B-50887, JULY 14, 1945, 25 COMP. GEN. 55

B-50887: Jul 14, 1945

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IS REQUIRED BY LAW DOES NOT SERVE TO INVALIDATE HIS APPOINTMENT THEREFORE MADE BY COMPETENT AUTHORITY AND. 1945: I HAVE YOUR LETTER OF JULY 4. NOW HAVE A SALARY RANGE FROM $5. ASSIGNED OR DETAILED TO A POSITION THE COMPENSATION IN RESPECT OF WHICH IS AT A RATE IN EXCESS OF $5. THE DIRECTOR OF SELECTIVE SERVICE IS AUTHORIZED TO DELEGATE ANY AUTHORITY DELEGATED TO HIM BY THE PRESIDENT. DEPUTIES WHOSE SALARY IS $5. " THE PRESIDENT IS AUTHORIZED TO FIX SALARY RATES BY REGULATIONS. THE DIRECTOR OF SELECTIVE SERVICE HAS APPOINTED CERTAIN PERSONS IN NATIONAL HEADQUARTERS TO POSITIONS WHICH HAVE BEEN ALLOCATED BY THE UNITED STATES CIVIL SERVICE COMMISSION TO CLASSIFICATION GRADES CAF-12 OR P 5.

B-50887, JULY 14, 1945, 25 COMP. GEN. 55

COMPENSATION INCREASES UNDER FEDERAL EMPLOYEES PAY ACT OF 1945 TO RATES REQUIRING APPOINTMENT BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE AN INCREASE IN THE COMPENSATION OF A SELECTIVE SERVICE EMPLOYEE UNDER THE FEDERAL EMPLOYEES PAY ACT OF 1945 (OCCASIONED BY EITHER A WITHIN GRADE PROMOTION OR A BASIC RATE INCREASE) WHICH WOULD CAUSE HIS SALARY TO EXCEED THE RATE ($5,000 PER ANNUM) ABOVE WHICH APPOINTMENT BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, IS REQUIRED BY LAW DOES NOT SERVE TO INVALIDATE HIS APPOINTMENT THEREFORE MADE BY COMPETENT AUTHORITY AND, THEREFORE, TO REQUIRE A NEW APPOINTMENT BY THE PRESIDENT, ETC., AS A CONDITION TO RECEIVING THE NEW RATE, SO LONG AS HE CONTINUES TO HOLD THE SAME POSITION. 17 COMP. GEN. 29, ID. 249 AND 22 ID. 923, DISTINGUISHED.

ACTING COMPTROLLER GENERAL YATES TO THE DIRECTOR OF SELECTIVE SERVICE, JULY 14, 1945:

I HAVE YOUR LETTER OF JULY 4, 1945 (FILE 2-203-1), AS FOLLOWS:

PUBLIC LAW 106, 79TH CONGRESS, APPROVED JUNE 30, 1945, PROVIDES FOR INCREASES IN THE RATES OF BASIC COMPENSATION FOR EMPLOYEES OCCUPYING POSITIONS SUBJECT TO THE SALARY SCHEDULES OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.

CLASSIFICATION GRADES CAF-12 AND P-5, WITH A FORMER SALARY RANGE FROM $4,600 PER ANNUM TO $5,400 PER ANNUM, NOW HAVE A SALARY RANGE FROM $5,180 PER ANNUM TO $6,020 PER ANNUM.

SECTION 10 OF THE SELECTIVE TRAINING AND SERVICE ACT OF 1940, AS AMENDED, AUTHORIZES THE PRESIDENT:

1. TO PRESCRIBE THE NECESSARY RULES AND REGULATIONS TO CARRY OUT THE PROVISIONS OF THE ACT,

2. TO APPOINT AND FIX THE COMPENSATION OF OFFICERS, AGENTS, AND EMPLOYEES DEEMED NECESSARY TO CARRY OUT THE PROVISIONS OF THE ACT, AND PROVIDES "THAT ANY PERSON SO APPOINTED, ASSIGNED OR DETAILED TO A POSITION THE COMPENSATION IN RESPECT OF WHICH IS AT A RATE IN EXCESS OF $5,000 PER ANNUM SHALL BE APPOINTED, ASSIGNED OR DETAILED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE,"

3. TO DELEGATE TO THE DIRECTOR OF SELECTIVE SERVICE ONLY, ANY AUTHORITY VESTED IN HIM UNDER THE ACT. THE DIRECTOR OF SELECTIVE SERVICE IS AUTHORIZED TO DELEGATE ANY AUTHORITY DELEGATED TO HIM BY THE PRESIDENT, OR VESTED IN HIM BY THE ACT, TO SUCH OFFICERS, AGENTS, OR PERSONS AS HE MAY DESIGNATE OR APPOINT FOR SUCH PURPOSE.

UNDER THE AUTHORITY VESTED IN HIM BY THE SELECTIVE TRAINING AND SERVICE ACT, AS AMENDED, THE PRESIDENT HAS AUTHORIZED AND DIRECTED THE DIRECTOR OF SELECTIVE SERVICE SYSTEM ( SECTION 603.1 OF THE SELECTIVE SERVICE REGULATIONS):

"/4) TO APPOINT SUCH OFFICERS, EMPLOYEES, ASSISTANTS, AND DEPUTIES WHOSE SALARY IS $5,000 PER ANNUM OR LESS, AS SHALL BE NECESSARY TO THE EFFICIENT ADMINISTRATION OF THE SELECTIVE SERVICE W.' AND

"/5) TO DELEGATE ANY OF HIS FUNCTIONS AND POWERS TO SUCH OFFICERS, AGENTS, OR PERSONS AS HE MAY DESIGNATE.'

SECTION 604.11 OF THE SELECTIVE SERVICE REGULATIONS PROVIDES, IN PART, THAT THE CLASSIFICATION GRADES AND SALARY RATES PRESCRIBED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, SHALL APPLY TO ALL PERSONS RECEIVING COMPENSATION FROM THE UNITED STATES, EXCEPT THE FOLLOWING:

1. EMPLOYEES OF LOCAL BOARDS

2. EMPLOYEES OF LOCAL BOARD GROUPS

3. PERSONS APPOINTED BY THE PRESIDENT

4. PERSONS APPOINTED AS STATE DIRECTORS OF SELECTIVE SERVICE

IN THIS CONNECTION YOUR DECISION DATED OCTOBER 20, 1940 (20 COMP. GEN. 211) HELD, QUOTING FROM THE SYLLABUS:

"WHERE A STATUTE HAS VESTED IN THE PRESIDENT THE AUTHORITY "TO PRESCRIBE THE NECESSARY RULES AND REGULATIONS TO CARRY OUT THE PROVISIONS OF THIS ACT" AND "TO APPOINT AND FIX THE COMPENSATION OF SUCH OTHER OFFICERS, AGENTS, AND EMPLOYEES AS HE MAY DEEM NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT," THE PRESIDENT IS AUTHORIZED TO FIX SALARY RATES BY REGULATIONS, OR TO PRESCRIBE BY REGULATION THE PROCEDURE FOR FIXING SUCH SALARY RATES, EITHER IN ACCORDANCE WITH, OR WITHOUT REGARD TO, PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.'

UNDER THE AUTHORITY DELEGATED BY THE PRESIDENT, THE DIRECTOR OF SELECTIVE SERVICE HAS APPOINTED CERTAIN PERSONS IN NATIONAL HEADQUARTERS TO POSITIONS WHICH HAVE BEEN ALLOCATED BY THE UNITED STATES CIVIL SERVICE COMMISSION TO CLASSIFICATION GRADES CAF-12 OR P 5. THESE PERSONS ARE NOW BEING COMPENSATED AT BASIC RATES OF FROM $4,600 TO $5,000 PER ANNUM. THE DIRECTOR OF SELECTIVE SERVICE SYSTEM TO APPOINT CERTAIN PERSONS TO POSITIONS WHICH HAVE BEEN ALLOCATED ADMINISTRATIVELY TO CLASSIFICATION GRADES CAF-12 OR P-5. SOME OF THESE POSITIONS ARE FULL-TIME, OTHERS EITHER PART-TIME OR INTERMITTENT, AND THE PERSONS OCCUPYING THESE POSITIONS ARE PAID BASIC COMPENSATION AT THE RATE OF $4,600 PER ANNUM.

THE FEDERAL EMPLOYEES PAY ACT OF 1945 INCREASES THE RATES OF BASIC COMPENSATION FOR THESE POSITIONS TO A RATE IN EXCESS OF $5,000 PER ANNUM. AS THESE PERSONS HAVE ALREADY BEEN APPOINTED TO THE POSITIONS THEY OCCUPY AND THE INCREASES IN BASIC COMPENSATION ARE GRANTED BY OPERATION OF LAW, IT IS NOT FELT THAT YOUR DECISION TO THE CHAIRMAN OF THE WAR MANPOWER COMMISSION DATED MARCH 29, 1943 (22 COMP. GEN. 923) IS APPLICABLE. THAT DECISION THERE WAS FOR CONSIDERATION AN ITEM IN AN APPROPRIATION ACT WHICH PROHIBITED THE PAYMENT OF SALARY AT A RATE OF $4,500 PER ANNUM OR MORE TO ANY PERSON UNLESS SUCH PERSON WAS APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. THE SELECTIVE SERVICE LAW PROVIDES THAT ANY PERSON APPOINTED TO A POSITION THE COMPENSATION IN RESPECT OF WHICH IS AT A RATE IN EXCESS OF $5,000 PER ANNUM SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE. THE PERSONS UNDER CONSIDERATION HERE ALREADY HAVE BEEN APPOINTED TO THEIR RESPECTIVE POSITIONS.

AS THE PROPRIETY AND LEGALITY OF PAYING THESE OFFICERS AND EMPLOYEES AT THE INCREASED RATES, WITHOUT PRESIDENTIAL APPOINTMENTS, MAY BE QUESTIONED IN THE AUDIT OF THE PAYROLLS, YOUR DECISION ON THE FOLLOWING QUESTIONS IS REQUESTED:

1. ARE PERSONS NOW HOLDING POSITIONS IN THE SELECTIVE SERVICE SYSTEM, WHO HAVE BEEN APPOINTED TO THEIR RESPECTIVE POSITIONS BY THE DIRECTOR OF SELECTIVE SERVICE OR BY AN AUTHORIZED FIELD APPOINTING OFFICIAL, WHO OCCUPY POSITIONS SUBJECT TO THE SALARY SCHEDULES OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, ENTITLED TO THE INCREASE IN BASIC COMPENSATION GRANTED BY SECTION 405 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, IF SUCH INCREASES WILL BEING (BRING) THEIR BASIC COMPENSATION UP TO A RATE IN EXCESS OF $5,000 PER ANNUM, WITHOUT A NEW APPOINTMENT MADE BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE?

2. MAY EMPLOYEES OF THE SELECTIVE SERVICE SYSTEM WHO OCCUPY POSITIONS SUBJECT TO THE SALARY SCHEDULES OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND WHO HAVE BEEN APPOINTED TO THEIR RESPECTIVE POSITIONS BY THE DIRECTOR OF SELECTIVE SERVICE, OR BY AN AUTHORIZED FIELD APPOINTING OFFICIAL, BE GRANTED WITHIN-GRADE SALARY ADVANCEMENTS UNDER SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, IF SUCH SALARY ADVANCEMENT WOULD CAUSE THE RATE OF BASIC COMPENSATION TO BE INCREASED TO A RATE IN EXCESS OF $5,000 PER ANNUM, WITHOUT A NEW APPOINTMENT MADE BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE?

3. IF YOUR ANSWER TO QUESTION 1, ABOVE, IS IN THE NEGATIVE, AT WHAT RATE OF BASIC COMPENSATION SHOULD THESE EMPLOYEES BE PAID, EFFECTIVE JULY 1, 1945? I HAVE IN MIND THE DECISIONS OF YOUR OFFICE HOLDING THAT THE ONLY RATE OF COMPENSATION THAT LEGALLY MAY BE PAID IS THE RATE OF COMPENSATION ESTABLISHED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, FOR THE GRADE IN WHICH THE POSITION HAS BEEN ALLOCATED.

THERE IS ATTACHED A COPY OF A MEMORANDUM ON THE SUBJECT PREPARED BY THE GENERAL COUNSEL OF THE SELECTIVE SERVICE SYSTEM.

UNLIKE THE PROHIBITION CONTAINED IN APPROPRIATION ACTS AGAINST THE USE OF APPROPRIATED MONEYS FOR PAYMENT OF SALARIES IN EXCESS OF A SPECIFIED RATE UNLESS THE OFFICER OR EMPLOYEE RECEIVING THE SALARY HAS BEEN APPOINTED BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE--- CONSIDERED IN DECISION OF MARCH 29, 1943, 22 COMP. GEN. 923, CITED IN YOUR LETTER (SEE ALSO 17 COMP. GEN. 29, 249/--- THE PROHIBITION CONTAINED IN THE SELECTIVE TRAINING AND SERVICE ACT OF SEPTEMBER 16, 1940, 54 STAT. 893, 894, QUOTED IN YOUR LETTER, RELATES NOT TO THE PAYMENT OF SALARY BUT SPECIFICALLY TO THE APPOINTMENT, ASSIGNMENT OR DETAIL OF THE PERSONNEL OF THE SELECTIVE SERVICE SYSTEM "TO A POSITION THE COMPENSATION IN RESPECT OF WHICH IS AT A RATE IN EXCESS OF $5,000 PER ANNUM.' HENCE, IT IS FOR CONSIDERATION IN DETERMINING THE LEGALITY OF AN APPOINTMENT AT THE TIME MADE RATHER THAN IN DETERMINING THE AMOUNT OF SALARY WHICH MAY BE PAID UNDER AN APPOINTMENT LEGALLY MADE.

THERE IS A DISTINCTION BETWEEN A STATUTORY RESTRICTION UPON ORIGINAL APPOINTMENTS WHICH WOULD BE INVALID UNLESS THE STATUTORY CONDITIONS ARE MET, AND STATUTORY RESTRICTIONS IN APPROPRIATION ACTS AGAINST THE USE THEREOF FOR THE PAYMENT OF SALARY DURING THE CONTINUED HOLDING OF A POSITION THE APPOINTMENT TO WHICH WAS VALID IN ITS INCEPTION, UNLESS CERTAIN CONDITIONS ARE MET. THE PRESENT MATTER RELATES TO THE FORMER CLASS OF STATUTORY RESTRICTION AND THE DECISIONS CITED ABOVE RELATE TO THE LATTER CLASS OF STATUTORY RESTRICTIONS.

INCREASES IN THE BASIC COMPENSATION OF A POSITION BY OPERATION OF LAW, SUCH AS THOSE REQUIRED BY THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 (SECTIONS 402 AND 405 (A), 59 STAT. 299, 300), FROM A RATE OF $5,000 PER ANNUM OR LESS TO A RATE IN EXCESS OF $5,000 PER ANNUM DO NOT INVALIDATE THE APPOINTMENTS THERETOFORE MADE TO SUCH POSITIONS BY COMPETENT AUTHORITY AND, CONSEQUENTLY, THERE IS NO REQUIREMENT FOR NEW APPOINTMENTS OF SUCH AFFECTED PERSONNEL BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE SO LONG AS THE INCUMBENTS CONTINUE TO HOLD THE SAME POSITIONS THEY HELD JUNE 30, 1945.

IN THE LIGHT OF THE FOREGOING QUESTIONS 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE, THUS MAKING IT UNNECESSARY TO ANSWER QUESTION 3.