B-114711, AUGUST 3, 1953, 33 COMP. GEN. 53

B-114711, AUGUST 3, 1953, 33 COMP. GEN. 53

COMPENSATION - AGGREGATE LIMITATION - APPLICABILITY TO MONTHLY AND PER ANNUM WAGE BOARD EMPLOYEES EMPLOYEES OCCUPYING POSITIONS EXEMPT FROM THE CLASSIFICATION ACT OF 1949, AS AMENDED, WHOSE BASIC RATES OF COMPENSATION ARE FIXED ON AN ANNUAL OR MONTHLY BASIS BY A WAGE BOARD, AS THAT TERM IS USED IN THE OVERTIME COMPENSATION PROVISIONS OF SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, ARE SUBJECT TO THE $10,330 PER ANNUM AGGREGATE MAXIMUM COMPENSATION LIMITATION OF SECTION 603 (B) OF THE 1945 ACT, AS AMENDED.

ACTING COMPTROLLER GENERAL FISHER TO THE SECRETARY OF AGRICULTURE, AUGUST 3, 1953:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 14, 1953, REQUESTING THE REMOVAL OF AUDIT EXCEPTIONS ISSUED AT SAN FRANCISCO, NOS. 101121 300010, 300011, AND 300012, IN THE AMOUNTS OF $743.74, $420.82, AND $1403.18 RESPECTIVELY, WHICH EXCEPTIONS COVER COMPENSATION PAYMENTS TO NUMEROUS WAGE BOARD EMPLOYEES ON SEVERAL PAYROLLS DURING VARIOUS PAY PERIODS IN EXCESS OF THE RATE OF $10,330 PER ANNUM--- THE LIMITATION SECTION 603 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 303.

YOU STATE THAT THE EMPLOYEES CONCERNED OCCUPIED POSITIONS EXEMPT FROM THE CLASSIFICATION ACT OF 1949, AS AMENDED; THAT THEIR BASIC RATES OF COMPENSATION WERE FIXED BY A WAGE BOARD PURSUANT TO PROCEDURES AND POLICIES PRESCRIBED IN THE REGULATIONS OF THE AGRICULTURE DEPARTMENT; AND THAT SINCE THE RATES WERE ESTABLISHED AND PUBLISHED AS ANNUAL RATES, THE PERSONS CONCERNED WERE "EMPLOYEES WHOSE BASIC RATE OF COMPENSATION IS FIXED ON AN ANNUAL OR MONTHLY BASIS * * * BY WAGE BOARD," AS THAT TERM IS USED IN SECTION 203 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 297, 5 U.S.C. 913. YOU ENCLOSE A COPY OF AN OPINION DATED NOVEMBER 12, 1952, FROM THE REGIONAL FISCAL AGENT EXPRESSING THE VIEW THAT SECTION 603 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, PRESCRIBING THE $10,000 LIMITATION (LATER INCREASED TO $10,330) IS NOT FOR APPLICATION HERE BECAUSE THE EMPLOYEES HERE INVOLVED ARE WAGE BOARD EMPLOYEES. YOU ALSO REFER TO THE LEGISLATIVE HISTORY OF SECTION 203 OF THE REFERRED-TO ACT, AND TO THE CASE OF THE UNITED STATES V. TOWNSLEY, 323 U.S. 557, IN SUPPORT OF THAT VIEW.

THE DECISION BY THE UNITED STATES SUPREME COURT IN THE TOWNSLEY CASE AND THE LEGISLATIVE HISTORY OF SECTION 203 AND OF SECTION 603 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 WERE GIVEN CAREFUL CONSIDERATION IN UNPUBLISHED DECISION OF THIS OFFICE, B-102754, DATED JUNE 19, 1951, TO THE SECRETARY OF THE NAVY, WHO HAD ADVANCED ARGUMENTS SIMILAR TO THOSE PROPOUNDED IN YOUR LETTER, IN WHICH DECISION IT WAS CONCLUDED THAT MONTHLY AND PER ANNUM WAGE BOARD EMPLOYEES ARE NOT EXEMPTED FROM THE OPERATION OF 603 (B) OF THE 1945 ACT. IT DOES NOT APPEAR THAT YOUR ATTENTION WAS DIRECTED TO THAT DECISION IN THE CORRESPONDENCE BETWEEN YOUR DEPARTMENT AND THE DIVISION OF AUDITS OF THIS OFFICE REGARDING THE MATTER HERE INVOLVED. TO RESTATE HERE THE ARGUMENTS AND DISCUSSION THEREIN STATED WOULD BE NEEDLESS REPETITION, IN LIEU OF WHICH RESTATING I AM ENCLOSING HEREWITH A COPY OF SAID DECISION FOR YOUR INFORMATION.

SINCE THE ARGUMENTS ADVANCED IN YOUR LETTER DO NOT WARRANT ANY DEPARTURE FROM THE CONCLUSION REACHED IN THAT DECISION--- AS WELL AS IN 26 COMP. GEN. 658--- I AM FORCED TO CONCLUDE THAT CREDIT MAY NOT BE ALLOWED IN THE ACCOUNTS OF THE CERTIFYING OFFICERS INVOLVED FOR THE UNLAWFUL PAYMENTS IN QUESTION. HENCE, THE EXCESS PAYMENTS SHOULD BE RECOVERED AND DEPOSITED TO PROPER APPROPRIATIONS.