B-84754, APRIL 7, 1949, 28 COMP. GEN. 560

B-84754, APRIL 7, 1949, 28 COMP. GEN. 560

COMPENSATION - RATES - LIMITATIONS - EMPLOYEES REMOVED FROM CLASSIFIED SERVICE THE PAYMENT OF COMPENSATION TO AN ENTIRE CLASS OF EMPLOYEES WHOSE POSITIONS HAVE BEEN REMOVED FROM THE CLASSIFICATION ACT PURSUANT TO CIVIL SERVICE COMMISSION INSTRUCTIONS--- RATHER THAN BY INDIVIDUAL ADMINISTRATIVE ACTION--- AT RATES HIGHER THAN THOSE RECEIVED BY SUCH EMPLOYEES UNDER THE SAID ACT IS NOT PRECLUDED BY THE INHIBITION IN 31 U.S.C. 629 AGAINST THE PAYMENT OF COMPENSATION FROM LUMP-SUM APPROPRIATIONS FOR PERSONAL SERVICES AT A RATE IN EXCESS OF THAT PAID FOR SIMILAR SERVICES DURING THE PRECEDING FISCAL YEAR, EXCEPT AS TO THOSE CLASSES OF POSITIONS SPECIFICALLY ENUMERATED THEREIN.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, SECURITIES AND EXCHANGE COMMISSION, APRIL 7, 1949:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 18, 1949, REQUESTING DECISION WHETHER CERTAIN EMPLOYEES WHOSE POSITIONS WERE RECENTLY REMOVED FROM THE CLASSIFICATION ACT, 42 STAT. 1488, BY THE CIVIL SERVICE COMMISSION MAY BE PAID COMPENSATION AT RATES GREATER THAN THOSE THEY WERE RECEIVING UNDER THE CLASSIFICATION ACT.

IT APPEARS THAT BY DEPARTMENTAL CIRCULAR 609, SUPPLEMENT NO. 1, DATED FEBRUARY 8, 1949, THE CIVIL SERVICE COMMISSION DETERMINED THAT OFFSET PHOTOGRAPHERS AND OTHERS HOLDING SIMILAR AND ALLIED POSITIONS SHOULD BE REMOVED FROM OPERATION OF THE CLASSIFICATION ACT. YOU STATE THAT THERE ARE APPROXIMATELY 25 OF SUCH POSITIONS IN YOUR COMMISSION AND THAT, IF THEIR WAGES SHOULD BE FIXED TO CORRESPOND WITH THE PREVAILING WAGES IN PRIVATE INDUSTRY, IT IS LIKELY THAT THEIR COMPENSATION IN SOME INSTANCES WOULD BE HIGHER THAN THE SALARIES FIXED BY THE CLASSIFICATION ACT. YOUR DOUBT IN THE MATTER APPEARS TO ARISE FROM THE PROVISIONS OF THE ACT OF AUGUST 26, 1912, 37 STAT. 626, AS AMENDED BY THE ACT OF MARCH 4, 1913, 37 STAT. 790, 31 U.S.C. 629, WHICH PROVIDES (QUOTING FROM THE CODE):

LUMP-SUM APPROPRIATIONS; NOT AVAILABLE FOR INCREASED SALARIES.

EXCEPT AS OTHERWISE PROVIDED BY LAW, NO PART OF ANY MONEY APPROPRIATED IN LUMP SUM SHALL BE AVAILABLE FOR THE PAYMENT OF PERSONAL SERVICES AT A RATE OF COMPENSATION IN EXCESS OF THAT PAID FOR THE SAME OR SIMILAR SERVICES DURING THE PRECEDING FISCAL YEAR; NOR SHALL ANY PERSON EMPLOYED AT A SPECIFIC SALARY BE TRANSFERRED AND PAID FROM A LUMP-SUM APPROPRIATION A RATE OF COMPENSATION GREATER THAN SUCH SPECIFIC SALARY, AND THE HEADS OF DEPARTMENTS SHALL CAUSE THIS PROVISION TO BE ENFORCED: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO MECHANICS, ARTISANS, THEIR HELPERS AND ASSISTANTS, LABORERS, OR ANY OTHER EMPLOYEES WHOSE DUTIES ARE OF SIMILAR CHARACTER AND REQUIRED IN CARRYING ON THE VARIOUS MANUFACTURING OR CONSTRUCTING OPERATIONS OF THE GOVERNMENT. ( AUG. 26, 1912, CH. 408 SEC. 7, 37 STAT. 626; MAR. 4, 1913, CH. 142, SEC. 4, 37 STAT. 790.)

AT THE TIME OF THE ENACTMENT OF THE ABOVE-QUOTED PROVISION, THE EMPLOYMENT OF PERSONNEL BY A NUMBER OF THE EXECUTIVE DEPARTMENTS AND AGENCIES WAS RESTRICTED TO A STATUTORY ROLL LIMITING THE NUMBER AND SALARIES OF EMPLOYEES IN EACH JOB CLASSIFICATION, WHICH NECESSARILY RESTRICTED PROMOTIONS TO THE FILING OF VACANCIES AS AND WHEN THEY OCCURRED. OTHER AGENCIES WERE GIVEN LUMP SUM APPROPRIATIONS WITHOUT SUCH RESTRICTIONS, WHICH SITUATION OPENED THE DOOR TO THE PAYMENT OF LARGER SALARIES IN SUCH AGENCIES AND ENABLED THEM TO DEPRIVE OTHER AGENCIES OF THEIR BEST EMPLOYEES BY OFFERING HIGHER SALARIES FOR THE SAME CLASS OF WORK, OR, IN THE CASE OF A DEPARTMENT HAVING BOTH A LUMP SUM AND STATUTORY ROLL, OFTEN RESULTED IN HIGHER SALARIES TO FAVORED EMPLOYEES. IT WAS FOR THE PURPOSE OF REMEDYING THOSE SITUATIONS THAT THE ACT OF AUGUST 26, 1912, WAS PASSED.

THERE IS CONSIDERABLE DOUBT, THEREFORE, WHETHER SAID ACT ACTUALLY APPLIES TO A SITUATION SUCH AS HERE INVOLVED WHERE AN ENTIRE CLASS OF EMPLOYEES IS CHANGED FROM A STATUTORY CLASSIFIED SALARY PURSUANT TO CIVIL SERVICE INSTRUCTIONS, RATHER THAN BY INDIVIDUAL ADMINISTRATIVE ACTION, BUT EVEN VIEWING THE SITUATION AS COMING WITHIN THE LITERAL LANGUAGE OF THAT PART OF SAID ACT PRECEDING THE PROVISO, I FEEL THAT THE EMPLOYEES IN QUESTION OCCUPY POSITION SUCH AS FALL WITHIN THE SCOPE OF THE PROVISO TO THE ACT OF 1912, AS AMENDED, SUPRA, AND, THEREFORE, ARE EXCEPTED FROM THE PROHIBITION OF THAT STATUTE. 24 COMP. DEC. 390. COMPARE 26 COMP. DEC. 39; 6 COMP. GEN. 588 (BEGINNING WITH PARAGRAPH AT FOOT OF PAGE 591).

SPECIFICALLY, THEREFORE, I FIND NO STATUTORY PROHIBITION AGAINST THE PAYMENT TO EMPLOYEES OF THE CLASS HERE INVOLVED AT RATES OF COMPENSATION HIGHER THAN THOSE RECEIVED BY THEM UNDER THE CLASSIFICATION ACT.