B-139842, JUL. 7, 1959

B-139842: Jul 7, 1959

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WHOSE FINAL SALARY IN THAT CAPACITY WAS $22. WHO HAS BEEN APPOINTED TO A POSITION IN YOUR AGENCY MAY HAVE HIS SALARY FIXED AT THE MAXIMUM RATE OF THE GRADE IN WHICH APPOINTED OR AT THE MINIMUM RATE THEREOF UNDER THE PROVISIONS OF 5 U.S.C.A. 1132 (C). FROM YOUR GENERAL COUNSEL EXPRESSING HIS OPINION REGARDING THE QUESTION. 5 U.S.C.A. 1132 (C) READS AS FOLLOWS: "ANY EMPLOYEE IN THE LEGISLATIVE BRANCH WHOSE COMPENSATION IS DISBURSED BY THE SECRETARY OF THE SENATE OR THE CLERK OF THE HOUSE OF REPRESENTATIVES. MAY UPON APPOINTMENT TO A POSITION SUBJECT TO THIS CHAPTER HAVE HIS INITIAL RATE OF COMPENSATION FIXED AT THE MINIMUM RATE OF THE APPROPRIATE GRADE. WAS ENACTED TO OVERCOME THE EFFECT OF OUR DECISION 28 COMP.

B-139842, JUL. 7, 1959

TO THE HONORABLE NORMAN P. MASON, ADMINISTRATOR, HOUSING AND HOME FINANCE AGENCY:

YOUR LETTER OF JUNE 5, 1959, ASKS WHETHER A FORMER CONGRESSMAN, WHOSE FINAL SALARY IN THAT CAPACITY WAS $22,500 PER YEAR, WHO HAS BEEN APPOINTED TO A POSITION IN YOUR AGENCY MAY HAVE HIS SALARY FIXED AT THE MAXIMUM RATE OF THE GRADE IN WHICH APPOINTED OR AT THE MINIMUM RATE THEREOF UNDER THE PROVISIONS OF 5 U.S.C.A. 1132 (C).

YOU FURNISH WITH YOUR SUBMISSION A LETTER DATED MAY 1, 1959, FROM THE HONORABLE H. R. GROSS, HOUSE OF REPRESENTATIVES, TO YOU, EXPRESSING HIS VIEW CONCERNING THE MATTER, AND A MEMORANDUM DATED JUNE 5, 1959, FROM YOUR GENERAL COUNSEL EXPRESSING HIS OPINION REGARDING THE QUESTION.

5 U.S.C.A. 1132 (C) READS AS FOLLOWS:

"ANY EMPLOYEE IN THE LEGISLATIVE BRANCH WHOSE COMPENSATION IS DISBURSED BY THE SECRETARY OF THE SENATE OR THE CLERK OF THE HOUSE OF REPRESENTATIVES, AND WHO HAS COMPLETED TWO OR MORE OF YEARS OF SERVICE AS SUCH AN EMPLOYEE, MAY UPON APPOINTMENT TO A POSITION SUBJECT TO THIS CHAPTER HAVE HIS INITIAL RATE OF COMPENSATION FIXED AT THE MINIMUM RATE OF THE APPROPRIATE GRADE, OR AT ANY STEP OF SUCH GRADE THAT DOES NOT EXCEED THE HIGHEST PREVIOUS RATE OF COMPENSATION RECEIVED BY HIM DURING SUCH SERVICE IN THE LEGISLATIVE BRANCH.'

THE FOREGOING STATUTORY PROVISION, GRANTING ADMINISTRATIVE DISCRETION IN THE USE OF THE HIGHEST PREVIOUS RATE ATTAINED IN THE LEGISLATIVE BRANCH, WAS ENACTED TO OVERCOME THE EFFECT OF OUR DECISION 28 COMP. GEN. 455. THAT DECISION HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

"UPON APPOINTMENT IN A POSITION UNDER THE CLASSIFICATION ACT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, THE SALARY RATES ATTAINED BY EMPLOYEES IN THE POSITIONS IN AGENCIES UNDER THE LEGISLATIVE OR JUDICIAL BRANCH OF THE GOVERNMENT--- NOT OTHERWISE SUBJECT TO THE CLASSIFICATION ACT--- MAY NOT BE USED AS A BASIS FOR FIXING THEIR INITIAL SALARY RATES ABOVE THE MINIMUM OF THE GRADE, UNDER THE RULE IN 26 COMP. GEN. 368, RESPECTING THE FIXING OF INITIAL SALARY RATES OF EMPLOYEES UPON TRANSFER, PROMOTION, REINSTATEMENT, ETC., IN CLASSIFIED POSITIONS ON THE BASIS OF THE HIGHER RATE ATTAINED IN ANY PREVIOUS GOVERNMENT POSITION.'

SEE PAGES 2570 AND 71 U.S. CODE, CONGRESSIONAL AND ADMINISTRATIVE NEWS, 85TH CONGRESS, 2D SESSION, 1958.

UNDER 2 U.S.C.A. 78, THE SERGEANT AT ARMS OF THE HOUSE OF REPRESENTATIVES IS CHARGED WITH THE DUTY, AMONG OTHERS, TO KEEP THE ACCOUNTS FOR THE PAY AND MILEAGE OF MEMBERS AND DELEGATES AND PAY THEM AS PROVIDED BY LAW. FURTHER, UNDER 2 U.S.C.A. 80, THE MONEYS WHICH HAVE BEEN, OR MAY BE, APPROPRIATED FOR THE COMPENSATION AND MILEAGE OF MEMBERS AND DELEGATES SHALL BE PAID ON REQUISITIONS DRAWN BY THE SERGEANT AT ARMS OF THE HOUSE OF REPRESENTATIVES AND SHALL BE KEPT, DISBURSED, AND ACCOUNTED FOR BY HIM ACCORDING TO LAW AND HE SHALL BE A DISBURSING OFFICER. BY THE TERMS OF 2 U.S.C.A. 83, THE SERGEANT AT ARMS OF THE HOUSE OF REPRESENTATIVES SHALL CONTINUE IN HIS OFFICE UNTIL A SUCCESSOR IS CHOSEN AND QUALIFIED.

SINCE THE SERGEANT AT ARMS, UNDER THE FOREGOING STATUTORY PROVISIONS, DISBURSES THE COMPENSATION OF THE MEMBERS OF THE HOUSE OF REPRESENTATIVES, IS A CONTINUING OFFICIAL THEREOF, AND SINCE, ALSO, THE LANGUAGE OF 5 U.S.C.A. 1132 (C) ABOVE, APPLIES ONLY TO "ANY EMPLOYEE OF THE LEGISLATIVE BRANCH WHOSE COMPENSATION IS DISBURSED BY BY THE * * * CLERK OF THE HOUSE OF REPRESENTATIVES * * *," AND FURTHER, HAVING IN MIND THE PURPOSE OF THE LATTER STATUTE AS INDICATED ABOVE WE ARE REQUIRED TO CONCLUDE THAT THE STATUTORY PROVISION HAS NO APPLICATION TO EX-MEMBERS OF CONGRESS.

THEREFORE, SINCE THE APPOINTMENT HERE REPRESENTS A NEW APPOINTMENT, OF AN EX-MEMBER OF CONGRESS TO A POSITION IN THE EXECUTIVE BRANCH, THE PROPER SALARY FOR THE POSITION MUST BE AT THE MINIMUM RATE OF THE GRADE.