B-4565, JULY 7, 1939, 19 COMP. GEN. 20

B-4565: Jul 7, 1939

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IT IS REQUIRED FOR THE FIRST TIME THAT AN EMPLOYEE'S POSITION BE CLASSIFIED AND SALARY RATE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT. THE SALARY RATE OF HIS UNCLASSIFIED POSITION IS WITHIN THE RANGE OF SALARIES PRESCRIBED BY THE CLASSIFICATION ACT FOR THE GRADE IN WHICH THE POSITION IS CLASSIFIED BUT DOES NOT FALL WITHIN ONE OF THE STATUTORY RATES THEREOF. THERE IS NO AUTHORITY TO INCREASE THE RATE PAID IN THE UNCLASSIFIED POSITION BUT THE INITIAL RATE MAY BE THE NEXT LOWER CLASSIFICATION ACT SALARY RATE IN THE GRADE. IT IS REQUIRED FOR THE FIRST TIME THAT AN EMPLOYEE'S POSITION BE CLASSIFIED AND SALARY RATE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT. THE SALARY RATE OF HIS UNCLASSIFIED POSITION IS ONE OF THE STATUTORY RATES FOR THE GRADE IN WHICH THE POSITION IS CLASSIFED HIS PAY MAY BE CONTINUED AT THE SAME RATE EVEN THOUGH IT IS NOT THE MINIMUM RATE OF THE GRADE.

B-4565, JULY 7, 1939, 19 COMP. GEN. 20

CLASSIFICATION - STATUTORY REQUIREMENTS AND RATES PAYABLE IN POSITIONS BROUGHT UNDER CLASSIFICATION ACT WHERE A STATUTE AUTHORIZING THE EMPLOYMENT OF PERSONAL SERVICES DOES NOT EXPRESSLY PROVIDE THAT SALARY RATES MAY BE FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT, THE TERMS OF THE CLASSIFICATION ACT REQUIRE ITS APPLICATION. WHERE, EFFECTIVE JULY 1, 1939, IT IS REQUIRED FOR THE FIRST TIME THAT AN EMPLOYEE'S POSITION BE CLASSIFIED AND SALARY RATE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED, AND THE SALARY RATE OF HIS UNCLASSIFIED POSITION IS WITHIN THE RANGE OF SALARIES PRESCRIBED BY THE CLASSIFICATION ACT FOR THE GRADE IN WHICH THE POSITION IS CLASSIFIED BUT DOES NOT FALL WITHIN ONE OF THE STATUTORY RATES THEREOF, THERE IS NO AUTHORITY TO INCREASE THE RATE PAID IN THE UNCLASSIFIED POSITION BUT THE INITIAL RATE MAY BE THE NEXT LOWER CLASSIFICATION ACT SALARY RATE IN THE GRADE. WHERE, EFFECTIVE JULY 1, 1939, IT IS REQUIRED FOR THE FIRST TIME THAT AN EMPLOYEE'S POSITION BE CLASSIFIED AND SALARY RATE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED, AND THE SALARY RATE OF HIS UNCLASSIFIED POSITION IS ONE OF THE STATUTORY RATES FOR THE GRADE IN WHICH THE POSITION IS CLASSIFED HIS PAY MAY BE CONTINUED AT THE SAME RATE EVEN THOUGH IT IS NOT THE MINIMUM RATE OF THE GRADE. WHERE, EFFECTIVE JULY 1, 1939, IT IS REQUIRED FOR THE FIRST TIME THAT AN EMPLOYEE'S POSITION BE CLASSIFIED AND SALARY RATE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED, AND THE SALARY RATE OF HIS UNCLASSIFIED POSITION REPRESENTS A SALARY STEP OF A GRADE OTHER THAN THAT IN WHICH HIS POSITION HAS BEEN ALLOCATED, THE RATE MAY NOT BE INCREASED TO THE NEXT HIGHER SALARY RATE OF THE GRADE IN WHICH ALLOCATED, BUT THE NECESSARY SALARY RATE REDUCTION NEED BE ONLY TO THE NEXT LOWER RATE EVEN THOUGH SUCH LOWER RATE IS NOT MINIMUM RATE OF THE GRADE. WHERE, EFFECTIVE JULY 1, 1939, IT IS REQUIRED FOR THE FIRST TIME THAT AN EMPLOYEE'S POSITION BE CLASSIFIED AND SALARY RATE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED, AND THE SALARY RATE RECEIVED IN THE UNCLASSIFIED POSITION IS MORE THAN THE MAXIMUM RATE OF THE GRADE IN WHICH THIS POSITION HAS BEEN ALLOCATED, THE INITIAL SALARY RATE MAY BE THE MAXIMUM SALARY RATE OF THE GRADE IN WHICH THE POSITION HAS BEEN ALLOCATED. WHERE, EFFECTIVE JULY 1, 1939, IT IS REQUIRED FOR THE FIRST TIME THAT AN EMPLOYEE'S POSITION BE CLASSIFIED AND SALARY RATE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED, AND THE SALARY RATE RECEIVED IN THE UNCLASSIFIED POSITION IS LESS THAN THE MINIMUM SALARY RATE OF THE GRADE IN WHICH THE POSITION IS ALLOCATED, THE INITIAL SALARY RATE UNDER THE CLASSIFICATION ACT MUST BE THE MINIMUM SALARY RATE OF THE GRADE IN WHICH THE POSITION IS ALLOCATED.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF STATE, JULY 7, 1939:

I HAVE YOUR LETTER OF JUNE 26, 1939, AS FOLLOWS:

BY PROVISION IN THE APPROPRIATION ACTS OF THIS DEPARTMENT, THE SECRETARY OF STATE HAS BEEN AUTHORIZED SINCE 1934 TO MAKE EXPENDITURES WITHOUT REGARD TO CIVIL-SERVICE LAWS AND REGULATIONS OR THE CLASSIFICATION ACT OF 1923, AS AMENDED, FOR THE PAYMENT OF THE SALARIES OF THE EMPLOYEES ENGAGED UPON TRADE-AGREEMENT WORK. THE HOUSE OF REPRESENTATIVES BY AMENDMENT OF THE 1940 APPROPRIATION BILL ( H.R. 6392) HAS ELIMINATED THE LANGUAGE WHICH WOULD HAVE CONTINUED TO EXEMPT THESE EMPLOYEES FROM CIVIL-SERVICE AND CLASSIFICATION REQUIREMENTS. THIS AMENDMENT HAS BEEN APPROVED BY THE JOINT CONFEREES OF THE HOUSE AND SENATE AND IT IS ANTICIPATED THAT THE BILL WILL BE ENACTED WITHOUT FURTHER CHANGE IN THIS RESPECT.

THE DEPARTMENT ACCORDINGLY IS PROCEEDING TO HAVE CLASSIFIED THE POSITIONS OF THE EMPLOYEES AFFECTED AND IN APPROPRIATE CASES TO HAVE A CIVIL-SERVICE STATUS CONFERRED UPON THE INCUMBENTS UNDER THE PROVISIONS OF SECTION 6, CIVIL-SERVICE RULE II. THE QUESTION HAS ARISEN AS TO THE SALARIES WHICH SHOULD BE PAID BEGINNING JULY 1 TO THOSE EMPLOYEES WHOSE POSITIONS HAVE BEEN ALLOCATED, OR FOR WHOSE POSITIONS ALLOCATIONS ARE NOW PENDING, IN GRADES IN WHICH THE MINIMUM SALARIES ARE LESS THAN THE PRESENT SALARIES. THE DECISIONS OF THE COMPTROLLER GENERAL DO NOT APPEAR TO BE IN POINT AND, THEREFORE, I AM REQUESTING YOUR DECISION AS TO THE PROPER PROCEDURE IN THE FOLLOWING CASES:

(1) AN EMPLOYEE WAS REINSTATED AT $4,700 PER ANNUM ON MARCH 21, 1938, TO HIS PRESENT POSITION WHICH HAS BEEN ALLOCATED BY THE CIVIL SERVICE COMMISSION IN GRADE FIVE OF THE PROFESSIONAL AND SCIENTIFIC SERVICE. SINCE THE MINIMUM SALARY OF THIS GRADE IS $4,600 AND THE SECOND STEP IS $4,800, MAY THE DEPARTMENT ADJUST THE SALARY OF THIS EMPLOYEE TO $4,800?

(2) A. SEVERAL EMPLOYEES ARE NOW SERVING AT RATES WHICH ARE EQUIVALENT TO INTERMEDIATE SALARY STEPS OF THE GRADES IN WHICH THEIR POSITIONS HAVE BEEN ALLOCATED, E.G., P-1, $2,300 AND CAF-3, $1,800. EACH OF THESE EMPLOYEES HAS SERVED AT LEAST SIX MONTHS IN HIS PRESENT POSITION OR IN SIMILAR POSITIONS IN THE DEPARTMENT; MOST OF THEM HAVE HAD SEVERAL YEARS OF EXPERIENCE IN THE DEPARTMENT. MAY THE DEPARTMENT CONTINUE TO PAY THESE EMPLOYEES AT THEIR PRESENT SALARY RATES?

B. OTHER EMPLOYEES ARE IN THE SAME SITUATION AS THOSE REFERRED TOIN A, EXCEPT THAT THEIR SALARIES REPRESENT SALARY STEPS OF GRADES OTHER THAN THOSE IN WHICH THEIR POSITIONS HAVE BEEN ALLOCATED, E.G., CAF-4, $2,000. MAY THE DEPARTMENT ADJUST THE SALARIES OF THESE EMPLOYEES TO THE SALARY STEP OF THEIR RESPECTIVE GRADES NEXT ABOVE THEIR PRESENT SALARY RATE? FOR EXAMPLE, MAY A CAF-4 EMPLOYEE WHOSE PRESENT SALARY IS $2,000 BE ADVANCED TO $2,040?

IF THIS ADJUSTMENT IS NOT PERMISSIBLE, MUST THE EMPLOYEES BE REDUCED TO THE MINIMUM SALARY OF THEIR RESPECTIVE GRADES OR MAY THEY BE REDUCED ONLY TO THE INTERMEDIATE STEP IN THEIR RESPECTIVE GRADES NEXT BELOW THEIR PRESENT SALARY RATES?

FOR THE PURPOSE OF THIS SUBMISSION IT IS ASSUMED THAT THE QUALIFICATIONS OF THE EMPLOYEES REFERRED TO WILL MEET THE REQUIREMENTS OF THE CIVIL SERVICE COMMISSION.

YOUR EARLY DECISION WILL BE APPRECIATED.

THE ANNUAL APPROPRIATION ACT FOR THE DEPARTMENT OF STATE FOR THE FISCAL YEAR 1940, APPROVED JUNE 29, 1939, PUBLIC NO. 156, 53 STAT. 885, CONTAINS THE FOLLOWING APPROPRIATION ITEM:

PROMOTION OF FOREIGN TRADE

PROMOTION OF FOREIGN TRADE.--- FOR THE PURPOSE OF CARRYING INTO EFFECT THE PROVISIONS OF SECTION 4 OF THE ACT ENTITLED " AN ACT TO AMEND THE TARIFF ACT OF 1930," APPROVED JUNE 12, 1934 (48 STAT. 945), AS AMENDED, INCLUDING PERSONAL SERVICES, STENOGRAPHIC REPORTING SERVICES, BY CONTRACT IF DEEMED NECESSARY, WITHOUT REGARD TO SECTION 3709 OF THE REVISED STATUTES (41 U.S.C. 5), CONTINGENT EXPENSES, PRINTING AND BINDING, TRAVELING EXPENSES, AND SUCH OTHER EXPENSES AS THE PRESIDENT MAY DEEM NECESSARY, $43,000.

THE CORRESPONDING ITEM APPEARING IN THE ANNUAL APPROPRIATION ACT FOR THE DEPARTMENT OF STATE FOR THE FISCAL YEAR 1939, APPROVED APRIL 27, 1938, 52 STAT. 249, CONTAINS THE WORDS "WITHOUT REGARD TO CIVIL-SERVICE LAWS AND REGULATIONS OR THE CLASSIFICATION ACT OF 1923, AS AMENDED," FOLLOWING THE WORDS "PERSONAL SERVICES.' THE CONGRESS, BY THE OMISSION FROM THE APPROPRIATION ITEM FOR THE FISCAL YEAR 1940 OF THE WORDS FIRST ABOVE QUOTED IN THIS PARAGRAPH, EVIDENTLY INTENDED THAT THE EMPLOYMENT OF PERSONAL SERVICES UNDER THE APPROPRIATION ITEM IS TO BE IN ACCORDANCE WITH THE CIVIL-SERVICE LAWS AND REGULATIONS AND THE CLASSIFICATION ACT OF 1923, AS AMENDED. IN THAT CONNECTION THE SETTLED RULE HAS BEEN THAT IF A STATUTE AUTHORIZING THE EMPLOYMENT OF PERSONAL SERVICES DOES NOT EXPRESSLY PROVIDE THAT SALARY RATES MAY BE FIXED WITHOUT REGARD TO THE CLASSIFICATION ACT, THE TERMS OF THE CLASSIFICATION ACT REQUIRE ITS APPLICATION. THE RULE IS STATED IN DECISION OF JUNE 24, 1937, 16 COMP. GEN. 1107, 1109, AS FOLLOWS:

* * * ACCORDINGLY, THERE WAS ADOPTED THE GENERAL RULE THAT, IN THE ABSENCE OF STATUTORY EXEMPTION, THE SALARY RATES OF PERSONNEL OF ALL FEDERAL AGENCIES, BOTH IN THE DEPARTMENTAL AND FIELD SERVICES, ARE REQUIRED TO BE FIXED IN ACCORDANCE WITH THE SCHEDULES OR RATES PRESCRIBED IN THE CLASSIFICATION ACT, AS AMENDED. SEE 14 COMP. GEN. 420; ID. 763; DECISION OF NOVEMBER 4, 1936, A-80878; DECISION OF OCTOBER 20, 1936, A- 80867; AND DECISION OF OCTOBER 15, 1936, A-80021. SEE ALSO 17 COMP. GEN. 578.

IT IS UNDERSTOOD FROM YOUR LETTER THAT THE SALARIES OF THE EMPLOYEES PAID UNDER SAID APPROPRIATION ITEM HERETOFORE HAVE NOT BEEN FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED. EFFECTIVE JULY 1, 1939, IT IS REQUIRED FOR THE FIRST TIME THAT THE POSITIONS OF THE EMPLOYEES BE CLASSIFIED AND THEIR INITIAL SALARY RATES FIXED IN ACCORDANCE WITH THE TERMS OF THE CLASSIFICATION ACT, AS AMENDED.

IN DECISION OF MARCH 14, 1936, 16 COMP. GEN. 797, IT WAS HELD (QUOTING FROM THE SYLLABUS):

AN EMPLOYEE PAID FROM EMERGENCY FUNDS AND CLASSIFIED UNDER EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, MAY BE TRANSFERRED TO A POSITION SUBJECT TO THE CLASSIFICATION ACT, WITHOUT REDUCTION IN SALARY WHERE THE RETAINED SALARY IS WITHIN THE GRADE FOR COMPARABLE SERVICE, EVEN THOUGH IN EXCESS OF THE INITIAL STEP WITHIN THE GRADE. 15 COMP. GEN. 102. SEE, ALSO, THE LAST PARAGRAPH OF DECISION OF DECEMBER 2, 1937; 17 COMP. GEN. 460, 462, AS FOLLOWS:

AS THE RATE OF $5,200 PER ANNUM PREVIOUSLY PAID TO MR. QUIGG WAS NOT REQUIRED TO BE, AND WAS NOT, FIXED PURSUANT TO THE CLASSIFICATION ACT ON THE BASIS OF A FINAL APPROVAL OF AN ALLOCATION OF A POSITION BY THE CIVIL SERVICE COMMISSION, THE SAVING CLAUSE IN SECTION 4 OF THE BROOKHART SALARY ACT HAS NO APPLICATION TO THIS CASE. IF APPROVED ADMINISTRATIVELY, PAYMENT OF THE SALARY RATE OF $3,800 PER ANNUM, THE MAXIMUM RATE OF GRADE CAF-9, WILL NOT BE QUESTIONED. 15 COMP. GEN. 102; ID. 797.

THE DECISION OF MAY 10, 1937, 16 COMP. GEN. 994, HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

WHERE THE SALARY AN EMPLOYEE WAS RECEIVING AT THE TIME HIS POSITION WAS CLASSIFIED HAD BEEN REGULARLY FIXED AT A RATE NOT INCONSISTENT WITH THE PROVISIONS OF THE CLASSIFICATION ACT AND HAS BEEN ATTAINED BY REASON OF EXTENDED EFFICIENT SERVICE ON THE SAME JOB, AND THE RATE SO FIXED IS ONE OF THE RATES PRESCRIBED FOR THE GRADE TO WHICH THE POSITION HAS BEEN ALLOCATED, REDUCTION IN SALARY TO THE MINIMUM OF THE GRADE IS NOT REQUIRED UPON APPOINTMENT TO THE NEWLY CLASSIFIED POSITION.

THE DECISION OF JUNE 9, 1938, 17 COMP. GEN. 1061, HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

AN EMPLOYEE HOLDING THE POSITION OF SENIOR STENOGRAPHER, CAF-3, $1,980 PER ANNUM, IN THE FIELD SERVICE OF ONE GOVERNMENT DEPARTMENT MAY BE TRANSFERRED TO THE DEPARTMENTAL SERVICE OF ANOTHER DEPARTMENT AT THE SAME RATE OF PAY IN A CORRESPONDING GRADE, OR AS A JUNIOR STENOGRAPHER, CAF-2. $1,800 PER ANNUM, THE MAXIMUM OF THE LOWER GRADE, OR AS A CLERK- STENOGRAPHER, CAF-4, $1,980 PER ANNUM, BUT IF THE TRANSFERS IN ANY INSTANCE AT THE RATE PROPOSED WOULD CAUSE THE AVERAGE OF THE GRADE TO WHICH THE EMPLOYEE IS TRANSFERRED TO BE EXCEEDED, OR, IF THE AVERAGE THEREIN IS ALREADY EXCEEDED, WOULD CAUSE IT TO BE EXCEEDED TO A GREATER EXTENT, THE TRANSFER AT THE RATE PROPOSED IS NOT AUTHORIZED. COMPARE 18 COMP. GEN. 223.

ACCORDINGLY, IN THE LIGHT OF THE FOREGOING DECISIONS, THE RULES FOR FIXING THE INITIAL SALARY RATES UNDER THE CLASSIFICATION ACT, AS AMENDED, OF EMPLOYEES ALREADY OCCUPYING UNCLASSIFIED POSITIONS BROUGHT WITHIN THE SCOPE OF THE CLASSIFICATION ACT FOR THE FIRST TIME, MAY BE RESTATED AS FOLLOWS:

(A) WHERE THE SALARY RATE OF THE UNCLASSIFIED POSITION IS WITHIN THE RANGE OF THE SALARIES PRESCRIBED BY THE CLASSIFICATION ACT FOR THAT GRADE BUT DOES NOT FALL WITHIN ONE OF THE STATUTORY RATES THEREOF, THERE IS NOT AUTHORITY TO INCREASE THE RATE PAID IN THE UNCLASSIFIED POSITION BUT THE INITIAL RATE MAY BE THE NEXT LOWER CLASSIFICATION ACT SALARY RATE IN THE GRADE.

(B) WHERE THE SALARY RATE RECEIVED IN THE UNCLASSIFIED POSITION IS MORE THAN THE MAXIMUM RATE OF THE GRADE IN WHICH THE POSITION HAS BEEN ALLOCATED, THE INITIAL SALARY RATE MAY BE THE MAXIMUM SALARY RATE OF THE GRADE IN WHICH THE POSITION HAS BEEN ALLOCATED.

(C) WHERE THE SALARY RATE RECEIVED IN THE UNCLASSIFIED POSITION IS LESS THAN THE MINIMUM SALARY RATE OF THE GRADE IN WHICH THE POSITION HAS BEEN ALLOCATED, THE INITIAL SALARY RATE UNDER THE CLASSIFICATION ACT MUST BE THE MINIMUM SALARY RATE OF THE GRADE IN WHICH THE POSITION IS ALLOCATED.

ACCORDINGLY, THE SPECIFIC QUESTIONS PRESENTED ARE ANSWERED AS FOLLOWS:

QUESTION (1) IS ANSWERED IN THE NEGATIVE. THE INITIAL SALARY RATE OF THE EMPLOYEE MAY NOT EXCEED $4,600 PER ANNUM. SEE RULE (A), SUPRA.

QUESTION 2 (A) IS ANSWERED IN THE AFFIRMATIVE. COMPARE RULE (A), SUPRA.

QUESTION 2 (B) IS ANSWERED IN THE NEGATIVE. THE INITIAL SALARY RATE OF THE EMPLOYEE WHOSE POSITION HAS BEEN ALLOCATED IN CAF-4, AND WHO RECEIVED $2,000 PER ANNUM IN THE UNCLASSIFIED POSITION, MAY NOT EXCEED $1,980 PER ANNUM, THE NEXT LOWER CLASSIFICATION ACT SALARY RATE IN THE GRADE. SEE RULE (B), SUPRA. ..END :