B-65051, APRIL 9, 1947, 26 COMP. GEN. 765

B-65051: Apr 9, 1947

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RATHER THAN TO THE SPECIFIC MINIMUM "RATE" PRESCRIBED BY THE CLASSIFICATION ACT FOR EACH GRADE AT WHICH ALL NEW APPOINTMENTS THEREUNDER ARE REQUIRED TO BE MADE. 1947: I HAVE YOUR LETTER OF MARCH 31. THE DIRECTOR IS AUTHORIZED * * * (4) TO APPOINT AND FIX THE COMPENSATION OF SUCH OFFICERS AND EMPLOYEES (NOT TO EXCEED 1. YOUR OPINION IS REQUESTED AS TO WHETHER UNDER THE ABOVE PROVISIONS OF PUBLIC LAW 26. IS IN ANY WAY LIMITED OTHER THAN BY THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 FIXING A MAXIMUM RATE OF COMPENSATION AT $10. IN VIEW OF THE FACT THAT IT WILL BE NECESSARY TO MAKE CERTAIN APPOINTMENTS UNDER THE PROVISIONS OF THE ABOVE ACT WITHIN THE NEXT FEW DAYS. IT WILL BE APPRECIATED IF THE FURNISHING OF YOUR OPINION IN THIS MATTER IS EXPEDITED.

B-65051, APRIL 9, 1947, 26 COMP. GEN. 765

COMPENSATION - RATES - LIMITATIONS - EMPLOYEES OF THE OFFICE OF SELECTIVE SERVICE RECORDS APPOINTED WITHOUT REGARD TO CLASSIFICATION ACT THE LIMITATION IN SECTION 6 (A) (4) OF THE ACT OF MARCH 31, 1947--- ESTABLISHING AN OFFICE OF SELECTIVE SEE RECORDS--- THAT THE COMPENSATION OF OFFICERS AND EMPLOYEES APPOINTED WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, SHALL "NOT BE IN EXCESS OF THAT PROVIDED IN SAID CT" HAS REFERENCE TO THE $10,000 AGGREGATE COMPENSATION LIMITATION IN SECTION 603 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, RATHER THAN TO THE SPECIFIC MINIMUM "RATE" PRESCRIBED BY THE CLASSIFICATION ACT FOR EACH GRADE AT WHICH ALL NEW APPOINTMENTS THEREUNDER ARE REQUIRED TO BE MADE.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, OFFICE OF SELECTIVE SERVICE RECORDS, APRIL 9, 1947:

I HAVE YOUR LETTER OF MARCH 31, 1947, REFERENCE 9-348-1, AS FOLLOWS:

SUBJECT: REQUEST FOR OPINION AS TO AUTHORITY OF DIRECTOR OF OFFICE OF SELECTIVE SERVICE RECORDS TO FIX COMPENSATION OF OFFICERS AND EMPLOYEES UNDER THE PROVISIONS OF SEC. 6 (A) (4) OF PUBLIC LAW 26, 80TH CONGRESS, APPROVED MARCH 31, 1947.

A QUESTION HAS ARISEN AS TO THE INTERPRETATION OF THE FOLLOWING PROVISIONS OF PUBLIC LAW 26, 80TH CONGRESS, APPROVED MARCH 31, 1947:

"SEC. 6 (A). THE DIRECTOR IS AUTHORIZED * * * (4) TO APPOINT AND FIX THE COMPENSATION OF SUCH OFFICERS AND EMPLOYEES (NOT TO EXCEED 1,200 IN NUMBER BY NOVEMBER 1, 1947), AS MAY BE NECESSARY FOR THE PURPOSES OF THIS ACT, WITH OR WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED: PROVIDED, THAT THE COMPENSATION OF SUCH PERSONS SHALL NOT BE IN EXCESS OF THAT PROVIDED IN SAID ACT.'

YOUR OPINION IS REQUESTED AS TO WHETHER UNDER THE ABOVE PROVISIONS OF PUBLIC LAW 26, THE AUTHORITY OF THE DIRECTOR OF THE OFFICE OF SELECTIVE SERVICE RECORDS TO FIX THE COMPENSATION OF OFFICERS AND EMPLOYEES HE MAY APPOINT, IS IN ANY WAY LIMITED OTHER THAN BY THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1946 FIXING A MAXIMUM RATE OF COMPENSATION AT $10,000 PER ANNUM.

IN VIEW OF THE FACT THAT IT WILL BE NECESSARY TO MAKE CERTAIN APPOINTMENTS UNDER THE PROVISIONS OF THE ABOVE ACT WITHIN THE NEXT FEW DAYS, IT WILL BE APPRECIATED IF THE FURNISHING OF YOUR OPINION IN THIS MATTER IS EXPEDITED.

UNDER THE PROVISIONS OF THAT PORTION OF SECTION 6 OF PUBLIC LAW 26, APPROVED MARCH 31, 1947, 60 STAT. 32, QUOTED IN YOUR LETTER, THE DIRECTOR, OFFICE OF SELECTIVE SERVICE RECORDS, IS AUTHORIZED TO APPOINT AND FIX THE COMPENSATION OF OFFICERS AND EMPLOYEES OF THAT OFFICE "WITH OR WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED.' THE COMPENSATION OF EMPLOYEES APPOINTED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, NECESSARILY IS GOVERNED BY ALL PERTINENT PROVISIONS OF THAT ACT--- INCLUDING THE MAXIMUM SALARY LIMITATION OF $10,000 PER ANNUM AS PRESCRIBED BY THE FEDERAL EMPLOYEES PAY ACTS OF 1945, 59 STAT. 303, AND 1946, 60 STAT. 218. BUT YOUR QUESTION APPEARS TO REFER MORE PARTICULARLY TO THE EXTENT OF THE AUTHORITY CONFERRED UPON THE DIRECTOR IN FIXING THE COMPENSATION OF THOSE EMPLOYEES APPOINTED WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, IN THE LIGHT OF THE LANGUAGE USED IN THE PROVISO IN SECTION 6, SUPRA. IN OTHER WORDS, YOUR DOUBT APPEARS TO BE WHETHER THE EFFECT OF THE PROVISO MERELY IS TO RESTRICT THE AUTHORITY OF THE DIRECTOR TO THE FIXING OF COMPENSATION OF NEW APPOINTEES TO NOT TO EXCEED $10,000, OR WHETHER SUCH AUTHORITY IS LIMITED TO THE FIXING OF COMPENSATION AT A RATE "NOT TO EXCEED" THE MINIMUM RATE PRESCRIBED BY THE CLASSIFICATION ACT FOR THE CLASSIFICATION GRADE TO WHICH THE POSITION OTHERWISE WOULD BE ALLOCATED--- THE RATE AT WHICH ALL NEW APPOINTMENTS UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, ARE REQUIRED TO BE MADE.

AN EXAMINATION OF THE LEGISLATIVE HISTORY OF PUBLIC LAW 26 DISCLOSES THAT SECTION 6 OF THE BILL, S. 918--- WHICH BECAME PUBLIC LAW 26--- ORIGINALLY AUTHORIZED THE DIRECTOR TO FIX THE COMPENSATION OF NEW APPOINTEES "WITH OR WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED.' THE PROVISO THAT "THE COMPENSATION OF SUCH PERSONS SHALL NOT BE IN EXCESS OF THAT PROVIDED IN SAID T," WAS ADDED TO SECTION 6 BY AN AMENDMENT OFFERED ON THE FLOOR OF THE HOUSE OF REPRESENTATIVES. IN EXPLAINING THE EFFECT OF SAID AMENDMENT, INTER ALIA, IN THE CONSIDERATION THEREOF BEFORE THE HOUSE, THE FOLLOWING STATEMENT WAS MADE BY REPRESENTATIVE SHORT:

* * * THERE IS A DIRECTOR WHO RECEIVES A SALARY OF $10,000, AND HE WILL HAVE AUTHORITY AND POWER TO APPOINT AND FIX COMPENSATION, WITHIN CERTAIN BOUNDS WHICH OUR COMMITTEE WROTE INTO THE BILL THIS MORNING * * *

ALSO, IN CONNECTION WITH THE LIMITATION PLACED UPON THE NUMBER OF EMPLOYEES IN THE OFFICE OF SELECTIVE SERVICE RECORDS, REPRESENTATIVE SHORT STATED:

BY NOVEMBER 1, THIS YEAR, NOT MORE THAN 1,200 EMPLOYEES, AND WE ALSO SET A LIMIT ON THE COMPENSATION OR WAGES OF THESE EMPLOYEES * * *

ADMITTEDLY, THE LANGUAGE CONTAINED IN THE SAID PROVISO TO SECTION 6 IS AMBIGUOUS TO THE EXTENT THAT COMPENSATION IS "PROVIDED" BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, UNDER A VARIETY OF CIRCUMSTANCES. FOR INSTANCE, IT EXPRESSLY PROVIDES FOR COMPENSATION AT VARIOUS RATES FOR THE PARTICULAR SERVICES AND GRADES, WITH SPECIFIC MINIMUM AND MAXIMUM RATES FOR EACH GRADE, AND, IN ADDITION THERETO, IT PRESCRIBES A MAXIMUM RATE OF COMPENSATION TO BE PAID NEW APPOINTEES AND A MAXIMUM SALARY RATE OF $10,000 PER ANNUM FOR ANY POSITION WITHIN THE PURVIEW THEREOF. THE BILL, S-918, AS ORIGINALLY PROPOSED, AUTHORIZED THE FIXING OF COMPENSATION WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, UNDER WHICH BILL THE DIRECTOR WHOULD HAVE BEEN AUTHORIZED TO DISREGARD THE $10,000 MAXIMUM SALARY LIMITATION AND TO FIX COMPENSATION AT ANY RATE HE DEEMED APPROPRIATE. OBVIOUSLY, THE PROVISO UNDER CONSIDERATION HERE WAS INTENDED TO, AND DOES, OPERATE AS A RESTRICTION UPON SUCH BROAD AUTHORITY. HOWEVER, NOTHING HAS BEEN FOUND EITHER IN THE LANGUAGE OF THE PROVISO OR THE STATEMENTS MADE IN CONNECTION THEREWITH FROM WHICH IT REASONABLY MAY BE CONCLUDED THAT ANY AND ALL RULES PRESCRIBED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, FOR THE FIXING OF COMPENSATION ARE TO BE APPLIED TO THOSE PERSONS APPOINTED "WITHOUT REGARD" TO THE PROVISIONS OF THE ACT. FURTHER, IT IS SIGNIFICANT THAT THE PROVISO DOES NOT RESTRICT THE COMPENSATION OF SUCH PERSONS TO THE "RATES" OF COMPENSATION PRESCRIBED BY THE CLASSIFICATION ACT BUT MERELY LIMITS SUCH COMPENSATION TO NOT TO EXCEED THE "COMPENSATION * * * PROVIDED IN SAID ACT.'

IN THE LIGHT OF THE FOREGOING, THERE APPEARS JUSTIFIED THE CONCLUSION THAT UNDER THE PROVISIONS OF SECTION 6 OF PUBLIC LAW 26 THE AUTHORITY OF THE DIRECTOR TO FIX THE COMPENSATION OF PERSONS APPOINTED WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, IS LIMITED ONLY TO THE EXTENT THAT SUCH COMPENSATION MAY NOT EXCEED THE RATE OF $10,000 PER ANNUM. YOUR QUESTION IS ANSWERED ACCORDINGLY.