B-18996, AUGUST 1, 1941, 21 COMP. GEN. 95

B-18996, AUGUST 1, 1941, 21 COMP. GEN. 95

COMPENSATION - ADMINISTRATIVE WITHIN-GRADE PROMOTIONS - EFFECTIVE DATE OF STATUTORY PROHIBITION WHILE THE APPROPRIATION ACT CONTAINING THE PROHIBITION AGAINST THE USE OF "ANY APPROPRIATION AVAILABLE FOR OBLIGATION DURING THE FISCAL YEAR 1942" FOR THE PAYMENT OF WITHIN-GRADE PROMOTIONS UNTIL SUCH TIME AS A UNIFORM WITHIN-GRADE PROMOTION PLAN SHALL TAKE EFFECT PURSUANT TO LAW WAS NOT APPROVED UNTIL JULY 3, 1941, THE PROHIBITION IS EFFECTIVE FROM THE BEGINNING OF THE FISCAL YEAR, AND, THEREFORE, IS APPLICABLE TO A WITHIN- GRADE PROMOTION ADMINISTRATIVELY APPROVED IN JUNE 1941, BUT MADE EFFECTIVE ON JULY 1, 1941.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, U.S. MARITIME COMMISSION, AUGUST 1, 1941:

I HAVE YOUR LETTER OF JULY 21, 1941, AS FOLLOWS:

ON JUNE 20, 1941 AND JUNE 26, 1941 THE COMMISSION FORMALLY APPROVED A NUMBER OF ADMINISTRATIVE WITHIN-GRADE SALARY ADVANCEMENTS FOR CERTAIN OF ITS EMPLOYEES. SUCH WITHIN-GRADE SALARY ADVANCEMENTS WERE TO BECOME AND BECAME EFFECTIVE ON JULY 1, 1941.

ON THE DATES THE ABOVE-MENTIONED ADVANCEMENTS WERE APPROVED (NAMELY, JUNE 20 AND JUNE 26, 1941) AND ON THE DATE THEY WERE TO BECOME EFFECTIVE (NAMELY, JULY 1, 1941) THERE EXISTED NO LEGAL PROHIBITION WHICH WOULD PRECLUDE THE COMMISSION FROM APPROVING AND GRANTING SUCH ADVANCEMENTS. CONSEQUENTLY, ON JULY 1, 1941, SUCH WITHIN-GRADE SALARY ADVANCEMENTS BECAME EFFECTIVE.

HOWEVER, ON JULY 3, 1941, 2 DAYS AFTER SUCH ADVANCEMENTS BECAME EFFECTIVE, THE SECOND DEFICIENCY APPROPRIATION ACT OF 1941 WAS APPROVED BY THE PRESIDENT OF THE UNITED STATES AND BECAME LAW ( PUBLIC LAW NO. 150- 77TH CONG.). SECTION 302 OF THAT ACT PROVIDES THAT

"NO APPROPRIATION OR PART OF ANY APPROPRIATION AVAILABLE FOR OBLIGATION DURING THE FISCAL YEAR 1942, INCLUDING FUNDS OF GOVERNMENT OWNED OR CONTROLLED CORPORATIONS, SHALL BE USED FOR GRANTING WITHIN GRADE SALARY ADVANCEMENTS TO ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES, THE DISTRICT OF COLUMBIA, OR OF ANY SUCH CORPORATION, WHO IS COMPENSATED ON A PER ANNUM BASIS AND WHO OCCUPIES A POSITION THE COMPENSATION OF WHICH IS FIXED (1) ACCORDING TO THE SCHEDULES PRESCRIBED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, OR (2) BY EXECUTIVE ORDER NUMBERED 6746, OR (3) ADMINISTRATIVELY ACCORDING TO SCHEDULES PATTERNED AFTER SUCH CLASSIFICATION ACT: PROVIDED, THAT THIS SECTION SHALL CEASE TO BE OPERATIVE WHENEVER A UNIFORM, WITHIN-GRADE, SALARY-ADVANCEMENT PLAN FOR POSITIONS COMPENSATED ACCORDING TO SUCH CLASSIFICATION ACT, AS AMENDED, SHALL TAKE EFFECT, PURSUANT TO LAW.'

THE EMPLOYEES WHOSE SALARIES WERE ADVANCED AS STATED ABOVE ARE EMPLOYEES WITHIN THE CATEGORIES SPECIFIED IN THE ABOVE-QUOTED SECTION 302.

EXCEPT FOR THE GENERAL PROHIBITION AGAINST THE USE OF ANY PART OF THE COMMISSION'S APPROPRIATIONS FOR WITHIN-GRADE SALARY ADVANCEMENTS, THERE IS NOTHING IN SECTION 302 WHICH SPECIFICALLY INDICATES THAT THE COMMISSION DID NOT HAVE THE AUTHORITY TO MAKE WITHIN-GRADE SALARY ADVANCEMENTS, THERE IS NOTHING IN SECTION 302 WHICH SPECIFICALLY INDICATES THAT THE COMMISSION DID NOT HAVE THE AUTHORITY TO MAKE WITHIN-GRADE SALARY ADVANCEMENTS PRIOR TO JULY 3, 1941.

INASMUCH AS SECTION 302 OF THE SECOND DEFICIENCY ACT OF 1941 PROVIDES THAT "NO APPROPRIATION OR PART OF ANY APPROPRIATION" MADE AVAILABLE TO THE COMMISSION FOR OBLIGATIONS DURING THE FISCAL YEAR 1942 "SHALL BE USED FOR GRANTING WITHIN-GRADE SALARY ADVANCEMENTS" UNTIL SUCH TIME AS A UNIFORM WITHIN-GRADE SALARY ADVANCEMENT PLAN SHALL TAKE EFFECT, WHAT IS THE LEGAL EFFECT OF SUCH A PROVISION ON THOSE WITHIN-GRADE SALARY ADVANCEMENTS LEGALLY AND PROPERLY MADE AND WHICH BECAME EFFECTIVE PRIOR TO THE ENACTMENT THEREOF? NOTWITHSTANDING THE PROVISIONS OF SECTION 302, CAN PART OF THE APPROPRIATION MADE AVAILABLE TO THE COMMISSION BE USED TO PAY THE WITHIN-GRADE SALARY ADVANCEMENTS MADE PRIOR TO JULY 3, 1941?

IT IS REQUESTED THAT YOU ADVISE THE COMMISSION CONCERNING THE MATTER HEREIN SET FORTH. A COPY OF A MEMORANDUM OF OUR GENERAL COUNSEL, DISCUSSING THE QUESTION, IS ENCLOSED FOR YOUR CONSIDERATION.

SECTION 302 OF THE ACT APPROVED JULY 3, 1941, 55 STAT. 575, QUOTED IN YOUR LETTER, CONSTITUTES AN ABSOLUTE PROHIBITION AGAINST THE USE OF ANY APPROPRIATION AVAILABLE FOR OBLIGATION DURING THE FISCAL YEAR 1942 FOR THE PAYMENT OF WITHIN-GRADE SALARY ADVANCEMENTS TO THE CLASSES OF PERSONNEL COMING WITHIN THE PURVIEW OF THE ACT UNTIL SUCH TIME AS A UNIFORM WITHIN- GRADE SALARY-ADVANCEMENT PLAN SHALL TAKE EFFECT PURSUANT TO LAW.

NOTWITHSTANDING THE FACT THAT THE APPROPRIATION ACT CONTAINING THE RESTRICTION WAS NOT APPROVED UNTIL JULY 3, 1941, UNQUESTIONABLY THE PROHIBITION IS APPLICABLE FROM THE BEGINNING OF THE FISCAL YEAR 1941, FROM WHICH DATE THE APPROPRIATIONS FOR PAYING THE INCREASES ARE MADE AVAILABLE, THAT IS, DURING THE ENTIRE FISCAL YEAR 1942. THE LEGISLATIVE HISTORY OF THE ENACTMENT SHOWS BEYOND A REASONABLE DOUBT THAT THE CONGRESS INTENDED TO PROHIBIT ALL WITHIN-GRADE SALARY ADVANCEMENT TO CLASSES OF PERSONNEL COMING WITHIN THE PURVIEW OF THE ACT THAT WOULD OTHERWISE BE MADE EFFECTIVE BY ADMINISTRATIVE ACTION DURING THE FISCAL YEAR 1942, UNTIL THE UNIFORM PLAN FOR WITHIN-GRADE, SALARY ADVANCEMENTS THEN PROPOSED IN A PENDING BILL HAS BECOME EFFECTIVE.

THE EFFECTIVE DATE OF SALARY CHANGES RESULTING FROM ADMINISTRATIVE ACTION, EXCLUSIVELY, IS THE DATE THE ACTION IS TAKEN BY THE ADMINISTRATIVE OFFICER VESTED WITH THE PROPER AUTHORITY, OR A SUBSEQUENT DATE SPECIFICALLY FIXED. 4 COMP. GEN. 957; 6 ID. 133; 10 ID. 514, 517. ON THE BASIS OF THE FACTS PRESENTED, THE INCREASES IN COMPENSATION MENTIONED IN YOUR LETTER DID NOT BECOME EFFECTIVE ON JUNE 20 AND 26, 1941, THE DATES OF THE COMMISSION'S FORMAL APPROVAL, BUT ON JULY 1, 1941--- DURING THE FISCAL YEAR 1942. WHILE IT IS TRUE, AS YOU STATE, THAT THERE WAS THEN NO STATUTORY PROHIBITION AGAINST THE INCREASES IN COMPENSATION AND THE PROMOTIONS BECAME EFFECTIVE ON JULY 1, 1941, BY REASON OF THE ADMINISTRATIVE ACTION PRIOR TO THE DATE OF THE APPROVAL OF THE ACT CONTAINING THE RESTRICTION, THE QUOTED ACT CREATES A SITUATION WHEREBY NO FUNDS ARE MADE AVAILABLE FOR PAYMENT OF THE ADMINISTRATIVE WITHIN-GRADE SALARY INCREASES GRANTED IN THIS CASE. COMPARE DECISION OF JUNE 20, 1941, B-17647, 20 COMP. GEN. 919.

YOU ARE ADVISED, THEREFORE, THAT THE WITHIN-GRADE SALARY ADVANCEMENTS IN QUESTION MAY NOT NOW BE MADE EFFECTIVE. I APPRECIATE YOUR HAVING FORWARDED HERE A COPY OF MEMORANDUM OF YOUR GENERAL COUNSEL DISCUSSING THE QUESTION AND WHOSE VIEWS WERE FULLY AND SYMPATHETICALLY CONSIDERED IN ARRIVING AT THE CONCLUSION HEREIN STATED. WHETHER THE ADVANCEMENTS IN QUESTION MAY HEREAFTER BE MADE EFFECTIVE DURING THE FISCAL YEAR 1942, WILL DEPEND UPON THE TERMS AND CONDITIONS OF THE CONTROLLING STATUTES IF AND WHEN A "UNIFORM, WITHIN-GRADE, SALARY ADVANCEMENT PLAN FOR POSITIONS COMPENSATED ACCORDING TO SUCH CLASSIFICATION ACT, AS AMENDED, SHALL TAKE EFFECT, PURSUANT TO LAW" (QUOTING FROM THE PROVISO TO THE APPROPRIATION PROVISION).