B-109179, MAY 5, 1952, 31 COMP. GEN. 564

B-109179, MAY 5, 1952, 31 COMP. GEN. 564

COMPENSATION - ERRONEOUS PROMOTIONS - REFUND REQUIREMENTS IN VIEW OF THE PROVISION IN SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1952, THAT NO PERSON IN ANY EXECUTIVE DEPARTMENT OR AGENCY WHOSE POSITION IS SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, SHALL BE PROMOTED OR TRANSFERRED TO A HIGHER GRADE SUBJECT TO SUCH ACT WITHOUT HAVING SERVED AT LEAST A YEAR IN THE NEXT LOWER GRADE, AN EMPLOYEE WHO IS PROMOTED FROM GS-7 TO GS-9 PRIOR TO COMPLETING A YEAR OF SERVICE IN GS-7 IS REQUIRED TO REFUND AND EXCESS SALARY RECEIVED AS A RESULT OF THE PROMOTION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, MAY 5, 1952.

REFERENCE IS MADE TO THE LETTER OF APRIL 15, 1952, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTING DECISION WHETHER IT WILL BE NECESSARY FOR THE BUREAU OF RECLAMATION TO REQUIRE A REFUND OF THE EXCESS SALARY PAID TO AN EMPLOYEE AS THE RESULT OF A PROMOTION IN CONTRAVENTION OF THE SO-CALLED WHITTEN RIDER. SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1952, APPROVED NOVEMBER 1, 1951, 65 STAT. 757, 758, COMMONLY REFERRED TO AS THE WHITTEN RIDER, PROVIDES IN PART:

" IMMEDIATELY UPON THE ENACTMENT OF THIS ACT AND UNTIL TERMINATION OF THE NATIONAL EMERGENCY PROCLAIMED BY THE PRESIDENT ON DECEMBER 16, 1950:

"* * * NO PERSON IN ANY EXECUTIVE DEPARTMENT OR AGENCY WHOSE POSITION IS SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, SHALL BE PROMOTED OR TRANSFERRED TO A HIGHER GRADE SUBJECT TO SUCH ACT WITHOUT HAVING SERVED AT LEAST ONE YEAR IN THE NEXT LOWER GRADE * * *.'

IT APPEARS THAT JAMES L. SAVAGE WAS PROMOTED NOVEMBER 11, 1951, FROM GS-7 TO GS-9, AND THAT HE PREVIOUSLY HAD BEEN PROMOTED JANUARY 21, 1951, FROM GS-5 TO GS-7. IT IS STATED THAT THE OFFICE OF THE BUREAU OF RECLAMATION AT BOULDER CITY, NEVADA, DID NOT RECEIVE NOTICE OF THE ABOVE STATUTORY PROVISION UNTIL NOVEMBER 13, 1951, ON WHICH DATE THE CIVIL SERVICE COMMISSION CIRCULAR 671 OF NOVEMBER 5, 1951, OUTLINING THE PROVISIONS OF THE STATUTE, WAS RECEIVED.

THE ILLEGALITY OF THE PROMOTION IN THIS CASE DOES NOT REST UPON THE CIVIL SERVICE COMMISSION CIRCULAR BUT UPON THE STATUTORY PROVISIONS SUPRA. IT IS A WELL ESTABLISHED RULE THAT ALL PERSONS ARE CHARGED WITH KNOWLEDGE OF THE PUBLIC LAWS ENACTED BY THE CONGRESS. ACCORDINGLY, THERE APPEARS NO ALTERNATIVE UNDER THE EXPRESS TERMS OF THE ABOVE QUOTED STATUTE BUT TO REQUIRE THE EMPLOYEE IN QUESTION TO REFUND THE EXCESS SALARY RECEIVED BY HIM FROM THE DATE OF HIS PROMOTION NOVEMBER 11, 1951, TO THE DATE OF CORRECTIVE ACTION SAID TO HAVE BEEN TAKEN ON DECEMBER 17, 1951.