B-17647, JUNE 20, 1941, 20 COMP. GEN. 919

B-17647: Jun 20, 1941

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SO THAT THE EMPLOYEES INVOLVED ARE NOT RESTORED TO THEIR FORMER SALARY STATUS BY THE MERE LIFTING OF THE PROHIBITION. 1941: I HAVE YOUR LETTER OF JUNE 9. YOU WILL NOTE THAT IT IS SIMPLY A LIMITATION ON THE EXPENDITURE OF FUNDS PROVIDED FOR IN THE ACT MENTIONED. IT SEEMS TO ME THAT IF THE CONGRESS HAD DESIRED MORE THAN THE WITHHOLDING OF THE THIRD STEP OF PROMOTION DURING THE CURRENT FISCAL YEAR IT WOULD HAVE PROVIDED LANGUAGE TO THAT EFFECT AND WOULD HAVE SAID DEFINITELY THAT THESE EMPLOYEES SHOULD BE REDUCED TO THE RESPECTIVE SALARIES RESULTING FROM THE TWO-STEP PROMOTIONS. IT IS MY OPINION THAT THOSE EMPLOYEES AFFECTED BY SECTION 703 SUPRA REVERT ON JULY 1. I SHOULD BE GLAD TO HAVE YOUR CONFIRMATION OF THIS OPINION.

B-17647, JUNE 20, 1941, 20 COMP. GEN. 919

SALARY LIMITATIONS - LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1941 THE PROHIBITION IN SECTION 703 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1941, AGAINST PAYMENT OF SALARY OF ANY PERSON WHO RECEIVED AS MANY AS THREE STEPS OF ADMINISTRATIVE WITHIN-GRADE PROMOTIONS DURING THE FISCAL YEAR 1939, AT A RATE OF PAY IN EXCESS OF THE SALARY RESULTING FROM THE FIRST TWO STEPS, OPERATED TO CANCEL SUCH PROMOTIONS IN EXCESS OF TWO STEPS, SO THAT THE EMPLOYEES INVOLVED ARE NOT RESTORED TO THEIR FORMER SALARY STATUS BY THE MERE LIFTING OF THE PROHIBITION, AND ANY ADMINISTRATIVE WITHIN-GRADE PROMOTIONS SUBSEQUENTLY GIVEN SUCH EMPLOYEES MUST BE IN ACCORDANCE WITH THE USUAL ADMINISTRATIVE PROCEDURE AND SUBJECT TO THE LAWS, RULES OR REGULATIONS CONTROLLING WITHIN-GRADE PROMOTIONS GENERALLY.

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, JUNE 20, 1941:

I HAVE YOUR LETTER OF JUNE 9, 1941, AS FOLLOWS:

SECTION 703 OF THE LABOR-FEDERAL SECURITY APPROPRIATION ACT, 1941, ( PUBLIC, NO. 665, 76TH CONGRESS) READS AS FOLLOWS:

"NO PART OF ANY APPROPRIATION IN THIS ACT SHALL BE USED TO PAY THE SALARY OF ANY PERSON WHO RECEIVED AS MANY AS THREE STEPS OF ADMINISTRATIVE WITHIN -GRADE PROMOTION IN ALL POSITIONS OCCUPIED BY SUCH PERSON DURING THE FISCAL YEAR 1939, AT A RATE OF PAY IN EXCESS OF THE SALARY RESULTING FROM THE FIRST TWO STEPS OF SUCH PROMOTION; BUT THIS SECTION SHALL NOT PRECLUDE THE PAYMENT OF THE MINIMUM SALARY OF THE GRADE TO ANY PERSON TRANSFERRED, UNDER STANDARD REGULATIONS, TO SUCH GRADE.'

THE QUESTION ARISES IN THE AGENCY AS TO WHETHER THIS LIMITATION REQUIRES THE PERMANENT REDUCTION IN SALARY OF THE PERSONS AFFECTED OR WHETHER IT REQUIRES MERELY THE WITHHOLDING OF THE THIRD STEP OF ADMINISTRATIVE PROMOTION DURING THE CURRENT FISCAL YEAR. YOU WILL NOTE THAT IT IS SIMPLY A LIMITATION ON THE EXPENDITURE OF FUNDS PROVIDED FOR IN THE ACT MENTIONED, WHICH ACT, OF COURSE, EXPIRES ON JUNE 30, 1941.

IT SEEMS TO ME THAT IF THE CONGRESS HAD DESIRED MORE THAN THE WITHHOLDING OF THE THIRD STEP OF PROMOTION DURING THE CURRENT FISCAL YEAR IT WOULD HAVE PROVIDED LANGUAGE TO THAT EFFECT AND WOULD HAVE SAID DEFINITELY THAT THESE EMPLOYEES SHOULD BE REDUCED TO THE RESPECTIVE SALARIES RESULTING FROM THE TWO-STEP PROMOTIONS, IN WHICH EVENT THEY WOULD BE REQUIRED TO AWAIT FURTHER PROMOTION UNDER THE REGULAR RULES AND REGULATIONS; BUT IN THE EVENT OF NO FURTHER LEGISLATION LIMITING ADMINISTRATIVE PROMOTIONS, IT IS MY OPINION THAT THOSE EMPLOYEES AFFECTED BY SECTION 703 SUPRA REVERT ON JULY 1, 1941, WITHOUT FURTHER ADMINISTRATIVE PROMOTION WHICH THEY RECEIVED PRIOR TO THE ENACTMENT OF THIS LIMITING LEGISLATION.

I SHOULD BE GLAD TO HAVE YOUR CONFIRMATION OF THIS OPINION.

IN HOUSE REPORT NO. 1822, SEVENTY-SIXTH CONGRESS, THIRD SESSION, REPORT OF THE COMMITTEE ON APPROPRIATIONS ON H.R. 9007, WHICH BECAME THE ACT OF JUNE 26, 1940, 54 STAT. 574, IN WHICH THE APPROPRIATION RESTRICTION IN QUESTION WAS INCLUDED, IT WAS STATED:

IN THE OPINION OF THE COMMITTEE SOME OF THE AGENCIES PROVIDED FOR IN THE ACCOMPANYING BILL HAVE FLAGRANTLY ABUSED ADMINISTRATIVE DISCRETION, VESTED IN THEM BY CONGRESS, BY MAKING WHOLESALE ADVANCES IN SALARY TO EMPLOYEES. IN SOME FEW CASES ADVANCES HAVE RUN TO AS MANY AS SIX STEPS IN A SINGLE YEAR AND LARGER GROUPS OF EMPLOYEES HAVE RECEIVED AS MANY ADVANCES AS THREE, FOUR, AND FIVE STEPS. IN ONE CASE IT IS NOTED THAT AN EMPLOYEE HAVING AN EFFICIENCY RATING OF "FAIR" RECEIVED A THREE-STEP ADMINISTRATIVE ADVANCE DURING THE PAST FISCAL YEAR. THIS IS IN DIRECT VIOLATION OF THE TERMS OF THE CLASSIFICATION ACT OF 1923. WHETHER THESE PROMOTIONS WERE MADE IN THE FISCAL YEAR 1939 IN ANTICIPATION OF THE INHIBITION ON PROMOTIONS FOR 1940 ON ALL AGENCIES AFFECTED BY THE REORGANIZATION ACT IS NOT AS IMPORTANT TO THE COMMITTEE AS THE FACT THAT IN MAKING SUCH A LARGE SERIES OF THESE SALARY STEP-UPS, CERTAIN SELECTED INDIVIDUALS WERE STEPPED UP THREE, FOUR, FIVE, AND EVEN SIX STEPS DURING A SINGLE FISCAL YEAR. THE BELIEF THAT CONGRESS SHOULD MAKE ITS ATTITUDE CLEAR IN CASES WHERE IT FEELS THAT ADMINISTRATIVE DISCRETION HAS BEEN ABUSED, THE COMMITTEE HAS INSERTED IN THE BILL, FOR THE APPROVAL OF THE HOUSE, A PROVISION DENYING THE USE OF FUNDS APPROPRIATED IN THE BILL IN PAYING SALARY TO ANY EMPLOYEE IN EXCESS OF THE SALARY THAT HE WOULD HAVE BEEN ENTITLED TO ON THE BASIS OF A TWO-STEP ADVANCE DURING THE FISCAL YEAR 1939.

IN DECISION OF JULY 31, 1940, 20 COMP. GEN. 57, 64, THE FOLLOWING COMMENT REGARDING THE ABOVE STATEMENT WAS MADE:

AS STATED IN YOUR LETTER, THE LEGISLATIVE HISTORY OF THE ACT IN QUESTION DISCLOSES THAT SECTION 703 OF TITLE VII WAS INSERTED IN THE BILL BECAUSE OF THE BELIEF OF THE COMMITTEE IN CHARGE OF THE LEGISLATION THAT "SOME OF THE AGENCIES PROVIDED FOR IN THE ACCOMPANYING BILL HAVE FLAGRANTLY ABUSED ADMINISTRATIVE DISCRETION, VESTED IN THEM BY CONGRESS, BY MAKING WHOLESALE ADVANCES IN SALARY TO EMPLOYEES" (ITALICS SUPPLIED), AND BECAUSE IT WAS FELT THAT " CONGRESS SHOULD MAKE ITS ATTITUDE CLEAR IN CASES WHERE IT FEELS THAT ADMINISTRATIVE DISCRETION HAS BEEN ABUSED.' * * *

WHILE THE RESTRICTION ON THE USE OF APPROPRIATED FUNDS APPEARS IN THE ANNUAL APPROPRIATION ACT FOR THE FISCAL YEAR 1941 AND IS EFFECTIVE ONLY DURING THAT YEAR, UNLESS REENACTED FOR THE FISCAL YEAR 1942 (THE RESTRICTION NOT APPEARING IN BILL H.R. 4926 PROPOSING APPROPRIATIONS FOR THE FISCAL YEAR 1942 FOR THE DEPARTMENT OF LABOR, THE FEDERAL SECURITY AGENCY AND RELATED INDEPENDENT AGENCIES), IT APPEARS TO HAVE BEEN THE CLEAR PURPOSE AND INTENT OF THE CONGRESS TO REVERSE OR CANCEL (AS IT WERE) THE ADMINISTRATIVE ACTION IN ADVANCING OR PROMOTING EMPLOYEES MORE THAN TWO STEPS WITHIN THEIR GRADES DURING THE FISCAL YEAR 1939, AND TO REQUIRE A REDUCTION EFFECTIVE JULY 1, 1940, IN THE SALARY RATES OF THOSE EMPLOYEES WHO RECEIVED MORE THAN TWO WITHIN-GRADE PROMOTIONS DURING THE FISCAL YEAR 1939 TO A RATE NOT IN EXCESS OF TWO WITHIN-GRADE PROMOTIONS RECEIVED DURING THE FISCAL YEAR 1939. 20 COMP. GEN. 57. SEE, ALSO, IN THIS CONNECTION UNITED STATES V. DICKERSON, 310 U.S. 554.

ANY WITHIN-GRADE PROMOTION ON AND AFTER JULY 1, 1941, OF SUCH EMPLOYEES MUST BE MADE IN ACCORDANCE WITH THE USUAL ADMINISTRATIVE PROCEDURE AND WILL BE SUBJECT TO THE AVERAGE PROVISION, THE ATTAINING OF A PROPER EFFICIENCY RATING (SEE 17 COMP. GEN. 484), AND ANY OTHER LAWS, RULES OR REGULATIONS CONTROLLING THE GRANTING OF WITHIN-GRADE PROMOTIONS.

ACCORDINGLY, I AM UNABLE TO CONCUR IN THE VIEW EXPRESSED IN YOUR LETTER THAT THE EMPLOYEES IN QUESTION WILL AUTOMATICALLY REVERT ON JULY 1, 1941, TO THE SALARY RATES THEY WOULD HAVE RECEIVED HAD THEIR SALARY RATES NOT BEEN REDUCED BY REASON OF THE APPROPRIATION RESTRICTION.