A-95425, SEPTEMBER 6, 1938, 18 COMP. GEN. 223

A-95425: Sep 6, 1938

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ARE SEPARATE AND DISTINCT STATUTES WITH ENTIRELY DIFFERENT SCOPES AND PURPOSES. WHERE THERE IS NO AUTHORITY OF LAW FOR EXEMPTION OF A POSITION FROM CLASSIFICATION. NOTWITHSTANDING THE POSITION WAS AN "EXCEPTED POSITION" UNDER SCHEDULE A REFERRED TO IN RULE 2. OF THE CIVIL SERVICE RULES AND THAT THE APPOINTMENT WAS MADE ACCORDINGLY. WHICH VOUCHER BEARS THE NOTATION THAT THE EMPLOYEE WAS APPOINTED APRIL 14 AND ENTERED ON DUTY APRIL 16. THE NOTICE OF EXCEPTION STATED: CLASSIFICATION GRADE FOR THE POSITION IS NOT SHOWN AND THE SALARY RATE PAID IS NOT THE MINIMUM SALARY RATE OF ANY CLASSIFICATION ACT GRADE. THE REPLY THERETO IS AS FOLLOWS: REFERENCE IS MADE TO THE COPY OF NOTICE OF EXCEPTION OF THE 19TH INSTANT.

A-95425, SEPTEMBER 6, 1938, 18 COMP. GEN. 223

CLASSIFICATION - APPOINTMENTS IN EXCESS OF GRADE MINIMUM - CLASSIFICATION ACT AND CIVIL SERVICE LAWS AND REGULATIONS DISTINGUISHED THE CIVIL SERVICE LAWS AND REGULATIONS, RELATING TO APPOINTMENTS, AND THE CLASSIFICATION ACT OF 1923, RELATING TO THE FIXING OF SALARY RATES, ARE SEPARATE AND DISTINCT STATUTES WITH ENTIRELY DIFFERENT SCOPES AND PURPOSES. RULE 6, SECTION 6 OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1490, REQUIRES THAT NEW APPOINTMENTS MUST BE AT THE MINIMUM SALARY RATE OF THE GRADE IN WHICH THE POSITION HAS BEEN ADMINISTRATIVELY PLACED OR ALLOCATED, AND WHERE THERE IS NO AUTHORITY OF LAW FOR EXEMPTION OF A POSITION FROM CLASSIFICATION, CREDIT FOR SALARY PAYMENTS TO THE PERSON APPOINTED THERETO, MADE IN EXCESS OF THE MINIMUM CLASSIFICATION ACT RATE FOR THE POSITION, MUST BE DISALLOWED, NOTWITHSTANDING THE POSITION WAS AN "EXCEPTED POSITION" UNDER SCHEDULE A REFERRED TO IN RULE 2, SECTION 3, OF THE CIVIL SERVICE RULES AND THAT THE APPOINTMENT WAS MADE ACCORDINGLY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, SEPTEMBER 6, 1938:

THERE HAS BEEN RECEIVED REPLY TO NOTICE OF EXCEPTION DATED JANUARY 19, 1938, TO SUPPLEMENTAL PAY ROLL VOUCHER NO. 1844289 OF THE MAY 1937, ACCOUNTS OF G. F. ALLEN, COVERING PAYMENT OF COMPENSATION TO DEETER B. FLOHR FOR THE PERIOD APRIL 16 TO 30, 1937, AT THE RATE OF $2,400 PER ANNUM, WHICH VOUCHER BEARS THE NOTATION THAT THE EMPLOYEE WAS APPOINTED APRIL 14 AND ENTERED ON DUTY APRIL 16, 1937.

THE NOTICE OF EXCEPTION STATED:

CLASSIFICATION GRADE FOR THE POSITION IS NOT SHOWN AND THE SALARY RATE PAID IS NOT THE MINIMUM SALARY RATE OF ANY CLASSIFICATION ACT GRADE. AND THE REPLY THERETO IS AS FOLLOWS:

REFERENCE IS MADE TO THE COPY OF NOTICE OF EXCEPTION OF THE 19TH INSTANT, RELATIVE TO THE APPOINTMENT OF DEETER B. FLOHR, CAF-5 AT $2,400 PER ANNUM, EFFECTIVE APRIL 16, 1937, FOR SPECIAL AND EXCEPTIONAL SERVICES AS CHAUFFEUR AND SPECIAL EMPLOYEE IN THE SECRET SERVICE DIVISION.

IN FILLING THE POSITION TO WHICH DEETER B. FLOHR WAS APPOINTED, THE APPOINTMENT, MUST BE MADE BY SPECIAL SELECTION OF THE PERSON POSSESSING PARTICULAR QUALIFICATIONS AND RESPONSIBLE CHARACTER TO PERFORM A VERY CONFIDENTIAL SERVICE IN THE CONNECTION WITH THE PROTECTION OF THE PRESIDENT OF THE UNITED STATES. MR. FLOHR, THE APPOINTEE, NOT ONLY PERFORMS DUTIES AS A CHAUFFEUR BUT IS ALSO ENGAGED UPON OTHER HIGHLY RESPONSIBLE DUTIES IN CONNECTION WITH THE PROTECTION OF THE PRESIDENT AND THE IMMEDIATE MEMBERS OF HIS FAMILY.

IN CONSIDERATION OF MR. FLOHR'S APPLICATION FOR APPOINTMENT TO THIS IMPORTANT POSITION, HE STATED THAT HE WOULD ACCEPT APPOINTMENT PROVIDED THAT HIS ENTRANCE SALARY WAS NOT LESS THAN $2,400 PER ANNUM, AND ACCORDINGLY HIS APPOINTMENT WAS MADE BY THE U.S. CIVIL SERVICE COMMISSION, UNDER SCHEDULE A, EXCEPTED POSITIONS, PARAGRAPH 14 OF THE U.S. CIVIL SERVICE RULES AND REGULATIONS, WHICH WE FEEL IS A DEFINITE EXCEPTION TO THE REQUIREMENT THAT HIS ASSIGNMENT TO CAF-5 BE MADE AT THE MINIMUM SALARY. APPOINTMENTS OF THIS CHARACTER ARE UNUSUAL AND THE PERSON UNDER CONSIDERATION FOR GENERAL FITNESS AND RESPONSIBLE CHARACTER MUST BEAR A RIGID INVESTIGATION BEFORE ACCEPTANCE, CONSEQUENTLY WE MUST OFFER A SALARY RATING THAT WILL BE IN PROPORTION TO THE APPLICANTS QUALIFICATIONS RATHER THAN ADAPT AN EXISTING GRADE AT THE MINIMUM SALARY RATING TO FIT THE APPOINTEE.

THE CIVIL SERVICE LAWS AND REGULATIONS, HAVING TO DO WITH APPOINTMENTS, AND THE CLASSIFICATION ACT OF 1923, HAVING TO DO WITH THE FIXING OF SALARY RATES, ARE SEPARATE AND DISTINCT STATUTES WITH ENTIRELY DIFFERENT SCOPES AND PURPOSES.

RULE 2, SECTION 3 OF THE CIVIL SERVICE RULES RELATING TO APPOINTMENTS IN THE CIVIL SERVICE PROVIDES:

APPOINTMENT WITHOUT EXAMINATION.--- APPOINTMENTS TO THE EXCEPTED POSITIONS NAMED IN SCHEDULE A OF THESE RULES MAY BE MADE WITHOUT EXAMINATION OR UPON NONCOMPETITIVE EXAMINATION. THE PROPER APPOINTING OFFICER, MAY, HOWEVER, FILL ANY POSITION NAMED IN SCHEDULE A OR SCHEDULE B, OR ANY OTHER EXCEPTED POSITION, AS CLASSIFIED POSITIONS ARE FILLED, IN WHICH CASE THE PERSON SO APPOINTED WILL BE ELIGIBLE FOR TRANSFER, REINSTATEMENT, OR PROMOTION TO POSITIONS IN THE CLASSIFIED SERVICE, SUBJECT TO THE PROVISIONS OF THESE RULES. THE INCUMBENT OF ANY EXCEPTED POSITION SO FILLED WILL NOT BE ENTITLED TO THE PROTECTION AGAINST REMOVAL AFFORDED BY THESE RULES; NOR WILL THE INCUMBENT OF AN EXCEPTED-BY-LAW POSITION SO FILLED BE ENTITLED TO THE BENEFITS OF THE CIVIL SERVICE RETIREMENT ACT SOLELY BY VIRTUE OF SUCH EMPLOYMENT.

PARAGRAPH 14, SUBDIVISION 1 OF SCHEDULE A OF THE CIVIL SERVICE RULES AND REGULATIONS REFERRED TO IN THE REPLY TO THE EXCEPTION, QUOTED ABOVE, EXCEPTS FROM EXAMINATION UNDER RULE 2, SECTION 3, THE POSITIONS REFERRED TO UNDER SAID PARAGRAPH 14. HOWEVER, RULE 6 OF SECTION 6 OF THE ORIGINAL CLASSIFICATION ACT OF 1923, 42 STAT. 1490, PROVIDES:

ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.

THE PROVISIONS OF RULE 2, SECTION 3, SUPRA, MERELY AUTHORIZE THE MAKING OF APPOINTMENTS TO SUCH EXCEPTED POSITIONS WITHOUT EXAMINATION AND DO NOT IMPLY AN AUTHORITY TO MAKE SUCH APPOINTMENTS AT A SALARY RATE FIXED WITHOUT REGARD TO OR IN CONTRAVENTION OF THE PROVISIONS OF THE CLASSIFICATION ACT. ACCORDING TO THE ABOVE QUOTED REPLY TO THE EXCEPTION TO THE APRIL PAY ROLL, AND AS APPEARS FROM SUBSEQUENT PAY ROLLS ON FILE IN THIS OFFICE, THE CLASSIFICATION GRADE TO WHICH THE POSITION WAS ASSIGNED IS CAF-5, THE MINIMUM SALARY FOR WHICH IS $2,000 PER ANNUM. SEE ACT OF MAY 28, 1928, 45 STAT. 780.

UNDER THE PLAIN TERMS OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923, NEW APPOINTMENTS TO POSITIONS MUST BE AT THE MINIMUM SALARY RATE OF THE GRADE IN WHICH THE POSITION HAS BEEN ADMINISTRATIVELY PLACED OR ALLOCATED. 14 COMP. GEN. 183; 16 COMP. GEN. 1107; AND A-94259, MAY 16, 1938. ACCORDINGLY, SINCE THE PRESENT RECORD DOES NOT DISCLOSE ANY AUTHORITY OF LAW FOR EXEMPTION OF THE POSITION HERE INVOLVED FROM CLASSIFICATION AND SINCE THE APPOINTMENT WAS MADE AT A SALARY RATE IN EXCESS OF THE MINIMUM RATE OF THE SALARY SCHEDULE OF THE GRADE TO WHICH THE POSITION WAS ALLOCATED, CREDIT FOR SALARY PAYMENTS MADE IN EXCESS OF THE MINIMUM RATE FOR THE POSITION MUST BE DISALLOWED.

WHILE THE EXCEPTIONAL QUALIFICATIONS AND DUTIES REFERRED TO IN THE REPLY TO THE EXCEPTION MIGHT BE FOR CONSIDERATION BY THE CIVIL SERVICE COMMISSION IN DETERMINING THE CLASSIFICATION GRADE TO WHICH THE POSITION HERE INVOLVED SHOULD BE ALLOCATED, THEY AFFORD NO LEGAL BASIS OR JUSTIFICATION FOR FIXING THE INITIAL SALARY UNDER A NEW APPOINTMENT AT A RATE IN EXCESS OF THE MINIMUM RATE FIXED BY LAW FOR THE CLASSIFICATION GRADE TO WHICH THE POSITION IS ALLOCATED.