A-99053, NOVEMBER 10, 1938, 18 COMP. GEN. 438

A-99053: Nov 10, 1938

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IS AS FOLLOWS: THE GOVERNMENT OF THE COMMONWEALTH OF THE PHILIPPINE ISLANDS. THE PERTINENT PROVISIONS OF WHICH ARE AS FOLLOWS: "THAT THE PRESIDENT OF THE UNITED STATES BE. HEREBY IS. IF SUCH GOVERNMENT IS DESIROUS OF OBTAINING SERVICES OF A PERSON HAVING SPECIAL SCIENTIFIC OR OTHER TECHNICAL OR PROFESSIONAL QUALIFICATIONS * * * TO DETAIL FOR TEMPORARY SERVICE OF NOT EXCEEDING ONE YEAR. HE SHALL RECEIVE ADDITIONAL COMPENSATION FROM THE DEPARTMENT OR AGENCY FROM WHICH DETAILED NOT TO EXCEED 50 PERCENTUM OF THE COMPENSATION HE WAS RECEIVING AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES AT THE TIME OF HIS DETAIL. OTHER ALLOWANCES AUTHORIZED BY THIS ACT TO BE PAID FROM ANY APPROPRIATIONS AVAILABLE FOR THE PAYMENT OF COMPENSATION AND TRAVEL EXPENSES OF THE OFFICERS AND EMPLOYEES OF THE DEPARTMENT OR AGENCY FROM WHICH HE IS DETAILED.'.

A-99053, NOVEMBER 10, 1938, 18 COMP. GEN. 438

COMPENSATION - ADDITIONAL - EMPLOYEES DETAILED TO AMERICAN REPUBLICS, ETC. - INAPPLICABILITY OF CLASSIFICATION ACT SALARY LIMITATIONS THE ADDITIONAL COMPENSATION SPECIFICALLY AUTHORIZED TO BE PAID OFFICERS AND EMPLOYEES OF THE UNITED STATES DETAILED TO THE GOVERNMENTS NAMED IN THE ACT OF MAY 25, 1938, 52 STAT. 442, MAY BE FIXED WITHOUT REGARD TO RATES OF PAY PRESCRIBED BY THE CLASSIFICATION ACT OF 1023, AS AMENDED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF LABOR, NOVEMBER 10, 1938:

YOUR LETTER OF NOVEMBER 4, 1938, IS AS FOLLOWS:

THE GOVERNMENT OF THE COMMONWEALTH OF THE PHILIPPINE ISLANDS, THROUGH OFFICIAL CHANNELS, HAS REQUESTED THAT TWO OFFICERS OF THE UNITED STATES GOVERNMENT BE SENT TO THE PHILIPPINES FOR THE PURPOSE OF DRAFTING IMMIGRATION STATUTES AND ESTABLISHING AN IMMIGRATION SERVICE IN THE COMMONWEALTH. THE PRESIDENT HAS COMPLIED WITH THIS REQUEST, PURSUANT TO AUTHORITY CONFERRED ON HIM BY PUBLIC, NO. 545, 75TH CONGRESS (H.R. 10193), THE PERTINENT PROVISIONS OF WHICH ARE AS FOLLOWS:

"THAT THE PRESIDENT OF THE UNITED STATES BE, AND HEREBY IS, AUTHORIZED, WHENEVER HE FINDS THAT THE PUBLIC INTEREST RENDERS SUCH A COURSE ADVISABLE, UPON AGREEMENT WITH THE GOVERNMENT OF ANY OTHER AMERICAN REPUBLIC OR THE GOVERNMENT OF THE COMMONWEALTH OF THE PHILIPPINE ISLANDS, OR THE GOVERNMENT OF LIBERIA, IF SUCH GOVERNMENT IS DESIROUS OF OBTAINING SERVICES OF A PERSON HAVING SPECIAL SCIENTIFIC OR OTHER TECHNICAL OR PROFESSIONAL QUALIFICATIONS * * * TO DETAIL FOR TEMPORARY SERVICE OF NOT EXCEEDING ONE YEAR, UNDER SUCH GOVERNMENT ANY SUCH PERSON IN THE EMPLOY OF THE GOVERNMENT OF THE UNITED STATES WHOSE SERVICES CAN BE SPARED.

"THAT WHILE SO DETAILED, SUCH PERSON SHALL BE CONSIDERED FOR THE PURPOSE OF PRESERVING HIS RIGHTS AND PRIVILEGES AS SUCH, AN OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES AND OF THE DEPARTMENT OR AGENCY FROM WHICH DETAILED AND SHALL CONTINUE TO RECEIVE THEREFROM COMPENSATION, AND HE SHALL RECEIVE ADDITIONAL COMPENSATION FROM THE DEPARTMENT OR AGENCY FROM WHICH DETAILED NOT TO EXCEED 50 PERCENTUM OF THE COMPENSATION HE WAS RECEIVING AS AN OFFICER OR EMPLOYEE OF THE UNITED STATES AT THE TIME OF HIS DETAIL, AND SHALL RECEIVE FROM THE UNITED STATES REIMBURSEMENT FOR TRAVEL EXPENSES TO AND FROM THE PLACE OF DETAIL AND MONTHLY ALLOWANCES DETERMINED BY THE PRESIDENT TO BE ADEQUATE FOR QUARTERS AND SUBSISTENCE DURING THE PERIOD OF SUCH DETAIL. THE ADDITIONAL COMPENSATION, TRAVEL EXPENSES, AND OTHER ALLOWANCES AUTHORIZED BY THIS ACT TO BE PAID FROM ANY APPROPRIATIONS AVAILABLE FOR THE PAYMENT OF COMPENSATION AND TRAVEL EXPENSES OF THE OFFICERS AND EMPLOYEES OF THE DEPARTMENT OR AGENCY FROM WHICH HE IS DETAILED.'

THE DEPARTMENT OF LABOR HAS AGREED TO FURNISH ONE OF THESE OFFICERS, MR. I. F. WIXON, THE DEPUTY COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE. THE STATE DEPARTMENT IS ARRANGING FOR PRESIDENTIAL SANCTION OF THE 50 PERCENT ADDITIONAL COMPENSATION PROVIDED FOR IN THE ACT.

IN THE CASE OF MR. WIXON CERTAIN DIFFICULTIES HAVE ARISEN UNDER THE CLASSIFICATION ACT. HIS PRESENT SALARY IS $6,500 AND THE MAXIMUM SALARY WHICH THE CLASSIFICATION ACT PROVIDES FOR HIS GRADE (CAF-14) IS $7,500. THE QUESTION IS WHETHER IT IS POSSIBLE TO CONTINUE HIM AS DEPUTY COMMISSIONER AT HIS PRESENT SALARY AND PERMIT HIM TO RECEIVE THE EXTRA COMPENSATION AUTHORIZED PURSUANT TO THE ACT.

THE SOLICITOR OF THIS DEPARTMENT HAS EXPRESSED THE VIEW VERBALLY THAT THE LIMITS IN THE CLASSIFICATION ACT ARE NOT NECESSARILY BINDING IN THIS INSTANCE, SINCE THE HIGHER POSITIONS, INCLUDING GRADE 7 IN THE PROFESSIONAL AND SCIENTIFIC SERVICE AND GRADE 14 IN THE CLERICAL, ADMINISTRATIVE, AND FISCAL SERVICE, CONTAIN THE QUALIFYING PHRASE "UNLESS A HIGHER RATE IS SPECIFICALLY AUTHORIZED BY LAW.' (CLASSIFICATION ACT OF 1923, AS AMENDED, 42 STAT. 1488, U.S.C., TI. 5, SEC. 673.)

IN HIS OPINION, PUBLIC ACT NO. 545 IS OF GENERAL APPLICATION TO ALL PERSONS IN THE SERVICE OF THE UNITED STATES, MOST OF WHOM ARE COVERED BY THE PROVISIONS OF THE CLASSIFICATION ACT, AND THEREFORE CONGRESS BY MAKING PROVISION FOR AS MUCH OF AN INCREASE IN THEIR SALARIES AS 50 PERCENT WHILE DETAILED ON MISSIONS OF THIS CHARACTER DID NOT INTEND THAT SUCH INCREASES SHOULD NOT EXCEED THE NARROW LIMITS OF THE COMPENSATION SCHEDULES. OTHER WORDS, HIS CONCLUSION IS THAT PUBLIC ACT NO. 545 SPECIFICALLY AUTHORIZES THE PAYMENT OF A HIGHER RATE THAN $7,500 WITHIN THE MEANING OF THE CLASSIFICATION ACT.

YOUR OPINION IS THEREFORE RESPECTFULLY REQUESTED UPON THE QUESTION OF WHETHER OR NOT, ASSUMING THAT PROPER AUTHORIZATION IS RECEIVED, THE DEPARTMENT OF LABOR MAY PAY MR. WIXON A SALARY IN EXCESS OF $7,500 DURING THE TIME OF HIS DETAIL. INASMUCH AS THE PHILIPPINE GOVERNMENT HAS ASKED THAT THE OFFICERS BEGIN WORK ON DECEMBER 1ST, WHICH WILL MAKE IT NECESSARY FOR THEM TO SAIL ON NOVEMBER 18TH, I SHOULD APPRECIATE THE EARLIEST POSSIBLE CONSIDERATION OF THIS QUESTION BY YOU.

AS THE ACT OF MAY 25, 1938, 52 STAT. 442, QUOTED IN YOUR SUBMISSION, SPECIFICALLY AUTHORIZES THE PAYMENT OF ADDITIONAL COMPENSATION NOT TO EXCEED 50 PERCENT, THE PAYMENT OF MORE THAN THE MAXIMUM SALARY RATES OF THE GRADE AS PRESCRIBED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, IS THUS SPECIFICALLY AUTHORIZED BY LAW. FURTHERMORE, SUCH ADDITIONAL COMPENSATION IS NOT TO BE CONSIDERED AS BASIC COMPENSATION EITHER UNDER THE CLASSIFICATION ACT OR UNDER THE RETIREMENT LAWS. SEE IN THIS CONNECTION A-98632, OCTOBER 24, 1938, COPY INCLOSED.

ACCORDINGLY, IN SPECIFIC ANSWER TO THE QUESTION SUBMITTED, I HAVE TO ADVISE THAT THE ADDITIONAL COMPENSATION TO BE PAID EMPLOYEES DETAILED TO THE GOVERNMENTS NAMED IN THE ABOVE ACT OF 1938 MAY BE FIXED DURING SUCH DETAIL AND WITHIN THE LIMITATIONS OF SAID ACT WITHOUT REGARD TO THE RATES OF PAY PRESCRIBED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED.