B-143879, MAY 18, 1961, 40 COMP. GEN. 628

B-143879, MAY 18, 1961, 40 COMP. GEN. 628

CIVILIAN PERSONNEL - TERRITORIAL COST-OF-LIVING ALLOWANCES - ATOMIC ENERGY COMMISSION EMPLOYEES THE ATOMIC ENERGY COMMISSION IN THE EXERCISE OF ITS GENERAL AUTHORITY UNDER SECTION 161D OF THE ATOMIC ENERGY ACT OF 1954, 42 U.S.C. 2201 (D), FOR FIXING COMPENSATION OF ITS EMPLOYEES WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1949 MAY CONTINUE TO PAY ADDITIONAL COMPENSATION BASED UPON LIVING COSTS TO ITS EMPLOYEES IN PUERTO RICO COMPARABLE TO THAT PAID TO EMPLOYEES SUBJECT TO SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, 5 U.S.C. 118H. THE LIMITATION ON THE ATOMIC ENERGY COMMISSION IN CONNECTION WITH ITS AUTHORITY TO FIX THE COMPENSATION OF EMPLOYEES WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1949, THAT THE RATES FIXED FOR THE POSITIONS SHALL NOT EXCEED THE RATES FOR POSITIONS OF EQUIVALENT DIFFICULTY OR RESPONSIBILITY UNDER THE CLASSIFICATION ACT, MAY BE CONSTRUED MERELY AS A RESTRICTION WHICH PRECLUDES THE PAYMENT OF AGGREGATE COMPENSATION--- BASIC COMPENSATION PLUS ADDITIONAL COMPENSATION BASED UPON LIVING COSTS -- IN AN AMOUNT WHICH EXCEEDS THE COMBINED AMOUNT THAT WOULD HAVE BEEN PAYABLE TO SUCH EMPLOYEES HAD THEY BEEN EMPLOYED AT CORRESPONDING CLASSIFICATION ACT RATES IN POSITIONS AT THE SAME PLACES OUTSIDE OF THE CONTINENTAL UNITED STATES; THEREFORE, SUCH EMPLOYEES HOLDING POSITIONS CORRESPONDING TO CLASSIFICATION ACT POSITIONS MAY BE PAID ADDITIONAL COMPENSATION BASED ON LIVING COSTS IN AN AMOUNT NOT IN EXCESS OF THAT PAYABLE IF THEIR POSITIONS HAD NOT BEEN REMOVED FROM THE SCOPE OF THE CLASSIFICATION ACT. A SCIENTIFIC AND TECHNICAL EMPLOYEE OF THE ATOMIC ENERGY COMMISSION STATIONED IN PUERTO RICO WHOSE COMPENSATION, BY REASON OF HIS SCIENTIFIC AND TECHNICAL DESIGNATION, IS EXCEPTED FROM THE REQUIREMENT THAT HIS SALARY BE FIXED AT A RATE NOT IN EXCESS OF THE RATE PAYABLE UNDER THE CLASSIFICATION ACT FOR AN EQUIVALENT POSITION MAY CONTINUE TO BE PAID ADDITIONAL COMPENSATION BASED UPON LIVING COSTS SINCE THE AMOUNT WHEN ADDED TO HIS BASIC RATE DOES NOT EXCEED THE AGGREGATE LIMITATION PLACED ON SCIENTIFIC AND TECHNICAL POSITIONS BY THE COMMISSION.

TO THE CHAIRMAN, UNITED STATES ATOMIC ENERGY COMMISSION, MAY 18, 1961:

ON APRIL 14, 1961, YOUR GENERAL MANAGER REQUESTED OUR DECISION CONCERNING THE PROPRIETY OF PAYING TERRITORIAL COST-OF-LIVING ALLOWANCES TO CERTAIN ATOMIC ENERGY COMMISSION EMPLOYEES STATIONED IN PUERTO RICO, WHOSE COMPENSATION IS FIXED ADMINISTRATIVELY UNDER THE AUTHORITY OF SECTION 161D OF THE ATOMIC ENERGY ACT OF 1954, AS AMENDED, 42 U.S.C. 2201 (D). THAT SECTION READS IN PERTINENT PART AS FOLLOWS (QUOTING FROM 42 U.S.C. 2201 (D) ):

IN THE PERFORMANCE OF ITS FUNCTIONS THE COMMISSION IS AUTHORIZED TO -- APPOINT AND FIX THE COMPENSATION OF SUCH OFFICERS AND EMPLOYEES AS MAY BE NECESSARY TO CARRY OUT THE FUNCTIONS OF THE COMMISSION. SUCH OFFICERS AND EMPLOYEES SHALL BE APPOINTED IN ACCORDANCE WITH THE CIVIL SERVICE LAWS AND THEIR COMPENSATION FIXED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1949, AS AMENDED, EXCEPT THAT, TO THE EXTENT THE COMMISSION DEEMS SUCH ACTION NECESSARY TO THE DISCHARGE OF ITS RESPONSIBILITIES, PERSONNEL MAY BE EMPLOYED AND THEIR COMPENSATION FIXED WITHOUT REGARD TO SUCH LAWS: PROVIDED, HOWEVER, THAT NO OFFICER OR EMPLOYEE (EXCEPT SUCH OFFICERS AND EMPLOYEES WHOSE COMPENSATION IS FIXED BY LAW, AND SCIENTIFIC AND TECHNICAL PERSONNEL UP TO A LIMIT OF $19,000) WHOSE POSITION WOULD BE SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, IF SUCH ACT WERE APPLICABLE TO SUCH POSITION, SHALL BE PAID A SALARY AT A RATE IN EXCESS OF THE RATE PAYABLE UNDER SUCH ACT FOR POSITIONS OF EQUIVALENT DIFFICULTY OR RESPONSIBILITY. SUCH RATES OF COMPENSATION MAY BE ADOPTED BY THE COMMISSION AS MAY BE AUTHORIZED BY THE CLASSIFICATION ACT OF 1949, AS AMENDED, AS OF THE SAME DATE SUCH RATES ARE AUTHORIZED FOR POSITIONS SUBJECT TO SUCH ACT. THE COMMISSION SHALL MAKE ADEQUATE PROVISION FOR ADMINISTRATIVE REVIEW OF ANY DETERMINATION TO DISMISS ANY EMPLOYEE;

YOUR GENERAL MANAGER SAYS:

THE AEC HAS EXERCISED THE AUTHORITY PROVIDED BY SECTION 161D OF THE ATOMIC ENERGY ACT OF 1954, AS AMENDED, BY REMOVING ITS POSITIONS FROM THE CLASSIFICATION ACT. HOWEVER, A JOB EVALUATION SYSTEM HAS BEEN ESTABLISHED WHICH EQUATES AEC GRADED POSITIONS WITH POSITIONS GRADED UNDER THE CLASSIFICATION ACT AND ASSURES COMPLIANCE WITH THE REQUIREMENT IN SECTION 161D OF THE ATOMIC ENERGY ACT OF 1954, AS AMENDED, "* * * THAT NO OFFICER OR EMPLOYEE * * * WHOSE POSITION WOULD BE SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, IF SUCH ACT WERE APPLICABLE TO SUCH POSITION, SHALL BE PAID A SALARY AT A RATE IN EXCESS OF THE RATE PAYABLE UNDER SUCH ACT FOR POSITIONS OF EQUIVALENT DIFFICULTY OR RESPONSIBILITY.' SCHEDULED PERIODIC AND LONGEVITY STEP RATES IDENTICAL TO THOSE CONTAINED IN THE CLASSIFICATION ACT HAVE BEEN ADOPTED FOR USE IN AEC. CERTAIN "SCIENTIFIC AND TECHNICAL PERSONNEL" HAVE THEIR COMPENSATION FIXED UP TO A LIMIT OF $19,000 WITHOUT REGARD TO THIS JOB EVALUATION SYSTEM.

CURRENTLY, THE ATOMIC ENERGY COMMISSION IS PAYING A TERRITORIAL COST-OF- LIVING ALLOWANCE TO SIX EMPLOYEES ON DUTY IN PUERTO RICO. THESE PAYMENTS ARE BASED ON SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATIONS ACT OF 1949, AS AMENDED ON SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT OF 1949, AS AMENDED (5 U.S.C. 118H), PART II, OF EXECUTIVE ORDER 10000, AND SECTION 350.11, PART 350 OF THE FEDERAL PERSONNEL MANUAL. THE COST-OF-LIVING ALLOWANCE BEING PAID TO THE AEC EMPLOYEES STATIONED IN PUERTO RICO EQUALS 12 1/2 PERCENT OF THEIR BASIC RATE OF COMPENSATION.

THE STAFFING OF THE PUERTO RICO OFFICE CONSISTS OF:

CHART 1 AREA OFFICE MANAGER (POSITION NOT GRADED) ---------------- $15,810 1 DEPUTY AREA MANAGER -------------------------------------- GS-14 1 GENERAL ENGINEER ------------------------------------------ GS-14 2 CLERK-1STENOGRAPHERS -------------------------------------- GS-4 1 CLERK- 1STENOGRAPHER --------------------------------------- GS-3

THE AREA MANAGER'S POSITION IS NOT GRADED, BUT THE AREA MANAGER HAS BEEN SPECIFICALLY DESIGNATED AS A "SCIENTIFIC AND TECHNICAL" EMPLOYEE AND HIS SALARY FIXED UPON THE PROVISIONS OF THAT PORTION OF SECTION 161D OF THE ATOMIC ENERGY ACT (1P.L. 83-703) WHICH EXCEPTS SCIENTIFIC AND TECHNICAL PERSONNEL FROM THE REQUIREMENT THAT THEIR SALARY BE FIXED AT A RATE NOT IN EXCESS OF THE RATE PAYABLE UNDER THE CLASSIFICATION ACT FOR POSITIONS OF EQUIVALENT DIFFICULTY OR RESPONSIBILITY. THE OTHER FIVE EMPLOYEES' POSITIONS ARE GRADED.

THE SPECIFIC QUESTIONS UPON WHICH OUR DECISION IS REQUESTED ARE STATED AS FOLLOWS: "WHETHER (1) THE FIVE EMPLOYEES ABOVE WHOSE POSITIONS ARE "GRADED," AND (2) THE "SCIENTIFIC AND TECHNICAL" EMPLOYEE WHOSE POSITION IS NOT "GRADED" MAY CONTINUE TO BE PAID TERRITORIAL COST OF-LIVING ALLOWANCES.'

THE STATUTORY AUTHORITY FOR GRANTING COST-OF-LIVING ALLOWANCES TO EMPLOYEES STATIONED IN PUERTO RICO IS SECTION 207 OF THE INDEPENDENCE OFFICES APPROPRIATION ACT, 1949, AS AMENDED, 62 STAT. 1205, 5 U.S.C. 118H. THAT SECTION READS IN PART AS FOLLOWS (QUOTED FROM 5 U.S.C. 118H):

ANY APPROPRIATIONS OR FUNDS AVAILABLE TO THE EXECUTIVE DEPARTMENTS, INDEPENDENT ESTABLISHMENTS, AND WHOLLY OWNED GOVERNMENT CORPORATIONS FOR THE PAYMENT OF SALARIES AND COMPENSATION TO PERSONS STATIONED OUTSIDE THE CONTINENTAL UNITED STATES OR IN ALASKA WHOSE RATES OF BASIC COMPENSATION ARE FIXED BY STATUTE, SHALL BE AVAILABLE FOR THE PAYMENT OF ADDITIONAL COMPENSATION TO SUCH PERSONS, BASED ON LIVING COSTS SUBSTANTIALLY HIGHER THAN IN THE DISTRICT OF COLUMBIA, OR CONDITIONS OF ENVIRONMENT WHICH DIFFER SUBSTANTIALLY FROM CONDITIONS OF ENVIRONMENT IN THE STATES AND WARRANT ADDITIONAL COMPENSATION AS A RECRUITMENT INCENTIVE, OR BOTH SUCH FACTORS: PROVIDED, THAT SUCH ADDITIONAL COMPENSATION, EXCEPT AS OTHERWISE SPECIFICALLY AUTHORIZED BY LAW, SHALL BE PAID ONLY IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT ESTABLISHING RATES OF SUCH ADDITIONAL COMPENSATION AND DEFINING THE AREA, GROUPS OF POSITIONS, AND CLASSES OF PERSONS TO WHICH EACH SUCH RATE APPLIES: * * *

SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AS AMENDED, IS IMPLEMENTED BY EXECUTIVE ORDER NO. 10000, SEPTEMBER 16, 1948, WHICH READS IN PART AS FOLLOWS:

* * * EVERY EXECUTIVE DEPARTMENT, INDEPENDENT ESTABLISHMENT, AND WHOLLY OWNED GOVERNMENT CORPORATION SHALL PAY * * * A TERRITORIAL COST-OF-LIVING ALLOWANCE FIXED UNDER SECTION 205 HEREOF TO EACH OF ITS EMPLOYEES WHOSE BASIC COMPENSATION IS FIXED BY STATUTE AND WHO IS LOCATED AT THE POST FOR WHICH THAT ALLOWANCE HAS BEEN FIXED. (ITALICS SUPPLIED.)

THE EXECUTIVE ORDER CONFERS AN ABSOLUTE RIGHT UPON EACH EMPLOYEE MEETING THE CONDITIONS OF ELIGIBILITY PRESCRIBED THEREIN TO RECEIVE A TERRITORIAL COST-OF-LIVING ALLOWANCE. HOWEVER, THE COMPENSATION OF THE EMPLOYEES DESCRIBED IN THE LETTER OF THE GENERAL MANAGER IS NOT FIXED BY STATUTE AND, THEREFORE, EXECUTIVE ORDER NO. 10000 DOES NOT CONFER UPON THEM ANY RIGHT TO RECEIVE THE ADDITIONAL COMPENSATION (COST-OF LIVING ALLOWANCE) AUTHORIZED UNDER SECTION 207 OF THE ACT AS IMPLEMENTED BY SUCH EXECUTIVE ORDER. SEE DECISION OF OCTOBER 12, 1960, 40 COMP. GEN. 210, CITED IN YOUR LETTER.

THE QUESTION REMAINS WHETHER THE COMMISSION IN THE EXERCISE OF ITS GENERAL AUTHORITY (SECTION 161D OF THE ATOMIC ENERGY ACT OF 1954) TO FIX COMPENSATION WITHOUT REGARD TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1071, ET SEQ., MAY AUTHORIZE ADDITIONAL COMPENSATION BASED UPON LIVING COSTS TO EMPLOYEES STATIONED IN PUERTO RICO UPON A BASIS COMPARABLE WITH THAT UPON WHICH EMPLOYEES SUBJECT TO SECTION 207 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1949, AND EXECUTIVE ORDER NO. 10000 OF SEPTEMBER 16, 1948, NOW RECEIVE ADDITIONAL COMPENSATION WHICH STATIONED IN PUERTO RICO.

IN OUR UNPUBLISHED DECISION OF MAY 8, 1950, B-94742, WE RECOGNIZED THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO PRESCRIBE "ADDITIONAL COMPENSATION" (BASED UPON LIVING COSTS) FOR EMERGENCY AND SEASONAL EMPLOYEES OCCUPYING POSITIONS IN ALASKA--- SUCH EMPLOYEES NOT BEING ENTITLED TO THE COST-OF-LIVING ALLOWANCE AUTHORIZED UNDER EXECUTIVE ORDER NO. 10000 BECAUSE THEIR SALARIES WERE NOT FIXED BY STATUTE.

SIMILARLY, IN 31 COMP. GEN. 466 WE RECOGNIZED--- IMPLIEDLY, AT LEAST -- THE AUTHORITY OF THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS TO PAY ADDITIONAL COMPENSATION TO SUPPORTING PERSONNEL OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII, WHOSE BASIC RATES OF COMPENSATION WERE ESTABLISHED ADMINISTRATIVELY WITHOUT TAKING INTO CONSIDERATION THE HIGHER COST OF LIVING IN HAWAII.

IN LINE WITH THOSE LATER DECISIONS WE WILL NOT QUESTION THE AUTHORITY OF YOUR COMMISSION TO CONTINUE TO PAY "ADDITIONAL COMPENSATION" TO EMPLOYEES TO WHOM THE SUBMISSION PERTAINS.

WE MUST DETERMINE, HOWEVER, WHETHER THE MAXIMUM BASIC RATE PRESCRIBED FOR A CLASSIFICATION ACT POSITION OF EQUIVALENT DIFFICULTY OR RESPONSIBILITY CONSTITUTES THE MAXIMUM RATE OF COMPENSATION--- THE BASIC RATE PLUS AN ADDITIONAL AMOUNT TO OFFSET LIVING COSTS--- THAT MAY BE PAID TO AN EMPLOYEE WHO OCCUPIES A POSITION IN PUERTO RICO THAT WOULD BE SUBJECT TO THE CLASSIFICATION ACT HAD NOT THE COMMISSION EXCEPTED IT FROM THE SCOPE OF THAT ACT UNDER THE AUTHORITY CONTAINED IN SECTION 161D OF THE ATOMIC ENERGY ACT OF 1954. A LITERAL APPLICATION OF THE LANGUAGE IN THE PROVISO TO SECTION 161D LENDS SUPPORT TO THE CONCLUSION THAT THE CORRESPONDING CLASSIFICATION ACT RATE CONSTITUTES THE MAXIMUM AGGREGATE RATE--- BASIC PLUS ADDITIONAL TO OFFSET LIVING COSTS--- THAT MAY BE PAID TO THE EMPLOYEES IN QUESTION. HOWEVER, WE DO NOT BELIEVE THAT SUCH A CONSTRUCTION OF THE PROVISO IS REQUIRED. UNDER SECTION 161D THE COMMISSION IS GIVEN CERTAIN LATITUDE IN FIXING AND PAYING COMPENSATION TO ITS EMPLOYEES THAT IT WOULD NOT HAVE IF THEIR POSITIONS WERE SUBJECT TO THE CLASSIFICATION ACT. THE ONLY LIMITATION IN THAT SECTION IS THAT THE RATES FIXED FOR SUCH POSITIONS SHALL NOT EXCEED THE RATES FOR POSITIONS OF EQUIVALENT DIFFICULTY OR RESPONSIBILITY UNDER THE CLASSIFICATION ACT. VIEWED IN ITS BROADEST SENSE, THE PROVISO IN SECTION 161D CAN BE CONSTRUED MERELY AS A RESTRICTION WHICH PRECLUDES THE PAYMENT OF AGGREGATE COMPENSATION--- BASIC COMPENSATION PLUS ADDITIONAL COMPENSATION BASED UPON LIVING COSTS -- IN AN AMOUNT WHICH EXCEEDS THE COMBINED AMOUNT THAT WOULD HAVE BEEN PAYABLE TO SUCH EMPLOYEES HAD THEY BEEN EMPLOYED AT CORRESPONDING CLASSIFICATION ACT RATES OF COMPENSATION IN THE POSITIONS AT THE SAME POINTS OUTSIDE CONTINENTAL UNITED STATES. THAT CONCLUSION IS SUPPORTED BY THE FACT THAT THE AGGREGATE RATE--- BASIC COMPENSATION PLUS ADDITIONAL COMPENSATION TO OFFSET LIVING COSTS--- PAYABLE TO ANY PARTICULAR EMPLOYEE UNDER SUCH A CONSTRUCTION OF THE SECTION IS IDENTICAL WITH THE AGGREGATE RATE THE EMPLOYEE WOULD HAVE RECEIVED HAD NOT THE COMMISSION IN THE EXERCISE OF ITS AUTHORITY UNDER SECTION 161D REMOVED THE POSITION OCCUPIED BY THE EMPLOYEE FROM THE SCOPE OF THE CLASSIFICATION ACT OF 1949, AS AMENDED. IT IS REASONABLE TO PRESUME THAT THE CONGRESS DID NOT INTEND TO PLACE EMPLOYEES IN A LESS FAVORABLE POSITION WHEN THEIR POSITIONS ARE EXCEPTED FROM THE CLASSIFICATION ACT BY ACTION OF THE COMMISSION.

THEREFORE, WE CONCLUDE THAT THE EMPLOYEES HOLDING POSITIONS CORRESPONDING WITH THOSE UNDER THE CLASSIFICATION ACT MAY BE PAID ADDITIONAL COMPENSATION BASED UPON LIVING COSTS IN AN AMOUNT NOT IN EXCESS OF THAT WHICH WOULD BE PAYABLE TO THEM HAD THE COMMISSION NOT, IN FACT, REMOVED THEIR POSITIONS FROM THE SCOPE OF THE CLASSIFICATION ACT IN THE EXERCISE OF ITS AUTHORITY UNDER SECTION 161D.

THE AREA OFFICE MANAGER WHOSE POSITION IS DESIGNATED AS "SCIENTIFIC AND TECHNICAL" LIKEWISE MAY CONTINUE TO BE PAID ADDITIONAL COMPENSATION BASED UPON LIVING COSTS SINCE THE AMOUNT, WHEN ADDED TO HIS BASIC RATE, DOES NOT CAUSE THE AGGREGATE RATE TO EXCEED $19,000 PER ANNUM.