B-93736, APRIL 7, 1950, 29 COMP. GEN. 400

B-93736, APRIL 7, 1950, 29 COMP. GEN. 400

COMPENSATION - FIXING UNDER THE CLASSIFICATION ACT OF 1949 - SUPERINTENDENT AND DEPUTY SUPERINTENDENT OF GALLINGER HOSPITAL THE FIXING BY THE CIVIL SERVICE COMMISSION OF A HIGHER INITIAL SALARY RATE UNDER THE CLASSIFICATION ACT OF 1949 FOR THE SUPERINTENDENT AND THE DEPUTY SUPERINTENDENT OF GALLINGER HOSPITAL THAN THE SALARY RATES RECEIVED IN THEIR UNCLASSIFIED POSITIONS APPEARS TO BE WITHIN THE AUTHORITY GRANTED THE COMMISSION BY SECTION 501 (A) (2) TO PLACE IN AN APPROPRIATE CLASS AND GRADE POSITIONS COMING INITIALLY UNDER THE ACT AND, THEREFORE, THE RATES SO FIXED MAY BE PAID ON AND AFTER THE DATE SPECIFIED BY THE COMMISSION.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, APRIL 7, 1950:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 10, 1950, REQUESTING DECISION WITH RESPECT TO THE PROPER RATE OF COMPENSATION TO BE PAID THE SUPERINTENDENT AND DEPUTY SUPERINTENDENT OF GALLINGER HOSPITAL, UNDER THE CLASSIFICATION ACT OF 1949. THE APPROPRIATION ACT FOR THE DISTRICT OF COLUMBIA FOR 1949, APPROVED JUNE 9, 1948, PUBLIC LAW 724, 62 STAT. 546, FIXES THE SALARY OF THE SUPERINTENDENT AT $9,975 PER YEAR, AND THE SALARY OF THE DEPUTY SUPERINTENDENT AT $7,581 PER ANNUM, WHICH RATES WERE INCREASED BY THE $330 INCREASE IN CONNECTION WITH SECTION 4, PUBLIC LAW 151 OF JUNE 30, 1949, 63 STAT. 376, MAKING THE RATES, RESPECTIVELY, $10,305, AND $7,911.

IT APPEARS THAT, BY LETTER OF FEBRUARY 8, 1950, FROM THE CHIEF OF PERSONNEL CLASSIFICATION DIVISION, UNITED STATES CIVIL SERVICE COMMISSION, THOSE POSITIONS WERE ALLOCATED TO GS-15 AND GS-13, RESPECTIVELY, SAID LETTER FIXING THE INITIAL SALARY RATES IN THE RESPECTIVE GRADES AT $10,500 AND $8,000,"EFFECTIVE THE FIRST DAY OF THE PAY PERIOD BEGINNING FEBRUARY 19, 1950.' YOU STATE FURTHER THAT:

IN ACCORDANCE WITH THIS LETTER THE COMMISSIONERS ON FEBRUARY 14, 1950 APPROVED THE TRANSFER AND APPOINTMENT EFFECTIVE FEBRUARY 19, 1950 OF THE SUPERINTENDENT OF THE HOSPITAL FROM $10,305 PER ANNUM TO MEDICAL OFFICER ( GENERAL SUPERINTENDENT) GS-15 AT $13,500 PER ANNUM, AND THE DEPUTY SUPERINTENDENT FROM $7,911 PER ANNUM TO GS-13 AT $8,000 PER ANNUM. GHE PRESENT SUPERINTENDENT WAS APPOINTED TO THE STATUTORY JOB ON MAY 15, 1949 AND THE DEPUTY SUPERINTENDENT WAS APPOINTED TO THE STATUTORY JOB ON SEPTEMBER 8, 1947. SEVENTY-EIGHT WEEKS HAVE ELAPSED SINCE THE DEPUTY SUPERINTENDENT HAS BEEN IN HIS ORIGINAL POSITION. THE SUPERINTENDENT HAS COMPLETED ONLY NINE AND ONE-HALF MONTHS IN HIS ORIGINAL POSITION.

IT IS THE OPINION OF THE AUDITOR THAT THE SUPERINTENDENT SHOULD REMAIN AT THE SALARY OF $10,305 UNTIL SEVENTY-EIGHT WEEKS HAVE ELAPSED FROM MAY 15, 1949 IN ACCORDANCE WITH SECTION 1105 (B) SUPRA, AND THAT THE CIVIL SERVICE IS WITHOUT AUTHORITY TO FIX THE SALARY AT $10,500 PER ANNUM.

IT IS THEREFORE REQUESTED THAT THE COMMISSIONERS BE ADVISED AS TO THE RATE AT WHICH THE SUPERINTENDENT AND DEPUTY SUPERINTENDENT'S SALARIES CAN BE FIXED AND PAID EFFECTIVE FEBRUARY 19, 1950.

SECTION 1105 (B) OF THE CLASSIFICATION ACT OF 1949, PUBLIC LAW 429, 63 STAT. 972, PROVIDES:

WITH RESPECT TO ANY POSITION WHICH, IMMEDIATELY PRIOR TO THE DATE OF ENACTMENT OF THIS ACT, IS NOT SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED (INCLUDING POSITIONS IN GRADE 9 OF THE PROFESSIONAL AND SCIENTIFIC SERVICE OR IN GRADE 16 OF THE CLERICAL, ADMINISTRATIVE, AND FISCAL SERVICE REFERRED TO IN SECTION 13 OF SUCH ACT), BUT TO WHICH THIS ACT APPLIES, THIS ACT SHALL TAKE EFFECT ON A DATE SPECIFIED BY THE COMMISSION, BUT NOT LATER THAN THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS AFTER SIX MONTHS FOLLOWING THE DATE OF ENACTMENT OF THIS ACT. OFFICER OR EMPLOYEE OCCUPYING ANY SUCH POSITION ON SUCH EFFECTIVE DATE, AND RECEIVING BASIC COMPENSATION AT A RATE IN EXCESS OF THE APPROPRIATE RATE OF THE GRADE IN WHICH SUCH POSITION IS PLACED, SHALL CONTINUE TO RECEIVE BASIC COMPENSATION WITHOUT CHANGE IN RATE UNTIL (1) HE LEAVES SUCH POSITION, OR (2) HE IS ENTITLED TO RECEIVE BASIC COMPENSATION AT A HIGHER RATE BY REASON OF THE OPERATION OF TITLE V OR VII. * * * (ITALICS SUPPLIED.)

ALSO, IT IS PERTINENT TO NOTE HERE THE PROVISIONS OF SECTION 501 (A) (2) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 958, AS FOLLOWS:

NOTWITHSTANDING SECTION 502, THE COMMISSION SHALL HAVE AUTHORITY, WHICH MAY BE EXERCISED AT ANY TIME IN ITS DISCRETION, TO---

(2) PLACE IN AN APPROPRIATE CLASS AND GRADE * * * ANY POSITION COMING INITIALLY UNDER THIS CT; ( ITALICS SUPPLIED.)

WITH RESPECT TO THE ESTABLISHMENT OF INITIAL SALARY RATES OF BASIC COMPENSATION FOR EMPLOYEES WHO ON THE EFFECTIVE DATE SPECIFIED BY THE CIVIL SERVICE COMMISSION UNDER SECTION 1105 (B) OF THE CLASSIFICATION ACT OF 1949 OCCUPY POSITIONS UNDER THAT ACT WHICH, IMMEDIATELY PRIOR TO OCTOBER 28, 1949, WERE EXEMPT FROM THE CLASSIFICATION ACT OF 1923, AS AMENDED--- THE SITUATION INVOLVED IN THE INSTANT CASE--- THE COMMISSION, AS AUTHORIZED UNDER SECTIONS 1101, 63 STAT. 971, AND 1105 (B) OF THE CLASSIFICATION ACT OF 1949, ISSUED REGULATIONS IDENTIFIED AS SECTION 25.104 (B) (3), AS OLLOWS:

IF THE EMPLOYEE IS RECEIVING A RATE OF BASIC COMPENSATION WITHIN THE RANGE OF SALARY PRESCRIBED FOR THE GRADE IN WHICH HIS POSITION IS PLACED, BUT NOT AT ONE OF THE RATES FIXED THEREIN, HIS COMPENSATION SHALL BE INCREASED TO THE NEXT HIGHER RATE.

SEE 15 FED. REG. 1235, ISSUE OF MARCH 8, 1950.

IN THE CIRCUMSTANCES, THE FIXING OF THE SUPERINTENDENT'S SALARY RATE AT $10,500 AND DEPUTY SUPERINTENDENT'S SALARY RATE AT $8,000 APPEARS TO HAVE BEEN IN ACCORDANCE WITH THE ACT AND REGULATIONS, SUPRA, AND IS NOT OPEN TO OBJECTION BY THIS OFFICE. ACCORDINGLY, THE RESPECTIVE SALARIES OF THE SUPERINTENDENT AND DEPUTY SUPERINTENDENT AT GALLINGER HOSPITAL MAY BE PAID IN ACCORDANCE WITH THE RATES SO FIXED BY THE CIVIL SERVICE COMMISSION EFFECTIVE ON AND AFTER FEBRUARY 19, 1950.