B-130246, FEB. 26, 1957

B-130246: Feb 26, 1957

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THE 10 POSITIONS REFERRED TO ABOVE WERE IN EXISTENCE. WAS APPROVED. EXCEPT THAT THE EXISTING RATE OF BASIC COMPENSATION OF ANY OFFICER OR EMPLOYEE TO WHOM SUCH SECTION APPLIES WHICH IS LESS THAN A RATE OF $12. AS FIXED BY SECTION 120 OF THAT STATUTE IS THE BEGINNING OF THE FIRST PAY PERIOD COMMENCING AFTER JUNE 30. THE SECTION IS NOT SELF EXECUTING. AS FOLLOWS: "THE CHAIRMAN OF THE NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS IS AUTHORIZED TO ESTABLISH AND FIX THE COMPENSATION FOR. UNTIL APPROPRIATE ACTION IS TAKEN UNDER AUTHORITY OF SUBSECTION (A) OF SUCH FIRST SECTION OF SUCH ACT OF AUGUST 1. THAT ANY INCUMBENT OCCUPYING ONE OF THE 10 EXISTING POSITIONS SHALL CONTINUE TO RECEIVE HIS FORMER RATE OF COMPENSATION UNTIL APPROPRIATE ACTION IS TAKEN UNDER AUTHORITY OF SUBSECTION (A) OF SECTION 1 OF PUBLIC LAW 313.

B-130246, FEB. 26, 1957

TO THE HONORABLE PHILIP YOUNG, CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:

YOUR LETTER OF JANUARY 3, 1957, REQUESTS OUR DECISION WHETHER THE COMPENSATION OF INCUMBENTS AND NEW APPOINTEES OF CERTAIN PROFESSIONAL AND SCIENTIFIC POSITIONS IN THE NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS MAY, UNDER THE CIRCUMSTANCES HEREINAFTER RELATED, BE INCREASED OR PAID RETROACTIVELY.

THE ACT OF JULY 13, 1949, 63 STAT. 410, PUBLIC LAW 167, AMENDING THE ACT OF AUGUST 1, 1947, 61 STAT. 715, PUBLIC LAW 313, AUTHORIZED THE CHAIRMAN, NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS, TO ESTABLISH NOT TO EXCEED 10 POSITIONS IN THE PROFESSIONAL AND SCIENTIFIC SERVICE AND TO FIX THE SALARY RATES THEREOF AT NOT LESS THAN $10,000 PER ANNUM NOR MORE THAN $15,000 PER ANNUM, SUBJECT TO THE APPROVAL OF THE CIVIL SERVICE COMMISSION. SECTION 2 OF PUBLIC LAW 313 PROVIDES THAT APPOINTMENTS TO SUCH POSITIONS SHALL BE MADE WITHOUT COMPETITIVE EXAMINATION UPON APPROVAL OF THE PROPOSED APPOINTEE'S QUALIFICATIONS BY THE CIVIL SERVICE COMMISSION.

THE 10 POSITIONS REFERRED TO ABOVE WERE IN EXISTENCE, AND OCCUPIED WHEN THE ACT OF JULY 31, 1956, 70 STAT. 736, PUBLIC LAW 854, WAS APPROVED--- ALL REQUIREMENTS OF SECTION 1 OF PUBLIC LAW 167 AND SECTION 2 OF PUBLIC LAW 313 HAVING BEEN MET. SECTION 117 (A) OF PUBLIC LAW 854 AMENDED THE FIRST SECTION OF THE ACT OF AUGUST 1, 1947, AS AMENDED, RELATING TO SALARY LIMITATIONS ON PROFESSIONAL AND SCIENTIFIC POSITIONS BY STRIKING OUT $10,000" AND "$15,000" AND INSERTING IN LIEU THEREOF "$12,500" AND "$19,000," RESPECTIVELY. SECTION 118, TITLE I OF PUBLIC LAW 854 PROVIDES AS FOLLOWS:

"THE SALARY AMENDMENTS CONTAINED IN SECTION 117 SHALL NOT AFFECT THE AUTHORITY OF THE CIVIL SERVICE COMMISSION OR THE PROCEDURE FOR FIXING THE PAY OF INDIVIDUAL OFFICERS OR EMPLOYEES UNDER THE STATUTES THEREIN AMENDED; EXCEPT THAT THE EXISTING RATE OF BASIC COMPENSATION OF ANY OFFICER OR EMPLOYEE TO WHOM SUCH SECTION APPLIES WHICH IS LESS THAN A RATE OF $12,500 PER ANNUM SHALL BE INCREASED TO SUCH RATE ON THE EFFECTIVE DATE OF THIS TITLE.'

THE EFFECTIVE DATE OF TITLE I, PUBLIC LAW 854, AS FIXED BY SECTION 120 OF THAT STATUTE IS THE BEGINNING OF THE FIRST PAY PERIOD COMMENCING AFTER JUNE 30, 1956. SECTION 118 AUTOMATICALLY INCREASES THE RATE OF COMPENSATION OF ANY SUCH OFFICERS AND EMPLOYEES RECEIVING LESS THAN $12,500 ON THE EFFECTIVE DATE OF TITLE I, BUT AS TO THESE OFFICERS RECEIVING $12,500 PER ANNUM OR MORE, THE SECTION IS NOT SELF EXECUTING.

SECTION 501 (A), TITLE V OF PUBLIC LAW 854, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"THE CHAIRMAN OF THE NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS IS AUTHORIZED TO ESTABLISH AND FIX THE COMPENSATION FOR, IN THE HEADQUARTERS AND RESEARCH STATIONS OF THE NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS, NOT TO EXCEED THIRTY POSITIONS IN THE PROFESSIONAL AND SCIENTIFIC SERVICE, EACH SUCH POSITION BEING ESTABLISHED IN ORDER TO ENABLE THE NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS TO SECURE AND RETAIN THE SERVICES OF SPECIALLY QUALIFIED PERSONNEL NECESSARY IN THE DISCHARGE OF THE DUTY OF THE COMMITTEE TO SUPERVISE AND DIRECT THE SCIENTIFIC STUDY OF THE PROBLEMS OF FLIGHT WITH A VIEW TO THEIR PRACTICAL SOLUTION.'

SECTION 501 (B), 70 STAT. 762, PROVIDES AS FOLLOWS:

"NOTHING CONTAINED IN THE AMENDMENT MADE TO SUCH ACT OF AUGUST 1, 1947, BY SUBSECTION (A) OF THIS SECTION SHALL AFFECT ANY POSITION EXISTING UNDER AUTHORITY OF SUBSECTION (A) OF THE FIRST SECTION OF SUCH ACT OF AUGUST 1, 1947, AS IN EFFECT IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF SUCH AMENDMENT, THE COMPENSATION ATTACHED TO ANY SUCH POSITION, AND ANY INCUMBENT THEREOF, HIS APPOINTMENT THERETO, AND HIS RIGHT TO RECEIVE THE COMPENSATION ATTACHED THERETO, UNTIL APPROPRIATE ACTION IS TAKEN UNDER AUTHORITY OF SUBSECTION (A) OF SUCH FIRST SECTION OF SUCH ACT OF AUGUST 1, 1947, AS CONTAINED IN THE AMENDMENT MADE BY SUBSECTION (A) OF THIS SECTION.'

SECTION 501 (A) INCREASED THE NUMBER OF AUTHORIZED POSITIONS TO 30 WHICH NUMBER INCLUDES THE 10 POSITIONS AUTHORIZED BY PUBLIC LAW 167. SECTION 501 (B) PROVIDES, IN EFFECT, THAT ANY INCUMBENT OCCUPYING ONE OF THE 10 EXISTING POSITIONS SHALL CONTINUE TO RECEIVE HIS FORMER RATE OF COMPENSATION UNTIL APPROPRIATE ACTION IS TAKEN UNDER AUTHORITY OF SUBSECTION (A) OF SECTION 1 OF PUBLIC LAW 313, AS CONTAINED IN THE AMENDMENT MADE BY SUBSECTION (A) OF SECTION 501 ABOVE.

UNDER THE AUTHORITY CONTAINED IN SECTIONS 501 (A) AND (B), THE CHAIRMAN, NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS, REESTABLISHED ON AUGUST 2, 1956, THE 10 POSITIONS PREVIOUSLY AUTHORIZED AND RAISED THE COMPENSATION OF THE INCUMBENTS TO RATES WITHIN THE NEWLY AUTHORIZED SALARY RANGES. THE CHAIRMAN SO ADVISED THE COMMISSION BY LETTER OF THE SAME DATE AND SAID: "UPON APPROVAL OF THE CIVIL SERVICE COMMISSION THE REVISED RATES OF COMPENSATION OF THESE 10 POSITIONS SHALL TAKE EFFECT AT THE BEGINNING OF THE FIRST PAY PERIOD COMMENCING AFTER JUNE 30, 1956.'

UNDER THE AUTHORITY OF SECTION 118, PUBLIC LAW 854, THE COMMISSION REVIEWED THE RATES ADMINISTRATIVELY FIXED, AND ALSO, REEVALUATED THE QUALIFICATIONS OF THE INCUMBENTS OF THE 10 POSITIONS. IT NOTIFIED THE CHAIRMAN OF ITS APPROVAL BY COMMISSION LETTER DATED NOVEMBER 19, 1956. CONCERNING THIS GROUP, YOU REQUEST OUR DECISION REGARDING THE PROPER EFFECTIVE DATE OF THE INCREASES IN COMPENSATION.

UNDER SECTION 501 (A) OF PUBLIC LAW 854, IT WOULD APPEAR THE CHAIRMAN HAS AUTHORITY TO ESTABLISH THE POSITIONS AND FIX THE RATES OF COMPENSATION ATTACHED THERETO, SUBJECT TO SUBSEQUENT COMMISSION APPROVAL. HOWEVER, UNDER SECTION 2 OF PUBLIC LAW 313, THE COMMISSION CLEARLY HAS THE AUTHORITY AND DUTY TO PASS UPON THE QUALIFICATIONS OF ANY PROSPECTIVE INCUMBENTS OF THE POSITIONS. WE UNDERSTAND THAT THE REESTABLISHED POSITIONS ARE IDENTICAL WITH THOSE INITIALLY ESTABLISHED UNDER PUBLIC LAW 167 AND NOW ARE OCCUPIED BY THE INCUMBENTS OF THE FORMER POSITIONS WHOSE QUALIFICATIONS HERETOFORE HAVE BEEN APPROVED BY THE COMMISSION. IN THESE CIRCUMSTANCES, WE WOULD NOT--- IN THE ABSENCE OF OBJECTION BY THE COMMISSION--- REQUIRE THAT THE QUALIFICATIONS OF THOSE OFFICERS AND EMPLOYEES BE REAPPROVED AS A CONDITION PRECEDENT TO THEIR ENTITLEMENT TO THE INCREASED SALARY RATES, EFFECTIVE AS OF THE DATE OF ADMINISTRATIVE ACTION. IN VIEW OF SECTION 501 (B), THE INCREASED RATES COULD NOT BE EFFECTIVE PRIOR TO AUGUST 2, 1956. YOUR QUESTION CONCERNING THAT GROUP IS ANSWERED ACCORDINGLY.

YOUR FURTHER QUESTION CONCERNS ONLY THE APPOINTEES TO THE NEWLY AUTHORIZED POSITIONS. ON AUGUST 10, 1956, THE CHAIRMAN, NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS ESTABLISHED THE 20 ADDITIONAL POSITIONS AUTHORIZED BY SECTION 501 (A) AND FIXED THE RATES OF COMPENSATION ATTACHED THERETO, SUBJECT TO APPROVAL BY THE COMMISSION. WE ARE INFORMALLY ADVISED THAT ON THE SAME DATE, 19 OF THE 20 POSITIONS WERE FILLED BY ASSIGNMENT OF OFFICERS AND EMPLOYEES OF THE ADVISORY COMMITTEE THEN HOLDING POSITIONS, THE QUALIFICATIONS FOR WHICH WERE COMPARABLE WITH THOSE REQUIRED FOR THE NEWLY ESTABLISHED POSITIONS. THE REMAINING POSITION WAS NOT FILLED UNTIL AFTER APPROVAL BY THE COMMISSION OF THE PROPOSED INCUMBENT'S QUALIFICATIONS.

IN VIEW OF SECTION 2 OF PUBLIC LAW 313, WE CONCLUDE THAT NONE OF THE 30 INCUMBENTS COULD LAWFULLY BE ASSIGNED, PROMOTED, OR APPOINTED TO ANY OF THE NEW POSITIONS UNTIL SUCH TIME AS THE COMMISSION HAD APPROVED THEIR QUALIFICATIONS ON NOVEMBER 19, 1956. IT APPEARS, HOWEVER, THAT WE MIGHT BE WARRANTED, ON THE PRESENT RECORD, IN CONCLUDING THAT INCUMBENTS AFFECTED HELD A DE FACTO STATUS FROM AUGUST 10 TO NOVEMBER 19, 1956, AND THEY WOULD, IN THAT EVENT, BE ENTITLED TO RETAIN THE COMPENSATION PAID THEM FOR THAT PERIOD OF SERVICE. ACCORDINGLY, TO REGULARIZE THEIR EMPLOYMENT DURING THE PERIOD IN QUESTION, WE WOULD, IN THIS INSTANCE, CONCUR IN YOUR SUGGESTION THAT THE COMMISSION DETERMINE WHETHER THE EMPLOYEES CONCERNED MET THE QUALIFICATION REQUIREMENTS ON AUGUST 10, 1956. IF THE COMMISSION FINDS THAT THEY WERE SO QUALIFIED, NO FURTHER QUESTION IN THAT REGARD WILL BE RAISED CONCERNING THE COMPENSATION PAID.

SHOULD THE INCREASED RATES HAVE BEEN MADE EFFECTIVE REGARDING MEMBERS OF EITHER GROUP PRIOR TO THE DATE ADMINISTRATIVE ACTION WAS TAKEN THE AMOUNTS INVOLVED WOULD BE FOR RECOVERY AND WE SHOULD APPRECIATE YOUR ADVISING US IN THAT REGARD.