B-13026, OCTOBER 24, 1940, 20 COMP. GEN. 211

B-13026: Oct 24, 1940

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" THE PRESIDENT IS AUTHORIZED TO FIX SALARY RATES BY REGULATION. ARE NOT REQUIRED TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923. 1940: I HAVE YOUR LETTER OF OCTOBER 18. AS FOLLOWS: SECTION 10 (A) THE PRESIDENT IS AUTHORIZED. OR DETAILED TO A POSITION THE COMPENSATION IN RESPECT OF WHICH IS AT A RATE IN EXCESS OF $5. THE QUESTION OF CIVILIAN COMPENSATION IS NOT PERTINENT. IT HAS BEEN NECESSARY TO APPOINT CIVILIAN PERSONNEL TO SUCH POSITIONS AND IN CONNECTION WITH SUCH APPOINTMENTS THE FOLLOWING QUESTIONS ARE PRESENTED FOR YOUR CONSIDERATION: (A) IS IT PERMITTED TO APPOINT A STATE DIRECTOR OF SELECTIVE SERVICE WHOSE SALARY IS TO BE $5. 600 PER ANNUM IS THE MINIMUM RATE FOR THIS GRADE?

B-13026, OCTOBER 24, 1940, 20 COMP. GEN. 211

CLASSIFICATION - EXEMPTIONS - STATE DIRECTORS OF SELECTIVE SERVICE WHERE A STATUTE HAS VESTED IN THE PRESIDENT THE AUTHORITY "TO PRESCRIBE THE NECESSARY RULES AND REGULATIONS TO CARRY OUT THE PROVISIONS OF THIS ACT" AND "TO APPOINT AND FIX THE COMPENSATION OF SUCH OTHER OFFICERS, AGENTS, AND EMPLOYEES AS HE MAY DEEM NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT," THE PRESIDENT IS AUTHORIZED TO FIX SALARY RATES BY REGULATION, OR TO PRESCRIBE BY REGULATION THE PROCEDURE FOR FIXING SUCH SALARY RATES, EITHER IN ACCORDANCE WITH, OR WITHOUT REGARD TO, THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED. SALARY RATES OF STATE DIRECTORS OF SELECTIVE SERVICE, APPOINTED IN ACCORDANCE WITH THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, ARE NOT REQUIRED TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE DIRECTOR OF SELECTIVE SERVICE, OCTOBER 24, 1940:

I HAVE YOUR LETTER OF OCTOBER 18, 1940, AS FOLLOWS:

SECTION 10 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, READS, IN PART, AS FOLLOWS:

SECTION 10 (A) THE PRESIDENT IS AUTHORIZED---

"/1) TO PRESCRIBE THE NECESSARY RULES AND REGULATIONS TO CARRY OUT THE PROVISIONS OF THIS ACT;

"/3) TO APPOINT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND FIX THE COMPENSATION AT A RATE NOT IN EXCESS OF $10,000 PER ANNUM, OF A DIRECTOR OF SELECTIVE SERVICE WHO SHALL BE DIRECTLY RESPONSIBLE TO HIM AND TO APPOINT AND FIX THE COMPENSATION OF SUCH OTHER OFFICERS, AGENTS, AND EMPLOYEES AS HE MAY DEEM NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT: PROVIDED, THAT ANY OFFICER ON THE ACTIVE OR RETIRED LIST OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR OF ANY RESERVE COMPONENT THEREOF OR ANY OFFICER OR EMPLOYEE OF ANY DEPARTMENT OR AGENCY OF THE UNITED STATES WHO MAY BE ISSUED OR DETAILED TO ANY OFFICE OR POSITION TO CARRY OUT THE PROVISIONS OF THIS ACT (EXCEPT TO OFFICES OR POSITIONS ON LOCAL BOARDS, APPEAL BOARDS, OR AGENCIES OF APPEAL ESTABLISHED OR CREATED PURSUANT TO SECTION 10 (A) (2) MAY SERVE IN AND PERFORM THE FUNCTIONS OF SUCH OFFICE OR POSITION WITHOUT LOSS OF OR PREJUDICE TO HIS STATUS AS SUCH OFFICER IN THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OR RESERVE COMPONENT THEREOF, OR AS SUCH OFFICER OR EMPLOYEE IN ANY DEPARTMENT OR AGENCY OF THE UNITED STATES: PROVIDED FURTHER, THAT ANY PERSON SO APPOINTED, ASSIGNED, OR DETAILED TO A POSITION THE COMPENSATION IN RESPECT OF WHICH IS AT A RATE IN EXCESS OF $5,000 PER ANNUM SHALL BE APPOINTED, ASSIGNED, OR DETAILED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE: PROVIDED FURTHER, THAT THE PRESIDENT MAY APPOINT NECESSARY CLERICAL AND STENOGRAPHIC EMPLOYEES FOR LOCAL BOARDS AND FIX THEIR COMPENSATION WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND WITHOUT REGARD TO THE PROVISIONS OF CIVIL-SERVICE LAWS.

"/4) TO UTILIZE THE SERVICES OF ANY OR ALL DEPARTMENTS AND ANY AND ALL OFFICERS OR AGENTS OF THE UNITED STATES AND TO ACCEPT THE SERVICES OF ALL OFFICERS AND AGENTS OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA AND SUBDIVISIONS THEREOF IN THE EXECUTION OF THIS ACT; AND"

IN THE ADMINISTRATION OF THE ACT IT HAS BEEN NECESSARY TO APPOINT A STATE DIRECTOR OF SELECTIVE SERVICE IN EACH STATE AND TERRITORY. IN MANY INSTANCES IT HAS BEEN POSSIBLE TO APPOINT THE ADJUTANT GENERAL OF A STATE AS THE STATE DIRECTOR OF SELECTIVE SERVICE, UNDER HIS FEDERALLY RECOGNIZED MILITARY RANK. IN CASES OF THIS KIND THE APPOINTEES RECEIVE THE PAY OF THEIR RESPECTIVE MILITARY RANKS, AND THE QUESTION OF CIVILIAN COMPENSATION IS NOT PERTINENT. IN OTHER CASES, IT HAS BEEN NECESSARY TO APPOINT CIVILIAN PERSONNEL TO SUCH POSITIONS AND IN CONNECTION WITH SUCH APPOINTMENTS THE FOLLOWING QUESTIONS ARE PRESENTED FOR YOUR CONSIDERATION:

(A) IS IT PERMITTED TO APPOINT A STATE DIRECTOR OF SELECTIVE SERVICE WHOSE SALARY IS TO BE $5,000 PER ANNUM, OR LESS, AT ONE OF THE STANDARD GOVERNMENT SALARY RATES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, BUT NOT NECESSARILY AT THE MINIMUM ENTRANCE RATE FOR THE RESPECTIVE CLASSIFICATION GRADE? FOR EXAMPLE, MAY AN INITIAL APPOINTMENT BE MADE IN CAF GRADE 12, AT $5,000 PER ANNUM, NOTWITHSTANDING THE FACT THAT $4,600 PER ANNUM IS THE MINIMUM RATE FOR THIS GRADE?

(B) IS IT PERMITTED TO APPOINT A STATE DIRECTOR OF SELECTIVE SERVICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AT AN ENTRANCE RATE OTHER THAN AT THE MINIMUM ENTRANCE RATE FOR AN ESTABLISHED CLASSIFICATION GRADE? FOR EXAMPLE, IT MAY BE DESIRABLE TO MAKE AN APPOINTMENT AT $7,500 PER ANNUM, WHICH IS THE MAXIMUM RATE FOR CAF GRADE 14, BUT NOT THE MINIMUM FOR ANY GRADE.

(C) IF AN APPOINTMENT IS MADE INITIALLY AT THE MINIMUM SALARY FOR AN ESTABLISHED CLASSIFICATION GRADE, FOR EXAMPLE, IN FCS GRADE 12 AT $4,600 PER ANNUM, MAY AN ADMINISTRATIVE PROMOTION BE MADE IN THE SAME CLASSIFICATION GRADE, FOR EXAMPLE, TO $5,000 PER ANNUM, TO BECOME EFFECTIVE THE DATE IMMEDIATELY FOLLOWING THAT ON WHICH THE ORIGINAL APPOINTMENT IS MADE EFFECTIVE?

YOU WILL APPRECIATE THE FACT THAT THE SELECTIVE SERVICE SYSTEM HAS BEEN AND IS WORKING UNDER CONSIDERABLE STRESS IN CARRYING OUT THE PROVISIONS OF THE ACT AND OF THE PRESIDENT'S PROCLAMATION OF SEPTEMBER 16, 1940, CALLING FOR THE REGISTRATION ON OCTOBER 16, 1940, OF ALL PERSONS IN SEVERAL STATES AND IN THE DISTRICT OF COLUMBIA SUBJECT TO SUCH REGISTRATION. THEREFORE YOUR EARLY CONSIDERATION OF THESE QUESTIONS IS EARNESTLY REQUESTED.

SECTION 10 (B) OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, NOT QUOTED IN YOUR LETTER, PROVIDES AS FOLLOWS:

THE PRESIDENT IS FURTHER AUTHORIZED, UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE, TO DELEGATE AND PROVIDE FOR THE DELEGATION OF ANY AUTHORITY VESTED IN HIM UNDER THIS ACT TO SUCH OFFICERS, AGENTS, OR PERSONS AS HE MAY DESIGNATE OR APPOINT FOR SUCH PURPOSE OR AS MAY BE DESIGNATED OR APPOINTED FOR SUCH PURPOSE PURSUANT TO SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE.

PARAGRAPHS 516, 552, AND 558 OF THE SELECTIVE SERVICE REGULATIONS, VOLUME 5, FINANCE, APPROVED BY THE PRESIDENT OCTOBER 4, 1940 ( EXECUTIVE ORDER NO. 8561), PROVIDE, RESPECTIVELY, AS FOLLOWS:

516. RATES OF COMPENSATION FOR OFFICIALS AT STATE HEADQUARTERS.--- THE STATE DIRECTOR OF SELECTIVE SERVICE AND STATE PROCUREMENT OFFICER, IF CIVILIANS, SHALL BE COMPENSATED AT RATES TO BE APPROVED BY THE DIRECTOR OF SELECTIVE SERVICE, UPON THE RECOMMENDATION OF THE GOVERNOR. (SEE SEC. XLIV.)

552. AUTHORIZATION FOR EMPLOYMENT.--- UNLESS OTHERWISE PROVIDED IN THESE REGULATIONS, THE EMPLOYMENT OF CIVILIAN PERSONNEL SHALL BE IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE UNITED STATES CIVIL SERVICE COMMISSION AND THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923.

558. SALARY RATES.--- ALL NEW EMPLOYMENTS SHALL BE AT THE MINIMUM SALARY FOR THE RESPECTIVE CLASSIFICATION GRADE ( CAF-1, CAF-2, ETC.). FOR EXAMPLE, THE EMPLOYMENT OF A JUNIOR TYPIST, CAF-1, SHALL BE AT THE MINIMUM RATE OF THAT GRADE, $1,260 PER ANNUM.

THE GENERAL RULE IS THAT, IN THE ABSENCE OF STATUTORY EXEMPTION, THE SALARY RATES OF PERSONNEL OF ALL FEDERAL AGENCIES, BOTH IN THE DEPARTMENTAL AND FIELD SERVICE, ARE REQUIRED TO BE FIXED IN ACCORDANCE WITH THE SCHEDULE OR RATES PRESCRIBED IN THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND IN ACCORDANCE WITH THE RULES OF SECTION 6 OF THE ORIGINAL CLASSIFICATION ACT APPROVED MARCH 4, 1923, 42 STAT. 1490. 14 COMP. GEN. 420; 16 ID. 1107; 17 ID. 578; 18 ID. 223; ID. 887; 19 ID. 20. BUT WHERE, AS IN SECTION 10 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SUPRA, THE CONGRESS HAS VESTED IN THE PRESIDENT THE AUTHORITY "TO PRESCRIBE THE NECESSARY RULES AND REGULATIONS TO CARRY OUT THE PROVISIONS OF THIS ACT" AND "TO APPOINT AND FIX THE COMPENSATION OF SUCH OTHER OFFICERS, AGENTS, AND EMPLOYEES AS HE MAY DEEM NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT," THE CONCLUSION IS WARRANTED THAT THE INTENT OF THE STATUTE IS TO AUTHORIZE THE PRESIDENT TO FIX SALARY RATES BY REGULATION OR TO PRESCRIBE BY REGULATION THE PROCEDURE FOR FIXING SUCH SALARY RATES, EITHER IN ACCORDANCE WITH, OR WITHOUT REGARD TO, THE PROVISIONS OF THE CLASSIFICATION ACT. IN OTHER WORDS, THE STATUTE APPEARS TO RECOGNIZE AN EXCEPTION TO THE GENERAL RULE REFERRED TO IN THE OPENING SENTENCE OF THIS PARAGRAPH.

THE STATUTE AUTHORIZES THE PRESIDENT TO DELEGATE HIS AUTHORITY TO FIX SALARY RATES TO HIS SUBORDINATES. PARAGRAPH 516 OF THE REGULATIONS, ABOVE QUOTED, AUTHORIZING THE DIRECTOR OF SELECTIVE SERVICE TO APPROVE THE SALARY RATES OF STATE DIRECTORS OF SELECTIVE SERVICE UPON THE RECOMMENDATION OF THE GOVERNOR OF THE STATE, PRESCRIBES A PROCEDURE FOR FIXING SALARY RATES ,OTHERWISE" THAN IN ACCORDANCE WITH THE CLASSIFICATION ACT, THEREBY MAKING AN EXCEPTION TO THE PROVISIONS OF PARAGRAPH 552, OF THE REGULATIONS. COMPARE THE TERMS OF PARAGRAPH 554 OF THE REGULATIONS EXPRESSLY PROVIDING THAT THE APPOINTMENT OF CIVILIAN EMPLOYEES IN A STATE OFFICE SHALL BE "SUBJECT TO PARAGRAPH 552" OF THE REGULATIONS. PARAGRAPH 558 OF THE REGULATIONS, WHICH IS A RESTATEMENT OF RULE 6, SECTION 6, OF THE ORIGINAL CLASSIFICATION ACT OF 1923, PROVIDING THAT ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM SALARY RATE OF THE APPROPRIATE GRADE, APPLIES ONLY TO CASES IN WHICH THE SALARY RATES OF THE POSITIONS ARE REQUIRED BY THE REGULATIONS TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT.

ACCORDINGLY, AS THE STATUTE AND REGULATIONS DO NOT REQUIRE THE SALARY RATES OF STATE DIRECTORS OF SELECTIVE SERVICE TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED, QUESTIONS (A), (B), AND (C) ARE ANSWERED IN THE AFFIRMATIVE. SEE 1 COMP. GEN. 1005; 17 ID. 563.