B-107890, MARCH 11, 1952, 31 COMP. GEN. 462

B-107890, MARCH 11, 1952, 31 COMP. GEN. 462

COMPENSATION - RETROACTIVE SALARY INCREASES - POINT IV EMPLOYEES IN VIEW OF THE DISCRETION VESTED IN ADMINISTRATIVE OFFICIALS TO FIX THE RATES OF BASIC COMPENSATION OF POINT IV EMPLOYEES TO CONFORM WITH THE SCHEDULE OF RATES UNDER THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, THE RATES OF BASIC COMPENSATION OF EMPLOYEES ASSIGNED CONTINUOUSLY SINCE JULY 1, 1951, TO OVERSEAS DUTY ON POINT IV PROGRAMS MAY NOT BE INCREASED RETROACTIVELY UNDER THE RETROACTIVE COMPENSATION PROVISIONS OF THE ACT OF OCTOBER 24, 1951, WHICH PROVIDES FOR RETROACTIVE INCREASES TO FOREIGN SERVICE EMPLOYEES. IN VIEW OF THE POLICY OF THE TECHNICAL COOPERATION ADMINISTRATION, ADOPTED PURSUANT TO THE ACT FOR INTERNATIONAL DEVELOPMENT, THAT THE RATES OF COMPENSATION OF EMPLOYEES WHO ARE ASSIGNED TO DUTY OVERSEAS ON POINT IV PROGRAMS WOULD BE COMPARABLE WITH THE RATES ESTABLISHED BY THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, THE ADMINISTRATIVE ACTION TAKEN ON OCTOBER 29, 1951, AUTHORIZING AN ADJUSTMENT IN THE RATES AT SUCH POINT IV EMPLOYEES, MAY BE CONSIDERED AS HAVING AUTHORIZED THE COOPERATING AGENCIES TO COMPENSATE THEIR EMPLOYEES AT THE INCREASED RATES AS OF THE EFFECTIVE DATE THEREOF.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, MARCH 11, 1952:

REFERENCE IS MADE TO LETTER DATED FEBRUARY 4, 1952, FROM THE ACTING SECRETARY OF COMMERCE, REQUESTING A DECISION AS TO THE ELIGIBILITY OF CERTAIN EMPLOYEES OF THE DEPARTMENT OF COMMERCE WHO WERE ASSIGNED TO OVERSEAS DUTY ON POINT IV PROGRAMS UNDER THE ECONOMIC COOPERATION ACT OF 1950, PUBLIC LAW 535, 64 STAT. 198 APPROVED JUNE 5, 1950, TO RECEIVE INCREASES IN COMPENSATION UNDER THE ACT OF OCTOBER 24, 1951, PUBLIC LAW 201, 65 STAT. 612. IT IS STATED IN THE LETTER THAT THE DEPARTMENT OF COMMERCE HAS FIXED THE RATES OF BASIC COMPENSATION OF SUCH EMPLOYEES TO CONFORM WITH THE SCHEDULE OF RATES UNDER THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 999, AS AUTHORIZED BY SECTION 413 (C), PUBLIC LAW 535, 64 STAT. 208.

SAID SECTION 413 (C) PROVIDES, IN PART, AS FOLLOWS:

PERSONS EMPLOYED FOR DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES AND OFFICERS AND EMPLOYEES OF THE UNITED STATES GOVERNMENT ASSIGNED FOR SUCH DUTY, MAY RECEIVE COMPENSATION AT ANY OF THE RATES PROVIDED FOR THE FOREIGN SERVICE RESERVE AND STAFF BY THE FOREIGN SERVICE ACT OF 1946 (60 STAT. 999), AS AMENDED, * * *. ( ITALICS SUPPLIED.)

THE INCREASE INVOLVED IN THE 10 PERCENT INCREASE--- NOT TO BE LESS THAN $300 OR MORE THAN $800--- PRESCRIBED BY SECTION 5 (A), PUBLIC LAW 201, 65 STAT. 615, IN THE RATES OF BASIC COMPENSATION PROVIDED BY SECTIONS 412 AND 415 OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 1003, AS AMENDED 22 U.S.C. 867, 870. SECTION 6 (A), PUBLIC LAW 201, 65 STAT. 615, ESTABLISHES THE EFFECTIVE DATE OF THE INCREASE AS THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER JUNE 30, 1951, AND SECTION 6 (B), 65 STAT. 615, AUTHORIZES THE PAYMENT OF RETROACTIVE COMPENSATION IN CERTAIN CASES.

THE FIRST TWO QUESTIONS PRESENTED ARE STATED AS FOLLOWS:

1. UNDER THE FOREGOING PROVISIONS OF LAW, ARE THE RATES OF BASIC COMPENSATION OF EMPLOYEES ASSIGNED CONTINUOUSLY SINCE JULY 1, 1951, TO OVERSEAS DUTY ON POINT 4 PROGRAMS RETROACTIVELY INCREASED BY STATUTE EFFECTIVE AS OF THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER JUNE 30, 1951?

2. IF THE STATUTORY INCREASE IS NOT RETROACTIVELY EFFECTIVE, ARE THE RATES OF BASIC COMPENSATION OF THIS GROUP OF EMPLOYEES INCREASED BY STATUTE EFFECTIVE AS OF OCTOBER 24, 1951, THE DATE OF APPROVAL OF PUBLIC LAW 201?

THE AUTHORITY TO PERFORM THE FUNCTIONS AND TO EXERCISE THE POWERS VESTED IN THE PRESIDENT BY THE ACT FOR INTERNATIONAL DEVELOPMENT ( TITLE IV OF THE ECONOMIC COOPERATION ACT OF 1950, ABOVE) WAS DELEGATED TO THE SECRETARY OF STATE BY EXECUTIVE ORDER NO. 10159, SEPTEMBER 8, 1950. PARAGRAPH 2 OF THE EXECUTIVE ORDER DIRECTS THE HEAD OF DEPARTMENTS TO PARTICIPATE IN CARRYING OUT THE ACT AS REQUESTED BY THE SECRETARY OF STATE. DEPARTMENTS OF STATE PUBLIC NOTICE NO. 66, NOVEMBER 30, 1950, 15 F.R. 8223, ESTABLISHES THE TECHNICAL COOPERATION ADMINISTRATION TO SUPERVISE AND TO COORDINATE THE ACTIVITIES OF OTHER FEDERAL AGENCIES IN CARRYING OUT THE PROGRAM BUT THE AUTHORITY AND THE RESPONSIBILITY FOR RECRUITMENT AND FOR EMPLOYMENT OF PERSONNEL TO CARRY OUT THE PROJECTS ARE DELEGATED TO THE PARTICIPATING AGENCIES BY DEPARTMENT OF STATE, POINT IV AGENCY MEMORANDUM NO. 20, NOVEMBER 27, 1950. HOWEVER, PARAGRAPH 3 (B), SECTION I, OF THE MEMORANDUM PROVIDES THAT PERSONS APPOINTED FOR DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES SHALL RECEIVE COMPENSATION AT THE RATES PROVIDED FOR IN THE POINT IV SALARY SCHEDULE SET FORTH THEREIN, WHICH APPARENTLY CONFORMS WITH THE THEN EXISTING SCHEDULE OF RATES OF COMPENSATION UNDER THE FOREIGN SERVICE ACT OF 1946, AS AMENDED. SEE ALSO MEMORANDUM NO. 28, JANUARY 17, 1951.

THE PROVISIONS OF SECTION 413 (C), PUBLIC LAW 535, AUTHORIZING RATES OF COMPENSATION OF POINT IV EMPLOYEES ASSIGNED TO DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES TO BE FIXED AT THE RATES PROVIDED BY THE FOREIGN SERVICE ACT OF 1946, ARE NOT MANDATORY, BUT RATHER, ARE PERMISSIVE ONLY. IN OTHER WORDS, THE EFFECT OF SUCH PROVISIONS IS TO PROVIDE AN ADMINISTRATIVE OPTION OR DISCRETION IN THE FIXING OF THE RATES OF COMPENSATION FOR SUCH EMPLOYEES. SEE THE CONFERENCE REPORT, HOUSE REPORT NO. 2117, 81ST CONGRESS, PAGE 31, ON H.R. 7797, WHICH BECAME PUBLIC LAW 535. THE FACT THAT IN EXERCISING THAT OPTION OR DISCRETION THE ADMINISTRATIVE OFFICIALS HAVE AUTHORIZED THE PAYMENT OF COMPENSATION AT RATES CONFORMING WITH THE RATES UNDER THE FOREIGN SERVICE ACT WHERE IT IS NOT REQUIRED BY LAW, DOES NOT RENDER SUCH POINT IV EMPLOYEES SUBJECT TO THE STATUTORY RATES ESTABLISHED UNDER THE FOREIGN SERVICE ACT AS INCREASED BY SECTION 5 (A), PUBLIC LAW 201. THE RATES OF COMPENSATION OF SUCH EMPLOYEES MUST BE REGARDED AS BEING FIXED ADMINISTRATIVELY AND NOT BY STATUTE.

IN VIEW THEREOF, THE GRANTING OF RETROACTIVE INCREASES IN COMPENSATION TO POINT IV EMPLOYEES ASSIGNED TO DUTY OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES WOULD BE IN CONTRAVENTION OF THE RULE THAT, IN THE ABSENCE OF A STATUTE SO PROVIDING, ADMINISTRATIVE CHANGES IN SALARY RATES MAY NOT BE MADE EFFECTIVE RETROACTIVELY. ACCORDINGLY, IN ANSWER TO QUESTION 1 YOU ARE ADVISED THAT THE RATES OF BASIC COMPENSATION OF EMPLOYEES ASSIGNED CONTINUOUSLY SINCE JULY 1, 1951, TO OVERSEAS DUTY ON POINT IV PROGRAMS WERE NOT INCREASED RETROACTIVELY BY STATUTE EFFECTIVE AS OF THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN AFTER JUNE 30, 1951.

IN REGARD TO QUESTION 2, SINCE, AS INDICATED ABOVE, SUCH POINT IV EMPLOYEES WERE NOT SUBJECT TO THE INCREASE GRANTED BY SECTION 5 (A), PUBLIC LAW 201, THE RATES OF BASIC COMPENSATION OF SUCH GROUP OF EMPLOYEES WERE NOT INCREASED BY THE PROVISIONS OF SECTION 5 (A), PUBLIC LAW 201, EFFECTIVE AS OF OCTOBER 24, 1951, THE DATE OF APPROVAL OF PUBLIC LAW 201.

AN ADDITIONAL QUESTION IS PRESENTED IN THE LETTER RELATIVE TO THE EFFECTIVE DATE OF THE INCREASE IN THE RATES OF BASIC COMPENSATION OF THESE EMPLOYEES BY ADMINISTRATIVE ACTION UNDER THE CIRCUMSTANCES STATED BELOW.

IT IS STATED IN THE LETTER THAT THE DEPARTMENT OF COMMERCE ADJUSTED THE RATES OF BASIC COMPENSATION OF ITS EMPLOYEES HERE INVOLVED PURSUANT TO DEPARTMENT OF COMMERCE, ADMINISTRATIVE CIRCULAR NO. 146, NOVEMBER 23, 1951, WHICH AUTHORIZES AN ADJUSTMENT IN THE RATES OF BASIC COMPENSATION OF EMPLOYEES ASSIGNED TO OVERSEAS DUTY ON POINT IV PROGRAMS IN ACCORDANCE WITH A REVISED SCHEDULE AND PERTINENT PROVISIONS OF PUBLIC LAW 201, EFFECTIVE AT THE BEGINNING OF THE FIRST PAY PERIOD FOLLOWING THE DATE OF THE CIRCULAR. SUBSEQUENTLY, ON DECEMBER 6, 1951, THE TECHNICAL COOPERATION ADMINISTRATION, DEPARTMENT OF STATE, ISSUED POINT IV AGENCY MEMORANDUM NO. 64, WHICH READS, IN PART, AS FOLLOWS:

ALL FEDERAL AGENCIES COOPERATING IN THE POINT 4 PROGRAM ARE HEREBY AUTHORIZED TO COMPENSATE EMPLOYEES ASSIGNED TO POINT 4 POSITIONS ABROADIN ACCORDANCE WITH THE SALARY TABLE ISSUED AS POINT 4 AGENCY MEMORANDUM NO. 59. THE EFFECTIVE DATE OF THE INCREASE IS OCTOBER 28, 1951.

THE SPECIFIC QUESTION PRESENTED IN THIS CONNECTION IS AS FOLLOWS:

MAY THIS DEPARTMENT ON THE BASIS OF DEPARTMENT OF STATE POINT 4 AGENCY MEMORANDUM NO. 64, INSTRUCT ITS PRIMARY ORGANIZATION UNITS TO CHANGE THE EFFECTIVE DATE OF ADJUSTMENT OF THE COMPENSATION OF THEIR EMPLOYEES ASSIGNED TO POINT 4 POSITIONS ABROAD TO OCTOBER 28, 1951, OR MUST OUR INSTRUCTION GIVEN IN ADMINISTRATIVE CIRCULAR NO. 146 STAND?

PRIOR TO THE ISSUANCE OF EITHER DEPARTMENT OF COMMERCE, ADMINISTRATIVE CIRCULAR NO. 146, OR DEPARTMENT OF STATE, POINT IV AGENCY MEMORANDUM NO. 64, THE TECHNICAL COOPERATION ADMINISTRATION HAD ISSUED POINT IV AGENCY MEMORANDUM NO. 59, DATED OCTOBER 29, 1951, FOR "THE INFORMATION AND GUIDANCE" OF AGENCIES, WHICH CONTAINS A SALARY TABLE FOR PERSONS EMPLOYED UNDER THE PROVISIONS OF SECTION 413, PUBLIC LAW 535, 64 STAT. 207. THIS TABLE APPEARS TO INCLUDE AN INCREASE IN THE RATES OVER THE RATES PREVIOUSLY PRESCRIBED IN POINT IV MEMORANDUM NO. 28, WHICH IS COMPARABLE WITH THE INCREASE AUTHORIZED BY SECTION 5 (A), PUBLIC LAW 201. SINCE THE TECHNICAL COOPERATION ADMINISTRATION, DEPARTMENT OF STATE, ACTING PURSUANT TO THE ACT FOR INTERNATIONAL DEVELOPMENT, HAD ADOPTED THE POLICY THAT THE RATES OF COMPENSATION OF EMPLOYEES WHO ARE ASSIGNED TO DUTY OVERSEAS ON POINT IV PROGRAMS WOULD BE COMPARABLE WITH THE RATES ESTABLISHED BY THE FOREIGN SERVICE ACT OF 1946, AS AMENDED, THE ADMINISTRATIVE ACTION TAKEN ON OCTOBER 29, 1951, BY THE TECHNICAL COOPERATION ADMINISTRATION UNDER POINT IV AGENCY MEMORANDUM NO. 59, AUTHORIZING AN ADJUSTMENT IN THE RATES OF COMPENSATION OF SUCH POINT IV EMPLOYEES, REASONABLY MAY BE CONSIDERED AS HAVING AUTHORIZED THE COOPERATING AGENCIES TO COMPENSATE THEIR EMPLOYEES AT THE INCREASED RATE AS OF THE EFFECTIVE DATE THEREOF.

ACCORDINGLY, YOU ARE ADVISED THAT UPON THE BASIS OF POINT IV AGENCY MEMORANDUM NO. 59 (AS DISTINGUISHED FROM MEMORANDUM NO. 64) THIS OFFICE WOULD NOT OBJECT TO YOUR INSTRUCTING YOUR PRIMARY ORGANIZATION UNITS TO MAKE AN ADJUSTMENT OF COMPENSATION OF EMPLOYEES ASSIGNED TO POINT IV PROGRAMS OUTSIDE THE CONTINENTAL UNITED STATES EFFECTIVE ON MONDAY, OCTOBER 29, 1951; PROVIDED, OF COURSE, SUFFICIENT FUNDS ARE AVAILABLE SO THAT A DEFICIENCY WOULD NOT BE CREATED THEREBY IN VIOLATION OF SECTION 1211 OF THE GENERAL APPROPRIATION ACT, 1951, PUBLIC LAW 759, 64 STAT. 765, APPROVED SEPTEMBER 6, 1950, 31 U.S.C. 665.