B-108840, APRIL 20, 1953, 32 COMP. GEN. 456

B-108840, APRIL 20, 1953, 32 COMP. GEN. 456

COMPENSATION - INCREASES - RETROACTIVE SALARY PAYMENTS - NATIONAL GUARD MAINTENANCE PERSONNEL THE PROVISION IN THE THIRD SUPPLEMENTAL APPROPRIATION ACT, 1952, WHICH PERMITS AGENCIES WHOSE EMPLOYEES' SALARIES ARE FIXED BY ADMINISTRATIVE AUTHORITY TO GRANT RETROACTIVE INCREASES IN COMPENSATION SIMILAR TO THOSE GRANTED OTHER EMPLOYEES BY THE ACT OF OCTOBER 24, 1951, IS SUFFICIENTLY BROAD TO INCLUDE NATIONAL GUARD MAINTENANCE PERSONNEL WHO ARE PAID FROM FEDERAL FUNDS AT SALARY RATES WHICH, WHILE ESTABLISHED BY ADJUTANT GENERALS OF THE STATES, ARE UNDER THE CONTROL OF THE SECRETARY OF THE ARMY WHO IS REQUIRED BY LAW TO FIX THE SALARIES OF SUCH PERSONNEL.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, APRIL 20, 1953:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 18, 1952, WITH ENCLOSURE, FROM THE THEN ACTING SECRETARY OF THE ARMY, REQUESTING RECONSIDERATION OF OFFICE DECISION OF MAY 22, 1952, B-108840, TO COLONEL J. W. MCMANUS, F.C., FINANCE OFFICER, UNITED STATES ARMY, WHEREIN IT WAS HELD THAT THE PAYMENT OF SUPPLEMENTAL CIVILIAN PAY ROLL VOUCHERS COVERING RETROACTIVE COMPENSATION INCREASES TO CERTAIN NGM MAINTENANCE PERSONNEL OF THE NORTH CAROLINA NATIONAL GUARD WAS UNAUTHORIZED.

IN A STATEMENT ENCLOSED WITH THE ABOVE LETTER, REFERENCE IS MADE TO THE FACT THAT MAINTENANCE PERSONNEL OF THE NATIONAL GUARD (CARETAKERS) HAVE LONG BEEN REGARDED FOR MANY PURPOSES AS EMPLOYEES OF THE STATES RATHER THAN THE FEDERAL GOVERNMENT. 19 COMP. GEN. 326; 21 ID. 305; 22 ID. 864; B -100299, MARCH 9, 1951. ALSO, IT IS POINTED OUT THAT, AS STATE EMPLOYEES, THEIR ACTUAL RATE OF PAY IS ESTABLISHED BY THE ADJUTANT GENERALS OF THE VARIOUS STATES IN ACCORDANCE WITH STATE LAWS AND REGULATIONS SUBJECT TO THE MAXIMUM PAY SCHEDULES FIXED BY THE DEPARTMENT OF THE ARMY ( NGR 75-16- 6). BECAUSE OF SUCH CIRCUMSTANCES, IT APPARENTLY IS THE VIEW OF THE DEPARTMENT OF THE ARMY THAT, SINCE THE EMPLOYEES ARE NOT FEDERAL EMPLOYEES, THE FUNDS FROM WHICH THEY ARE PAID ARE NOT SUBJECT TO THE RESTRICTIONS NORMALLY APPLICABLE TO FEDERAL APPROPRIATIONS, AND THAT THE ACTION OF THE STATE ADJUTANT GENERAL IN THIS CASE IN AWARDING RETROACTIVE COMPENSATION NOT IN EXCESS OF THE MAXIMUM PAY SCHEDULES ESTABLISHED BY THE DEPARTMENT OF THE ARMY EFFECTIVE JULY 1, 1951, WAS AN ADMINISTRATIVE ACT OF THE STATE WHICH, IN THE ABSENCE OF FRAUD OR VIOLATION OF THE REGULATIONS GOVERNING THE APPLICABLE FUNDS, SHOULD NOT BE QUESTIONED.

FOR MANY YEARS THE FUNDS AUTHORIZED AND APPROPRIATED BY THE UNITED STATES FOR THE SUPPORT OF THE NATIONAL GUARD HAVE BEEN SUBJECTED TO VARIOUS FORMS OF CONTROL BY THE FEDERAL GOVERNMENT. THE SECTIONS OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, PERTAINING TO THE NATIONAL GUARD, WHICH ARE CODIFIED IN TITLE 32, U.S.C. AS WELL AS THE ANNUAL APPROPRIATION ACTS FOR THE NATIONAL GUARD, SPECIFICALLY SPELL OUT THE PURPOSES FOR WHICH NATIONAL GUARD FUNDS SHALL BE AVAILABLE AND THE MANNER IN WHICH THEY SHALL BE DISBURSED. FOR INSTANCE, SECTION 67 OF THE NATIONAL DEFENSE ACT OF 1916, 32 U.S.C. 49, AUTHORIZING THE APPOINTMENT OF OFFICERS OF THE NATIONAL GUARD TO ACT AS PROPERTY AND DISBURSING OFFICERS, STATES THAT THEY SHALL BE REGARDED AS PROPERTY AND DISBURSING OFFICERS OF THE UNITED STATES; AND IT IS PROVIDED THAT THE PROPERTY AND DISBURSING OFFICERS WILL ACCOUNT FOR ALL PROPERTY AND FUNDS BELONGING TO THE UNITED STATES AND WILL RENDER THROUGH THE DEPARTMENT OF THE ARMY SUCH ACCOUNTS OF FEDERAL FUNDS ENTRUSTED TO THEM FOR DISBURSEMENT AS MAY BE REQUIRED BY THE GENERAL ACCOUNTING OFFICE.

AS A FURTHER CONTROL OF NATIONAL GUARD FUNDS, SECTION 110 OF THE NATIONAL DEFENSE ACT OF 1916, AS AMENDED, 32 U.S.C. 154, PROVIDES THAT ALL AMOUNTS APPROPRIATED FOR DRILL PAY SHALL BE DISBURSED AND ACCOUNTED FOR BY THE OFFICERS AND AGENTS OF THE FINANCE DEPARTMENT OF THE ARMY. IN RECENT YEARS THE NATIONAL GUARD REGULATIONS (50-13) HAVE PROVIDED THAT THE UNITED STATES PROPERTY AND DISBURSING OFFICER WILL NOT RECEIVE AND DISBURSE NATIONAL GUARD FUNDS IN HIS OWN NAME BUT WILL ACT AS AGENT FOR A DESIGNATED FINANCE OFFICER OF THE UNITED STATES ARMY.

IN ADDITION TO THE FOREGOING, THIS OFFICE HAS RENDERED ADVANCE DECISIONS TO UNITED STATES PROPERTY AND DISBURSING OFFICERS AND FINANCE OFFICES (DISBURSING OFFICERS) OF THE UNITED STATES ARMY ON MANY QUESTIONS INVOLVING EXPENDITURES FROM NATIONAL GUARD FUNDS.

IN VIEW OF THE DEGREE OF CONTROL EXERCISED BY THE FEDERAL GOVERNMENT WITH RESPECT TO NATIONAL GUARD FUNDS, THIS OFFICE PERCEIVES NO SOUND REASON WHY THE RULE AGAINST THE USE OF FEDERAL FUNDS GENERALLY FOR MAKING RETROACTIVE INCREASES IN COMPENSATION SHOULD NOT LIKEWISE BE REGARDED AS APPLICABLE TO RETROACTIVE INCREASES IN COMPENSATION TO CIVILIAN EMPLOYEES OF THE NATIONAL GUARD. IT IS INTERESTING TO NOTE FROM THE FILES SUBMITTED HERE THAT THE SALARIES OF THE CIVILIAN EMPLOYEES OF THE NATIONAL GUARD APPARENTLY ARE ASSIMILATED TO THE SALARIES OF REGULAR EMPLOYEES OF THE UNITED STATES WHOSE SALARIES ARE FIXED BY THE CLASSIFICATION ACT OF 1949, 63 STAT. 802, AND THAT THE PROPOSED COMPENSATION INCREASES TO THE NATIONAL GUARD EMPLOYEES, HERE INVOLVED, RESULTED FROM THE INCREASES GRANTED TO THE FORMER CLASS OF EMPLOYEES BY PUBLIC LAW 201, APPROVED OCTOBER 24, 1951, 65 STAT. 612.

SHORTLY AFTER THE ENACTMENT OF PUBLIC LAW 201, THIS OFFICE RULED THAT EMPLOYEES OF CERTAIN AGENCIES WHOSE SALARIES WERE FIXED BY ADMINISTRATIVE AUTHORITY RATHER THAN UNDER THE CLASSIFICATION ACT OF 1949, DID NOT COME UNDER THE PROVISIONS OF SUCH ACT AUTHORIZING RETROACTIVE INCREASES IN SALARY BACK TO JULY 1, 1951. B-106525, NOVEMBER 20, 1951; B-106332, NOVEMBER 6, 1951 (31 COMP. GEN. 163), AND OTHERS. SUBSEQUENTLY, THERE WAS INCLUDED IN THE THIRD SUPPLEMENTAL APPROPRIATION ACT, 1952, PUBLIC LAW 375, 66 STAT. 120, THE FOLLOWING PROVISION:

APPROPRIATIONS OR OTHER FUNDS MADE AVAILABLE BY THIS OR ANY OTHER ACT FOR PERSONAL SERVICES DURING THE FISCAL YEAR 1952 SHALL BE AVAILABLE FOR PAY INCREASES, COMPARABLE TO THOSE PROVIDED BY PUBLIC LAW 201, APPROVED OCTOBER 24, 1951, GRANTED BY ADMINISTRATIVE ACTION PURSUANT TO LAW: PROVIDED, THAT SUCH PAY INCREASES MAY BE MADE RETROACTIVELY EFFECTIVE ON THE SAME BASIS AS IF THEY HAD BEEN AUTHORIZED BY SAID LAW: * * *

AS IS APPARENT FROM ITS TERMS, THAT PROVISION PERMITTED THE VARIOUS AGENCIES, WHERE THE SALARIES OF EMPLOYEES WERE FIXED BY ADMINISTRATIVE AUTHORITY, TO PROCESS RETROACTIVE INCREASES IN COMPENSATION SIMILAR TO THOSE GRANTED BY PUBLIC LAW 201.

THE RETROACTIVE INCREASES IN COMPENSATION PROPOSED TO BE GRANTED TO NATIONAL GUARD MAINTENANCE PERSONNEL ARE IN MANY RESPECTS, AS PREVIOUSLY INDICATED, THE SAME AS THOSE AUTHORIZED UNDER THE PROVISIONS OF THE THIRD SUPPLEMENTAL APPROPRIATION ACT. MOREOVER, IT SHOULD BE MENTIONED THAT UNDER 32 U.S.C. 42, THE SECRETARY OF THE ARMY IS REQUIRED TO "FIX THE SALARIES OF ALL CARETAKERS AND CLERKS AUTHORIZED TO BE EMPLOYED, AND SHALL ALSO DESIGNATE BY WHOM THEY SHALL BE EMPLOYED.' WHILE THE ADJUTANT GENERALS OF THE STATES ARE PERMITTED UNDER THE NATIONAL GUARD REGULATIONS TO ESTABLISH SALARY RATES FOR SUCH PERSONNEL UP TO THE MAXIMUM RATES FIXED BY THE DEPARTMENT OF THE ARMY, NEVERTHELESS, ANY ACTION OF THE ADJUTANT GENERALS OF THE STATES IN THAT REGARD IS DEEMED TO BE AS AGENTS OF THE SECRETARY OF THE ARMY. ACCORDINGLY, IT IS CONCLUDED THAT THE PROVISIONS OF SUCH APPROPRIATION ACT ARE SUFFICIENTLY BROAD TO INCLUDE THE MAINTENANCE PERSONNEL (CARETAKERS) OF THE NATIONAL GUARD AND THIS OFFICE NO LONGER WILL INTERPOSE ANY OBJECTION TO THE RETROACTIVE INCREASES IN SALARY TO CIVILIAN EMPLOYEES OF THE NORTH CAROLINA NATIONAL GUARD SIMILAR TO THOSE AUTHORIZED UNDER PUBLIC LAW 201, SUPRA.

THE PAY ROLL SUBMITTED HERE BY COLONEL J. W. MCMANUS, FINANCE OFFICER, U.S. ARMY, ARE BEING RETURNED TO HIM WITH ADVICE THAT SUCH ROLLS MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.