B-55152, MARCH 26, 1946, 25 COMP. GEN. 676

B-55152: Mar 26, 1946

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THERE SHOULD BE INCLUDED ANY AUTOMATIC WITHIN-GRADE SALARY ADVANCEMENTS WHICH HAVE ACCRUED TO SUCH PERMANENT MEMBER BY REASON OF SAID CLASSIFICATION ACT. IS HEREBY AMENDED BY DELETING THE WORDS . THE PERMANENT LAWYER MEMBER OF THE COMMISSION ON MENTAL HEALTH IS PAID AT THE RATE OF $7. 962.50 PER ANNUM IN GRADE P-7 WHICH IS THE FOURTH STEP IN THAT GRADE. HIS SERVICES ARE OF SUCH DURATION THAT IT IS PRACTICALLY IMPOSSIBLE FOR HIM TO ACQUIRE SUFFICIENT SERVICE TO ENTITLE HIM TO ANY WITHIN-GRADE PROMOTION. THE COMPENSATION AS THUS FIXED FOR THE PERMANENT LAWYER MEMBER OF THE COMMISSION NECESSARILY IS THE ANNUAL SALARY RATE AUTHORIZED BY THE CLASSIFICATION ACT FOR THE PARTICULAR CLASSIFICATION.

B-55152, MARCH 26, 1946, 25 COMP. GEN. 676

COMPENSATION - ALTERNATE LAWYER MEMBER OF DISTRICT OF COLUMBIA COMMISSION ON MENTAL HEALTH IN COMPUTING THE COMPENSATION OF THE ALTERNATE LAWYER MEMBER OF THE DISTRICT OF COLUMBIA COMMISSION ON MENTAL HEALTH, UNDER THE PROVISIONS OF SECTION 2 OF THE ACT OF JUNE 8, 1938, AS AMENDED, THAT SUCH ALTERNATE MEMBER SHALL RECEIVE, FOR EACH DAY OF ACTUAL SERVICE, THE SAME COMPENSATION AS FIXED FOR THE PERMANENT LAWYER MEMBER IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, THERE SHOULD BE INCLUDED ANY AUTOMATIC WITHIN-GRADE SALARY ADVANCEMENTS WHICH HAVE ACCRUED TO SUCH PERMANENT MEMBER BY REASON OF SAID CLASSIFICATION ACT, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, MARCH 26, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 11, 1946, AS FOLLOWS:

SECTION 16 OF THE ACT OF AUGUST 9, 1939 (53 STAT. 1299),"AN ACT TO PROVIDE FOR INSANITY PROCEEDINGS OF THE DISTRICT OF COLUMBIA," PROVIDES:

"SECTION 2 OF THE ACT APPROVED JUNE 8, 1939 (1938), IS HEREBY AMENDED BY DELETING THE WORDS ,FOR SUCH SERVICE THE ALTERNATE SHALL RECEIVE $10 FOR EACH DAY OF ACTUAL SERVICE" AND INSERTING IN LIEU THERE THE FOLLOWING: "FOR SUCH SERVICE THE ALTERNATE SHALL RECEIVE, FOR EACH DAY OF ACTUAL SERVICE, THE SAME COMPENSATION AS FIXED IN ACCORDANCE WITH THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, FOR THE LAWYER MEMBER OF THE COMMISSION.'

THE PERMANENT LAWYER MEMBER OF THE COMMISSION ON MENTAL HEALTH IS PAID AT THE RATE OF $7,962.50 PER ANNUM IN GRADE P-7 WHICH IS THE FOURTH STEP IN THAT GRADE.

THE ALTERNATE LAWYER MEMBER SERVES APPROXIMATELY 30 DAYS AT DIFFERENT TIMES DURING THE YEAR AND ONLY IN THE ABSENCE OF THE LAWYER MEMBER. HIS SERVICES ARE OF SUCH DURATION THAT IT IS PRACTICALLY IMPOSSIBLE FOR HIM TO ACQUIRE SUFFICIENT SERVICE TO ENTITLE HIM TO ANY WITHIN-GRADE PROMOTION.

THE COMMISSIONERS WOULD LIKE TO BE ADVISED WHETHER THE ALTERNATE LAWYER MEMBER SHOULD BE PAID AT THE SAME RATE OF SALARY, INCLUDING WITHIN-GRADE PROMOTIONS, AS THE PERMANENT LAWYER MEMBER.

THE STATUTORY PROVISION QUOTED IN YOUR LETTER EXPRESSLY AUTHORIZES PAYMENT TO THE ALTERNATE LAWYER MEMBER OF THE COMMISSION ON MENTAL HEALTH, FOR EACH DAY OF ACTUAL SERVICE, OF "THE SAME COMPENSATION AS FIXED IN ACCORDANCE WITH THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, FOR THE LAWYER MEMBER OF THE COMMISSION.' THE COMPENSATION AS THUS FIXED FOR THE PERMANENT LAWYER MEMBER OF THE COMMISSION NECESSARILY IS THE ANNUAL SALARY RATE AUTHORIZED BY THE CLASSIFICATION ACT FOR THE PARTICULAR CLASSIFICATION, GRADE, AND SALARY STEP WITHIN SUCH GRADE, ATTACHED TO THE POSITION OCCUPIED BY HIM.

THE LANGUAGE OF THE 1939 ACT, 53 STAT. 1299, SUPRA, IS CLEAR AND UNAMBIGUOUS AND PLAINLY EVIDENCES AN INTENT ON THE PART OF THE CONGRESS TO AUTHORIZE PAYMENT OF COMPENSATION TO THE ALTERNATE LAWYER MEMBER AT THE SAME PER ANNUM RATE--- WHATEVER IT MIGHT BE--- CURRENTLY AUTHORIZED FOR THE PERMANENT LAWYER MEMBER. WHILE, AT THE TIME OF ENACTMENT OF THE 1939 ACT THERE WAS NO GENERAL STATUTORY PROVISIONS FOR AUTOMATIC WITHIN-GRADE SALARY ADVANCEMENTS SUCH AS NOW AUTHORIZED BY LAW, PROMOTIONS AND DEMOTIONS THEN WERE EFFECTED ADMINISTRATIVELY AND, CLEARLY, THE LANGUAGE OF THE 1939 ACT IS SUCH AS WOULD HAVE PERMITTED ADJUSTMENTS IN THE COMPENSATION PAYABLE TO THE ALTERNATE MEMBER TO CORRESPOND WITH ANY INCREASES OR DECREASES IN COMPENSATION WHICH MIGHT HAVE BEEN AUTHORIZED ADMINISTRATIVELY FOR THE PERMANENT MEMBER OF THE COMMISSION. CONSEQUENTLY, THERE APPEARS NO PROPER BASIS UPON WHICH SIMILAR INCREASES IN COMPENSATION OF THE PERMANENT MEMBER RESULTING FROM AUTOMATIC WITHIN- GRADE SALARY ADVANCEMENTS AS NOW AUTHORIZED BY STATUTE MAY BE EXCLUDED FROM THE COMPUTATION OF THE COMPENSATION PAYABLE TO THE ALTERNATE NUMBER. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.