B-143879, OCTOBER 12, 1960, 40 COMP. GEN. 210

B-143879, OCTOBER 12, 1960, 40 COMP. GEN. 210

CIVILIAN EMPLOYEES - OVERSEAS ALLOWANCES - SCIENTIFIC OR PROFESSIONAL POSITIONS - RATES ESTABLISHED ADMINISTRATIVELY THE LAW AUTHORIZING THE PAYMENT OF ADDITIONAL COMPENSATION--- EITHER TERRITORIAL POST DIFFERENTIAL OR TERRITORIAL COST-OF-LIVING ALLOWANCES- - TO PERSONS STATIONED OUTSIDE THE CONTINENTAL UNITED STATES, 5 U.S.C. 118H, APPLIES ONLY TO OFFICERS OR EMPLOYEES "WHOSE RATES OF BASIC COMPENSATION ARE FIXED BY STATUTE; " THEREFORE, THE APPOINTEE TO A NEW PROFESSIONAL OR SCIENTIFIC POSITION TO BE ESTABLISHED IN THE STATE OF HAWAII, PURSUANT TO THE ACT OF AUGUST 1, 1947, 10 U.S.C. 1581, WHOSE SALARY WILL BE FIXED ADMINISTRATIVELY SUBJECT TO APPROVAL OF THE CIVIL SERVICE COMMISSION, MAY NOT BE PAID THE ADDITIONAL COST-OF-LIVING ALLOWANCE PAYABLE TO OTHERWISE ELIGIBLE EMPLOYEES STATIONED IN HAWAII.

TO THE SECRETARY OF THE AIR FORCE, OCTOBER 12, 1960:

ON AUGUST 31, 1960, YOUR SPECIAL ASSISTANT FOR MANPOWER, PERSONNEL AND RESERVE FORCES, REQUESTED OUR DECISION ON CERTAIN QUESTIONS (PARAPHRASED BELOW) CONCERNING THE AMOUNT OF BASIC COMPENSATION AND COST-OF-LIVING ALLOWANCES PROPERLY PAYABLE TO THE APPLICANT NOW BEING CONSIDERED FOR EMPLOYMENT--- IF AND WHEN APPOINTED--- TO A PROPOSED NEW POSITION WITHIN THE DEPARTMENT OF THE AIR FORCE IN THE STATE OF HAWAII.

THE QUESTIONS (AS PARAPHRASED) ARE:

1. WHETHER THE APPOINTEE TO THE NEW POSITION NOW BEING PROCESSED FOR HAWAII MAY BE PAID A ( TERRITORIAL) COST-OF-LIVING ALLOWANCE AS PRESCRIBED BY THE CIVIL SERVICE COMMISSION.

2. IF THE NEW APPOINTEE IS ENTITLED TO A COST-OF-LIVING ALLOWANCE, IS THE PERCENTAGE INCREASE TO BE COMPUTED UPON THE MINIMUM STATUTORY RATE ($12,500), OR UPON THE ACTUAL BASIC COMPENSATION ADMINISTRATIVELY FIXED FOR THE POSITION?

AUTHORITY FOR THE NEW CIVILIAN POSITION NOW IN THE PROCESS OF BEING ESTABLISHED IS CONTAINED IN THE ACT OF AUGUST 1, 1947, PUBLIC LAW 313, 61 STAT. 715, AS AMENDED (10 U.S.C. 1581), TO CARRY OUT RESEARCH AND DEVELOPMENT RELATING TO NATIONAL DEFENSE, MILITARY MEDICINE, AND OTHER ACTIVITIES OF THE DEPARTMENT OF DEFENSE THAT REQUIRE THE SERVICES OF SPECIALLY QUALIFIED SCIENTIFIC OR PROFESSIONAL PERSONNEL. THE LAW PROVIDES THAT POSITIONS ESTABLISHED PURSUANT THERETO SHALL BE INCLUDED IN THE CLASSIFIED CIVIL SERVICE, AND AUTHORIZES "THE SECRETARY" TO FIX THE COMPENSATION THEREFOR AT RATES OF NOT LESS THAN $12,500 PER ANNUM, NOR MORE THAN $19,000 PER ANNUM, SUBJECT TO THE APPROVAL OF THE CIVIL SERVICE COMMISSION.

IN ADDITION TO THE BASIC RATES OF COMPENSATION ABOVE STIPULATED, ADDITIONAL COMPENSATION IN THE FORM OF ALLOWANCES AND DIFFERENTIALS WHEN PROPERLY AUTHORIZED IS PAYABLE UNDER SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, 62 STAT. 194, BOTH P.L. 492, AS AMENDED BY SECTION 104 OF THE SUPPLEMENTAL INDEPENDENT OFFICES APPROPRIATION ACT, 1949, 62 STAT. 1205, 5 U.S.C. 118H, AND THE REGULATIONS ISSUED THEREUNDER ( EXECUTIVE ORDER NO. 10,000, AS AMENDED), TO CERTAIN ELIGIBLE EMPLOYEES STATIONED OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA.

SECTION 207 OF THE ACT OF APRIL 20, 1948, AS AMENDED, 5 U.S.C. 118H PROVIDES IN PERTINENT PART AS FOLLOWS:

ANY APPROPRIATIONS OR FUNDS AVAILABLE TO THE EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND WHOLLY OWNED GOVERNMENT CORPORATIONS FOR THE PAYMENT OF SALARIES AND COMPENSATION TO PERSONS STATIONED OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA WHOSE RATES OF BASIC COMPENSATION ARE FIXED BY STATUTE, SHALL BE AVAILABLE FOR THE PAYMENT OF ADDITIONAL COMPENSATION TO SUCH PERSONS, BASED ON LIVING COSTS SUBSTANTIALLY HIGHER THAN THE DISTRICT OF COLUMBIA, * * * PROVIDED, THAT SUCH ADDITIONAL COMPENSATION * * * SHALL BE PAID ONLY IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT * * * (ITALICS SUPPLIED.)

SECTION 207, PART II, OF EXECUTIVE ORDER NO. 10,000, DATED SEPTEMBER 16, 1948, READS AS FOLLOWS:

SEC. 207. AGENCIES COVERED. SUBJECT TO THE PROVISIONS OF SECTION 207 OF THE ACT AND OF THIS PART, EVERY EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AND WHOLLY OWNED GOVERNMENT CORPORATION SHALL PAY (A) A TERRITORIAL POST DIFFERENTIAL FIXED UNDER SECTION 202 HEREOF TO EACH OF ITS EMPLOYEES WHOSE BASIC COMPENSATION IS FIXED BY STATUTE AND WHO IS LOCATED AT THE POST FOR WHICH THAT DIFFERENTIAL HAS BEEN FIXED, AND (B) A TERRITORIAL COST-OF-LIVING ALLOWANCE FIXED UNDER SECTION 205 HEREOF TO EACH OF ITS EMPLOYEES WHOSE BASIC COMPENSATION IS FIXED BY STATUTE AND WHO IS LOCATED AT THE POST FOR WHICH THAT ALLOWANCE HAS BEEN FIXED.

AT THE PRESENT TIME THE REGULATIONS OF THE CIVIL SERVICE COMMISSION (SECTION 350.11, PART 350, FEDERAL PERSONNEL MANUAL) PRESCRIBE A COST OF- LIVING ALLOWANCE TO BE PAID OTHERWISE ELIGIBLE EMPLOYEES STATIONED IN HAWAII (EXCLUDING THOSE STATIONED ON OCEAN OR KURE ISLAND OR PALMYRA ISLAND) EQUAL TO 17 1/2 PERCENT OF THEIR BASIC RATE OF COMPENSATION.

UNDER SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1949, AS AMENDED, SUPRA, 15 U.S.C. 118H), THE APPROPRIATIONS OF YOUR DEPARTMENT ARE AVAILABLE FOR THE PAYMENT OF ADDITIONAL COMPENSATION--- EITHER TERRITORIAL POST DIFFERENTIAL OR TERRITORIAL COST-OF-LIVING ALLOWANCES--- TO ONLY THOSE PERSONS "WHOSE RATES OF BASIC COMPENSATION ARE FIXED BY STATUTE.' IN THE INSTANT CASE, SINCE THE PROPOSED RATE OF BASIC COMPENSATION FOR THE NEW POSITION WILL BE FIXED ADMINISTRATIVELY- - SUBJECT TO APPROVAL OF THE CIVIL SERVICE COMMISSION--- OUR VIEW IS THAT THE APPLICANT FOR SUCH POSITION--- IF AND WHEN APPOINTED--- WILL NOT BE ELIGIBLE FOR AND, THEREFORE, MAY NOT BE PAID A COST-OF-LIVING ALLOWANCE UNDER THE PROVISIONS OF 5 U.S.C. 118H. SEE B-126462, DATED FEBRUARY 14, 1956. OUR OFFICE IS BOUND BY THE TERMS OF THE STATUTE AND VALID REGULATIONS WHICH DO NOT PERMIT THE PAYMENT OF COST-OF-LIVING ALLOWANCES UNLESS THE RATES OF BASIC COMPENSATION ARE "FIXED BY STATUTE.' COMPARE THE PROVISIONS OF SECTION 201 OF THE OVERSEAS DIFFERENTIALS AND ALLOWANCES ACT, PUBLIC LAW 86-707, 74 STAT. 793, APPROVED SEPTEMBER 6, 1960, APPLICABLE TO FOREIGN AREAS. QUESTION 1 (PARAPHRASED ABOVE) IS ANSWERED ACCORDINGLY. IN VIEW OF THIS ANSWER, AN ANSWER TO QUESTION 2 IS NOT REQUIRED.