B-43367, JULY 25, 1944, 24 COMP. GEN. 52

B-43367: Jul 25, 1944

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OFFICERS AND EMPLOYEES - HOLDING TWO POSITIONS - WITHIN-GRADE SALARY ADVANCEMENT CAUSING STATUTORY SALARY LIMITATION TO BE EXCEEDED IF THERE HAVE BEEN MET ALL OF THE TERMS AND CONDITIONS NECESSARY TO AUTHORIZE A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1. 500 OR MORE FROM HOLDING ANOTHER OFFICE TO WHICH COMPENSATION IS ATTACHED. 500 OR MORE FROM HOLDING ANOTHER OFFICE TO WHICH COMPENSATION IS ATTACHED. 1944: I HAVE YOUR LETTER OF JULY 19. HE WAS REAPPOINTED ON AUGUST 22. WAS JUNE 20. ARE ACCORDINGLY PROHIBITED BY SAID ACT FROM HOLDING ANY OTHER OFFICE UNDER THE GOVERNMENT (EXCEPT AN ELECTIVE ONE. OR ONE TO WHICH APPOINTMENT IS MADE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE).

B-43367, JULY 25, 1944, 24 COMP. GEN. 52

OFFICERS AND EMPLOYEES - HOLDING TWO POSITIONS - WITHIN-GRADE SALARY ADVANCEMENT CAUSING STATUTORY SALARY LIMITATION TO BE EXCEEDED IF THERE HAVE BEEN MET ALL OF THE TERMS AND CONDITIONS NECESSARY TO AUTHORIZE A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, IN ONE OF THE TWO POSITIONS WHICH AN EMPLOYEE HOLDS, THE ADVANCEMENT MAY NOT BE DELAYED OR DEFEATED BY ACTION OF THE ADMINISTRATIVE OFFICE OR THE EMPLOYEE EVEN THOUGH SUCH ADVANCEMENT MAY PRECLUDE THE EMPLOYEE FROM REMAINING IN THE POSITION BECAUSE OF THE OPERATION OF THE ACT OF JULY 31, 1894, AS AMENDED, PROHIBITING PERSONS WHOSE ANNUAL COMPENSATION IN ONE OFFICE AMOUNTS TO $2,500 OR MORE FROM HOLDING ANOTHER OFFICE TO WHICH COMPENSATION IS ATTACHED. IN VIEW OF THE PROVISION IN THE ACT OF JULY 31, 1894, AS AMENDED, PROHIBITING PERSONS WHOSE ANNUAL COMPENSATION IN ONE OFFICE AMOUNTS TO $2,500 OR MORE FROM HOLDING ANOTHER OFFICE TO WHICH COMPENSATION IS ATTACHED, THE HOLDING BY A RETIRED ARMY OFFICER OF A CIVILIAN POSITION BECAME INVALID ON THE DATE THE SALARY ATTACHING TO THE POSITION EQUALED $2,500 PER ANNUM DUE TO A WITHIN-GRADE SALARY ADVANCEMENT PURSUANT TO THE ACT OF AUGUST 1, 1951, AND THE SALARY PAID TO HIM IN SUCH POSITION ON AND AFTER THAT DATE, HAVING BEEN MADE IN DIRECT CONTRAVENTION OF LAW, MUST BE REFUNDED BY HIM.

COMPTROLLER GENERAL WARREN TO THE WAR FOOD ADMINISTRATOR, JULY JULY 25, 1944:

I HAVE YOUR LETTER OF JULY 19, 1944, AS FOLLOWS:

THIS HAS REFERENCE TO A POSSIBLE VIOLATION OF THE DUAL COMPENSATION ACT OF JULY 31, 1894, AS AMENDED BY THE ACT OF MAY 31, 1924, IN THE CASE OF WILLIAM E. VERNON, RETIRED CAPTAIN IN THE UNITED STATES ARMY, EMPLOYED BY THE FARM SECURITY ADMINISTRATION.

MR. VERNON SERVED AS ASSISTANT ENGINEER FOR THE FARM SECURITY ADMINISTRATION FROM MARCH 4 TO JUNE 3, 1936, AND AS ASSISTANT SUPERINTENDENT OF CONSTRUCTION FROM DECEMBER 7, 1936, TO JUNE 30, 1937. HE WAS REAPPOINTED ON AUGUST 22, 1940, AS RURAL REHABILITATION SUPERVISOR AND SERVED IN THAT CAPACITY UNTIL APRIL 15, 1944, ON WHICH DATE HE SUBMITTED HIS RESIGNATION. THE EFFECTIVE DATE OF SEPARATION, INCLUDING ALL LEAVE, WAS JUNE 20, 1944. EFFECTIVE OCTOBER 1, 1943, MR. VERNON RECEIVED A PAY INCREASE UNDER THE PROVISIONS OF THE MEAD RAMSPECK ACT OF AUGUST 1, 1941, WHICH RAISED HIS BASIC ANNUAL RATE OF PAY FROM $2,400 TO $2,500.

IT HAS BEEN HELD BY THE ACCOUNTING OFFICERS THAT RETIRED OFFICERS OR ENLISTED MEN OF THE ARMY OR THE NAVY HOLD OFFICES WITH COMPENSATION ATTACHED WITHIN THE MEANING OF THE ACT OF JULY 31, 1894 (28 STAT. 205), AND ARE ACCORDINGLY PROHIBITED BY SAID ACT FROM HOLDING ANY OTHER OFFICE UNDER THE GOVERNMENT (EXCEPT AN ELECTIVE ONE, OR ONE TO WHICH APPOINTMENT IS MADE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE), IF EITHER THE RETIRED PAY OR THE SALARY ATTACHED TO THE OFFICE OR POSITION AMOUNTS TO $2,500 PER ANNUM. 1 COMP. GEN. 700.

SECTION 212 OF THE ACT OF CONGRESS APPROVED JUNE 30, 1932 (THE ECONOMY ACT), IMPOSED A LIMITATION ON COMBINED SALARIES OF RETIRED OFFICERS OR ENLISTED MEN OF THE ARMY OR THE NAVY OF $3,000 PER ANNUM. ACCORDINGLY, APPROPRIATE DEDUCTIONS WERE MADE BY THE ARMY FROM MR. VERNON'S RETIRED PAY ON THE BASIS OF HIS BASIC CIVILIAN SALARY OF $2,400 PER ANNUM. HOWEVER, THE AUTOMATIC PROMOTION UNDER THE MEAD RAMSPECK ACT RAISED MR. VERNON'S BASIC CIVILIAN SALARY TO $2,500, WHICH CONSTITUTED AN APPARENT VIOLATION OF THE ACT OF JULY 31, 1894, SUPRA.

IN THE LIGHT OF CERTAIN DECISIONS OF YOUR OFFICE, YOUR OPINION IS REQUESTED AS TO WHETHER THE PERIODIC AUTOMATIC PROMOTION UNDER THE MEAD- RAMSPECK ACT DID ACTUALLY OPERATE TO CAUSE AN ILLEGAL APPOINTMENT.

IN A DECISION DATED OCTOBER 14, 1941 (21 COMP. GEN. 335), YOU STATED (QUOTING FROM THE SYLLABUS) THAT,"THE WORDS "SHALL BE ADVANCED IN COMPENSATION" APPEARING IN THE ACT OF AUGUST 1, 1941, PROVIDING FOR UNIFORM WITHIN-GRADE SALARY-ADVANCEMENT, ARE IMPERATIVE AND MANDATORY, AND, THEREFORE, IF AN EMPLOYEE MEETS THE TERMS AND CONDITIONS OF THE STATUTE, HE IS ENTITLED AS A MATTER OF RIGHT TO THE PERIODIC ADVANCEMENT IN SALARY.' YOU FURTHER HELD THAT,"THE ONLY LEGAL RATE OF SALARY PAYABLE TO EMPLOYEES WHO QUALIFY AS OF THOSE DATES IS THE ADVANCED SALARY REQUIRED BY THE ACT TO BE PAID.'

ON JANUARY 30, 1942, IN A DECISION ADDRESSED TO THE SECRETARY OF WAR (20 COMP. GEN. 722), YOU STATED THAT (QUOTING FROM THE SYLLABUS), "AN EMPLOYEE WHO BECAME ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT ON OCTOBER 1, 1941, OR THE BEGINNING OF A SUBSEQUENT QUARTER, BY OPERATION OF THE UNIFORM WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, MAY NOT BY CONSENT POSTPONE THE EFFECTIVE DATE OF THE ADVANCEMENT.'

IT SEEMS INCONGRUOUS THAT THE RECEIPT BY AN EMPLOYEE OF A PAY INCREASE MADE MANDATORY BY LAW, AND WHICH HE MAY NOT POSTPONE BY CONSENT, SHOULD VOID THAT EMPLOYEE'S APPOINTMENT ENTIRELY BECAUSE OF THE OPERATION OF ANOTHER LAW. IT OCCURS TO US THAT, IN VIEW OF THE MANDATORY NATURE OF THE PROVISIONS OF THE MEAD-RAMSPECK ACT OF AUGUST 1, 1941, THE ACT OF JULY 31, 1894, MAY BE SAID TO BE AMENDED BY THE PROVISIONS OF THE FORMER ACT. FACT, 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.' OBVIOUSLY, THE IMPERATIVE AND MANDATORY PROVISIONS OF THE ACT OF AUGUST 1, 1951, ARE INCONSISTENT AND IN CONFLICT WITH THE PROVISIONS OF THE ACT OF JULY 31, 1894, INSOFAR AS THEY AFFECT MR. VERNON'S SITUATION. IT MAY RESULT, THEREFORE, THAT THE PROVISIONS OF THE MEAD RAMSPECK ACT OF AUGUST 1, 1941, SUPERSEDE AND RENDER INOPERATIVE THE PROVISIONS OF THE DUAL COMPENSATION ACT OF JULY 31, 1894, TO THE EXTENT THAT A PAY INCREASE REQUIRED BY LAW DOES NOT, BY OPERATION OF THAT LAW, RENDER THE EMPLOYEE'S APPOINTMENT VOID AND ILLEGAL.

IF YOU FEEL, HOWEVER, THAT THE MEAD-RAMSPECK PROMOTION HAS THE EFFECT IN THIS CASE OF VOIDING THE HOLDING BY THE EMPLOYEE OF THE POSITION INVOLVED, THEN IT APPEARS THAT YOU SHOULD FIND THAT THE MEAD RAMSPECK PROMOTION IN SUCH CASE IS NOT, IN FACT, MANDATORY, SO THAT AT LEAST IN THE FUTURE AN EMPLOYEE SIMILARLY SITUATED MIGHT CONTINUE TO HOLD OFFICE WITHOUT PROMOTION. FURTHER, IF YOU DO SO FIND, IT WOULD SEEM THAT IN THIS PARTICULAR CASE, IN VIEW OF THE SERIOUS DOUBT AS TO THE APPLICATION OF THE LAW AND THE OBLIGATIONS OF THE EMPLOYEE, UNDER THE CIRCUMSTANCES, THAT HE SHOULD BE ALLOWED TO MAKE THE DECISION TO REPUDIATE THE EXTRA COMPENSATION RETROACTIVELY, SO THAT HE MAY RETAIN HIS LAWFUL COMPENSATION OF $2,400 PER ANNUM. WE CANNOT BELIEVE THAT CONGRESS INTENDED THAT THE TWO ACTS HEREIN DISCUSSED SHOULD SO OPERATE THAT THE RETIRED EMPLOYEE WOULD BE LITERALLY FORCED OUT OF A POSITION BY OPERATION OF LAW, WHEN THE HOLDING OF SUCH POSITION, INSOFAR AS THE EMPLOYEE COULD CONTROL IT, WAS LEGAL.

INASMUCH AS BOTH MR. VERNON'S RETIRED PAY AND HIS CIVILIAN SALARY ARE WITHHELD PENDING A DECISION IN THIS CASE, YOUR EARLY REPLY WILL BE APPRECIATED.

THE ARMY REGISTER, 1944, SHOWS THAT CAPTAIN VERNON WAS RETIRED OCTOBER 1, 1928, UNDER THE PROVISIONS OF SECTION 24B, ACT OF JUNE 4, 1920, 41 STAT. 773--- THAT IS, NOT BECAUSE OF INJURIES RECEIVED IN BATTLE, OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY--- AND, ACCORDINGLY, HE DOES NOT COME WITHIN ANY OF THE EXCEPTIONS TO THE 1894 STATUTE, 5 U.S.C. 62, PROVIDING AS FOLLOWS (QUOTING FROM THE CODE):

NO PERSON WHO HOLDS AN OFFICE THE SALARY OR ANNUAL COMPENSATION ATTACHED TO WHICH AMOUNTS TO THE SUM OF TWO THOUSAND FIVE HUNDRED DOLLARS SHALL BE APPOINTED TO OR HOLD ANY OTHER OFFICE TO WHICH COMPENSATION IS ATTACHED UNLESS SPECIALLY AUTHORIZED THERETO BY LAW; BUT THIS SHALL NOT APPLY TO RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD WHENEVER THEY MAY BE ELECTED TO PUBLIC OFFICE OR WHENEVER THE PRESIDENT SHALL APPOINT THEM TO OFFICE BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. RETIRED ENLISTED MEN OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD RETIRED FOR ANY CAUSE, AND RETIRED OFFICERS OF THE ARMY, NAVY, MARINE CORPS, OR COAST GUARD WHO HAVE BEEN RETIRED FOR INJURIES RECEIVED IN BATTLE OR FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY SHALL NOT, WITHIN THE MEANING OF THIS SECTION, BE CONSTRUED TO HOLD OR TO HAVE HELD AN OFFICE DURING SUCH RETIREMENT. ( JULY 31, 1894, CH. 174, SEC. 2, 28 STAT. 205; MAY 31, 1924, CH. 214, 43 STAT. 245; JULY 30, 1937; CH. 545, SEC. 6, 50 STAT. 549; JUNE 25, 1938, CH. 694, 52 STAT. 1194.)

THE SALARY RATE ATTACHING TO AN OFFICE OR POSITION FALLING WITHIN THE PURVIEW OF THE CLASSIFICATION ACT AS AMENDED, IS NOT THE MINIMUM OR ANY PARTICULAR SALARY RATE OF THE GRADE, BUT ANY OF THE SALARY RATES PRESCRIBED BY THE STATUTE FOR THE GRADE IN WHICH THE OFFICE OR POSITION PROPERLY HAS BEEN ALLOCATED. 3 COMP. GEN. 1001 (AT PAGE 1005). DECISION OF NOVEMBER 14, 1934, 14 COMP. GEN. 392, IT WAS STATED AT PAGE 393 THAT---

* * * THE ENTIRE SALARY RANGE PRESCRIBED BY THE ACT FOR A PARTICULAR GRADE, RATHER THAN ONE OR ANY NUMBER OF SALARY RATES LESS THAN THE TOTAL PRESCRIBED FOR THE GRADE, ATTACHES TO ANY POSITION PLACED OR ALLOCATED IN SAID GRADE * * *. SEE, ALSO, DECISION OF DECEMBER 15, 1941, 21 COMP. GEN. 569, WHEREIN, AT PAGE 571, IT WAS STATED:

THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 613, WHICH IS AN AMENDMENT TO THE CLASSIFICATION ACT, CLEARLY CONTEMPLATES WITHIN-GRADE SALARY ADVANCEMENTS THROUGH THE ENTIRE SALARY RANGE OF THE GRADES PRESCRIBED BY THE SCHEDULES APPEARING IN THE CLASSIFICATION ACT UPON MEETING CERTAIN CONDITIONS. SEE SECTION 2 OF THE STATUTE. THERE IS NO AUTHORITY IN AN ADMINISTRATIVE OFFICE TO DEFEAT THE RIGHT OF FIELD GRADE OR SALARY RANGE TO LESS THAN THOSE APPEARING IN THE SCHEDULES PRESCRIBED BY THE CLASSIFICATION ACT. SEE SECTION 1 (B) OF THE PRESIDENT'S REGULATIONS, EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941, ISSUED UNDER AUTHORITY OF SECTION 2 (G) OF THE SAID STATUTE.

ACCORDINGLY, IN LINE WITH THE RULES STATED IN THE ABOVE-CITED DECISIONS, AS WELL AS THOSE CITED IN THE SIXTH AND SEVENTH PARAGRAPHS OF YOUR LETTER, 21 COMP. GEN. 335; ID. 722, THE SALARY RATE ATTAINED BY AN EMPLOYEE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE ACT OF AUGUST 1, 1941, 55 STAT. 613, AND THE REGULATIONS OF THE PRESIDENT THEREUNDER ( EXECUTIVE ORDER NO. 8882 DATED SEPTEMBER 3, 1941), IS THE SALARY RATE ATTACHING TO AN EMPLOYEE'S OFFICE OR POSITION. IN ADDITION TO THE DECISIONS PREVIOUSLY CITED, SEE 21 COMP. GEN. 791, AND DECISION OF JUNE 9, 1944 B-42317), 23 COMP. GEN. 941.

PRIOR TO OCTOBER 1, 1941, THE EFFECTIVE DATE OF THE ACT OF AUGUST 1, 1941, PROVIDING THE PLAN FOR WITHIN-GRADE SALARY ADVANCEMENTS, IT WAS POSSIBLE FOR AN ADMINISTRATIVE OFFICE AND AN EMPLOYEE, IN A SITUATION SUCH AS HERE PRESENTED, TO CONTROL ADVANCEMENT IN THE GRADE IN WHICH THE OFFICE HAD BEEN ALLOCATED SO AS TO KEEP THE CASE WITHIN THE LIMITATIONS OF THE ACT OF JULY 31, 1894, AS AMENDED (5 U.S.C. 62). HOWEVER, THE ADVANCEMENT OF AN EMPLOYEE WITHIN THE SALARY RANGE OF THE GRADE IN WHICH HIS POSITION HAS BEEN ALLOCATED NOW IS CONTROLLED BY STATUTE AND (PROVIDED THAT ALL OF THE TERMS AND CONDITIONS OF THE STATUTE TO AUTHORIZE THE ADVANCEMENT HAVE BEEN MET) MAY NOT BE DELAYED OR DEFEATED BY THE ACTION OF THE ADMINISTRATIVE OFFICE OR THE EMPLOYEE EVEN THOUGH A PERIODIC ADVANCEMENT MAY PRECLUDE THE EMPLOYEE FROM REMAINING IN THAT POSITION BECAUSE OF THE PROHIBITION CONTAINED IN THE 1894 STATUTE, AS AMENDED, SUPRA.

A CASE WHEREIN AN ANALOGOUS SITUATION WAS GIVEN CONSIDERATION--- INCREASE IN THE SALARY RATE OF A POSITION HELD BY A RETIRED ARMY OFFICER FROM BELOW THE RATE OF $2,500 PER ANNUM TO A RATE ABOVE THAT AMOUNT BY OPERATION OF LAW (REALLOCATION OF POSITION/--- WILL BE FOUND IN THE DECISION OF DECEMBER 16, 1943, 23 COMP. GEN. 445, WHEREIN IT WAS HELD, SO FAR AS HERE MATERIAL, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE RECLASSIFICATION OF A POSITION, WHICH IS FINALLY CONSUMMATED, FROM GRADE CAF-6, $2300 PER ANNUM, TO GRADE CAF-7, $2600 PER ANNUM, MAY NOT BE REGARDED AS VOID MERELY BECAUSE THE INCUMBENT, A RETIRED ARMY WARRANT OFFICER, IS PROHIBITED BY THE DUAL COMPENSATION STATUTE OF JULY 31, 1894, AS AMENDED, FROM RECEIVING SALARY IN A CIVILIAN POSITION AT THE RATE OF $2500 OR MORE PER ANNUM, AND, THEREFORE, THE SAID RETIRED WARRANT OFFICER MAY NOT BE DEEMED TO HAVE CONTINUED IN GRADE CAF-6 AFTER THE RECLASSIFICATION BUT, RATHER, HE IS REQUIRED TO REFUND THE ENTIRE AMOUNT OF SALARY PAID IN GRADE CAF-7 AT THE RATE OF $2600 PER ANNUM. 21 COMP. GEN. 38, DISTINGUISHED.

A RETIRED ARMY WARRANT OFFICER WHO HAS BEEN APPOINTED TO A CIVILIAN POSITION AND HAS RECEIVED THE SALARY THEREOF AT A RATE IN EXCESS OF $2500 PER ANNUM, IN CONTRAVENTION OF THE DUAL COMPENSATION STATUTE OF JULY 31, 1894, AS AMENDED, MAY NOT ELECT TO RETAIN THE SALARY OF THE CIVILIAN POSITION AND REFUND HIS RETIRED PAY FOR THE PERIOD INVOLVED, BUT, RATHER, THE CIVILIAN SALARY PAID MUST BE REFUNDED.

IN VIEW OF THE PRESENT STATE OF THE LAW AS ABOVE SET FORTH, I AM UNABLE TO CONCUR IN THE VIEWS EXPRESSED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER. THIS OFFICE HAS NO DISCRETION OR AUTHORITY TO MAKE ANY EXCEPTION OF THE INSTANT CASE. IN THIS CONNECTION SEE H.R. 2586 AND H.R. 4060 NOW PENDING BEFORE THE COMMITTEE ON THE CIVIL SERVICE, HOUSE OF REPRESENTATIVES. ACCORDINGLY, I HAVE TO ADVISE THAT THE HOLDING BY CAPTAIN VERNON OF THE CIVILIAN POSITION BECAME INVALID ON OCTOBER 1, 1943, WHEN THE SALARY ATTACHING TO THE POSITION EQUALED $2,500 PER ANNUM, AND THE PAYMENT TO HIM OF SALARY IN SUCH POSITION FOR ANY PERIOD ON AND AFTER THAT DATE WAS IN DIRECT CONTRAVENTION OF LAW AND MUST BE REFUNDED BY HIM. SEE 14 COMP. GEN. 179, 289; 21 ID. 1129.

OF COURSE, IN THE ADJUSTMENT OF HIS ACCOUNT, CAPTAIN VERNON IS ENTITLED TO CREDIT FOR THAT PORTION, IF ANY, OF HIS RETIRED PAY ON AND AFTER OCTOBER 1, 1943, HE DID NOT RECEIVE BY REASON OF THE LIMITATION OF $3,000 PER ANNUM ON THE COMBINED RATE OF CIVILIAN COMPENSATION AND RETIRED PAY--- RETIRED PAY IN EXCESS OF $500 ($3,000 LESS $2,500/--- CONTAINED IN SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406. IN THAT CONNECTION, SEE THE LAST PARAGRAPH OF 21 COMP. GEN. 1129, AT PAGE 1132.