B-155294, NOV. 9, 1964

B-155294, NOV. 9, 1964

TO THE HONORABLE WALTER N. TO BRINER, PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA:

YOUR LETTER OF SEPTEMBER 29, 1964, REQUESTS OUR DECISION UPON SEVERAL QUESTIONS CONCERNING THE PROPER APPLICATION OF THE STATUTORY PAY PROVISIONS RELATING TO DISTRICT OF COLUMBIA POLICEMEN AND FIREMEN CONTAINED IN PUB.L. 88-575, APPROVED SEPTEMBER 2, 1964.

YOUR FIRST QUESTION IS PARAPHRASED AS FOLLOWS:

WHETHER THE FIRE MARSHALL AND/OR THE SUPERINTENDENT OF MACHINERY ARE AUTHORIZED TO RECEIVE BASIC COMPENSATION AT THE HIGHEST LONGEVITY STEP IN CLASS 9, SUBCLASS (A), EFFECTIVE ON THE FIRST DAY OF THE FIRST PAY PERIOD BEGINNING ON OR AFTER JULY 1, 1964 (I.E., JULY 5, 1964), IF THEY MEET ALL THE REQUIREMENTS OF SUCH SUBSECTION 401/C) OF THE DISTRICT OF COLUMBIA POLICE AND FIREMEN'S SALARY ACT OF 1958, AS ADDED BY SECTION 105 OF PUB.L. 88-575.

SUBSECTION 401/C) OF THE DISTRICT OF COLUMBIA POLICE AND FIREMEN'S SALARY ACT OF 1958, AS ADDED BY SECTION 105 OF PUB.L. 88-575, IS AS FOLLOWS:

"/C) NOTWITHSTANDING ANY OTHER PROVISION OF THIS OR ANY OTHER LAW, EACH DEPUTY CHIEF OF THE METROPOLITAN POLICE FORCE AND OF THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA SHALL, UPON COMPLETION OF THIRTY YEARS OF CONTINUOUS SERVICE ON THE POLICE FORCE OR FIRE DEPARTMENT, AS THE CASE MAY BE, INCLUDING SERVICE IN THE ARMED FORCES OF THE UNITED STATES, BUT EXCLUDING ANY PERIOD OF TIME DETERMINED NOT TO HAVE BEEN SATISFACTORY SERVICE, BE PLACED IN, AND RECEIVE BASIC COMPENSATION AT, THE HIGHEST LONGEVITY STEP IN THE CLASS OR SUBCLASS TO WHICH HIS POSITION IS ASSIGNED IN THE SCHEDULE OF RATES ESTABLISHED BY SECTION 101 OF THIS ACT. NOTHING IN THIS SUBSECTION SHALL BE CONSTRUED TO AUTHORIZE THE PAYMENT OF ANY RETROACTIVE COMPENSATION.'

THE BASIC DETERMINATION INVOLVED IN YOUR FIRST QUESTION IS WHETHER THE FIRE MARSHAL AND THE SUPERINTENDENT OF MACHINERY ARE INCLUDED WITHIN THE STATUTORY TERM "DEPUTY CHIEF" APPEARING IN THE QUOTED SUBSECTION.

WE NOTE FROM THE ORGANIZATION CHART OF THE DISTRICT OF COLUMBIA FIRE DEPARTMENT THAT THE HEAD OF EACH DIVISION UNDER THE OFFICE OF FIRE CHIEF, WITH THE EXCEPTION OF THE FIRE PREVENTION DIVISION HEADED BY THE FIRE MARSHAL, AND THE APPARATUS DIVISION HEADED BY THE SUPERINTENDENT OF MACHINERY, HAS BEEN DESIGNATED BY THE DISTRICT OF COLUMBIA COMMISSIONERS AS DEPUTY FIRE CHIEF. IN ADDITION TO THE DEPUTY FIRE CHIEF DESIGNATION, THE HEAD OF THE ADMINISTRATIVE DIVISION AND THE HEAD OF THE TRAINING DIVISION HAVE BEEN GIVEN THE OPERATIONAL TITLES OF ADMINISTRATIVE OFFICER AND CHIEF INSTRUCTOR, RESPECTIVELY.

WE NOTE THAT THE POSITION OF FIRE MARSHAL AND THE POSITION OF SUPERINTENDENT OF MACHINERY ARE SPECIFICALLY PROVIDED FOR IN THE SAME LAW THAT AUTHORIZES THE COMMISSIONERS TO FIX THE NUMBER OF DEPUTY CHIEF ENGINEERS (DEPUTY FIRE CHIEFS) AS THEY MAY DEEM NECESSARY WITHIN THE LIMITS OF APPROPRIATIONS MADE BY CONGRESS. SEE D.C. CODE 4-404 AND NOTE UNDER 4-402.

YOUR LETTER POINTS OUT ALSO THAT UNDER THE RULES AND REGULATIONS OF THE DISTRICT OF COLUMBIA FIRE DEPARTMENT, IN THE ABSENCE OF THE FIRE CHIEF AND THE ASSISTANT FIRE CHIEF, COMMAND RESPONSIBILITY VESTS IN THE DEPUTY FIRE CHIEF (IN THE ORDER OF SENIORITY), FIRE MARSHAL, CHIEF INSTRUCTOR AND SUPERINTENDENT OF MACHINERY. FINALLY, YOU SAY THAT THE SALARIES OF THE FIRE MARSHAL AND THE SUPERINTENDENT OF MACHINERY WERE INCLUDED IN THE PAY DATA RELATING TO DEPUTY FIRE CHIEFS THAT THE COMMISSIONERS FURNISHED THE CONGRESS IN CONNECTION WITH ITS CONSIDERATION OF PUB.L. 88-575.

THE POSITIONS OF FIRE MARSHAL AND SUPERINTENDENT OF MACHINERY APPEAR TO BE OF COMPARABLE DIGNITY AND IMPORTANCE WITH THOSE DESIGNATED AS DEPUTY FIRE CHIEF AND, AS A MATTER OF UNIFORMITY AND EQUALITY, SUCH POSITIONS WOULD SEEM TO WARRANT BENEFITS EQUAL TO THOSE APPLICABLE TO THE POSITION OF DEPUTY FIRE CHIEF. HOWEVER, THE LANGUAGE OF THE ADDED SUBSECTION 401/C), ABOVE, LIMITS THE APPLICATION OF THAT PROVISION TO "EACH DEPUTY CHIEF" AND THE POSITIONS OF FIRE MARSHAL AND SUPERINTENDENT OF MACHINERY HAVE NOT BEEN DESIGNATED AS DEPUTY CHIEF POSITIONS. IN SUCH CONNECTION ON PAGE 20206 OF THE CONGRESSIONAL RECORD FOR AUGUST 21, 1964, THERE WAS READ BEFORE THE SENATE A STATEMENT RECEIVED FROM THE DISTRICT OF COLUMBIA COMMISSIONERS WHICH IS IN PART AS FOLLOWS:

"A FURTHER EXAMPLE OF INEQUITY IS THAT OF THE SUPERINTENDENT OF MACHINERY IN THE FIRE DEPARTMENT AND THE FIRE MARSHALL, BOTH OF WHOM ARE IN CLASS 9 WITH THE DEPUTY CHIEFS.

"IT APPEARS QUESTIONABLE AS TO WHETHER THEY WOULD RECEIVE THE SAME ADVANCEMENT BENEFIT BECAUSE THEY ARE NOT DESIGNATED AS DEPUTY CHIEFS.

ALSO, WE NOTE THAT IN SECTION 101 OF THE ACT THE FIRE MARSHAL AND SUPERINTENDENT OF MACHINERY ARE NAMED SEPARATELY FROM THE DEPUTY CHIEFS.

IN VIEW OF THE FOREGOING WE DO NOT BELIEVE THERE IS A SUFFICIENT BASIS FOR HOLDING THAT THE FIRE MARSHAL AND THE SUPERINTENDENT OF MACHINERY ARE INCLUDED WITHIN THE TERM "DEPUTY CHIEF" AS USED IN SUCH SUBSECTION 401/C). THEREFORE, THEY MAY NOT BE ADVANCED TO THE LAST LONGEVITY STEP AFTER COMPLETION OF THE THIRTY YEARS OF SERVICE AS OTHERWISE AUTHORIZED BY THAT SECTION.

CONCERNING THE EFFECTIVE DATE OF THE ADDED SUBSECTION 401/C), WE NOTE THAT THE LAST SENTENCE THEREOF SAYS THAT "NOTHING IN THIS SUBSECTION SHALL BE CONSTRUED TO AUTHORIZE THE PAYMENT OF ANY RETROACTIVE COMPENSATION.' THUS, WHILE SECTION 108 OF PUB.L. 88-575 SAYS THAT THE PROVISION OF THIS TITLE (WHICH INCLUDES THE ADDED SUBSECTION 401 (C) ( SHALL TAKE EFFECT ON THE FIRST DAY OF THE FIRST PAY PERIOD BEGINNING ON OR AFTER JULY 1, 1964, OUR VIEW IS THAT THE SPECIFIC PROVISION IN THE ADDED SUBSECTION 401/C) PRECLUDING RETROACTIVE PAYMENTS BECAUSE OF THE NEW BENEFIT GRANTED UNDER SUCH SUBSECTION IS CONTROLLING AND THAT THE ADDITIONAL SALARY RESULTING FROM PLACING THE ELIGIBLE EMPLOYEE IN THE TOP LONGEVITY STEP OF CLASS 9 CANNOT BE PAID FOR ANY PERIOD PRIOR TO THE DATE OF ENACTMENT OF PUB.L. 88- 575, I.E., SEPTEMBER 2, 1964.

YOUR SECOND QUESTION IS WHETHER THE CORRECT ACTION WAS TAKEN IN EACH OF THE FOLLOWING NSTANCES:

"/A) A PLAINCLOTHESMAN IN CLASS 1, SUBCLASS (B), SERVICE STEP 6 IS PROMOTED TO DETECTIVE IN CLASS 3 ON AUGUST 16, 1964. IN ACCORDANCE WITH THE EXISTING STATUTES (PRIOR TO THE ENACTMENT OF PUBLIC LAW 88 575) HE WAS PROMOTED TO CLASS 3, SERVICE STEP 3. HE IS ENTITLED TO RECEIVE BASIC COMPENSATION AT THE LOWEST SCHEDULED RATE OF SUCH HIGHER CLASS WHICH EXCEEDS BY ONE STEP INCREASE THE RATE SHOWN FOR SUBCLASS (A) IN THE SAME STEP IN WHICH HE WAS SERVING IN THE CLASS FROM WHICH PROMOTED (PUBLIC LAW 87-882, SECTION 2/7) (C) ). UPON ENACTMENT OF PUBLIC LAW 88-575 WHICH WAS EFFECTIVE ON THE FIRST DAY OF THE FIRST PAY PERIOD BEGINNING ON OR AFTER JULY 1, 1964 (JULY 5, 1964), HE WAS PLACED IN CLASS 3, SERVICE STEP 2.

"/B) A SERGEANT IN CLASS 4, SUBCLASS (A) SERVICE STEP 4 IS PROMOTED TO LIEUTENANT EFFECTIVE AUGUST 2, 1964. IN ACCORDANCE WITH THE EXISTING STATUTES (PRIOR TO THE ENACTMENT OF PUBLIC LAW 88-575) HE WAS PLACED IN CLASS 5, STEP 2. UPON ENACTMENT OF PUBLIC LAW 88-577 (88-575) WHICH WAS EFFECTIVE JULY 5, 1964, HE WAS PLACED IN CLASS 5, STEP 1.'

PROPER COMPLIANCE WITH THE RETROACTIVE ASPECTS OF SECTION 108 OF PUBLIC LAW 88-575 REQUIRES THAT THE RATES PRESCRIBED IN SECTION 1 OF THAT ACT BE REGARDED AS HAVING BEEN IN EFFECT IMMEDIATELY PRIOR TO THE PROMOTIONS OF THE INDIVIDUALS REFERRED TO IN EXAMPLES (A) AND (B). IN OTHER WORDS ADJUSTMENTS ARE NECESSARY TO REFLECT THE PAY STATUS THE OFFICERS WOULD HAVE ATTAINED HAD THE AMENDED PAY SCHEDULE BEEN OPERATIVE AND APPLIED CURRENTLY FROM JULY 5, 1964. 31COMP. GEN. 166. IT APPEARS THAT THE ACTION TAKEN IN PLACING THE TWO OFFICERS IN THE NUMERICAL STEPS INDICATED FOR THEIR PARTICULAR CLASSES WAS IN ACCORD WITH THAT PRINCIPLE AND IS OTHERWISE CORRECT.

YOUR FINAL TWO QUESTIONS INVOLVE THE CONSTRUCTION OF SECTION 102 (2) OF PUB. L. 88-575, READING AS FOLLOWS:

"/2) EACH PRIVATE IN SERVICE STEP 6, LONGEVITY STEP 7, OR LONGEVITY STEP 8 IN ANY SUBCLASS IN CLASS 1, UPON COMPLETING A MINIMUM OF TWENTY-ONE YEARS OF CONTINUOUS SERVICE AS A PRIVATE, INCLUDING SERVICE IN THE ARMED FORCES OF THE UNITED STATES, BUT EXCLUDING ANY PERIOD OF TIME DETERMINED NOT TO HAVE BEEN SATISFACTORY SERVICE, SHALL BE ADVANCED TO LONGEVITY STEP 9 IN CLASS 1, AND RECEIVE THE APPROPRIATE SCHEDULED RATE OF BASIC COMPENSATION FOR SUCH STEP IN THE SUBCLASS IN WHICH HE IS SERVING.'

THE SPECIFIC QUESTIONS CONCERNING SECTION 102 (A) ARE AS FOLLOWS:

"WOULD MILITARY SERVICE IN THE ARMED FORCES OF THE UNITED STATES PERFORMED PRIOR TO THE TIME THE PERSON WAS APPOINTED AS A POLICEMAN OR FIREMAN BE INCLUDED IN THE TWENTY-ONE YEARS OF CONTINUOUS SERVICE AS A PRIVATE?

"WOULD A POLICEMAN OR FIREMAN COMING UNDER THE PROVISIONS OF PUBLIC LAW 577 - 79TH CONGRESS, APPROVED JULY 31, 1946, COUNT SUCH TIME BETWEEN MAY 1, 1940 AND THE EFFECTIVE DATE OF THE ACT AS PART OF HIS TWENTY-ONE YEARS OF CONTINUOUS SERVICE AS A PRIVATE FOR THE PURPOSES OF PLACEMENT UNDER THE PROVISIONS OF THE ABOVE-QUOTED SECTION 102/2/? "

THE PURPOSE OF SECTION 102/2) IS SET FORTH ON PAGE 3 OF HOUSE REPORT NO. 1723, AUGUST 7, 1964, AS FOLLOWS:

"IN ADDITION TO CHANGES IN THE PRESENT SALARY RATES FOR PRIVATES IN THE POLICE AND FIRE FORCES, THIS BILL PROPOSES ALSO TO ADJUST THE LONGEVITY RATES FOR PRIVATES APPOINTED TO THE FORCE PRIOR TO THE ENACTMENT OF THE DISTRICT OF COLUMBIA POLICE AND FIREMEN'S SALARY ACT OF 1958 (72 STAT. 481). UNDER THE PROVISIONS OF THAT ACT, A PRIVATE APPOINTED AFTER JANUARY 1958 CAN REACH THE MAXIMUM SALARY FOR THAT RANK IN 19 YEARS. HOWEVER, A PRIVATE WHO MAY HAVE HAD A NUMBER OF YEARS OF SERVICE PRIOR TO THAT DATE IS REQUIRED TO SERVE MORE THAN 19 YEARS TO REACH THE TOP LONGEVITY STEP. PUBLIC LAW 87-882, APPROVED OCTOBER 24, 1962 (76 STAT. 1239), ATTEMPTED TO CORRECT THIS INEQUITY. HOWEVER, AFTER THIS ACT BECAME OPERATIVE, IT WAS FOUND THAT A NUMBER OF PRIVATES WOULD STILL BE REQUIRED TO SERVE MORE THAN 24 YEARS TO REACH THE TOP LONGEVITY STEP. A PRIVATE APPOINTED IN OCTOBER 1945, FOR EXAMPLE, WOULD PRESENTLY HAVE TO SERVE A TOTAL OF 24 1/2 YEARS TO REACH TOP SALARY. H.R. 12196 WILL CORRECT THIS INEQUITABLE SITUATION BY PROVIDING THAT ALL PRIVATES WILL BE PLACED IN THE TOPE SALARY STEP UPON COMPLETION OF 21 YEARS OF CONTINUOUS SERVICE, INCLUDING CREDITABLE MILITARY SERVICE BUT EXCLUDING, OF COURSE, ANY PERIOD OF SERVICE DEEMED NOT TO HAVE BEEN SATISFACTORY.'

THE QUOTED SECTION 102/2) DOES NOT SPECIFICALLY PROVIDE FOR THE COUNTING OF MILITARY SERVICE PERFORMED PRIOR TO THE DATE OF APPOINTMENT AS A PRIVATE IN THE DISTRICT OF COLUMBIA POLICE OR FIRE DEPARTMENT TOWARD THE 21 YEARS SERVICE NECESSARY FOR ADVANCEMENT TO LONGEVITY STEP 9 IN CLASS 1. MOREOVER, PRIOR MILITARY SERVICE WOULD NOT CONSTITUTE SERVICE AS A PRIVATE IN THE POLICE OR FIRE DEPARTMENT AND, THEREFORE, MAY NOT BE COUNTED IN THE ABSENCE OF SOME OTHER STATUTORY PROVISION AUTHORIZING THE COUNTING OF SUCH SERVICE.

CONCERNING POLICEMEN AND FIREMEN COMING UNDER PUB.L. 577, 79TH CONGRESS, AS AMENDED, 5 U.S.C. 645A, THAT STATUTE PROVIDES, IN PART, AS FOLLOWS:

"/2) ANY PERSON---

"/1) WHOSE NAME APPEARED ON ANY LIST OF ELIGIBLES * * * (C) AT ANY TIME BETWEEN MAY 1, 1940, AND AUGUST 1, 1946, WITH RESPECT TO POSITIONS OF OFFICERS AND MEMBERS OF THE METROPOLITAN POLICE OR OF THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA, AND OFFICERS AND MEMBERS OF THE UNITED STATES PARK POLICE AND THE WHITE HOUSE POLICE; AND

"/2) WHO, PURSUANT TO EXECUTIVE ORDERED NUMBERED 9538, DATED APRIL 13, 1945, OR REGULATIONS OF THE CIVIL SERVICE COMMISSION COVERING SIMILAR SITUATIONS IN WHICH AN ELIGIBLE LOST OPPORTUNITY FOR PROBATIONAL APPOINTMENT BECAUSE OF MILITARY SERVICE DURING WORLD WAR II, WAS CERTIFIED FOR PROBATIONAL APPOINTMENT TO SUCH POSITION, AND, SUBSEQUENTLY, WAS GIVEN SUCH APPOINTMENT, SHALL, FOR THE PURPOSE OF (A) DETERMINING HIS RATE OF COMPENSATION * * * BE HELD TO HAVE BEEN APPOINTED TO SUCH POSITION AS OF THE EARLIEST DATE ON WHICH AN ELIGIBLE STANDING LOWER ON THE SAME LIST OF ELIGIBLES RECEIVED A PROBATIONAL APPOINTMENT THEREFROM * * *.'

IN OUR DECISION OF NOVEMBER 21, 1962, B-150170, TO YOU, WE HELD THAT PRIOR MILITARY SERVICE COULD NOT BE COUNTED TOWARD THE 20 YEARS OF "POLICE OR FIRE SERVICE" NECESSARY FOR OPTIONAL RETIREMENT UNDER SECTION 12 (H) OF PUB.L. 85-157. THAT DECISION, HOWEVER, WAS NOT ONE RELATING TO PAY ENTITLEMENT (COMPENSATION) AND, THEREFORE, IS NOT CONTROLLING HERE. OUR DECISION OF AUGUST 7, 1953, 33 COMP. GEN. 70, WE HELD (QUOTING FROM THE SYLLABUS) THAT:

"UNDER THE ACT OF JULY 31, 1946, A PERSON ON THE ELIGIBLE LIST FOR APPOINTMENT TO THE METROPOLITAN POLICE DEPARTMENT OF THE DISTRICT OF COLUMBIA WHO LOST OPPORTUNITY FOR APPOINTMENT BECAUSE OF MILITARY SERVICE DURING WORLD WAR II AND WHO, PURSUANT TO EXECUTIVE ORDER NO. 9538, WAS SUBSEQUENTLY APPOINTED TO SUCH POSITION IS TO BE CONSIDERED AS HAVING BEEN APPOINTED ON THE SAME DATE A LOWER ELIGIBLE WAS APPOINTEE AND IS ENTITLED TO CREDIT FOR CONSTRUCTIVE SERVICE FOR LONGEVITY PAY PURPOSES UNDER SECTION 102/A) OF THE ACT OF JUNE 20, 1953, TO THE SAME EXTENT AS THOUGH HE HAD ACTUALLY SERVED ON THE POLICE FORCE FROM THAT DATE.' WE CONSIDER THAT THE PRINCIPLE ENUNCIATED IN 33 COMP. GEN. 70 IS APPLICABLE IN THE INSTANT CASE AND, THEREFORE, THAT AN INDIVIDUAL WHO QUALIFIES FOR A PROBATIONAL APPOINTMENT UNDER PUB.L. 577 AND WHO ACTUALLY IS APPOINTED AS A PRIVATE IN THE DISTRICT OF COLUMBIA POLICE OR FIRE DEPARTMENT, AFTER HAVING MET ALL QUALIFYING CONDITIONS PRESCRIBED IN SUCH STATUTE AND WHO AFTER SUCH APPOINTMENT REMAINS CONTINUOUSLY EMPLOYED IN SUCH POSITION WOULD BE ENTITLED--- FOR PURPOSES OF ADVANCEMENT TO THE TOP LONGEVITY STEP -- TO COUNT AS CONTINUOUS SERVICE AS A PRIVATE THE PERIOD FROM THE DATE A LOWER ELIGIBLE RECEIVED A PROBATIONAL APPOINTMENT AS A PRIVATE IN THE POLICE OR FIRE DEPARTMENT, AS THE CASE MAY BE. OUR OPINION WOULD BE THE SAME IN THE CASE OF A PRIVATE WHO RECEIVED A PROBATIONAL APPOINTMENT TO WHICH HE IS ENTITLED UNDER THE ACT OF JULY 16, 1953, 5 U.S.C. 645C. YOUR TWO CONCLUDING QUESTIONS ARE ANSWERED ACCORDINGLY.