B-107024, JANUARY 24, 1952, 31 COMP. GEN. 331

B-107024: Jan 24, 1952

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THE RATES OF WHICH ARE ESTABLISHED ADMINISTRATIVELY UNDER THE AUTHORITY OF SECTION 14 (A) OF THE ACT OF JANUARY 3. 1952: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 12. ITS IS STATED THAT THE RATES OF COMPENSATION FOR PERSONNEL APPOINTED PURSUANT TO THE FOREGOING SECTION WERE FIXED ADMINISTRATIVELY BY PARAGRAPH 3.06A (2) OF VETERANS ADMINISTRATION MANUAL M5-2. WHICH IS. WHICH AUTHORIZES SUCH INCREASES FOR EMPLOYEES OF THE DEPARTMENT OF MEDICINE AND SURGERY "WHOSE RATES OF BASIC COMPENSATION ARE PROVIDED BY PUBLIC LAW 293. IT CLEARLY APPEARS THAT THE RATES OF COMPENSATION FOR THE EMPLOYEES HERE INVOLVED ARE NOT PROVIDED BY PUBLIC LAW 293. RATHER ARE FIXED ADMINISTRATIVELY UNDER THE AUTHORITY GRANTED BY SECTION 14 (A) OF THE SAID LAW.

B-107024, JANUARY 24, 1952, 31 COMP. GEN. 331

COMPENSATION - RETROACTIVE SALARY INCREASES UNDER THE CLASSIFIED ACT OF 1949, AS AMENDED - VETERANS ADMINISTRATION MEDICAL PERSONNEL THE SALARIES OF PART-TIME PHYSICIANS, DENTISTS, AND NURSES OF THE DEPARTMENT OF MEDICINE AND SURGERY, VETERANS ADMINISTRATION, THE RATES OF WHICH ARE ESTABLISHED ADMINISTRATIVELY UNDER THE AUTHORITY OF SECTION 14 (A) OF THE ACT OF JANUARY 3, 1946, MAY NOT BE INCREASED RETROACTIVELY UNDER THE RETROACTIVE COMPENSATION PROVISION OF THE INCREASED COMPENSATION AMENDMENT TO THE CLASSIFICATION ACT OF 1949.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, JANUARY 24, 1952:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 12, 1951, REQUESTING A DECISION AS TO WHETHER THE SALARIES OF PART-TIME PHYSICIANS, DENTISTS, AND NURSES EMPLOYED UNDER THE AUTHORITY OF SECTION 14 (A) OF THE ACT OF JANUARY 3, 1946, 59 STAT. 675, 679, MAY BE INCREASED RETROACTIVELY UNDER THE AUTHORITY OF SECTION 6 OF PUBLIC LAW 201, 65 STAT. 615.

THE SAID SECTION 14 (A) PROVIDES:

THE ADMINISTRATOR, UPON THE RECOMMENDATION OF THE CHIEF MEDICAL DIRECTOR, MAY EMPLOY, WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, PHYSICIANS, DENTISTS, AND NURSES, ON A TEMPORARY FULL-TIME, PART-TIME, OR FEE BASIS; AND DIETITIANS, SOCIAL WORKERS, LIBRARIANS, AND SUCH OTHER PROFESSIONAL, CLERICAL, TECHNICAL, AND UNSKILLED PERSONNEL, IN ADDITION TO PERSONNEL DESCRIBED IN SECTION 3, SUBSECTION (A) OF SECTION 4, AND SECTION 11 OF THIS ACT, ON A TEMPORARY FULL-TIME OR PART-TIME BASIS AT SUCH RATES OF PAY AS HE MAY PRESCRIBE: PROVIDED, THAT NO TEMPORARY FULL-TIME APPOINTMENT SHALL BE FOR A PERIOD OF MORE THAN NINETY DAYS.

ITS IS STATED THAT THE RATES OF COMPENSATION FOR PERSONNEL APPOINTED PURSUANT TO THE FOREGOING SECTION WERE FIXED ADMINISTRATIVELY BY PARAGRAPH 3.06A (2) OF VETERANS ADMINISTRATION MANUAL M5-2, PART III, WHICH IS, IN PART, AS FOLLOWS:

THE RATE OF PAY FOR A PART-TIME PHYSICIAN (NONSPECIALIST), DENTIST (NONSPECIALIST), OR NURSE SHALL BE BASED ON THE MINIMUM SALARY OF THE GRADE TO WHICH APPOINTED * * *. WITHIN THE LIMITATION ESTABLISHED IN SUBPARAGRAPH (1) ABOVE, PART-TIME PHYSICIANS (NONSPECIALISTS), DENTISTS (NONSPECIALISTS), AND NURSES SHALL RECEIVE, DEPENDENT UPON THE NUMBER OF HOURS TO BE WORKED EACH WEEK, THE PROPORTIONATE AMOUNT OF THE CURRENT ANNUAL BASE COMPENSATION FOR FULL-TIME PERSONNEL IN THE SAME GRADE.

DOUBT AS TO THE LEGALITY OF INCREASING RETROACTIVELY THE RATES OF COMPENSATION ESTABLISHED FOR THOSE EMPLOYEES BY THE FOREGOING REGULATIONS ARISES BY VIRTUE OF THE PROVISIONS OF SECTION 4 (A) OF PUBLIC LAW 201, 65 STAT. 614, SUPRA, WHICH AUTHORIZES SUCH INCREASES FOR EMPLOYEES OF THE DEPARTMENT OF MEDICINE AND SURGERY "WHOSE RATES OF BASIC COMPENSATION ARE PROVIDED BY PUBLIC LAW 293, SEVENTY-NINTH CONGRESS, APPROVED JANUARY 3, 1946, AS AMENDED.'

FROM THE FOREGOING PROVISIONS OF STATUTE AND REGULATION, IT CLEARLY APPEARS THAT THE RATES OF COMPENSATION FOR THE EMPLOYEES HERE INVOLVED ARE NOT PROVIDED BY PUBLIC LAW 293, BUT RATHER ARE FIXED ADMINISTRATIVELY UNDER THE AUTHORITY GRANTED BY SECTION 14 (A) OF THE SAID LAW. CF. OFFICE DECISION OF SEPTEMBER 5, 1946, B-59580. IT FOLLOWS, THEREFORE, THAT THE SALARIES OF THESE EMPLOYEES ARE NOT SUBJECT TO THE PROVISIONS OF PUBLIC LAW 201.

ACCORDINGLY, AND SINCE IT HAS BEEN CONSISTENTLY HELD BY THIS OFFICE THAT STATUTES AUTHORIZING HEADS OF DEPARTMENTS TO FIX THE COMPENSATION OF UNCLASSIFIED EMPLOYEES DO NOT, IN THE ABSENCE OF SPECIFIC LANGUAGE SO PROVIDING, INCLUDE THE AUTHORITY TO GRANT RETROACTIVE INCREASES, IT MUST BE CONCLUDED THAT THE SALARIES ESTABLISHED UNDER AUTHORITY OF THE SAID SECTION 14 (A) FOR TEMPORARY PART-TIME PHYSICIANS, DENTISTS, AND NURSES, MAY NOT BE INCREASED RETROACTIVELY.