B-54962, JANUARY 23, 1946, 25 COMP. GEN. 555

B-54962, JANUARY 23, 1946, 25 COMP. GEN. 555

VETERANS' ADMINISTRATION - DEPARTMENT OF MEDICINE AND SURGERY - APPOINTMENT AND COMPENSATION OF HOSPITAL ATTENDANTS HOSPITAL ATTENDANTS APPOINTED TO THE DEPARTMENT OF MEDICINE AND SURGERY, VETERANS' ADMINISTRATION, UNDER AUTHORITY OS SECTION 11 OF THE ACT OF JANUARY 3, 1946, ARE CIVIL SERVICE EMPLOYEES AND SUBJECT TO THE PROVISIONS OF LAWS AND REGULATIONS RELATING THERETO. THE COMPENSATION OF HOSPITAL ATTENDANTS APPOINTED TO THE DEPARTMENT OF MEDICINE AND SURGERY, VETERANS' ADMINISTRATION, UNDER AUTHORITY OF SECTION 11 OF THE ACT OF JANUARY 3, 1946, IS REQUIRED TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT. HOSPITAL ATTENDANTS PRESENTLY EMPLOYED IN THE MEDICAL SERVICE OF THE VETERANS' ADMINISTRATION AS CONSTITUTED PRIOR TO THE ESTABLISHMENT OF A DEPARTMENT OF MEDICINE AND SURGERY BY THE ACT OF JANUARY 3, 1946, MAY BE APPOINTED TO SUCH DEPARTMENT PURSUANT TO SECTION 11 OF SAID ACT AT THEIR PRESENT GRADE AND RATE OF COMPENSATION AS ESTABLISHED BY THE CLASSIFICATION ACT, RATHER THAN AT A LOWER SALARY RATE WITHIN THE SALARY RANGE ($1,572 TO $1,902 PER ANNUM) SPECIFIED IN THE LAST PROVISO OF SAID SECTION 11, WHICH PROVISO IS TO BE REGARDED AS ESTABLISHING A NEW MINIMUM ENTRANCE GRADE AND SALARY RANGE FOR NEWLY APPOINTED ATTENDANTS, ONLY.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, JANUARY 23, 1946:

I HAVE YOUR LETTER OF JANUARY 8, 1946, SUBMITTING FOR DECISION CERTAIN QUESTIONS RELATIVE TO THE APPLICATION OF SECTION 11 OF THE ACT OF JANUARY 3, 1946, PUBLIC LAW 293, 79TH CONGRESS--- WHICH ACT AUTHORIZES AND ESTABLISHES A DEPARTMENT OF MEDICINE AND SURGERY IN THE VETERANS' ADMINISTRATION--- AS PRESENTED IN THE SUBMITTED COPY OF AN OPINION OF YOUR SOLICITOR DATED JANUARY 5, 1946. THE QUESTIONS WILL BE STATED AND ANSWERED IN THE ORDER THEREIN SET FORTH.

(1)ARE APPOINTMENTS OF HOSPITAL ATTENDANTS UNDER THE SAID SECTION 11, SUBJECT TO THE CIVIL SERVICE LAWS I.E., ARE THESE EMPLOYEES CIVIL SERVICE EMPLOYEES?

SECTION 11 OF THE ACT OF JANUARY 3, 1946, PUBLIC LAW 293, 59 STAT. 678, PROVIDES AS FOLLOWS:

SEC. 11. THERE SHALL BE APPOINTED BY THE ADMINISTRATOR UNDER CIVIL SERVICE LAWS, RULES AND REGULATIONS, SUCH ADDITIONAL EMPLOYEES, OTHER THAN THOSE PROVIDED IN SECTION 3, SUBSECTION (A) OF SECTION 4, AND THOSE SPECIFIED IN SECTION 14 OF THIS ACT AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF THIS ACT: PROVIDED, THAT EMPLOYEES OF THE MEDICAL SERVICE AS AT PRESENT CONSTITUTED, OTHER THAN THOSE PROVIDED IN SECTION 3 SUBSECTION (A) OF SECTION 4, AND SECTION 14 OF THIS ACT, SHALL RECEIVE ORIGINAL APPOINTMENTS TO THE DEPARTMENT OF MEDICINE AND SURGERY IN THEIR PRESENT CIVIL-SERVICE STATUS UPON CERTIFICATION OF SATISFACTORY SERVICE BY THE MANAGER OF THE HOSPITAL, HOME, OR CENTER WHERE SUCH PERSON IS PRESENTLY EMPLOYED: AND PROVIDED FURTHER, THAT THE PER ANNUM SALARY RANGE FOR HOSPITAL ATTENDANTS SHALL BE $1,592 MINIMUM TO $1,902 MAXIMUM.

BY THE EXPRESS LANGUAGE OF THE ABOVE-QUOTED SECTION OF THE ACT, APPOINTMENT OF EMPLOYEES PROVIDED FOR THEREIN SHALL BE MADE "UNDER CIVIL- SERVICE LAWS, RULES AND REGULATIONS.' THE INTENT OF THE CONGRESS THAT ALL EMPLOYEES OF THE DEPARTMENT OF MEDICINE AND SURGERY, EXCEPT THOSE SPECIFICALLY EXCLUDED BY SECTION 6, 59 STAT. 676, AND THOSE ENUMERATED IN SECTIONS 3 AND 14 OF THE ACT, 59 STAT. 675, 679, SHOULD BE SUBJECT TO CIVIL SERVICE RULES AND REGULATIONS IS FURTHER EVIDENCED BY THE PROVISION IN SECTION 11 THAT "EMPLOYEES OF THE MEDICAL SERVICE AS AT PRESENT CONSTITUTED * * * SHALL RECEIVE ORIGINAL APPOINTMENTS TO THE DEPARTMENT OF MEDICINE AND SURGERY IN THEIR PRESENT CIVIL-SERVICE STATUS.' ( ITALICS SUPPLIED.) THAT VIEW IS FURTHER STRENGTHENED BY HOUSE REPORT NL. 1238 OF THE COMMITTEE ON WORLD WAR VETERANS' LEGISLATION, ACCOMPANYING H.R. 4717 (79TH CONGRESS), WHEREIN IT WAS STATED THAT "YOUR COMMITTEE HAS DETERMINED ON ALL OF THE FACTS THAT SUCH LEGISLATION SHOULD * * * (5) RETAIN CLASSIFIED CIVIL SERVICE FOR POSITIONS NOT SPECIFICALLY EXEMPTED THEREFROM BY THE BILL.', SINCE NO PROVISION OF THE ACT SPECIFICALLY EXCLUDES HOSPITAL ATTENDANTS FROM THE OPERATION OF CIVIL SERVICE LAWS IT MUST BE CONCLUDED THAT THEY ARE CIVIL SERVICE EMPLOYEES AND SUBJECT TO THE PROVISION OF LAWS AND REGULATIONS RELATING THERETO. QUESTION NO. 1 IS ANSWERED ACCORDINGLY.

(2) ARE HOSPITAL ATTENDANTS APPOINTED UNDER SECTION 11 SUBJECT TO THE CLASSIFICATION ACT OF 1923 AND AMENDMENTS THERETO?

ALTHOUGH THE ACT OF JANUARY 3, 1946, SUPRA, DOES NOT EXPRESSLY PROVIDE THAT THE COMPENSATION OF HOSPITAL ATTENDANTS SHALL BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, AS AMENDED, IT IS FOR NOTING THAT SECTION 14 OF THE SAID ACT OF JANUARY 3, 1946, PROVIDES THAT IN ADDITION TO THOSE DESCRIBED IN SECTION 3, SUBSECTION (A) OF SECTION 4, 59 STAT. 675, AND SECTION 11 OF THE ACT, EMPLOYEES AUTHORIZED BY THE SAID SECTION 14 MAY BE EMPLOYED "WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923.' ACCORDINGLY, BY SPECIFICALLY ENUMERATING THE EMPLOYEES TO BE EXCLUDED FROM THE PROVISIONS OF THE CLASSIFICATION ACT, IT APPEARS CLEAR THE CONGRESS INTENDED THAT THE COMPENSATION OF HOSPITAL ATTENDANTS BE FIXED PURSUANT TO THE SAID ACT, AS AMENDED.

IN THAT CONNECTION, IT WAS HELD IN 19 COMP. GEN. 20, QUOTING PARAGRAPH 1 OF THE SYLLABUS:

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. ACCORDINGLY, QUESTION NO. 2 IS ANSWERED IN THE AFFIRMATIVE.

(3) WHAT IS THE EFFECT OF THE LAST PROVISO OF SECTION 11, READING "* * * THAT THE PER ANNUM SALARY RANGE FOR HOSPITAL ATTENDANTS SHALL BE $1,572 MINIMUM OF $1,902 MAXIMUM?

THE NATURAL AND APPROPRIATE OFFICE OF A PROVISO IS TO LIMIT OR MODIFY THAT PART OF THE STATUTE WHICH IMMEDIATELY PRECEDES IT UNLESS IT CLEARLY APPEARS TO BE APPLICABLE TO SOME OTHER MATTER AND, GENERALLY, SHOULD BE CONSTRUED WITH REFERENCE TO THE PRECEDING CLAUSE OR PROVISION. WITH REFERENCE TO THE ACT OF JANUARY 3, 1946, SUPRA, THE CLAUSE IMMEDIATELY PRECEDING THE PROVISO IN QUESTION IS AS FOLLOWS:

* * * PROVIDED, THAT EMPLOYEES OF THE MEDICAL SERVICE AS AT PRESENT CONSTITUTED, OTHER THAN THOSE PROVIDED IN SECTION 3, SUBSECTION (A) OF SECTION 4, AND SECTION 14 OF THIS ACT, SHALL RECEIVE ORIGINAL APPOINTMENTS TO THE DEPARTMENT OF MEDICINE AND SURGERY IN THEIR PRESENT CIVIL-SERVICE STATUS UPON CERTIFICATION OF SATISFACTORY SERVICE BY THE MANAGER OF THE HOSPITAL, HOME OR CENTER WHERE SUCH PERSON IS PRESENTLY EMPLOYED. ITALICS SUPPLIED.) A READING OF THE ABOVE-QUOTED PROVISION IN CONNECTION WITH THE PROVISO "THAT THE PER ANNUM SALARY RANGE FOR HOSPITAL ATTENDANTS SHALL BE $1,572 MINIMUM TO $1,902 MAXIMUM" REVEALS THAT THE TWO PROVISIONS ARE INCONSISTENT. THAT IS TO SAY, HAVING IN MIND THAT HOSPITAL ATTENDANTS IN THE MEDICAL SERVICE AS PRESENTLY CONSTITUTED ARE UNDERSTOOD TO BE COMPENSATED UNDER THE CLASSIFICATION ACT FOR GRADES RANGING FROM SP-2 ($1,572 TO $1,968) TO SP-8 ($2,980 TO $3,640), SUCH EMPLOYEES, UPON CERTIFICATION OF SATISFACTORY SERVICE, COULD NOT BE GIVEN NEW APPOINTMENTS IN THE DEPARTMENT OF MEDICINE AND SURGERY "IN THEIR PRESENT CIVIL- SERVICE STATUS" AND AT THE SAME TIME BE LIMITED TO THE PER ANNUM SALARY RANGE ($1,572 MINIMUM TO $1,902 MAXIMUM) AS SPECIFIED IN THE SUCCEEDING PROVISO. THEREFORE, WITH A VIEW TO ASCERTAINING WHETHER THE INCONSISTENCIES MAY BE RECONCILED, IT IS NECESSARY TO RESORT TO EXTRINSIC AID; THAT IS, WHERE AN INCONSISTENCY, AS IN THE PRESENT CASE, IF FOUND IN THE LITERAL MEANING OF THE LANGUAGE USED, PROCEEDINGS OF THE CONGRESS IN REFERENCE TO THE PASSAGE OF THE ACT MAY BE TAKEN INTO CONSIDERATION IN ASCERTAINING THE TRUE INTENT. IN VIEW THEREOF, AND IN THE LIGHT OF THE FOREGOING ANSWERS TO QUESTIONS NOS. 1 AND 2, WHEREIN IT IS CONCLUDED THAT HOSPITAL ATTENDANTS EMPLOYED PURSUANT TO THE ACT OF JANUARY 3, 1946, SUPRA, ARE SUBJECT TO CIVIL SERVICE RULES AND REGULATIONS AND THE CLASSIFICATION ACT OF 1923, AN EXAMINATION OF THE CONGRESSIONAL COMMITTEE HEARINGS AND REPORTS ON H.R. 4717, WHICH BECAME THE SAID ACT OF JANUARY 3, 1946, PUBLIC LAW 293, HAS BEEN MADE, WHICH EXAMINATION DISCLOSES THAT THE CONGRESS DID NOT INTEND HOSPITAL ATTENDANTS THEN EMPLOYED IN THE MEDICAL SERVICE TO BE APPOINTED IN THE NEW DEPARTMENT OF MEDICINE AND SURGERY AT A REDUCED SALARY. ON THE CONTRARY, IT IS OBVIOUS THAT THE CONGRESS RECOGNIZED THE DIFFICULTY IN PROCURING AND RETAINING QUALIFIED ATTENDANTS AT THE LOW ENTRANCE SALARY THERETOFORE IN EFFECT AND INTENDED TO REMEDY THE UNDESIRABLE CONDITION BY PROVIDING A FLOOR, THAT IS, A MINIMUM GRADE FOR SUCH ATTENDANTS WITH A SPECIFIED ANNUAL SALARY RANGE. IT APPEARS REASONABLE TO CONCLUDE THAT THE MINIMUM ($1,572) AND MAXIMUM ($1902) SALARY RATES PROVIDED FOR IN SECTION 11 WERE INTENDED TO ESTABLISH SUCH MINIMUM GRADE. IN THAT CONNECTION, IT HAS BEEN INFORMALLY ASCERTAINED THAT THE MINIMUM GRADE FOR HOSPITAL ATTENDANTS RECENTLY HAS BEEN ESTABLISHED AS SP-2, WHICH HAS A SALARY RANGE OF $1,572 TO $1,968. HOWEVER, FOR REASONS NOT APPARENT FROM THE RECORD, THE SALARY RANGE SPECIFIED IN THE ACT, SUPRA, DOES NOT FULLY COINCIDE WITH THE RATES NOW IN EFFECT FOR GRADE 2 IN THE SUBPROFESSIONAL SERVICE AS ESTABLISHED BY THE CLASSIFICATION ACT--- PARTICULARLY IN THAT THE TOP SALARY STEP IN THAT GRADE IS $1,968. WHILE IT MAY HAVE BEEN INTENDED THAT SUBPROFESSIONAL GRADE 2 ($1,572 TO $1,968) BE ESTABLISHED AS THE MINIMUM COMPENSATION RANGE FOR ALL HOSPITAL ATTENDANTS, THE LANGUAGE OF THE PROVISO IN FIXING MINIMUM AND MAXIMUM SALARY LIMITS IS CLEAR AND UNAMBIGUOUS AND THE AMOUNTS SPECIFIED THEREIN LAWFULLY CANNOT BE CHANGED BY CONSTRUCTION.

IN VIEW OF THE FOREGOING, AND IN ORDER TO EFFECTUATE THE EVIDENT INTENT AND PURPOSE OF THE ACT SO FAR AS THE SPECIFIC LANGUAGE THEREOF WILL PERMIT, IT MAY BE CONCLUDED THAT HOSPITAL ATTENDANTS PRESENTLY EMPLOYED IN THE MEDICAL SERVICE AS CONSTITUTED PRIOR TO THE ENACTMENT OF THE LEGISLATION IN QUESTION MAY--- UPON THE REQUISITE CERTIFICATION- - BE APPOINTED TO THE DEPARTMENT OF MEDICINE AND SURGERY AT THEIR PRESENT GRADE AND RATE OF COMPENSATION AS ESTABLISHED BY THE CLASSIFICATION ACT AND, FOR THE REASONS HEREINBEFORE SET FORTH, THE LAST PROVISO OF SECTION 11 MAY BE LIMITED IN ITS APPLICATION TO NEWLY APPOINTED HOSPITAL ATTENDANTS AND MAY BE CONSIDERED AS ESTABLISHING A NEW MINIMUM ENTRANCE GRADE FOR SUCH ATTENDANTS WITHIN THE PER ANNUM SALARY RANGE SPECIFIED. QUESTION NO. 3 IS ANSWERED ACCORDINGLY.