A-9594, MAY 22, 1925, 4 COMP. GEN. 981

A-9594: May 22, 1925

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CLASSIFICATION OF CIVILIAN EMPLOYEES - VACANT POSITIONS VACANT OR NEWLY CREATED POSITIONS MAY NOT BE INCLUDED IN DETERMINING THE AVERAGE SALARY OF PERSONS ACTUALLY EMPLOYED IN THE GRADE UNLESS AND UNTIL THE SAID POSITIONS ARE FILLED BY APPOINTMENT. 1925: I HAVE YOUR LETTER OF MAY 8. HAVE BEEN AUTHORIZED AND DULY ALLOCATED BY THE PERSONNEL CLASSIFICATION BOARD AND APPROPRIATIONS HAVE BEEN MADE THEREFOR. IS THE SALARY AVERAGE WITHIN THE GRADE DETERMINED BY THE ACTUAL NUMBER OF PERSONS NOW EMPLOYED IN THAT GRADE OR MAY THE TOTAL NUMBER OF AUTHORIZED POSITIONS BE TAKEN IN COMPUTING THE AVERAGE? THE FACTS ARE THESE: ON MARCH 3. A POSITION OF PRINCIPAL VALUATION EXAMINER WAS CREATED AT A SALARY OF $7.

A-9594, MAY 22, 1925, 4 COMP. GEN. 981

CLASSIFICATION OF CIVILIAN EMPLOYEES - VACANT POSITIONS VACANT OR NEWLY CREATED POSITIONS MAY NOT BE INCLUDED IN DETERMINING THE AVERAGE SALARY OF PERSONS ACTUALLY EMPLOYED IN THE GRADE UNLESS AND UNTIL THE SAID POSITIONS ARE FILLED BY APPOINTMENT, TRANSFER, OR PROMOTION, THE SALARY OF ANY VACANT POSITION WITHIN THE GRADE NOT BEING SUSCEPTIBLE OF DEFINITE DETERMINATION PRIOR TO THAT TIME.

ACTING COMPTROLLER GENERAL GINN TO THE CHAIRMAN, INTERSTATE COMMERCE COMMISSION, MAY 22, 1925:

I HAVE YOUR LETTER OF MAY 8, 1925, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

WHEN NEW POSITIONS IN A PROFESSIONAL GRADE, IN THIS INQUIRY GRADE P 6, HAVE BEEN AUTHORIZED AND DULY ALLOCATED BY THE PERSONNEL CLASSIFICATION BOARD AND APPROPRIATIONS HAVE BEEN MADE THEREFOR, IS THE SALARY AVERAGE WITHIN THE GRADE DETERMINED BY THE ACTUAL NUMBER OF PERSONS NOW EMPLOYED IN THAT GRADE OR MAY THE TOTAL NUMBER OF AUTHORIZED POSITIONS BE TAKEN IN COMPUTING THE AVERAGE?

THE FACTS ARE THESE: ON MARCH 3, 1925, THE INTERSTATE COMMERCE COMMISSION, FOR THE PURPOSE OF EXPEDITING THE COMPLETION OF THE VALUATION OF THE COMMON CARRIERS IN THIS COUNTRY WITHIN A LIMITED PERIOD, AND FOR WHICH PURPOSE AN INCREASED APPROPRIATION HAD BEEN PROVIDED, CREATED A NEW MAJOR SECTION IN ITS BUREAU OF VALUATION TO BE KNOWN AS THE EXAMINING AND REVIEWING SECTION. A POSITION OF PRINCIPAL VALUATION EXAMINER WAS CREATED AT A SALARY OF $7,500. ON MARCH 9, ATTORNEY-EXAMINER M. A. PATTISON, THEN CLASSIFIED IN PROFESSIONAL GRADE 5, AND RECEIVING THE MAXIMUM SALARY OF $6,000 AUTHORIZED FOR THAT GRADE, WAS TRANSFERRED FROM THE BUREAU OF FORMAL CASES TO THE NEWLY CREATED POSITION. THE DUTIES OF THE POSITION WERE ALLOCATED TO PROFESSIONAL GRADE 6 BY THE PERSONNEL CLASSIFICATION BOARD AND THE TRANSFER WAS APPROVED BY THE CIVIL SERVICE COMMISSION. MAY 4, MR. PATTISON WAS PROMOTED BY A MINUTE OF THE COMMISSION FROM SALARY OF $6,000 PER ANNUM TO SALARY AT THE RATE OF $6,500 PER ANNUM, EFFECTIVE MAY 16.

AT THE TIME THE PROMOTION WAS MADE, THERE WAS INCLUDED AMONG THE SECTIONS COMPRISING THE BUREAU OF VALUATION THE LEGAL SECTION HEADED BY THE SOLICITOR OF BUREAU. THIS LATTER POSITION IS CLASSIFIED PROFESSIONAL GRADE 6 AND THE SALARY PAID IS $7,500. PROVISION WAS MADE TO ENLARGE THIS SECTION, SEVEN OF THE ADDITIONAL EMPLOYEES TO BE CLASSIFIED IN PROFESSIONAL GRADE 6, THE POSITIONS BEING NOW APPROVED BY THE PERSONNEL CLASSIFICATION BOARD. UNDER THE LAW THESE EMPLOYEES WILL RECEIVE ON APPOINTMENT THE MINIMUM SALARY OF $6,000 PROVIDED IN THAT GRADE.

YOU WILL NOTE FROM WHAT HAS BEEN SAID THAT THERE ARE NOW IN THE BUREAU OF VALUATION NINE POSITIONS IN PROFESSIONAL GRADE 6 AUTHORIZED BY THE INTERSTATE COMMERCE COMMISSION AND DULY APPROVED BY THE PERSONNEL CLASSIFICATION BOARD, OF WHICH ONLY TWO ARE FILLED. THE RECRUITING OF THE PERSONNEL TO FILL THESE AND OTHER VACANCIES IS ACTIVELY IN PROGRESS, BUT UP TO THIS WRITING NO PERMANENT APPOINTMENTS OTHER THAN THE ONE MENTIONED HAVE BEEN MADE.

IT IS UPON THIS STATEMENT OF FACTS THAT YOUR OPINION ON THE ABOVE INQUIRY IS SOUGHT IN ORDER TO DETERMINE WHETHER THE AUTHORIZED SALARY OF $6,500 MAY LAWFULLY BE PAID TO THE APPOINTEE TO THE POSITION OF PRINCIPAL VALUATION EXAMINER.

THE APPROPRIATION "VALUATION OF PROPERTY OF CARRIERS" FOR THE FISCAL YEAR 1925, APPEARS IN THE ACT OF JUNE 7, 1924, 43 STAT. 527, AND FOR THE FISCAL YEAR 1926, IN THE ACT OF MARCH 3, 1925, 43 STAT. 1205, AND IS TO BE CONSIDERED AS AN APPROPRIATION UNIT WITHIN THE MEANING OF THE AVERAGE PROVISION APPEARING IN THE SAME STATUTE RESTRICTING PAYMENT OF COMPENSATION TO EMPLOYEES IN THE DISTRICT OF COLUMBIA SUBJECT TO THE CLASSIFICATION ACT.

THE BASIS FOR COMPUTING "THE AVERAGE" IS EXPRESSLY PROVIDED TO BE THE "TOTAL NUMBER OF PERSONS UNDER ANY GRADE IN ANY BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT.' THEREFORE IT MUST BE HELD THAT THE BASIS IS THE TOTAL NUMBER OF PERSONS ACTUALLY EMPLOYED IN A GRADE AND NOT NECESSARILY THE TOTAL NUMBER OF POSITIONS, BOTH OCCUPIED AND VACANT, EXISTING THEREIN. 3 COMP. GEN. 1002. A REASON FOR THE PROVISION IN THE LAW MAKING THE PERSONS RATHER THAN THE POSITIONS UNDER THE GRADE THE BASIS IS THAT POSITIONS ARE PROVIDED IN A GRADE GENERALLY WITHOUT REFERENCE TO ANY PARTICULAR SALARY RATE. WHEN A VACANCY EXISTS THE SALARY OF THE VACANT POSITION IS NOT NECESSARILY AT THE MIMIMUM SALARY RATE OR THE SALARY RATE RECEIVED BY THE LAST INCUMBENT, BUT MAY BE FIXED BY THE ADMINISTRATIVE OFFICE IN ACCORDANCE WITH THE RULES AND REGULATIONS PURSUANT TO THE CLASSIFICATION ACT AT ANY AUTHORIZED SALARY RATE WITHIN THE GRADE WHICH DOES NOT CAUSE THE PROPER AVERAGE FOR THE GRADE TO BE EXCEEDED. 4 COMP. GEN. 127; ID. 493. FOR INSTANCE, NEW APPOINTMENTS TO VACANT POSITIONS ARE REQUIRED TO BE MADE AT THE MINIMUM SALARY RATE OF THE GRADE, BUT TRANSFERS TO THE GRADE FROM OTHER OFFICES AND GRADES IN THE SAME OFFICE NEED NOT NECESSARILY BE AT THE MINIMUM SALARY RATE OF THE GRADE, HENCE UNTIL A VACANCY IS FILLED THERE WOULD BE NO SALARY RATE FIXED FOR THE POSITION.

YOU ARE ADVISED THAT NEWLY CREATED POSITIONS, OR OTHER EXISTING POSITIONS MAY NOT BE INCLUDED IN DETERMINING THE SALARY AVERAGE OF PERSONS ACTUALLY EMPLOYED IN THE GRADE UNLESS AND UNTIL THE SAID POSITIONS ARE FILLED BY APPOINTMENT, TRANSFER, OR PROMOTION.

SO LONG AS ONLY ONE OTHER PERSON IS EMPLOYED IN GRADE 6 OF THE PROFESSIONAL AND SCIENTIFIC SERVICE UNDER THE APPROPRIATION UNIT IN QUESTION, AND WHO IS PAID AT THE MAXIMUM SALARY RATE OF $7,500 PER ANNUM, M. A. PATTISON IS ENTITLED TO COMPENSATION AT THE MINIMUM SALARY RATE OF $6,000 ONLY, AND MAY NOT BE PROMOTED TO $6,500 PER ANNUM UNLESS AND UNTIL AT LEAST ONE OTHER EXISTING VACANCY IN THAT GRADE HAS BEEN FILLED, AND THEN ONLY IF SUCH PROMOTION, TOGETHER WITH THE SALARY RATE OF THE ADDITIONAL EMPLOYEE, DOES NOT CAUSE THE MATHEMATICAL AVERAGE OF SALARY RATES FOR THE GRADE, VIZ, $6,750 PER ANNUM, TO BE EXCEEDED.