B-33259, MARCH 29, 1943, 22 COMP. GEN. 923

B-33259, MARCH 29, 1943, 22 COMP. GEN. 923

COMPENSATION INCREASES - EMPLOYEES REQUIRED TO BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE AN EMPLOYEE OF THE WAR MANPOWER COMMISSION, RECEIVING A SALARY OF LESS THAN $4,500 PER ANNUM WHICH IS PAID FROM THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1943, CONTAINING A PROVISION THAT NO PART OF THE APPROPRIATION MADE THEREBY FOR THE COMMISSION SHALL BE USED TO PAY THE SALARY OF ANY PERSON AT THE RATE OF $4,500 PER ANNUM OR MORE UNLESS SUCH PERSON SHALL HAVE BEEN APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, IS NOT ENTITLED TO ANY STATUTORY INCREASE IN COMPENSATION, INCLUDING WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, WHICH WOULD CAUSE HIS SALARY TO EQUAL OR EXCEED THE RATE OF $4,500 PER ANNUM UNLESS SUCH EMPLOYEE BE APPOINTED IN THE MANNER REQUIRED BY SAID PROVISION--- AND HE WOULD HAVE NO VESTED RIGHT TO SUCH AN APPOINTMENT.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, WAR MANPOWER COMMISSION, MARCH 29, 1943:

I HAVE YOUR LETTER OF MARCH 19, 1943, AS FOLLOWS:

THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1943, PUBLIC LAW 763, PROVIDES, IN PART:

"THAT NO PART OF THIS APPROPRIATION SHALL BE AVAILABLE TO PAY THE SALARY OF ANY PERSON AT THE RATE OF $4500 PER ANNUM OR MORE UNLESS SUCH PERSON SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.'

SUBSECTION (B) THROUGH (F) OF SECTION 667, TITLE 5, U.S.C.A., (THE CLASSIFICATION ACT OF 1923, AS AMENDED), REQUIRES THAT EMPLOYEES SUBJECT THERETO BE ADVANCED TO THE NEXT HIGHEST RATE OF COMPENSATION WITHIN THE GRADE, AT SPECIFIED TIME INTERVALS AND UPON SPECIFIED CONDITIONS. SUBSECTION (H) OF SECTION 667 EXPRESSLY EXCLUDES PRESIDENTIAL APPOINTEES FROM THE OPERATION OF SUBSECTIONS (B) THROUGH (F). SUBSECTION (A) OF SECTION 667 CONTAINS GENERAL DISCRETIONARY AUTHORITY TO GRANT ADMINISTRATIVE INCREASES.

PRESUMABLY, ADMINISTRATIVE INCREASES IN THE COMPENSATION PAID EMPLOYEES OF THE WAR MANPOWER COMMISSION WHO HAVE BEEN APPOINTED BY THE PRESIDENT, BY AND WITH THE CONSENT OF THE SENATE--- THAT IS, EMPLOYEES WHOSE SALARIES ARE PAID OUT OF THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1943, AT RATES OF $4500 OR MORE--- WOULD BE GOVERNED BY THE PROVISIONS OF PARAGRAPH (A) OF SECTION 667 OF TITLE 5 OF THE CODE. ALSO ADMINISTRATIVE INCREASES TO WAR MANPOWER COMMISSION EMPLOYEES WHOSE SALARIES INCLUSIVE OF THE ADMINISTRATIVE INCREASES ARE PAID OUT OF THE SAME APPROPRIATION, BUT DO NOT EQUAL OR EXCEED $4500, WOULD BE GOVERNED BY THE PROVISIONS OF SUBSECTION (B) THROUGH (F) OF SECTION 667. ADMINISTRATIVE INCREASES TO EMPLOYEES WHOSE SALARIES EXCLUSIVE OF SUCH INCREASES ARE LESS THAN $4500 BUT WHOSE SALARIES INCLUSIVE OF SUCH AN INCREASE WOULD EQUAL OR EXCEED $4500 RAISE THE FOLLOWING QUESTIONS UPON WHICH YOUR ADVICE IS RESPECTFULLY REQUESTED.

(1) DOES AN EMPLOYEE OTHERWISE ENTITLED TO A MANDATORY INCREASE IN RATE OF COMPENSATION UNDER SUBSECTIONS (B) THROUGH (F) OF SECTION 667 OF TITLE 5 OF THE CODE HAVE ANY RIGHT TO SUCH AN INCREASE UNDER THOSE SUBSECTIONS, IF THIS NEW RATE OF COMPENSATION WOULD EQUAL OR EXCEED $4500? FOR EXAMPLE, AN EMPLOYEE IN GRADE CAF-11, RECEIVING A SALARY OF $4400, MAY MEET THE CONDITIONS ORDINARILY ENTITLING HIM TO AN AUTOMATIC ADMINISTRATIVE INCREASE IN SALARY TO $4600.

(2) ASSUMING AN AFFIRMATIVE ANSWER TO QUESTION 1, WHAT IS THE NATURE OF THE EMPLOYEE'S RIGHT IN VIEW OF THE RESTRICTION IN THE APPROPRIATION OUT OF WHICH THE EMPLOYEE IS PAID? FOR EXAMPLE, WOULD THE WAR MANPOWER COMMISSION AND THE PRESIDENT BE REQUIRED BY THE STATUTE TO RECOMMEND, NOMINATE AND (ASSUMING SENATE CONFIRMATION) APPOINT THE EMPLOYEE SO AS TO RENDER HIS INCREASED SALARY PAYABLE TO HIM OUT OF THE RESTRICTED APPROPRIATION, OR WOULD THE MATTER BE WITHIN THE DISCRETION OF THE CHAIRMAN OF THE WAR MANPOWER COMMISSION AND THE PRESIDENT IN LIKE MANNER AS OTHER SIMILAR RECOMMENDATIONS, NOMINATIONS AND APPOINTMENTS ARE WITHIN THEIR DISCRETION? ASSUMING THAT FOR SOME REASON HIS APPOINTMENT WITH SENATE CONFIRMATION CANNOT BE, OR IS NOT, SECURED, TO WHAT ADVANCE, IF ANY, IN HIS RATE OF COMPENSATION IS THE EMPLOYEE ENTITLED?

SUBSECTION (H) OF SECTION 7 OF THE CLASSIFICATION ACT AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 1, 1941, 55 STAT. 613, 614 (5 U.S.C. 667), PROVIDES:

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.

WHILE SUBSECTIONS (B) THROUGH (F) OF THE SAME SECTION OF THE STATUTE AUTHORIZE AND REQUIRE PERIODIC WITHIN-GRADE SALARY ADVANCEMENTS BASED UPON LONGEVITY, EFFICIENT RATING, AND SERVICE AND CONDUCT, THE PROVISION IN THE SECOND SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1943, PUBLIC LAW 763, 56 STAT. 998, QUOTED IN THE FIRST PARAGRAPH OF YOUR LETTER, CONSTITUTES AN ABSOLUTE PROHIBITION AGAINST THE USE OF THE APPROPRIATION INVOLVED FOR THE PAYMENT OF THE SALARY OF ANY PERSON AT THE RATE OF $4,500 PER ANNUM OR MORE, UNLESS AND UNTIL SUCH PERSON SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. THE PROHIBITION IS APPLICABLE WHETHER THE EMPLOYEE BE ALREADY IN THE SERVICE, OR BE INITIALLY APPOINTED. IT FOLLOWS, THEREFORE, THAT ANY STATUTORY INCREASE IN COMPENSATION OF AN EMPLOYEE ALREADY IN THE SERVICE--- WHOSE SALARY OTHERWISE IS PAYABLE FROM THE APPROPRIATION CONTAINING THE PROHIBITION--- WHICH WOULD CAUSE THE SALARY RATE OF THE EMPLOYEE TO EQUAL OR EXCEED $4,500 PER ANNUM WOULD BE PROHIBITED,"UNLESS SUCH PERSON SHALL HAVE BEEN APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE ATE.'

REFERRING TO THE ILLUSTRATION GIVEN, AS THE SALARY STEPS IN GRADE CAF-11 ARE $200, ANY INCREASE IN HIS COMPENSATION WOULD BE PRECLUDED BY THE INHIBITION IN THE APPROPRIATION ACT UNLESS HE BE APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE--- AND HE WOULD HAVE NO VESTED RIGHT TO SUCH AN APPOINTMENT.