B-59999, SEPTEMBER 9, 1946, 26 COMP. GEN. 162

B-59999, SEPTEMBER 9, 1946, 26 COMP. GEN. 162

COMPENSATION - WITHIN-GRADE PROMOTIONS - ADMINISTRATIVE INCREASES AS CONSTITUTING EQUIVALENT INCREASE THE PERCENTAGE INCREASES IN BASIC COMPENSATION AUTHORIZED BY SECTION 405 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, FOR EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT, WHICH WERE GRANTED ADMINISTRATIVELY ON JULY 1, 1945, TO ATTORNEYS AND ENGINEERS OF THE BONNEVILLE POWER ADMINISTRATION WHOSE GRADES AND SALARIES HAD BEEN FIXED ADMINISTRATIVELY IN ACCORDANCE WITH THE CLASSIFICATION ACT, DO NOT CONSTITUTE AN "EQUIVALENT INCREASE" WITHIN THE MEANING OF THE WITHIN-GRADE ADVANCEMENT PROVISIONS OF SECTION 402 OF SAID ACT, SO AS TO START A NEW WAITING PERIOD FOR WITHIN GRADE ADVANCEMENT, EVEN THOUGH SAID EMPLOYEES WERE NOT PLACED UNDER THE CLASSIFICATION ACT BY STATUTE UNTIL ENACTMENT OF THE ACT OF OCTOBER 23, 1945.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 9, 1946:

I HAVE YOUR LETTER OF AUGUST 14, 1946, AS FOLLOWS:

I WISH TO SUBMIT FOR YOUR DETERMINATION THE QUESTION AS TO WHETHER INCREASES IN BASIC COMPENSATION GRANTED ADMINISTRATIVELY TO ATTORNEYS AND ENGINEERS OF THE BONNEVILLE POWER ADMINISTRATION ON JULY 1, 1945 CONSTITUTE "EQUIVALENT INCREASES IN COMPENSATION" WITHIN THE MEANING OF THE MEAD-RAMSPECK ACT SO AS TO START A NEW WAITING PERIOD FOR AUTOMATIC WITHIN-GRADE PROMOTIONS.

ATTORNEYS AND ENGINEERS WERE BELIEVED ORIGINALLY BY THE ADMINISTRATION TO BE LEGALLY SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND IN ALL RESPECTS THEY WERE TREATED AS IF THEY WERE SUBJECT TO THAT ACT. 1944, HOWEVER, IT WAS DETERMINED THAT THEY WERE NOT LEGALLY SUBJECT TO THAT ACT. IN 1944, HOWEVER, IT WAS DETERMINED THAT THEY WERE NOT LEGALLY SUBJECT TO THE CLASSIFICATION ACT AND THAT THEIR COMPENSATION WAS TO BE FIXED ADMINISTRATIVELY. B 41365, APRIL 20, 1944; B-41365, NOVEMBER 6, 1944 (24 COMP. GEN. 351). THE ADMINISTRATION THEREAFTER FIXED THEIR COMPENSATION ADMINISTRATIVELY, BUT IN ALL RESPECTS CONTINUED TO APPLY THE GRADES, SALARY SCHEDULES AND WITHIN-GRADE PROMOTION POLICIES LEGALLY APPLICABLE TO EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT.

ON JULY 1, 1945, BASIC SALARIES WERE INCREASED BY ADMINISTRATIVE ACTION TO CORRESPOND TO THE INCREASES MADE IN CLASSIFICATION ACT SCHEDULES BY SECTION 405 OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945 (HEREINAFTER SOMETIMES REFERRED TO AS THE "1945 ACT"). THAT SECTION PROVIDED THAT THE INCREASES IT EFFECTED WERE NOT TO BE TREATED AS "EQUIVALENT INCREASES IN COMPENSATION" WHICH WOULD START A NEW WAITING PERIOD FOR WITHIN-GRADE PROMOTIONS UNDER THE MEAD-RAMSPECK ACT. IN ACCORDANCE WITH THE ADMINISTRATION'S POLICY OF TREATING ATTORNEYS AND ENGINEERS AS IF THEY WERE SUBJECT TO THE CLASSIFICATION ACT, IT WAS ADMINISTRATIVELY DETERMINED THAT THE JULY 1 INCREASE SHOULD NOT BE DEEMED TO START A NEW WAITING PERIOD FOR AUTOMATIC INCREASES TO BE GRANTED ADMINISTRATIVELY TO ATTORNEYS AND ENGINEERS.

IF ATTORNEYS AND ENGINEERS HAD REMAINED OUTSIDE THE CLASSIFICATION ACT AND THE MEAD-RAMSPECK ACT, NO DIFFICULTIES WOULD HAVE ENSUED INASMUCH AS THE ADMINISTRATION COULD HAVE CONTINUED TO FOLLOW THE POLICIES OF THOSE ACTS. ON OCTOBER 23, 1945, HOWEVER, ATTORNEYS AND ENGINEERS WERE PLACED UNDER BOTH THE CLASSIFICATION AND MEAD-RAMSPECK ACTS, PUB. NO. 201, 79TH CONG. ( ST SESS.). UNDER THE MEAD-RAMSPECK ACT, THE JULY 1, 1945 SALARY INCREASE, GRANTED ADMINISTRATIVELY IN ORDER TO CONFORM TO THE POLICY OF THE CLASSIFICATION ACT, WOULD START A NEW WAITING PERIOD FOR AUTOMATIC WITHIN-GRADE PROMOTIONS UNLESS SOME EXCEPTION IS PROVIDED BY THE FEDERAL EMPLOYEES' PAY ACT OF 1945.

THE LATTER ACT GRANTS AN EXCEPTION FOR INCREASES EFFECTED BY SECTION 405, WHICH IS CONTAINED IN TITLE IV. SECTION 101 (B) PROVIDES THAT TITLE IV "SHALL APPLY TO OFFICERS AND EMPLOYEES WHO OCCUPY POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED.' THE QUESTION, THEREFORE, IS WHETHER BONNEVILLE POWER ADMINISTRATION ATTORNEYS AND ENGINEERS WERE SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, WITHIN THE MEANING OF THE 1945 ACT WHEN THEIR COMPENSATION WAS INCREASED ON JULY 1, 1945.

AS INDICATED ABOVE, THEIR COMPENSATION WAS NOT LEGALLY REQUIRED TO BE GOVERNED BY THE CLASSIFICATION ACT, BUT AS A MATTER OF ADMINISTRATIVE POLICY THE CLASSIFICATION ACT SCHEDULES WERE APPLIED. IN 25 COMP. GEN. 58, IT WAS HELD THAT WHERE AN AGENCY HAD ELECTED TO FOLLOW ALL OF THE CLASSIFICATION ACT PROCEDURES, ITS EMPLOYEES WERE "SUBJECT TO THE CLASSIFICATION ACT" WITHIN THE MEANING OF THE FEDERAL EMPLOYEES' PAY ACT OF 1945 EVEN THOUGH THE CLASSIFICATION ACT WAS NOT LEGALLY APPLICABLE. THIS DECISION AND THAT REPORTED IN 25 COMP. GEN. 86 WOULD APPEAR TO SETTLE THE MATTER WERE IT NOT FOR THE DISTINCTION DRAWN IN 21 COMP. GEN. 541, BETWEEN POSITIONS TECHNICALLY MADE SUBJECT TO THE CLASSIFICATION ACT BY ADMINISTRATIVE ACTION PURSUANT TO SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930 (46 STAT. 1005) AND POSITIONS THE COMPENSATION OF WHICH IS FIXED BY ADMINISTRATIVE ACTION ON THE BASIS OF CLASSIFICATION ACT GRADES AND SCHEDULES. THE DECISIONS REFERRED TO APPEAR TO INVOLVE THE FORMER TYPE OF ACTION WHEREAS THE BONNEVILLE POWER ADMINISTRATION ACTION IN FOLLOWING THE CLASSIFICATION ACT GRADES AND SCHEDULES WAS INTENDED TO BE OF THE LATTER TYPE.

HOWEVER, NOTWITHSTANDING THIS DISTINCTION, THE DECISION REPORTED IN 25 COMP. GEN. 502 HOLDS THAT POSITIONS ARE SUBJECT TO THE FEDERAL EMPLOYEES' PAY ACT OF 1945 AS "SUBJECT TO THE CLASSIFICATION ACT OF 1923" EVEN THOUGH THEY "ARE NOT LEGALLY GOVERNED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, NOR ARE ALL OF THE PROCEDURES THEREUNDER FOLLOWED, ALTHOUGH THE GRADES AND SALARIES CONTAINED THEREIN ARE ADMINISTRATIVELY UTILIZED.'

ON THE AUTHORITY OF THIS DECISION, BONNEVILLE POWER ADMINISTRATION FEELS THAT ITS ATTORNEYS AND ENGINEERS WERE "SUBJECT TO THE CLASSIFICATION ACT" AS USED IN THE FEDERAL EMPLOYEES' PAY ACT OF 1945, AND THE SALARY INCREASES GRANTED ON JULY 1, 1945 DO NOT START A NEW WAITING PERIOD FOR AUTOMATIC WITHIN-GRADE PROMOTIONS UNDER THE MEAD RAMSPECK ACT. A CONTRARY INTERPRETATION WOULD RESULT IN THE ANOMALOUS SITUATION, SURELY NOT INTENDED BY CONGRESS, THAT THE VERY ACT OF MAKING THE CLASSIFICATION AND MEAD-RAMSPECK ACTS LEGALLY APPLICABLE TO BONNEVILLE ATTORNEYS AND ENGINEERS WOULD RESULT IN POSTPONING WITHIN GRADE SALARY INCREASES TO WHICH THEY WOULD HAVE BEEN ENTITLED HAD THEY BEEN LEGALLY SUBJECT TO THOSE ACTS ALL ALONG, AND WHICH THEY WOULD HAVE RECEIVED UNDER THE ADMINISTRATION'S POLICY OF CONFORMING TO THOSE ACTS, HAD THOSE ACTS NOT BEEN MADE LEGALLY APPLICABLE.

BECAUSE OF THE LARGE NUMBER OF EMPLOYEES AFFECTED BY THE EXISTENCE OF ANY DOUBT AS TO THE CORRECTNESS OF THE BONNEVILLE POWER ADMINISTRATION'S INTERPRETATIONS, I WOULD APPRECIATE RECEIVING STATEMENT OF YOUR VIEWS ON THIS QUESTION.

IN DECISION OF NOVEMBER 6, 1944, B-41365, 24 COMP. GEN. 351, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE EFFECT OF THE PROVISIONS OF SECTION 10 OF THE BONNEVILLE PROJECT ACT OF AUGUST 20, 1937, AUTHORIZING THE APPOINTMENT WITHOUT REGARD TO THE CIVIL-SERVICE LAWS OF "ATTORNEYS, ENGINEERS, AND OTHER EXPERTS * * * AT NOT TO EXCEED $7,500 PER ANNUM" AND "OTHER OFFICERS AND EMPLOYEES * * * IN ACCORDANCE WITH THE CLASSIFICATION ACT," IS TO CLASSIFY ALL ATTORNEYS AND ENGINEERS APPOINTED THEREUNDER AS "EXPERTS" SUBJECT TO THE $7,500 LIMITATION, AND TO EXCLUDE SUCH ATTORNEYS AND ENGINEERS AS WOULD NOT OTHERWISE BE REGARDED AS EXPERTS FROM THE CATEGORY "OTHER OFFICERS AND EMPLOYEES" WHOSE SALARIES ARE TO BE FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT, 14 COMP. GEN. 70, DISTINGUISHED.

SECTION 5 OF THE ACT OF OCTOBER 23, 1945, PUBLIC LAW 201, 59 STAT. 547, PROVIDES:

SEC. 5. SECTION 2 (A) OF THE SAID ACT IS HEREBY AMENDED BY STRIKING THE LANGUAGE INSERTED BY SECTION 1 OF THE ACT OF MARCH 6, 1940 (54 STAT. 47); AND SECTION 10 OF THE SAID ACT IS HEREBY AMENDED TO READ AS FOLLOWS:

"/A) THE SECRETARY OF THE INTERIOR SHALL APPOINT, WITHOUT REGARD TO THE CIVIL-SERVICE LAWS, AN ASSISTANT ADMINISTRATOR, CHIEF ENGINEER, AND GENERAL COUNSEL AND SHALL FIX THE COMPENSATION OF EACH IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED. THE ASSISTANT ADMINISTRATOR SHALL PERFORM THE DUTIES AND EXERCISE THE POWERS OF THE ADMINISTRATOR, IN THE EVENT OF THE ABSENCE OR SICKNESS OF THE ADMINISTRATOR UNTIL SUCH ABSENCE OR SICKNESS SHALL CEASE AND IN THE EVENT OF A VACANCY IN THE OFFICE OF ADMINISTRATOR UNTIL A SUCCESSOR IS APPOINTED.

"/B) THE ADMINISTRATOR, THE SECRETARY OF WAR, AND THE FEDERAL POWER COMMISSION, RESPECTIVELY, ARE AUTHORIZED TO APPOINT, SUBJECT TO THE CIVIL- SERVICE LAWS, SUCH OFFICERS AND EMPLOYEES AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT, THE APPOINTMENT OF WHOM IS NOT OTHERWISE PROVIDED FOR, AND TO FIX THEIR COMPENSATION IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED. * * * THE ADMINISTRATOR, THE SECRETARY OF WAR, AND THE FEDERAL POWER COMMISSION, RESPECTIVELY, ARE ALSO AUTHORIZED TO APPOINT, WITHOUT REGARD TO THE CIVIL-SERVICE LAWS, SUCH EXPERTS AS MAY BE NECESSARY FOR CARRYING OUT THE FUNCTIONS ENTRUSTED TO THEM UNDER THIS ACT AND TO FIX THE COMPENSATION OF EACH OF SUCH EXPERTS WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, BUT AT NOT TO EXCEED $7,500 PER ANNUM.'

AS THE SECRETARY OF THE INTERIOR PREVIOUSLY HAD ESTABLISHED COMPENSATION RATES IN ACCORDANCE WITH THE CLASSIFICATION ACT FOR THE POSITIONS IN QUESTION IT IS PRESUMED THAT THE PASSAGE OF THE ABOVE ACT OF OCTOBER 23, 1945, RESULTED IN NO CHANGE IN THE COMPENSATION OF THE INVOLVED EMPLOYEES. IN 25 COMP. GEN. 58 IT WAS HELD (QUOTING FROM THE SYLLABUS):

SEE, ALSO, 25 COMP. GEN. 502, TO THE SAME EFFECT.

ACCORDINGLY, HAVING PREVIOUSLY ADOPTED BY ADMINISTRATIVE ACTION THE CLASSIFICATION GRADES AND RATES FOR THE EMPLOYEES IN QUESTION SUCH EMPLOYEES PROPERLY WERE GIVEN THE PERCENTAGE INCREASES AUTHORIZED BY SECTION 405 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 300, EFFECTIVE JULY 1, 1945, AND YOUR ADMINISTRATIVE DETERMINATION THAT SUCH INCREASES DID NOT CONSTITUTE AN "EQUIVALENT INCREASE" WITHIN THE PURVIEW OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299, WAS PROPER.

SECTION 5 OF THE ACT OF OCTOBER 23, 1945, SUPRA, HAD THE EFFECT OF REQUIRING BY STATUTE, AND SUBJECT TO THE CIVIL-SERVICE RULES AND REGULATIONS, WHAT PREVIOUSLY WAS ACCOMPLISHED BY ADMINISTRATIVE ACTION IN FIXING THE COMPENSATION OF THOSE EMPLOYEES UNDER THE CLASSIFICATION ACT, AND REQUIRES NO CHANGE IN THE ADMINISTRATIVE FINDING THAT THE PERCENTAGE INCREASES GIVEN JULY 1, 1945, DID NOT REQUIRE THE STARTING OF A NEW PERIOD OF SERVICE FOR WITHIN-GRADE SALARY ADVANCES.

THE DECISION, 21 COMP. GEN. 541, REFERRED TO IN YOUR LETTER, HELD IN EFFECT THAT UNTIL POSITIONS HAD BEEN ALLOCATED TO CLASSIFIED GRADES BY THE CIVIL SERVICE COMMISSION THE AUTOMATIC WITHIN-GRADE ADVANCES COULD NOT BE MADE UNDER THE CLASSIFICATION ACT BUT THAT INCREASES IN COMPENSATION WHICH MIGHT EQUAL SUCH WITHIN-GRADE ADVANCES COULD BE GIVEN ADMINISTRATIVELY SUBJECT TO THE AVAILABILITY OF APPROPRIATED FUNDS. IN 25 COMP. GEN. 58, SUPRA, EVIDENCE WAS PRESENTED THAT THE INVOLVED AGENCIES HAD ADOPTED THE CLASSIFICATION ACT FOR THE EMPLOYEES THERE IN QUESTION, INCLUDING THE JURISDICTION OF THE CIVIL SERVICE COMMISSION WITH RESPECT TO ALLOCATING THE POSITIONS, SO THAT THERE WAS NO MATERIAL DIFFERENCE BETWEEN THE EFFECT OF THE RESPECTIVE DECISIONS. IT IS ASSUMED THAT THE CLASSIFICATION GRADES ADMINISTRATIVELY ALLOTTED TO THE POSITIONS OF THE INVOLVED EMPLOYEES OF THE BONNEVILLE POWER ADMINISTRATION NOW WILL BE SUBMITTED TO THE CIVIL SERVICE COMMISSION FOR CONFIRMATION. I FIND NOTHING IN 21 COMP. GEN. 541 REQUIRING ANY DIFFERENT CONCLUSION THAN THAT REACHED ABOVE WITH RESPECT TO THE PERCENTAGE INCREASE GIVEN THE RESPECTIVE EMPLOYEES JULY 1, 1945. SPECIFICALLY, THEREFORE, THE QUESTION PRESENTED IN THE OPENING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.