B-163376, MARCH 8, 1968, 47 COMP. GEN. 485

B-163376, MARCH 8, 1968, 47 COMP. GEN. 485

DEPARTMENTS AND ESTABLISHMENTS - HEADS - SALARY PAYMENT BASIS ALTHOUGH HEADS OF DEPARTMENTS AND AGENCIES WHO HAVE PAY COMPUTED ON A MONTHLY OR ANNUAL BASIS, AND WHO HAVE ELECTED TO BE PAID SEMIMONTHLY, HAVE BEEN CONSIDERED AS HAVING A SEMIMONTHLY PAY PERIOD, THE LAW AS RECENTLY CODIFIED SPECIFIES THAT THE PAY PERIOD IN SUCH CASES SHALL BE ONE CALENDAR MONTH AND THE CODIFICATION IS TO BE ACCEPTED AS A CORRECT STATEMENT OF THE LAW IN THAT REGARD SO FAR AS DETERMINING COMPENSATION BENEFITS.

TO M. C. JOHNSON, SMALL BUSINESS ADMINISTRATION, MARCH 8, 1968:

YOUR LETTER RECEIVED HERE ON JANUARY 22, 1968, ENCLOSES A VOUCHER COVERING GROSS EARNINGS IN THE AMOUNT OF $41.66, FOR THE ADMINISTRATOR, SMALL BUSINESS ADMINISTRATION, FOR THE PERIOD DECEMBER 16 TO 31, 1967, AT THE INCREASED RATE OF $29,500 PER ANNUM AUTHORIZED BY SECTION 215 (A), 81 STAT. 638, 5 U.S.C. 5314, PUBLIC LAW 90-206, APPROVED DECEMBER 16, 1967. YOU ASK WHETHER THE VOUCHER CAN BE CERTIFIED FOR PAYMENT AS DRAWN.

YOU POINT OUT THAT THE ADMINISTRATOR HAS ELECTED TO BE PAID SEMI MONTHLY INSTEAD OF MONTHLY. FURTHER, YOU POINT OUT THAT IF SUCH ELECTION HAS THE EFFECT OF ESTABLISHING A SEMIMONTHLY PAY PERIOD WITHIN THE MEANING OF SECTION 220 OF PUBLIC LAW 90-206, 5 U.S.C. 3110 NOTE, IT APPEARS THE EFFECTIVE DATE OF THE INCREASE WOULD BE DECEMBER 16, 1967, BUT THAT IF HIS PAY PERIOD IS CONSIDERED TO BE ON A MONTHLY BASIS, THE EFFECTIVE DATE OF THE INCREASE IN COMPENSATION WOULD APPEAR TO BE JANUARY 1, 1968.

SECTION 220 (A) READS, IN PERTINENT PART, AS FOLLOWS:

(3) SECTIONS * * * 215, * * * SHALL BECOME EFFECTIVE AT THE BEGINNING OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER THE DATE OF ENACTMENT OF THIS TITLE.

IN DETERMINING THE PAY PERIOD OF A HEAD OF AN AGENCY SUCH AS THE ADMINISTRATOR, SMALL BUSINESS ADMINISTRATION, WHO IS EXEMPTED FROM THE BIWEEKLY PAY PERIODS APPLICABLE TO FEDERAL EMPLOYEES IN GENERAL, THERE ARE FOR CONSIDERATION THE PROVISIONS OF 5 U.S.C. 5505, INPERTINENT PART AS FOLLOWS:

THE PAY PERIOD FOR AN INDIVIDUAL IN THE SERVICE OF THE UNITED STATES WHOSE PAY IS MONTHLY OR ANNUAL COVERS ONE CALENDAR MONTH, AND THE FOLLOWING RULES FOR DIVISION OF TIME AND COMPUTATION OF PAY FOR SERVICES PERFORMED GOVERN:

(1) A MONTH'S PAY IS ONE-TWELFTH OF A YEAR'S PAY.

(2) A DAY'S PAY IS ONE-THIRTIETH OF A MONTH'S PAY.

(3) THE 31ST DAY OF A CALENDAR MONTH IS IGNORED IN COMPUTING PAY, EXCEPT THAT ONE DAY'S PAY IS FORFEITED FOR ONE DAY'S UNAUTHORIZED ABSENCE ON THE 31ST DAY OF A CALENDAR MONTH.

(4) FOR EACH DAY OF THE MONTH ELAPSING BEFORE ENTERING THE SERVICE, ONE DAY'S PAY IS DEDUCTED FROM THE FIRST MONTH'S PAY FOR THE INDIVIDUAL.

THIS SECTION DOES NOT APPLY TO AN EMPLOYEE WHOSE PAY IS COMPUTED UNDER SECTION 5504 (B) OF THIS TITLE.

THE ABOVE LANGUAGE IS THE RECODIFICATION RESULTING FROM PUBLIC LAW 89- 554, APPROVED SEPTEMBER 6, 1966, 80 STAT. 476, AND IS STATED TO BE DERIVED FROM SECTION 6 OF THE ACT OF JUNE 30, 1906, 34 STAT. 763, WHICH APPEARED IN 5 U.S.C. 84 (1964 ED.) AS FOLLOWS:

WHERE THE COMPENSATION OF ANY PERSON IN THE SERVICE OF THE UNITED STATES (EXCEPT PERSONS WHOSE COMPENSATION IS COMPUTED IN ACCORDANCE WITH SECTION 944 OF THIS TITLE) IS ANNUAL OR MONTHLY THE FOLLOWING RULES FOR DIVISION OF TIME AND COMPUTATION OF PAY FOR SERVICES RENDERED ARE STABLISHED: ANNUAL COMPENSATION SHALL BE DIVIDED INTO TWELVE EQUAL INSTALLMENTS, ONE OF WHICH SHALL BE THE PAY FOR EACH CALENDAR MONTH; AND IN MAKING PAYMENTS FOR A FRACTIONAL PART OF A MONTH ONE THIRTIETH OF ONE OF SUCH INSTALLMENTS, OR OF A MONTHLY COMPENSATION,SHALL BE THE DAILY RATE OF PAY. FOR THE PURPOSE OF COMPUTING SUCH COMPENSATION AND FOR COMPUTING TIME FOR SERVICES RENDERED DURING A FRACTIONAL PART OF A MONTH IN CONNECTION WITH ANNUAL OR MONTHLY COMPENSATION, EACH AND EVERY MONTH SHALL BE HELD TO CONSIST OF THIRTY DAYS REGARD TO THE ACTUAL NUMBER OF DAYS IN ANY CALENDAR MONTH, THUS EXCLUDING THE 31ST OF ANY CALENDAR MONTH FROM THE COMPUTATION AND TREATING FEBRUARY AS IF IT ACTUALLY HAD THIRTY DAYS. ANY SUCH PERSON ENTERING THE SERVICE OF THE UNITED STATES DURING A THIRTY-ONE DAY MONTH AND SERVING UNTIL THE END THEREOF SHALL BE ENTITLED TO PAY FOR THAT MONTH FROM THE DATE OF ENTRY TO THE 30TH DAY OF SAID MONTH, BOTH DAYS INCLUSIVE; AND ANY PERSON ENTERING SAID SERVICE DURING THE MONTH OF FEBRUARY AND SERVING UNTIL THE END THEREOF SHALL BE ENTITLED TO ONE MONTH'S PAY, LESS AS MANY THIRTIETHS THEREOF AS THERE WERE DAYS ELAPSED PRIOR TO DATE OF ENTRY * * *.

IT IS NOTED THAT THE PHRASE "THE PAY PERIOD FOR AN INDIVIDUAL IN THE SERVICE OF THE UNITED STATES WHOSE PAY IS MONTHLY OR ANNUAL COVERS ONE CALENDAR MONTH" AS CONTAINED IN THE CURRENT CODIFICATION (5 U.S.C. 5505) DID NOT APPEAR IN THE 1906 ACT OR 5 U.S.C. 84 (1964 ED.).

UNDER THE LANGUAGE OF THE 1906 ACT AS CODIFIED IN 5 U.S.C. 84 (1964 ED.) OUR DECISIONS RECOGNIZED THAT THE PAY PERIODS OF INDIVIDUALS SUBJECT THERETO COULD BE EITHER MONTHLY OR SEMIMONTHLY. 4 COMP. GEN. 280 AND 721; 6 ID. 202 AND 530; 11 ID. 395; 19 ID. 237 (ANSWER TO QUESTION "0"); 20 ID. 834; 23 ID. 698; 36 ID. 580. MOREOVER, IMMEDIATELY PRIOR TO THE ENACTMENT OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 5 U.S.C. 901 NOTE, ESTABLISHING BIWEEKLY PAY PERIODS FOR PER ANNUM OR MONTHLY EMPLOYEES (OTHER THAN HEADS OF AGENCIES) IT WAS THE PRACTICE OF MOST AGENCIES TO PAY ANNUAL AND MONTHLY EMPLOYEES ON A SEMIMONTHLY BASIS. THEREAFTER, WE UNDERSTAND THAT HEADS OF AGENCIES FOR THE MOST PART CONTINUED TO BE PAID ON A SEMIMONTHLY BASIS.

PUBLIC LAW 89-554 CONTAINS THE FOLLOWING PROVISION IN SECTION 7 (A), 5 U.S.C. PREC. 101 NOTE, AS TO THE EFFECT OF ANY CHANGES IN LANGUAGE IN THE RECODIFICATION OF TITLE 5, UNITED STATES CODE:

THE LEGISLATIVE PURPOSE IN ENACTING SECTIONS 1-6 (INCLUDES SECTION 5505 ABOVE) OF THIS ACT IS TO RESTATE, WITHOUT SUBSTANTIVE CHANGE, THE LAWS REPLACED BY THOSE SECTIONS ON THE EFFECTIVE DATE OF THIS ACT.

IT HAS BEEN HELD THAT WHERE ENTIRE LEGISLATION IS REVISED AND CONSOLIDATED BY CODIFICATION IT WILL BE PRESUMED TO BEAR THE SAME MEANING AS THE ORIGINAL SECTIONS OF THE LAW IN THE ABSENCE OF ANY INDICATION TO THE CONTRARY IN THE LEGISLATIVE HISTORY THEREOF. THIS IS SO EVEN WHEN THE LANGUAGE IS CHANGED IN THE COURSE OF CODIFICATION. RUTH V EAGLE-PITCHER CO., 225 F.2D 573.

WE FIND NOTHING IN THE LEGISLATIVE HISTORY OF PUBLIC LAW 89-554, INCLUDING THE REVISER'S NOTES, WHICH REFLECTS AN INTENTION TO CHANGE THE ORIGINAL MEANING OF 5 U.S.C. 84 (SECTION 6 OF THE ACT OF JUNE 30, 1906) AS INTERPRETED BY THE DECISIONS OF OUR OFFICE.

WE ARE FACED, HOWEVER, WITH A CODIFICATION PROVISION WHICH NOT ONLY INCLUDES THE EXACT COMPUTATION PROVISIONS OF THE 1906 ACT BUT HAS ADDED SPECIFIC LANGUAGE "THE PAY PERIOD * * * COVERS ONE CALENDAR MONTH * * *" . THIS ADDITION IS CONSISTENT WITH THE REQUIREMENT IN THE 1906 ACT THAT THE ANNUAL SALARY BE IN 12 EQUAL INSTALLMENTS ONE OF WHICH SHALL BE THE PAY FOR EACH CALENDAR MONTH, AND THE CODIFICATION PROVISION THAT "A MONTH'S PAY IS ONE-TWELFTH OF A YEAR'S Y.' IT WOULD SEEM THE MOST LIKELY REASON FOR LACK OF COMMENT IN THE LEGISLATIVE HISTORY OR THE REVISOR'S NOTES ON THE EFFECT OF THE CLARIFYING LANGUAGE RELATING TO PAY PERIODS WAS THAT THE DRAFTERS ASSUMED THEY WERE MERELY RESTATING THE LAW. WE ARE LEFT WITH THE CLEAR STATEMENT IN THE 1966 CODIFICATION THAT THE PAY PERIOD COVERS 1CALENDAR MONTH, AS CONTRASTED TO THE EARLIER SOMEWHAT INCOMPATIBLE CONCEPT UNDER THE 1906 STATUTE RECOGNIZING A MONTHLY COMPUTATION REQUIREMENT BUT PERMITTING SEMIMONTHLY PAYMENTS. IN THE CIRCUMSTANCES, WE MUST CONCLUDE THAT THE CLEAR EXPRESSION CONCERNING THE "PAY PERIOD" IN THE REVISED FORM IS TO BE ACCEPTED HEREAFTER AS THE CORRECT STATEMENT OF THE 1906 ACT. HOWEVER, SINCE INCREASED COMPENSATION UNDER SECTION 215 BASED ON THE PRIOR INTERPRETATION OF THE 1906 ACT BECAME DUE AS OF DECEMBER 16, 1967, THE SUBMITTED VOUCHER MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE PROPER, AND INCREASED DEDUCTIONS FOR LIFE INSURANCE SHOULD BE APPLIED AS OF FEBRUARY 16, 1968.