B-15312, MARCH 19, 1941, 20 COMP. GEN. 538

B-15312: Mar 19, 1941

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1941: I HAVE A LETTER DATED FEBRUARY 25. WAS REFERRED BY THIS OFFICE TO THE CIVIL SERVICE COMMISSION FOR THEIR OPINION. "1. IT IS REQUESTED THAT THIS OFFICE BE ADVISED AS TO WHETHER OR NOT CIVIL SERVICE RULE 2. THE REPLY RECEIVED FROM THE CIVIL SERVICE COMMISSION IS ALSO QUOTED BELOW: " REFERENCE IS MADE TO THE DEPARTMENT'S FIRST INDORSEMENT OF JANUARY 11. SUBDIVISION I OF SCHEDULE A. " YOU ARE ADVISED THAT THE PROVISION IN THE WAR DEPARTMENT CIVIL APPROPRIATION ACT. SUBDIVISION 1 OF SCHEDULE A READS IN PART AS FOLLOWS: " "* * * APPOINTMENTS WHICH MAY BE MADE TO CLERICAL POSITIONS WITHOUT EXAMINATION UNDER THIS PROVISION ARE LIMITED TO THOSE POSITIONS PAYING A TOTAL AMOUNT OF $100 PER MONTH OR LESS.

B-15312, MARCH 19, 1941, 20 COMP. GEN. 538

CIVIL SERVICE - EXEMPTIONS - EFFECT OF CHANGES ON COMPENSATION OF PERSONS ALREADY EMPLOYED EMPLOYEES PROPERLY APPOINTED PRIOR TO JUNE 24, 1940, WITHOUT CIVIL SERVICE EXAMINATION IN ACCORDANCE WITH PARAGRAPH 8, SCHEDULE A, OF THE CIVIL SERVICE RULES AND REGULATIONS, WHICH PROVIDES THAT APPOINTMENTS TO "CLERICAL POSITIONS ON THE ISTHMUS OF PANAMA PAYING $100 * * * PER MONTH OR LESS" MAY BE MADE WITHOUT EXAMINATION, MAY NOW BE PAID THE 25 PERCENT SALARY INCREASE PROVIDED BY THE ACT OF JUNE 24, 1940, EVEN THOUGH THE CIVIL SERVICE COMMISSION MAY REQUIRE THAT NO NEW APPOINTMENTS BE MADE WITHOUT EXAMINATION TO POSITIONS WITH TOTAL COMPENSATION, INCLUDING THE 25 PERCENT INCREASE, OF MORE THAN $100 PER MONTH.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, MARCH 19, 1941:

I HAVE A LETTER DATED FEBRUARY 25, 1941, FROM THE DIRECTOR OF PERSONNEL, WAR DEPARTMENT, AS FOLLOWS:

THE FOLLOWING QUOTED LETTER FROM THE CHIEF OF THE AIR CORPS, DATED JANUARY 3, 1941, WAS REFERRED BY THIS OFFICE TO THE CIVIL SERVICE COMMISSION FOR THEIR OPINION.

"1. THE FOLLOWING COMMUNICATION HAS BEEN RECEIVED BY THIS OFFICE FROM WRIGHT FIELD, DAYTON, OHIO:

" " REQUEST OPINION FROM CIVIL SERVICE COMMISSION IF PROVISION OF WAR DEPARTMENT CIVIL APPROPRIATION ACT, 1941, GRANTING 25 PERCENTUM TO WAGE RATE PROVIDED IN BULLETIN 13 DATED JULY 30, 1940, UNDER SUBJECT " THE PANAMA CANAL" CHANGES PARAGRAPH 8, SCHEDULE A, SECTION 3, CIVIL SERVICE RULE 2 FROM $100 TO $125.'

"2. IT IS REQUESTED THAT THIS OFFICE BE ADVISED AS TO WHETHER OR NOT CIVIL SERVICE RULE 2, SECTION 3, SCHEDULE A, PARAGRAPH 8, REMAINS UNCHANGED.'

THE REPLY RECEIVED FROM THE CIVIL SERVICE COMMISSION IS ALSO QUOTED BELOW:

" REFERENCE IS MADE TO THE DEPARTMENT'S FIRST INDORSEMENT OF JANUARY 11, 1941, ON LETTER OF JANUARY 3, 1941, FROM THE CHIEF CIVILIAN PERSONNEL SECTION, OFFICE OF THE CHIEF OF THE AIR CORPS, REGARDING SECTION 8, SUBDIVISION I OF SCHEDULE A.

" YOU ARE ADVISED THAT THE PROVISION IN THE WAR DEPARTMENT CIVIL APPROPRIATION ACT, 1941, GRANTING A 25 PERCENTUM TO WAGE RATE UNDER THE SUBJECT " THE PANAMA CANAL" HAS NO EFFECT ON THE PROVISIONS OF SCHEDULE A- 1-S. SECTION 8, SUBDIVISION 1 OF SCHEDULE A READS IN PART AS FOLLOWS:

" "* * * APPOINTMENTS WHICH MAY BE MADE TO CLERICAL POSITIONS WITHOUT EXAMINATION UNDER THIS PROVISION ARE LIMITED TO THOSE POSITIONS PAYING A TOTAL AMOUNT OF $100 PER MONTH OR LESS. THE EXEMPTION APPLIED TO THE ACTUAL AMOUNT OF COMPENSATION PAID. IF THE BASE PAY OF A POSITION PLUS A DIFFERENTIAL ALLOWED BY STATUTE AMOUNTS TO MORE THAN $100 A MONTH, APPOINTMENTS TO SUCH POSITIONS MAY NOT BE MADE WITHOUT EXAMINATION.

" EMPLOYEES WHO HAVE PREVIOUSLY BEEN APPOINTED UNDER SCHEDULE A-1-8 MAY NOT BE PAID THE 25 PERCENT DIFFERENTIAL AUTHORIZED BY THE ABOVE APPROPRIATION ACT IF THE TOTAL AMOUNT OF COMPENSATION RECEIVED, I.E., THE BASE PAY OF THE POSITION PLUS THE DIFFERENTIAL, EXCEEDS $100 PER MONTH. WHEN THE PAY OF A CLERICAL POSITION EXCEEDS THE AMOUNT AUTHORIZED BY SCHEDULE A-1-8, THE POSITION CEASES TO BE EXCEPTED FROM EXAMINATION AND MUST BE FILLED THROUGH THE REGULAR CIVIL SERVICE PROCEDURE.'

DECISION IS REQUESTED AS TO WHETHER A 25 PERCENT DIFFERENTIAL IN THESE CASES IS CONSIDERED AS LEGAL, OR WHETHER THE CIVIL SERVICE COMMISSION'S RULING MUST BE ACCEPTED.

SECTION 2 OF THE APPROPRIATION ACT ENTITLED," WAR DEPARTMENT CIVIL APPROPRIATION ACT, 1941," APPROVED JUNE 24, 1940, 54 STAT. 511, REFERRED TO IN THE ABOVE-QUOTED LETTER, CONTAINS A PROVISION THAT CERTAIN CLASSES OF EMPLOYEES IN THE CANAL ZONE PAID UNDER THE APPROPRIATION "MAY RECEIVE AS COMPENSATION EQUAL RATES OF PAY BASED UPON RATES PAID FOR SIMILAR EMPLOYMENT IN CONTINENTAL UNITED STATES PLUS 25 PERCENTUM.' THAT STATUTORY PROVISION IS SIMILAR TO THE ONE APPEARING IN SECTION 4 OF THE PANAMA CANAL ACT OF AUGUST 24, 1912, 37 STAT. 561, INCLUDED AS SECTION 81, TITLE 2, OF THE CANAL ZONE CODE APPROVED BY THE ACT OF JUNE 19, 1934, 48 STAT. 1122.

PARAGRAPH 8, SCHEDULE A, OF THE CIVIL SERVICE RULES AND REGULATIONS ( EXECUTIVE ORDER 8047 DATED JANUARY 31, 1939) PROVIDES THAT "APPOINTMENTS TO CLERICAL POSITIONS ON THE ISTHMUS OF PANAMA PAYING $100 IN UNITED STATES CURRENCY PER MONTH OR LESS MAY BE MADE WITHOUT EXAMINATION.' SIMILAR PROVISION APPEARED IN THE SCHEDULES A PREVIOUSLY IN FORCE--- AT LEAST SINCE JULY 6, 1928. SEE PAGE 60 OF THE " CIVIL SERVICE ACT AND RULES AND STATUTES, EXECUTIVE ORDERS AND REGULATIONS" AMENDED TO JULY 25, 1933.

IT WOULD APPEAR, THEREFORE, THAT THE ACTION OF THE CIVIL SERVICE COMMISSION EXEMPTING FROM EXAMINATION APPOINTEES TO CLERICAL POSITIONS IN THE CANAL ZONE THE SALARY FOR WHICH DOES NOT EXCEED $100 PER MONTH WAS TAKEN IN THE LIGHT OF THE THEN EXISTING STATUTORY AUTHORITY FOR THE DIFFERENTIAL OF 25 PERCENT ADDITIONAL IN THE COMPENSATION OF EMPLOYEES IN THE CANAL ZONE BASED ON RATES PAID FOR SIMILAR EMPLOYMENT IN THE CONTINENTAL UNITED STATES. HOWEVER THAT MAY BE, THE RULE STATED BY THE CIVIL SERVICE COMMISSION IN THE THIRD PARAGRAPH OF ITS LETTER TO YOU CONCERNS THE ELIGIBILITY OF PERSONS FOR APPOINTMENT TO FEDERAL POSITIONS AND THE EXEMPTION OF EMPLOYEES FROM CIVIL-SERVICE EXAMINATION, AND THOSE MATTERS ARE EXCLUSIVELY FOR DETERMINATION BY THE CIVIL SERVICE COMMISSION AND THE PRESIDENT. ACCORDINGLY, THE RULE IS NOT SUBJECT TO REVIEW OR REVISION BY THIS OFFICE. IN THAT CONNECTION, SEE 17 COMP. GEN. 786, WHEREIN IT WAS HELD, QUOTING FROM THE SECOND PARAGRAPH OF THE SYLLABUS:

IT IS NOT WITHIN THE SCOPE OF THE DUTIES AND RESPONSIBILITIES IMPOSED BY LAW UPON THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO DETERMINE IN ANY CASE WHETHER THE CIVIL-SERVICE LAWS AND REGULATIONS ARE REQUIRED TO BE FOLLOWED IN MAKING APPOINTMENTS OF FEDERAL PERSONNEL.

ALSO, SEE 18 COMP. GEN. 217, AND COMPARE 19 ID. 52.

WHILE THE MATTER COVERED IN THE THIRD PARAGRAPH OF THE COMMISSION'S LETTER TO YOU CONCERNED THE PROPOSITION OF ELIGIBILITY FOR APPOINTMENT, AND THE COMMISSION'S RULE WITH RESPECT THERETO IS CONTROLLING UPON THIS OFFICE AND THE WAR DEPARTMENT, THE MATTER COVERED IN THE FOURTH OR CONCLUDING PARAGRAPH OF ITS LETTER DOES NOT INVOLVE THE QUESTION OF APPOINTMENT OR STATUS, BUT RATHER, A QUESTION OF PAYMENT OF COMPENSATION PROVIDED BY LAW FOR AN APPOINTMENT ALREADY IN EXISTENCE, AND THE COMMISSION'S RULE WITH REFERENCE THERETO MAY NOT BE VIEWED AS CONTROLLING UPON THIS OFFICE AND THE WAR DEPARTMENT. THEREFORE, IF AN EMPLOYEE WERE APPOINTED PRIOR TO JUNE 24, 1940, UNDER THE QUOTED PROVISION FROM SCHEDULE A-1-8 OF THE CIVIL-SERVICE RULES (OR THE SAME PROVISION IN A PRIOR SCHEDULE) AT A RATE OF COMPENSATION NOT IN EXCESS OF $100 PER MONTH AND WAS NOT ENTITLED TO THE DIFFERENTIAL AT ANY TIME PRIOR TO THAT DATE ON WHICH HE WAS SERVING IN THE SAME POSITION, HE MAY NOW, WITHOUT EXAMINATION, BE PAID THE DIFFERENTIAL OF 25 PERCENT OF HIS SALARY UNDER THE PROVISIONS OF THE ACT OF JUNE 24, 1940, PROVIDED THE CLASS OF POSITION INVOLVED COMES WITHIN THE PURVIEW OF THAT STATUTE, NOTWITHSTANDING THAT ANY NEW APPOINTEE TO THE SAME POSITION WOULD BE REQUIRED UNDER THE CIVIL- SERVICE RULES TO PASS AN EXAMINATION BEFORE APPOINTMENT. STATED IN OTHER WORDS, IF AN APPOINTMENT BE LEGAL AND PROPER WHEN MADE, AN INCREASE IN COMPENSATION OF THE POSITION AUTHORIZED BY STATUTE MAY NOT BE REGARDED AS RENDERING THE CONTINUED HOLDING OF THE POSITION ILLEGAL WHEN NO NEW APPOINTMENT IS INVOLVED.