B-66269, JUNE 30, 1947, 26 COMP. GEN. 964

B-66269, JUNE 30, 1947, 26 COMP. GEN. 964

COMPENSATION - WITHIN-GRADE SALARY ADVANCEMENT - TEMPORARY PROMOTION TO COLLECTOR OF CUSTOMS AS AFFECTING ELIGIBILITY AN ASSISTANT COLLECTOR OF CUSTOMS COMPENSATED AT THE RATE OF $5,180 PER ANNUM WHO, WHILE SERVING AS ACTING COLLECTOR OF CUSTOMS DURING A VACANCY IN THAT OFFICE, IS PAID THE COMPENSATION ($6,230 PER ANNUM) ATTACHED TO THE OFFICE OF COLLECTOR OF CUSTOMS PURSUANT TO 19 U.S.C. 8 UNTIL SUCH TIME AS THE PERSON DULY APPOINTED QUALIFIES THEREFOR, IS TO BE REGARDED AS HAVING RECEIVED AN ,EQUIVALENT INCREASE IN COMPENSATION" UPON SUCH TEMPORARY PROMOTION WITHIN THE MEANING OF THE WITHIN-GRADE SALARY- ADVANCEMENT PROVISIONS OF SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, SO AS TO START A NEW WAITING PERIOD FOR WITHIN-GRADE ADVANCEMENT. 21 COMP. GEN. 773, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, JUNE 30, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 8, 1947, AS FOLLOWS:

YOUR DECISION IS REQUESTED AS TO WHETHER CERTAIN OFFICERS OF THE BUREAU OF CUSTOMS WHO RECEIVED TEMPORARY PROMOTIONS UNDER STATUTORY AUTHORITY MAY BE REGARDED AS NOT HAVING RECEIVED EQUIVALENT INCREASES IN COMPENSATION WITHIN THE MEANING OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY THE ACT OF AUGUST 1, 1941 (55 STAT. 613). SEE SECTION 8, TITLE 19, U.S.C. WHEREIN IT IS PROVIDED, AMONG OTHER THINGS, THAT IN CASE OF A VACANCY IN THE OFFICER OF A COLLECTOR OF CUSTOMS, COMPTROLLER OF CUSTOMS, SURVEYOR OF CUSTOMS OR APPRAISER OF MERCHANDISE, SUCH ASSISTANT COLLECTOR, ASSISTANT COMPTROLLER, ASSISTANT SURVEYOR OR CHIEF ASSISTANT APPRAISER SHALL ACT AS SUCH OFFICER, AND RECEIVE THE COMPENSATION OF SUCH OFFICE UNTIL AN APPOINTMENT THERETO HAS BEEN MADE AND THE PERSON SO APPOINTED HAS DULY QUALIFIED.

A CASE NOW UNDER CONSIDERATION IS THAT OF AN ASSISTANT COLLECTOR OF CUSTOMS WHO, EFFECTIVE FEBRUARY 2, 1946, FOLLOWING THE RESIGNATION OF THE COLLECTOR OF CUSTOMS WAS DESIGNATED AS ACTING COLLECTOR WITH COMPENSATION AT THE RATE OF $6,230 PER ANNUM, THE MINIMUM OF CAF-13, THE GRADE TO WHICH THE POSITION OF COLLECTOR OF CUSTOMS HAS BEEN ALLOCATED. EFFECTIVE MARCH 18, 1946, HE WAS RETURNED TO HIS FORMER POSITION OF ASSISTANT COLLECTOR, CAF-12 $5,180 PER ANNUM, UPON THE APPOINTMENT AND QUALIFICATION OF A COLLECTOR OF CUSTOMS. EXCEPT FOR THE INCREASE RESULTING FROM HIS DESIGNATION AS ACTING COLLECTOR, EFFECTIVE FEBRUARY 2, 1946, HE HAS NOT HAD AN INCREASE SINCE JUNE 23, 1945, WHEN THE POSITION OF ASSISTANCE COLLECTOR OF CUSTOMS WAS REALLOCATED FROM CAF-11, $4,000 PER ANNUM, TO CAF -12, $4,600 PER ANNUM, OTHER THAN THOSE PROVIDED BY THE FEDERAL EMPLOYEES' PAY ACTS OF 1945 AND 1946.

HERETOFORE, THE DEPARTMENT HAS CONSIDERED THAT A RECEIPT BY THE ASSISTANT OF THE COMPENSATION OF ONE OF THE OFFICES NAMED ABOVE, DURING A VACANCY IN SUCH OFFICE, CONSTITUTED AN EQUIVALENT INCREASE WITHIN THE MEANING OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED. HOWEVER, IN YOUR DECISION OF FEBRUARY 14, 1942, 21 COMP. GEN. 773, YOU MADE A DISTINCTION BETWEEN SALARY CHANGES UNDER RULES AND REGULATIONS APPLICABLE TO GOVERNMENT AGENCIES GENERALLY AND SALARY CHANGES RESULTING FROM TEMPORARY ASSIGNMENTS MADE UNDER AUTHORITY OF ADMINISTRATIVE REGULATIONS, THE LATTER NOT BEING CONSIDERED EQUIVALENT INCREASES. THE QUESTION, THEREFORE, IS WHETHER TEMPORARY PROMOTIONS OF CUSTOMS OFFICERS MADE IN ACCORDANCE WITHE THE AFOREMENTIONED STATUTORY PROVISIONS SHOULD LIKEWISE BE DISTINGUISHED FROM INCREASES UNDER RULES AND REGULATIONS APPLICABLE TO GOVERNMENT AGENCIES GENERALLY.

IN DECISION OF FEBRUARY 14, 1942, 21 COMP. GEN. 773, REFERRED TO IN YOUR LETTER, IT WAS HELD (QUOTING THE SYLLABUS), AS FOLLOWS:

CIVILIAN EMPLOYEES OF THE ENGINEER DEPARTMENT OF THE ARMY WHO, PURSUANT TO AN ADMINISTRATIVE REGULATION PROVIDING FOR TEMPORARY "UP AND DOWN" SALARY CHANGES AS DISTINGUISHED FROM SALARY CHANGES UNDER RULES AND REGULATIONS APPLICABLE TO GOVERNMENT AGENCIES GENERALLY, ARE TEMPORARILY ASSIGNED FOR 30 DAYS OR LESS TO POSITIONS--- EITHER WITHIN OR WITHOUT THE CLASSIFICATION ACT--- PAYING HIGHER OR LOWER SALARIES THAN THEIR REGULAR POSITIONS AND WHO ARE RESTORED TO THEIR REGULAR POSITIONS AND SALARIES UPON COMPLETION OF SUCH ASSIGNMENTS ARE ENTITLED, IF OTHERWISE ELIGIBLE, TO WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE ACT OF AUGUST 1, 1941 AFTER 18 OR 30 MONTHS FROM THE LAST EQUIVALENT COMPENSATION INCREASE RECEIVED IN THEIR REGULAR POSITIONS, WITHOUT REGARD TO THE SALARY CHANGES RESULTING FROM THE TEMPORARY ASSIGNMENTS. 21 COMP. GEN. 285 AND 21 COMP. GEN. 326, DISTINGUISHED.

WITH RESPECT TO THE CONCLUSION REACHED IN THAT DECISION IT WAS STATED THEREIN AS FOLLOWS:

THE RULE STATED IN THIS CASE WITH RESPECT TO THE "UP AND DOWN RATING" OF EMPLOYEES UNDER THE LONG EXISTING ADMINISTRATIVE REGULATION IS TO BE UNDERSTOOD AS NOT MODIFYING THE RULE STATED IN DECISIONS OF OCTOBER 2, 1941, 21 COMP. GEN. 285, AND OCTOBER 13, 1941, 20 COMP. GEN. 326, RELATING TO SALARY CHANGES UNDER THE GENERAL RULES AND REGULATIONS GOVERNING SUCH CHANGES. FOR INSTANCE, WHERE THERE IS NO ADMINISTRATIVE REGULATION PROVIDING FOR "UP AND DOWN RATING" OF EMPLOYEES INVOLVED, A TEMPORARY PROMOTION INVOLVING AN INCREASE OF COMPENSATION OF $60, $100, $200, OR $250 OR MORE PER ANNUM, AS THE CASE MAY BE, SUCH AS A TEMPORARY PROMOTION TO FILL A VACANCY CAUSED BY THE ABSENCE OF A REGULAR INCUMBENT IN THE MILITARY SERVICE, OR THE TEMPORARY PROMOTION OF AN EMPLOYEE ON ANOTHER ROLL ESTABLISHED UNDER A SPECIAL APPROPRIATION TO PERFORM A PARTICULAR JOB, WOULD CONSTITUTE AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, AND UPON RESTORATION TO THE REGULAR ROLL THE PRESCRIBED PERIOD TO BE CONSIDERED FOR AUTOMATIC PROMOTION PURPOSES WOULD BEGIN TO RUN FROM THE DATE OF THE TEMPORARY PROMOTION.

IT IS READILY APPARENT THAT THE PARTICULAR CIRCUMSTANCE CONSIDERED IN THE ABOVE-QUOTED DECISION WAS VIEWED AS PRESENTING AN EXCEPTION TO THE GENERAL RULE THAT A TEMPORARY INCREASE IN COMPENSATION CONSTITUTES AN "EQUIVALENT INCREASE IN COMPENSATION" FOR WITHIN-GRADE SALARY ADVANCEMENT PURPOSES. HOWEVER, THE STATUTORY PROVISION REFERRED TO IN YOUR LETTER WHICH AUTHORIZES, INTER ALIA, THE PAYMENT OF THE COMPENSATION OF THE OFFICE OF COLLECTOR OF CUSTOMS TO THE ASSISTANT COLLECTOR OF CUSTOMS IN THE EVENT OF A VACANCY IN THE FORMER OFFICE, CLEARLY IS DISTINGUISHABLE FROM THE ADMINISTRATIVE REGULATIONS CONSIDERED IN SAID DECISION. UNDER THE REGULATIONS THERE CONSIDERED THE "UP AND DOWN" SALARY ADJUSTMENTS ARE OF A RECURRING NATURE, AND ARE LIMITED IN TIME TO SHORT PERIODS OF 30 DAYS OR LESS. HENCE, TO HOLD THAT SUCH SALARY ADJUSTMENTS CONSTITUTE AN "EQUIVALENT INCREASE IN COMPENSATION" WOULD RESULT IN A COMPLETE DENIAL OF THE RIGHTS OF EMPLOYEES AFFECTED THEREBY TO WITHIN-GRADE SALARY ADVANCEMENTS, WITH NO COMPENSATING BENEFIT HAVING ACCRUED TO THEM. ON THE OTHER HAND, THE TEMPORARY INCREASES IN COMPENSATION UNDER THE PROVISIONS OF 19 U.S.C. 8 ARE AUTHORIZED ONLY IN THE EVENT OF A VACANCY IN CERTAIN POSITIONS AND ARE TO CONTINUE UNTIL SUCH TIME AS THE PERSON DULY APPOINTED TO SUCH POSITION QUALIFIES THEREFOR. CONSEQUENTLY, UNLIKE THE ADJUSTMENTS UNDER THE WAR DEPARTMENT REGULATIONS CONSIDERED IN THE SAID DECISION OF FEBRUARY 14, 1942, THE TEMPORARY SALARY ADVANCEMENTS AUTHORIZED UNDER THE STATUTE ARE NOT CONTINUALLY RECURRING, BUT, IN FACT, RELATIVELY ARE INFREQUENT. FURTHER, SINCE THE RECEIPT OF THE COMPENSATION OF THE HIGHER POSITION MAY CONTINUE FOR EXTENDED PERIODS, TO HOLD THAT SUCH INCREASE DOES NOT CONSTITUTE AN "EQUIVALENT INCREASE IN COMPENSATION" WELL MIGHT RESULT IN EMPLOYEES RECEIVING INCREASED COMPENSATION EQUAL TO A SALARY STEP IN HIS PERMANENT GRADE WITHOUT DETRIMENT TO HIS RIGHT TO RECEIVE A WITHIN-GRADE SALARY ADVANCEMENT, BASED ON THE SAME TIME PERIOD, UPON RESTORATION TO HIS PERMANENT POSITION--- A RESULT CLEARLY IN CONTRAVENTION OF THE WITHIN-GRADE SALARY ADVANCEMENT STATUTE.

IN THE LIGHT OF THE FOREGOING, YOU ARE ADVISED THAT I AM UNABLE TO PERCEIVE ANY REAL ANALOGY BETWEEN THE REGULATIONS CONSIDERED IN THE DECISION OF FEBRUARY 14, 1942, SUPRA, AND THE STATUTORY PROVISION HERE INVOLVED. RATHER, IT APPEARS THAT SUCH STATUTORY PROVISION MORE NEARLY APPROXIMATES THE USUAL ADMINISTRATIVE ACTION TAKE TO FILL VACANCIES IN THE ORGANIZATION BY THE TEMPORARY PROMOTION OF EMPLOYEES IN LOWER GRADES, SUCH AS FORMED THE BASIS FOR THE GENERAL RULE REGARDING A TEMPORARY PROMOTION AS CONSTITUTING AN "EQUIVALENT INCREASE IN COMPENSATION.' ACCORDINGLY, THE QUESTION PRESENTED IN THE CONCLUDING SENTENCE OF YOUR LETTER IS ANSWERED IN THE NEGATIVE.