B-55272, FEBRUARY 20, 1946, 25 COMP. GEN. 601

B-55272, FEBRUARY 20, 1946, 25 COMP. GEN. 601

COMPENSATION - FOREIGN SERVICE PERSONNEL - RETROACTIVE EFFECT OF ADMINISTRATIVE INCREASES FUNDS APPROPRIATED BY THE FIRST DEFICIENCY APPROPRIATION ACT OF 1946 (APPROVED DECEMBER 28, 1945) TO INCREASE THE BASIC COMPENSATION OF CERTAIN FOREIGN SERVICE EMPLOYEES WHO ARE NOT WITHIN THE PURVIEW OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 BUT WHOSE COMPENSATION IS FIXED ADMINISTRATIVELY PURSUANT TO EXECUTIVE ORDER NO. 8396, ISSUED UNDER THE ACT OF FEBRUARY 23, 1931, ARE NOT AVAILABLE RETROACTIVELY TO JULY 1, 1945, FOR THE PAYMENT OF INCREASED COMPENSATION; RATHER, THE EFFECTIVE DATE OF ANY SUCH INCREASES IS THE DATE ON WHICH ADMINISTRATIVE ACTION IS TAKEN AFTER FUNDS WERE MADE AVAILABLE THEREFOR.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, FEBRUARY 20, 1946:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF JANUARY 18, 1946, AS FOLLOWS:

WHEN THE FEDERAL EMPLOYEES PAY ACT OF 1945 BECAME EFFECTIVE ON JULY 1, 1945, THE DEPARTMENT INCREASED AS OF THAT DATE THE BASIC COMPENSATION OF (1) FOREIGN SERVICE OFFICERS, AND (2) ADMINISTRATIVE OFFICERS, ADMINISTRATIVE ASSISTANTS, AND SENIOR CLERKS OF THE FOREIGN SERVICE UNDER SECTIONS 405 (A) AND 602 (B) OF THE PAY ACT. ADEQUATE FUNDS WERE NOT AVAILABLE FOR THE PURPOSE, BUT SINCE THE BASIC RATES OF COMPENSATION OF THESE TWO GROUPS OF OFFICERS AND EMPLOYEES ARE SPECIFICALLY PRESCRIBED BY STATUTES OF CONGRESS, THE LEGISLATION WAS MANDATORY IN THEIR CASE AND IT WAS POSSIBLE TO INCUR A DEFICIENCY TO COVER THE COST OF THE INCREASE.

AT THE SAME TIME, THE DEPARTMENT DECIDED THAT THE BASIC COMPENSATION OF AMERICAN FOREIGN SERVICE EMPLOYEES WHOSE SALARIES ARE FIXED ADMINISTRATIVELY BY THE SECRETARY OF STATE AND TO WHOM THE ACT DOES NOT APPLY, NAMELY, (A) JUNIOR CLERK (I.E. CLERKS WHOSE COMPENSATION AS FIXED BY THE SECRETARY IS LESS THAN $2300 PER ANNUM), (B) MISCELLANEOUS PERSONNEL, AND (C) EMPLOYEES OF THE AUXILIARY FOREIGN SERVICE SHOULD BE INCREASED IN AMOUNTS CORRESPONDING TO THE INCREASES THEY WOULD HAVE RECEIVED IF SECTIONS 405 AND 602 OF THE PAY ACT HAD BEEN APPLICABLE TO THEM. NO FUNDS WERE AVAILABLE TO PROVIDE COMPARABLE SALARY INCREASES FOR THESE THREE GROUPS OF EMPLOYEES, AND SINCE THE PAY ACT WAS NOT APPLICABLE IN THEIR CASE THE DEPARTMENT WAS CONFRONTED WITH THE QUESTION WHETHER A DEFICIENCY COULD BE INCURRED.

THE QUESTION WAS APPROPRIATELY BROUGHT TO THE ATTENTION OF THE BUREAU OF THE BUDGET, AND THE DIRECTOR OF THAT BUREAU WROTE THE CHAIRMAN OF THE HOUSE AND SENATE APPROPRIATIONS COMMITTEES TO LEARN WHETHER IN THEIR OPINION IT WOULD VIOLATE THE ANTI-DEFICIENCY ACT FOR VARIOUS AGENCIES OF THE GOVERNMENT TO INCUR DEFICIENCIES FOR THE PURPOSES UNDER DISCUSSION. THE CHAIRMAN OF THE HOUSE APPROPRIATIONS COMMITTEE REPLIED TO THE EFFECT THAT IN THE CIRCUMSTANCES THERE WOULD PERHAPS BE NO VIOLATION OF THE SPIRIT OF THE ANTI-DEFICIENCY ACT, BUT THE CHAIRMAN OF THE SENATE APPROPRIATIONS COMMITTEE TOOK THE POSITION THAT BEFORE MAKING ANY INCREASES IN THE SALARIES OF THE EMPLOYEES TO WHICH THE COMPENSATION PROVISIONS OF THE PAY ACT DO NOT APPLY, THE AGENCY CONCERNED SHOULD PREPARE APPROPRIATE ESTIMATES OF APPROPRIATIONS, SUBMIT THEM TO CONGRESS, AND COME BEFORE THE COMMITTEES ON APPROPRIATIONS AND JUSTIFY THEM. ON THE BASIS OF THIS CORRESPONDENCE, THE DIRECTOR OF THE BUREAU OF THE BUDGET ISSUED BULLETIN NO. 1945-46:2, DATED JULY 13, 1945, ADDRESSED TO THE HEADS OF EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS, IN WHICH HE INDICATED THAT A DEFICIENCY COULD NOT BE INCURRED TO PROVIDE INCREASES IN THE SALARIES OF EMPLOYEES WHOSE BASIC RATES OF COMPENSATION ARE FIXED ADMINISTRATIVELY.

THE DEPARTMENT ACCORDINGLY PREPARED AND SUBMITTED TO THE BUREAU OF THE BUDGET ESTIMATES OF APPROPRIATIONS NECESSARY TO PROVIDE COMPARABLE SALARY INCREASES FOR JUNIOR FOREIGN SERVICE CLERKS ($372,014), MISCELLANEOUS FOREIGN SERVICE PERSONNEL ($65,898), AND EMPLOYEES OF THE AUXILIARY FOREIGN SERVICE ($821,887), EFFECTIVE AS OF JULY 1, 1945. THE ESTIMATES WERE APPROVED WITHOUT CHANGE ON THAT BASIS BY BOTH THE BUREAU OF THE BUDGET AND THE CONGRESS, AND THE FUNDS WERE APPROPRIATED IN THE FIRST DEFICIENCY APPROPRIATION ACT, 1946, APPROVED DECEMBER 28, 1945 ( PUBLIC LAW 269, 79TH CONGRESS). THESE FUNDS ARE INCLUDED IN THE AMOUNTS APPROPRIATED UNDER THE SUBHEADINGS " SALARIES OF CLERKS, FOREIGN SERVICE," " MISCELLANEOUS SALARIES AND ALLOWANCES, FOREIGN SERVICE," AND " FOREIGN SERVICE, AUXILIARY (EMERGENCY)," APPEARING ON PAGES 23 AND 24 OF THE SLIP COPY OF THE ACT.

UNFORTUNATELY, THE LANGUAGE OF THE APPROPRIATION ACT WAS NOT DRAFTED TO STATE SPECIFICALLY THAT THE APPROPRIATION WOULD BE AVAILABLE AS OF JULY 1, 1945, EVEN THOUGH THE FUNDS WERE APPROPRIATED ON A FULL FISCAL YEAR BASIS. THIS RAISES A QUESTION ON WHICH I SHOULD APPRECIATE YOUR OPINION, NAMELY, WHETHER IN THE CIRCUMSTANCES THE DEPARTMENT MAY PROCEED TO INCREASE THE SALARIES OF THE EMPLOYEES IN REFERENCE AS OF JULY 1, 1945.

IT IS OBVIOUS FROM THE FACTS JUST RECITED THAT THE DEPARTMENT COULD NOT ADJUST THESE SALARIES ON JULY 1, 1945, NOTWITHSTANDING ITS DESIRE AND EFFORTS TO DO SO. ON THE OTHER HAND, IT IS ABUNDANTLY CLEAR THAT THE CONGRESS INTENDED THAT THE FUNDS APPROPRIATED FOR THE PURPOSE IN THE FIRST DEFICIENCY APPROPRIATION ACT COULD BE EXPENDED AS OF THAT DATE, AND I ACCORDINGLY EXPRESS THE HOPE THAT YOU WILL FIND IT POSSIBLE TO ANSWER THE QUESTION IN THE AFFIRMATIVE.

ON PAGE 699 OF THE HEARINGS BEFORE THE SUBCOMMITTEE OF THE HOUSE COMMITTEE ON APPROPRIATIONS ON THE FIRST DEFICIENCY APPROPRIATION BILL, 1946, YOU WILL FIND AN EXPLANATION OF THE ESTIMATE OF MR. HARRY KURTH, DIRECTOR OF THE DEPARTMENT'S OFFICE OF BUDGET AND FINANCE, AND A DIRECT STATEMENT BY HIM (REFERRING TO JUNIOR FOREIGN SERVICE CLERKS) THAT "WE WISH TO PAY THEM BACK TO THE FIRST OF THE YEAR.' ON PAGE 700 OF THESE HEARINGS, MR. KURTH AGAIN TESTIFIED THAT THE ESTIMATE WAS FOR THE FULL YEAR AND REPRESENTATIVE RABAUT SPECIFICALLY ACKNOWLEDGED THAT UNDERSTANDING. ON PAGES 701 AND 703 OF THE SAME DOCUMENT THERE ARE TABLES SHOWING THE ESTIMATES IN DETAIL FOR JUNIOR FOREIGN SERVICE CLERKS AND MISCELLANEOUS FOREIGN SERVICE EMPLOYEES. THESE TABLES SHOW FOR EACH EMPLOYEE CONCERNED THE EXISTING RATE OF COMPENSATION, THE PROPOSED NEW RATE, AND THE AMOUNT OF EACH PROPOSED INCREASE, ALL ON A FISCAL YEAR BASIS, I.E. EFFECTIVE AS OF JULY 1, 1945. NO DETAILED ESTIMATE FOR EMPLOYEES OF THE AUXILIARY FOREIGN SERVICE WAS INCLUDED IN THE HEARINGS BUT SUCH AN ESTIMATE, COMPUTED ON A FISCAL YEAR BASIS, WAS PREPARED AND WILL BE SUPPLIED TO YOUR OFFICE IF DESIRED.

I MAY ADD THAT THESE EMPLOYEES WHOSE SALARIES ARE FIXED ADMINISTRATIVELY BY THE SECRETARY OF STATE, AND WHOSE BASIC COMPENSATION THE DEPARTMENT DESIRES TO INCREASE IN AN EQUITABLE MANNER, WORK SIDE BY SIDE THROUGHOUT THE WORLD WITH OFFICERS AND EMPLOYEES WHOSE SALARIES ARE FIXED BY STATUTE AND WHOSE BASIC RATES OF COMPENSATION WERE INCREASED AS OF JULY 1, 1945, UNDER THE PAY ACT. THE DEPARTMENT'S INABILITY TO ADJUST THEIR PAY ON A COMPARABLE BASIS HAS RESULTED IN A LOWERING OF MORALE THROUGHOUT THE SERVICE AT A TIME WHEN LOWERED MORALE CAN BE LEAST AFFORDED. IN AN EFFORT TO PREVENT AS MUCH DISSATISFACTION AS POSSIBLE AND TO INFORM THEM OF THE CONTEMPLATED ACTION, THE EMPLOYEES CONCERNED WERE ADVISED MONTHS AGO THAT IN REPORTING THE PAY BILL THE HOUSE COMMITTEE ON THE CIVIL SERVICE EXPRESSED NO INTENTION OF DISCRIMINATING AGAINST THEM AND THAT THE DEPARTMENT HAD REQUESTED FUNDS TO ADJUST THEIR COMPENSATION ON A COMPARABLE BASIS AS OF JULY 1, 1945. I AM THEREFORE CONFIDENT IN YOUR CONCURRENCE THAT SHOULD THE DEPARTMENT BE REQUIRED TO INFORM THEM AT THIS LATE DATE THAT THE FUNDS WHICH CONGRESS HAS NOW APPROPRIATED CAN NOT BE USED ON A FISCAL YEAR BASIS, THE RESULT WOULD BE MOST DETRIMENTAL TO THE FOREIGN SERVICE.

THE MATTER IS ONE OF SUCH URGENCY THAT I SHOULD BE GRATEFUL IF I MIGHT HAVE YOUR REPLY AT A VERY EARLY DATE.

EXECUTIVE ORDER NO. 8396, APRIL 18, 1940, ISSUED PURSUANT TO THE ACT OF FEBRUARY 28, 1931, 46 STAT. 1207 (AMENDED BY THE ACT OF MAY 3, 1945, PUBLIC LAW 48, 59 STAT. 102), PROVIDES IN PERTINENT PART AS FOLLOWS.

I-6. COMPENSATION OF OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE.--- THE COMPENSATION OF OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE SHALL BE AT THE RATES ESTABLISHED BY LAW OR BY REGULATIONS OF THE SECRETARY OF STATE.

IT APPEARS THAT COMPENSATION RATES FOR THE EMPLOYEES REFERRED TO IN YOUR LETTER, NOT BEING PRESCRIBED BY LAW, WERE FIXED ADMINISTRATIVELY PURSUANT TO THE ABOVE-QUOTED EXECUTIVE ORDER, AND SINCE SUCH EMPLOYEES ARE NOT WITHIN THE PURVIEW OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, ANY INCREASE IN THEIR RATE OF COMPENSATION MUST BE EFFECTED BY ADMINISTRATIVE ACTION, CONTINGENT UPON THE AVAILABILITY OF FUNDS FOR THAT PURPOSE. FUNDS NECESSARY TO INCREASE THE BASIC SALARY RATES OF FOREIGN SERVICE EMPLOYEES WHO ARE NOT WITHIN THE PURVIEW OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, IN THE SAME AMOUNT THAT CORRESPONDING RATES WOULD BE INCREASED UNDER THE PROVISIONS OF THE SAID ACT, WERE PROVIDED BY THE FIRST DEFICIENCY APPROPRIATION ACT OF 1946, PUBLIC LAW 269, APPROVED DECEMBER 28, 1945, 59 STAT. 652, AS FOLLOWS:

SALARIES OF CLERKS, FOREIGN SERVICE: FOR AN ADDITIONAL AMOUNT, FISCAL YEAR 1946, FOR "SALARIES OF CLERKS, FOREIGN SERVICE," INCLUDING THE OBJECTS SPECIFIED UNDER THIS HEAD IN THE DEPARTMENT OF STATE APPROPRIATION ACT, 1946, $838,000.

MISCELLANEOUS SALARIES AND ALLOWANCES, FOREIGN SERVICE: FOR AN ADDITIONAL AMOUNT, FISCAL YEAR 1946, FOR "MISCELLANEOUS SALARIES AND ALLOWANCES, FOREIGN SERVICE," INCLUDING THE OBJECTS SPECIFIED UNDER THIS HEAD IN THE DEPARTMENT OF STATE APPROPRIATION ACT, 1946, $258,000.

BY VIRTUE OF THE PROVISIONS OF THE ACT OF FEBRUARY 23, 1931, (AMENDED BY PUBLIC LAW 48) AND EXECUTIVE ORDER NO. 8396, SUPRA, THERE IS NO QUESTION BUT THAT THE FUNDS APPROPRIATED BY THE ABOVE-QUOTED DEFICIENCY ACT ARE AVAILABLE FOR ADMINISTRATIVE SALARY INCREASES OF THE INVOLVED EMPLOYEES FROM THE DATE OF THE SAID DEFICIENCY ACT ( DECEMBER 28, 1945). HOWEVER, THE QUESTION IS PRESENTED WHETHER SUCH FUNDS ARE AVAILABLE FOR PAYMENT OF THE INCREASED SALARY RATES RETROACTIVELY EFFECTIVE TO JULY 1, 1945.

IT HAS BEEN HELD IN NUMEROUS DECISIONS OF THIS OFFICE THAT ADMINISTRATIVE CHANGES IN SALARY RATES MAY NOT BE MADE RETROACTIVELY EFFECTIVE IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, AND THAT THE EFFECTIVE DATE OF SALARY CHANGES RESULTING FROM ADMINISTRATIVE ACTION EXCLUSIVELY IS THE DATE ON WHICH THE ACTION IS TAKEN BY THE ADMINISTRATIVE OFFICIAL VESTED WITH PROPER AUTHORITY. SEE 10 COMP. GEN. 514, AND THE AUTHORITIES CITED THEREIN.

THE APPROPRIATE OFFICE OF A DEFICIENCY APPROPRIATION IS TO PROVIDE FUNDS FOR THE PAYMENT OF AN OBLIGATION LEGALLY CREATED AND FOR WHICH SUFFICIENT FUNDS ARE NOT AVAILABLE IN THE APPROPRIATION ORIGINALLY MADE FOR THAT PURPOSE. 4 COMP. DEC. 61. IN THE ABSENCE OF EXPRESS LANGUAGE TO THE CONTRARY, A DEFICIENCY APPROPRIATION IS SUBJECT TO THE SAME RESTRICTIONS AS TO THE OBJECTS FOR WHICH IT CAN BE USED AS ATTACHED TO THE ORIGINAL APPROPRIATION. ACCORDINGLY, EVEN IF THE DEPARTMENT OF STATE APPROPRIATION FOR THE FISCAL YEAR 1946 HAD BEEN SUFFICIENT TO PERMIT ADMINISTRATIVE INCREASES IN THE SALARY RATES OF FOREIGN SERVICE EMPLOYEES, SUCH INCREASE COULD NOT HAVE BEEN MADE EFFECTIVE PRIOR TO THE DATE ON WHICH THE INCREASE WAS AUTHORIZED BY COMPETENT ADMINISTRATIVE ACTION. IN THE INSTANT CASE, ADMINISTRATIVE ACTION WAS NOT TAKEN ON JULY 1, 1945, TO GRANT THE SALARY INCREASES IN QUESTION, AND FURTHERMORE, IN THE ABSENCE OF SUFFICIENT FUNDS IN THE CURRENT APPROPRIATION SUCH ACTION LEGALLY COULD HAVE BEEN TAKEN. (31 U.S.C. 665). OBVIOUSLY, THEN, NO LIABILITY FOR THE PROPOSED RETROACTIVE PAYMENTS WAS CREATED ON JULY 1, 1945, AND COULD NOT HAVE BEEN CREATED, LEGALLY, PRIOR TO THE APPROVAL DATE OF THE FIRST DEFICIENCY APPROPRIATION ACT OF 1946 ( DECEMBER 28, 1945). SINCE NO AMBIGUITY APPEARS IN THE LANGUAGE OF THE SAID DEFICIENCY ACT, RESORT TO EXTRINSIC AID MAY NOT BE HAD UNDER WELL KNOWN RULES OF STATUTORY CONSTRUCTION. ALSO, THE RULE IS WELL ESTABLISHED THAT A STATUTE MAY NOT BE ENLARGED BY CONSTRUCTION. TO MAKE THE FUNDS AVAILABLE FOR RETROACTIVE SALARY INCREASES TO JULY 1, 1945, WOULD BE TANTAMOUNT TO PUTTING WORDS IN THE STATUTE WHICH ARE NOT THERE, FOR THE PURPOSE OF CHANGING ITS CLEAR MEANING.

IN VIEW OF THE FOREGOING, I HAVE TO ADVISE THAT FUNDS PROVIDED BY THE FIRST DEFICIENCY APPROPRIATION ACT OF 1946, SUPRA, ARE NOT AVAILABLE RETROACTIVELY TO JULY 1, 1945, FOR BASIC SALARY INCREASES TO EMPLOYEES OF THE FOREIGN SERVICE WHOSE RATE OF COMPENSATION IS NOT PRESCRIBED BY LAW, BUT ON THE CONTRARY, IS DEPENDENT UPON ADMINISTRATIVE ACTION.