B-104080, OCTOBER 31, 1955, 35 COMP. GEN. 251

B-104080, OCTOBER 31, 1955, 35 COMP. GEN. 251

COMPENSATION - RATES - DEMOTIONS - SAVED COMPENSATION THE REGULATORY AUTHORITY CONCERNING COMPENSATION RATES WHICH IS VESTED IN THE CIVIL SERVICE COMMISSION BY SECTION 802 (A) OF THE CLASSIFICATION ACT OF 1949 IS SUBORDINATE TO THE REQUIREMENT THAT THE RATES CONFORM TO THE COMPENSATION SCHEDULE CONTAINED IN SECTION 603 (B) OF SAID ACT AND, THEREFORE, A REGULATION WHICH WOULD PERMIT DEPARTMENTS AND AGENCIES TO AUTHORIZE A TEMPORARY PERIOD OF SALARY RETENTION FOR DEMOTED EMPLOYEES WITHOUT REGARD TO THE GENERAL SCHEDULE RATES IS INVALID.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 31, 1955:

WE HAVE CONSIDERED YOUR LETTER OF OCTOBER 7, 1955, REPLYING TO OUR LETTER OF SEPTEMBER 2, B-104080, POST, CONCERNING THE VALIDITY OF SECTIONS 25.401 THROUGH 25.408 OF THE FEDERAL EMPLOYEES PAY REGULATIONS. THE LETTER OF OCTOBER 7 STATES THAT THE CIVIL SERVICE COMMISSION RELIED UPON OUR DECISIONS, 31 COMP. GEN. 6, AND 32 COMP. GEN. 527 (INTERPRETING SECTION 802 (A) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954 (5 U.S.C. 1132) (, AS AUTHORITY FOR THE ISSUANCE OF THE REGULATIONS IN QUESTION.

IN OUR LETTER OF SEPTEMBER 2 WE REFERRED TO THOSE DECISIONS, POINTING OUT THAT THEY WERE LIMITED IN SCOPE TO THE SITUATIONS IN REGARD TO WHICH THEY WERE RENDERED. OUR DECISION IN 31 COMP. GEN. 6 CONSIDERED A PROPOSED SAVINGS REGULATION WHICH ULTIMATELY BECAME SECTION 25.103 (E) OF THE FEDERAL EMPLOYEES PAY REGULATIONS. THE PURPOSE OF THAT SECTION WAS TO SAVE THE COMPENSATION OF CERTAIN REGISTRATION OFFICERS OF THE VETERANS ADMINISTRATION WHOSE SALARIES OTHERWISE WOULD HAVE BEEN REDUCED AS A PROXIMATE CONSEQUENCE OF THE ENACTMENT OF THE CLASSIFICATION ACT OF 1949. OUR DECISION IN 32 COMP. GEN. 527, REGARDING REGULATION 25.103 (F), RELATES IN GENERAL TO THE SAME SITUATION. WE HAD BELIEVED THAT THE LIMITED SCOPE OF THOSE DECISIONS WAS MUTUALLY UNDERSTOOD. HOWEVER, AS IT NOW APPEARS THAT THE COMMISSION RELIES UPON THEM AS GENERAL AUTHORITY TO REGULATE CONCERNING COMPENSATION WITHOUT REGARD TO THE RELATIONSHIP OF POSITIONS TO THE GENERAL SCHEDULE RATES, IT SEEMS APPROPRIATE TO REVIEW THE PERTINENT PROVISIONS OF THE CLASSIFICATION ACT.

SECTION 601 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1111, PROVIDES, FOR POSITIONS TO WHICH THE ACT APPLIES, A BASIC COMPENSATION SCHEDULE DESIGNATED AS THE " GENERAL SCHEDULE.' SECTION 602, 5 U.S.C. 1112, DIVIDES THE GENERAL SCHEDULE INTO 18 GRADES ON THE BASIS OF THE LEVEL OF DIFFICULTY AND RESPONSIBILITY OF THE WORK. ALSO, IT SETS FORTH THE STATUTORY STANDARDS OF DIFFICULTY AND RESPONSIBILITY FOR POSITIONS IN EACH OF THE 18 GRADES. THE COMPENSATION SCHEDULE FOR THOSE GRADES IS ESTABLISHED BY SECTION 603 (B) OF THE ACT, AS AMENDED BY PUBLIC LAW 94, APPROVED JUNE 28, 1955, 69 STAT. 172. SECTION 503 (A) OF THE CLASSIFICATION ACT AS AMENDED BY SECTION 109 (A) OF PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954, 68 STAT. 1105, 5 U.S.C. 1113, READS:

THE RATES OF BASIC COMPENSATION WITH RESPECT TO OFFICERS, EMPLOYEES, AND POSITIONS TO WHICH THIS ACT APPLIES SHALL BE IN ACCORDANCE WITH THE COMPENSATION SCHEDULE CONTAINED IN SUBSECTION (B). ( ITALICS SUPPLIED.)

THE REGULATORY AUTHORITY OF THE CIVIL SERVICE COMMISSION CONCERNING COMPENSATION RATES IS FOUND IN SECTION 802 (A) OF THE CLASSIFICATION ACT. THAT SECTION READS IN PART AS FOLLOWS:

THE RATE OF BASIC COMPENSATION TO BE RECEIVED BY ANY OFFICER OR EMPLOYEE TO WHOM THIS ACT APPLIES SHALL BE GOVERNED BY REGULATIONS ISSUED BY THE COMMISSION IN CONFORMITY WITH THIS ACT * * *. ( ITALICS SUPPLIED.)

TO GIVE APPROPRIATE LEGAL EFFECT TO THE UNDERSCORED MANDATORY LANGUAGE OF SECTION 603 (A) OF THE ACT, WHICH, WHEN READ WITH SECTION 602, RELATES THE LEVEL OF DIFFICULTY AND RESPONSIBILITY OF A POSITION TO THE BASIC COMPENSATION AUTHORIZED BY SECTION 603 (B) FOR ITS APPROPRIATE GRADE IN THE GENERAL SCHEDULE, WE ARE REQUIRED TO CONCLUDE THAT THE AUTHORITY GRANTED THE COMMISSION TO REGULATE IN CONFORMITY WITH THE ACT IS SUBORDINATE TO THE LANGUAGE OF SECTION 603 (A) THEREOF.

ACCORDINGLY, THE VIEWS EXPRESSED IN OUR LETTER OF SEPTEMBER 2, 1955, B- 104080, QUESTIONING THE LEGALITY OF SECTIONS 25.401 THROUGH 25.408 OF THE FEDERAL EMPLOYEES PAY REGULATIONS, MUST BE SUSTAINED, AND WE WILL BE REQUIRED TO WITHHOLD CREDIT FOR ANY PAYMENTS OF COMPENSATION HEREAFTER MADE UNDER SAID SECTIONS.

LETTER OF SEPTEMBER 2, 1955, FOLLOWS

IN THE CONSIDERATION OF CERTAIN CONTEMPLATED DEMOTIONS WITHIN THE GENERAL ACCOUNTING OFFICE WE HAVE STUDIED THE COMMISSION'S RECENT PAY REGULATIONS (SECTIONS 25.401 THROUGH 25.408) PERTAINING TO SALARY RETENTION IN DEMOTION ACTIONS. THE REGULATIONS, WITH CERTAIN EXCEPTIONS, WOULD PERMIT DEPARTMENTS AND AGENCIES, WITHIN THEIR DISCRETION, TO AUTHORIZE A TEMPORARY PERIOD OF SALARY RETENTION FOR EMPLOYEES WHO ARE DEMOTED. AS A RESULT OF THE STUDY A QUESTION HAS ARISEN WHETHER THE REGULATIONS REFERRED TO ARE IN CONFORMITY WITH THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, AS AMENDED.

IN OUR DECISION OF JULY 6, 1951, B-104080, TO A FORMER CHAIRMAN OF THE COMMISSION--- A DECISION WHICH WAS LIMITED SOLELY TO THE SITUATION THEN BEFORE US--- THERE WAS CONSIDERED A PROPOSED SAVINGS REGULATION WHICH ULTIMATELY BECAME SECTION 25.103 (E) OF THE FEDERAL EMPLOYEES PAY REGULATIONS. THE CONCLUSION REACHED IN THAT DECISION WAS PREDICATED UPON THE FACT THAT THE COMPENSATION OF EMPLOYEES AFFECTED BY SECTION 25.103 (E) OF THE REGULATIONS WOULD OTHERWISE HAVE BEEN REDUCED AS A PROXIMATE CONSEQUENCE OF THE PROVISIONS OF TITLE VI OF THE CLASSIFICATION ACT--- A RESULT OBVIOUSLY NOT CONTEMPLATED OR INTENDED BY THE CONGRESS. SIMILARLY, IN OUR DECISION OF MARCH 21, 1953, B 106137 (32 COMP. GEN. 527), TO THE ADMINISTRATOR OF VETERANS AFFAIRS--- RENDERED AFTER CORRESPONDENCE WITH THE COMMISSION--- WE ACQUIESCED WITH REGARD TO THE OBJECTIVES OF SECTION 25.103 (F) OF THE FEDERAL EMPLOYEES PAY REGULATIONS. THE SITUATION SOUGHT TO BE REMEDIED BY THAT REGULATION, WHILE LESS DIRECTLY A CONSEQUENCE OF THE CLASSIFICATION ACT OF 1949, STEMMED DIRECTLY FROM REGULATION 25.103 (E) AND WAS APPLICABLE BUT TO A LIMITED NUMBER OF EMPLOYEES.

NEITHER OF THE ABOVE CITED DECISIONS MAY BE CONSTRUED TO BE MORE EXTENSIVE THAN THE FACTUAL SITUATIONS IN REGARD TO WHICH THEY WERE RENDERED. FURTHER, THEY SHOULD NOT BE INTERPRETED AS RECOGNIZING A GENERAL AUTHORITY UNDER SECTION 802 (A) OF THE ACT TO FIX RATES OF BASIC COMPENSATION OF EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1949 WITHOUT REGARD TO THE PROVISIONS OF TITLES I, III, AND VI THEREOF. IT IS OUR VIEW THAT IN THE ABSENCE OF EXPRESS OR IMPLICIT AUTHORITY IN THE CLASSIFICATION ACT OF 1949, AS AMENDED, BASIC RATES OF COMPENSATION DETERMINED UNDER REGULATIONS PROMULGATED PURSUANT TO SECTION 802 (A) OF THE ACT MUST FALL WITHIN THE RANGE OF SALARIES ESTABLISHED BY STATUTE FOR THE GRADES TO WHICH THE POSITIONS ARE ALLOCATED.

THE PERTINENT STATUTORY PROVISIONS CONTEMPLATE THAT, AS A GENERAL RULE, AN EMPLOYEE'S RATE OF BASIC COMPENSATION WILL CONFORM WITH THOSE RATES PRESCRIBED BY LAW FOR THE GRADE IN WHICH HIS POSITION IS PLACED. TO DO OTHERWISE WOULD CONTRADICT THE CONCEPT OR PHILOSOPHY OF THE CLASSIFICATION ACT, NAMELY, EQUAL PAY FOR EQUAL WORK. THE REGULATIONS REFERRED TO PURPORT TO BE GENERAL IN APPLICATION AND DEPART FROM SUCH PRINCIPLE.

IN VIEW OF WHAT HAS BEEN SAID, WE WOULD BE MOST RELUCTANT, IN THE ABSENCE OF AUTHORIZING LEGISLATION, TO CONCLUDE THAT THE PAYMENTS APPARENTLY CONTEMPLATED BY REGULATIONS 25.401, ET SEQ., ARE AUTHORIZED BY LAW. SEE, IN SUCH CONNECTION, H.R. 3255, 84TH CONGRESS, WHICH WAS PASSED BY THE HOUSE OF REPRESENTATIVES ON JULY 30, 1955, AND IS NOW PENDING BEFORE THE POST OFFICE AND CIVIL SERVICE COMMITTEE OF THE SENATE. IT IS POSSIBLE THAT WE ARE UNAWARE OF SOME LEGAL BASIS ON WHICH THE COMMISSION RELIES AS AUTHORITY FOR THE PROMULGATION OF THE REGULATIONS IN QUESTION. ACCORDINGLY, WE WOULD BE PLEASED TO HAVE AN EXPRESSION OF YOUR VIEWS THEREON BEFORE TAKING A FINAL POSITION IN THE MATTER.

SEVERAL AGENCIES HAVE MADE INQUIRIES CONCERNING THE VALIDITY OF THE REGULATION AND HAVE INDICATED THAT, PENDING A FORMAL RULING FROM THIS OFFICE THEREON, PERSONNEL ACTIONS WILL BE PROCESSED WITHOUT REGARD TO THE REGULATION. THEREFORE, YOUR PROMPT CONSIDERATION OF THE MATTER WILL BE APPRECIATED.