B-101487, MARCH 14, 1951, 30 COMP. GEN. 375

B-101487: Mar 14, 1951

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WHO RECEIVES AN ATTORNEY ADVISER APPOINTMENT UNDER THE CLASSIFICATION LAWS IS NOT EXEMPT FROM THE PROVISIONS OF SECTION 801 OF THE CLASSIFICATION ACT OF 1949. 1951: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20. IT IS REPORTED THAT MR. HOLLANDS WAS GIVEN AN EXCEPTED ( CONTRACT) APPOINTMENT WAE. HE WAS GIVEN AN EXCEPTED APPOINTMENT IN THE NATIONAL PRODUCTION AUTHORITY AS ASSOCIATE GENERAL COUNSEL ( ATTORNEY ADVISER). 000) HAS ARISEN BECAUSE OF THE DOUBT AS TO WHETHER HIS APPOINTMENT IN GRADE GS 17 IS A "NEW APPOINTMENT" WITHIN THE MEANING OF SECTION 801. OR WHETHER SUCH APPOINTMENTS IS OTHER THAN A NEW APPOINTMENT SO AS TO PERMIT HIS INITIAL SALARY TO BE FIXED UPON THE BASIS OF SERVICE UNDER HIS CONTRACT EMPLOYMENT AT A RATE ABOVE THE MINIMUM RATE OF GRADE GS-17 PURSUANT TO SECTION 802 (A) OF PUBLIC LAW 429.

B-101487, MARCH 14, 1951, 30 COMP. GEN. 375

COMPENSATION - INITIAL SALARY RATE - TRANSFER FROM UNCLASSIFIED TO CLASSIFIED POSITION A LEGAL CONSULTANT APPOINTED UNDER SECTION 710 (C) OF THE DEFENSE PRODUCTION ACT OF 1950, AUTHORIZING THE EMPLOYMENT OF EXPERTS AND CONSULTANTS BY CONTRACT WITHOUT REGARD TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS, AS AUTHORIZED BY THE ACT OF AUGUST 2, 1946, WHO RECEIVES AN ATTORNEY ADVISER APPOINTMENT UNDER THE CLASSIFICATION LAWS IS NOT EXEMPT FROM THE PROVISIONS OF SECTION 801 OF THE CLASSIFICATION ACT OF 1949, REQUIRING ALL NEW APPOINTMENTS TO BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE.

ACTING COMPTROLLER GENERAL YATES TO JOHN N. LEEBRICK, DEPARTMENT OF COMMERCE, MARCH 14, 1951:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1951, REQUESTING A DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT THE PAY ROLL VOUCHER THEREWITH TRANSMITTED, PROPOSING PAYMENT TO JOHN H. HOLLANDS IN THE GROSS AMOUNT OF $450, LESS WITHHOLDING TAX AND RETIREMENT DEDUCTIONS, REPRESENTING SALARY FOR THE PERIOD FEBRUARY 6 TO FEBRUARY 17, 1951, IN GRADE GS-17 AT $13,000 PER ANNUM, THE MAXIMUM SALARY RATE OF THAT GRADE. IT IS REPORTED THAT MR. HOLLANDS WAS GIVEN AN EXCEPTED ( CONTRACT) APPOINTMENT WAE, EFFECTIVE DECEMBER 12, 1950, AS LEGAL CONSULTANT, AT $13,000 PER ANNUM ($50 PER DIEM), UNDER SECTION 710 (C) OF THE DEFENSE PRODUCTION ACT OF 1950, PUBLIC LAW 774, 64 STAT. 819, AND SECTION 15, PUBLIC LAW 600, 60 STAT. 810, IN THE NATIONAL PRODUCTION AUTHORITY. UNDER THIS CONTRACT HE SERVED A TOTAL OF 34 DAYS FROM DECEMBER 12, 1950, THROUGH FEBRUARY 5, 1951. SUBSEQUENTLY, ON FEBRUARY 6, 1951, HE WAS GIVEN AN EXCEPTED APPOINTMENT IN THE NATIONAL PRODUCTION AUTHORITY AS ASSOCIATE GENERAL COUNSEL ( ATTORNEY ADVISER), GS-17, AT $13,000 PER ANNUM, UNDER SCHEDULE A, SECTION 6.101 (D), OF THE CIVIL SERVICE RULES (PAGE Z1-230 OF THE FEDERAL PERSONNEL MANUAL), WHICH EXEMPTS ATTORNEY POSITIONS FROM THE COMPETITIVE CIVIL SERVICE.

SECTION 710 (C) OF THE DEFENSE PRODUCTION ACT OF 1950 AUTHORIZES THE EMPLOYMENT OF EXPERTS AND CONSULTANTS AS AUTHORIZED BY 5 U.S.C. 55A, WITH COMPENSATION AT RATES NOT IN EXCESS OF $50 PER DIEM. THE REFERRED TO 5 U.S.C. 55A (SECTION 15 OF THE ACT OF AUGUST 2, 1946, PUBLIC LAW 600, 60 STAT. 810) AUTHORIZES, AMONG OTHER THINGS, THE PROCUREMENT OF TEMPORARY (NOT IN EXCESS OF ONE YEAR) OR INTERMITTENT SERVICES OF EXPERTS OR CONSULTANTS BY CONTRACT WITHOUT REGARD TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS.

IT APPEARS FROM YOUR LETTER THAT THE QUESTION AS TO THE INITIAL SALARY RATE PROPERLY PAYABLE TO MR. HOLLANDS WITHIN THE SALARY RANGE PRESCRIBED FOR AN ATTORNEY ADVISER IN GRADE GS-17 ($12,200-$13,000) HAS ARISEN BECAUSE OF THE DOUBT AS TO WHETHER HIS APPOINTMENT IN GRADE GS 17 IS A "NEW APPOINTMENT" WITHIN THE MEANING OF SECTION 801, PUBLIC LAW 429, 63 STAT. 969, WHICH PROVIDES THAT ALL "NEW APPOINTMENTS" SHALL BE THE MINIMUM RATE OF THE GRADE, OR WHETHER SUCH APPOINTMENTS IS OTHER THAN A NEW APPOINTMENT SO AS TO PERMIT HIS INITIAL SALARY TO BE FIXED UPON THE BASIS OF SERVICE UNDER HIS CONTRACT EMPLOYMENT AT A RATE ABOVE THE MINIMUM RATE OF GRADE GS-17 PURSUANT TO SECTION 802 (A) OF PUBLIC LAW 429, 63 STAT. 969, AND THE REGULATIONS ISSUED THEREUNDER.

SECTION 15 OF PUBLIC LAW 600, SUPRA, CONTEMPLATES EMPLOYMENT OF EXPERTS AND CONSULTANTS BY CONTRACT FOR BRIEF PERIODS OR INTERMITTENTLY. THE PURPOSE OF SUCH SECTION IS TO EXEMPT THE EMPLOYMENT OF SUCH PERSONNEL BY CONTRACT FROM THE PROVISIONS OF THE CIVIL-SERVICE AND CLASSIFICATION LAWS. SEE 27 COMP. GEN. 776 AND 28 ID. 670. ALSO, EXPERTS OR CONSULTANTS EMPLOYED PURSUANT TO THE SAID SECTION 15 ARE EXEMPTED FROM THE CLASSIFICATION ACT OF 1949 BY SECTION 202 (27) THEREOF, 63 STAT. 956. ACCORDINGLY, AND AS NO EVIDENCE HAS BEEN FOUND INDICATING THAT THE EMPLOYMENT OF AN EXPERT OR CONSULTANT BY CONTRACT PURSUANT TO SECTION 15 OF PUBLIC LAW 600 WAS INTENDED BY THE CONGRESS TO BE USED AS A BASIS FOR EXEMPTING SUCH A CONTRACT EMPLOYEE WHO SUBSEQUENTLY RECEIVES AN APPOINTMENT UNDER THE CLASSIFICATION ACT FROM THE PROVISIONS OF SECTION 801 OF THE CLASSIFICATION ACT OF 1949, REQUIRING ALL NEW APPOINTMENTS TO BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE, I AM OF THE OPINION THAT A CONTRACT EMPLOYMENT PURSUANT TO SECTION 15 OF THE PUBLIC LAW 600 MAY NOT BE CONSIDERED AS AN EMPLOYEE'S FIRST APPOINTMENT FOR THE PURPOSE OF SECTION 801 OF THE CLASSIFICATION ACT OF 1949.

ACCORDINGLY, IT MUST BE HELD THAT THE ADMINISTRATIVE ACTION OF FEBRUARY 6, 1951, TERMINATING MR. HOLLANDS' CONTRACT EMPLOYMENT AND GRANTING HIM AN APPOINTMENT AS ASSOCIATE GENERAL COUNSEL ( ATTORNEY ADVISER) GS-17, RESULTED IN HIS RECEIVING A NEW APPOINTMENT WITHIN THE MEANING OF SECTION 801 OF THE CLASSIFICATION ACT OF 1949, SO AS TO REQUIRE SUCH APPOINTMENT TO BE MADE AT THE MINIMUM RATE OF GS-17, NAMELY $12,200 PER ANNUM.

THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT AT A RATE IN EXCESS OF $12,200 PER ANNUM.