B-61607, DECEMBER 13, 1946, 26 COMP. GEN. 406

B-61607: Dec 13, 1946

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FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946 - APPLICABILITY TO INTERMITTENT EMPLOYEE-MEMBERS OF DISTRICT OF COLUMBIA BOARDS OF EDUCATION MEMBERS OF THE BOARDS OF INSPECTION OF THE DISTRICT OF COLUMBIA WHO ARE INTERMITTENTLY EMPLOYED ON A PER DIEM OR PER ANNUM BASIS AT RATES PRESCRIBED BY THE DISTRICT OF COLUMBIA APPROPRIATION ACTS. ARE EMPLOYEES OCCUPYING POSITIONS IN THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT WITHIN THE MEANING OF THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946. IN THE ABSENCE OF ANY PROVISION IN THE FEDERAL EMPLOYEES PAY ACT OF 1945 LIMITING ITS BENEFITS TO THOSE EMPLOYEES WHOSE POSITIONS ARE ESTABLISHED AND WHOSE BASIC RATES OF COMPENSATION HAD BEEN FIXED ON THE EFFECTIVE DATE THEREOF.

B-61607, DECEMBER 13, 1946, 26 COMP. GEN. 406

FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946 - APPLICABILITY TO INTERMITTENT EMPLOYEE-MEMBERS OF DISTRICT OF COLUMBIA BOARDS OF EDUCATION MEMBERS OF THE BOARDS OF INSPECTION OF THE DISTRICT OF COLUMBIA WHO ARE INTERMITTENTLY EMPLOYED ON A PER DIEM OR PER ANNUM BASIS AT RATES PRESCRIBED BY THE DISTRICT OF COLUMBIA APPROPRIATION ACTS, 1946 AND 1947, AND THE ACT OF JUNE 29, 1940, ARE EMPLOYEES OCCUPYING POSITIONS IN THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT WITHIN THE MEANING OF THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946, AND, THEREFORE, THE RATES PROVIDED BY SAID APPROPRIATION ACTS, BEING BASIC RATES ,SPECIFICALLY PRESCRIBED BY STATUTE," SHOULD BE INCREASED PURSUANT TO SECTIONS 602 (B) AND 4 OF THE 1945 AND 1946 PAY ACTS, RESPECTIVELY. IN THE ABSENCE OF ANY PROVISION IN THE FEDERAL EMPLOYEES PAY ACT OF 1945 LIMITING ITS BENEFITS TO THOSE EMPLOYEES WHOSE POSITIONS ARE ESTABLISHED AND WHOSE BASIC RATES OF COMPENSATION HAD BEEN FIXED ON THE EFFECTIVE DATE THEREOF, PART TIME EMPLOYEES OCCUPYING NEW POSITIONS ON THE SPECIAL APPEAL BOARD AND THE ELECTRICAL EXAMINING BOARD PROVIDED FOR IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1947, ARE ENTITLED TO THE BASIC COMPENSATION INCREASES AUTHORIZED BY SECTION 602 (B) OF THE 1945 ACT, AND SECTION 4 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 WHICH SPECIFICALLY INCLUDES ANY INCREASES COMPUTED PURSUANT TO SECTION 602 (B) OF THE 1945 ACT.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, DECEMBER 13, 1946:

THERE HAS BEEN CONSIDERED YOUR LETTER OF OCTOBER 30, 1946, AS FOLLOWS:

UNDER THE HEADING " DEPARTMENT OF INSPECTIONS" IN THE D.C. APPROPRIATION ACT, 1946, APPROVED JUNE 30, 1945, IT PROVIDES IN PART AS FOLLOWS:

"SUCH EXPENSES TO INCLUDE TWO MEMBERS OF THE PLUMBING BOARD AT $150 PER ANNUM EACH; TWO MEMBERS OF THE BOARD OF EXAMINERS, STEAM ENGINEERS, AT $300 PER ANNUM EACH (THE INSPECTOR OF BOILERS TO SERVE WITHOUT ADDITIONAL COMPENSATION); $6 PER DIEM TO EACH MEMBER OF BOARD OF SURVEY, OTHER THAN THE INSPECTOR OF BUILDINGS, WHILE ACTUALLY EMPLOYED IN SURVEYS OF SUCH DANGEROUS AND UNSAFE BUILDINGS; "

THE SAME LANGUAGE IS CONTAINED UNDER THIS HEADING IN THE D.C. APPROPRIATION ACT, 1947, APPROVED JULY 9, 1946, WITH THE FOLLOWING LANGUAGE ADDED:

"THREE MEMBERS OF BOARD OF SPECIAL APPEAL AND TWO MEMBERS OF ELECTRICAL EXAMINING BOARD AT $300 PER ANNUM EACH.'

SECTION 602 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 PROVIDES THAT:

"BASIC RATES OF COMPENSATION SPECIFICALLY PRESCRIBED BY STATUTE OF CONGRESS FOR POSITIONS IN THE EXECUTIVE BRANCH OR THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT WHICH ARE NOT INCREASED BY ANY OTHER PROVISION OF THIS ACT ARE HEREBY INCREASED IN THE SAME AMOUNT THAT CORRESPONDING RATES WOULD BE INCREASED UNDER THE PROVISIONS OF SECTION 405 OF THIS ACT; AND EACH AUGMENTED RATE SHALL BE CONSIDERED TO BE REGULAR BASIC RATE OF COMPENSATION.'

SECTION 603 (A) OF THE SAME ACT PROVIDES THAT:

"THE AGGREGATE PER ANNUM RATE OF COMPENSATION WITH RESPECT TO ANY PAY PERIOD, IN THE CASE OF ANY FULL-TIME EMPLOYEE IN THE SERVICE ON JULY 1, 1945, (1) WHO WAS A FULL-TIME EMPLOYEE ON JUNE 30, 1945, (2) WHOSE PER ANNUM BASIC RATE OF COMPENSATION ON JUNE 30, 1945, DID NOT EXCEED A RATE OF $1,800 PER ANNUM, AND (3) WHOSE COMPENSATION IS FIXED IN ACCORDANCE WITH THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, OR THE ACT ENTITLED "AN ACT TO ADJUST THE COMPENSATION OF CERTAIN EMPLOYEES IN THE CUSTOMS SERVICE," APPROVED MAY 29, 1928, AS AMENDED, SHALL NOT, UNDER THE RATES OF COMPENSATION ESTABLISHED BY THIS ACT, SO LONG AS HE CONTINUES TO OCCUPY THE POSITION HE OCCUPIED ON JUNE 30, 1945, BE LESS THAN HIS PER ANNUM BASIC RATE OF COMPENSATION ON SUCH DATE, PLUS THE RATE OF $300 PER ANNUM OR 25 PERCENTUM OF SUCH PER ANNUM BASIC RATE OF COMPENSATION, WHICHEVER IS THE SMALLER AMOUNT.'

SECTION 4 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 PROVIDES THAT:

"RATES OF BASIC COMPENSATION SPECIFICALLY PROVIDED BY STATUTE (INCLUDING ANY INCREASE THEREIN COMPUTED IN ACCORDANCE WITH SECTION 602 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945) FOR POSITIONS IN THE EXECUTIVE BRANCH OR THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT WHICH ARE NOT INCLUDED IN SECTION 102, AS AMENDED, OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 OR IN THE DISTRICT OF COLUMBIA TEACHERS SALARY ACT OF 1945, AND ARE NOT INCREASED BY ANY OTHER PROVISION OF THIS ACT, ARE HEREBY INCREASED BY 14 PERCENTUM OR $250 PER ANNUM WHICHEVER IS THE GREATER, EXCEPT THAT NO SUCH RATE SHALL BE INCREASED BY MORE THAN 25 PERCENTUM. SUCH AUGMENTED RATES SHALL BE CONSIDERED TO BE THE REGULAR RATES OF BASIC COMPENSATION.'

THE COMMISSIONERS WISH TO BE ADVISED IF PERSONS EMPLOYED UNDER THE LANGUAGE CONTAINED IN THE HEADING " DEPARTMENT OF INSPECTIONS" IN THE D.C. APPROPRIATION ACTS OF 1946 AND 1947 ARE ENTITLED TO THE PROVISIONS OF THE FEDERAL EMPLOYEES' PAY ACTS OF 1945 AND 1946.

IF THE ANSWER IS "YES" WILL THE INCREASED RATES ESTABLISHED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945 BE FURTHER INCREASED BY THE FEDERAL EMPLOYEES PAY ACT OF 1946 FOR ONLY THE POSITIONS CARRIED IN BOTH THE D.C. APPROPRIATION ACT OF 1946 AND 1947, OR WILL THE NEW POSITIONS CARRIED ONLY IN THE D.C. APPROPRIATION ACT OF 1947 ALSO BE ENTITLED TO THE BENEFITS OF BOTH THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946?

WHILE IT IS NOT SO STATED IN THE SUBMISSION, IT IS UNDERSTOOD THAT THE MEMBERS OF THE VARIOUS BOARDS UNDER CONSIDERATION--- EXCLUSIVE OF THE MEMBER OF EACH BOARD WHO IS A REGULAR FULL-TIME EMPLOYEE OF THE DISTRICT OF COLUMBIA AND PRESUMABLY NOT ENTITLED TO ANY ADDITIONAL COMPENSATION BY REASON OF HIS MEMBERSHIP THEREON--- ARE NOT EMPLOYED BY THE DISTRICT OF COLUMBIA OTHER THAN AS MEMBERS OF THEIR RESPECTIVE BOARDS. HOWEVER, AS THE BOARDS OF WHICH THEY ARE MEMBERS ARE UNDER THE ADMINISTRATIVE CONTROL OF THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA, AND AS THE DUTIES REQUIRED OF THE BOARD MEMBERS APPARENTLY ARE PERFORMED UNDER RULES AND REGULATIONS PRESCRIBED BY THE COMMISSIONERS, NO REASON IS PERCEIVED FOR REGARDING THEM OTHER THAN AS "EMPLOYEES" OCCUPYING ,POSITIONS" IN THE DISTRICT OF COLUMBIA MUNICIPAL GOVERNMENT, WITHIN THE MEANING OF THOSE TERMS AS USED IN THE FEDERAL EMPLOYEES PAY ACTS OF 1945 AND 1946. NOR DOES AN EXAMINATION OF THE EXEMPTION SECTION (102) OF THE 1945 STATUTE, 59 STAT. 296, SHOW ANY EXEMPTION THAT EXCLUDES FROM ITS BENEFITS PERSONS ENGAGED TO PERFORM PERSONAL SERVICES FOR THE DISTRICT OF COLUMBIA, WHETHER THEY BE ENGAGED FOR REGULAR OR IRREGULAR PERIODS, PART OR FULL TIME, OR WHETHER THEIR COMPENSATION BE COMPUTED UPON A PER ANNUM OR OTHER TIME BASIS. FURTHERMORE, UNQUESTIONABLY THE COMPENSATION RATES PROVIDED BY THE DISTRICT OF COLUMBIA APPROPRIATION ACTS QUOTED IN YOUR LETTER, ARE "BASIC RATES OF COMPENSATION SPECIFICALLY PRESCRIBED BY STATUTE OF CONGRESS," EXCEPT THAT IN THE CASE OF THE BOARD OF EXAMINERS, STEAM ENGINEERS, THE ACT OF JUNE 29, 1940, 54 STAT. 702, SETS FORTH A REGULAR RATE OF COMPENSATION OF $10 PER DAY "WHEN ACTUALLY ENGAGED IN THE WORK OF THE BOARD," NOT TO EXCEED $300 PER ANNUM. THUS, IN THAT PARTICULAR INSTANCE, THE 1946 AND 1947 APPROPRIATION ACTS ARE TO BE REGARDED AS PROVIDING FUNDS FOR PAYMENT OF THE BASIC COMPENSATION SPECIFICALLY PROVIDED FOR BY THE ACT OF JUNE 29, 1940.

ACCORDINGLY, THE INDIVIDUALS OCCUPYING THE POSITIONS SPECIFIED IN THE SAID APPROPRIATION ACTS ARE ENTITLED TO THE INCREASE PROVIDED FOR BY SECTION 602 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 302, WHICH HAS THE EFFECT OF RAISING THE EXISTING STATUTORY RATES BY THE SAME AMOUNT THEY WOULD HAVE BEEN RAISED IF THEY HAD BEEN WITHIN THE CLASSIFICATION ACT AND HAD SECTION 405 OF THE STATUTE, 59 STAT. 300, BEEN APPLICABLE--- THAT IS TO SAY,"INCREASED BY 20 PERCENTUM OF THAT PART THEREOF WHICH IS NOT IN EXCESS OF $1,200 PER ANNUM, PLUS 10 PERCENTUM OF THAT PART THEREOF WHICH IS IN EXCESS OF $1,200 PER ANNUM BUT NOT IN EXCESS OF $4,600 PER ANNUM.' LIKEWISE, THEY ARE ENTITLED TO THE INCREASE OF "14 PERCENTUM OR $250 PER ANNUM, WHICHEVER IS THE GREATER, EXCEPT THAT NO SUCH RATE SHALL BE INCREASED BY MORE THAN 25 PERCENTUM," PROVIDED FOR BY SECTION 4 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 216.

NEITHER THE 1945 STATUTE NOR THE 1946 STATUTE CONTAINS A FORMULA FOR DETERMINING THE INCREASE PAYABLE TO PER DIEM EMPLOYEES; HOWEVER, IN CONSIDERING THE AMOUNT ALLOWABLE TO PER DIEM EMPLOYEES UNDER SECTION 602 (B) OF THE 1945 STATUTE, IT WAS STATED IN DECISION OF JULY 30, 1945, B- 47471, 25 COMP. GEN. 138, AS FOLLOWS:

ACTUALLY, THERE IS NO FORMULA APPEARING IN THE NEW PAY STATUTE FOR DETERMINING THE PER ANNUM EQUIVALENT OF A PER DAY RATE OF BASIC COMPENSATION PRESCRIBED BY STATUTE. IN THE ABSENCE THEREOF, IT IS NECESSARY TO ADOPT A FORMULA IN ORDER TO CARRY OUT THE PURPOSE AND INTENT OF THE NEW PAY STATUTE AS NEARLY AS MAY BE POSSIBLE. REVERSING THE FORMULA APPEARING IN SECTION 604 (D) OF THE NEW PAY STATUTE, THE PER ANNUM EQUIVALENT OF THE PER DAY RATE OF $6 IS (6 X 260), $1,560. INCREASING SUCH PER ANNUM RATE BY 20 PERCENT ON THE FIRST $1,200, AND 10 PERCENT ON THE BALANCE OF $360, THE NEW EQUIVALENT PER ANNUM BASIC RATE OF COMPENSATION FOR THE ADDITIONAL BAILIFFS IS $1,836, WHICH PER ANNUM RATE DIVIDED BY 260 IS $7.06, THE NEW BASIC PER DAY RATE OF COMPENSATION TO WHICH THE ADDITIONAL BAILIFFS ARE ENTITLED ON AND AFTER JULY 1, 1945, FOR EACH DAY OF "ACTUAL ATTENDANCE ON DAYS WHEN THE COURT IS IN SESSION OR A JURY IS PRESENT.'

THE COMPUTATION SHOWN IN SAID DECISION IS EQUALLY APPLICABLE TO MEMBERS OF THE BOARD OF SURVEY OF THE DISTRICT OF COLUMBIA. HENCE, THEIR NEW BASIC RATES ARE $7.06 AND $8.05 PER DAY, EFFECTIVE JULY 1, 1945, AND JULY 1, 1946, RESPECTIVELY. IN LIKE MANNER, THE NEW BASIC PAY RATES FOR MEMBERS OF THE BOARD OF EXAMINERS, STEAM ENGINEERS, WHOSE COMPENSATION IS SET AT $10 PER DAY BY THE ACT OF JUNE 29, 1940, SUPRA, ARE $11.46 AND $13.07, AND THE STATUTORY MAXIMUM OF $300 BASIC PAY ALLOWED THEM BY THAT ACT IS INCREASED TO $360 BY THE 1945 PAY ACT, AND TO $450 BY THE 1946 PAY ACT.

WHILE THE LEGISLATION PROVIDING FOR PAYMENT OF $300 PER ANNUM TO EACH OF THREE MEMBERS OF THE BOARD OF SPECIAL APPEAL AND TO TWO MEMBERS OF THE ELECTRICAL EXAMINING BOARD WAS ENACTED SUBSEQUENT TO THE EFFECTIVE DATE OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, THERE IS NOTHING CONTAINED IN THE APPLICABLE PROVISIONS OF THAT PAY ACT WHICH LIMITS ITS BENEFITS TO EMPLOYEES WHOSE POSITIONS WERE IN BEING AND WHOSE BASIC RATES OF COMPENSATION HAD BEEN FIXED AS OF ITS EFFECTIVE DATE; AND THERE APPEARS NO REQUIREMENT THAT SUCH LIMITATION BE SUPPLIED BY IMPLICATION. IT IS TRUE THAT SECTION 603 (A) OF THE SAID ACT, 59 STAT. 302, QUOTED IN YOUR LETTER CONFINES ITS BENEFITS TO FULL-TIME EMPLOYEES IN THE SERVICE ON JULY 1, 1945, WHO WERE FULL-TIME EMPLOYEES ON JUNE 30, 1945; HOWEVER, IT IS APPARENT THAT THAT SECTION COULD NOT BE FOR APPLICATION HERE BECAUSE THE BOARD MEMBERS COVERED BY YOUR SUBMISSION ARE NOT FULL-TIME EMPLOYEES. HENCE, IN THE ABSENCE OF ANY OTHER RESTRICTIVE PROVISION IN THE 1945 AND 1946 PAY STATUTES HERE INVOLVED, AND AS THOSE ACTS ARE STILL IN FULL FORCE AND EFFECT, AND IT BEING SPECIFICALLY PROVIDED IN SECTION 4 OF THE 1946 ACT THAT THE BASIC COMPENSATION SPECIFICALLY PROVIDED BY STATUTE UPON WHICH THE INCREASE THEREIN PROVIDED IS FOR COMPUTING INCLUDES "ANY INCREASE THEREIN COMPUTED IN ACCORDANCE WITH SECTION 602 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945," THE BENEFITS PROVIDED IN SAID TWO ACTS ARE TO BE GRANTED TO THE BOARD MEMBERS OCCUPYING THE NEW POSITIONS SPECIFIED IN THE 1947 APPROPRIATION ACT, 60 STAT. 515, AS WELL AS TO THOSE OTHERWISE OCCUPYING THE POSITIONS SPECIFIED IN BOTH THE 1946 AND 1947 APPROPRIATION ACTS.

ACCORDINGLY, THE QUESTION PRESENTED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE; AND THE FIRST ALTERNATE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH IS ANSWERED IN THE NEGATIVE AND THE SECOND ALTERNATE QUESTION THEREIN, IN THE AFFIRMATIVE.