B-19487, AUGUST 8, 1941, 21 COMP. GEN. 118

B-19487: Aug 8, 1941

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IN THE SEVERAL EXISTING APPROPRIATION ACTS TO THE EFFECT THAT THE AVERAGE OF THE SALARIES OF THE TOTAL NUMBER OF PERSONS UNDER ANY PARTICULAR GRADE SHALL NOT AT ANY TIME EXCEED THE AVERAGE OF THE COMPENSATION RATES SPECIFIED FOR THE GRADE BY THE CLASSIFICATION ACT OF 1923 ARE INCONSISTENT WITH AND. 1941: I HAVE YOUR LETTER OF AUGUST 7. AS FOLLOWS: IN THE INDEPENDENT OFFICES APPROPRIATION ACT FOR THE FISCAL YEAR 1942 THERE IS A PROVISION COMMONLY KNOWN AS THE AVERAGE CLAUSE WHICH READS IN PART AS FOLLOWS: "SEC. 2. IN GRADES IN WHICH ONLY ONE POSITION IS ALLOCATED THE SALARY OF SUCH POSITION SHALL NOT EXCEED THE AVERAGE OF THE COMPENSATION RATES FOR THE GRADE EXCEPT THAT IN UNUSUALLY MERITORIOUS CASES OF ONE POSITION IN A GRADE.

B-19487, AUGUST 8, 1941, 21 COMP. GEN. 118

COMPENSATION - PROMOTIONS - "AVERAGE PROVISION" LIMITATION REMOVAL THE PROVISIONS, COMMONLY KNOWN AS THE AVERAGE PROVISIONS, IN THE SEVERAL EXISTING APPROPRIATION ACTS TO THE EFFECT THAT THE AVERAGE OF THE SALARIES OF THE TOTAL NUMBER OF PERSONS UNDER ANY PARTICULAR GRADE SHALL NOT AT ANY TIME EXCEED THE AVERAGE OF THE COMPENSATION RATES SPECIFIED FOR THE GRADE BY THE CLASSIFICATION ACT OF 1923 ARE INCONSISTENT WITH AND, THEREFORE, RENDERED INOPERATIVE BY THE UNIFORM WITHIN-GRADE SALARY-ADVANCEMENT ACT OF AUGUST 1, 1941.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, BUREAU OF THE BUDGET, AUGUST 8, 1941:

I HAVE YOUR LETTER OF AUGUST 7, 1941, AS FOLLOWS:

IN THE INDEPENDENT OFFICES APPROPRIATION ACT FOR THE FISCAL YEAR 1942 THERE IS A PROVISION COMMONLY KNOWN AS THE AVERAGE CLAUSE WHICH READS IN PART AS FOLLOWS:

"SEC. 2. IN EXPENDING APPROPRIATIONS OR PORTIONS OF APPROPRIATIONS CONTAINED IN THIS ACT, FOR THE PAYMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, THE AVERAGE OF THE SALARIES OF THE TOTAL NUMBER OF PERSONS UNDER ANY GRADE IN ANY BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT SHALL NOT AT ANY TIME EXCEED THE AVERAGE OF THE COMPENSATION RATES SPECIFIED FOR THE GRADE BY SUCH ACT, AS AMENDED, AND IN GRADES IN WHICH ONLY ONE POSITION IS ALLOCATED THE SALARY OF SUCH POSITION SHALL NOT EXCEED THE AVERAGE OF THE COMPENSATION RATES FOR THE GRADE EXCEPT THAT IN UNUSUALLY MERITORIOUS CASES OF ONE POSITION IN A GRADE, ADVANCES MAY BE MADE TO RATES HIGHER THAN THE AVERAGE OF THE COMPENSATION RATES OF THE GRADE BUT NOT MORE OFTEN THAN ONCE IN ANY FISCAL YEAR AND THEN ONLY TO THE NEXT HIGHER RATE. . .

A SIMILAR PROVISION IS FOUND IN SEVERAL OTHER APPROPRIATION ACTS FOR THE CURRENT FISCAL YEAR.

BY THE ENACTMENT OF PUBLIC, NO. 200, APPROVED AUGUST 1, 1941, EFFECTIVE JULY 1, 1941, SECTION 7 OF THE CLASSIFICATION ACT OF 1923 WAS AMENDED BY THE ADDITION OF THE FOLLOWING (AND OTHER) PARAGRAPHS:

"/B) ALL EMPLOYEES COMPENSATED ON A PER ANNUM BASIS, AND OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT, WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE IN WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED, SHALL BE ADVANCED IN COMPENSATION SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT QUARTER, FOLLOWING THE COMPLETION OF: (1) EACH EIGHTEEN MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $60 OR $100, OR (2) EACH THIRTY MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $200 OR $250, SUBJECT TO THE FOLLOWING CONDITIONS: . . .'

"/E) EMPLOYEES ELIGIBLE UNDER SUBSECTION (B) FOR COMPENSATION ADVANCEMENT BY REASON OF SERVICE IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS AMENDMENT SHALL BE ADVANCED TO THE NEXT HIGHER RATE OF COMPENSATION WITHIN THE GRADE TO WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED AT THE BEGINNING OF THE NEXT QUARTER IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF THIS AMENDMENT.

"/F) WITHIN THE LIMIT OF AVAILABLE APPROPRIATIONS, AND IN RECOGNITION OF ESPECIALLY MERITORIOUS SERVICES, THE HEAD OF ANY DEPARTMENT OR AGENCY IS AUTHORIZED TO MAKE ADDITIONAL WITHIN-GRADE COMPENSATION ADVANCEMENTS, BUT ANY SUCH ADDITIONAL ADVANCEMENTS SHALL NOT EXCEED ONE STEP AND NO EMPLOYEE SHALL BE ELIGIBLE FOR MORE THAN ONE ADDITIONAL ADVANCEMENT HEREUNDER WITHIN EACH OF THE TIME PERIODS SPECIFIED IN SUBSECTION (B) . . .'

SECTION 8 OF PUBLIC, NO. 200, PROVIDES AS FOLLOWS:

"INSOFAR AS THEY ARE INCONSISTENT OR IN CONFLICT WITH PRIOR LAWS, THE PROVISIONS OF THIS ACT SHALL CONTROL.'

IN VIEW OF THE LATTER PROVISION IT WOULD APPEAR THAT THE AVERAGE CLAUSE HEREINABOVE QUOTED, AS WELL AS SIMILAR CLAUSES IN OTHER ENACTMENTS APPROVED PRIOR TO AUGUST 1, 1941, THE DATE ON WHICH PUBLIC, NO. 200, WAS APPROVED, DOES NOT CONSTITUTE A BAR TO SALARY ADVANCES MADE IN PURSUANCE OF SECTIONS (B), (E), AND (F) OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923 AS NOW AMENDED, EVEN THOUGH SUCH ADVANCES CAUSED THE AVERAGE COMPENSATION OF ALL PERSONS IN THE GRADE TO EXCEED THE MIDPOINT OF THE GRADE. WILL YOU PLEASE ADVISE ME WHETHER THIS CONCLUSION IS CORRECT?

THE AVERAGE PROVISION APPEARING IN SEVERAL OF THE ANNUAL APPROPRIATION ACTS FOR THE FISCAL YEAR 1942, ENACTED PRIOR TO AUGUST 1, 1941, PROVIDING SALARIES FOR EMPLOYEES WITHIN THE PURVIEW OF THE CLASSIFICATION ACT, AS AMENDED, OPERATES TO PRECLUDE SALARY ADVANCES WITHIN GRADE TO SOME EMPLOYEES REGARDLESS OF HOW EFFICIENT THEIR SERVICES MAY HAVE BEEN OR OF HOW LONG THEY MAY HAVE SERVED WITHOUT ANY INCREASE WHATEVER, 4 COMP. GEN. 333; ID. 459. THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, AMENDING THE CLASSIFICATION ACT, PROVIDES A UNIFORM WITHIN-GRADE SALARY-ADVANCEMENT PLAN FOR ALL EMPLOYEES COMPENSATED ON A PER ANNUM BASIS, AND OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT--- REGARDLESS OF WHETHER THEIR SALARY RATES ARE BELOW OR ABOVE THE MIDDLE OR AVERAGE SALARY RATE OF THE GRADE AND REGARDLESS OF THE TOTAL NUMBER OF PERSONS IN THE GRADE--- ON THE BASIS OF (1) LENGTH OF SERVICE (2) THE ATTAINMENT OF A CERTAIN DEGREE OF EFFICIENCY, AND (3) ONE ADDITIONAL WITHIN-GRADE SALARY ADVANCEMENT FOR "ESPECIALLY MERITORIOUS SERVICE.' OBVIOUSLY, THESE PROVISIONS OF THE ACT OF AUGUST 1, 1941, FOR WITHIN-GRADE SALARY ADVANCEMENTS FOR ALL EMPLOYEES WITHIN ITS SCOPE ON THE BASIS OF LENGTH OF SERVICE, EFFICIENCY, AND MERITORIOUS SERVICE OF THE INDIVIDUAL EMPLOYEE, IS INCONSISTENT AND IN CONFLICT WITH THE AVERAGE PROVISION UNDER WHICH AN INDIVIDUAL EMPLOYEE'S RIGHT TO AN ADVANCE WITHIN GRADE IS DEPENDENT UPON THE TOTAL NUMBER OF PERSONS IN A GRADE AND THE SALARY OF EACH RATHER THAN SOLELY UPON HIS INDIVIDUAL LENGTH OF SERVICE, EFFICIENCY, ETC. IN OTHER WORDS, THE NEW PLAN OPERATES ON THE INDIVIDUAL WITHOUT REGARD TO OTHER EMPLOYEES IN THE SAME GRADE AND THE OLD PLAN UNDER THE AVERAGE PROVISION OPERATED COLLECTIVELY ON ALL EMPLOYEES IN A GRADE.

ACCORDINGLY, I AM IN AGREEMENT WITH THE VIEW EXPRESSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER.