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A-55907, JULY 5, 1934, 14 COMP. GEN. 14

A-55907 Jul 05, 1934
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1934: THERE ARE FOR CONSIDERATION IN THE AUDIT OF VOUCHER NO. 75. THE MATERIAL FACTS IN WHICH ARE SET FORTH AS FOLLOWS: * * * * * * * * * * * * * * (TABLE OMITTED) * * * * * * * * * * * * * * IT WILL BE NOTED THAT THE COMPENSATION OF EACH OF THE ABOVE EMPLOYEES WAS INCREASED TO THE RATE FIXED BY EXECUTIVE ORDER NO. 6440 (THE SALARY SCHEDULE IN EXECUTIVE ORDER NO. 6746. BEING THE SAME) FOR THE RESPECTIVE EXECUTIVE ORDER GRADE TO WHICH HIS POSITION WAS ALLOCATED ON MARCH 1. AS WELL AS ALL OTHER EMPLOYEES OF THE FEDERAL POWER COMMISSION PAID FROM FUNDS ALLOTTED UNDER AUTHORITY OF THE NATIONAL INDUSTRIAL RECOVERY ACT WAS MADE SUBJECT TO 15-PERCENT REDUCTION (10 PERCENT EFFECTIVE FEBRUARY 1.

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A-55907, JULY 5, 1934, 14 COMP. GEN. 14

COMPENSATION - ADMINISTRATIVE PROMOTIONS - EXECUTIVE ORDER CLASSIFICATION IN FIXING CLASSIFICATION SALARY RATES PURSUANT TO THE PROVISIONS OF EXECUTIVE ORDER NO. 6440 OF NOVEMBER 18, 1933, NOW SUPERSEDED BY EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, THERE MAY NOT RESULT INCREASES IN COMPENSATION WHICH AMOUNT TO "ADMINISTRATIVE PROMOTIONS" IN VIOLATION OF SECTION 7 OF THE ACT OF MARCH 3, 1933, 47 STAT. 1515, AMENDED FOR THE FISCAL YEAR 1935 BY SECTION 24 OF THE ACT OF MARCH 28, 1934, 48 STAT. 523. THE PROVISION IN THE EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, DEFINING THE TERM ,ADJUSTMENTS" TO INCLUDE INCREASES IN COMPENSATION, MUST BE CONSIDERED IN THE LIGHT OF THE DECISIONS OF THE COMPTROLLER GENERAL RENDERED PRIOR THERETO GIVING EFFECT TO THE ECONOMY LAW, AND, IN CONSEQUENCE, ANY "ADJUSTMENTS" UPWARD THEREUNDER MAY BE MERELY THOSE MINOR ADJUSTMENTS NOT CONSTITUTING VIOLATIONS OF THE ECONOMY ACT AS DETERMINED IN SAID DECISIONS.

DECISION BY COMPTROLLER GENERAL MCCARL, JULY 5, 1934:

THERE ARE FOR CONSIDERATION IN THE AUDIT OF VOUCHER NO. 75, PAY ROLL OF EMPLOYEES OF THE FEDERAL POWER COMMISSION, FOR THE PERIOD MARCH 1 TO 15, 1934, CERTAIN QUESTIONS CONCERNING CLASSIFICATION OF POSITIONS AND THE FIXING OF SALARY RATES UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 6440, OF NOVEMBER 18, 1933, WHICH HAS NOW BEEN SUPERSEDED BY EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934. THESE QUESTIONS RELATE TO FIVE SPECIFIC CASES, THE MATERIAL FACTS IN WHICH ARE SET FORTH AS FOLLOWS:

* * * * * * * * * * * * * * (TABLE OMITTED) * * * * * * * * * * * * * *

IT WILL BE NOTED THAT THE COMPENSATION OF EACH OF THE ABOVE EMPLOYEES WAS INCREASED TO THE RATE FIXED BY EXECUTIVE ORDER NO. 6440 (THE SALARY SCHEDULE IN EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, BEING THE SAME) FOR THE RESPECTIVE EXECUTIVE ORDER GRADE TO WHICH HIS POSITION WAS ALLOCATED ON MARCH 1, 1934, AND THAT THE COMPENSATION OF THE ABOVE EMPLOYEES, AS WELL AS ALL OTHER EMPLOYEES OF THE FEDERAL POWER COMMISSION PAID FROM FUNDS ALLOTTED UNDER AUTHORITY OF THE NATIONAL INDUSTRIAL RECOVERY ACT WAS MADE SUBJECT TO 15-PERCENT REDUCTION (10 PERCENT EFFECTIVE FEBRUARY 1, 1934), PRIOR TO THE CLASSIFICATION OF THEIR POSITIONS UNDER THE EXECUTIVE ORDER. (13 COMP. GEN. 63-65, ANSWER TO QUESTION 2.)

IN DECISION OF MARCH 17, 1934 (13 COMP. GEN. 243, 245), AFTER QUOTING SECTION 7 OF THE ACT OF MARCH 3, 1933 (47 STAT. 1515), AND A PORTION OF EXECUTIVE ORDER NO. 6440, IT WAS HELD:

* * * THEREFORE, IN APPLYING THE PROVISIONS OF SAID ORDER TO OFFICERS AND EMPLOYEES IN THE SERVICE WHEN IT BECAME EFFECTIVE THERE MUST NOT RESULT A PROMOTION WITHIN THE MEANING OF THE PROVISIONS OF SECTION 7, SUPRA. WHERE, HOWEVER, UNDER THE ADJUSTMENT, THE NET SALARY RATE TO BE PAID AFTER WITHHOLDING THE APPLICABLE PERCENTAGE REDUCTION DOES NOT EXCEED THE NET SALARY PREVIOUSLY PAID FOR PERFORMANCE OF SUBSTANTIALLY THE SAME DUTIES BY AN AMOUNT EQUAL TO OR IN EXCESS OF THE AMOUNT OF ONE SALARY STEP IN THE CORRESPONDING SALARY GRADE UNDER THE CLASSIFICATION ACT, VIZ, $60, $100, $200, OR $500 PER ANNUM, AS THE CASE MAY BE, SUCH AN ADJUSTMENT WOULD NOT CONSTITUTE AN ADMINISTRATIVE PROMOTION WITHIN THE MEANING OF SAID SECTION 7 OF THE ACT OF MARCH 3, 1933. SEE DECISION OF MARCH 12, 1934, A-54227.

AND IN DECISION OF MARCH 31, 1934, A-54605, AFTER QUOTING THE ABOVE QUOTED PORTION OF DECISION OF MARCH 17, 1934, IT WAS HELD:

THIS PRINCIPLE WAS INTENDED TO BE, AND WAS, LIMITED TO CASES IN WHICH THE PROPER ADJUSTMENT AUTHORIZED BY THE EXECUTIVE ORDER WOULD NOT INCREASE THE NET SALARY RATE PREVIOUSLY PAID MORE THAN THE AMOUNT OF ONE SALARY STEP IN THE CORRESPONDING CLASSIFICATION GRADE. WHERE THE PROPER ADJUSTMENT--- THAT IS, BASED SOLELY UPON THE DUTIES OF THE POSITION--- WOULD RESULT IN AN INCREASE OF MORE THAN ONE SALARY STEP IN THE CORRESPONDING CLASSIFICATION GRADE, THE PROPER GRADE SHOULD BE SHOWN ON THE PAY ROLL BUT THE RATE OF COMPENSATION TO BE PAID SHOULD REMAIN THE SAME SO LONG AS THE POSITION IS HELD BY THE SAME EMPLOYEE AND THE STATUTORY INHIBITION AGAINST PROMOTIONS CONTINUES. THE MERE FACT THAT AN EMPLOYEE'S FORMER SALARY IS BETWEEN TWO SALARY RATES PRESCRIBED IN THE EXECUTIVE ORDER DOES NOT AUTHORIZE PLACING THE POSITION IN THE HIGHER OF THE TWO GRADES OR LEAVING THE SALARY UNCHANGED. THE FIXING OF THE GRADE FOR THE POSITION SHOULD BE BASED ON THE DUTIES, RESPONSIBILITIES, ETC., WITHOUT REFERENCE TO THE FORMER SALARY OF THE INCUMBENT; AND IF THE SALARY FIXED IN THE EXECUTIVE ORDER FOR THE GRADE TO WHICH SO ALLOCATED IS LOWER THAN THE SALARY THERETOFORE BEING RECEIVED, SUCH IS TO BE REDUCED ACCORDINGLY.

IT WILL BE NOTED THAT IN ONLY 2 OF THE 5 CASES IN QUESTION WERE THE EMPLOYEES' DESIGNATIONS CHANGED, AND THE ADMINISTRATIVE OFFICE DOES NOT CLAIM THAT THERE HAS BEEN A MATERIAL CHANGE IN THE DUTIES AND RESPONSIBILITIES OF ANY OF THE EMPLOYEES IN QUESTION.

THE NET INCREASE IN COMPENSATION OF FAYETTE S. WARNER AND GEORGE HART MORSE AS A RESULT OF CLASSIFICATION E.O. GRADES 17 AND 16, RESPECTIVELY, PURSUANT TO THE EXECUTIVE ORDER 6440, WAS LESS THAN $500, THE AMOUNT OF THE SALARY STEP IN THE CORRESPONDING SALARY GRADES UNDER THE CLASSIFICATION ACT--- NOTWITHSTANDING THAT NO CORRESPONDING CLASSIFICATION ACT GRADE IS STATED IN THE EXECUTIVE ORDER FOR GRADE 17. HENCE, THERE WAS INVOLVED NO "ADMINISTRATIVE PROMOTION," AND NO OBJECTION WILL BE MADE IN THE AUDIT TO PAYMENTS OF THE INCREASED SALARY RATES IN SAID CASES.

HOWEVER, THE NET INCREASES IN COMPENSATION IN THE CASES OF M. F. HETHERINGTON, JR., LAURA S. VOORHEES, AND JENNIE SCHNEIDER, AS A RESULT OF CLASSIFICATION IN E.O. GRADES 11, 5, AND 4, RESPECTIVELY,WAS IN EXCESS OF THE AMOUNTS OF THE SALARY STEP IN THE CORRESPONDING CLASSIFICATION ACT GRADES, VIZ, $100 AND $60. ACCORDINGLY, UNDER THE PRINCIPLE STATED IN THE QUOTED DECISIONS, CREDIT MUST BE WITHHELD IN THE AUDIT OF ACCOUNTS FOR PAYMENTS OF SALARY TO THESE THREE EMPLOYEES IN EXCESS OF THE RATES OF $3,000, $1,500, AND $1,320 PER ANNUM, RESPECTIVELY, THE TOTAL OR BASIC RATES PAID PRIOR TO MARCH 1, 1934, LESS 10 PERCENT, FROM AND AFTER MARCH 1, 1934, AND UNTIL JUNE 30, 1934.

THE FOLLOWING PROVISION APPEARS IN EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, WHICH SUPERSEDED EXECUTIVE ORDER NO. 6440:

THE TERM "ADJUSTMENTS" AS USED HEREIN SHALL INCLUDE INCREASES AS WELL AS DECREASES IN RATES OF COMPENSATION. * * *

SECTION 24 OF THE ACT OF MARCH 28, 1934, 48 STAT. 523, EFFECTIVE JULY 1, 1934, PROVIDED AS FOLLOWS:

(2) SECTION 7 (PROHIBITING ADMINISTRATIVE PROMOTIONS) OF THE TREASURY- POST OFFICE APPROPRIATION ACT, FISCAL YEAR 1934, IS AMENDED BY ADDING AFTER THE FIRST PROVISO THEREOF A COLON AND THE FOLLOWING: "PROVIDED FURTHER, THAT ADMINISTRATIVE PROMOTIONS MAY BE MADE DURING THE FISCAL YEAR 1935 TO THE EXTENT THAT FUNDS ARE AVAILABLE THEREFOR, ONAN ANNUAL BASIS, FROM SAVINGS MADE IN THE AMOUNTS APPORTIONED FOR PERSONAL SERVICES FROM THE APPLICABLE APPROPRIATIONS FOR THE FISCAL YEAR 1935.'

IN THE DECISION OF APRIL 28, 1934, 13 COMP. GEN. 305, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE EXECUTIVE ORDER NO. 6660 OF MARCH 27, 1934, WHILE AUTHORIZING THE USE OF FUNDS OF THE PUBLIC WORKS ADMINISTRATION FOR PERSONAL SERVICES, DOES NOT SPECIFICALLY AUTHORIZE DISREGARD OF SECTION 7 OF THE ACT OF MARCH 3, 1933, PROHIBITING ADMINISTRATIVE PROMOTIONS, WHICH IS APPLICABLE TO PUBLIC WORKS FUNDS, AND EVEN IF THERE EXISTED NO DOUBT AS TO THE PRESIDENT'S AUTHORITY SO TO DO, THE PRESIDENT MAY NOT BE PLACED IN AN ATTITUDE OF SANCTIONING DISREGARD OF STATUTORY LAW WITHOUT HIS PURPOSE TO DO SO APPEARS CLEAR BEYOND ANY ROOM FOR DOUBT.

THE SAME PRINCIPLE IS APPLICABLE HERE.

THE QUOTED PROVISION OF THE EXECUTIVE ORDER NO. 6746, DATED JUNE 21, 1934, MUST BE CONSIDERED IN THE LIGHT OF THE DECISIONS RENDERED PRIOR THERETO GIVING EFFECT TO THE ECONOMY LAW AND, IN CONSEQUENCE, ANY "ADJUSTMENTS" UPWARD THEREUNDER MAY BE MERELY THOSE MINOR ADJUSTMENTS NOT CONSTITUTING VIOLATIONS OF THE ECONOMY ACT AS DETERMINED BY SAID DECISIONS.

WITH REGARD TO "ADMINISTRATIVE PROMOTIONS" DURING THE FISCAL YEAR 1935, SEE DECISION OF JUNE 9, 1934, A-54807, 13 COMP. GEN. 419.

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