B-23577, FEBRUARY 21, 1942, 21 COMP. GEN. 791

B-23577: Feb 21, 1942

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MAINTAINS ONLY SO LONG AS HE REMAINS IN THE POSITION IN WHICH THE ADVANCEMENT WAS GRANTED. IT IS WITHIN ADMINISTRATIVE DISCRETION UNDER SECTION 10 OF THE CLASSIFICATION ACT OF 1923 TO FIX HIS INITIAL SALARY IN THE NEW POSITION AT SUCH PRESCRIBED RATE OF THE GRADE AS WILL SAVE TO HIM THE BENEFIT OF A WITHIN-GRADE SALARY ADVANCEMENT TO WHICH HE PREVIOUSLY HAD BECOME ENTITLED. EMPLOYEES WHO WERE ENTITLED TO THE ADVANCEMENTS AS OF OCTOBER 1. WERE TRANSFERRED AT THE SAME OR REDUCED SALARIES TO OTHER POSITIONS. IT IS WITHIN ADMINISTRATIVE DISCRETION TO FIX AT THIS TIME THEIR INITIAL SALARIES. IN THE NEW POSITIONS AT SUCH PRESCRIBED RATE OF THEIR GRADES AS WILL SAVE TO THEM THE BENEFITS OF THE SALARY ADVANCEMENTS TO WHICH THEY PREVIOUSLY HAD BECOME ENTITLED.

B-23577, FEBRUARY 21, 1942, 21 COMP. GEN. 791

COMPENSATION - WITHIN-GRADE PERIODIC AND MERITORIOUS PROMOTIONS THE VESTED RIGHT OF AN EMPLOYEE TO RETAIN A PERIODIC OR MERITORIOUS WITHIN-GRADE SALARY ADVANCEMENT GRANTED PURSUANT TO THE ACT OF AUGUST 1, 1941, MAINTAINS ONLY SO LONG AS HE REMAINS IN THE POSITION IN WHICH THE ADVANCEMENT WAS GRANTED, BUT, UPON THE TRANSFER, PROMOTION, OR REDUCTION OF AN EMPLOYEE FROM ONE POSITION TO ANOTHER WITH DIFFERENT DUTIES AND RESPONSIBILITIES, WHETHER IN THE SAME OR DIFFERENT GRADE, IT IS WITHIN ADMINISTRATIVE DISCRETION UNDER SECTION 10 OF THE CLASSIFICATION ACT OF 1923 TO FIX HIS INITIAL SALARY IN THE NEW POSITION AT SUCH PRESCRIBED RATE OF THE GRADE AS WILL SAVE TO HIM THE BENEFIT OF A WITHIN-GRADE SALARY ADVANCEMENT TO WHICH HE PREVIOUSLY HAD BECOME ENTITLED. WHERE DURING THE PERIOD OF DELAY BETWEEN THE EFFECTIVE DATE--- OCTOBER 1, 1941--- OF THE FIRST PERIODIC WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941, AND THE ACTUAL PAYMENT OF SUCH ADVANCEMENTS, EMPLOYEES WHO WERE ENTITLED TO THE ADVANCEMENTS AS OF OCTOBER 1, 1941, WERE TRANSFERRED AT THE SAME OR REDUCED SALARIES TO OTHER POSITIONS, EITHER IN THE SAME OR DIFFERENT GRADE, WITH DIFFERENT DUTIES AND RESPONSIBILITIES, IT IS WITHIN ADMINISTRATIVE DISCRETION TO FIX AT THIS TIME THEIR INITIAL SALARIES, EFFECTIVE ON THE DATE OF THE TRANSFER, IN THE NEW POSITIONS AT SUCH PRESCRIBED RATE OF THEIR GRADES AS WILL SAVE TO THEM THE BENEFITS OF THE SALARY ADVANCEMENTS TO WHICH THEY PREVIOUSLY HAD BECOME ENTITLED. A PROSPECTIVELY EFFECTIVE MERITORIOUS--- AS DISTINGUISHED FROM PERIODIC-- - WITHIN-GRADE SALARY ADVANCEMENT OF ONE STEP MAY BE GRANTED AN EMPLOYEE UNDER THE ACT OF AUGUST 1, 1941, AND EXECUTIVE ORDER NO. 8882 ISSUED PURSUANT THERETO, EVEN THOUGH THE EMPLOYEE MAY NOT AS YET HAVE ATTAINED ELIGIBILITY FOR HIS FIRST PERIODIC WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT BY SERVING 18 OR 30 MONTHS WITHOUT AN EQUIVALENT INCREASE IN COMPENSATION. AN EMPLOYEE WHO WAS IN A LEAVE WITHOUT PAY STATUS FOR MORE THAN 30 DAYS, BUT LESS THAN A YEAR, IMMEDIATELY PRIOR TO THE EFFECTIVE DATE--- OCTOBER 1, 1941--- OF THE WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, BUT WHO HAD HAD 18 OR 30 MONTHS' CONTINUOUS SERVICE WITHOUT AN EQUIVALENT INCREASE IN COMPENSATION" PRIOR TO SUCH LEAVE WITHOUT PAY STATUS HAS HAD THE NECESSARY SERVICE, COMPUTED IN ACCORDANCE WITH SECTION 2 OF THE EXECUTIVE ORDER NO. 8882 ISSUED PURSUANT TO SAID STATUTE, TO ENTITLE HIM, IF OTHERWISE QUALIFIED, TO A WITHIN-GRADE SALARY ADVANCEMENT AS OF OCTOBER 1, 1941. 21 COMP. GEN. 285, DISTINGUISHED. IN COMPUTING THE SERVICE THAT MAY BE CREDITED UNDER SECTION 2 OF EXECUTIVE ORDER NO. 8882 TO THE 18 OR 30 MONTHS' SERVICE NECESSARY TO ENTITLE EMPLOYEES TO WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941, THERE MAY BE INCLUDED 30 DAYS OF ANY PERIODS AGGREGATING MORE THAN 30 DAYS, BUT LESS THAN A YEAR, THAT EMPLOYEES ARE IN A NONPAY STATUS, THAT IS, ONLY THE EXCESS OVER 30 DAYS NEED BE EXCLUDED. WHERE, EFFECTIVE AT THE CLOSE OF BUSINESS ON OCTOBER 1, 1941, FROM AND AFTER WHICH DATE THE FIRST WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941, BECAME EFFECTIVE, AN EMPLOYEE RESIGNED HIS PERMANENT POSITION UNDER THE CLASSIFICATION ACT IN ONE GOVERNMENT AGENCY IN ORDER TO ACCEPT, WITHOUT BREAK IN SERVICE, ANOTHER PERMANENT POSITION UNDER THE CLASSIFICATION ACT IN ANOTHER AGENCY, THE EMPLOYEE SHOULD BE CONSIDERED FOR A SALARY ADVANCEMENT UNDER THE ACT AS OF OCTOBER 1, 1941, BY THE AGENCY FROM WHICH THE EMPLOYEE RESIGNED. 21 COMP. GEN. 369, 376, RELATING TO AN EMPLOYEE WHO WAS COMPLETELY SEPARATED FROM THE SERVICE ON OCTOBER 1, 1941, BY THE AGENCY FROM WHICH THE EMPLOYEE RESIGNED. 21 COMP. GEN. 369, 376, RELATING TO AN EMPLOYEE WHO WAS COMPLETELY SEPARATED FROM THE SERVICE ON OCTOBER 1, 1941, DISTINGUISHED. PUBLIC HEALTH SERVICE FIELD PHYSICIANS WHO RENDER PART-TIME SERVICE AT IRREGULAR PERIODS AND WHOSE COMPENSATION IS PAID ON AN ANNUAL BASIS PURSUANT TO THE ACT OF MAY 14, 1937, MAY CONTINUE TO BE PAID IN ACCORDANCE WITH SAID ACT WITHOUT THE APPLICATION TO THEM OF THE UNIFORM WITHIN-GRADE SALARY-ADVANCEMENT PLAN PRESCRIBED BY THE ACT OF AUGUST 1, 1941.

DECISION

COMPTROLLER GENERAL WARREN TO THE FEDERAL SECURITY ADMINISTRATOR, FEBRUARY 21, 1942:

I HAVE YOUR LETTER OF FEBRUARY 2, 1942, AS FOLLOWS:

YOUR DECISION IS REQUESTED ON CERTAIN QUESTIONS THAT HAVE ARISEN IN THE ADMINISTRATION OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY PUBLIC LAW 200, 77TH CONGRESS, APPROVED AUGUST 1, 1941, AS FOLLOWS:

1. ALTHOUGH INITIAL PAYMENTS AUTHORIZED AND REQUIRED TO BE MADE AS OF OCTOBER 1, 1941, UNDER THE ABOVE-STATED LAW, WERE DELAYED UNTIL ADDITIONAL FUNDS COULD BE APPROPRIATED BY CONGRESS TO MEET THE GENERAL OPERATING EXPENSES OF THE GOVERNMENT AGENCIES AS EXPRESSED IN THE BUREAU OF THE BUDGET CIRCULAR NO. 381, DATED SEPTEMBER 27, 1941, IT BECAME NECESSARY IN THE MEANTIME TO EFFECT CHANGES IN STATUS AND TRANSFERS OF CERTAIN EMPLOYEES WITH THE RESULT THAT NUMEROUS TECHNICAL QUESTIONS DEVELOPED. ASSUMING THAT THESE EMPLOYEES WERE ENTITLED UNDER THE LAW TO THE INITIAL ADVANCES REFERRED TO, AND THAT THEY ARE NOW BEING ADVANCED RETROACTIVELY FROM OCTOBER 1, 1941, ALSO THAT THERE IS NO ADMINISTRATIVE DESIRE FOR A REDUCTION IN SALARY, SOME OF THESE QUESTIONS RE:

A. WILL AN EMPLOYEE WHO WAS TRANSFERRED ON OCTOBER 16, 1941, FROM A POSITION IN CAF-2 AT $1,440 TO ANOTHER POSITION IN THE SAME GRADE AND AT THE SAME SALARY, BE ENTITLED TO THE SALARY INCREASE ONLY FROM OCTOBER 1 TO OCTOBER 15, 1941, INCLUSIVE, OR WILL HE BE ENTITLED TO IT THEREAFTER AS WELL?

B. WILL AN EMPLOYEE WHO WAS TRANSFERRED ON OCTOBER 16, 1941, FROM CAF-2 AT $1,620 TO CAF-3 AT $1,620 BE ENTITLED TO THE INCREASE ONLY TO OCTOBER 15, 1941, INCLUSIVE, OR WILL HE BE ENTITLED TO IT THEREAFTER AS WELL?

C. WILL AN EMPLOYEE WHO WAS TRANSFERRED ON OCTOBER 16, 1941, FROM CAF-2 AT $1,440 TO CAF-1 AT $1,440 BE ENTITLED TO THE INCREASE ONLY TO OCTOBER 15, 1941, INCLUSIVE, OR WILL HE BE ENTITLED TO IT THEREAFTER AS WELL?

D. AN EMPLOYEE WAS TRANSFERRED ON OCTOBER 16, 1941, FROM CAF-2 AT $1,560 IN THE DEPARTMENTAL SERVICE TO CAF-1 AT $1,440 IN THE FIELD SERVICE. IS ENTITLED, UNDER THE LAW, TO A SALARY ADVANCEMENT TO $1,620 IN CAF-2, AND WHEN HIS PROMOTION IS RECEIVED IT IS DESIRED TO HAVE HIM RECEIVE AT THE SAME TIME $1,500. CAN THE LATTER RATE BE FIXED UNDER THE LAW CITED ABOVE, OR WAS IT NECESSARY TO HAVE SET THE SALARY ADMINISTRATIVELY AT $1,500 AT THE TIME OF TRANSFER IN ORDER TO SAFEGUARD THAT SALARY TO THE EMPLOYEE?

2. IT IS THE GENERAL POLICY OF THE SOCIAL SECURITY BOARD, WHEN TRANSFERRING ITS EMPLOYEES TO DUTY IN ITS FIELD SERVICE, TO TRANSFER THEM AT THE SAME SALARY IF TRANSFERRING AT THE SAME GRADE; AND, IF TRANSFERRING TO A LOWER GRADE, TO TRANSFER THEM AT THE MIDDLE SALARY RATE OF THAT GRADE. REQUESTS FOR TRANSFER TO OUR FIELD OFFICES ARE NUMEROUS AND MANY EMPLOYEES ARE WILLING TO GO AT A DECREASE IN SALARY AND/OR GRADE IN ORDER TO SECURE SUCH CHANGES OF STATION. IN YOUR DECISION OF OCTOBER 14, 1941 (B-20911), YOU STATE "* * * 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.' IS THIS TO BE INTERPRETED THAT WE MUST PAY AN EMPLOYEE, UPON TRANSFER TO THE FIELD, THE SAME SALARY HE WAS RECEIVING IN THE DEPARTMENTAL SERVICE IF TRANSFERRING AT THE SAME GRADE, AND THAT HE MUST BE PAID ALL EARNED ADMINISTRATIVE PROMOTIONS IF TRANSFERRED TO A LOWER GRADE? IT SHOULD BE NOTED THAT FOR BUDGETARY REASONS THERE WILL BE INSTANCES WHERE THE LATTER COURSE CANNOT BE FOLLOWED.

3.SECTION 7 (F) OF THE CLASSIFICATION ACT, AS AMENDED BY PUBLIC LAW 200, SUPRA, PROVIDES THAT "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 3 OF EXECUTIVE ORDER 8882, SEPTEMBER 3, 1941, IMPLEMENTING THIS AMENDMENT, STATES, "* * * AN ADDITIONAL WITHIN- GRADE COMPENSATION ADVANCEMENT AUTHORIZED BY THE SAID SECTION 7 (F) MAY BE GRANTED SIMULTANEOUSLY WITH, OR AT ANY TIME PRIOR TO, THE PERIODIC INCREASE TO WHICH THE EMPLOYEE MAY BE ELIGIBLE UNDER THE SAID SECTION 7 (B). * * *.'

YOUR DECISION IS REQUESTED AS TO WHETHER UNDER THE ABOVE-QUOTED AUTHORITIES A "MERITORIOUS" PROMOTION MAY BE GRANTED CURRENTLY TO AN EMPLOYEE PRIOR TO HIS ATTAINING ELIGIBILITY FOR A STATUTORY WITHIN GRADE SALARY ADVANCE UNDER SECTION 7 (B). FOR EXAMPLE, MAY AN EMPLOYEE WHO WAS LAST PROMOTED ON FEBRUARY 1, 1941, FROM P-1, $2,000 TO P-2, $2,600 BE GIVEN A MERITORIOUS WITHIN-GRADE COMPENSATION ADVANCE AT THIS TIME?

4. SECTION 7 OF THE CLASSIFICATION ACT OF 1923 AS AMENDED BY PUBLIC LAW 200, SUPRA, PROVIDES, UNDER SUBSECTIONS (B) AND (E), AS FOLLOWS:

"/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.'

EXECUTIVE ORDER NO. 8882, SEPTEMBER 3, 1941, SUPRA, PROVIDES, UNDER SECTION 2 (C) AND (D), AS FOLLOWS:

"IN COMPUTING THE PERIODS OF SERVICE REQUIRED BY THE SAID SECTION 7 FOR WITHIN-GRADE ADVANCEMENTS THERE SHALL BE CREDITED TO SUCH SERVICE:

"/C) TIME ELAPSING IN A NON-PAY STATUS (INCLUDING BREAK IN SERVICE) NOT EXCEEDING THIRTY DAYS WITHIN ANY ONE TIME PERIOD OF EIGHTEEN OR THIRTY MONTHS, AS THE CASE MAY BE.

"/D)SERVICE RENDERED PRIOR TO ABSENCE ON FURLOUGH OR LEAVE WITHOUT PAY WHERE SUCH ABSENCE IS IN EXCESS OF THIRTY DAYS BUT NOT EXCEEDING ONE YEAR.'

YOUR DECISION IS REQUESTED AS TO WHETHER, UNDER THE ABOVE-QUOTED SECTIONS, AN EMPLOYEE OF THE AGENCY WHO WAS ON LEAVE WITHOUT PAY FOR FOUR MONTHS IMMEDIATELY PRECEDING OCTOBER 1, 1941, AND WHO PRIOR TO THAT PERIOD OF LEAVE WITHOUT PAY HAD EIGHTEEN OR THIRTY MONTHS OR MORE OF CONTINUOUS SERVICE, AS THE CASE MAY BE, IS ELIGIBLE FOR A WITHIN GRADE COMPENSATION ADVANCE AS OF OCTOBER 1, 1941.

ALSO, YOUR DECISION IS REQUESTED AS TO WHETHER, WHEN LEAVE WITHOUT PAY DURING AN EIGHTEEN OR THIRTY-MONTH PERIOD IS IN EXCESS OF THIRTY DAYS BUT LESS THAN ONE YEAR, THE PERIOD REQUIRED FOR ELIGIBILITY IS AUTOMATICALLY EXTENDED FOR THE EQUIVALENT PERIOD OF LEAVE WITHOUT PAY OR ONLY FOR THE EXCESS OF LEAVE WITHOUT PAY OVER THIRTY DAYS. THE FOLLOWING CASE IS ONE IN POINT: EMPLOYEE RECEIVED LAST PROMOTION MAY 1, 1940; EIGHTEEN MONTHS OF SERVICE COMPLETED NOVEMBER 1, 1941; ELIGIBLE FOR PROMOTION ON JANUARY 1, 1942, EXCEPT THAT SIXTY-FIVE DAYS OF LEAVE WITHOUT PAY WERE TAKEN DURING EIGHTEEN-MONTH PERIOD. EMPLOYEE IS ELIGIBLE FOR PROMOTION ON JANUARY 1, 1942, IF ALLOWED CREDIT FOR THIRTY DAYS. HOWEVER, IF ELIGIBILITY PERIOD IS EXTENDED FOR FULL AMOUNT OF LEAVE WITHOUT PAY TAKEN, IT WILL NOT BE COMPLETED UNTIL JANUARY 5, 1942, THUS MAKING APRIL 1, 1942, THE EFFECTIVE DATE OF THE NEXT PROMOTION.

5. IN YOUR DECISION, B-20925, OF OCTOBER 27, 1941 (21 COMP. GEN. 369), YOU STATE UNDER " SEVENTH QUESTION.' AS FOLLOWS: "IF THE EMPLOYEE WAS SEPARATED FROM A PERMANENT POSITION ON OCTOBER 1, 1941, FROM AND AFTER WHICH DATE THE FIRST PERIODIC INCREASE OF COMPENSATION IS PAYABLE, THE EMPLOYEE SHOULD NOT BE CONSIDERED FOR PROMOTION AS OF THAT DATE. HOWEVER, IF THE EMPLOYEE WAS NOT SEPARATED FROM HIS PERMANENT POSITION UNTIL AFTER OCTOBER 1, 1941, HE SHOULD BE CONSIDERED FOR PROMOTION FOR THE PERIOD FROM OCTOBER 1, 1941, TO THE DATE HE IS SEPARATED FROM SUCH PERMANENT POSITION. * * *"

UNDER THE ABOVE INTERPRETATION, SHOULD AN EMPLOYEE BE CONSIDERED FOR PROMOTION AS OF OCTOBER 1, 1941, BY THIS AGENCY IF THE EMPLOYEE WAS SEPARATED BY RESIGNATION AT THE CLOSE OF BUSINESS OCTOBER 1 TO GO TO ANOTHER AGENCY WITHOUT BREAK IN SERVICE?

6. IN THE UNITED STATES PUBLIC HEALTH SERVICE, CERTAIN PHYSICIANS WORK PART TIME AND ARE PAID ANNUALLY LESS THAN THE BASIC SALARIES FOR THEIR RESPECTIVE GRADES. THEIR APPOINTMENT IS PROVIDED FOR UNDER SCHEDULE A, SECTION XIX, PARAGRAPH 6, CIVIL SERVICE RULES, AS FOLLOWS: "ANY LOCAL PHYSICIAN OR DENTIST EMPLOYED ON A FEE BASIS OR A PART TIME BASIS WHEN, IN THE OPINION OF THE COMMISSION, THE ESTABLISHMENT OF REGISTERS IS IMPRACTICABLE.' NO MENTION IS MADE IN THE APPOINTMENT OF THE AMOUNT OF TIME TO BE SERVED. THERE ARE, FOR EXAMPLE, A NUMBER OF ACTING ASSISTANT SURGEONS, APPOINTED TO CARE FOR SPECIFIC GROUPS OF BENEFICIARIES, WHOSE ANNUAL COMPENSATION IS BASED ON THE NUMBER OF PERSONS TO BE SERVED. THERE IS ANOTHER GROUP OF ACTING ASSISTANT SURGEONS, ATTACHED TO RELIEF STATIONS OR TO IMMIGRATION STATIONS,"SUBJECT TO CALL" AT ALL TIMES AND WHOSE ACTUAL SERVICES RENDERED CANNOT BE PROPORTIONED WITH ANY FULL-TIME EMPLOYEE'S TOUR OF DUTY. THESE PHYSICIANS HAVE THEIR OWN PRIVATE OFFICES AND CARRY ON THEIR PRIVATE PRACTICES, BUT WHEN THEY RECEIVE CALLS, WHETHER FROM THE OFFICER IN CHARGE OF A HOSPITAL OR FROM A CHIEF QUARANTINE OFFICER, TO MAKE EXAMINATIONS, THEY ARE REQUIRED, REGARDLESS OF THEIR PRIVATE PRACTICES, TO REPORT IMMEDIATELY AND TO RENDER SUCH SERVICE AS IS NECESSARY TO THE PUBLIC HEALTH SERVICE AT THE MOMENT. THE COMPENSATION OF THESE MEN IS DETERMINED ADMINISTRATIVELY UPON AN ESTIMATED PROPORTION OF TIME TO BE REQUIRED AND IS INCREASED OR DECREASED FROM TIME TO TIME IN ACCORDANCE WITH THE VARYING DEMANDS UPON THEIR TIME, THROUGHOUT A GIVEN PERIOD.

ARE THE ABOVE-MENTIONED PHYSICIANS CONSIDERED TO BE REGULAR EMPLOYEES OR ARE THEY THE EQUIVALENT OF CONTRACT EMPLOYEES? IF THE FORMER, ARE THEY ENTITLED TO INCREASES IN SALARY UNDER THE TERMS OF PUBLIC LAW 200, SUPRA? IF THEY ARE ELIGIBLE FOR THE INCREASE, WHAT IS THE AMOUNT OF ONE-STEP INCREASE, AND WOULD INCREASED COMPENSATION FOR INCREASED DEMANDS BE DISQUALIFYING FOR A MANDATORY SALARY ADVANCE?

SECTION 2 OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW NO. 200, 55 STAT. 613, PROVIDING A PLAN FOR MAKING WITHIN-GRADE SALARY ADVANCEMENTS AMENDS SECTION 7 OF THE ORIGINAL CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1490. THE PORTION OF SECTION 7 OF THE ORIGINAL STATUTE NOW CONSTITUTES SUBSECTION (A) OF THE SECTION AND THE PORTION APPEARING IN THE AMENDATORY ACT OF AUGUST 1, 1941, NOW COMPRISES SUBSECTIONS (B) TO (H) OF THE SECTION. SUBSECTION (A) APPEARING IN THE ORIGINAL STATUTE CONTAINS THE FOLLOWING SENTENCE WHICH HAS NOT BEEN SUPERSEDED OR RENDERED INOPERATIVE BY THE AMENDATORY STATUTE:

* * * NOTHING HEREIN CONTAINED SHALL BE CONSTRUED TO PREVENT THE PROMOTION OF AN EMPLOYEE FROM ONE CLASS TO A VACANT POSITION IN A HIGHER CLASS AT ANY TIME IN ACCORDANCE WITH CIVIL SERVICE RULES, AND WHEN SO PROMOTED THE EMPLOYEE SHALL RECEIVE COMPENSATION ACCORDING TO THE SCHEDULE ESTABLISHED FOR THE CLASS TO WHICH HE IS PROMOTED. ( ITALICS SUPPLIED.)

THE WORD "CLASS" AS USED IN THIS STATUTE HAS BEEN CONSTRUED AS SYNONYMOUS WITH THE WORD "GRADE.' 4 COMP. GEN. 333, 334. SEE, ALSO, SECTION 10 OF THE ORIGINAL STATUTE, 42 STAT. 1491, WHICH HAS NOT BEEN SUPERSEDED OR RENDERED INOPERATIVE BY THE ACT OF AUGUST 1, 1941--- SAID SECTION 10 OF THE BASIC STATUTE PROVIDING AS FOLLOWS:

THAT, SUBJECT TO SUCH RULES AND REGULATIONS AS THE PRESIDENT MAY FROM TIME TO TIME PRESCRIBE, AND REGARDLESS OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT IN WHICH THE POSITION IS LOCATED, AN EMPLOYEE MAY BE TRANSFERRED FROM A POSITION IN ONE GRADE TO A VACANT POSITION WITHIN THE SAME GRADE AT THE SAME RATE OF COMPENSATION, OR PROMOTED TO A VACANT POSITION IN A HIGHER GRADE AT A HIGHER RATE OF COMPENSATION, IN ACCORDANCE WITH CIVIL-SERVICE RULES, ANY PROVISION OF EXISTING STATUTES TO THE CONTRARY NOTWITHSTANDING: PROVIDED, THAT NOTHING HEREIN SHALL BE CONSTRUED TO AUTHORIZE OR PERMIT THE TRANSFER OF AN EMPLOYEE OF THE UNITED STATES TO A POSITION UNDER THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, OR AN EMPLOYEE OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA TO A POSITION UNDER THE UNITED STATES. IT MAY BE STATED, THEREFORE, THAT THE TERMS AND CONDITIONS OF THE AMENDATORY ACT OF AUGUST 1, 1941, AS WELL AS THE RULES STATED IN THE PRESIDENT'S REGULATIONS, EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, AND IN THE DECISIONS HERETOFORE RENDERED BY THIS OFFICE CONSTRUING SAID STATUTE, RELATE ONLY TO ADVANCEMENTS IN SALARY WITHIN THE GRADE OR POSITION HELD BY AN EMPLOYEE AT THE TIME HE IS ELIGIBLE FOR SUCH ADVANCEMENT IN SALARY, EITHER PERIODIC OR MERITORIOUS, AND DO NOT CONTROL THE FIXING OF INITIAL SALARY RATES UPON THE TRANSFER, PROMOTION, OR REDUCTION OF EMPLOYEES FROM ONE GRADE OR POSITION TO ANOTHER, OR MODIFY OR SUPERSEDE RULES STATED IN OTHER DECISIONS OF THIS OFFICE FOR FIXING INITIAL SALARY RATES UPON TRANSFER, PROMOTION, OR REDUCTION BETWEEN GRADES OR POSITIONS. SEE THE LAST SENTENCE OF THE DECISION OF OCTOBER 13, 1941, 21 COMP. GEN. 326, 329. AS THE WITHIN-GRADE SALARY ADVANCEMENTS, EITHER PERIODIC OR MERITORIOUS, ARE REQUIRED TO BE BASED ON THE ,PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT" (QUOTING FROM SECTION 7 (B) OF THE CLASSIFICATION ACT, ADDED BY THE ACT OF AUGUST 1, 1941), OCCUPIED AT THE TIME THE EMPLOYEE BECOMES ELIGIBLE FOR SUCH ADVANCEMENT IN SALARY; AND AS ONE OF THE CONDITIONS OF ELIGIBILITY THERETO IS AN EFFICIENCY RATING BASED UPON THE PERFORMANCE OF THE DUTIES OF SUCH POSITION, THERE IS NOTHING APPARENT IN THE LAW, AS AMENDED, OR THE REGULATIONS THEREUNDER, VESTING IN AN EMPLOYEE THE ABSOLUTE RIGHT TO RETAIN A PERIODIC OR MERITORIOUS WITHIN- GRADE SALARY ADVANCEMENT ACQUIRED IN ONE PERMANENT POSITION AFTER HE IS TRANSFERRED, PROMOTED, OR REDUCED TO ANOTHER PERMANENT POSITION WITH SEPARATE AND DISTINCT DUTIES AND RESPONSIBILITIES, WHETHER IN THE SAME OR A DIFFERENT GRADE. THE VESTED RIGHT OF AN EMPLOYEE TO RETAIN THE WITHIN GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, AND THE REGULATIONS PURSUANT THERETO, MAINTAINS ONLY SO LONG AS THE EMPLOYEE REMAINS IN THE SAME POSITION IN WHICH THE ADVANCEMENT IS PROPERLY GRANTED.

IN DECISION OF AUGUST 6, 1941, 21 COMP. GEN. 113, 114, IT WAS STATED:

THIS OFFICE, IN A LONG LINE OF DECISIONS, HAS HELD THAT THE TRANSFER, REAPPOINTMENT, OR REINSTATEMENT OF AN EMPLOYEE FROM A CLASSIFIED OR UNCLASSIFIED POSITION TO A CLASSIFIED POSITION DOES NOT CONSTITUTE A "NEW" APPOINTMENT WITHIN THE MEANING OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923, APPROVED MARCH 4, 1923, 42 STAT. 1490, PROVIDING AS FOLLOWS: "ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.' SEE 9 COMP. GEN. 71; ID. 80; ID. 313; 13 ID. 22; ID. 86; ID. 222; 15 ID. 102; ID. 797; 16 ID. 598; ID. 994; 17 ID. 460; ID. 563; ID. 1061; 19 ID. 20; ID. 763; 20 ID. 17; ID. 318. * * *

UNDER THE RULES STATED IN THOSE DECISIONS, AN EMPLOYEE MAY BE PAID INITIALLY IN A GRADE OR POSITION TO WHICH TRANSFERRED, PROMOTED, OR REDUCED WITHOUT LOSS OF THE SALARY RATE, INCLUDING ANY PERIODIC OR MERITORIOUS WITHIN-GRADE SALARY ADVANCEMENT, PAID THE EMPLOYEE IN HIS OLD POSITION, OR WITH AS LITTLE LOSS OF SALARY AS IS NECESSARY TO PAY A SALARY RATE PRESCRIBED FOR THE GRADE TO WHICH THE EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED. IN OTHER WORDS, UNDER SECTION 10 OF THE ORIGINAL CLASSIFICATION ACT, SUPRA, IT IS PROPER AND WITHIN ADMINISTRATIVE DISCRETION TO SAVE AN EMPLOYEE'S PERIODIC OR MERITORIOUS WITHIN-GRADE SALARY ADVANCEMENT ACQUIRED IN ONE GRADE OR POSITION AFTER TRANSFER, PROMOTION, OR REDUCTION TO ANOTHER GRADE OR POSITION.

HOWEVER, WHEN AN EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED FROM ONE POSITION TO ANOTHER SEPARATE AND DISTINCT POSITION WITH DIFFERENT DUTIES AND RESPONSIBILITIES, WHETHER IN THE SAME OR A DIFFERENT GRADE, IT IS WITHIN ADMINISTRATIVE DISCRETION--- AVAILABILITY OF FUNDS TO BE CONSIDERED, OF COURSE--- TO PAY INITIALLY ANY SALARY RATE PRESCRIBED BY THE CLASSIFICATION ACT FOR THE GRADE TO WHICH THE EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED, WITHOUT REGARD TO THE RATE PAID IN THE POSITION OCCUPIED PRIOR TO THE TRANSFER, PROMOTION, OR REDUCTION. THAT IS TO SAY, SECTION 10 OF THE ORIGINAL CLASSIFICATION ACT, ABOVE QUOTED--- WHICH, AS PREVIOUSLY STATED, HAS NOT BEEN AFFECTED IN ANY MANNER BY THE AMENDATORY ACT OF AUGUST 1, 1941--- VESTS A DISCRETION IN THE ADMINISTRATIVE OFFICE BUT DOES NOT REQUIRE ADMINISTRATIVE ACTION TO SAVE AN EMPLOYEE'S PERIODIC OR MERITORIOUS WITHIN-GRADE SALARY ADVANCEMENTS PAID TO HIM PRIOR TO HIS TRANSFER, PROMOTION, OR REDUCTION FROM ONE POSITION TO ANOTHER, WHETHER IN THE SAME OR DIFFERENT GRADE.

REFERRING TO SUCH QUESTIONS A, B, C, AND D OF QUESTION NUMBERED 1, NONE OF THE EMPLOYEES WOULD BE ENTITLED, AS A MATTER OF RIGHT, TO THE PERIODIC INCREASE IN COMPENSATION AFTER DATE OF TRANSFER FROM ONE POSITION TO ANOTHER, BUT, IN VIEW OF YOUR STATEMENT "THAT THERE IS NO ADMINISTRATIVE DESIRE FOR A REDUCTION IN SALARY" (EXCEPT APPARENTLY AS TO QUESTION D), AND AS THE ACTUAL PAYMENTS OF THE PERIODIC INCREASES EFFECTIVE OCTOBER 1, 1941, HAVE BEEN DELAYED, DURING WHICH PERIOD OF DELAY YOU STATE "IT BECAME NECESSARY TO EFFECT CHANGES IN STATUS AND TRANSFERS OF CERTAIN LOYEES," IN RESPECT OF WHICH ACTION THERE WERE NO GUIDING RULES FOR PAYING INITIAL SALARY RATES WITH RELATION TO THE APPLICATION OF THE PROVISIONS OF THE AMENDATORY ACT, IT IS WITHIN ADMINISTRATIVE DISCRETION TO GRANT THE EMPLOYEES IN EACH CASE THE WITHIN-GRADE SALARY ADVANCEMENT EFFECTIVE ON THE DATE OF THE TRANSFER, IT BEING UNDERSTOOD WITH REGARD TO QUESTION D THAT THE SALARY RATE INCLUDING THE PERIODIC INCREASE AFTER DATE OF TRANSFER WILL BE $1,500 PER ANNUM.

REGARDING QUESTION NUMBERED 2, THE DISCUSSION HEREIN, PRECEDING ANSWER TO QUESTION NUMBERED 1, APPEARS TO CONSTITUTE A COMPLETE ANSWER TO THIS QUESTION.

UNDER THE PROVISIONS OF SECTION 7 (F) OF THE CLASSIFICATION ACT (ADDED BY THE ACT OF AUGUST 1, 1941), AND SECTION 3 OF EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, ONE ADDITIONAL MERITORIOUS PROMOTION OR WITHIN- GRADE SALARY ADVANCEMENT OF ONE STEP IN A GRADE MAY BE MADE AT ANY TIME DURING EACH PROMOTABLE PERIOD OF 18 OR 30 MONTHS, AS THE CASE MAY BE, REGARDLESS OF WHETHER THE EFFECTIVE DATE IS AT THE BEGINNING OF A QUARTER OR PRIOR TO THE BEGINNING OF THE QUARTER WHEN THE EMPLOYEE ATTAINS ELIGIBILITY FOR HIS FIRST PERIODIC INCREASE. ACCORDINGLY, QUESTION NUMBERED 3 IS ANSWERED IN THE AFFIRMATIVE. IN THE EXAMPLE STATED, THE EMPLOYEE, IF OTHERWISE ENTITLED THERETO, MAY BE GRANTED A MERITORIOUS PROMOTION TO $2,700 PER ANNUM AT THIS TIME, PROSPECTIVELY EFFECTIVE.

REFERRING TO QUESTION NUMBERED 4, IN DECISION OF OCTOBER 2, 1941, 21 COMP. GEN. 285, IT WAS HELD AS FOLLOWS (QUOTING FROM THE FIRST PARAGRAPH OF THE SYLLABUS):

ELIGIBILITY FOR PROMOTION AS OF OCTOBER 1, 1941, WHEN THE FIRST WITHIN- GRADE COMPENSATION INCREASES BECOME EFFECTIVE UNDER THE ACT OF AUGUST 1, 1941, IS FOR DETERMINATION ON THE BASIS OF SERVICE RENDERED DURING THE LAST PRECEDING 18 OR 30 MONTHS, AS THE CASE MAY BE, AND THE AMOUNT OF THE INCREASE IS TO BE DETERMINED BY THE RATES APPLICABLE TO THE PARTICULAR GRADE IN WHICH THE EMPLOYEE IS SERVING AT THE TIME HE BECOMES ELIGIBLE FOR THE INCREASE.

THAT RULE WAS STATED WITH RELATION TO AN EMPLOYEE WHO HAD NOT BEEN IN A NONPAY STATUS FOR A PERIOD EXCEEDING 30 DAYS DURING THE 18 OR 30 MONTHS IMMEDIATELY PRECEDING OCTOBER 1, 1941. THERE IS NOTHING IN THE TERMS OF SECTION 7 (E) OF THE CLASSIFICATION ACT, ADDED BY SECTION 2 OF THE ACT OF AUGUST 1, 1941, TO PRECLUDE THE COUNTING OF A LONGER PERIOD IMMEDIATELY PRIOR TO OCTOBER 1, 1941, WHERE THE EMPLOYEE HAD BEEN IN A NONPAY STATUS FOR MORE THAN 30 DAYS AND LESS THAN ONE YEAR PRIOR TO OCTOBER 1, 1941. THAT IS TO SAY, THE RULES STATED IN SECTION 2 OF THE PRESIDENT'S REGULATIONS FOR COMPUTING LENGTH OF SERVICE MAY BE APPLIED TO ANY NECESSARY PERIOD IMMEDIATELY PRIOR TO OCTOBER 1, 1941, IN THE SAME MANNER AS THEY ARE APPLICABLE TO ANY OTHER CORRESPONDING PERIOD IMMEDIATELY PRIOR TO THE BEGINNING OF ANY SUBSEQUENT QUARTER.

ACCORDINGLY, AS TO THE FIRST SUBQUESTION UNDER THIS QUESTION NUMBERED 4, THE EMPLOYEE WHO WAS ON LEAVE WITHOUT PAY FOR FOUR MONTHS IMMEDIATELY PRECEDING OCTOBER 1, 1941, BUT WHO HAD HAD 18 OR 30 MONTHS OR MORE OF CONTINUOUS SERVICE, INCLUDING TIME PRIOR TO SUCH PERIOD IN A NONPAY STATUS, WITHOUT HAVING RECEIVED AN EQUIVALENT INCREASE IN COMPENSATION, WAS ELIGIBLE FOR A WITHIN-GRADE SALARY ADVANCEMENT AS OF OCTOBER 1, 1941, IF OTHERWISE QUALIFIED. REGARDING THE SECOND SUBQUESTION UNDER THE QUESTION NUMBERED 4, A PERIOD IN A NONPAY STATUS NOT EXCEEDING 30 DAYS MAY BE INCLUDED IN COUNTING LONGEVITY FOR PURPOSES OF COMPUTING THE PROMOTABLE PERIOD AND ONLY THE EXCESS OVER 30 DAYS IN A NONPAY STATUS MAY BE EXCLUDED. SEE THE LAST PARAGRAPH OF DECISION OF OCTOBER 11, 1941, 21 COMP. GEN. 313, 316, WHEREIN IT WAS STATED AS FOLLOWS:

UNDER THE TERMS OF SECTION 2 (C) OF THE REGULATIONS, THE AGGREGATE OF TIME ELAPSING IN A NONPAY STATUS, WHETHER IN ONE OR MORE PERIODS, IN THE 18 OR 30 MONTHS' PERIOD IMMEDIATELY PRECEDING THE BEGINNING OF A QUARTER THAT MAY BE COUNTED, SHALL NOT EXCEED 30 DAYS. ANY PERIOD IN A NONPAY STATUS IN EXCESS OF 30 DAYS IN THE AGGREGATE MAY NOT BE COUNTED IN COMPUTING THE 18 OR 30 MONTHS' PERIOD. * * *

IT WOULD SEEM UNREASONABLE TO CONCLUDE THAT AN EMPLOYEE WHO HAD BEEN IN A NONPAY STATUS EXACTLY 30 DAYS COULD COUNT SUCH PERIOD IN COMPUTING HIS PROMOTABLE PERIOD, WHEREAS AN EMPLOYEE WHO HAD BEEN ABSENT IN A NONPAY STATUS FOR 31 DAYS COULD NOT COUNT ANY OF SUCH PERIOD. ACCORDINGLY, THE EMPLOYEE IN THE EXAMPLE STATED UNDER THIS SUBQUESTION WAS ELIGIBLE FOR A WITHIN-GRADE SALARY ADVANCEMENT AS OF JANUARY 1, 1942, IF OTHERWISE QUALIFIED.

REGARDING QUESTION NUMBERED 5, THE RULE STATED IN THE CITED DECISION OF OCTOBER 27, 1941, 21 COMP. GEN. 369, WAS WITH REFERENCE TO EMPLOYEES WHO DID NOT CONTINUE IN THE SERVICE IN ANY POSITION SUBJECT TO THE CLASSIFICATION ACT (AS AMENDED) AFTER OCTOBER 1, 1941. IT WAS CONCLUDED THAT WHERE AN EMPLOYEE WAS FINALLY SEPARATED FROM THE SERVICE SIMULTANEOUSLY WITH THE EFFECTIVE DATE OF THE ACT, NO WITHIN-GRADE SALARY ADVANCEMENT SHOULD BE MADE. HOWEVER, AS ALL CONTINUOUS CIVILIAN SERVICE IS CREDITABLE IN COMPUTING THE 18- OR 30-MONTH PERIOD REGARDLESS OF THE DEPARTMENT OR AGENCY IN WHICH EMPLOYED (SEE SEC. 2 (A) OF THE REGULATIONS), AN EMPLOYEE WHO REMAINED IN THE SERVICE AFTER OCTOBER 1, 1941, IN A PERMANENT POSITION SUBJECT TO THE CLASSIFICATION ACT SHOULD BE CONSIDERED FOR A PROMOTION AS OF OCTOBER 1, 1941, BY THE FEDERAL SECURITY ADMINISTRATION, NOTWITHSTANDING THE EMPLOYEE RESIGNED AT THE CLOSE OF BUSINESS OCTOBER 1, 1941, TO GO TO ANOTHER AGENCY, WITHOUT BREAK IN SERVICE. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

WITH RESPECT TO QUESTION NUMBERED 6, IN DECISION OF OCTOBER 5, 1937, 17 COMP. GEN. 303, 305, RELATIVE TO PART-TIME PHYSICIANS IN THE PUBLIC HEALTH SERVICE, IT WAS STATED AS FOLLOWS:

THE DECISIONS OF THIS OFFICE WHERE THE RULES HAVE BEEN STATED FOR FIXING THE COMPENSATION RATES OF PART-TIME POSITIONS, HAVE HELD IN EFFECT (1) THE POSITIONS MUST BE CLASSIFIED IF THE CHARACTER OF THE DUTIES PERFORMED IS THE SAME OR SIMILAR TO THE DUTIES OF EMPLOYEES ON A FULL-TIME BASIS REQUIRED TO BE CLASSIFIED; (2) THE RATES OF COMPENSATION MUST BE FIXED ADMINISTRATIVELY ON AN ANNUAL BASIS HAVING SUBSTANTIALLY THE SAME RELATION TO THE RATES FIXED FOR FULL TIME IN THE SAME OR SIMILAR POSITIONS WHICH THE PART-TIME SERVICE REQUIRED TO BE PERFORMED BEARS TO FULL-TIME SERVICE; (3) THAT "SERVICE" OF PART TIME PROFESSIONAL AND SCIENTIFIC PERSONNEL AND THOSE SIMILARLY EMPLOYED MAY INCLUDE BOTH AVAILABILITY FOR DUTY AS WELL AS ACTUAL SERVICE; (4) THE LETTERS OF APPOINTMENT OR CONTRACTS OF EMPLOYMENT SHOULD SHOW THE BASIS OR METHOD USED IN DETERMINING THE PER ANNUM RATE OF COMPENSATION ON A PART-TIME BASIS; (5) THE PAY ROLL SHOULD REFLECT THE CLASSIFICATION GRADE, THE ANNUAL SALARY RATE, AND THE RATIO OR PERCENTAGE THAT THE PART-TIME COMPENSATION BEARS TO THE FULL-TIME COMPENSATION IN SIMILAR POSITIONS. 11 COMP. GEN. 105; ID. 211; ID. 217; ID. 260; ID. 362. AS TO PROFESSIONAL AND SCIENTIFIC PERSONNEL IT WAS STATED IN DECISION OF JANUARY 7, 1932, 11 COMP. GEN. 260, 262, AS FOLLOWS:

"IT IS UNDERSTOOD FROM THE STATEMENT MADE IN THE TWO LETTERS QUOTED THAT THE ANNUAL SALARY OF THESE TWO CONSULTANT OR PART-TIME PHYSICIANS HAS BEEN FIXED ON TWO PRIMARY ELEMENTS, TO WIT: (1) AVAILABILITY FOR DUTY AT ALL TIMES UPON THE CALL OF THE VETERANS' ADMINISTRATION, NECESSITATING THE PHYSICIANS SO TO ARRANGE THEIR PRIVATE PRACTICE AS TO MEET THE NEEDS OF THE GOVERNMENT; AND (2) THE MINIMUM TIME OF ACTUAL SERVICE ON GOVERNMENT WORK WITHOUT SPECIAL CALL.

"THE RIGHT OF AN EMPLOYEE OF THE GOVERNMENT TO COMPENSATION IS DEPENDENT UPON THE RENDERING OF SERVICE, 5 COMP. GEN. 566, AND, ORDINARILY, THERE IS NO AUTHORITY FOR THE PAYMENT OF A STIPULATED ANNUAL SALARY IN THE NATURE OF A RETAINER HAVING AN UNCERTAIN RELATION TO, AND POSSIBLY IN EXCESS OF, SERVICES ACTUALLY RENDERED. HOWEVER, IN VIEW OF THE PROFESSIONAL NATURE OF THE PART-TIME SERVICE RENDERED BY CONSULTING PHYSICIANS FOR THE VETERANS' ADMINISTRATION, INVOLVING, IN ADDITION TO ACTUAL ATTENDANCE AT GOVERNMENT INSTITUTIONS, RESEARCH AND OTHER SIMILAR WORK DURING TIME NOT ACTUALLY SPENT AT THE GOVERNMENT INSTITUTIONS, AS WELL AS THE NECESSITY OF ADJUSTMENT IN PRIVATE PRACTICE WITH LITTLE OR NO NOTICE IN ORDER TO BE AVAILABLE UPON THE CALL OF THE GOVERNMENT, IT IS BELIEVED THAT BOTH OF THE ELEMENTS ABOVE STATED REASONABLY MAY BE CLASSED AS "SERVICE" AND PROPERLY ARE FOR CONSIDERATION IN FIXING THE PART-TIME COMPENSATION ON AN ANNUAL BASIS HAVING PROPER RELATION TO THE TIME SERVED BY FULL-TIME EMPLOYEES IN SIMILAR POSITIONS, THE SALARIES FOR WHICH HAVE BEEN FIXED IN ACCORDANCE WITH THE PRINCIPLES OF CLASSIFICATION.' IN OTHER WORDS, THIS OFFICE HAS DEFINITELY RECOGNIZED THAT THE AVAILABILITY OF PROFESSIONAL AND SCIENTIFIC PERSONNEL ALSO ENGAGED IN PRIVATE PRACTICE OR COMMERCIAL PURSUITS FOR DUTY UPON CALL BY THE GOVERNMENT HAS A VALUE AND CONSTITUTES "SERVICE" WHICH MAY NOT IN ALL CASES BE MEASURED WITH MATHEMATICAL EXACTITUDE. THE EVALUATION OF SUCH PART-TIME SERVICE OF PROFESSIONAL AND SCIENTIFIC PERSONNEL AND OTHER EMPLOYEES WHOSE WORK IS OF A SIMILAR NATURE OR PERFORMED IN CONNECTION WITH THE WORK OF PROFESSIONAL AND SCIENTIFIC PERSONNEL IS OF NECESSITY AN ADMINISTRATIVE RESPONSIBILITY AND IT IS NOT THE PURPOSE OR INTENT OF THIS OFFICE IN MAKING REQUIREMENTS FOR AUDIT PURPOSES TO QUESTION THE ADMINISTRATIVE ACTION IN THIS REGARD, BUT SIMPLY TO HAVE A PRACTICAL BASIS ON WHICH IT MAY BE DETERMINED THAT NONE BUT LAWFUL EXPENDITURES ARE MADE.

THE ACT OF MAY 14, 1937, 50 STAT. 148, CONSIDERED IN THAT DECISION, CONTAINS A PROVISION AS FOLLOWS:

HEREAFTER FIELD EMPLOYEES OF THE PUBLIC HEALTH SERVICE, EXCEPT THOSE EMPLOYED ON A PER DIEM OR FEE BASIS, WHO RENDER PART-TIME DUTY AND ARE ALSO SUBJECT TO CALL AT ANY TIME FOR OTHER SERVICES, MAY BE PAID ANNUAL COMPENSATION FOR SUCH PART-TIME DUTY AND, IN ADDITION, SUCH FEES FOR SUCH OTHER SERVICES AS THE SECRETARY OF THE TREASURY MAY DETERMINE: PROVIDED, THAT THE TOTAL AMOUNT PAID TO ANY SUCH EMPLOYEE FOR ANY FISCAL YEAR SHALL IN NO CASE EXCEED THE AMOUNT OF THE MINIMUM ANNUAL SALARY RATE OF THE CLASSIFICATION GRADE OF THE EMPLOYEE.

THAT STATUTE IS PERMANENT LEGISLATION. THERE IS FOR NOTING PARTICULARLY THE LIMITATION FIXED IN THE PROVISO TO THE STATUTE ON PART TIME SALARY RATES THAT MAY BE PAID TO FIELD PERSONNEL OF THE PUBLIC HEALTH SERVICE WHO RENDER PART-TIME DUTY AND ARE SUBJECT TO CALL AT ANY TIME. WHILE THE STATUTE DEFINITELY RECOGNIZES THAT THE PART-TIME POSITIONS MENTIONED UNDER THIS QUESTION ( NO. 6), THE SALARY OF WHICH IS PAID ON A PER ANNUM BASIS, ARE WITHIN THE PURVIEW OF THE CLASSIFICATION ACT, AS HELD IN THE DECISION OF THIS OFFICE, SUPRA, THE AUTHORITY TO PAY TO THE SAME PART-TIME EMPLOYEES BOTH SALARY ON A TIME BASIS AND FEES, AND THE LIMITATION FIXED ON THE TOTAL AMOUNT OF COMPENSATION, INCLUDING BOTH SALARY AND FEES THAT MAY BE PAID DURING A YEAR, TO WIT,"SHALL IN NO CASE EXCEED THE AMOUNT OF THE MINIMUM ANNUAL SALARY RATE OF THE CLASSIFICATION GRADE OF THE EMPLOYEE," WOULD APPEAR TO BE INCONSISTENT WITH THE PLAN PRESCRIBED BY THE ACT OF AUGUST 1, 1941, FOR GRANTING WITHIN-GRADE SALARY ADVANCEMENTS ON THE BASIS OF LONGEVITY, EFFICIENCY RATINGS, ETC. SECTION 8 OF THE ACT OF AUGUST 1, 1941, PROVIDES THAT "INSOFAR AS THEY ARE INCONSISTENT OR IN CONFLICT WITH PRIOR LAWS, THE PROVISIONS OF THIS ACT SHALL CONTROL.' THUS, IT MAY SEEM, AT FIRST BLUSH, THAT THE ACT OF MAY 14, 1937, SUPRA, NO LONGER CONTROLS THE FIXING OF SALARY RATES OF PART-TIME FIELD PERSONNEL OF THE PUBLIC HEALTH SERVICE WHOSE POSITIONS ARE WITHIN THE PURVIEW OF THE CLASSIFICATION ACT. HOWEVER, SECTION 4 OF THE ACT OF NOVEMBER 26, 1940, 54 STAT. 1214, 1215, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

THE PRESIDENT IS AUTHORIZED, AFTER SUITABLE INVESTIGATION BY THE COMMISSION, WHICH SHALL INCLUDE CONSULTATION WITH REPRESENTATIVES OF THE HEADS OF EXECUTIVE DEPARTMENTS AND INDEPENDENT AGENCIES, IN OR UNDER THE JURISDICTION OF WHICH THE OFFICES OR POSITIONS HEREINAFTER DESIGNATED ARE LOCATED, AND UPON A FINDING THAT SUCH ACTION IS NECESSARY TO THE MORE EFFICIENT OPERATION OF THE GOVERNMENT, TO EXCLUDE, BY EXECUTIVE ORDER, FROM THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED AND EXTENDED UNDER THIS ACT---

* * * OFFICES OR POSITIONS FILLED BY PERSONS EMPLOYED LOCALLY ON A FEE, CONTRACT, OR PIECE-WORK BASIS WHO MAY LAWFULLY PERFORM THEIR DUTIES CONCURRENTLY WITH THEIR PRIVATE PROFESSION, BUSINESS, OR OTHER EMPLOYMENT AND WHOSE DUTIES REQUIRE ONLY A PORTION OF THEIR TIME, WHERE IT IS IMPRACTICABLE TO ASCERTAIN OR ANTICIPATE THE PROPORTION OF TIME DEVOTED TO THE SERVICE OF THE FEDERAL GOVERNMENT.

WHILE IT IS UNDERSTOOD THAT NO EXECUTIVE ORDER HAS AS YET BEEN ISSUED UNDER THAT AUTHORITY, THE STATUTE INDICATES A LEGISLATIVE RECOGNITION "THAT IT MAY NOT ALWAYS BE PRACTICABLE OR NECESSARY TO CLASSIFY PROFESSIONAL POSITIONS" (QUOTING FROM THE DECISION OF APRIL 10, 1940, 19 COMP. GEN. 849, 853). YOU ARE ADVISED THEREFORE THAT IN VIEW OF SAID STATUTE AND OF THE IRREGULAR PERIODS DURING WHICH THE PERSONNEL MENTIONED IN THIS QUESTION ARE EMPLOYED AND PAID FOR PART TIME PROFESSIONAL THERE IS JUSTIFIED THE CONCLUSION THAT THEIR SALARY RATES MAY CONTINUE TO BE PAID PURSUANT TO THE TERMS AND CONDITIONS OF THE ACT OF MAY 14, 1937, SUPRA, WITHOUT REGARD TO THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, AND ACCORDINGLY, THAT THE WITHIN-GRADE SALARY ADVANCEMENT PLAN PRESCRIBED BY THE LATER STATUTE HAS NO APPLICATION TO SUCH PART-TIME PERSONNEL. THE ANSWER TO THIS QUESTION IS TO BE DISTINGUISHED FROM THE RULE STATED IN DECISION OF JANUARY 7, 1942, B 22683, 21 COMP. GEN. 644, APPLICABLE TO PART-TIME PHYSICIANS OF THE DISTRICT OF COLUMBIA, FOR THE REASON THAT THERE HAS BEEN NO SPECIAL STATUTE ENACTED APPLICABLE TO PART-TIME PHYSICIANS OF THE DISTRICT OF COLUMBIA SIMILAR TO THAT ENACTED FOR CONTROLLING THE SALARY RATES OF PART-TIME EMPLOYEES IN THE FIELD SERVICE OF THE PUBLIC HEALTH SERVICE, THE PART-TIME POSITIONS OF THE DISTRICT OF COLUMBIA PHYSICIANS BEING PROPERLY WITHIN THE PURVIEW OF THE CLASSIFICATION ACT.