B-20911, OCTOBER 14, 1941, 21 COMP. GEN. 335

B-20911, OCTOBER 14, 1941, 21 COMP. GEN. 335

COMPENSATION - WITHIN-GRADE PROMOTIONS - EFFECTIVE DATE; APPROPRIATION AVAILABILITY; ETC. THE WORDS "SHALL BE ADVANCED IN COMPENSATION" APPEARING IN THE ACT OF AUGUST 1, 1941, PROVIDING FOR UNIFORM WITHIN-GRADE SALARY ADVANCEMENTS, ARE IMPERATIVE AND MANDATORY, AND, THEREFORE, IF AN EMPLOYEE MEETS THE TERMS AND CONDITIONS OF THE STATUTE HE IS ENTITLED AS A MATTER OF RIGHT TO THE PERIODIC ADVANCEMENT IN SALARY. THE EFFECTIVE DATE OF THE ACT OF AUGUST 1, 1941, PROVIDING FOR UNIFORM WITHIN-GRADE SALARY ADVANCEMENTS, IS FIXED THEREIN AS JULY 1, 1941, AND SINCE THE FIRST PERIODIC ADVANCEMENT IN SALARY IS AUTHORIZED AND REQUIRED TO BE MADE AS OF OCTOBER 1, 1941, TO ALL EMPLOYEES WHO QUALIFY ON AND AFTER OCTOBER 1, 1941, AND THE BEGINNING OF SUBSEQUENT QUARTERS THE ONLY LEGAL RATE OF SALARY PAYABLE TO EMPLOYEES WHO QUALIFY AS OF THOSE DATES IS THE ADVANCED SALARY REQUIRED BY THE ACT TO BE PAID. THE MANDATORY PROVISIONS OF THE ACT OF AUGUST 1, 1941, PROVIDING FOR UNIFORM WITHIN-GRADE SALARY ADVANCEMENTS, SUPERSEDE AND RENDER INOPERATIVE THAT PORTION OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923 PROHIBITING INCREASES IN COMPENSATION "UNLESS CONGRESS HAS APPROPRIATED MONEY FROM WHICH THE INCREASES MAY LAWFULLY BE PAID," AND, THEREFORE, EXISTING SALARY APPROPRIATIONS ARE AVAILABLE FOR PAYMENT OF THE SALARY ADVANCEMENTS FROM AND AFTER OCTOBER 1, 1941, OR FROM AND AFTER THE BEGINNING OF ANY LATER QUARTER OF THE PRESENT FISCAL YEAR, REGARDLESS OF THE FACT THAT A DEFICIENCY MAY BE INCURRED. WHILE IT IS PROPER THAT ACTUAL PAYMENT OF THE WITHIN-GRADE SALARY ADVANCEMENTS REQUIRED BY THE ACT OF AUGUST 1, 1941, BE POSTPONED PURSUANT TO THE REQUEST OF THE HOUSE APPROPRIATIONS COMMITTEE AND THE BUREAU OF THE BUDGET IN ITS CIRCULAR NO. 381, DATED SEPTEMBER 27, 1941, UNTIL THE APPROPRIATION OF ADDITIONAL FUNDS FOR THE PAYMENT OF THE SALARY INCREASES, SUCH INCREASES WILL BE RETROACTIVELY EFFECTIVE TO OCTOBER 1, 1941, OR TO THE BEGINNING OF A LATER QUARTER OF THE PRESENT FISCAL YEAR FOR THOSE EMPLOYEES WHO OTHERWISE QUALIFY UNDER THE STATUTE.

COMPTROLLER GENERAL WARREN TO THE LIBRARIAN OF CONGRESS, OCTOBER 14, 1941:

I HAVE YOUR LETTER OF OCTOBER 1, 1941, AS FOLLOWS:

THE OPINION OF THE COMPTROLLER GENERAL IS REQUESTED AS TO THE PROCEDURE OF THE LIBRARY UNDER THE FOLLOWING SET OF CIRCUMSTANCES:

PUBLIC LAW 200, 77TH CONGRESS, ST SESSION, APPROVED AUGUST 1, 1941, EFFECTIVE JULY 1, 1941, AMENDED SECTION 7 OF THE CLASSIFICATION ACT OF 1923. SECTION 7, SUBSECTION (B) OF THE ACT AS AMENDED REQUIRES THAT UNDER CERTAIN CONDITIONS---

"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 * * *.'

SECTION 7 OF THE AMENDATORY ACT STATES THAT:

"THERE ARE HEREBY AUTHORIZED TO BE APPROPRIATED SUCH SUMS AS MAY BE NECESSARY TO CARRY THE PROVISIONS OF THIS ACT INTO EFFECT.'

SECTION 8 OF THE AMENDATORY ACT REQUIRES THAT:

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

IT APPEARS FROM THE LANGUAGE OF THE AMENDATORY ACT THAT INCREASES IN GRADE ARE TO BE PAID TO EMPLOYEES, THE CHARACTER OF WHOSE SERVICES MEET THE PRESCRIBED CONDITIONS, EFFECTIVE OCTOBER 1, 1941. WHILE THE LANGUAGE OF THE AMENDATORY ACT MAKES THE PAYMENT OF THESE INCREASES APPEAR TO BE OBLIGATORY UPON THE HEADS OF THE AGENCIES, IT IS TO BE NOTED THAT SECTION 7 (A) OF THE CLASSIFICATION ACT AS AMENDED CONTAINS THE FOLLOWING PROVISION:

"* * * IN NO CASE SHALL THE COMPENSATION OF ANY EMPLOYEE BE INCREASED UNLESS CONGRESS HAS APPROPRIATED MONEY FROM WHICH THE INCREASE MAY LAWFULLY BE PAID, NOR SHALL THE RATE FOR ANY EMPLOYEE BE INCREASED BEYOND THE MAXIMUM RATE FOR THE GRADE TO WHICH HIS POSITION IS ALLOCATED * * *.'

IN ANY CASE THE LIBRARY OF CONGRESS IS UNABLE TO PAY SUCH INCREASES WITHOUT INCURRING THE ALMOST CERTAIN LIKELIHOOD OF A DEFICIENCY.

IN ORDER TO MEET THE EXPENSES OF THE OPERATION OF THE AMENDING ACT AMONG GOVERNMENT AGENCIES IN GENERAL, THE BUREAU OF THE BUDGET IS ASSEMBLING THE DATA NECESSARY FOR PRESENTING A COMBINED ESTIMATE FOR THE APPROPRIATION AUTHORIZED IN SECTION 7 OF THE ACT, AND ITS CIRCULAR NO. 381, SEPTEMBER 27, 1941, ADDRESSED "TO THE HEADS OF EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND AGENCIES" REQUESTS THE INFORMATION NECESSARY FOR THIS PURPOSE. (IT MAY BE NOTED, THAT ALTHOUGH THE ESTIMATES OF THE LIBRARY OF CONGRESS FOR THIS PURPOSE WILL BE SUBMITTED THROUGH THE BUREAU OF THE BUDGET, THE LIBRARY OF CONGRESS IS IN THE LEGISLATIVE ESTABLISHMENT, AND IS NOT INCLUDED AMONG "EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND AGENCIES.''

THE FINAL PARAGRAPH OF THIS CIRCULAR IS AS FOLLOWS:

"THE APPROPRIATIONS COMMITTEE RECOGNIZES THAT SOME AGENCIES ALREADY HAVE FUNDS WHICH MAY BE USED FOR SALARY ADVANCEMENT PURPOSES, BUT THAT OTHER AGENCIES CANNOT GIVE EFFECT TO THE SALARY ADVANCEMENT PLAN UNTIL ADDITIONAL FUNDS ARE PROVIDED. IN THE INTEREST OF AVOIDING DISPARITIES WHICH THE ACT SEEKS TO CORRECT, THE COMMITTEE THEREFORE EXPRESSES THE OPINION THAT NO AGENCY SHOULD MAKE WITHIN-GRADE SALARY ADVANCEMENTS UNTIL THE CONGRESS HAS TAKEN ACTION UPON THE APPROPRIATION ESTIMATES OF AGENCIES WHICH WILL REQUIRE ADDITIONAL FUNDS.'

THE QUESTION IS HEREBY RAISED: WHAT, IN THE LIGHT OF THE CIRCUMSTANCES HERE PRESENTED, SHOULD BE THE ACTION TAKEN BY THE LIBRARY OF CONGRESS WITH RESPECT TO INCREASES WITHIN GRADE EFFECTIVE OCTOBER 1, 1941, OR AT THE BEGINNING OF ANY OTHER QUARTER WHICH MAY OCCUR PRIOR TO A SPECIAL APPROPRIATION TO MEET SUCH INCREASES?

IN THE ABSENCE OF ANY OTHER PROVISION IN THE STATUTE OR IN ITS LEGISLATIVE HISTORY INDICATING ANY OTHER MEANING, THE WORDS "SHALL BE ADVANCED IN COMPENSATION" APPEARING IN SECTION 2 (B) OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 613, QUOTED IN YOUR LETTER, MUST BE CONSTRUED AS IMPERATIVE AND MANDATORY. SEE 19 COMP. GEN. 968. ACCORDINGLY, IF AN EMPLOYEE OTHERWISE MEETS THE TERMS AND CONDITIONS OF THE STATUTE HE IS ENTITLED AS A MATTER OF RIGHT TO THE PERIODIC ADVANCEMENT IN SALARY IN HIS GRADE.

IN ADDITION TO THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, QUOTED IN YOUR LETTER, ATTENTION IS DIRECTED TO SECTIONS 2 (E) AND 9 OF THE STATUTE, PROVIDING, RESPECTIVELY, AS FOLLOWS:

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.

THIS ACT SHALL TAKE EFFECT ON JULY 1, 1941.

AS THE EFFECTIVE DATE OF THE ACT IS SPECIFICALLY FIXED BY SECTION 9 AS JULY 1, 1941, AND AS A WITHIN-GRADE SALARY ADVANCEMENT MUST BE MADE "AT THE BEGINNING OF THE NEXT QUARTER IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF THIS AMENDMENT" BASED ON "SERVICE IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THIS AMENDMENT" (QUOTING FROM SECTION 2 (E) OF THE STATUTE, IT IS CLEAR THAT, ON THE BASIS OF THE EXISTING STATUTE, THE FIRST PERIODIC ADVANCEMENT IN SALARY IS AUTHORIZED AND REQUIRED TO BE MADE AS OF OCTOBER 1, 1941 (THE BEGINNING OF THE NEXT QUARTER AFTER JULY 1, 1941), TO ALL EMPLOYEES WHO THEN QUALIFY UNDER THE TERMS OF THE STATUTE. THAT IS TO SAY, IN RESPECT OF CURRENT FISCAL YEAR APPROPRIATIONS, ON AND AFTER OCTOBER 1, 1941, JANUARY 1, 1942, OR APRIL 1, 1942, THE ONLY LEGAL RATE OF SALARY PAYABLE UNDER THE EXISTING LAW TO EMPLOYEES WHO QUALIFY AS OF THOSE DATES IS THE ADVANCED SALARY REQUIRED BY THE STATUTE TO BE PAID. PURSUANT TO THE PROVISIONS OF SECTION 8 OF THE ACT, QUOTED IN YOUR LETTER, THE MANDATORY PROVISIONS OF THE STATUTE SUPERSEDE AND RENDER INOPERATIVE THAT PORTION OF SECTION 7 OF THE ORIGINAL CLASSIFICATION ACT, 42 STAT. 1490, PROHIBITING INCREASES IN COMPENSATION OF AN EMPLOYEE "UNLESS CONGRESS HAS APPROPRIATED MONEY FROM WHICH THE INCREASES MAY LAWFULLY BE PAID," SAID PORTION OF THE LATTER ACT HAVING RELATION TO INCREASES AUTHORIZED TO BE MADE PRIOR TO OCTOBER 1, 1941, WHEN ALL INCREASES WERE DISCRETIONARY WITH THE ADMINISTRATIVE OFFICE. ACCORDINGLY, THE EXISTING APPROPRIATIONS FOR SALARIES FOR THE LIBRARY OF CONGRESS ARE AVAILABLE FOR PAYMENT OF THE PERIODIC WITHIN-GRADE SALARY ADVANCEMENTS FROM AND AFTER OCTOBER 1, 1941, OR FROM AND AFTER THE BEGINNING OF ANY LATER QUARTER OF THE PRESENT FISCAL YEAR REGARDLESS OF THE FACT THAT A DEFICIENCY MAY BE INCURRED.

NEITHER THE BUREAU OF THE BUDGET CIRCULAR NO. 381, DATED SEPTEMBER 27, 1941, THE FINAL PARAGRAPH OF WHICH IS QUOTED IN YOUR LETTER, NOR THE OPINION OF THE APPROPRIATIONS COMMITTEE OF THE HOUSE OF REPRESENTATIVES THEREIN EXPRESSED, PURPORTS TO CONSTRUE THE ACT OF AUGUST 1, 1941, OTHERWISE THAN AS HEREIN STATED, BUT SIMPLY EXPRESSES THE VIEW THAT IN ORDER TO TREAT ALL EMPLOYEES ALIKE IN THE MATTER OF RECEIVING THE INITIAL BENEFITS OF THE WITHIN-GRADE SALARY ADVANCEMENT PLAN, THE ACTUAL PAYMENTS OF THE INCREASES IN COMPENSATION SHOULD BE DELAYED BY ALL AGENCIES UNTIL THOSE AGENCIES WHICH WOULD INCUR A DEFICIENCY HAVE BEEN PROVIDED WITH ADDITIONAL APPROPRIATED FUNDS FROM WHICH THE INCREASES MAY BE MADE. COMPARE 20 COMP. GEN. 318.

REFERRING TO THE CONCLUDING PARAGRAPH OF YOUR LETTER, IT IS PROPER, IN THE LIGHT OF YOUR STATEMENT THAT A DEFICIENCY WOULD BE INCURRED, FOR THE LIBRARY OF CONGRESS TO DELAY THE INITIAL PAYMENTS OF SUCH INCREASES IN COMPENSATION UNTIL ADDITIONAL FUNDS SHALL HAVE BEEN PROVIDED BY THE CONGRESS FOR SUCH PURPOSE--- AS SUGGESTED BY THE APPROPRIATIONS COMMITTEE AND THE BUREAU OF THE BUDGET--- BUT, UNLESS THE CONGRESS, IN PROVIDING ADDITIONAL FUNDS TO MEET THE SALARY ADVANCEMENTS PROVIDED BY THE ACT OF AUGUST 1, 1941, SHOULD OTHERWISE SPECIFICALLY PROVIDE, THE INCREASES IN COMPENSATION, ALTHOUGH NOT CURRENTLY PAID, WILL BE RETROACTIVELY EFFECTIVE TO OCTOBER 1, 1941, OR TO THE BEGINNING OF A LATER QUARTER OF THE PRESENT FISCAL YEAR FOR THOSE EMPLOYEES WHO OTHERWISE QUALIFY UNDER THE TERMS OF THE ACT.