B-179188, JAN 31, 1974, 53 COMP GEN 531

B-179188, JAN 31, 1974, 53 COMP GEN 531

COMPENSATION - AGGREGATE LIMITATION - GS-18 GENERAL SCHEDULE - APPLICATION THE DETERMINATION OF THE APPLICABILITY OF SECTION 7(D)(1)(A) OF THE FEDERAL ADVISORY COMMITTEE ACT TO THE EXECUTIVE DIRECTOR OF THE NATIONAL ADVISORY COUNCIL ON VOCATIONAL EDUCATION WHO IS PAID $36,000 PER YEAR PLUS A YEARLY CONTRIBUTION OF $6,888 TOWARDS RETIREMENT IS NOT NECESSARY, SINCE THE AUTHORITY OF THE COUNCIL TO HIRE WITHOUT REGARD TO CIVIL SERVICE LAWS DOES NOT AUTHORIZE THE COUNCIL TO COMPENSATE HIM WITHOUT REGARD TO THE CLASSIFICATION ACT. HOWEVER, THE MATTER SHOULD BE SUBMITTED TO THE CIVIL SERVICE COMMISSION WHICH HAS THE JURISDICTION TO MAKE FINAL DETERMINATIONS AS TO THE APPLICABILITY OF THE CLASSIFICATION ACT, AND UPON DETERMINATION OF THE PROPER RATE OF PAY, A REQUEST FOR WAIVER OF ANY ERRONEOUS PAYMENTS, IF OVER $500, MAY BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE.

TO THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, JANUARY 31, 1974:

REFERENCE IS MADE TO A LETTER DATED JULY 12, 1973, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION AND MANAGEMENT, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, REQUESTING OUR DECISION AS TO WHETHER UNDER THE REQUIREMENTS OF THE FEDERAL ADVISORY COMMITTEE ACT, 5 U.S.C. APP. 1, SECTION 1 ET SEQ., THE SALARY OF THE EXECUTIVE DIRECTOR OF THE NATIONAL ADVISORY COUNCIL ON VOCATIONAL EDUCATION MUST BE REDUCED.

IT APPEARS THAT THE COUNCIL HIRED ITS PRESENT EXECUTIVE DIRECTOR UNDER THE PROVISIONS OF SECTION 104(A)(4) OF THE VOCATIONAL EDUCATION AMENDMENTS OF 1968, PUBLIC LAW 90-576, OCTOBER 16, 1968, 82 STAT. 1064, 1067, 20 U.S.C. 1244(A)(4) WHICH AUTHORIZE THE COUNCIL TO ENGAGE SUCH TECHNICAL ASSISTANCE AS MAY BE REQUIRED WITHOUT REGARD TO THE CIVIL SERVICE LAWS. WHEN THE PRESENT EXECUTIVE DIRECTOR WAS HIRED, THE COUNCIL APPARENTLY NEGOTIATED WITH HIM THE SALARY HE WAS TO RECEIVE. THE COUNCIL APPARENTLY DOES NOT CONSIDER THE EXECUTIVE DIRECTOR TO BE ELIGIBLE FOR CIVIL SERVICE RETIREMENT OR OTHER FEDERAL EMPLOYEE BENEFITS AND PRESENTLY HE RECEIVES AN ANNUAL SALARY OF $36,000 PLUS PAYMENTS TOWARD RETIREMENT AMOUNTING TO $6,888 PER YEAR. THUS, THE TOTAL COMPENSATION OF THE EXECUTIVE DIRECTOR AMOUNTS TO $42,888 PER YEAR.

SINCE THE PAYMENTS TO THE EXECUTIVE DIRECTOR EXCEED $36,000 PER YEAR THE COMPENSATION AUTHORIZED FOR EMPLOYEES IN GRADE GS-18 - THE ASSISTANT SECRETARY FOR ADMINISTRATION AND MANAGEMENT HAS QUESTIONED WHETHER SECTION 7(D)(1)(A) OF THE FEDERAL ADVISORY COMMITTEE ACT, 5 U.S.C. APP. 1, 7(D)(1)(A) (SUPP. II), WHICH PROVIDES THAT NO MEMBER OF ANY ADVISORY COMMITTEE OR ITS STAFF SHALL RECEIVE COMPENSATION AT A RATE IN EXCESS OF THAT SPECIFIED FOR GS-18 OF THE GENERAL SCHEDULE UNDER 5 U.S.C. 5332 IS APPLICABLE TO THE EXECUTIVE DIRECTOR'S POSITION. IF THAT RESTRICTION IS APPLICABLE THE ASSISTANT SECRETARY REQUESTS OUR DECISION AS TO THE EFFECT OF ITS APPLICATION ON THE EXECUTIVE DIRECTOR'S COMPENSATION.

BEFORE CONSIDERING THE EFFECT OF THE FEDERAL ADVISORY COMMITTEE ACT ON THE COMPENSATION OF THE EXECUTIVE DIRECTOR WE MUST EXAMINE THE BASIC AUTHORITIES FOR APPOINTMENT IN THE CIVIL SERVICE AND THE PROVISION UNDER WHICH HE WAS APPOINTED. UNLESS OTHERWISE EXCEPTED, THE PROVISIONS OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, AS AMENDED, NOW CODIFIED GENERALLY IN CHAPTERS 51 AND 53, TITLE 5, U.S. CODE, APPLY TO ALL CIVILIAN POSITIONS AND EMPLOYEES IN OR UNDER AN AGENCY. SEE 5 U.S.C. 5102 AND 5331. IN THIS REGARD 5 U.S.C. 5102(A) DEFINES "EMPLOYEE" AS AN INDIVIDUAL EMPLOYED IN OR UNDER AN AGENCY AND THE DEFINITION OF AN "AGENCY" UNDER THIS SECTION INCLUDES AN EXECUTIVE AGENCY WHICH IS DEFINED IN 5 U.S.C. 105 TO INCLUDE "AN EXECUTIVE DEPARTMENT, A GOVERNMENT CORPORATION AND AN INDEPENDENT ESTABLISHMENT."

ACCORDINGLY, IT APPEARS THAT PERSONNEL EMPLOYED BY THE COUNCIL ARE CIVILIAN EMPLOYEES IN OR UNDER AN AGENCY AND ARE SUBJECT TO THE PROVISIONS OF CHAPTER 51 AND SUBCHAPTER III (GENERAL SCHEDULE PAY RATES) OF CHAPTER 53 OF TITLE 5, U.S. CODE, UNLESS OTHERWISE EXCEPTED.

SECTION 1244(A)(4) OF TITLE 20, U.S. CODE, AUTHORIZES THE COUNCIL TO ENGAGE TECHNICAL ASSISTANCE AS FOLLOWS:

THE COUNCIL IS AUTHORIZED WITHOUT REGARD TO THE CIVIL SERVICE LAWS, TO ENGAGE TECHNICAL ASSISTANCE AS MAY BE REQUIRED TO CARRY OUT ITS FUNCTIONS

OUR OFFICE HAS HELD THAT THE CIVIL SERVICE LAWS AND REGULATIONS, HAVING TO DO WITH APPOINTMENTS, AND THE PROVISIONS OF THE CLASSIFICATION ACTS OF 1923 (5 U.S.C. 661 (1946 ED.)) AND 1949, HAVING TO DO WITH THE FIXING OF SALARY RATES, ARE SEPARATE AND DISTINCT STATUTES WITH ENTIRELY DIFFERENT SCOPES AND PURPOSES. 17 COMP. GEN. 578 (1938) AND 31 COMP. GEN. 314 (1952). ALTHOUGH THOSE PROVISIONS AND THE CLASSIFICATION ACT WERE INCORPORATED IN THE CODIFICATION OF TITLE 5, U.S. CODE, WE DO NOT BELIEVE THAT THE WORDING OF THE 1968 ACT MAY BE VIEWED AS BEING BROADER IN SCOPE THAN WAS PREVIOUSLY THE CASE BY VIRTUE OF THAT CODIFICATION. SINCE 20 U.S.C. 1244(A)(4) ONLY AUTHORIZES THE COUNCIL TO ENGAGE TECHNICAL ASSISTANCE WITHOUT REGARD TO CIVIL SERVICE LAWS AND DOES NOT SPECIFICALLY EXEMPT ANY PERSONNEL SO APPOINTED FROM THE PROVISIONS OF THE CLASSIFICATION ACT OR THE PROVISIONS OF TITLE 5, U.S. CODE, DEALING WITH COMPENSATION, IT APPEARS THAT THE EXECUTIVE DIRECTOR EMPLOYED BY THE COUNCIL IS SUBJECT TO THE SALARY FIXING PROVISIONS OF SUBCHAPTER III OF CHAPTER 53 OF TITLE 5, U.S.C.

SINCE IT APPEARS THAT THE EXECUTIVE DIRECTOR OF THE COUNCIL IS SUBJECT TO THE PROVISIONS OF CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53 OF TITLE 5, U.S. CODE, AND THE MAXIMUM SALARY PAYABLE UNDER THESE PROVISIONS IS $36,000, IT IS NOT NECESSARY TO CONSIDER THE APPLICABILITY OF SECTION 7(D)(1)(A) OF THE FEDERAL ADVISORY COMMITTEE ACT TO THE EXECUTIVE DIRECTOR'S POSITION AT THIS TIME. HOWEVER, 5 U.S.C. 5103 VESTS IN THE CIVIL SERVICE COMMISSION THE JURISDICTION TO DETERMINE FINALLY THE APPLICABILITY OF THE CLASSIFICATION PROVISIONS TO SPECIFIC POSITIONS AND EMPLOYEES. WE THEREFORE SUGGEST THAT AN AUTHORITATIVE RULING BE OBTAINED FROM THE COMMISSION ON THIS MATTER AS WELL AS ON THE QUESTION WHETHER HE IS SUBJECT TO THE CIVIL SERVICE RETIREMENT PROVISIONS.

AFTER THE PROPER RATE OF PAY FOR THE EXECUTIVE DIRECTOR HAS BEEN ESTABLISHED AND THE AMOUNT OF THE DIRECTOR'S INDEBTEDNESS HAS BEEN DETERMINED, SUCH INDEBTEDNESS MAY BE CONSIDERED FOR WAIVER IN ACCORDANCE WITH 5 U.S.C. 5584 AND SUBCHAPTER G OF CHAPTER I OF TITLE 4, CODE OF FEDERAL REGULATIONS.