B-41365, NOVEMBER 6, 1944, 24 COMP. GEN. 351

B-41365: Nov 6, 1944

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" IS TO CLASSIFY ALL ATTORNEYS AND ENGINEERS APPOINTED THEREUNDER AS "EXPERTS" SUBJECT TO THE $7. TO EXCLUDE SUCH ATTORNEYS AND ENGINEERS AS WOULD NOT OTHERWISE BE REGARDED AS EXPERTS FROM THE CATEGORY "OTHER OFFICERS AND EMPLOYEES" WHOSE SALARIES ARE TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT. 14 COMP. 1944: I HAVE YOUR LETTER OF OCTOBER 10. AS FOLLOWS: REFERENCE IS MADE TO YOUR REPLY OF APRIL 21. WITH REGARD TO WHOM THERE IS ONLY THE LIMITATION PRESCRIBED BY THE CLASSIFICATION ACT AND NOT THE LIMITATION OF $7. HAVE BEEN PLACED IN THE SAME CATEGORY AS EXPERTS BY THE STATUTE WITH THE RESULT THAT NO POSITION REQUIRING THE SERVICES OF AN ENGINEER MAY EXCEED $7. REGARDLESS OF WHETHER OR NOT THEY ARE "EXPERT ENGINEERS" OR "EXPERT ATTORNEYS.

B-41365, NOVEMBER 6, 1944, 24 COMP. GEN. 351

CLASSIFICATION; COMPENSATION - BONNEVILLE POWER ADMINISTRATION ATTORNEYS AND ENGINEERS THE EFFECT OF THE PROVISIONS OF SECTION 10 OF THE BONNEVILLE PROJECT ACT OF AUGUST 20, 1937, AUTHORIZING THE APPOINTMENT WITHOUT REGARD TO THE CIVIL-SERVICE LAWS OF "ATTORNEYS, ENGINEERS, AND OTHER EXPERTS * * * AT NOT TO EXCEED $7,500 PER ANNUM" AND "OTHER OFFICERS AND EMPLOYEES * * * IN ACCORDANCE WITH THE CLASSIFICATION ACT," IS TO CLASSIFY ALL ATTORNEYS AND ENGINEERS APPOINTED THEREUNDER AS "EXPERTS" SUBJECT TO THE $7,500 LIMITATION, AND TO EXCLUDE SUCH ATTORNEYS AND ENGINEERS AS WOULD NOT OTHERWISE BE REGARDED AS EXPERTS FROM THE CATEGORY "OTHER OFFICERS AND EMPLOYEES" WHOSE SALARIES ARE TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT. 14 COMP. GEN. 70, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, NOVEMBER 6, 1944:

I HAVE YOUR LETTER OF OCTOBER 10, 1944, AS FOLLOWS:

REFERENCE IS MADE TO YOUR REPLY OF APRIL 21, (B-41365) TO MY LETTER OF APRIL 10, IN WHICH YOU AGREED THAT SECTION 10 OF THE BONNEVILLE POWER ACT (50 STAT. 731) PROVIDES FOR TWO CLASSES OR GROUPS OF PERSONNEL, ONE OF WHICH INCLUDES "ASSISTANT ADMINISTRATOR, CHIEF ENGINEER, AND GENERAL COUNSEL" AND "ATTORNEYS, ENGINEERS, AND OTHER EXPERTS," WHOSE SALARY RATES MAY BE FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT, AS AMENDED, BUT WITH A LIMITATION OF $7,500 PER ANNUM, AND THE OTHER OF WHICH INCLUDES "OTHER OFFICERS AND EMPLOYEES," WHOSE SALARY RATES MUST BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AND WITH REGARD TO WHOM THERE IS ONLY THE LIMITATION PRESCRIBED BY THE CLASSIFICATION ACT AND NOT THE LIMITATION OF $7,500 PER ANNUM.

YOUR LETTER FURTHER EXPRESSED THE VIEW THAT ENGINEERS, AS A CLASS, HAVE BEEN PLACED IN THE SAME CATEGORY AS EXPERTS BY THE STATUTE WITH THE RESULT THAT NO POSITION REQUIRING THE SERVICES OF AN ENGINEER MAY EXCEED $7,500 PER ANNUM. THE SAME WOULD BE TRUE WITH RESPECT TO ATTORNEYS, AND ALL ENGINEERS AND ATTORNEYS, REGARDLESS OF WHETHER OR NOT THEY ARE "EXPERT ENGINEERS" OR "EXPERT ATTORNEYS," WOULD FALL WITHIN THE FIRST CLASS OF PERSONNEL PROVIDED FOR IN SECTION 10 OF THE BONNEVILLE POWER ACT. THESE VIEWS APPEAR TO HAVE BEEN BASED UPON AN INFERENCE DRAWN FROM FACTUAL STATEMENTS WHICH WERE NOT CLEARLY PRESENTED IN THE LETTER TO YOU. FOR THAT REASON, A REVIEW OF THE DECISION IS REQUESTED.

I HAVE REVIEWED THE DECISION IN 17 COMP. GEN. 537, DISCUSSED IN YOUR LETTER. THAT DECISION CONCLUDES:

"IT IS TO BE UNDERSTOOD, HOWEVER, THAT WHERE THE STATUTE EXCEPTS POSITIONS OF A DESIGNATED CLASS SUCH AS "ATTORNEYS" OR "ENGINEERS," FOR INSTANCE, IF THE DUTIES OF THE POSITION SOUGHT TO BE FILLED REQUIRE THE SERVICES OF AN ATTORNEY OR ENGINEER AS THE CASE MAY BE, THE EXCEPTION APPLIES AND IS NOT AFFECTED BY THE FACT THAT THE POSITION COULD BE FILLED SATISFACTORILY UNDER THE CIVIL-SERVICE LAWS AND REGULATIONS AND AT RATES FIXED PURSUANT TO THE CLASSIFICATION ACT, AS AMENDED.'

WHILE NO SPECIFIC STATUTE WAS CONSIDERED IN THAT DECISION, THE APPLICABILITY OF THE RULE ANNOUNCED THEREIN IS LIMITED BY THE MAJOR PREMISE UPON WHICH IT IS BASED, NAMELY, A STATUTORY EXCEPTION OF POSITIONS OF A DESIGNATED CLASS, SUCH AS "ATTORNEYS" OR "ENGINEERS.' IF A STATUTE EXCEPTS FROM THE CLASSIFICATION ACT DUTIES OF WHICH REQUIRE THE SERVICES OF AN ATTORNEY OR ENGINEER FALLS WITHIN THE EXCEPTION, REGARDLESS OF WHETHER THE POSITION CAN BE FILLED SATISFACTORILY AT RATES FIXED PURSUANT TO THE CLASSIFICATION ACT. SECTION 10 OF THE BONNEVILLE POWER ACT IS NOT A STATUTE OF THAT TYPE. IT READS AS FOLLOWS:

"THE ADMINISTRATOR, THE SECRETARY OF WAR, AND THE FEDERAL POWER COMMISSION, RESPECTIVELY SHALL APPOINT SUCH ATTORNEYS, ENGINEERS, AND OTHER EXPERTS AS MAY BE NECESSARY FOR CARRYING OUT THE FUNCTIONS ENTRUSTED TO THEM UNDER THIS ACT, WITHOUT REGARD TO THE PROVISIONS OF THE CIVIL- SERVICE LAWS, AND SHALL FIX THE COMPENSATION OF EACH OF SUCH ATTORNEYS, ENGINEERS, AND OTHER EXPERTS AT NOT TO EXCEED $7,500 PER ANNUM; AND THEY MAY, SUBJECT TO THE CIVIL-SERVICE LAWS, APPOINT SUCH OTHER OFFICERS AND EMPLOYEES AS MAY BE NECESSARY TO CARRY OUT SUCH FUNCTIONS AND FIX THEIR SALARIES IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923 AS AMENDED.' (ITALICS SUPPLIED.)

SECTION 1 OF THE ACT, AMENDING THE BONNEVILLE POWER ACT APPROVED MARCH 6, 1940 (54 STAT. 47), PROVIDES:

"* * * THE SECRETARY OF THE INTERIOR SHALL ALSO APPOINT, WITHOUT REGARD TO THE CIVIL-SERVICE LAWS, AN ASSISTANT ADMINISTRATOR, CHIEF ENGINEER, AND GENERAL COUNSEL, AND SHALL FIX THE COMPENSATION OF EACH AT NOT EXCEEDING $7,500 PER ANNUM.'

THE APPLICATION OF THE RULE ANNOUNCED IN 17 COMP. GEN. 537 TO A STATUTE PROVIDING THAT THE ADMINISTRATOR SHALL APPOINT "SUCH ATTORNEYS, ENGINEERS, AND OTHER EXPERTS" RENDERS THE WORD OTHER" SURPLUSAGE.

IN 14 COMP. GEN. 70, THERE WAS CONSIDERED SECTION 4 (B) OF THE SECURITIES EXCHANGE ACT OF 1934, APPROVED JUNE 5, 1934 (48 STAT. 880), WHICH IN MANY RESPECTS IS SIMILAR TO SECTION 10 OF THE BONNEVILLE POWER ACT AND WHICH READS AS FOLLOWS:

"THE COMMISSION IS AUTHORIZED TO APPOINT AND FIX THE COMPENSATION OF SUCH OFFICERS, ATTORNEYS, EXAMINERS, AND OTHER EXPERTS AS MAY BE NECESSARY FOR CARRYING OUT ITS FUNCTIONS UNDER THIS ACT, WITHOUT REGARD TO THE PROVISIONS OF OTHER LAWS APPLICABLE TO THE EMPLOYMENT AND COMPENSATION OF OFFICERS AND EMPLOYEES OF THE UNITED STATES, AND THE COMMISSION MAY, SUBJECT TO THE CIVIL-SERVICE LAWS, APPOINT SUCH OTHER OFFICERS AND EMPLOYEES AS ARE NECESSARY IN THE EXECUTION OF ITS FUNCTIONS AND FIX THEIR SALARIES IN ACCORDANCE WITH THE CLASSIFICATION ACT. THE DECISION READS IN PART AS FOLLOWS:

"THERE IS STATED IN THE QUOTED STATUTORY PROVISIONS THE AUTHORITY FOR APPOINTING AND FIXING THE RATES OF COMPENSATION OF TWO SEPARATE AND DISTINCT CLASSES OF PERSONNEL, VIZ: (1) "OFFICERS, ATTORNEYS, EXAMINERS, AND OTHER EXPERTS," I.E., OF PERSONS QUALIFYING AS "EXPERT" IN THE PARTICULAR LINE; AND (2) "OTHER OFFICERS AND EMPLOYEES.' * * *

"ALL OFFICERS AND EMPLOYEES OF THE COMMISSION, OTHER THAN THOSE QUALIFYING AS "EXPERTS" IN THE PERFORMANCE OF SOME SPECIAL LINE OR CLASS OF DUTIES REQUIRED OF THE COMMISSION, ARE SUBJECT TO THE CIVIL SERVICE LAWS AND REGULATIONS, THE CLASSIFICATION ACT, SECTION 213 OF THE ECONOMY ACT (REQUIRING THE APPROVAL OF THE PRESIDENT IN THE FILLING OF VACANCIES, INCLUDING THE FILLING OF ALL NEWLY CREATED POSITIONS), ETC.' (ITALICS SUPPLIED.)

THE FOREGOING APPEARS TO BE INCONSISTENT WITH YOUR LETTER OF APRIL 21, AND IT IS SUBMITTED THAT THE EARLIER DECISION SHOULD BE FOLLOWED INASMUCH AS IT GIVES EFFECT TO ALL OF THE LANGUAGE IN THE STATUTE.

ADMINISTRATIVE PRACTICE HAS CONSISTENTLY FOLLOWED THE OPPOSITE POSITION FROM THAT EXPRESSED IN YOUR LETTER. THE CIVIL SERVICE COMMISSION APPLIED THE DECISION IN 14 COMP. GEN. 70 TO SECTION 10 OF THE BONNEVILLE ACT IN A LETTER DATED JANUARY 5, 1938, TO THE BONNEVILLE POWER ADMINISTRATOR AS FOLLOWS:

"IT IS TO BE NOTED THAT POSITIONS OF ATTORNEY AND ENGINEER ARE NOT EXEMPTED BY THIS SECTION ( SECTION 10 OF THE BONNEVILLE ACT) FROM COMPETITION BUT ONLY SUCH POSITIONS OF ATTORNEY AND ENGINEER AS ARE IN THE EXPERT CLASS AS DEFINED IN THE COMMISSION'S DEPARTMENTAL CIRCULAR NO. 151 OF APRIL 5, 1937. THIS IS IN ACCORDANCE WITH THE DECISION OF THE COMPTROLLER GENERAL OF AUGUST 22, 1934, TO THE SECURITIES AND EXCHANGE COMMISSION WHEREBY HE HELD THAT THE USE OF THE WORD ,OTHER" BEFORE "EXPERT" INDICATED THE INTENT OF CONGRESS AS REQUIRING THAT ANY APPOINTMENTS OF ATTORNEYS AND ENGINEERS TO BE EXEMPT FROM COMPETITION MUST BE OF ATTORNEYS AND ENGINEERS WHO QUALIFY AS EXPERT FOR THE WORK OF THE PARTICULAR AGENCY INVOLVED.'

PURSUANT TO THE EARLIER DECISION AND THE INTERPRETATION OF THE CIVIL SERVICE COMMISSION, ALL ENGINEERS AND ATTORNEYS OF BONNEVILLE POWER ADMINISTRATION, OTHER THAN THE CHIEF ENGINEER, GENERAL COUNSEL, AND OCCUPANTS OF POSITIONS DESIGNATED BY THE CIVIL SERVICE COMMISSION AS EXPERT POSITIONS HAVE HAD THEIR SALARY RATES FIXED PURSUANT TO THE CLASSIFICATION ACT, AS AMENDED, AND HAVE BEEN DEEMED SUBJECT TO THE PROVISIONS OF THAT ACT, INCLUDING THE AUTOMATIC INCREASES DIRECTED BY THE ACT OF AUGUST 1, 1941. 55 STAT. 613.

YOUR EARLY RECONSIDERATION OF THE MATTER IS RESPECTFULLY REQUESTED.

IN THE DECISION OF JULY 25, 1934, 14 COMP. GEN. 70, TO WHICH YOU REFER, THERE WAS CONSIDERED A STATUTE (QUOTED IN YOUR LETTER, SUPRA,) WHEREIN THE TERM "OFFICERS" APPEARED IN BOTH CLASSES OF PERSONNEL, THAT IS, THE CLASSES EXEMPTED FROM THE CLASSIFICATION ACT AND THE CLASSES INCLUDED WITHIN THE PURVIEW OF THE CLASSIFICATION ACT. WITH REGARD TO THAT STATUTE CONTAINING THE COMMON TERM,"OFFICERS," IN BOTH CLASSES OF PERSONNEL, IT WAS STATED IN DECISION OF AUGUST 22, 1934, A-56617, RENDERED IN REPLY TO A REQUEST BY THE CHAIRMAN OF THE SECURITIES AND EXCHANGE COMMISSION FOR RECONSIDERATION OF THE SAID DECISION OF JULY 25, 1934, AS FOLLOWS:

THE TWO STATUTORY PHRASES IN QUESTION ARE (1) "OFFICERS, ATTORNEYS,EXAMINERS AND OTHER ERTS," AND (2) "OTHER OFFICERS AND EMPLOYEES.' YOU WILL NOTE THAT THE TERM "OFFICERS" APPEARS IN BOTH PHRASES. YOU AGREE THAT THE TWO CLASSES OF PERSONNEL ARE SEPARATE AND DISTINCT AND THAT THE CONGRESS INTENDED TO PROVIDE SEPARATE AND DISTINCT PROCEDURES AS TO THEIR BEST EMPLOYMENT AND AS TO FIXING THEIR RATES OF COMPENSATION. SINCE THERE MUST BE SOME BASIS ON WHICH TO CLASSIFY OFFICERS FALLING WITHIN THE FIRST GROUP, AND OFFICERS FALLING WITHIN THE SECOND GROUP, THE STATUTE ITSELF HAS PROVIDED THE DISTINGUISHING QUALIFICATION BY THE USE OF THE TERM "EXPERTS.' THAT IS, TO COME WITHIN THE FIRST GROUP, OFFICERS, ATTORNEYS AND EXAMINERS MUST QUALIFY AS EXPERTS. IT IS CLEAR THE CONGRESS DID NOT INTEND TO AUTHORIZE THE COMMISSION TO DISREGARD THE CIVIL SERVICE LAWS AND REGULATIONS, THE CLASSIFICATION ACT AND THE ECONOMY ACT IN THE APPOINTMENT OF ALL OFFICERS, ATTORNEYS, AND EXAMINERS, BUT "ONLY THOSE EXCEPTIONALLY QUALIFIED BY EDUCATION AND EXPERIENCE IN A PARTICULAR LINE TO PERFORM A SPECIAL SERVICE ESSENTIAL TO ACCOMPLISHMENT OF THE LEGISLATIVE PURPOSE, AND WHO ARE NOT, GENERALLY, OBTAINABLE UNDER OPERATION OF THE CIVIL SERVICE LAWS AND REGULATIONS.' (QUOTING FROM THE DECISION OF JULY 25, 1934.)

THE PROVISIONS OF LAW APPLICABLE TO THE BONNEVILLE POWER ADMINISTRATION-- - CONSIDERED IN THE DECISION OF APRIL 21, 1944, OF WHICH RECONSIDERATION NOW IS REQUESTED--- DO NOT CONTAIN A COMMON TERM OR CLASSIFICATION OF PERSONNEL WITHIN BOTH GROUPS. THAT IS, SECTION 10 OF THE BONNEVILLE POWER ACT, APPROVED AUGUST 20, 1937, 50 STAT. 731, 736, INCLUDES WITHIN THE CLASSES OF PERSONNEL EXEMPTED FROM THE CLASSIFICATION ACT AND MADE SUBJECT TO THE SALARY LIMITATIONS OF $7,500 PER UM,"ATTORNEYS, ENGINEERS AND OTHER EXPERTS," AND INCLUDES WITHIN THE CLASSES OF PERSONNEL SUBJECT TO THE CLASSIFICATION ACT "SUCH OTHER OFFICERS AND EMPLOYEES AS MAY BE NECESSARY.' UNLIKE THE STATUTE CONSIDERED IN 14 COMP. GEN. 70, THERE IS NO CLASS OF PERSONNEL COMMON TO BOTH GROUPS.

I DO NOT CONCUR IN YOUR STATEMENT THAT "THE APPLICATION OF THE RULE ANNOUNCED IN 17 COMP. GEN. 537 TO A STATUTE PROVIDING THAT THE ADMINISTRATOR SHALL APPOINT "SUCH ATTORNEYS, ENGINEERS, AND OTHER EXPERTS" RENDERS THE WORD "OTHER" SURPLUSAGE.' I THINK THE PLAIN IMPORT OF THE LANGUAGE ,SUCH ATTORNEYS, ENGINEERS, AND OTHER EXPERTS" AS USED IN THE PROVISION OF LAW HERE IN QUESTION IS THAT THE CONGRESS DETERMINED THAT ALL ATTORNEYS AND ENGINEERS IT WOULD BE NECESSARY FOR THE BONNEVILLE POWER ADMINISTRATION TO APPOINT IN CARRYING OUT THE FUNCTIONS ENTRUSTED TO IT UNDER THE ACT WOULD COME WITHIN THE CLASSIFICATION OF "EXPERTS" AND THAT THEY, AS WELL AS OTHER EXPERTS SHALL BE APPOINTED WITHOUT REGARD TO THE CIVIL-SERVICE LAWS AND HAVE THEIR SALARIES FIXED AT RATES NOT TO EXCEED $7,500 PER ANNUM. THE AUTHORIZATION IN THE SAME SENTENCE FOR THE APPOINTMENT OF "SUCH OTHER OFFICERS AND EMPLOYEES AS MAY BE NECESSARY" WITH SALARIES TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, UNQUESTIONABLY REFERS TO OFFICERS AND EMPLOYEES OTHER THAN ,ATTORNEYS, ENGINEERS AND OTHER EXPERTS.' THE LANGUAGE HERE INVOLVED IS MATERIALLY DIFFERENT FROM THAT CONSIDERED IN 14 COMP. GEN. 70. ACCORDINGLY, THE RULE STATED IN THAT DECISION IS NOT FOR APPLICATION HERE. COMPARE 17 COMP. GEN. 176, 178.

FURTHERMORE, WHEN CONSIDERING TOGETHER THE TWO PROVISIONS OF LAW APPLICABLE TO THE BONNEVILLE POWER ADMINISTRATION IN EACH OF WHICH A SALARY LIMITATION OF $7,500 PER ANNUM, WHEN THAT MAXIMUM DEFINITELY IS FIXED NOT ONLY FOR ATTORNEYS AND ENGINEERS WHO ARE EXPERTS BUT, ALSO, FOR THE GENERAL COUNSEL AND THE CHIEF ENGINEER OF THE BONNEVILLE POWER ADMINISTRATION. I HAVE GIVEN CAREFUL CONSIDERATION TO THE VIEW EXPRESSED IN YOUR LETTER BUT AM CONSTRAINED TO AFFIRM THE DECISION OF APRIL 21, 1944.