B-33271, MARCH 29, 1943, 22 COMP. GEN. 925

B-33271: Mar 29, 1943

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SUBSEQUENTLY WAS REAPPOINTED TO A CLASSIFIED POSITION MAY. 1943: I HAVE YOUR LETTER OF MARCH 19. IT IS NOW PROPOSED THAT HE BE APPOINTED TO THE POST AT A SALARY RATE OF $9. THE PER DIEM ALLOWANCE IS NOT COMPENSATION. IT IS EQUIVALENT TO AN ANNUAL SALARY RATE OF $9. GARRISON WAS EMPLOYED AS A SPECIAL ASSISTANT TO THE ATTORNEY GENERAL AT NOT TO EXCEED $10. WE HAVE BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT MR. HIS SERVICES FOR THE FEDERAL GOVERNMENT HAVE BEEN ON A "WITHOUT COMPENSATION" BASIS. GARRISON'S APPOINTMENT AT THE MAXIMUM RATE OF GRADE P-8 IS AUTHORIZED. YOUR OPINION AS TO THE PROPRIETY OF THE PROPOSED APPOINTMENT IS RESPECTFULLY REQUESTED. OR TRANSFERS OF FEDERAL PERSONNEL EVEN THOUGH THE PRIOR EMPLOYMENT WAS NOT WITHIN THE PURVIEW OF THE CLASSIFICATION ACT.

B-33271, MARCH 29, 1943, 22 COMP. GEN. 925

COMPENSATION - INITIAL SALARY RATE - "WITHOUT COMPENSATION" SERVICE INTERVENING BETWEEN COMPENSATED SERVICE IN UNCLASSIFIED AND CLASSIFIED POSITIONS AN EMPLOYEE WHO SERVED IN AN UNCLASSIFIED POSITION, THEN SERVED IN A POSITION WITHOUT COMPENSATION, AND SUBSEQUENTLY WAS REAPPOINTED TO A CLASSIFIED POSITION MAY--- NOTWITHSTANDING THE INTERVENING PERIOD OF SERVICE WITHOUT COMPENSATION--- BE PAID INITIALLY AT ANY RATE IN THE SALARY RANGE OF THE GRADE TO WHICH REAPPOINTED, NOT EXCEEDING THE RATE PREVIOUSLY RECEIVED IN THE UNCLASSIFIED POSITION.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, NATIONAL WAR LABOR BOARD, MARCH 29, 1943:

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

THE NATIONAL WAR LABOR BOARD HAS RECENTLY CREATED THE POSITION OF EXECUTIVE DIRECTOR AND GENERAL COUNSEL. IT HAS BEEN ALLOCATED TO GRADE P- 8 BY THE CIVIL SERVICE COMMISSION.

MR. LLOYD K. GARRISON, AN ASSOCIATE MEMBER OF THE BOARD HAS BEEN PERFORMING THE DUTIES OF THIS POSITION SINCE JANUARY 1, 1943, AND IT IS NOW PROPOSED THAT HE BE APPOINTED TO THE POST AT A SALARY RATE OF $9,000 PER ANNUM, THE MAXIMUM SALARY IN GRADE P-8.

AS AN ASSOCIATE MEMBER, MR. GARRISON HAS BEEN SERVING THE BOARD WITHOUT COMPENSATION BUT HAS BEEN RECEIVING $25.00 PER DIEM IN LIEU OF SUBSISTENCE, WHETHER OR NOT IN TRAVEL STATUS, IN ACCORDANCE WITH THE FIRST SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1943, ( PUB. LAW 678--- 77TH CONGRESS). WHILE, TECHNICALLY, THE PER DIEM ALLOWANCE IS NOT COMPENSATION, IT IS EQUIVALENT TO AN ANNUAL SALARY RATE OF $9,000 UNDER THE CLASSIFICATION ACT OF 1923.

FROM AUGUST 7, 1930 TO MARCH 15, 1933, MR. GARRISON WAS EMPLOYED AS A SPECIAL ASSISTANT TO THE ATTORNEY GENERAL AT NOT TO EXCEED $10,000 PER ANNUM. WE HAVE BEEN ADVISED BY THE DEPARTMENT OF JUSTICE THAT MR. GARRISON ACTUALLY RECEIVED $833.33 PER MONTH ($10,000 PER ANNUM), DURING THE ENTIRE PERIOD OF HIS EMPLOYMENT.

FROM JULY 9, 1934 TO OCTOBER 5, 1934, MR. GARRISON SERVED AS CHAIRMAN OF THE NATIONAL LABOR RELATIONS BOARD AT A SALARY OF $10,000 PER ANNUM. SINCE THAT TIME, HIS SERVICES FOR THE FEDERAL GOVERNMENT HAVE BEEN ON A "WITHOUT COMPENSATION" BASIS.

IN VIEW OF YOUR DECISIONS OF DECEMBER 17, 1936 (16 COMP. GEN. 598), AND APRIL 8, 1942, (19 COMP. GEN. 845), WE BELIEVE THAT MR. GARRISON'S APPOINTMENT AT THE MAXIMUM RATE OF GRADE P-8 IS AUTHORIZED.

IN ORDER TO AVOID ANY POSSIBLE FUTURE EMBARRASSMENT TO THE BOARD OR TO MR. GARRISON, HOWEVER, YOUR OPINION AS TO THE PROPRIETY OF THE PROPOSED APPOINTMENT IS RESPECTFULLY REQUESTED.

RULE 6 OF SECTION 6 OF THE ORIGINAL CLASSIFICATION ACT APPROVED MARCH 4, 1923, 42 STAT. 1490, PROVIDES:

ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.

IT HAS BEEN HELD IN NUMEROUS DECISIONS OF THIS OFFICE THAT THE TERM "NEW APPOINTMENTS" APPEARING IN RULE 6 OF SECTION 6, SUPRA, DOES NOT INCLUDE REINSTATEMENTS, REAPPOINTMENTS, OR TRANSFERS OF FEDERAL PERSONNEL EVEN THOUGH THE PRIOR EMPLOYMENT WAS NOT WITHIN THE PURVIEW OF THE CLASSIFICATION ACT. SEE 8 COMP. GEN. 400; 9 ID. 193; 13 ID. 322; 15 ID. 102, 797; 16 ID. 598, 994; 17 ID. 1061; 19 ID. 20, 763, 845; 20 I 17, 451, 579; 21 ID. 326, 791; 22 ID. 489. CF. 18 COMP. GEN. 223, INVOLVING A CASE IN WHICH RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT WAS HELD TO BE APPLICABLE, AND, ALSO, 21 COMP. GEN. 386, STATING AN EXCEPTION TO THE GENERAL RULE BASED ON SPECIFIC STATUTORY PROVISIONS.

SO FAR AS IS HERE MATERIAL, THE RULE ESTABLISHED BY THE CITED DECISIONS IS TO THE EFFECT THAT AN EMPLOYEE MAY BE PAID INITIALLY UPON REAPPOINTMENT TO A POSITION (THE SALARY FOR WHICH IS PRESCRIBED BY THE CLASSIFICATION ACT) FROM A POSITION (THE SALARY FOR WHICH WAS PRESCRIBED OTHERWISE THAN BY THE CLASSIFICATION ACT) AT ANY RATE IN THE SALARY RANGE OF THE GRADE IN WHICH THE POSITION TO WHICH REAPPOINTED HAS BEEN ALLOCATED NOT TO EXCEED THE RATE PREVIOUSLY PAID TO THE EMPLOYEE IN THE POSITION THE SALARY OF WHICH WAS NOT PRESCRIBED BY THE CLASSIFICATION ACT. OF COURSE, IN THE INSTANT CASE, THE RATE OF THE PER DIEM PAID TO MR. GARRISON UNDER HIS LAST PRIOR EMPLOYMENT IS NOT FOR CONSIDERATION IN DETERMINING THE SALARY RATE WHICH MAY BE PAID TO HIM UNDER THE PROPOSED APPOINTMENT FOR THE REASON THAT SAID PER DIEM IS A SUBSISTENCE ALLOWANCE AND NOT SALARY OR COMPENSATION. SEE 20 COMP. GEN. 145, 147; 21 ID. 886, 890; 22 ID. 392, 394. HOWEVER, THE FACT THAT HE HAS SINCE SERVED WITHOUT COMPENSATION DOES NOT PRECLUDE GIVING CONSIDERATION TO THE SALARY RATE OF $10,000 PER ANNUM SAID TO HAVE BEEN RECEIVED BY HIM IN 1934 IN THE LAST SALARIED POSITION HELD BY HIM. HENCE, UNDER THE ESTABLISHED RULE HIS SALARY UNDER THE PROPOSED APPOINTMENT TO A POSITION IN GRADE P-8 MAY BE FIXED INITIALLY AT THE RATE OF $9,000 PER ANNUM, THE MAXIMUM SALARY RATE OF THE GRADE, WHICH IS LESS THAN THE RATE AT WHICH HE PREVIOUSLY WAS PAID UNDER HIS LAST PREVIOUS FEDERAL SERVICE APPOINTMENT WITH COMPENSATION.