B-6076, OCTOBER 3, 1939, 19 COMP. GEN. 415

B-6076: Oct 3, 1939

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1939: I HAVE YOUR LETTER OF SEPTEMBER 12. AS FOLLOWS: REFERENCE IS MADE TO THE SO-CALLED AVERAGE PROVISION AS CONTAINED IN THE ANNUAL APPROPRIATION ACT FOR THE DEPARTMENTS OF STATE AND JUSTICE FOR THE FISCAL YEAR 1940 AND PRIOR YEARS. GEN. 851) THIS DEPARTMENT WAS ADVISED THAT: "ALL APPROPRIATION ITEMS UNDER THE DEPARTMENT OF JUSTICE IN THE ACT OF FEBRUARY 27. EXCEPT "CONDUCT OF CUSTOMS CASES" WHICH IS EXCLUDED FROM CLASSIFICATION. THE BUREAU OF PROHIBITION WERE REQUIRED TO BE CONSIDERED AS SEPARATE "AVERAGE" UNITS AND THAT ALL OTHER OFFICES OF THE DEPARTMENT BE GROUPED AS ONE UNIT FOR THE PURPOSE OF COMPLYING WITH THE SO-CALLED AVERAGE PROVISION. IT WAS STATED THAT THE RULING OF APRIL 14.

B-6076, OCTOBER 3, 1939, 19 COMP. GEN. 415

CLASSIFICATION - AVERAGE SALARY PROVISION - APPROPRIATION UNIT DETERMINATION - JUSTICE DEPARTMENT AS THE ACT OF JUNE 29, 1939, 53 STAT. 896, PROVIDES SEPARATE APPROPRIATION ITEMS FOR EACH OF THE 10 OFFICES OR DIVISIONS OF THE DEPARTMENT OF JUSTICE LISTED THEREIN AND ADMINISTERED AS SEPARATE UNITS, EACH OF THEM NOW MAY BE CONSIDERED AS A SEPARATE "BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT," FOR THE PURPOSE OF APPLYING THE PROVISIONS OF THE ACT THAT THE "AVERAGE OF THE SALARIES * * * OF PERSONS UNDER ANY GRADE IN ANY BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT SHALL NOT AT ANY TIME EXCEED THE AVERAGE OF THE COMPENSATION RATES SPECIFIED FOR THE GRADE BY" THE CLASSIFICATION ACT OF 1923, BUT ANY ADJUSTMENT ON THAT BASIS DOES NOT REQUIRE ANY INCREASE OR DECREASE IN EXISTING SALARY RATES OF THE EMPLOYEES INVOLVED.

COMPTROLLER GENERAL BROWN TO THE ATTORNEY GENERAL, OCTOBER 3, 1939:

I HAVE YOUR LETTER OF SEPTEMBER 12, 1939, AS FOLLOWS:

REFERENCE IS MADE TO THE SO-CALLED AVERAGE PROVISION AS CONTAINED IN THE ANNUAL APPROPRIATION ACT FOR THE DEPARTMENTS OF STATE AND JUSTICE FOR THE FISCAL YEAR 1940 AND PRIOR YEARS, WHICH READS IN PART AS FOLLOWS"

PROVIDED, THAT IN EXPENDING APPROPRIATIONS OR PORTIONS OF APPROPRIATIONS, CONTAINED IN THIS ACT, FOR THE PAYMENT OF PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, * * * THE AVERAGE OF THE SALARIES OF THE TOTAL NUMBER OF PERSONS UNDER ANY GRADE IN ANY BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT SHALL NOT AT ANY TIME EXCEED THE AVERAGE OF THE COMPENSATION RATES SPECIFIED FOR THE GRADE BY SUCH ACT, AS AMENDED.'

IN A DECISION OF FORMER COMPTROLLER GENERAL MCCARL TO THE ATTORNEY GENERAL DATED APRIL 14, 1925 (4 COMP. GEN. 851) THIS DEPARTMENT WAS ADVISED THAT:

"ALL APPROPRIATION ITEMS UNDER THE DEPARTMENT OF JUSTICE IN THE ACT OF FEBRUARY 27, 1925, FOR THE FISCAL YEAR 1926, PROVIDING FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA CONSTITUTE ONE ,BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT" WITHIN THE MEANING OF THE AVERAGE PROVISION, EXCEPT "CONDUCT OF CUSTOMS CASES" WHICH IS EXCLUDED FROM CLASSIFICATION, AND "INSPECTION OF PRISONS AND PRISONERS" WHICH MAY BE CONSIDERED AS A SEPARATE AND DISTINCT UNIT.'

UNDER DATE OF JUNE 7, 1930 (A-32,100), FORMER COMPTROLLER GENERAL MCCARL MODIFIED HIS RULING OF APRIL 14, 1925, TO THE EXTENT THAT THE BUREAU OF INVESTIGATION, THE BUREAU OF PRISONS, AND THE BUREAU OF PROHIBITION WERE REQUIRED TO BE CONSIDERED AS SEPARATE "AVERAGE" UNITS AND THAT ALL OTHER OFFICES OF THE DEPARTMENT BE GROUPED AS ONE UNIT FOR THE PURPOSE OF COMPLYING WITH THE SO-CALLED AVERAGE PROVISION. IN THE DECISION OF JUNE 7, 1930, SUPRA, IT WAS STATED THAT THE RULING OF APRIL 14, 1925, WAS BASED UPON THE ASSUMPTION THAT THERE WERE NO BUREAU ORGANIZATIONS IN THE DEPARTMENT OF JUSTICE, AS THE TERM IS ORDINARILY UNDERSTOOD. AT THE PRESENT TIME, THERE ARE SEVERAL BUREAUS OR DIVISIONS IN THE DEPARTMENT OF JUSTICE, FOR EACH OF WHICH A SEPARATE APPROPRIATION IS NOW PROVIDED BY LAW. THESE ARE AS FOLLOWS:

CHART BUREAU, DIVISION, OR OFFICE: APPROPRIATION

OFFICE OF THE ATTORNEY GENERAL-- SALARIES, OFFICE OF THE ATTORNEY

GENERAL, 1500115.

OFFICE OF THE SOLICITOR GENERAL- SALARIES, OFFICE OF THE

SOLICITOR GENERAL, DEPARTMENT

OF JUSTICE, 1500116.

OFFICE OF THE ASSISTANT SALARIES, OFFICE OF THE

SOLICITOR GENERAL. ASSISTANT SOLICITOR GENERAL,

DEPARTMENT OF JUSTICE, 1500117.

OFFICE OF THE ASSISTANT TO THE SALARIES, OFFICE OF THE

ATTORNEY GENERAL. ASSISTANT TO THE ATTORNEY

GENERAL, 1500118.

ADMINISTRATIVE DIVISION --------- SALARIES, ADMINISTRATIVE

DIVISION, DEPARTMENT OF

JUSTICE, 1500119.

TAX DIVISION -------------------- SALARIES, TAX DIVISION,

DEPARTMENT OF JUSTICE, 1500120.

CRIMINAL DIVISION --------------- SALARIES, CRIMINAL DIVISION,

DEPARTMENT OF JUSTICE, 1500121.

CLAIMS DIVISION ----------------- SALARIES, CLAIMS DIVISION,

DEPARTMENT OF JUSTICE, 1500122.

OFFICE OF THE PARDON ATTORNEY -- SALARIES, OFFICE OF THE PARDON

ATTORNEY, DEPARTMENT OF

JUSTICE, 1500124.

ANTITRUST DIVISION -------------- SALARIES, ANTITRUST DIVISION,

DEPARTMENT OF JUSTICE, 1500125.

ENFORCEMENT OF ANTITRUST AND

KINDRED LAWS, 1500304.

FEDERAL BUREAU OF INVESTIGATION. SALARIES AND EXPENSES, FEDERAL

BUREAU OF INVESTIGATION,

1500200.

BOND AND SPIRITS DIVISION ------ SALARIES AND EXPENSES, BOND AND

SPIRITS DIVISION, DEPARTMENT

OF JUSTICE, 1500306.

LANDS DIVISION ------------------ SALARIES AND EXPENSES, LANDS

DIVISION, DEPARTMENT OF

JUSTICE, 1500307.

BUREAU OF WAR RISK LITIGATION. SALARIES AND EXPENSES, VETERANS'

INSURANCE LITIGATION DIVISION,

DEPARTMENT OF JUSTICE, 1500308.

BUREAU OF PRISONS --------------- SALARIES, BUREAU OF PRISONS,

1500401.

FOR THE PURPOSE OF COMPLYING WITH THE TWO RULINGS ABOVE MENTIONED, THE FIRST TEN BUREAUS OR DIVISIONS LISTED ABOVE WERE CONSOLIDATED FOR "AVERAGE" PURPOSES. THE BUREAU OF INVESTIGATION AND THE BUREAU OF PRISONS HAVE EACH BEEN TREATED AS SEPARATE UNITS. THE BOND AND SPIRITS DIVISION WAS FORMERLY A PART OF THE BUREAU OF PROHIBITION, WHICH WAS TRANSFERRED TO THE DEPARTMENT OF JUSTICE BY THE ACT OF MAY 27, 1930. BY EXECUTIVE ORDER NO. 6166 DATED JUNE 10, 1933, THE APPROPRIATION SALARIES AND EXPENSES, BUREAU OF PROHIBITION, 1934" WAS TRANSFERRED TO " SALARIES AND EXPENSES, DIVISION OF INVESTIGATION, 1934.' BY EXECUTIVE ORDER NO. 6639, DATED MARCH 10, 1934, CERTAIN FUNCTIONS OF THE PROHIBITION BUREAU WERE TRANSFERRED FROM THE ATTORNEY GENERAL TO THE COMMISSIONER OF INTERNAL REVENUE, TREASURY DEPARTMENT. FOR THE PURPOSE OF PERFORMING THE FUNCTIONS REMAINING IN THIS DEPARTMENT, THERE WAS ESTABLISHED THE ALCOHOLIC BEVERAGE UNIT, LATER DESIGNATED AS THE " TAXES AND PENALTIES DIVISION," AND MORE RECENTLY AS THE " BOND AND SPIRITS DIVISION" WITH AN APPROPRIATION OF CORRESPONDING TITLE. EFFECTIVE WITH THE ESTABLISHMENT OF THIS OFFICE AS A DIVISION, IT HAS SINCE BEEN TREATED BY THE DEPARTMENT AS A SEPARATE "AVERAGE" UNIT.

THE BUREAU OF WAR RISK LITIGATION WAS ESTABLISHED PURSUANT TO THE EXECUTIVE ORDER NO. 6166, DATED JUNE 10, 1933. SINCE ITS INCEPTION, THIS BUREAU HAS BEEN TREATED AS A SEPARATE "AVERAGE" UNIT.

PRIOR TO JULY 1, 1939, THE PERSONNEL OF THE LANDS DIVISION WAS PAID PARTLY FROM GENERAL DEPARTMENTAL SALARY APPROPRIATIONS AND PARTLY FROM VARIOUS P.W.A., W.P.A., AND EMERGENCY RELIEF FUNDS. EFFECTIVE JULY 1, 1939, HOWEVER, THIS DIVISION WAS APPROPRIATED FOR SEPARATELY AND SINCE THAT DATE HAS BEEN CONSIDERED AS A SEPARATE "AVERAGE" UNIT.

IN 3 COMP. GEN. 1001, INVOLVING QUESTIONS RELATING TO THE CLASSIFICATION ACT AND ESPECIALLY TO AVERAGE PROVISIONS, IT WAS HELD THAT:

"THE FACT THAT THE PROVISION HAS EXPRESSLY SPECIFIED "ANY BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT" INDICATES THAT IT IS THE SMALLEST SUBDIVISION OF THE THREE TERMS USED THAT IS CONTROLLING. IF THE BUREAU OR OFFICE IS OPERATING UNDER ONE APPROPRIATION, THE UNIT IS THE BUREAU OR OFFICE, WHEREAS IF THE BUREAU OR OFFICE IS OPERATING UNDER TWO OR MORE APPROPRIATIONS, THE UNIT IS THE APPROPRIATION. IF THERE BE AN INSTANCE OF TWO OR MORE BUREAUS OR OFFICES OPERATING UNDER ONE APPROPRIATION, THE UNIT WOULD BE THE BUREAU OR OFFICE.'

THIS DECISION ALSO STATES THAT:

"IT WOULD SEEM TO BE EVIDENT THAT THE INTENT OF CONGRESS WAS TO PREVENT THE GENERAL USE OF FUNDS ESTIMATED AND APPROPRIATED FOR THE LOWER SALARIES OF A CLASS OR GRADE TO EMPLOY PERSONS IN THE HIGHER SALARIES OF SAID CLASS OR GRADE. IN OTHER WORDS, BY ENACTING THE AVERAGE PROVISION IT WAS SOUGHT TO PREVENT USING THE ENTIRE AMOUNT APPROPRIATED FOR A GIVEN CLASS OR GRADE BY FILLING ONLY THE HIGHER SALARIES POSITIONS THEREIN AND LEAVING THE LOWER SALARIED POSITIONS VACANT.'

THE APPROPRIATION ACT FOR THE DEPARTMENTS OF STATE AND JUSTICE FOR THE FISCAL YEAR 1940, APPROVED JUNE 29, 1939, INCLUDES SEPARATE APPROPRIATION FOR THE FIRST TEN OFFICES OR DIVISIONS INCLUDED IN THE TABULATION HEREIN. ATTENTION IS ALSO INVITED TO THE FACT THAT THE GENERAL ACCOUNTING OFFICE HAS ASSIGNED SEPARATE APPROPRIATION SYMBOL NUMBERS IN EACH CASE. THE QUESTION WHICH NOW PRESENTS ITSELF IS WHETHER SUCH TEN OFFICES OR DIVISIONS SHOULD CONTINUE TO BE CONSOLIDATED FOR "AVERAGE" PURPOSES OR WHETHER THEY SHOULD BE CONSIDERED AS TEN SEPARATE AVERAGE" UNITS.

YOUR DECISION IN THIS MATTER WILL BE APPRECIATED.

THE ACT OF JUNE 29, 1939, 53 STAT. 885, PROVIDES, AT PAGES 896, 897, UNDER TITLE II " DEPARTMENT OF JUSTICE" AND SUBHEADING " OFFICE OF THE ATTORNEY GENERAL," AS FOLLOWS:

FOR PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA AS FOLLOWS:

FOR THE OFFICE OF THE ATTORNEY GENERAL, $60,000.

FOR THE OFFICE OF THE SOLICITOR GENERAL, $60,000.

FOR THE OFFICE OF THE ASSISTANT SOLICITOR GENERAL, $47,300.

FOR THE OFFICE OF ASSISTANT TO THE ATTORNEY GENERAL, $80,000.

FOR THE ADMINISTRATIVE DIVISION, $660,000.

FOR THE TAX DIVISION, $567,500.

FOR THE CRIMINAL DIVISION, $210,000, OF WHICH SUM NOT TO EXCEED $50,000 MAY BE AVAILABLE FOR THE INVESTIGATION AND PROSECUTION OF ALLEGED VIOLATIONS OF CIVIL LIBERTIES.

FOR THE CLAIMS DIVISION, $314,220.

FOR THE OFFICE OF PARDON ATTORNEY, $25,500.

FOR THE ANTI-TRUST DIVISION, $9,000.

TOTAL, PERSONAL SERVICES, OFFICE OF THE ATTORNEY GENERAL,

$2,033,520.

AS THE ACT NOW PROVIDES SEPARATE APPROPRIATION ITEMS FOR EACH OF THE 10 OFFICES OR DIVISIONS LISTED THEREIN, CORRESPONDING TO THE FIRST 10 OFFICES OR DIVISIONS LISTED IN YOUR LETTER, WHICH IT IS UNDERSTOOD ARE ADMINISTERED AS SEPARATE UNITS, IT IS PROPER FOR THE PURPOSE OF THE "AVERAGE" COMPENSATION PROVISION OF THE STATUTE, TO CONSIDER EACH OF THEM AS A SEPARATE "BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT," INSTEAD OF REGARDING ALL OF THEM AS ONE APPROPRIATION UNIT. SEE 4 COMP. GEN. 342; ID. 678; ID. 741. ANY ADJUSTMENT UPON THAT BASIS, HOWEVER, IS NOT TO BE REGARDED AS REQUIRING ANY INCREASE OR DECREASE IN EXISTING SALARY RATES OF THE EMPLOYEES INVOLVED.