A-63093, AUGUST 29, 1935, 15 COMP. GEN. 154

A-63093: Aug 29, 1935

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CLASSIFICATION - CIVILIAN EMPLOYEES - WORKING FUND - INITIAL SALARY RATES THE TRANSFER OF FUNDS FOR THE PURPOSE OF SETTING UP A WORKING FUND UNDER SECTION 601 OF THE ECONOMY ACT PRESCRIBING THE PROCEDURE FOR MAKING PAYMENT FOR WORK PERFORMED BY ONE DEPARTMENT FOR ANOTHER IS NOT OF ITSELF ANY AUTHORITY FOR DISREGARDING THE PROVISIONS OF THE CLASSIFICATION ACT. IN THE CLASSIFICATION OF POSITIONS THE SALARIES OF WHICH HAVE NOT BEEN PREVIOUSLY FIXED PURSUANT TO THE CLASSIFICATION ACT. THE INITIAL SALARY RATES FIXED PURSUANT TO SAID ACT MUST BE THE MINIMUM OF THE GRADES IN WHICH THE POSITIONS ARE PROPERLY ALLOCATED BY THE CIVIL SERVICE COMMISSION. 1935: THERE WAS RECEIVED YOUR LETTER OF JUNE 19.

A-63093, AUGUST 29, 1935, 15 COMP. GEN. 154

CLASSIFICATION - CIVILIAN EMPLOYEES - WORKING FUND - INITIAL SALARY RATES THE TRANSFER OF FUNDS FOR THE PURPOSE OF SETTING UP A WORKING FUND UNDER SECTION 601 OF THE ECONOMY ACT PRESCRIBING THE PROCEDURE FOR MAKING PAYMENT FOR WORK PERFORMED BY ONE DEPARTMENT FOR ANOTHER IS NOT OF ITSELF ANY AUTHORITY FOR DISREGARDING THE PROVISIONS OF THE CLASSIFICATION ACT, AS AMENDED, IN THE PAYMENT OF SALARIES OF EMPLOYEES PAID FROM SUCH WORKING FUND. IN THE CLASSIFICATION OF POSITIONS THE SALARIES OF WHICH HAVE NOT BEEN PREVIOUSLY FIXED PURSUANT TO THE CLASSIFICATION ACT, AS AMENDED, THE INITIAL SALARY RATES FIXED PURSUANT TO SAID ACT MUST BE THE MINIMUM OF THE GRADES IN WHICH THE POSITIONS ARE PROPERLY ALLOCATED BY THE CIVIL SERVICE COMMISSION, IF IN THE DISTRICT OF COLUMBIA, OR BY THE ADMINISTRATIVE OFFICE IF IN THE FIELD.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, AUGUST 29, 1935:

THERE WAS RECEIVED YOUR LETTER OF JUNE 19, 1935, AS FOLLOWS:

THIS DEPARTMENT HAS A SMALL GROUP OF PERMANENT EMPLOYEES IN THE DISTRICT OF COLUMBIA AND IN THE FIELD WITH COMPENSATION AT ANNUAL RATES PAYABLE FROM A WORKING FUND SET UP FROM A REGULAR APPROPRIATION UNDER WHICH PAYMENT FOR PERSONAL SERVICES MAY BE MADE WITHOUT REGARD TO CIVIL SERVICE AND CLASSIFICATION LAWS. FOR THAT REASON THE POSITIONS OF THESE PERSONS HAVE NOT PREVIOUSLY BEEN ALLOCATED. HOWEVER, CONSIDERATION IS BEING GIVEN TO THE STEPS NECESSARY TO EFFECT PLACEMENT OF THE POSITIONS IN THE COMPETITIVE CLASSIFIED SERVICE AND ALLOCATING THEM TO APPROPRIATE GRADES AND RANGES UNDER THE CLASSIFICATION ACT.

WHILE YOUR DECISION OF JANUARY 7, 1927 (6 COMP. GEN. 455), HOLDS THAT EMPLOYEES TRANSFERRED FROM POSITIONS NOT SUBJECT TO THE CLASSIFICATION ACT TO POSITIONS UNDER THAT ACT MUST ENTER THE CLASSIFIED POSITIONS AT THE MINIMUM SALARY RATES OF THE GRADES, IT IS DESIRED TO POINT OUT THAT THE EMPLOYEES HERE IN QUESTION WILL NOT BE TRANSFERRED, ARE NOT TEMPORARY, AND ARE NOT PAID AT PER DIEM RATES AS WERE THE EMPLOYEES AFFECTED BY THE DECISION CITED. THE DEPARTMENT IS THEREFORE SOMEWHAT UNCERTAIN AS TO WHAT INITIAL SALARY RATES ARE PROPERLY PAYABLE UPON PLACEMENT OF THE POSITIONS REFERRED TO IN APPROPRIATE GRADES AND RANGES UNDER THE CLASSIFICATION ACT. YOUR DECISION IN THE MATTER WILL BE GREATLY APPRECIATED.

THE FACTS SET FORTH IN YOUR LETTER ARE NOT SUFFICIENT TO ENABLE THIS OFFICE TO IDENTIFY THE FUND UNDER THE DEPARTMENT OF COMMERCE TO WHICH YOU REFER AS A "WORKING FUND SET UP FROM A REGULAR APPROPRIATION UNDER WHICH PAYMENT FOR PERSONAL SERVICES MAY BE MADE WITHOUT REGARD TO CIVIL SERVICE AND CLASSIFICATION LAWS.' NO AUTHORITY APPEARS IN ANY OF THE REGULAR APPROPRIATIONS FOR THE DEPARTMENT OF COMMERCE FOR THE FISCAL YEAR 1935, ACT OF APRIL 7, 1934 (48 STAT. 546), OR FISCAL YEAR 1936, ACT OF MARCH 22, 1935 (49 STAT. 86), FOR PAYMENT OF PERSONNEL WITHOUT REGARD TO THE CLASSIFICATION ACT, AS AMENDED. ACCORDINGLY, IT WOULD APPEAR THAT ALL POSITIONS, THE SALARIES OF WHICH ARE PAID UNDER SUCH REGULAR APPROPRIATIONS, SHOULD BE CLASSIFIED UNDER THE CLASSIFICATION ACT IF NOT EXEMPTED BY REASON OF THE NATURE OF THE DUTIES PERFORMED.

IF THE WORKING FUND IN QUESTION REFERS TO ONE SET UP UNDER SECTION 601 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 417, 418, AMENDING SECTION 7 (B) OF THE ACT OF MAY 21, 1920, 41 STAT. 613, PRESCRIBING THE PROCEDURE FOR MAKING PAYMENT FOR WORK PERFORMED BY ONE DEPARTMENT FOR ANOTHER, YOU ARE ADVISED THAT THE TRANSFER OF FUNDS UNDER SAID SECTION IS NOT OF ITSELF ANY AUTHORITY FOR DISREGARDING THE PROVISIONS OF THE CLASSIFICATION ACT, IN THE PAYMENT OF SALARIES OF EMPLOYEES PAID FROM SUCH A WORKING FUND. EVEN IF EMERGENCY FUNDS HAVE BEEN MADE AVAILABLE, THE EMERGENCY POSITION SHOULD HAVE BEEN CLASSIFIED PURSUANT TO EXECUTIVE ORDER 6746, DATED JUNE 21, 1934, OR OTHER ORDERS.

IT IS NOT UNDERSTOOD THAT THE WORKING FUND IN QUESTION REFERS TO THE SPECIAL FUND AUTHORIZED BY THE ACT OF MAY 27, 1935, 49 STAT. 293, WHICH MAY NOT BE REGARDED AS MAKING A "REGULAR" APPROPRIATION AND WHICH ACT HAS NO RETROACTIVE EFFECT.

HOWEVER, IT IS ASSUMED FROM YOUR LETTER THAT THERE ARE POSITIONS UNDER THE DEPARTMENT OF COMMERCE, THE SALARIES OF WHICH HERETOFORE HAVE NOT BEEN FIXED PURSUANT TO THE CLASSIFICATION ACT AS AMENDED, OR THE EXECUTIVE ORDER, SUPRA, AND THAT IT IS NOW PROPOSED FOR THE FIRST TIME TO CLASSIFY THE POSITIONS UNDER THE TERMS OF THE CLASSIFICATION ACT. APPARENTLY YOUR QUESTION RELATES TO THE INITIAL SALARY RATES PROPERLY PAYABLE UNDER SUCH CIRCUMSTANCES. WHETHER THE EXISTING SALARY RATES OF THE POSITIONS WERE OR WERE NOT LAWFULLY FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT, THE INITIAL RATES FIXED PURSUANT TO THE CLASSIFICATION ACT MUST BE THE MINIMUM SALARY RATES OF THE GRADES IN WHICH THE POSITIONS ARE PROPERLY PLACED OR ALLOCATED BY THE CIVIL SERVICE COMMISSION IF IN THE DISTRICT OF COLUMBIA, OR BY THE ADMINISTRATIVE OFFICE IF IN THE FIELD SERVICE. IN ADDITION TO THE DECISION CITED BY YOU, SEE DECISION OF MAY 25, 1927, 6 COMP. GEN. 768, 769, WHEREIN IT WAS STATED AS FOLLOWS:

* * * THE SALARIES OF THE EMPLOYEES WHILE UNDER THE NAVY YARD WERE FIXED BY THE ADMINISTRATIVE OFFICE UNDER OTHER LAWS AND REGULATIONS WITHOUT REGARD TO THE SALARY RATES FIXED IN THE CLASSIFICATION ACT OR THE NECESSITY TO MAINTAIN AN AVERAGE, WHEREAS THE SALARIES OF THE EMPLOYEES UNDER THE BUREAU OF CONSTRUCTION AND REPAIR, NAVY DEPARTMENT, HAVE BEEN SUBJECT TO SUCH RESTRICTIONS. IT IS FOR THE PROTECTION OF THESE LATTER EMPLOYEES, AS WELL AS TO COMPLY WITH THE TERMS OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT, THAT THE INITIAL RATE OF COMPENSATION OF THE TRANSFERRED EMPLOYEES MUST BE THE MINIMUM SALARY RATE OF THE GRADE TO WHICH TRANSFERRED. AND TO CARRY OUT THE INTENT AND PURPOSE OF THE CLASSIFICATION ACT AND TO FULFILL THE REQUIREMENTS OF THE AVERAGE PROVISION, PROMOTIONS WITHIN THE SALARY RANGE OF THE GRADES TO WHICH THE NAVY YARD EMPLOYEES ARE PROPOSED TO BE TRANSFERRED, WOULD DEPEND UPON THE CONDITION OF THE AVERAGE IN THE GRADES AND THE COMPARATIVE EFFICIENCY OF THE TRANSFERRED EMPLOYEES WITH EMPLOYEES ALREADY IN THE GRADES. IF THE PROPER AVERAGE SHOULD BE EXCEEDED, NO INCREASE IN COMPENSATION ABOVE THE MINIMUM SALARY RATES WOULD BE AUTHORIZED.