B-141236, DEC. 11, 1959

B-141236: Dec 11, 1959

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GOMBERG'S SALARY WAS ADMINISTRATIVELY FIXED AT $15. HIS SALARY WAS INCREASED TO $16. GOMBERG'S SALARY COULD HAVE BEEN ESTABLISHED AT $16. THE PRINCIPLE IS WELL ESTABLISHED THAT ADMINISTRATIVE CHANGES IN SALARY RATES MAY NOT BE EFFECTED RETROACTIVELY IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING. GOMBERG'S SALARY COULD HAVE BEEN RAISED TO $16. IS NOT CONTROLLING IN THE MATTER. SINCE IT UNIFORMLY HAS BEEN HELD THAT THE EFFECTIVE DATE OF A SALARY CHANGE RESULTING FROM ADMINISTRATIVE ACTION IS THE DATE THE ACTION IS TAKEN BY THE ADMINISTRATIVE OFFICER VESTED WITH THE PROPER AUTHORITY. GOMBERG ALLOWED THE RETROACTIVE INCREASES IN SALARY BECAUSE THE EMPLOYEES INVOLVED WERE ENTITLED THERETO AS A MATTER OF RIGHT.

B-141236, DEC. 11, 1959

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:

YOUR LETTER OF NOVEMBER 12, 1959, REQUESTS OUR DECISION AS TO WHETHER MR. EPHRAIM H. GOMBERG, THE CONFERENCE DIRECTOR OF THE WHITE HOUSE CONFERENCE ON CHILDREN AND YOUTH, MAY BE PAID AT THE RATE OF $16,500 PER ANNUM RETROACTIVE TO JULY 1, 1959.

MR. GOMBERG'S SALARY WAS ADMINISTRATIVELY FIXED AT $15,000 PER ANNUM AT THE TIME OF HIS APPOINTMENT ON FEBRUARY 19, 1959. ON AUGUST 24, 1959, HIS SALARY WAS INCREASED TO $16,500 PER ANNUM, SUBSEQUENT TO THE ENACTMENT OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE APPROPRIATION ACT, 1960, APPROVED AUGUST 14, 1959, PUBLIC LAW 56-158, 73 STAT. 339, WHICH CONTAINED AN AUTHORIZATION TO PAY A CONFERENCE DIRECTOR A SALARY OF NOT TO EXCEED $16,500.

YOU SAY THAT MR. GOMBERG'S SALARY COULD HAVE BEEN ESTABLISHED AT $16,500 ON JULY 1, 1959, UNDER THE AUTHORITY CONTAINED IN SECTION 101 (A) (2) OF THE ACT OF JULY 1, 1959, 73 STAT. 159, WHICH MAKES APPROPRIATIONS "AVAILABLE TO THE EXTENT AND IN THE MANNER WHICH WOULD BE PROVIDED FOR BY THE PERTINENT APPROPRIATION ACT.'

THE PRINCIPLE IS WELL ESTABLISHED THAT ADMINISTRATIVE CHANGES IN SALARY RATES MAY NOT BE EFFECTED RETROACTIVELY IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING. THE FACT THAT MR. GOMBERG'S SALARY COULD HAVE BEEN RAISED TO $16,500 BY ADMINISTRATIVE ACTION ON JULY 1, 1959, IS NOT CONTROLLING IN THE MATTER, SINCE IT UNIFORMLY HAS BEEN HELD THAT THE EFFECTIVE DATE OF A SALARY CHANGE RESULTING FROM ADMINISTRATIVE ACTION IS THE DATE THE ACTION IS TAKEN BY THE ADMINISTRATIVE OFFICER VESTED WITH THE PROPER AUTHORITY, OR A SUBSEQUENT DATE SPECIFICALLY FIXED BY HIM. SEE 22 COMP. GEN. 526, 528. ALSO SEE 28 ID. 732.

THE CASES CITED BY YOU IN SUPPORT OF A RETROACTIVE INCREASE OF COMPENSATION FOR MR. GOMBERG ALLOWED THE RETROACTIVE INCREASES IN SALARY BECAUSE THE EMPLOYEES INVOLVED WERE ENTITLED THERETO AS A MATTER OF RIGHT. IN THE INSTANT MATTER THE DETERMINATION OF THE SALARY PAYABLE, WITHIN THE AUTHORITY CONFERRED BY THE ACTS CITED ABOVE, WAS A MATTER WITHIN THE ADMINISTRATIVE DISCRETION, BOTH AS TO THE RATE AND THE EFFECTIVE DATE OF ANY INCREASE GRANTED.

IN VIEW OF THE ABOVE COMMENTS, MR. GOMBER'S SALARY LEGALLY MAY NOT BE INCREASED RETROACTIVELY TO JULY 1, 1959.