[Protest of Navy Contract Award for MRI Services]

A-56786, SEPTEMBER 18, 1934, 14 COMP. GEN. 239

CLASSIFICATION - REALLOCATION OF POSITIONS SINCE JUNE 30, 1932 THE STATUTE PROHIBITING THE USE OF APPROPRIATED FUNDS FOR INCREASE IN COMPENSATION RESULTING FROM THE ALLOCATION OR REALLOCATION OF A POSITION IS APPLICABLE IF THE DUTIES ACTUALLY BEING PERFORMED JUNE 30, 1932, CONSTITUTED THE BASIS OF EITHER AN ORIGINAL ALLOCATION OF A REALLOCATION BY THE PERSONNEL CLASSIFICATION BOARD OR THE CIVIL SERVICE COMMISSION SUBSEQUENT TO JUNE 30, 1932. THE FACT THAT FAILURE TO SECURE PRESIDENTIAL APPROVAL FOR AN ADMINISTRATIVE PROMOTION FROM ONE GRADE TO ANOTHER WAS AN OVERSIGHT DOES NOT VALIDATE THE UNLAWFUL INCREASE IN COMPENSATION PROHIBITED BY STATUTE AS AN ADMINISTRATIVE PROMOTION, NOR DOES PRESIDENTIAL AUTHORIZATION FOR AN EMPLOYEE TO OCCUPY ONE POSITION VALIDATE AN ADMINISTRATIVE PROMOTION PREVIOUSLY MADE WITHOUT PRESIDENTIAL APPROVAL TO ANOTHER POSITION.

DECISION OF COMPTROLLER GENERAL MCCARL, SEPTEMBER 18, 1934:

REVIEW HAS BEEN REQUESTED OF THE ACTION TAKEN MAY 12, 1934, DISALLOWING CREDIT FOR $10.18 PAID ON VOUCHER NO. 29089 OF THE AUGUST 1 TO 15, 1933, ACCOUNTS OF J. L. SUMMERS, DISBURSING CLERK, TREASURY DEPARTMENT, TO ETHEL G. LIPPHARD, AN EMPLOYEE OF THE BUREAU OF INTERNAL REVENUE, CAF NO. 3, COMPENSATION AT $1,980 PER ANNUM, FOR THE PERIOD JULY 16 TO 31, 1933, IN EXCESS OF THE COMPENSATION AT THE RATE OF $1,680 PER ANNUM, THE SALARY RATE IN GRADE CAF NO. 3 WHICH THE EMPLOYEE WAS RECEIVING ON JUNE 30, 1932.

THE RECORD DISCLOSES THAT ON JUNE 30, 1932, THIS EMPLOYEE WAS IN GRADE CAF NO. 3, SECRETARY TO ATTORNEY, RECEIVING $1,680 PER ANNUM, THE SECOND SALARY RATE OF HER GRADE; THAT ON JULY 19, 1932, A JOB CLASSIFICATION SHEET FOR APPELLATE CLERK WAS SUBMITTED TO THE PERSONNEL CLASSIFICATION BOARD WHICH WAS ALLOCATED IN GRADE CAF NO. 5 WITH A MINIMUM SALARY RATE OF $2,000 PER ANNUM, AT WHICH RATE SHE WAS PAID UNTIL DECEMBER 16, 1932, WHEN SHE WAS REASSIGNED, PURSUANT TO PRESIDENTIAL AUTHORIZATION, TO AN ADDITIONAL POSITION IN GRADE CAF NO. 3 AND PAID THE MAXIMUM SALARY RATE OF THAT GRADE, $1,980 PER ANNUM, HER POSITION IN GRADE CAF NO. 5 HAVING BEEN TRANSFERRED TO THE DEPARTMENT OF JUSTICE; AND THAT SHE IS NOW RECEIVING THE RATE OF $1,980 PER ANNUM. IT IS UNDERSTOOD THAT THE ADDITIONAL POSITION IN GRADE CAF NO. 3 FILLED PURSUANT TO PRESIDENTIAL AUTHORIZATION IS NOT THE SAME, BUT SIMILAR TO THE ONE PREVIOUSLY OCCUPIED BY HER.

REGARDING THE ACTION OF THE PERSONNEL CLASSIFICATION BOARD IN JULY 1932, THE CIVIL SERVICE COMMISSION REPORTED UNDER DATE OF APRIL 16, 1934, AS FOLLOWS:

THE CLASSIFICATION SHEET SUBMITTED FOR THIS EMPLOYEE INDICATING HER REASSIGNMENT FROM A POSITION OF SECRETARY TO ATTORNEY, OFFICE OF THE GENERAL COUNSEL, GRADE CAF-3, TO THAT OF APPELLATE CLERK, WAS SUBMITTED UNDER DATE OF JULY 19, 1932, AND STATED THAT THIS EMPLOYEE HAD ENTERED UPON THE DUTIES DESCRIBED THEREON ABOUT JULY 1931. THIS NEW POSITION APPARENTLY WAS CREATED IN LIEU OF ONE FORMERLY OCCUPIED BY WILFORD H. PAYNE, GRADE P-2, AND WAS CERTIFIED IN GRADE CAF-5 UNDER DATE OF SEPTEMBER 27, 1932.

THE ADMINISTRATIVE OFFICE MAKES THE FOLLOWING STATEMENT REGARDING THE ADJUSTMENT:

IT HAD BEEN EXPECTED THAT CERTAIN WORK MIGHT, AT ANY TIME, BE TRANSFERRED TO THE DEPARTMENT OF JUSTICE. DURING THE INTERIM, HOWEVER, IT WAS NECESSARY TO KEEP THE WORK MOVING, ALTHOUGH NO DEFINITE JOB HAD BEEN ESTABLISHED. MRS. LIPPHARD, IN ADDITION TO PERFORMING THE DUTIES OF A CAF -3 STENOGRAPHER, WAS SPENDING PART OF HER TIME AWAY FROM HER REGULAR DUTIES, MERELY HELPING TO KEEP THE WORK CURRENT. DUE TO THE LONG DELAY IN MAKING THE EXPECTED TRANSFER OF THE WORK TO THE DEPARTMENT OF JUSTICE, IT WAS FINALLY DECIDED, ON JULY 19, 1932, TO CREATE A NEW POSITION AND ASSIGN SOMEONE TO THE JOB PERMANENTLY. MRS. LIPPHARD WAS SELECTED BECAUSE OF HER FAMILIARITY WITH THE DUTIES INVOLVED.

IT WILL, THEREFORE, BE SEEN THAT THE ACTION BY THE PERSONNEL CLASSIFICATION BOARD IN PLACING THIS POSITION IN CAF-5 WAS NOT A REALLOCATION BUT AN ORIGINAL ALLOCATION. THE EMPLOYEE WAS ASSIGNED TO THE WORK FROM AN ENTIRELY DIFFERENT POSITION IN CAF-3. IT APPEARS, NOW, THAT NO JUSTIFICATION WAS OBTAINED FOR THIS PLACE; THIS, I AM SURE, WAS DUE ENTIRELY TO AN OVERSIGHT, AS THERE WAS SO MUCH CONFUSION AND MISUNDERSTANDING REGARDING JUSTIFICATIONS AND IMPOUNDMENTS AT THAT TIME.

SOME FEW MONTHS LATER, HOWEVER, THE WORK WAS FINALLY TRANSFERRED TO THE DEPARTMENT OF JUSTICE, AND MRS. LIPPHARD WAS REASSIGNED TO AN ADDITIONAL CAF-3 POSITION, WHICH WAS APPROVED BY THE PRESIDENT NOVEMBER 30, 1932, JUSTIFICATION SHEET NO. 1976, COPY ATTACHED.

IN DECISION OF JULY 6, 1933, 13 COMP. GEN. 1, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

SECTION 3 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1934, DATED JUNE 16, 1933, 48 STAT. 304, REQUIRING THE REDUCTION IN COMPENSATION TO THE RATE RECEIVED JUNE 30, 1932, IS APPLICABLE TO ANY OFFICER OR EMPLOYEE WHOSE POSITION AS OF JUNE 30, 1932, HAS SINCE BEEN REALLOCATED UPWARD BY THE PERSONNEL CLASSIFICATION BOARD OR THE CIVIL SERVICE COMMISSION, EITHER UPON THE BASIS OF THE SAME CLASSIFICATION SHEET WHICH DETERMINED THE PRIOR GRADE, OR ON THE BASIS OF A NEW CLASSIFICATION SHEET REDESCRIBING THE DUTIES AND RESPONSIBILITIES OF THE OFFICER OR EMPLOYEE CURRENT AS OF JUNE 30, 1932. HOWEVER, THE STATUTE DOES NOT REQUIRE A REDUCTION IN THE GRADE IN WHICH THE POSITION HAS BEEN PROPERLY ALLOCATED.

IN OTHER WORDS, IF AN EMPLOYEE WAS ACTUALLY PERFORMING THE DUTIES OF THE POSITION ON JUNE 30, 1932, IT IS IMMATERIAL WHETHER THE ACTION OF THE PERSONNEL CLASSIFICATION BOARD OR THE CIVIL SERVICE COMMISSION SUBSEQUENT TO THAT DATE WAS AN ORIGINAL ALLOCATION OR A REALLOCATION OF THE POSITION.

THE ACTION IN JULY 1932 PROMOTING THIS EMPLOYEE FROM $1,680 PER ANNUM IN GRADE CAF NO. 3, TO $2,000 IN GRADE CAF NO. 5, WAS EITHER A REALLOCATION WITHIN THE MEANING OF SECTION 3 OF THE ACT OF JUNE 16, 1933, SUPRA, OR AN ADMINISTRATIVE PROMOTION WITHOUT THE APPROVAL OF THE PRESIDENT WITHIN THE MEANING OF SECTION 202 OF THE ECONOMY ACT AND SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515, EITHER ONE OF WHICH WAS ILLEGAL AND FORMED NO PROPER BASIS FOR THE INCREASE IN COMPENSATION. THE FACT THAT A FAILURE TO SECURE PRESIDENTIAL APPROVAL WAS AN OVERSIGHT DOES NOT VALIDATE THE UNLAWFUL INCREASE IN COMPENSATION, NOR DOES THE PRESIDENTIAL AUTHORIZATION DATED NOVEMBER 30, 1932, FOR THIS EMPLOYEE TO OCCUPY THE ADDITIONAL POSITION IN GRADE CAF NO. 3 VALIDATE THE INCREASE MADE TO GRADE CAF NO. 5 IN JULY 1932.

ACCORDINGLY, THERE IS NO ALTERNATIVE ON THE BASIS OF THE FACTS AND LAW BUT TO SUSTAIN THE AUDIT ACTION DISALLOWING CREDIT IN THIS CASE AND TO DIRECT SIMILAR ACTION FOR ALL PAYMENTS OF COMPENSATION SUBSEQUENT TO JULY 16, 1932, AT LEAST UNTIL JULY 1, 1934, IN EXCESS OF $1,680 PER ANNUM, THERE HAVING BEEN NO AUTHORITY TO PAY THE EMPLOYEE $1,980 PER ANNUM, THE MAXIMUM OF GRADE CAF NO. 3, EFFECTIVE DECEMBER 16, 1932, THE SALARY RATE OF $2,000 PER ANNUM PAID DURING THE PERIOD JULY 16 TO DECEMBER 15, 1932, HAVING BEEN UNLAWFUL. WHETHER THE EMPLOYEE MAY BE PAID AT THE RATE OF $1,980 PER ANNUM DURING THE CURRENT FISCAL YEAR WILL DEPEND ON THE AVAILABILITY OF SAVINGS ON AN ANNUAL BASIS IN PERSONNEL APPROPRIATIONS, THE CONDITION OF THE AVERAGE IN THE GRADE, AND THE EFFICIENCY OF THE EMPLOYEE.