B-5056, AUGUST 7, 1939, 19 COMP. GEN. 164

B-5056: Aug 7, 1939

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1939: I HAVE YOUR LETTER OF JULY 21. THESE TRANSFERS WERE MADE ON JULY 1. THE CONSOLIDATION OF THE FORMER FOREIGN COMMERCE AND FOREIGN AGRICULTURAL SERVICES WITH THE FOREIGN SERVICE OF THE UNITED STATES IS BEING PROCEEDED WITH AS RAPIDLY AS LEGAL. HAVE BEEN APPOINTED BY THE PRESIDENT. THESE APPOINTMENTS TO THE FOREIGN SERVICE OF THE UNITED STATES WERE MADE EFFECTIVE AS OF JULY 1. EXCEPT THAT THIS REQUIREMENT SHALL NOT OPERATE AFTER THE END OF THE FISCAL YEAR DURING WHICH THE TRANSFER IS MADE TO PREVENT THE ADJUSTMENT OF CLASSIFICATION OR COMPENSATION TO CONFORM TO THE DUTIES TO WHICH SUCH TRANSFERRED PERSONNEL MAY BE ASSIGNED.'. ALL OF THEM WHO HAVE BEEN APPOINTED TO CLASSIFIED GRADES AND WHO ARE STILL IN THE FOREIGN SERVICE ON JULY 1.

B-5056, AUGUST 7, 1939, 19 COMP. GEN. 164

SALARY CHANGES AND RECLASSIFICATION - TRANSFERRED PERSONNEL - REORGANIZATION ACT PROHIBITIONS - AUTOMATIC PROMOTIONS AS SECTION 10 (B) OF THE REORGANIZATION ACT OF APRIL 3, 1939, 53 STAT. 563, PROHIBITS NOT ONLY A CHANGE IN RATES OF COMPENSATION, BUT ALSO IN CLASSIFICATION THE PROVISIONS OF REORGANIZATION PLANS NOS. I AND II, FOREIGN COMMERCE OFFICERS AND FOREIGN AGRICULTURAL OFFICERS TRANSFERRED, EFFECTIVE JULY 1, 1939, TO THE FOREIGN SERVICE OF THE STATE DEPARTMENT, AND APPOINTED FOREIGN SERVICE OFFICERS OF CLASSES AND AT SALARIES CORRESPONDING TO THE COMPENSATION THEY RECEIVED PRIOR TO THE TRANSFER, MAY NOT BE CONSIDERED AS HAVING BEEN RECLASSIFIED EFFECTIVE JULY 1, 1939, FOR PURPOSES OF COUNTING SERVICE DURING THE FISCAL YEAR 1940 FOR AUTOMATIC PROMOTION AFTER COMPLETION OF 1 YEAR'S SERVICE UNDER THE PROVISIONS OF SECTION 33 OF THE STATE DEPARTMENT FOREIGN SERVICE ACT OF FEBRUARY 23, 1931, AS AMENDED, ANY RECLASSIFICATION OF SUCH EMPLOYEES, IRRESPECTIVE OF WHEN MADE, BEING EFFECTIVE UNDER THE PROHIBITION OF THE REORGANIZATION ACT, ONLY ON JULY 1, 1940. 13 COMP. GEN. 481, DISTINGUISHED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF STATE, AUGUST 7, 1939:

I HAVE YOUR LETTER OF JULY 21, 1939, AS FOLLOWS:

REORGANIZATION PLAN NO. II, SUBMITTED BY THE PRESIDENT TO THE CONGRESS ON MAY 9, 1939, UNDER THE PROVISIONS OF THE REORGANIZATION ACT OF 1939, APPROVED APRIL 3, 1939, PROVIDED FOR THE TRANSFER OF THE FOREIGN COMMERCE SERVICE OF THE UNITED STATES AND ITS FUNCTIONS IN THE BUREAU OF FOREIGN AND DOMESTIC COMMERCE AND OF THE FOREIGN AGRICULTURAL SERVICE OF THE UNITED STATES AND ITS FUNCTIONS IN THE DEPARTMENT OF AGRICULTURE TO THE DEPARTMENT OF STATE AND THEIR CONSOLIDATION WITH THE FOREIGN SERVICE OF THE UNITED STATES.

THESE TRANSFERS WERE MADE ON JULY 1, 1939, AND THE CONSOLIDATION OF THE FORMER FOREIGN COMMERCE AND FOREIGN AGRICULTURAL SERVICES WITH THE FOREIGN SERVICE OF THE UNITED STATES IS BEING PROCEEDED WITH AS RAPIDLY AS LEGAL, BUDGETARY, AND ADMINISTRATIVE CONSIDERATIONS PERMIT. AS A MAJOR STEP IN THAT DIRECTION FOREIGN COMMERCE OFFICERS AND FOREIGN AGRICULTURAL OFFICERS IN THOSE SERVICES ON JUNE 30, 1939, HAVE BEEN APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO BE FOREIGN SERVICE OFFICERS OF CLASSES AND AT SALARIES CORRESPONDING TO THE COMPENSATION THEY RECEIVED PRIOR TO THE TRANSFER. THESE APPOINTMENTS TO THE FOREIGN SERVICE OF THE UNITED STATES WERE MADE EFFECTIVE AS OF JULY 1, 1939, AND THE OFFICERS CONCERNED THEREFORE BECAME ENTITLED TO THE RIGHTS AND PRIVILEGES OF FOREIGN SERVICE OFFICERS AS OF THAT DATE.

SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939 PROVIDES:

"ANY TRANSFER OF PERSONNEL UNDER THIS TITLE SHALL BE WITHOUT CHANGE IN CLASSIFICATION OR COMPENSATION, EXCEPT THAT THIS REQUIREMENT SHALL NOT OPERATE AFTER THE END OF THE FISCAL YEAR DURING WHICH THE TRANSFER IS MADE TO PREVENT THE ADJUSTMENT OF CLASSIFICATION OR COMPENSATION TO CONFORM TO THE DUTIES TO WHICH SUCH TRANSFERRED PERSONNEL MAY BE ASSIGNED.'

SINCE THIS PROVISION EFFECTIVELY PREVENTS THE PROMOTION OF ANY OF THE OFFICERS HERE UNDER CONSIDERATION DURING THE ENTIRE FISCAL YEAR 1940, ALL OF THEM WHO HAVE BEEN APPOINTED TO CLASSIFIED GRADES AND WHO ARE STILL IN THE FOREIGN SERVICE ON JULY 1, 1941, WHOSE RATINGS ARE SATISFACTORY OR BETTER, WILL BE ENTITLED TO AUTOMATIC PROMOTIONS ON THAT DATE UNDER THE PROVISIONS OF SECTION 33 OF THE ACT OF FEBRUARY 23, 1931, AS AMENDED, THE PERTINENT PORTION OF WHICH READS:

"NOTWITHSTANDING THE PROVISIONS OF SECTION 10 OF THIS ACT ALL FOREIGN SERVICE OFFICERS HAVING A RATING OF SATISFACTORY OR BETTER WHO SHALL HAVE BEEN IN CLASSES 5, 6, 7, AND 8 FOR A CONTINUOUS PERIOD OF NINE MONTHS OR MORE, SHALL, ON THE FIRST DAY OF EACH FISCAL YEAR RECEIVE AN INCREASE IN SALARY OF $100, EXCEPT THAT NO OFFICER SHALL RECEIVE A SALARY ABOVE THE MAXIMUM FOR HIS CLASS AND ALL SUCH OFFICERS IN CLASSES 1, 2, 3, AND 4 SHALL IN THE SAME CIRCUMSTANCES RECEIVE AN INCREASE OF $200. * * *"

IT IS THE VIEW OF THIS DEPARTMENT THAT THE BAR TO INCREASES IN COMPENSATION FOR THESE OFFICERS DURING THE FISCAL YEAR IN WHICH THEY WERE TRANSFERRED TO THE DEPARTMENT OF STATE (1939), RAISED BY SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939, DOES NOT OPERATE TO DEPRIVE THEM OF SUCH AUTOMATIC PROMOTIONS AS THEY MAY BE ENTITLED TO ON THE FIRST DAY OF THE SUBSEQUENT FISCAL YEAR (1940). IN OTHER WORDS, THE FACT THAT THEY MAY NOT BE PROMOTED DURING 1939 DOES NOT DEPRIVE THEM OF CREDIT TOWARD PROMOTION IN 1940 FOR SATISFACTORY SERVICE IN 1939.

AS THE DEPARTMENT IS NOW PREPARING ITS BUDGET ESTIMATES FOR 1940 ON THE FOREGOING BASIS A STATEMENT OF YOUR CONCURRENCE IN ITS INTERPRETATION WILL BE APPRECIATED.

WHILE I FIND NO PREVIOUS DECISIONS OF YOUR OFFICE BEARING DIRECTLY ON THIS QUESTION, THE SITUATION CONSIDERED IN YOUR PREDECESSOR'S DECISION A- 55877, JUNE 29, 1934 (13 COMP. GEN. 481), APPEARS TO BE ANALOGOUS.

IT IS ASSUMED THE FISCAL YEARS REFERRED TO AS 1939 AND 1940 IN THE ANTEPENULTIMATE PARAGRAPH OF YOUR LETTER ARE INTENDED AS REFERRING TO THE FISCAL YEARS 1940 AND 1941, RESPECTIVELY, AND THE MATTER WILL BE CONSIDERED ON THAT BASIS. ALSO, IN THE PENULTIMATE PARAGRAPH THE REFERENCE TO BUDGET ESTIMATES APPARENTLY IS WITH RESPECT TO THE FISCAL YEAR 1941 RATHER THAN WITH RESPECT TO THE FISCAL YEAR 1940 AS STATED.

SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939, APPROVED APRIL 3, 1939, PUBLIC, NO. 19, 53 STAT. 563, QUOTED IN YOUR LETTER, PROHIBITS NOT ONLY A CHANGE IN THE RATES OF COMPENSATION BUT ALSO A CHANGE IN THE CLASSIFICATION, DURING THE FISCAL YEAR 1940, OF POSITIONS OF EMPLOYEES TRANSFERRED FROM ONE AGENCY TO ANOTHER UNDER THE PROVISIONS OF REORGANIZATION PLANS NOS. I AND II. FOR THAT REASON, REGARDLESS OF ANY ADMINISTRATIVE ACTION WHICH MAY BE REQUIRED, AS A RESULT OF THE REORGANIZATION PLAN TO WHICH YOU REFER, TO PLACE THE PERSONNEL IN QUESTION IN A PROPER STATUS UNDER THE DEPARTMENT OF STATE, IT MUST BE HELD THAT IF SUCH ACTION INVOLVES A RECLASSIFICATION OF THE EMPLOYEES SUCH RECLASSIFICATION, IRRESPECTIVE OF WHEN MADE, MUST BE CONSIDERED AS NOT BECOMING EFFECTIVE UNTIL JULY 1, 1940. THAT BEING THE CASE, THE PROVISIONS OF SECTION 33 OF THE ACT OF FEBRUARY 23, 1931, AS AMENDED, QUOTED IN YOUR LETTER, COULD HAVE NO APPLICATION TO THE PERSONNEL AFFECTED BY THE REORGANIZATION PLAN FOR ANY SERVICE PERFORMED DURING THE FISCAL YEAR 1940.

YOU REFER TO A DECISION OF THE FORMER COMPTROLLER GENERAL OF THE UNITED STATES DATED JUNE 29, 1934, 13 COMP. GEN. 481, INVOLVING APPLICATION OF THE PROVISIONS OF THE ECONOMY ACT SUSPENDING AUTOMATIC PROMOTIONS DURING THE PERIOD JULY 1, 1932, TO JUNE 30, 1934. BUT THE STATUTE HERE INVOLVED IS NOT IN THE SAME TERMS AS THE STATUTES INVOLVED IN THAT DECISION. EVEN IF THE TERMS OF SECTION 10 (B) OF THE REORGANIZATION ACT MIGHT BE REGARDED AS SOMEWHAT ANALOGOUS TO THE TERMS OF SECTION 201 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 403, SUSPENDING AUTOMATIC PROMOTIONS PRIOR TO THE AMENDATORY ACTS RESTORING THE RIGHT TO AUTOMATIC PROMOTIONS, IT IS FOR NOTING THAT IT WAS NOT UNTIL THE CONGRESS BY THE ACT OF JUNE 27, 1934, SPECIFICALLY SO PROVIDED, THAT THE FORMER COMPTROLLER GENERAL AUTHORIZED THE COUNTING OF SERVICE DURING THE PERIOD AUTOMATIC PROMOTIONS WERE SUSPENDED IN FIXING THE RATES OF COMPENSATION EFFECTIVE AFTER THE INVOLVING FOREIGN SERVICE OFFICERS. THERE IS NOTHING IN THE DECISIONS OF THIS OFFICE APPLYING THE ECONOMY ACT WHICH COULD BE REGARDED AS SUPPORTING THE VIEW THAT THE PERSONNEL OF THE FORMER FOREIGN COMMERCE SERVICE AND FOREIGN AGRICULTURAL SERVICE TRANSFERRED TO THE FOREIGN SERVICE OF THE UNITED STATES UNDER SECTION 402 OF REORGANIZATION PLAN NO. II MAY BE CLASSIFIED AS FOREIGN SERVICE OFFICERS FOR PAY PURPOSES DURING THE FISCAL YEAR 1940.