A-88703, SEPTEMBER 22, 1937, 17 COMP. GEN. 272

A-88703: Sep 22, 1937

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"POSITIONS WHERE THE SALARY IS LESS THAN $2. " DOES NOT PROHIBIT PAYMENT OF AN INCREASE BY REASON OF REALLOCATION IF THE SALARY RATE OF THE EMPLOYEE PRIOR TO THE REALLOCATION OF HIS POSITION IS "LESS THAN $2. IS AS FOLLOWS: THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA REQUEST YOUR DECISION TO THE QUESTION HEREINAFTER SUBMITTED. THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO THE REALLOCATION OF POSITIONS WHERE THE SALARY IS LESS THAN $2. THE LIMITATION WAS NOT APPLIED TO THE REALLOCATION OF POSITIONS WHERE THE SALARY WAS LESS THAN $2. IN CONFERENCE IT WAS RESTORED AND THE LIMITATION WAS RAISED FROM $2. THE QUESTION HAS ARISEN WITH RESPECT TO THE REALLOCATION OF A POSITION WHERE THE PRESENT SALARY IS $2.

A-88703, SEPTEMBER 22, 1937, 17 COMP. GEN. 272

APPROPRIATIONS - LIMITATIONS - SALARY INCREASES BY REASON OF REALLOCATIONS - DISTRICT OF COLUMBIA EMPLOYEES SECTION 7 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR 1938 (50 STAT. 394) PROVIDING THAT THE APPROPRIATIONS CONTAINED IN THE ACT SHALL NOT BE USED FOR PAYMENT OF ANY INCREASE IN THE SALARY OF ANY OFFICER OR EMPLOYEE BY REASON OF THE REALLOCATION OF HIS POSITION TO A HIGHER GRADE AFTER JUNE 30, 1937, BUT EXCEPTING, BY PROVISO,"POSITIONS WHERE THE SALARY IS LESS THAN $2,600 PER ANNUM," DOES NOT PROHIBIT PAYMENT OF AN INCREASE BY REASON OF REALLOCATION IF THE SALARY RATE OF THE EMPLOYEE PRIOR TO THE REALLOCATION OF HIS POSITION IS "LESS THAN $2,600 PER ANNUM" REGARDLESS OF THE RATE PAYABLE AFTER REALLOCATION, THE EXEMPTION PROVISO RELATING TO SALARIES WHICH MAY BE INCREASED BY REASON OF REALLOCATIONS RATHER THAN TO THE RATE TO WHICH SALARIES MAY BE INCREASED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, SEPTEMBER 22, 1937:

YOUR LETTER OF AUGUST 31, 1937, IS AS FOLLOWS:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA REQUEST YOUR DECISION TO THE QUESTION HEREINAFTER SUBMITTED.

SECTION 7 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1938, APPROVED JUNE 29, 1937, READS AS FOLLOWS:

"NO PART OF THE APPROPRIATIONS CONTAINED IN THIS ACT SHALL BE USED TO PAY ANY INCREASE IN THE SALARY OF ANY OFFICER OR EMPLOYEE BY REASON OF THE REALLOCATION OF THE POSITION OF SUCH OFFICER OR EMPLOYEE TO A HIGHER GRADE AFTER JUNE 30, 1937, BY THE CIVIL SERVICE COMMISSION, AND SALARIES PAID ACCORDINGLY SHALL BE PAYMENT IN FULL: PROVIDED, THAT THE FOREGOING LIMITATION SHALL NOT APPLY TO THE REALLOCATION OF POSITIONS WHERE THE SALARY IS LESS THAN $2,600 PER ANNUM.'

AS THIS PROVISION FIRST APPEARED IN THE DISTRICT APPROPRIATION BILL FOR 1938 AS PASSED BY THE HOUSE OF REPRESENTATIVES, THE LIMITATION WAS NOT APPLIED TO THE REALLOCATION OF POSITIONS WHERE THE SALARY WAS LESS THAN $2,000 PER ANNUM. THE SENATE STRUCK THIS LEGISLATIVE PROVISION FROM THE BILL, BUT IN CONFERENCE IT WAS RESTORED AND THE LIMITATION WAS RAISED FROM $2,000 TO $2,600.

THE QUESTION HAS ARISEN WITH RESPECT TO THE REALLOCATION OF A POSITION WHERE THE PRESENT SALARY IS $2,300, THE POSITION BEING ALLOCATED IN CAF- 6. THE PROVISION OF LAW REFERRED TO DOES NOT, OF COURSE, PREVENT THE CIVIL SERVICE COMMISSION FROM APPROVING REALLOCATIONS IN EXCESS OF A SALARY OF $2,600, THE LIMITATION BEING UPON THE PAYMENT OF SALARY. UNDER A CONTEMPLATED REALLOCATION OF THE POSITION REFERRED TO FROM CAF-6 TO CAF- 7, WHICH WOULD CARRY A MINIMUM SALARY OF $2,600, THE QUESTION ARISES WHETHER OR NOT, IN VIEW OF SECTION 7 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT OF 1938, THIS SALARY COULD BE PAID. IN OTHER WORDS, IS IT THE MEANING OF THE LAW THAT A SALARY UNDER A REALLOCATION CAN BE PAID UP TO AND INCLUDING THE SUM OF $2,600?

YOUR DECISION TO THIS QUESTION WILL BE APPRECIATED.

THE WORDS "LESS THAN $2,600 PER ANNUM," IN THE PROVISO TO SECTION 7 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1938, QUOTED IN YOUR LETTER, CANNOT BE REGARDED AS MEANING "UP TO AND INCLUDING THE SUM OF $2,600.' HOWEVER, THE PROVISION QUOTED IN YOUR LETTER WOULD NOT APPEAR TO PROHIBIT THE PAYMENT OF THE INCREASE FROM $2,300 TO $2,600 IN THE CASE REFERRED TO.

THE RATE OF $2,600 PER ANNUM IS THE MAXIMUM OF ONE GRADE, THE AVERAGE OF ANOTHER, AND THE MINIMUM OF STILL ANOTHER. IT MAY BE PRESUMED THAT THE CONGRESS HAD THIS IN MIND WHEN IT FIXED THE EXCEPTION FROM THE PROHIBITION AGAINST INCREASES BY REASON OF REALLOCATIONS ON THE BASIS OF A SALARY RATE INSTEAD OF ON THE BASIS OF A GRADE.

SINCE THE "SALARY" WHICH THE STATUTE PROVIDES SHALL NOT BE INCREASED BY REASON OF A REALLOCATION CLEARLY IS THE SALARY RECEIVED PRIOR TO THE REALLOCATION, IT IS BUT REASONABLE TO CONCLUDE, IN THE ABSENCE OF ANY OTHER EXPRESSED INTENTION, THAT THE TERM "SALARY" APPEARING IN THE PROVISO ALSO REFERS TO THE SALARY RECEIVED PRIOR TO REALLOCATION AND THAT THE INHIBITION OF THE STATUTE AGAINST PAYMENT OF INCREASES DOES NOT APPLY IF THE SALARY RATE OF THE EMPLOYEE PRIOR TO THE REALLOCATION OF HIS POSITION "IS LESS THAN $2,600 PER ANNUM," REGARDLESS OF THE RATE PAYABLE AFTER REALLOCATION. IN OTHER WORDS, THE EXEMPTION OF THE PROVISO RELATES TO THE SALARIES WHICH MAY BE INCREASED BY REASON OF A REALLOCATION RATHER THAN TO THE RATE TO WHICH SALARIES MAY BE INCREASED.

AS THE SALARY OF THE EMPLOYEE IN THE CASE PRESENTED IS $2,300 PER ANNUM, THE SALARY RATE OF $2,600 PER ANNUM--- THE MINIMUM OF THE GRADE TO WHICH REALLOCATED--- MAY BE PAID FROM THE EFFECTIVE DATE OF THE REALLOCATION OF THE POSITION.