A-90638, DECEMBER 2, 1937, 17 COMP. GEN. 460

A-90638: Dec 2, 1937

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COMPENSATION - ORIGINAL CLASSIFICATION OF POSITION DURING TENURE OF INCUMBENT - APPLICABILITY OF BROOKHART ACT SAVING CLAUSE AN EMPLOYEE WHO WAS APPOINTED AS AN EXPERT IN THE FEDERAL SURPLUS COMMODITIES CORPORATION WITHOUT REGARD TO THE CLASSIFICATION ACT. WHOSE POSITION WAS LATER REQUIRED TO BE CLASSIFIED BY OPERATION OF THE ACT OF JUNE 28. IS NOT ENTITLED TO CONTINUE TO RECEIVE A SALARY RATE IN EXCESS OF THE MAXIMUM RATE OF THE GRADE IN WHICH HIS POSITION WAS ALLOCATED BY THE CIVIL SERVICE COMMISSION. IS AS FOLLOWS: MR. QUIGG WAS APPOINTED WITHOUT REGARD TO THE CLASSIFICATION ACT AS AN EXPERT IN THE FEDERAL SURPLUS COMMODITIES CORPORATION. AFTER THE FEDERAL SURPLUS COMMODITIES CORPORATION WAS PUT UNDER THE DIRECTION OF THE SECRETARY OF AGRICULTURE.

A-90638, DECEMBER 2, 1937, 17 COMP. GEN. 460

COMPENSATION - ORIGINAL CLASSIFICATION OF POSITION DURING TENURE OF INCUMBENT - APPLICABILITY OF BROOKHART ACT SAVING CLAUSE AN EMPLOYEE WHO WAS APPOINTED AS AN EXPERT IN THE FEDERAL SURPLUS COMMODITIES CORPORATION WITHOUT REGARD TO THE CLASSIFICATION ACT, AND WHOSE POSITION WAS LATER REQUIRED TO BE CLASSIFIED BY OPERATION OF THE ACT OF JUNE 28, 1937, PLACING THE CORPORATION UNDER THE DIRECTION OF THE SECRETARY OF AGRICULTURE, IS NOT ENTITLED TO CONTINUE TO RECEIVE A SALARY RATE IN EXCESS OF THE MAXIMUM RATE OF THE GRADE IN WHICH HIS POSITION WAS ALLOCATED BY THE CIVIL SERVICE COMMISSION, AS THE SAVING CLAUSE IN SECTION 4 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, RELATES ONLY TO THE REVIEW OF ALLOCATIONS OF POSITIONS WHICH HAD ORIGINALLY BEEN CLASSIFIED PURSUANT TO THE CLASSIFICATION ACT, AND NOT TO ORIGINAL ALLOCATION OF POSITIONS, THE SALARIES OF WHICH PREVIOUSLY HAD NOT BEEN REQUIRED TO BE FIXED, AND WHICH HAD NOT BEEN FIXED, PURSUANT TO THE ACT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, DECEMBER 2, 1937:

YOUR LETTER OF NOVEMBER 16, 1937, IS AS FOLLOWS:

MR. WILLIAM H. QUIGG WAS APPOINTED WITHOUT REGARD TO THE CLASSIFICATION ACT AS AN EXPERT IN THE FEDERAL SURPLUS COMMODITIES CORPORATION, AT A SALARY OF $5,200 PER ANNUM. AFTER THE FEDERAL SURPLUS COMMODITIES CORPORATION WAS PUT UNDER THE DIRECTION OF THE SECRETARY OF AGRICULTURE, ALL THE POSITIONS IN THAT ORGANIZATION WERE REQUIRED, UNDER THE ACT OF JUNE 28, 1937, TO BE "IN ACCORDANCE WITH THE PROVISIONS OF LAW APPLICABLE TO THE EMPLOYMENT OF PERSONS BY THE AGRICULTURAL ADJUSTMENT ADMINISTRATION.' MR. QUIGG'S DUTIES WERE, IN PURSUANCE THEREOF, ALLOCATED BY THE CIVIL SERVICE COMMISSION TO GRADE CAF-9, THE MAXIMUM SALARY OF WHICH IS $3,800 PER ANNUM.

THIS DEPARTMENT WOULD LIKE TO KNOW WHETHER MR. QUIGG'S SALARY CAN BE FIXED ADMINISTRATIVELY AT AN AMOUNT GREATER THAN THE MAXIMUM OF GRADE CAF- 9. THE QUESTION, OF COURSE, ARISES IN CONNECTION WITH THE PROVISO IN SECTION 4 OF THE ACT OF JULY 3, 1930 (46 STAT. 1005), MAKING IT POSSIBLE FOR THE INCUMBENT OF A POSITION TO RECEIVE THE SAME SALARY, DESPITE A REDUCTION IN GRADE, AS LONG AS HE HOLDS SUCH POSITION.

MR. QUIGG'S POSITION AS AN EXPERT AT $5,200 PER ANNUM ORIGINATED IN THE COMMODITIES PURCHASE SECTION OF THE AGRICULTURAL ADJUSTMENT ADMINISTRATION. THIS ENTIRE SECTION WAS LATER TRANSFERRED TO AND MERGED WITH THE FEDERAL SURPLUS COMMODITIES CORPORATION, A PRIVATE CORPORATION, CHARTERED IN DELAWARE, AND PAYING ITS EMPLOYEES EXECUTIVE ORDER RATES. THE FEDERAL SURPLUS COMMODITIES CORPORATION WAS TRANSFERRED TO THE DEPARTMENT OF AGRICULTURE ON JULY 1, 1937, AND THE EMPLOYEES CLASSIFIED BY THE CIVIL SERVICE COMMISSION SEVERAL WEEKS LATER. IN THE INTERIM THE EMPLOYEES WERE PAID EXECUTIVE-ORDER RATES. THE QUESTION ARISES AS TO WHETHER THIS CONSTITUTED AN ADMINISTRATIVE ALLOCATION WHICH WOULD COME WITHIN THE TERMS OF THE PROVISO OF SECTION 4 OF THE ACT OF JULY 3, 1930, SUPRA.

WILL YOU KINDLY RENDER ADVICE ON THE FOREGOING QUESTION AT YOUR EARLIEST CONVENIENCE?

SECTION 4 OF THE ORIGINAL CLASSIFICATION ACT OF 1923, APPROVED MARCH 4, 1923, 42 STAT. 1489, 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, AMENDING THE ORIGINAL CLASSIFICATION ACT, PROVIDES 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.

THIS SECTION DOES NOT SUPERSEDE, BUT IS SUPPLEMENTAL TO, SECTION 4 OF THE ORIGINAL STATUTE.

IN DECISION OF MARCH 17, 1932, 11 COMP. GEN. 352, 353, IT WAS HELD:

SECTION 4 OF THE ORIGINAL CLASSIFICATION ACT, AND AS AMENDED, PRESCRIBES A PROCEDURE INCIDENT TO THE ALLOCATION AND REALLOCATION OF POSITIONS FOR THE GUIDANCE OF THE PERSONNEL CLASSIFICATION BOARD, WHICH HAS JURISDICTION ONLY IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA. HENCE, THE SAVING CLAUSE IN THE PROVISO TO THE SECTION CAN HAVE NO APPLICATION TO EMPLOYEES IN POSITIONS THE ALLOCATION OF WHICH IS NOT SUBJECT TO APPROVAL BY THE PERSONNEL CLASSIFICATION BOARD. THE BASIS FOR THE SAVING CLAUSE WAS THE JOINT JURISDICTION OF THE ADMINISTRATIVE OFFICE AND THE PERSONNEL CLASSIFICATION BOARD IN THE ALLOCATION AND REALLOCATION OF POSITIONS IN THE DEPARTMENTAL SERVICE AND TO PREVENT REDUCTION IN THE SALARY RATES OF EMPLOYEES REMAINING IN THE SAME POSITION BY THE FINAL ACTION OF AN AGENCY OUTSIDE THE ADMINISTRATIVE OFFICE IN WHICH THE EMPLOYEE IS SERVING. AS TO THE FIELD SERVICE, WHERE THE ALLOCATION AND REALLOCATION OF POSITIONS, PURSUANT TO THE PRINCIPLES OF CLASSIFICATION, ARE EXCLUSIVELY AN ADMINISTRATIVE MATTER, THERE IS NOT PRESENT THE CONDITIONS WHICH PROMPTED THE ENACTMENT OF THE SAVING CLAUSE IN QUESTION.

SECTION 4 OF THE ORIGINAL CLASSIFICATION ACT PROVIDES THE GENERAL PROCEDURE FOR THE ALLOCATION AND REALLOCATION OF POSITIONS IN THE DISTRICT OF COLUMBIA SUBJECT TO THE ACT. SECTION 4 OF THE BROOKHART SALARY ACT WAS ENACTED TO PROVIDE A PROCEDURE WHEREBY THE PERSONNEL CLASSIFICATION BOARD, NOW THE CIVIL SERVICE COMMISSION, MIGHT REVIEW AND REVISE ON ITS OWN MOTION ALLOCATIONS THERETOFORE MADE PURSUANT TO THE CLASSIFICATION ACT, AS AMENDED. HENCE, THE SAVING CLAUSE IN THE LATTER PROVISION RELATES ONLY TO THE REVIEW OF ALLOCATIONS OF POSITIONS WHICH HAD ORIGINALLY BEEN CLASSIFIED PURSUANT TO THE ACT, NOT TO ORIGINAL ALLOCATIONS OF POSITIONS, THE SALARIES OF WHICH PREVIOUSLY HAD NOT BEEN REQUIRED TO BE FIXED, AND WHICH HAD NOT BEEN FIXED, PURSUANT TO THE ACT. SECTION 4 OF THE ORIGINAL CLASSIFICATION ACT IS FOR APPLICATION IN THE ORIGINAL ACTION OF AN ADMINISTRATIVE OFFICE AND THE CIVIL SERVICE COMMISSION IN CLASSIFYING A POSITION.

IN ORDER THAT AN EMPLOYEE MAY BE ENTITLED TO CONTINUE TO RECEIVE A SALARY RATE IN EXCESS OF THE MAXIMUM RATE OF THE GRADE IN WHICH HIS POSITION HAS BEEN FINALLY ALLOCATED BY THE CIVIL SERVICE COMMISSION, PURSUANT TO THE PROVISO TO SAID SECTION 4 OF THE BROOKHART SALARY ACT, THE HIGHER SALARY PREVIOUSLY PAID MUST HAVE BEEN FIXED PURSUANT TO AN ALLOCATION OF THE SAME POSITION AS FINALLY APPROVED BY THE CIVIL SERVICE COMMISSION.

AS THE RATE OF $5,200 PER ANNUM PREVIOUSLY PAID TO MR. QUIGG WAS NOT REQUIRED TO BE, AND WAS NOT, FIXED PURSUANT TO THE CLASSIFICATION ACT ON THE BASIS OF A FINAL APPROVAL OF AN ALLOCATION OF A POSITION BY THE CIVIL SERVICE COMMISSION, THE SAVING CLAUSE IN SECTION 4 OF THE BROOKHART SALARY ACT HAS NO APPLICATION TO THIS CASE. IF APPROVED ADMINISTRATIVELY, PAYMENT OF THE SALARY RATE OF $3,800 PER ANNUM, THE MAXIMUM RATE OF GRADE CAF-9, WILL NOT BE QUESTIONED. 15 COMP. GEN. 102; ID. 797.