A-95185, JULY 13, 1938, 18 COMP. GEN. 35

A-95185: Jul 13, 1938

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WHICH IS PERMANENT LEGISLATION. IS NOT EFFECTIVE IN THE CASE OF AN EMPLOYEE WHOSE FIELD POSITION. IS ADMINISTRATIVELY REALLOCATED OR READJUSTED TO A LOWER GRADE. IS AS FOLLOWS: IT HAS COME TO MY ATTENTION THAT AN EXCEPTION HAS BEEN REPORTED BY YOUR OFFICE ON PAYROLL VOUCHER NO. 6-33263. WHOSE POSITION WAS REALLOCATED FROM CAF-14 TO CAF-13 EFFECTIVE AUGUST 10. 15 ID. 102 AND 17 ID. 460 WERE QUOTED AS AUTHORITY FOR THE EXCEPTION. SLATON WAS RECEIVING $6. 500 PER ANNUM AT THE TIME THE REALLOCATION OF POSITION WAS EFFECTED AND THIS WAS ONE STEP ABOVE THE MAXIMUM FOR GRADE CAF-13. NO DEDUCTION IN SALARY WAS MADE. WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 17 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1934 APPROVED JUNE 16.

A-95185, JULY 13, 1938, 18 COMP. GEN. 35

CLASSIFICATION - REALLOCATION DOWNWARD OF FIELD POSITION - APPLICABILITY OF JUNE 16, 1933, ACT SAVING CLAUSE THE SAVING CLAUSE OF SECTION 17 OF THE ACT OF JUNE 16, 1933, 48 STAT. 308, WHICH IS PERMANENT LEGISLATION, DOES NOT EXTEND TO THE FIELD SERVICE THE BENEFIT OF THE SAVING CLAUSE APPEARING IN THE PROVISO TO SECTION 4 OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 3 OF THE BROOKHART SALARY ACT, APPLICABLE ONLY IN THE DEPARTMENTAL SERVICE, AND IS NOT EFFECTIVE IN THE CASE OF AN EMPLOYEE WHOSE FIELD POSITION, ONCE ALLOCATED UNDER THE PROVISIONS OF THE ACTS TO WHICH THE CLAUSE APPLIES, IS ADMINISTRATIVELY REALLOCATED OR READJUSTED TO A LOWER GRADE, THE CLAUSE BEING APPLICABLE ONLY TO THE INITIAL ADMINISTRATIVE ACTION IN ALLOCATING THE FIELD POSITION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JULY 13, 1938:

YOUR LETTER OF MAY 23, 1938, IS AS FOLLOWS:

IT HAS COME TO MY ATTENTION THAT AN EXCEPTION HAS BEEN REPORTED BY YOUR OFFICE ON PAYROLL VOUCHER NO. 6-33263, COVERING THE PERIOD SEPTEMBER 16 TO SEPTEMBER 30, 1937, PAID BY G. F. ALLEN UNDER SYMBOL 11569.

THIS EXCEPTION COVERS AN ALLEGED ERRONEOUS PAYMENT TO JOHN M. SLATON, JR., MANAGER AT VETERANS' ADMINISTRATION FACILITY, ATLANTA, GEORGIA, WHOSE POSITION WAS REALLOCATED FROM CAF-14 TO CAF-13 EFFECTIVE AUGUST 10, 1937, NO CHANGE IN SALARY HAVING BEEN MADE, AND 9 COMP. GEN. 193, 11 ID. 321, ID. 352, 15 ID. 102 AND 17 ID. 460 WERE QUOTED AS AUTHORITY FOR THE EXCEPTION.

ALTHOUGH MR. SLATON WAS RECEIVING $6,500 PER ANNUM AT THE TIME THE REALLOCATION OF POSITION WAS EFFECTED AND THIS WAS ONE STEP ABOVE THE MAXIMUM FOR GRADE CAF-13, NO DEDUCTION IN SALARY WAS MADE, WHICH IS IN ACCORDANCE WITH THE PROVISIONS OF SECTION 17 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1934 APPROVED JUNE 16, 1933, WHICH ARE AS FOLLOWS:

"THAT SECTION 3 OF THE ACT OF CONGRESS APPROVED MAY 28, 1928, ENTITLED "AN ACT TO AMEND THE SALARY RATES CONTAINED IN THE COMPENSATION SCHEDULES OF THE ACT OF MARCH 4, 1923, ENTITLED "AN ACT TO PROVIDE FOR THE CLASSIFICATION OF CIVILIAN POSITIONS WITHIN THE DISTRICT OF COLUMBIA AND IN THE FIELD SERVICES" " AS AMENDED BY THE ACT OF JULY 3, 1930, BE FURTHER AMENDED BY ADDING THERETO THE FOLLOWING: "PROVIDED, THAT IN ALL CASES WHERE, SINCE DECEMBER 6, 1924, IN SUCH ADJUSTMENT THE POSITION OCCUPIED BY AN EMPLOYEE HAS BEEN OR SHALL BE ALLOCATED TO A GRADE WITH A MAXIMUM SALARY BELOW THE SALARY RECEIVED BY THE INCUMBENT, THE RATE OF PAY FIXED FOR SUCH POSITION PRIOR TO SUCH ALLOCATION MAY BE PAID AFTER THE DATE OF THE ENACTMENT OF THIS ACT SO LONG AS THE POSITION IS HELD BY THE INCUMBENT OCCUPYING IT AT THE TIME OF SUCH ALLOCATION AND THE COMPTROLLER GENERAL OF THE UNITED STATES IS AUTHORIZED AND DIRECTED TO ALLOW CREDIT IN DISBURSING OFFICERS' ACCOUNTS FOR ALL PAYMENTS HERETOFORE MADE AT SUCH HIGHER RATES.'"

IT IS NOTED THAT THE EXCEPTION IS BASED ON DECISIONS RENDERED ON FEBRUARY 25, 1932, MARCH 17, 1932, AND NOVEMBER 9, 1929, WHICH DATES WERE PRIOR TO THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1934 AND, THEREFORE, NOT APPLICABLE TO THE CASE. THE DECISION OF THE COMPTROLLER GENERAL DATED AUGUST 6, 1935, WHICH WAS ALSO CITED, REFERS TO THE TRANSFER OR REAPPOINTMENT OF AN EMPLOYEE FROM AN EMERGENCY POSITION CLASSIFIED UNDER THE EXECUTIVE ORDER TO A REGULAR POSITION CLASSIFIED UNDER CLASSIFICATION ACT OF 1923, AS AMENDED. IT WAS HELD (QUOTING FROM THE SYLLABUS):

"THE TRANSFER OR REAPPOINTMENT OF AN EMPLOYEE FROM AN EMERGENCY POSITION CLASSIFIED UNDER EXECUTIVE ORDER TO A REGULAR POSITION CLASSIFIED UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, NEED NOT BE REGARDED AS A NEW APPOINTMENT REQUIRING PAYMENT OF THE MINIMUM SALARY RATE OF THE GRADE TO WHICH TRANSFERRED, BUT THERE MAY BE PAID A SALARY RATE PRESCRIBED BY THE CLASSIFICATION ACT NOT IN EXCESS OF THE RATE RECEIVED UNDER THE EXECUTIVE ORDER.'

IT APPEARS THAT THE FACTS IN THE CASE CITED ABOVE ARE NOT COMPARABLE TO THE CASE AT ISSUE AS THE RATE OF PAY WAS ESTABLISHED UNDER THE EXECUTIVE ORDER NO. 7070 DATED JUNE 12, 1935, AND LATER CLASSIFIED TO P AND S-5 UNDER THE PROVISIONS OF THE CLASSIFICATION ACT. NEITHER IS THE DECISION OF DECEMBER 2, 1937 (17 COMP. GEN. 460), CONSIDERED APPLICABLE TO THE ONE AT ISSUE.

THE POSITION OF MANAGER AT ATLANTA, GEORGIA, WAS ADMINISTRATIVELY ALLOCATED TO CAF-14 JULY 1, 1930, AND WITHOUT CHANGE IN DUTIES, BUT UPON REVIEW, IT WAS REALLOCATED ADMINISTRATIVELY TO GRADE CAF-13. BOTH ALLOCATIONS WERE MADE UNDER THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED. UNDER THE PROVISIONS OF SECTION 17 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1934, APPROVED JUNE 16, 1933, SUPRA, IT IS FELT THAT A DEMOTION TO THE MAXIMUM OF GRADE CAF-13 IS NOT REQUIRED AS THE PURPOSE OF THE ACT WAS TO AFFORD RELIEF IN CASES SIMILAR TO THE ONE IN QUESTION.

INASMUCH AS THE DECISIONS CITED IN THE EXCEPTION ARE NOT CONSIDERED APPLICABLE IN THE CASE OF MR. JOHN M. SLATON AND THE ACTION TAKEN WILL MATERIALLY AFFECT A NUMBER OF SIMILAR CASES, IT IS REQUESTED THAT THE MATTER BE GIVEN YOUR FURTHER CONSIDERATION.

SECTION 17 OF THE ACT OF JUNE 16, 1933, 48 STAT. 308, QUOTED IN YOUR LETTER, WHICH IS PERMANENT LEGISLATION, AMENDED SECTION 3 OF THE WELCH ACT OF MAY 28, 1928, 45 STAT. 785, AND SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, AUTHORIZING AND REQUIRING ADJUSTMENTS IN THE SALARY RATES OF FIELD POSITIONS TO CORRESPOND SO FAR AS MAY BE PRACTICABLE TO RATES ESTABLISHED BY THE CLASSIFICATION ACT, AS AMENDED, FOR POSITIONS IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA, BY SAVING FIELD EMPLOYEES FROM LOSS OF SALARY WHEN THEIR FIELD POSITIONS NOT THERETOFORE ALLOCATED ARE ADMINISTRATIVELY ADJUSTED OR ALLOCATED TO A GRADE WITH A MAXIMUM SALARY RATE BELOW THE SALARY RECEIVED BY THE EMPLOYEE AT THE TIME OF SUCH ADJUSTMENT OR ALLOCATION. THE STATUTE DOES NOT EXTEND TO THE FIELD SERVICE THE BENEFIT OF THE SAVING CLAUSE APPEARING IN THE PROVISO TO SECTION 4 OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 3 OF THE BROOKHART SALARY ACT, APPLICABLE ONLY IN THE DEPARTMENTAL SERVICE (9 COMP. GEN. 352), NOR IS THE STATUTE TO BE REGARDED AS SAVING AN EMPLOYEE FROM LOSS OF SALARY WHEN HIS FIELD POSITION ONCE ALLOCATED PURSUANT TO SECTION 3 OF THE ACT OF MAY 28, 1928, OR SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, IS ADMINISTRATIVELY REALLOCATED OR READJUSTED TO A LOWER GRADE. IN OTHER WORDS, SECTION 17 OF THE ACT OF JUNE 16, 1933, SUPRA, RELATES ONLY TO THE INITIAL ACTION OF THE ADMINISTRATIVE OFFICE IN ALLOCATING OR ADJUSTING THE SALARY RATE OF A FIELD POSITION PURSUANT TO SECTION 3 OF THE WELCH ACT OR SECTION 2 OF THE BROOKHART SALARY ACT AND SAVES THE EMPLOYEE FROM LOSS OF THE UNCLASSIFIED SALARY RATE RECEIVED PRIOR TO SUCH INITIAL ACTION.

IN THE PRESENT CASE IT IS UNDERSTOOD THE EMPLOYEE'S SALARY WAS $5,200 PER ANNUM ON JUNE 30, 1930, PRIOR TO THE INITIAL ALLOCATION MADE EFFECTIVE JULY 1, 1930, AND THAT THE REALLOCATION FROM GRADE CAF 14 TO GRADE CAF-13 WAS MADE EFFECTIVE AUGUST 10, 1937. IF SO, THE LEGAL SALARY RATE DUE AND PAYABLE TO MR. SLATON FROM AND AFTER SAID LATTER DATE WAS $6,400 THE MAXIMUM SALARY RATE OF CAF-13, WHICH IS IN EXCESS OF THE RATE, $5,200, HE WAS RECEIVING BEFORE THE ORIGINAL ALLOCATION TO GRADE CAF-14. ACCORDINGLY, THE AUDIT ACTION IS SUSTAINED. SEE 17 COMP. GEN. 715, AND DECISIONS THEREIN CITED.

MR. SLATON SHOULD BE REQUIRED TO REFUND THE DIFFERENCE BETWEEN $6,500 AND $6,400 PER ANNUM RECEIVED BY HIM FOR THE PERIOD FROM AND AFTER AUGUST 10, 1937.