B-15650, MARCH 24, 1941, 20 COMP. GEN. 552

B-15650: Mar 24, 1941

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CLASSIFICATION ACT RATES - APPLICABILITY TO NATIVE EMPLOYEES OF THE SELECTIVE SERVICE SYSTEM IN PUERTO RICO IT IS WITHIN THE ADMINISTRATIVE DISCRETION OF THE DIRECTOR OF SELECTIVE SERVICE TO ADOPT A NATIVE SALARY SCHEDULE. 1941: I HAVE YOUR LETTER OF MARCH 18. AS FOLLOWS: " SECTION 10 (A) THE PRESIDENT IS AUTHORIZED. OR DETAILED TO A POSITION THE COMPENSATION IN RESPECT OF WHICH IS AT A RATE IN EXCESS OF $5. " SECTION 10 (B) THE PRESIDENT IS FURTHER AUTHORIZED. HAVE BEEN MADE IN ACCORDANCE WITH THE PROVISIONS OF THE CIVIL SERVICE LAWS AND AT COMPENSATION RATES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923. CIVILIAN EMPLOYEES IN THE SELECTIVE SERVICE SYSTEM IN PUERTO RICO HAVE BEEN APPOINTED AT RATES OF PAY PREVAILING IN THE ISLAND FOR POSITIONS OF A SIMILAR NATURE.

B-15650, MARCH 24, 1941, 20 COMP. GEN. 552

CLASSIFICATION ACT RATES - APPLICABILITY TO NATIVE EMPLOYEES OF THE SELECTIVE SERVICE SYSTEM IN PUERTO RICO IT IS WITHIN THE ADMINISTRATIVE DISCRETION OF THE DIRECTOR OF SELECTIVE SERVICE TO ADOPT A NATIVE SALARY SCHEDULE, BELOW THE SCHEDULE FIXED BY THE CLASSIFICATION ACT, FOR NATIVE EMPLOYEES IN CLERICAL AND STENOGRAPHIC POSITIONS IN THE SELECTIVE SERVICE SYSTEM IN PUERTO RICO.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR OF SELECTIVE SERVICE, MARCH 24, 1941:

I HAVE YOUR LETTER OF MARCH 18, 1941, AS FOLLOWS:

SECTION 10 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, APPROVED SEPTEMBER 16, 1940, READS, IN PART, AS FOLLOWS:

" SECTION 10 (A) THE PRESIDENT IS AUTHORIZED---

"/1) TO PRESCRIBE THE NECESSARY RULES AND REGULATIONS TO CARRY OUT THE PROVISIONS OF THIS ACT.

"/3) TO APPOINT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND FIX THE COMPENSATION AT A RATE NOT IN EXCESS OF $10,000 PER ANNUM, OF A DIRECTOR OF SELECTIVE SERVICE WHO SHALL BE DIRECTLY RESPONSIBLE TO HIM AND TO APPOINT AND FIX THE COMPENSATION OF SUCH OTHER OFFICERS, AGENTS, AND EMPLOYEES AS HE MAY DEEM NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT: PROVIDED, THAT ANY OFFICER ON THE ACTIVE OR RETIRED LIST OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD, OR OF ANY RESERVE COMPONENT THEREOF OR ANY OFFICER OR EMPLOYEE OF ANY DEPARTMENT OR AGENCY OF THE UNITED STATES WHO MAY BE ASSIGNED OR DETAILED TO ANY OFFICE OR POSITION TO CARRY OUT THE PROVISIONS OF THIS ACT (EXCEPT TO OFFICES OR POSITIONS ON LOCAL BOARD, APPEAL BOARDS, OR AGENCIES OF APPEAL ESTABLISHED OR CREATED PURSUANT TO SECTION 10 (A) (2) MAY SERVE IN AND PERFORM THE FUNCTIONS OF SUCH OFFICE OR POSITION WITHOUT LOSS OF OR PREJUDICE TO HIS STATUS AS SUCH OFFICER IN, THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD OR RESERVE COMPONENT THEREOF, OR AS SUCH OFFICER OR EMPLOYEE IN ANY DEPARTMENT OR AGENCY OF THE UNITED STATES: PROVIDED FURTHER, THAT ANY PERSON SO APPOINTED, ASSIGNED, OR DETAILED TO A POSITION THE COMPENSATION IN RESPECT OF WHICH IS AT A RATE IN EXCESS OF $5,000 PER ANNUM SHALL BE APPOINTED, ASSIGNED OR DETAILED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE: PROVIDED FURTHER, THAT THE PRESIDENT MAY APPOINT NECESSARY CLERICAL AND STENOGRAPHIC EMPLOYEES FOR LOCAL BOARDS AND FIX THEIR COMPENSATION WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND WITHOUT REGARD TO THE PROVISIONS OF CIVIL SERVICE LAWS.

"/4) TO UTILIZE THE SERVICES OF ANY OR ALL DEPARTMENTS AND ANY AND ALL OFFICERS OR AGENTS OF THE UNITED STATES AND TO ACCEPT THE SERVICES OF ALL OFFICERS AND AGENTS OF THE SEVERAL STATES, TERRITORIES, AND THE DISTRICT OF COLUMBIA AND SUBDIVISION THEREOF IN THE EXECUTION OF THIS ACT; AND

" SECTION 10 (B) THE PRESIDENT IS FURTHER AUTHORIZED, UNDER SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE, TO DELEGATE AND PROVIDE FOR THE DELEGATION OF ANY AUTHORITY VESTED IN HIM UNDER THIS ACT TO SUCH OFFICERS, AGENTS, OR PERSONS AS HE MAY DESIGNATE OR APPOINT FOR SUCH PURPOSE PURSUANT TO SUCH RULES AND REGULATIONS AS HE MAY PRESCRIBE.'

IN THE ADMINISTRATION OF THE ACT EMPLOYMENT IN CIVILIAN POSITIONS WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES, EXCEPT FOR CLERICAL AND STENOGRAPHIC EMPLOYEES FOR LOCAL BOARDS, HAVE BEEN MADE IN ACCORDANCE WITH THE PROVISIONS OF THE CIVIL SERVICE LAWS AND AT COMPENSATION RATES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED.

IN THE INTEREST OF GOOD ADMINISTRATION, CIVILIAN EMPLOYEES IN THE SELECTIVE SERVICE SYSTEM IN PUERTO RICO HAVE BEEN APPOINTED AT RATES OF PAY PREVAILING IN THE ISLAND FOR POSITIONS OF A SIMILAR NATURE. FOR EXAMPLE, QUALIFIED NATIVES ARE AVAILABLE FOR CLERICAL AND STENOGRAPHIC POSITIONS WITH LOCAL BOARDS, AT RATES CONSIDERABLY LESS THAN THE REGULAR CLASSIFICATION ACT SALARY RATES. EMPLOYEES OF THE SAME TYPE ARE AVAILABLE FOR SIMILAR POSITIONS IN THE HEADQUARTERS OFFICE, APPEAL BOARDS, AND MEDICAL ADVISORY BOARDS IN PUERTO RICO AND IT WOULD CREATE A CONFUSED CONDITION, WITH RESULTANT LOSS IN EFFICIENCY SHOULD IT BE REQUIRED TO COMPENSATE SUCH EMPLOYEES AT THE REGULAR CLASSIFICATION ACT RATES. THE RATES PAID ARE CONSIDERED, FROM AN ADMINISTRATIVE VIEWPOINT, AMPLE FOR THE SERVICES PERFORMED, TAKING INTO CONSIDERATION THE TYPE OF PERSONNEL, ECONOMIC CONDITIONS, AND WAGES PREVAILING IN GENERAL THROUGHOUT THE ISLANDS. IN THIS CONNECTION ATTENTION IS INVITED TO THE COMPTROLLER GENERAL'S DECISION OF JANUARY 23, 1931, TO THE SECRETARY OF THE NAVY (10 COMP. GEN. 322).

YOUR DECISION IS REQUESTED AS TO WHETHER THE POLICY OF THE SELECTIVE SERVICE SYSTEM IN MAKING EMPLOYMENTS IN CIVILIAN POSITIONS IN PUERTO RICO AT THE PREVAILING RATES OF PAY, EVEN THOUGH SUCH RATES ARE NOT IN ACCORDANCE WITH THE RATE ESTABLISHED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, MAY BE CONTINUED WITHOUT CONTRAVENTION OF ANY EXISTING STATUTE OR REGULATION. AN EXPEDITED DECISION IS RESPECTIVELY REQUESTED.

IN DECISION OF OCTOBER 24, 1940, TO YOU, REPORTED IN 20 COMP. GEN. AT PAGE 211, 212, IT WAS STATED:

THE GENERAL RULE IS THAT, IN THE ABSENCE OF STATUTORY EXEMPTION, THE SALARY RATES OF PERSONNEL OF ALL FEDERAL AGENCIES, BOTH IN THE DEPARTMENTAL AND FIELD SERVICE, ARE REQUIRED TO BE FIXED IN ACCORDANCE WITH THE SCHEDULE OR RATES PRESCRIBED IN THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND IN ACCORDANCE WITH THE RULES OF SECTION 6 OF THE ORIGINAL CLASSIFICATION ACT APPROVED MARCH 4, 1923, 42 STAT. 1490. 14 COMP. GEN. 420; 16 ID. 1107; 17 ID. 578; 18 ID. 223; ID 887; 19 ID. 20. BUT WHERE, AS IN SECTION 10 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, SUPRA, THE CONGRESS HAS VESTED IN THE PRESIDENT THE AUTHORITY "TO PRESCRIBE THE NECESSARY RULES AND REGULATIONS TO CARRYOUT THE PROVISIONS OF THIS ACT" AND "TO APPOINT AND FIX THE COMPENSATION OF SUCH OTHER OFFICERS, AGENTS, AND EMPLOYEES AS HE MAY DEEM NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT," THE CONCLUSION IS WARRANTED THAT THE INTENT OF THE STATUTE IS TO AUTHORIZE THE PRESIDENT TO FIX SALARY RATES BY REGULATION, OR TO PRESCRIBE BY REGULATION THE PROCEDURE FOR FIXING SUCH SALARY RATES, EITHER IN ACCORDANCE WITH, OR WITHOUT REGARD TO, THE PROVISIONS OF THE CLASSIFICATION ACT. IN OTHER WORDS, THE STATUTE APPEARS TO RECOGNIZE AN EXCEPTION TO THE GENERAL RULE REFERRED TO IN THE OPENING SENTENCE OF THIS PARAGRAPH.

PARAGRAPH 517, VOLUME 5, SELECTIVE SERVICE REGULATIONS ( EXECUTIVE ORDER NO. 8561), DATED OCTOBER 4, 1940, FOLLOWING THE PROVISIONS OF THE STATUTE, AUTHORIZES THE FIXING OF SALARY RATES OF EMPLOYEES OF LOCAL BOARDS WITHOUT REGARD TO THE PROVISIONS OF THE CLASSIFICATION ACT, AS AMENDED. PARAGRAPH 552 OF THE SAME REGULATIONS PROVIDES AS FOLLOWS:

AUTHORIZATION FOR EMPLOYMENT.--- UNLESS OTHERWISE PROVIDED IN THESE REGULATIONS, THE EMPLOYMENT OF CIVILIAN PERSONNEL SHALL BE IN ACCORDANCE WITH THE RULES AND REGULATIONS OF THE UNITED STATES CIVIL SERVICE COMMISSION AND THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923.

THERE IS NOTHING IN THE ABOVE-QUOTED PARAGRAPH OF THE REGULATIONS, OR ELSEWHERE IN THE REGULATIONS EXPRESSLY REQUIRING THE CLASSIFICATION OF EMPLOYEES "IN THE HEADQUARTERS OFFICE, APPEAL BOARDS, AND MEDICAL ADVISORY BOARDS IN PUERTO RICO" (QUOTING FROM YOUR LETTER), AND NEITHER THE CONGRESS IN ENACTING THE SELECTIVE SERVICE ACT, NOR THE PRESIDENT IN PROMULGATING THE REGULATIONS THEREUNDER, HAS SHOWN ANY INTENTION TO REQUIRE THE CLASSIFICATION OF POSITIONS OR THE FIXING OF SALARY RATES OF CLASSES OF PERSONNEL NOT THERETOFORE INCLUDED WITHIN THE PURVIEW OF THE CLASSIFICATION ACT.

IN DECISION OF JANUARY 23, 1931, 10 COMP. GEN. 322, CITED BY YOU, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE PROVISION OF SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, EXTENDING THE PRINCIPLES OF CLASSIFICATION THROUGH ADMINISTRATIVE ACTION TO EMPLOYEES COMING UNDER GROUP 4-B, INCLUDING DRAFTING GROUPS IN THE SCHEDULE OF WAGES FOR CIVIL EMPLOYEES UNDER THE NAVAL ESTABLISHMENT, IS NOT APPLICABLE TO EMPLOYEES UNDER THE NAVAL ESTABLISHMENT IN THE PHILIPPINE ISLANDS, GUAM, SAMOA, VIRGIN ISLANDS, PANAMA CANAL ZONE, AND OTHER NAVAL ACTIVITIES BEYOND THE CONTINENTAL LIMITS OF THE UNITED STATES WHO ARE PAID ON NATIVE OR ALIEN SCHEDULES.

THE REASONS FOR EXEMPTING NATIVE EMPLOYEES OUTSIDE THE LIMITS OF CONTINENTAL UNITED STATES FROM THE PROVISIONS OF THE CLASSIFICATION ACT ARE FULLY SET FORTH IN THAT DECISION AND NEED NOT BE REPEATED HERE. ALSO, IT HAS BEEN HELD THAT THE SCHEDULE OF WAGES FIXED UNDER THE 40 HOUR WEEK STATUTE, SECTION 23 OF THE ACT OF MARCH 28, 1934, 48 STAT. 522, FOR NATIVE EMPLOYEES OUTSIDE THE LIMITS OF CONTINENTAL UNITED STATES, MAY INCLUDE RATES LOWER THAN THE SCHEDULE OF WAGES UNDER THE SAME STATUTE FOR EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES. DECISION OF APRIL 12, 1934, A-54762, APPLICABLE TO THE PANAMA CANAL, AND DECISION OF MAY 19, 1934, 13 COMP. GEN. 370, 378, APPLICABLE TO EMPLOYEES OF THE NAVAL ESTABLISHMENT OUTSIDE THE LIMITS OF CONTINENTAL UNITED STATES. SEE, ALSO, DECISION OF AUGUST 29, 1938, 18 COMP. GEN. 206, HOLDING THAT NATIVE EMPLOYEES OF THE PANAMA CANAL ARE NOT "REGULAR EMPLOYEES OF THE FEDERAL GOVERNMENT" AND, THEREFORE, ARE NOT ENTITLED TO HOLIDAY PAY UNDER THE PROVISIONS OF PUBLIC RESOLUTION NO. 127, APPROVED JUNE 29, 1938, 52 STAT. 1246.

HENCE, THE RULE HAS BEEN ADOPTED UNDER VARIOUS PERSONNEL STATUTES THAT THE SALARY RATES FOR NATIVE EMPLOYEES OUTSIDE THE LIMITS OF CONTINENTAL UNITED STATES ARE NOT REQUIRED TO BE FIXED ON THE SAME BASIS AS THE SALARY RATES FOR OTHER EMPLOYEES WHO ARE CITIZENS OF THE UNITED STATES. FOR INSTANCE, IT IS UNDERSTOOD THAT THE PUERTO RICO RECONSTRUCTION ADMINISTRATION AND THE WORK PROJECTS ADMINISTRATION OPERATING IN PUERTO RICO HAVE ADOPTED NATIVE SCHEDULES THERE BELOW THE SCHEDULE FIXED UNDER THE CLASSIFICATION ACT.

THE ACT OF NOVEMBER 26, 1940, 54 STAT. 1211, AUTHORIZES THE PRESIDENT BY EXECUTIVE ORDER TO EXEMPT FROM CLASSIFICATION "OFFICES OR POSITIONS OUTSIDE THE STATES OF THE UNITED STATES AND THE DISTRICT OF COLUMBIA FILLED BY NATIVES OF TERRITORIES OR POSSESSIONS OF THE UNITED STATES (INCLUDING THE PHILIPPINE ISLANDS) OR FOREIGN NATIONALS.' WHILE THIS STATUE IS NOT SELF-EXECUTING, IT IS IN THE NATURE OF A RECOGNITION BY THE CONGRESS THAT NATIVE EMPLOYEES ARE NOT REQUIRED TO BE CLASSIFIED. COMPARE THE DECISION OF FEBRUARY 25, 1941, B-14968, 20 COMP. GEN. 484, HOLDING THAT THE SALARY RATES OF PART-TIME EMPLOYEES IN THE FIELD SERVICE MUST CONTINUE TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT UNDER EXISTING RULES, UNLESS AND UNTIL THE PRESIDENT BY EXECUTIVE ORDER EXEMPTS SUCH POSITIONS UNDER THE AUTHORITY VESTED IN HIM BY SAID ACT OF NOVEMBER 26, 1940. IN OTHER WORDS, THE CONGRESS BY SAID STATUTE VESTS IN THE PRESIDENT THE AUTHORITY TO MAKE EXEMPTIONS FROM CLASSIFICATION OF CERTAIN CLASSES OF POSITIONS IN THE FIELD SERVICE BUT UNTIL THE PRESIDENT HAS ACTED UNDER SUCH AUTHORITY THE EXISTING RULES, EITHER REQUIRING CLASSIFICATION OR EXEMPTING FROM CLASSIFICATION, MUST REMAIN IN FULL FORCE AND EFFECT.

YOU ARE ADVISED, THEREFORE, THAT IT IS WITHIN YOUR ADMINISTRATIVE DISCRETION TO ADOPT A NATIVE SALARY SCHEDULE BELOW THE SCHEDULE FIXED BY THE CLASSIFICATION ACT FOR NATIVE EMPLOYEES IN PUERTO RICO OF THE CLASSES MENTIONED IN YOUR LETTER.