A-63762, OCTOBER 5, 1935, 15 COMP. GEN. 272

A-63762: Oct 5, 1935

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WHOSE COMPENSATION IS REQUIRED BY LAW TO BE FIXED PURSUANT TO THE CLASSIFICATION ACT. WHICH RATE IS IN EXCESS OF THE MINIMUM RATE PROVIDED FOR THE COMPARABLE GRADE BY SAID ACT. WERE PROHIBITED AS ADMINISTRATIVE PROMOTIONS DURING THE FISCAL YEAR 1934. 1935: THERE WAS RECEIVED YOUR LETTER OF JULY 10. INDICATE THAT AS SERVICE WAS CONTINUOUS THERE WAS NO AUTHORITY TO MAKE ADJUSTMENTS FROM CLASSIFICATION ACT RATES TO RATES ESTABLISHED BY EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18. HOLDING THAT THE EXECUTIVE ORDER WAS ALSO APPLICABLE TO PERSONNEL EMPLOYED BY THE REGULAR ESTABLISHMENTS OF THE GOVERNMENT. IT WAS STATED THAT "THE CLEAR PURPOSE OF THE EXECUTIVE ORDER IS TO EQUALIZE GENERALLY THE SALARY RATES OF THE PERSONNEL OF THE EMERGENCY AGENCIES WITH THE SALARY RATES OF THE PERSONNEL OF THE REGULAR ESTABLISHMENT OF THE GOVERNMENT SUBJECT TO THE CLASSIFICATION ACT.'.

A-63762, OCTOBER 5, 1935, 15 COMP. GEN. 272

OFFICERS AND EMPLOYEES - COMPENSATION - CLASSIFICATION APPLICABILITY OF EXECUTIVE ORDER NO. 6440 INITIAL APPOINTMENTS OF EMPLOYEES, WHOSE COMPENSATION IS REQUIRED BY LAW TO BE FIXED PURSUANT TO THE CLASSIFICATION ACT, AS AMENDED, AT A RATE PRESCRIBED BY EXECUTIVE ORDER NO. 6440, DATED NOVEMBER 18, 1933, WHICH RATE IS IN EXCESS OF THE MINIMUM RATE PROVIDED FOR THE COMPARABLE GRADE BY SAID ACT, AND, ADJUSTMENTS OF COMPENSATION OF PERSONS ALREADY EMPLOYED, FROM A RATE PROPERLY FIXED PURSUANT TO SAID ACT TO A GREATER RATE UNDER THE EXECUTIVE ORDER SCHEDULE, WERE PROHIBITED AS ADMINISTRATIVE PROMOTIONS DURING THE FISCAL YEAR 1934, AND ALSO DURING THE FISCAL YEARS 1935 AND 1936 IN THE ABSENCE OF A COMPLIANCE WITH THE AVERAGE PROVISION OF THE CLASSIFICATION ACT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, OCTOBER 5, 1935:

THERE WAS RECEIVED YOUR LETTER OF JULY 10, 1935, AS FOLLOWS:

YOUR OFFICE, IN THE AUDIT OF PAY ROLLS IN THE ACCOUNTS OF W. R. FUCHS, DISBURSING CLERK, DEPARTMENT OF AGRICULTURE, HAS TAKEN EXCEPTION TO PAYMENTS MADE TO A NUMBER OF JUNIOR MESSENGERS LISTED ON THE ATTACHED SHEETS, THE ROLLS SHOWING THE TERMINATION OF APPOINTMENTS ON JANUARY 18, 1934, AND REAPPOINTMENT AT A HIGHER RATE OF PAY ON JANUARY 19, 1934. NOTICES OF EXCEPTION, STANDARD FORM 2084, INDICATE THAT AS SERVICE WAS CONTINUOUS THERE WAS NO AUTHORITY TO MAKE ADJUSTMENTS FROM CLASSIFICATION ACT RATES TO RATES ESTABLISHED BY EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18, 1933.

THE EXECUTIVE ORDER ESTABLISHED GRADES AND RATES CORRESPONDING TO CLASSIFICATION ACT GRADES AND SALARY RANGES AND SHOWS GRADE NO. 1, WITH A RATE OF $840, AS CORRESPONDING WITH GRADE CU-1 WITH AN ENTRANCE RATE OF $600. THE EXECUTIVE ORDER SPECIFICALLY INCLUDES THE AGRICULTURAL ADJUSTMENT ADMINISTRATION WITHIN ITS PROVISIONS. IN YOUR DECISION TO THE SECRETARY OF COMMERCE ON JANUARY 5, 1934, A-52844, HOLDING THAT THE EXECUTIVE ORDER WAS ALSO APPLICABLE TO PERSONNEL EMPLOYED BY THE REGULAR ESTABLISHMENTS OF THE GOVERNMENT, ALTHOUGH NOT SPECIFICALLY MENTIONED, IT WAS STATED THAT "THE CLEAR PURPOSE OF THE EXECUTIVE ORDER IS TO EQUALIZE GENERALLY THE SALARY RATES OF THE PERSONNEL OF THE EMERGENCY AGENCIES WITH THE SALARY RATES OF THE PERSONNEL OF THE REGULAR ESTABLISHMENT OF THE GOVERNMENT SUBJECT TO THE CLASSIFICATION ACT.' IT WAS GENERALLY UNDERSTOOD THAT THE MINIMUM RATE UNDER EXECUTIVE ORDER GRADE 1 WAS $840. APPOINTMENTS OF JUNIOR MESSENGERS AT THAT RATE WERE AT THE TIME BEING MADE BY EMERGENCY AGENCIES. IN ORDER TO "EQUALIZE GENERALLY" THE SALARIES OF THESE LOW-PAID EMPLOYEES, ACTION TO WHICH OBJECTION HAS BEEN MADE WAS TAKEN IN AN HONEST ENDEAVOR TO PLACE THOSE IN CLASSIFICATION ACT GRADES ON A PAR WITH THOSE EMPLOYED UNDER EXECUTIVE ORDER GRADES. IN YOUR DECISION A 55907, OF JULY 5, 1934, YOU HELD THAT IN FIXING CLASSIFICATION SALARY RATES PURSUANT TO THE PROVISIONS OF EXECUTIVE ORDER NO. 6440, THERE MAY NOT RESULT INCREASES IN COMPENSATION WHICH AMOUNT TO ADMINISTRATIVE PROMOTIONS IN VIOLATION OF SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515, AMENDED FOR THE FISCAL YEAR 1935 BY SECTION 24 OF THE ACT OF MARCH 28, 1934, 48 STAT. 523. THE PROVISION IN EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, DEFINED THE TERM "ADJUSTMENTS" TO INCLUDE INCREASES IN COMPENSATION. IN THE LIGHT OF THIS DECISION AND EXECUTIVE ORDER NO. 6746, IT APPEARS THAT THE ADJUSTMENTS MADE ON JANUARY 19, 1934, ARE TO BE CONSTRUED AS "ADMINISTRATIVE PROMOTIONS.' AS THERE WERE SUFFICIENT PERSONNEL FUNDS AVAILABLE ON AN ANNUAL BASIS ON AND AFTER JULY 1, 1934, FOR THE DIFFERENCE BETWEEN THE MINIMUM RATE AND THE HIGHER RATE AT WHICH PAID, IT WAS NOT CONSIDERED NECESSARY TO REVISE AT THAT LATE DATE THE ACTION OF JANUARY 19, 1934.

ALSO WITH THE INTENT TO "EQUALIZE GENERALLY," THE APPOINTMENTS OF EIGHT JUNIOR MESSENGERS WERE MADE AT ENTRANCE RATES OF $840 PER ANNUM, THE LOWEST CORRESPONDING RATE GIVEN IN THE EXECUTIVE ORDER. THE NAMES OF THOSE SO APPOINTED ALSO APPEAR ON THE SHEETS ATTACHED. IN ALL CASES THE NUMBERS OF THE VOUCHERS TO WHICH EXCEPTIONS HAVE BEEN MADE ARE SHOWN.

IT IS REQUESTED THAT CREDIT FOR THE PAYMENTS MADE BE ALLOWED ON THE BASIS OF THE ATTEMPT, MADE IN GOOD FAITH, TO COMPLY WITH THE TERMS OF THE ORIGINAL EXECUTIVE ORDER.

ON VOUCHER 12128, FEBRUARY 1934, ACCOUNT, J. W. BOZEMAN, W. J. BURKE, THOMAS H. ENZOR, LOUIS E. FORTSON, JOSEPH S. GRECO, CARLISLE HOADLEY, D. STERLING JOHNSON, CHARLES A. LOVEJOY, WILLIAM J. MCKAY, LAWRENCE H. PETERSON, AND JAMES H. SIBBET, WERE EACH PAID AS JUNIOR MESSENGER, CU-1, AT $600 PER ANNUM, TO AND INCLUDING JANUARY 18, 1934, AND IN THE SAME POSITION AT $840 PER ANNUM FROM THAT DATE, THE ROLL SHOWING FOR EACH A TERMINATION OF THE APPOINTMENT ON JANUARY 18 AND REAPPOINTMENT ON JANUARY 19, 1934, AT THE HIGHER SALARY RATE.

ON VOUCHER 11881, FEBRUARY 1934, J. L. DOROUGH, J. R. KAUTZ, M. N. POTEAT, W. E. SAMPSON, D. L. SCHULTZ, PAUL F. TRAYNHAM, AND JOHN H. WATSON, WERE EACH PAID AS JUNIOR MESSENGER, CU-1, AT $600 PER ANNUM, TO AND INCLUDING JANUARY 18 AND IN THE SAME POSITION AT $840 PER ANNUM FROM THAT DATE.

ON VOUCHER 13455, FEBRUARY 1934, O. G. GRANDERSON WAS PAID AS JUNIOR MESSENGER, CU-1, AT $600 PER ANNUM, TO AND INCLUDING FEBRUARY 4, 1934, AND IN THE SAME POSITION AT $840 PER ANNUM FROM THAT DATE.

ON VOUCHER 11976, FEBRUARY 1934, H. E. SMITH WAS PAID AS JUNIOR MESSENGER, CU-1, AT $600 PER ANNUM, TO AND INCLUDING JANUARY 18, 1934, AND IN THE SAME POSITION AT $840 PER ANNUM FROM THAT DATE.

THE LAST THREE VOUCHERS BEAR EVIDENCE OF THE TERMINATION OF THE APPOINTMENTS AT $600 PER ANNUM AND THE REAPPOINTMENTS EFFECTIVE THE FOLLOWING DAY. SIMILAR PAYMENTS WERE MADE IN EACH CASE AT THE HIGHER RATE ON OTHER VOUCHERS. CREDIT FOR THE DIFFERENCE IN THE TWO RATES WAS SUSPENDED OR DISALLOWED IN EACH CASE FOR THE REASON THAT SINCE THE SERVICES OF THE EMPLOYEE WERE CONTINUOUS THE PURPORTED TERMINATION OF THE APPOINTMENT AND IMMEDIATE REAPPOINTMENT IN THE SAME POSITION WERE WITHOUT FORCE OR EFFECT TO PROMOTE THE EMPLOYEE FROM THE MINIMUM SALARY RATE OF CU -1 TO THE MAXIMUM SALARY RATE OF THAT GRADE WHICH IS, ALSO, THE RATE PRESCRIBED BY EXECUTIVE ORDER, GRADE 1, AND THE INCREASE IN COMPENSATION WAS IN DIRECT CONTRAVENTION OF SECTION 202 OF THE ECONOMY ACT AS AMENDED BY SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515. SEE 13 COMP. GEN. 263; 14 ID, 14 AND 180.

ON THE FOLLOWING VOUCHERS THE EIGHT EMPLOYEES LISTED WERE SHOWN AS JUNIOR MESSENGERS, CU-1, AND INITIALLY PAID AT THE RATE OF $840 PER ANNUM, WITH NO SHOWING OF PRIOR SERVICES:

TABLE VOUCHER NO. PERIOD NAME FIRST DAY OF

SERVICE 11881 ------- FEBRUARY 1934 ------ J. F. COLEMAN ------ JAN. 19, 1934 11881 ------- ---- DO ----------- E. B. TEAL ---------

DO. 11881 ------- ----- DO ----------- W. A. POWER --------DO. 10146 ---- --- JANUARY 1934 ------- DAVID G. TAYLOR ---- JAN. 8, 1934 15247 ------- MARCH 1934 --------- C. J. KIDD --------- FEB. 1, 1934 15247 ------- ----- DO ----------- G. P. LUCAS -------- DO. 22841 ------- APRIL 1934 --------- ROBERT CALDWELL ---- APR. 2, 1934 22841 ------- ----- DO ----------- JOSEPH LAPIANA ----- DO.

CREDIT FOR THE NET DIFFERENCE BETWEEN THE COMPENSATION AT THE RATE OF $600 AND $840 PER ANNUM WAS SUSPENDED OR DISALLOWED IN EACH CASE FOR THE REASON THAT ALL NEW APPOINTMENTS ARE REQUIRED BY LAW TO BE MADE AT THE MINIMUM SALARY RATE OF THE GRADE, CITATION BEING MADE TO THE RULING IN 8 COMP. GEN. 47. SIMILAR AUDIT ACTION WAS TAKEN IN CONNECTION WITH SUBSEQUENT PAYMENTS, INCLUDING PAYMENTS FOR MAY 1934, WHICH HAVE BEEN AUDITED.

THE FIRST PARAGRAPH OF EXECUTIVE ORDER NO. 6440, DATED NOVEMBER 18, 1933, CITED IN YOUR LETTER, FIRST PARAGRAPH, AS AUTHORITY FOR THE ADMINISTRATIVE ACTION GRANTING THE PROMOTIONS IN THIS CASE, PROVIDES AS FOLLOWS:

BY VIRTUE OF THE AUTHORITY VESTED IN ME AS PRESIDENT OF THE UNITED STATES, AND UNDER AUTHORITY OF SECTION 1753 OF THE REVISED STATUTES, AND IN ORDER TO SECURE GREATER UNIFORMITY IN THE RATES OF COMPENSATION OF EMPLOYEES ENGAGED UPON THE SAME OR SIMILAR CLASSES OF WORK, IT IS HEREBY ORDERED THAT THE RESPECTIVE HEADS OF

* * * * * * * AGRICULTURAL ADJUSTMENT ADMINISTRATION,

* * * * * * * WHICH ARE AUTHORIZED BY LAW TO EMPLOY PERSONAL SERVICES AND TO FIX RATES OF COMPENSATION THEREFOR WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, SHALL, UNLESS OTHERWISE SPECIFICALLY AUTHORIZED BY ME FIX SUCH RATES FOR OFFICERS AND EMPLOYEES NOW IN THE SERVICE, AS WELL AS FOR THOSE HEREAFTER APPOINTED, AT THE AMOUNTS PRESCRIBED IN THE FOLLOWING SALARY-STANDARDIZATION SCHEDULE, IN ACCORDANCE WITH THE DUTIES AND RESPONSIBILITIES OF THE POSITIONS OCCUPIED BY THEM.

A SIMILAR PROVISION APPEARS IN THE FIRST PARAGRAPH OF THE SUPERSEDING EXECUTIVE ORDER NO. 7646, DATED JUNE 21, 1934.

SECTION 10 (A) OF THE AGRICULTURAL ADJUSTMENT ACT OF MAY 12, 1933, 48 STAT. 37, PROVIDES, IN PART, AS FOLLOWS:

THE SECRETARY OF AGRICULTURE MAY APPOINT SUCH OFFICERS AND EMPLOYEES, SUBJECT TO THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923 AND ACTS AMENDATORY THEREOF, AND SUCH EXPERTS AS ARE NECESSARY TO EXECUTE THE FUNCTIONS VESTED IN HIM BY THIS TITLE; AND THE SECRETARY MAY MAKE SUCH APPOINTMENTS WITHOUT REGARD TO THE CIVIL-SERVICE LAWS OR REGULATIONS: * *

IN DECISION OF JANUARY 18, 1934, 13 COMP. GEN. 199, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE REQUIREMENTS OF SECTION 10 (A) OF THE ACT OF MAY 12, 1933, 48 STAT. 37, SUBJECTING ALL ,OFFICERS AND EMPLOYEES" OF THE AGRICULTURAL ADJUSTMENT ADMINISTRATION TO THE PROVISIONS OF THE CLASSIFICATION ACT ARE MANDATORY AND NOT OPTIONAL WITH THE ADMINISTRATIVE OFFICE AND MAY NOT BE AVOIDED MERELY BY AN ADMINISTRATIVE DESIGNATION OF THE APPOINTEES AS "EXPERTS" WHICH IS A TERM GENERALLY USED IN STATUTES REFERRING TO PERSONS EMPLOYED IN PARTICULAR LINES OF ENDEAVOR AS CONSULTANTS OR ON SPECIAL ASSIGNMENT.

OF COURSE, THE EMPLOYEES HERE INVOLVED--- JUNIOR MESSENGERS--- ARE NOT TO BE REGARDED AS ,EXPERTS.' IT IS TO BE NOTED THAT THE QUOTED DECISION WAS RENDERED THE DAY PRIOR TO THE EFFECTIVE DATE OF THE ADMINISTRATIVE ACTION PURPORTING TO ADJUST THE COMPENSATION OF THESE JUNIOR MESSENGERS FROM A RATE FIXED PURSUANT TO THE CLASSIFICATION ACT AS REQUIRED BY THE AGRICULTURAL ADJUSTMENT ACT, QUOTED ABOVE, TO A RATE FIXED BY THE EXECUTIVE ORDER SCHEDULE. OBVIOUSLY, THE EXECUTIVE ORDER REQUIRING CLASSIFICATION OF EMERGENCY POSITIONS HAD NO APPLICATION TO THESE EMPLOYEES WHOSE COMPENSATION IS REQUIRED BY LAW TO BE FIXED PURSUANT TO THE CLASSIFICATION ACT, AS AMENDED, EVEN THOUGH THE AGRICULTURAL ADJUSTMENT ADMINISTRATION IS SPECIFICALLY MENTIONED IN THE EXECUTIVE ORDER. WITH THE PLAIN TERMS OF THE LAW AND OF THE EXECUTIVE ORDER OF NOVEMBER 18, 1933, AND A DECISION OF THIS OFFICE AS GUIDES, THERE APPEARS NO REASONABLE OR ADEQUATE EXCUSE FOR THE ADMINISTRATIVE ERROR IN THIS MATTER. THE OTHER DECISIONS REFERRED TO IN YOUR LETTER HAVE NO APPLICATION.

NOTWITHSTANDING ANY HARDSHIP ON THESE LOW-SALARIED EMPLOYEES THAT MAY RESULT FROM THE ERRONEOUS ADMINISTRATIVE ACTION, THIS OFFICE HAS NO ALTERNATIVE BUT TO APPLY THE LAW AND TO DISALLOW CREDIT FOR PAYMENTS OF COMPENSATION MADE TO THE 28 EMPLOYEES IN QUESTION, AND TO ANY OTHERS, WHILE THEY REMAINED IN GRADE CU-1, IN EXCESS OF THE RATE OF $600 PER ANNUM FROM AND AFTER JANUARY 19, 1934, FOR THE FISCAL YEAR 1934, UNDER THE PROVISIONS OF THE CITED STATUTES PROHIBITING ADMINISTRATIVE PROMOTIONS, AND FOR THE FISCAL YEARS 1935 AND 1936 IN THE ABSENCE OF A COMPLIANCE WITH THE AVERAGE PROVISION, ALL OF THE EMPLOYEES APPARENTLY HAVING BEEN PAID AT THE SALARY RATE OF $840 PER ANNUM, THE MAXIMUM OF GRADE CU-1, RANGING FROM $600 TO $840 PER ANNUM.