BEEN ALLOCATED, (2) AS TO REQUIRE ITS SUBMISSION FOR CLASSIFICATION ON THE BASIS OF SUCH CHANGE, AND (3) AS TO MAKE IT UNAVAILABLE AS A PREMISE UPON WHICH TO ALLOCATE TO THE SAME GRADE ANY OTHER POSITION WITHOUT PRIOR ACTION BY THE COMMISSION. IN SHORT, WHILE THE THREE POSITIONS MAY BE IDENTICAL AMONG THEMSELVES AFTER THE REDISTRIBUTION OF AUTHORITY, THEY ARE NOT "IDENTICAL IN ALL RESPECTS" TO ANY PREVIOUSLY ALLOCATED POSITION, WITHIN THE MEANING OF YOUR DECISION OF SEPTEMBER 3, 1929.

IN REPLYING TO THE COMMISSION'S LETTER OF MARCH 5, 1935, THE VETERANS'ADMINISTRATION, UNDER DATE OF APRIL 1, 1935, MAKES IT PLAIN THAT IT IS RELYING ON THIS DECISION AS ITS AUTHORITY FOR ALLOCATING THE TWO ADDITIONAL POSITIONS TO GRADE CAF-6, WITHOUT PRIOR REFERENCE TO THE COMMISSION, NOTWITHSTANDING THE CHANGE IN THE DISTRIBUTION OF RESPONSIBILITY FOR THE WORK OF THE LEGISLATIVE FILES. IN ALLOCATING SUPERVISORY POSITIONS THE MAGNITUDE OF SUPERVISORY OR OTHER RESPONSIBILITY AND THE DISTRIBUTION OF THE RESPONSIBILITY FOR THE CONDUCT OF A PARTICULAR FUNCTION HAVE TO BE CONSIDERED. POSITIONS ARE "IDENTICAL" IN ALL RESPECTS WHEN THEY ARE IDENTICAL NOT ONLY IN THEIR DUTIES AND TASKS, BUT ALSO IN THEIR RESPONSIBILITIES. HENCE POSITIONS WHICH INVOLVE ONLY A PORTION OF A GIVEN RESPONSIBILITY ARE NOT "IDENTICAL IN ALL RESPECTS" TO ONE WHICH INVOLVES THE SUM TOTAL OF SUCH PORTIONS, EVEN THOUGH THE GENERAL KIND OF WORK MAY BE THE SAME.

THE COMMISSION RESPECTFULLY REQUESTS YOUR DECISION WHETHER OR NOT YOUR DECISION OF SEPTEMBER 3, 1929, WAS INTENDED TO APPLY TO SUCH A SITUATION AS THAT PRESENTED HEREIN.

IN LETTER DATED APRIL 1, 1935, THE VETERANS' ADMINISTRATION ADVISED YOU, IN PART, AS FOLLOWS:

THERE HAS BEEN NO MATERIAL OR SUBSTANTIAL CHANGE IN THE POSITION OF LEGISLATIVE CLERK TO WHICH MISS HELEN M. FREEMAN IS ASSIGNED SINCE IT WAS ALLOCATED IN 1930. THE ONLY CHANGE WHICH HAS OCCURRED IN THIS GENERAL WORK IS THE INCREASE IN THE VOLUME OF LEGISLATIVE BUSINESS IN THE OFFICE OF THE SOLICITOR, REQUIRING THE ESTABLISHMENT OF ADDITIONAL POSITIONS TO WHICH MRS. MASTERTON AND MRS. LLEWELLYN HAVE BEEN ASSIGNED. IT SHOULD BE STATED, IN THIS REGARD, THAT SIMULTANEOUSLY WITH THE ASSIGNMENT OF THE FORMER EMPLOYEE SHE WAS AND IS TEMPORARILY DETAILED TO MY OFFICE IN CONNECTION WITH MATTERS CONCERNING LEGISLATION. THIS INCREASE IN VOLUME OF WORK HAS IN NO WAY AFFECTED THE DUTIES AND RESPONSIBILITIES INVOLVED IN THESE SEVERAL POSITIONS.

THE THREE GRADE CAF-4 EMPLOYEES REFERRED TO UNDER ITEM 13 OF THE CLASSIFICATION SHEET IN THE CASE OF MISS FREEMAN ARE ASSISTING EACH OF THE LEGISLATIVE CLERKS IN THE PERFORMANCE OF THEIR DUTIES IN THE SAME MANNER THAT THEY ASSISTED THE ORIGINAL OCCUPANT. THE LEGISLATIVE CLERKS, WHEN NECESSARY, ALSO UTILIZE THE SERVICES OF OTHER EMPLOYEES IN THE SOLICITOR'S OFFICE AS THE EXIGENCIES OF THE SERVICE DEMAND.

THE ADMINISTRATION, IN RECOMMENDING THE ALLOCATION OF THIS POSITION TO GRADE CAF-6, GIVE LITTLE, IF ANY, CONSIDERATION TO THE SUPERVISION INVOLVED, ITS RECOMMENDATION BEING BASED ALMOST ENTIRELY, IF NOT EXCLUSIVELY, ON THE EVALUATION OF THE INDIVIDUAL DUTIES AND RESPONSIBILITIES INVOLVED IN THE POSITION. THE SUPERVISION OF THE DUTIES OF THE TWO STENOGRAPHERS AND THE ONE ASSISTANT LEGISLATIVE CLERK, CONSTITUTED SUCH A MINOR PART OF THE RESPONSIBILITIES ATTACHED TO THE FREEMAN POSITION AS TO WARRANT NEGLIGIBLE ATTENTION IN ARRIVING AT A SOUND CONCLUSION WITH RESPECT TO THE ALLOCATION RECOMMENDED BY THE ADMINISTRATION.

SECTION 2 OF THE ORIGINAL CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1488, DEFINES THE TERMS "GRADE" AND "CLASS" AS FOLLOWS:

THE TERM "GRADE" MEANS A SUBDIVISION OF A SERVICE, INCLUDING ONE OR MORE POSITIONS FOR WHICH APPROXIMATELY THE SAME BASIC QUALIFICATIONS AND COMPENSATION ARE PRESCRIBED, THE DISTINCTION BETWEEN GRADES BEING BASED UPON DIFFERENCES IN THE IMPORTANCE, DIFFICULTY, RESPONSIBILITY, AND VALUE OF THE WORK.

THE TERM "CLASS" MEANS A GROUP OF POSITIONS TO BE ESTABLISHED UNDER THIS ACT SUFFICIENTLY SIMILAR IN RESPECT TO THE DUTIES AND RESPONSIBILITIES THEREOF THAT THE SAME REQUIREMENTS AS TO EDUCATION, EXPERIENCE, KNOWLEDGE, AND ABILITY ARE DEMANDED OF INCUMBENTS, THE SAME TESTS OF FITNESS ARE USED TO CHOOSE QUALIFIED APPOINTEES, AND THE SAME SCHEDULE OF COMPENSATION IS MADE TO APPLY WITH EQUITY.

SECTION 3 OF THE ACT VESTED IN THE PERSONNEL CLASSIFICATION BOARD THE AUTHORITY TO ISSUE REGULATIONS "FOR ASCERTAINING AND RECORDING THE DUTIES OF POSITIONS AND THE QUALIFICATIONS REQUIRED OF INCUMBENTS" AND TO "PUBLISH AN ADEQUATE STATEMENT GIVING (1) THE DUTIES AND RESPONSIBILITIES INVOLVED IN THE CLASSES TO BE ESTABLISHED WITHIN THE SEVERAL GRADES.' SECTION 4 OF THE SAME ACT PROVIDES, IN PART, AS FOLLOWS:

THAT AFTER CONSULTATION WITH THE BOARD, AND IN ACCORDANCE WITH A UNIFORM PROCEDURE PRESCRIBED BY IT, THE HEAD OF EACH DEPARTMENT SHALL ALLOCATE ALL POSITIONS IN HIS DEPARTMENT IN THE DISTRICT OF COLUMBIA TO THEIR APPROPRIATE GRADES IN THE COMPENSATION SCHEDULES AND SHALL FIX THE RATE OF COMPENSATION OF EACH EMPLOYEE THEREUNDER, IN ACCORDANCE WITH THE RULES PRESCRIBED IN SECTION 6 HEREIN. SUCH ALLOCATIONS SHALL BE REVIEWED AND MAY BE REVISED BY THE BOARD AND SHALL BECOME FINAL UPON THEIR APPROVAL BY SAID BOARD. * * *

SECTION 4 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, PROVIDES, IN PART, AS FOLLOWS:

THE PERSONNEL CLASSIFICATION BOARD SHALL HAVE AUTHORITY TO ASCERTAIN CURRENTLY THE FACTS AS TO THE DUTIES AND RESPONSIBILITIES OF ANY SUCH POSITION AND TO REVIEW AND, SUBJECT TO THE PRESIDENT'S APPROVAL, TO CHANGE THE ALLOCATION THEREOF WHENEVER, IN ITS OPINION, THE FACTS WARRANT: PROVIDED, THAT SUCH REVIEW AND CHANGE SHALL BE MADE ONLY AFTER CONSULTATION WITH THE HEADS OF THE DEPARTMENTS CONCERNED AND AFTER AFFORDING ALL INCUMBENTS OF POSITIONS AFFECTED AN OPPORTUNITY TO BE HEARD, OF WHICH HEARING A PERMANENT WRITTEN RECORD SHALL BE MADE AND KEPT, INCLUDING ALL TESTIMONY TAKEN: PROVIDED FURTHER, THAT IN ALL CASES WHERE THE BOARD SHALL CHANGE THE ALLOCATION OF A POSITION TO A LOWER GRADE THE RATE OF PAY FIXED FOR SUCH POSITION PRIOR TO SUCH CHANGE MAY BE CONTINUED SO LONG AS THE POSITION IS HELD BY THE INCUMBENT THEN OCCUPYING IT.

THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 416, ABOLISHED THE PERSONNEL CLASSIFICATION BOARD AND TRANSFERRED ITS DUTIES, POWERS, AND FUNCTIONS TO THE CIVIL SERVICE COMMISSION.

IF AND WHEN AN ADMINISTRATIVE OFFICE REPORTS TO THE CIVIL SERVICE COMMISSION, FOR RECORD PURPOSES, THE CREATION OF AN "ADDITIONAL" POSITION AS DEFINED IN THE DECISION OF SEPTEMBER 3, 1929, SUPRA, THE ADMINISTRATIVE FINDING THAT A POSITION IS "ADDITIONAL," RATHER THAN "NEW," IS NOT NECESSARILY CONCLUSIVE, BUT INVOLVES A QUESTION OF FACT- - THAT MAY BE ASCERTAINED BY THE CIVIL SERVICE COMMISSION UNDER THE LAW--- AS TO WHETHER THE RESPONSIBILITIES, AS WELL AS THE DUTIES, OF THE POSITION REPORTED AS "ADDITIONAL" ARE PRACTICALLY IDENTICAL WITH THOSE OF THE POSITION OR POSITIONS ON THE BASIS OF WHICH THE ADMINISTRATIVE OFFICE HAD FIXED THE COMPENSATION THEREOF.