B-107399, FEBRUARY 6, 1952, 31 COMP. GEN. 359

B-107399, FEBRUARY 6, 1952, 31 COMP. GEN. 359

COMPENSATION - STATUTORY INCREASES - ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR THE POSITION OF THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, WHICH WAS CREATED AND PLACED UNDER THE CLASSIFIED CIVIL SERVICE PURSUANT TO THE REORGANIZATION ACT OF 1949 WITH AN ANNUAL SALARY RATE FIXED AT $14.00 PER ANNUM--- A SALARY RATE WHICH HAPPENS TO COINCIDE WITH A RATE ESTABLISHED FOR A CLASSIFICATION ACT GRADE--- IS NOT SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, AND THEREFORE, THE SALARY RATE PRESCRIBED FOR SAID POSITION MAY NOT BE INCREASED UNDER SAID CLASSIFICATION ACT, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, FEBRUARY 6, 1952:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 10, 1952, REQUESTING A DECISION AS TO WHETHER THE SALARY OF THE ADMINISTRATIVE ASSISTANT SECRETARY WHOSE POSITION WAS CREATED BY SECTION 4 OF REORGANIZATION PLAN NO. 3 OF 1950, 15 F.R. 3174, MAY BE INCREASED FROM $14,000 PER ANNUM TO $14,800 PER ANNUM PURSUANT TO THE PROVISIONS OF PUBLIC LAW 201, APPROVE OCTOBER 24, 1951, 65 STAT. 612.

SECTION 4 OF REORGANIZATION LAN NO. 3 WHICH BECAME EFFECTIVE ON MAY 24, 1950, 64 STAT. 1262, IN ACCORDANCE WITH THE PROVISIONS OF THE REORGANIZATION ACT OF 1949, PUBLIC LAW 109, 81ST CONGRESS, PROVIDES:

THERE SHALL BE IN THE DEPARTMENT OF THE INTERIOR AN ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, WHO SHALL BE APPOINTED, WITH THE APPROVAL OF THE PRESIDENT, BY THE SECRETARY OF THE INTERIOR UNDER THE CLASSIFIED CIVIL SERVICE, WHO SHALL PERFORM SUCH DUTIES AS THE SECRETARY OF THE INTERIOR SHALL PRESCRIBE, AND WHO SHALL RECEIVE COMPENSATION AT THE RATE OF $14,000 PER ANNUM.

SINCE THE RATE OF COMPENSATION ATTACHED TO THE SAID OFFICE IS SPECIFICALLY PRESCRIBED BY THE FOREGOING SECTION DOUBT HAS ARISEN AS TO WHETHER SUCH COMPENSATION IS SUBJECT TO THE PROVISION OF PUBLIC LAW 201 WHICH INCREASES RETROACTIVELY THE SALARY RATES FOR CLASSIFICATION ACT POSITIONS. IN THAT CONNECTION, SINCE THE SAID REORGANIZATION PLAN PROVIDES THAT THE POSITION IN QUESTION SHALL BE UNDER THE "CLASSIFIED CIVIL SERVICE" AND SINCE THE LEGISLATIVE HISTORY OF THE PLAN INDICATES THE INCUMBENT OF THE POSITION SHALL BE A CAREER EMPLOYEE, THE VIEW IS EXPRESSED IN YOUR LETTER THAT THE SAID POSITION ALSO WOULD BE SUBJECT TO THE CLASSIFICATION ACT AND THAT THE PRESCRIBED RATE OF $14,000 PER ANNUM WAS INTENDED TO BE THE BASE PAY FOR GRADE GS-18.

YOU ARE ADVISED THAT THE EXPRESSION,"CLASSIFIED CIVIL SERVICE," AS IT OCCURS IN VARIOUS ACTS OF CONGRESS, IS DEFINED BY STATUTE AS BEING SYNONYMOUS WITH A COMPETITIVE STATUS. 5 U.S.C. 679. ALSO, THE ACCOUNTING OFFICERS LONG HAVE RECOGNIZED THAT THE CIVIL SERVICE LAWS AND REGULATIONS, HAVING TO DO WITH APPOINTMENTS IN THE CLASSIFIED CIVIL SERVICE, AND THE CLASSIFICATION ACT, HAVING TO DO WITH THE FIXING OF SALARY RATES, ARE SEPARATE AND DISTINCT STATUTES WITH ENTIRELY DIFFERENT SCOPES AND PURPOSES. 17 COMP. GEN. 578; 18 ID. 223; ID. 796. THUS, IT FOLLOWS THAT, UNLESS OTHERWISE PROVIDED BY LAW, THE STATUTORY GRANT OF A CLASSIFIED CIVIL SERVICE STATUS, STANDING ALONE, DOES NOT CARRY WITH IT THE REQUIREMENT THAT COMPENSATION BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1949, 63 STAT. 954; NOR CAN IT REASONABLY BE INFERRED FROM THE LANGUAGE CONTAINED THEREIN, OR FROM THE LEGISLATIVE BACKGROUND OF THE PLAN, THAT SUCH REQUIREMENT WAS INTENDED. ON THE CONTRARY, THE ANNUAL SALARY FOR THE POSITION SPECIFICALLY WAS FIXED AT $14,000. THUS, THE PAYMENT OF COMPENSATION AT THAT RATE IS A STATUTORY REQUIREMENT REGARDLESS OF THE FACT THAT SUCH RATE HAPPENS TO COINCIDE WITH A RATE ESTABLISHED FOR A CLASSIFICATION ACT GRADE.

FROM THE FOREGOING IT MUST BE CONCLUDED THAT THE ADMINISTRATIVE ASSISTANT SECRETARY'S POSITION IS NOT SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, AND ACCORDINGLY HIS SALARY MAY NOT BE INCREASED UNDER THE PROVISIONS OF PUBLIC LAW 201.