B-20490, SEPTEMBER 25, 1941, 21 COMP. GEN. 256

B-20490, SEPTEMBER 25, 1941, 21 COMP. GEN. 256

COMPENSATION - WITHIN-GRADE PROMOTIONS - PRESIDENTIAL APPOINTEES SUBSEQUENTLY ACQUIRING COMPETITIVE CLASSIFIED CIVIL SERVICE STATUS PERSONNEL OF THE NATIONAL ARCHIVES WHOSE ORIGINAL APPOINTMENTS WERE MADE BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE PURSUANT TO SECTION 2 OF THE NATIONAL ARCHIVES ACT, BUT WHO ARE NOW IN THE COMPETITIVE CIVIL SERVICE AND WHOSE SALARY RATES ARE REQUIRED TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, ARE ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, PROVIDING A UNIFORM WITHIN-GRADE SALARY-ADVANCEMENT PLAN FOR EMPLOYEES.

COMPTROLLER GENERAL WARREN TO THE ARCHIVIST OF THE UNITED STATES, SEPTEMBER 25, 1941:

I HAVE YOUR LETTER OF SEPTEMBER 12, 1941, AS FOLLOWS:

YOUR ATTENTION IS INVITED TO THE QUESTION OF THE ELIGIBILITY FOR PROMOTION OF CERTAIN OFFICIALS OF THE NATIONAL ARCHIVES UNDER THE UNIFORM PROMOTION SYSTEM PRESCRIBED BY PUBLIC LAW 200, APPROVED AUGUST 1, 1941.

SECTION 2 OF THE NATIONAL ARCHIVES ACT (48 STAT. 1122) READS:

"THE SALARY OF THE ARCHIVIST SHALL BE $10,000 ANNUALLY. ALL PERSONS TO BE EMPLOYED IN THE NATIONAL ARCHIVES ESTABLISHMENT SHALL BE APPOINTED BY THE ARCHIVIST SOLELY WITH REFERENCE TO THEIR FITNESS FOR THEIR PARTICULAR DUTIES AND WITHOUT REGARD TO CIVIL-SERVICE LAW; * * * BUT ANY OFFICIAL OR EMPLOYEE WITH SALARY OF $5,000 OR OVER SHALL BE APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.'

IN ACCORDANCE WITH THIS SECTION, SEVERAL PERSONS WERE APPOINTED TO THE STAFF OF THE NATIONAL ARCHIVES BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

HOWEVER, THE INDEPENDENT OFFICES APPROPRIATION ACT, 1939 (52 STAT. 421) INCLUDED A PROVISION AS FOLLOWS:

"PROVIDED FURTHER, THAT SIX MONTHS AFTER THE DATE OF APPROVAL OF THIS ACT, NOTWITHSTANDING ANY PROVISIONS TO THE CONTRARY IN SECTION 2 OF THE NATIONAL ARCHIVES ACT, APPROVED JUNE 19, 1934, AND SECTION 1 OF THE FEDERAL REGISTER ACT, APPROVED JULY 26, 1935, ALL PERSONS EMPLOYED IN THE NATIONAL ARCHIVES ESTABLISHMENT UNDER SECTION 2 OF THE NATIONAL ARCHIVES ACT AND SECTION 1 OF THE FEDERAL REGISTER ACT SHALL BE APPOINTED BY THE ARCHIVIST IN ACCORDANCE WITH THE CIVIL SERVICE LAWS AND THE CLASSIFICATION ACT OF 1923, AS AMENDED: AND PROVIDED FURTHER, THAT ALL PERSONS EMPLOYED UNDER SECTION 2 OF THE NATIONAL ARCHIVES ACT AND SECTION 1 OF THE FEDERAL REGISTER ACT IN SAID ESTABLISHMENT SIX MONTHS AFTER THE DATE OF APPROVAL OF THIS ACT, REGARDLESS OF THE METHOD BY WHICH THEY WERE APPOINTED, WHO DO NOT HAVE A COMPETITIVE CLASSIFIED CIVIL-SERVICE STATUS SHALL ACQUIRE SUCH A STATUS (1) UPON RECOMMENDATION BY THE ARCHIVIST AND CERTIFICATION BY HIM TO THE CIVIL SERVICE COMMISSION THAT SUCH PERSONS HAVE RENDERED SATISFACTORY SERVICE IN SAID ESTABLISHMENT FOR NOT LESS THAN SIX MONTHS AND (2) UPON PASSING SUCH SUITABLE NONCOMPETITIVE TESTS AS THE CIVIL SERVICE COMMISSION SHALL PRESCRIBE.'

BY THIS PROVISION ALL POSITIONS IN THE NATIONAL ARCHIVES, EXCEPT THE POSITION OF ARCHIVIST OF THE UNITED STATES, WERE PLACED IN THE CLASSIFIED CIVIL SERVICE AS OF NOVEMBER 23, 1938. IT ALSO MADE ELIGIBLE FOR A CIVIL- SERVICE STATUS PERSONS WHO WERE ORIGINALLY APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. WHEN THESE PERSONS WERE CERTIFIED BY THE ARCHIVIST AND PASSED THE PRESCRIBED NONCOMPETITIVE EXAMINATIONS, IT WOULD SEEM THAT THEY LOST THEIR STATUS AS PRESIDENTIAL APPOINTEES AND BECAME IDENTIFIED AS CIVIL-SERVICE EMPLOYEES.

HOWEVER, THE LANGUAGE OF SECTION 2 (H) OF THE UNIFORM PROMOTION ACT, PUBLIC LAW 200, READS:

"THE PROVISIONS OF SUBSECTIONS (B) TO (F), BOTH INCLUSIVE, OF THIS SECTION SHALL NOT APPLY TO THE COMPENSATION OF PERSONS APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.'

STRICTLY SPEAKING, THE SEVERAL OFFICIALS OF THE NATIONAL ARCHIVES REFERRED TO ABOVE WERE ,PERSONS APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.' BUT, ON THE OTHER HAND, IT WOULD APPEAR THAT THE INTENT OF THIS PROVISION WAS TO PRECLUDE SALARY ADVANCES TO THOSE WHOSE APPOINTMENTS ARE PRESENTLY VESTED IN THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.

WE FELT THAT SINCE A CIVIL-SERVICE MATTER WAS INDIRECTLY INVOLVED, THE CIVIL SERVICE COMMISSION SHOULD BE CONTACTED FOR ITS INTERPRETATION. THE COMMISSION'S REPLY TO OUR INQUIRY IS ATTACHED HEREWITH FOR YOUR INFORMATION.

YOUR OPINION IS REQUESTED ON THE QUESTION OF WHETHER PERSONS MENTIONED ABOVE, WHO WERE ORIGINALLY "APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE," BUT WHO ACQUIRED A CIVIL-SERVICE STATUS IN ACCORDANCE WITH LAW, ARE ELIGIBLE TO RECEIVE ADMINISTRATIVE PROMOTIONS UNDER PUBLIC LAW 200.

THE LETTER TO YOU FROM THE UNITED STATES CIVIL SERVICE COMMISSION IS DATED SEPTEMBER 9, 1941, AND READS AS FOLLOWS:

WE HAVE YOUR LETTER OF AUGUST 20, 1941, RAISING THE QUESTION WHETHER PUBLIC LAW NO. 200, APPROVED AUGUST 1, 1941, ESTABLISHING A WITHIN GRADE SALARY ADVANCEMENT PLAN UNDER THE CLASSIFICATION ACT OF 1923, IS APPLICABLE TO CERTAIN OFFICIALS OR EMPLOYEES OF THE NATIONAL ARCHIVES WHO WERE ORIGINALLY APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE AND WHO SUBSEQUENTLY ACQUIRED A CIVIL SERVICE STATUS IN ACCORDANCE WITH THE PROVISIONS OF THE INDEPENDENT OFFICES APPROPRIATION ACT FOR 1939.

THIS QUESTION ARISES BECAUSE OF THE FACT THAT SECTION 2 (H) OF PUBLIC, NO. 200 EXEMPTS FROM THE OPERATION OF THE SALARY ADVANCEMENT PROVISIONS "THE COMPENSATION OF PERSONS APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.'

THE INTERPRETATION OF STATUTES AUTHORIZING THE EXPENDITURE OF FUNDS IS A FUNCTION OF THE GENERAL ACCOUNTING OFFICE RATHER THAN THE CIVIL SERVICE COMMISSION. SINCE A CIVIL-SERVICE QUESTION IS INDIRECTLY INVOLVED, WE FEEL THAT WE CAN OFFER YOU AN INFORMAL INTERPRETATION WITH THE UNDERSTANDING THAT IT HAS NO BINDING EFFECT UNLESS CONCURRED IN BY THE COMPTROLLER GENERAL. YOU MAY WISH TO USE THIS LETTER IN PRESENTING THE MATTER TO THE COMPTROLLER GENERAL FOR FINAL DECISION.

IT SHOULD BE POINTED OUT IN THE FIRST INSTANCE THAT EMPLOYEES WHO ARE SUBJECT TO SECTION 2 OF PUBLIC, NO. 200 MAY RECEIVE SALARY INCREASES WITHIN THE GRADES TO WHICH THEIR POSITIONS HAVE BEEN ALLOCATED ONLY IN ACCORDANCE WITH AND UPON COMPLIANCE WITH THE CONDITIONS SET FORTH THEREIN. PERSONS WHO ARE NOT SUBJECT TO HIS LAW UNDER REGULATIONS WHICH WE UNDERSTAND THE PRESIDENT WILL SOON PROMULGATE, MAY RECEIVE SALARY ADVANCEMENTS WITHOUT COMPLIANCE WITH THE REQUIREMENTS OF PUBLIC, NO. 200 BUT IN ACCORDANCE WITH ANY OTHER APPLICABLE STATUTE.

THE REASON FOR THE INSERTION OF SECTION 2 (H) IN THE LAW WAS THE BELIEF THAT UNDER NORMAL CIRCUMSTANCES, PRESIDENTIAL APPOINTEES CONFIRMED BY THE SENATE DID NOT HAVE A SUFFICIENTLY LONG TENURE OF OFFICE TO REAP THE FULL BENEFITS OF THE SALARY ADVANCEMENT PLAN. ORDINARILY, A PERIOD OF TEN YEARS WOULD BE INVOLVED IN ADVANCING FROM THE MINIMUM TO THE MAXIMUM RATE AND IT WAS FELT THAT THIS WAS LONGER THAN OFFICIALS OF THIS CLASS WOULD ORDINARILY SERVE.

OFFICIALS OR EMPLOYEES OF THE NATIONAL ARCHIVES WHO WERE ORIGINALLY APPOINTED UNDER SECTION 2 OF THE NATIONAL ARCHIVES ACT (48 STAT. 1122) BY PRESIDENTIAL APPOINTMENT AND CONFIRMATION BY THE SENATE, AND WHO LATER, UNDER THE INDEPENDENT OFFICES APPROPRIATION ACT FOR 1939 (52 STAT. 421) ACQUIRED A COMPETITIVE CIVIL-SERVICE STATUS, ARE NOW OCCUPYING POSITIONS WHICH, UNDER THE LATTER STATUTE ARE IN THE COMPETITIVE CIVIL SERVICE AND THE COMPENSATION OF WHICH MUST BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED. IF THE STRICT LETTER OF SECTION 2 (H) WERE FOLLOWED, SUCH PERSONS WOULD BE EXEMPTED FROM THE SALARY- ADVANCEMENT PLAN. IT IS CLEAR, HOWEVER, THAT SUCH EXEMPTION WOULD NOT BE IN ACCORDANCE WITH THE SPIRIT OR INTENT OF SECTION 2 (H), WHICH WAS TO EXEMPT PERSONS OF A PARTICULAR CLASS OCCUPYING POSITIONS OF UNCERTAIN TENURE. THE OFFICERS AND EMPLOYEES OF THE NATIONAL ARCHIVES INVOLVED IN THIS QUESTION ARE OCCUPYING POSITIONS, WHICH, SO FAR AS TENURE IS CONCERNED, ARE ON A PARITY WITH ANY OTHER POSITIONS COVERED BY THE SALARY ADVANCEMENT PLAN. IN THE OPINION OF THE COMMISSION, SECTION 2 (H) HAS APPLICABILITY ONLY TO THOSE PERSONS PRESENTLY OCCUPYING POSITIONS WHICH IN THE EVENT OF A VACANCY WOULD BE REQUIRED TO BE FILLED THROUGH PRESIDENTIAL APPOINTMENT AND CONFIRMATION BY THE SENATE. IT DOES NOT APPLY TO POSITIONS WHICH WERE ONCE OF THIS TYPE BUT WHICH ARE NOW IN THE COMPETITIVE CIVIL SERVICE AND WHOSE POSITIONS ARE COMPENSATED ACCORDING TO THE PAY SCALES OF THE CLASSIFICATION ACT.

THIS OFFICE CONCURS IN THE VIEWS EXPRESSED BY THE CIVIL SERVICE COMMISSION THAT THE PERSONNEL OF THE NATIONAL ARCHIVES WHOSE ORIGINAL APPOINTMENTS WERE MADE BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE PURSUANT TO SECTION 2 OF THE NATIONAL ARCHIVES ACT, 48 STAT. 1122, BUT WHO ARE NOW IN THE COMPETITIVE CLASSIFIED CIVIL SERVICE AND WHOSE SALARY RATES ARE REQUIRED TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, ARE ENTITLED TO THE BENEFITS OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 613.