B-50909, JULY 14, 1945, 25 COMP. GEN. 58

B-50909, JULY 14, 1945, 25 COMP. GEN. 58

FEDERAL EMPLOYEES PAY ACT OF 1945 - EMPLOYEES WITH SALARY RATES FIXED ADMINISTRATIVELY IN ACCORDANCE WITH CLASSIFICATION ACT WHERE AN AGENCY HAS ELECTED UNDER STATUTORY AUTHORITY TO FIX THE SALARY RATES OF ITS EMPLOYEES IN ACCORDANCE WITH THE CLASSIFICATION ACT AND HAS ADOPTED ALL THE PROCEDURES THEREUNDER INCLUDING THE JURISDICTION OF THE CIVIL SERVICE COMMISSION RESPECTING ALLOCATIONS AND REALLOCATIONS, THE EMPLOYEES OF SUCH AGENCY ARE TO BE REGARDED AS "SUBJECT TO" THE CLASSIFICATION ACT AS THAT TERM IS USED IN THE SEVERAL PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, THE SAME AS EMPLOYEES WHOSE SALARY RATES ARE REQUIRED BY STATUTE TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT. EMPLOYEES OF THE OFFICE OF THE REGISTER OF WILLS FOR THE DISTRICT OF COLUMBIA WHOSE COMPENSATION IS FIXED ADMINISTRATIVELY IN ACCORDANCE WITH THE CLASSIFICATION ACT ARE TO BE REGARDED AS EMPLOYEES IN THE JUDICIAL BRANCH WHO OCCUPY POSITIONS "SUBJECT TO THE CLASSIFICATION ACT * * * " WITHIN THE MEANING OF THE FEDERAL EMPLOYEES PAY ACT OF 1945. 22 COMP. GEN. 685, DISTINGUISHED.

ACTING COMPTROLLER GENERAL YATES TO THE REGISTER OF WILLS AND CLERK OF THE PROBATE COURT, DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA, JULY 14, 1945:

I HAVE YOUR LETTER OF JULY 7, AS FOLLOWS.

I RESPECTFULLY SUBMIT FOR YOUR DECISION THESE QUESTIONS. FIRST--- ARE THE OFFICERS AND EMPLOYEES OF THE OFFICE OF THE REGISTER OF WILLS TO BE CONSIDERED TO BE WITHIN SECTION 101 (C) OF THE FEDERAL EMPLOYEES ACT OF 1945, APPROVED JUNE 30, 1945; AND IF NOT, THEN SECOND, ARE THEY TO BE CONSIDERED TO BE WITHIN SECTION 101 (A) (2) AND SECTION 101 (B) OF SAID ACT; AND IF THIS SECOND QUESTION BE ANSWERED IN THE AFFIRMATIVE, THEN, THIRD, ARE THEY TO BE CONSIDERED TO BE WITHIN SECTION 603 (A) OF SAID ACT; AND IF THE SECOND QUESTION BE ANSWERED IN THE AFFIRMATIVE THEN, ALSO, FOURTH, MAY THE REGISTER OF WILLS UNDER SECTION 604 (A) OF SAID ACT REQUIRE THE EMPLOYEES OF THIS OFFICE TO WORK IN EXCESS OF THE HOURS FIXED BY THIS COURT BY ITS GENERAL TERM ORDER DATED JUNE 21, 1941, (OR ANY AMENDMENT THEREOF) AND THEREUPON PAY SAID EMPLOYEES FOR SO MUCH ADDITIONAL WORK AS MAY EXCEED 40 HOURS PER WEEK, AT THE OVERTIME RATES PROVIDED IN TITLE II OF SAID ACT.

I RESPECTFULLY SUBMIT THE FOLLOWING FOR YOUR CONSIDERATION. THE FEDERAL EMPLOYEES PAY ACT OF 1945, APPROVED JUNE 30, 1945, PROVIDED IN TITLE I, SEC. 101 (A) SUBJECT TO EXEMPTIONS NOT HERE PERTINENT, THAT TITLES II AND III OF THE ACT SHALL APPLY "/1) TO ALL CIVILIAN OFFICERS AND EMPLOYEES * * * IN OR UNDER THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, AND (2) TO THOSE OFFICERS AND EMPLOYEES OF THE JUDICIAL BRANCH OF THE GOVERNMENT * * * WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923 AS AMENDED.' SECTION 101 (B) PROVIDES THAT TITLE IV OF THE ACT "SHALL APPLY TO OFFICERS AND EMPLOYEES WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED,"

IN EXPLAINING SO MUCH OF THE ACT, THE HOUSE COMMITTEE, REPORT NO. 726, 79TH CONGRESS, ST SESSION, AT PAGE 9 SAYS. "TITLES II AND III ALSO COVER ABOUT 11,000 EMPLOYEES NOT IN THE EXECUTIVE BRANCH. AMONG THESE ARE EMPLOYEES OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA AND THOSE OF * * * THE ADMINISTRATIVE OFFICE OF UNITED STATES COURTS, AND THE MUNICIPAL COURT AND THE MUNICIPAL COURT OF APPEALS OF THE DISTRICT OF COLUMBIA, WHO ARE SUBJECT TO THE CLASSIFICATION ACT, TITLE IV, WHICH CONSISTS OF AMENDMENTS TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, APPLIES ONLY TO POSITIONS AND EMPLOYEES SUBJECT TO THAT ACT.'

BY CONTRAST, SECTION 101 (C) OF THE ACT OF JUNE 30, 1945, PROVIDES THAT " TITLE V OF THIS ACT SHALL APPLY TO OFFICERS AND EMPLOYEES IN OR UNDER THE LEGISLATIVE OR THE JUDICIAL BRANCH OF THE GOVERNMENT WHOSE COMPENSATION IS NOT FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED," ETC. AND THIS PORTION OF THE LEGISLATION IS EXPLAINED IN THE ABOVE HOUSE REPORT, AT PAGE 10, THUS: "SECTION 101 FURTHER DEFINES THE COVERAGE OF TITLE V TO INCLUDE EMPLOYEES OF THE LEGISLATIVE AND JUDICIAL BRANCHES WHO ARE NOT COVERED BY TITLE II, III, OR IV.'

YOUR OPINIONS TO THIS OFFICE OF JANUARY 21, 1943 (22 DEC. COMPT. GEN. 685) AND OF MAY 21 (29), 1943 (B-31791) LEAD ME TO BELIEVE THAT THIS OFFICE IS NOT TO BE CONSIDERED AS "IN OR UNDER THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT" AS THOSE WORDS ARE USED IN SEC. 101 (A) (1) OF THE ACT OF JUNE 30, 1945.

CONSIDERING WHETHER THE EMPLOYEES OF THIS OFFICE COME WITHIN SEC. 101 (A) (2) OF SAID ACT, REFERRING TO "EMPLOYEES OF THE JUDICIAL BRANCH * * * WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED" I HAVE NOTED THAT EACH OF THE JUDICIAL ESTABLISHMENTS WHICH ARE MENTIONED BY THE HOUSE COMMITTEE IN ITS REPORT AS COMING WITHIN THIS SUB-SECTION ARE BY CLEAR STATUTORY PROVISION WITHIN THE CLASSIFICATION ACT; VIZ: IN THE ADMINISTRATIVE OFFICE OF UNITED STATES COURTS, "THE DIRECTOR, WITH THE APPROVAL OF THE SUPREME COURT, SHALL HAVE AUTHORITY, SUBJECT TO THE CIVIL- SERVICE LAWS, TO APPOINT SUCH EMPLOYEES AS ARE DEEMED NECESSARY," ETC. (ACT OF AUGUST 7, 1939, C. 501, SEC. 313, 53 STAT. 1223). LIKEWISE THE CLERKS, RESPECTIVELY, OF THE MUNICIPAL COURT AND OF THE MUNICIPAL COURT OF APPEALS OF THE DISTRICT OF COLUMBIA ARE EACH AUTHORIZED TO APPOINT EMPLOYEES, SUBJECT TO THE APPROVAL OF THE CHIEF JUDGE, AND HAVE THEIR COMPENSATION FIXED BY THE CHIEF JUDGE "IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED," ETC. (ACT OF APRIL 1, 1942, C. 207, SEC. 3 AND SEC. 6, 56 STAT. 192, 195).

IN YOUR SAID OPINION TO THIS OFFICE JANUARY 21, 1943, YOU SAY: "IT IS UNDERSTOOD THE POSITIONS OF THE EMPLOYEES INVOLVED HAVE BEEN REGARDED AS SUBJECT TO THE CLASSIFICATION ACT OF 1923 AND THAT THE SALARY RATES OF THE EMPLOYEES HAVE BEEN FIXED AND ADJUSTED UNDER THAT STATUTE, AS AMENDED. THE AUTHORITY FOR THAT ACTION IS UNDERSTOOD TO BE THE PROVISION IN SECTION 2 OF THE ORIGINAL CLASSIFICATION ACT OF 1923, APPROVED MARCH 4, 1923, 42 STAT. 1488, DEFINING THE TERM "DEPARTMENT" TO INCLUDE "THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA.' HOWEVER, THERE ARE FOR CONSIDERATION, ALSO, THE FOLLOWING PROVISIONS OF THE DISTRICT OF COLUMBIA CODE, 1940: SEC. 19-402 * * * SEC. 19-403. THE SAID REGISTER OF WILLS * * * SHALL MAKE OUT AND ISSUE EVERY SUMMONS, PROCESS, AND ORDER OF THE COURT, AND IN EVERY RESPECT ACT UNDER ITS CONTROL AND DIRECTION IN REFERENCE TO MATTERS COMING WITHIN THE JURISDICTION OF SAID COURT. HE SHALL BE, AND HEREBY IS, AUTHORIZED TO APPOINT TWO DEPUTIES, WHO MAY DO AND PERFORM ANY AND ALL THE ACTS NECESSARY IN THE ADMINISTRATION OF HIS OFFICE AND THE CERTIFICATION OF THE RECORDS OF SAID COURT WHICH HE HIMSELF IS AUTHORIZED TO DO; ALSO TO APPOINT AND FIX THE COMPENSATION OF THE EMPLOYEES OF SAID PROBATE COURT AND OFFICE OF REGISTER OF WILLS * * *.'

IN BRIEF RESUME: EMPLOYEES OF THIS OFFICE ARE JUDICIAL EMPLOYEES WITHIN THE MEANING OF THIS ACT. THEY ARE NOT "SUBJECT TO" THE CLASSIFICATION ACT AS ARE THE JUDICIAL EMPLOYEES CITED BY THE HOUSE COMMITTEE IN ITS REPORT. AND SAID REPORT ADVISED THE HOUSE THAT SECTION 101 (C) BRINGS WITHIN THE ACT, UNDER TITLE V, EMPLOYEES OF THE JUDICIAL BRANCH "WHO ARE NOT COVERED BY TITLE II, III, OR IV.' THEREFORE, I SUBMIT THAT MY FIRST QUESTION, ABOVE, SHOULD BE ANSWERED IN THE AFFIRMATIVE, AND THE REMAINING QUESTIONS THEN BECOME MOOT.

THE DECISIONS OF THIS OFFICE TO WHICH YOU REFER HOLDING THAT EMPLOYEES OF YOUR OFFICE WERE UNDER THE JUDICIAL BRANCH OF THE GOVERNMENT AND ENTITLED TO THE 10 AND 15 PERCENT (OR $300 GUARANTEE) ADDITIONAL WARTIME COMPENSATION IN LIEU OF OVERTIME COMPENSATION FOR WORKING IN EXCESS OF 40 HOURS PER WEEK, WERE REND WITH RESPECT TO THE JOINT RESOLUTION OF DECEMBER 22, 1942, 56 STAT. 1068, AND THE WAR OVERTIME PAY ACT OF 1943, APPROVED MAY 7, 1943, 57 STAT. 76, BOTH OF WHICH STATUTES SPECIFICALLY INCLUDED EMPLOYEES OF THE JUDICIAL BRANCH OF THE GOVERNMENT WITHIN THE PROVISIONS OF THE LAWS GRANTING THE PERCENTAGE INCREASE RATHER THAN WITHIN THE PROVISIONS OF THE LAWS GRANTING OVERTIME COMPENSATION FOR ALL WORK IN EXCESS OF 40 HOURS PER WEEK, REGARDLESS OF WHETHER EMPLOYEES OF THE JUDICIAL BRANCH WERE OR WERE NOT SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED.

HOWEVER, THE FEDERAL EMPLOYEES PAY ACT OF 1945 MAKES A MATERIAL CHANGE IN THAT RESPECT, AS YOU HAVE POINTED OUT IN YOUR LETTER. FOR INSTANCE, SECTION 101 (A) OF SAID STATUTE, 59 STAT. 295, SPECIFICALLY INCLUDES WITHIN THE OVERTIME PROVISIONS SET OUT IN TITLE II OF THE LAW "THOSE OFFICERS AND EMPLOYEES OF THE JUDICIAL BRANCH OF THE GOVERNMENT * * * WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED.'

YOU CONTEND THAT WHILE THE SALARY RATES OF THE EMPLOYEES OF YOUR OFFICE HAVE BEEN FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED, THEY ARE NOT "SUBJECT TO" THE CLASSIFICATION ACT FOR THE REASON THAT THERE IS NO BASIC STATUTE REQUIRING YOU TO FIX SALARY RATES OF SUCH EMPLOYEES IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED. IN THAT CONNECTION, THIS OFFICE IS ADVISED INFORMALLY BY THE CIVIL SERVICE COMMISSION THAT FOR MAY YEARS THE POSITIONS IN YOUR OFFICE HAVE BEEN REGARDED AS SUBJECT TO THE CLASSIFICATION ACT AND THAT YOU HAVE SUBJECTED SUCH POSITIONS TO THE JURISDICTION OF THE CIVIL SERVICE COMMISSION FOR THE PURPOSE OF ALLOCATION AND REALLOCATION OF POSITIONS. WHERE AN AGENCY HAD ELECTED UNDER STATUTORY AUTHORITY TO FIX SALARY RATES OF ITS EMPLOYEES IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED, AND HAD ADOPTED ALL OF THE PROCEDURES THEREUNDER INCLUDING THE JURISDICTION OF THE CIVIL SERVICE COMMISSION WITH REGARD TO THE ALLOCATION AND REALLOCATION OF POSITIONS IN THE DEPARTMENTAL SERVICE, IT MUST BE ASSUMED THAT THE CONGRESS, IN ENACTING THE FEDERAL EMPLOYEES PAY ACT OF 1945, REGARDED THE EMPLOYEES OF SUCH AN AGENCY AS "SUBJECT TO" THE CLASSIFICATION ACT THE SAME AS EMPLOYEES WHO ARE "SUBJECT TO" THE CLASSIFICATION ACT BY STATUTE. SEE 14 COMP. GEN. 867, CITED ON PAGE 9 OF HOUSE OF REPRESENTATIVES REPORT NO. 726 ON H.R. 3393, WHICH BECAME THE NEW PAY LAW. IN THE LIGHT OF THE COMMITTEE'S STATEMENTS, IT IS CONCLUDED THAT THE CONGRESS INTENDED THE WORDS "SUBJECT TO," AS USED IN THE STATUTE, TO RELATE NOT ONLY TO EMPLOYEES WHOSE SALARY RATES ARE REQUIRED BY STATUTE TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT, BUT ALSO, TO EMPLOYEES WHOSE SALARY RATES HAD BEEN FIXED ADMINISTRATIVELY IN ACCORDANCE WITH ALL OF THE TERMS AND CONDITIONS OF THE CLASSIFICATION ACT. OTHERWISE, IF YOUR CONTENTIONS WERE CORRECT, NAMELY, THAT YOUR EMPLOYEES ARE NOT "SUBJECT TO" THE CLASSIFICATION ACT FOR THE PURPOSE OF THE OVERTIME PROVISIONS OF THE LAWS, SUCH EMPLOYEES WOULD NOT BE ENTITLED TO THE BENEFITS OF TITLE IV OF THE STATUTE MAKING CERTAIN AMENDMENTS IN THE CLASSIFICATION ACT SO AS TO LIBERALIZE THE PROVISIONS RELATING TO WITHIN-GRADE SALARY ADVANCEMENTS. THIS OFFICE IS UNABLE TO AGREE WITH THE VIEWS EXPRESSED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER.

IN THE LIGHT OF THE FOREGOING, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE AND YOUR SECOND AND THIRD QUESTIONS IN THE AFFIRMATIVE.

REFERRING TO YOUR FOURTH QUESTION, REFERENCE IS MADE TO THAT PART OF THE DECISION OF JULY 5, 1945, B-50756, 25 COMP. GEN. 14, TO THE CHIEF JUDGE OF THE MUNICIPAL COURT OF THE DISTRICT OF COLUMBIA (THE EMPLOYEES OF WHICH ARE SUBJECT TO THE CLASSIFICATION ACT) AS FOLLOWS.

THE SAID SECTION 604, WHEN CONSIDERED IN CONNECTION WITH SECTION 201, WOULD SEEM DEFINITELY TO REQUIRE THAT YOU, AS HEAD OF THE MUNICIPAL COURT FOR THE DISTRICT OF COLUMBIA, (1) ESTABLISH "A BASIC ADMINISTRATIVE WORKWEEK OF FORTY HOURS * * * WITHIN A PERIOD OF NOT MORE THAN SIX OF ANY SEVEN CONSECUTIVE DAYS," AND (2) OFFICIALLY ORDER OR APPROVE THE NUMBER OF HOURS OF WORK TO BE PERFORMED IN EXCESS OF 40 HOURS IN ANY ADMINISTRATIVE WORKWEEK FOR WHICH OVERTIME COMPENSATION WILL BE PAID. HOWEVER, SUFFICIENT INFORMATION HAS NOT BEEN PRESENTED TO THIS OFFICE TO ENABLE A DETERMINATION REGARDING THE AUTHORITY FOR FIXING THE HOURS OF DUTY FOR EMPLOYEES OF YOUR OFFICE AND OF THE PROBATE COURT--- THAT IS, WHETHER SUCH IS VESTED IN YOU OR IN THE COURT. HENCE, NO SPECIFIC ANSWER MAY BE MADE TO THE FOURTH QUESTION AT THIS TIME.