B-136584, JUL. 3, 1958

B-136584, JUL. 3, 1958

TO HONORABLE J. GEORGE STEWART, ARCHITECT OF THE CAPITOL:

YOUR LETTER OF JUNE 25, 1958, REQUESTS OUR OPINION WHETHER THE SECOND ASSISTANT ARCHITECT OF THE CAPITOL, WHOSE SALARY IS FIXED ANNUALLY IN THE LEGISLATIVE BRANCH APPROPRIATION ACT, IS ENTITLED TO A COMPENSATION INCREASE UNDER THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958, PUBLIC LAW 85-462.

YOU SAY THE POSITION OF SECOND ASSISTANT ARCHITECT OF THE CAPITOL WAS FIRST ESTABLISHED BY THE LEGISLATIVE BRANCH APPROPRIATION ACT, 1956, WITH A SALARY RATE OF $14,300. ADDITIONALLY, WE NOTE THAT THE LEGISLATIVE BRANCH APPROPRIATION ACT, 1957, 70 STAT. 356, 365, ALSO SPECIFICALLY SETS FORTH THE SALARY RATE OF $14,300 FOR THE POSITION OF SECOND ASSISTANT ARCHITECT. HOWEVER, THE 1958 LEGISLATIVE BRANCH APPROPRIATION ACT, 71 STAT. 244, 251, INCREASED THE RATE OF THE SECOND ASSISTANT ARCHITECT TO $16,000. THE LEGISLATIVE HISTORY OF THAT ACT IS TO THE EFFECT THAT, THROUGH INADVERTENCE, THE SALARY OF THE SECOND ASSISTANT ARCHITECT WAS NOT INCREASED BY THE FEDERAL EXECUTIVE PAY ACT OF 1956 AND THAT THIS INCREASE OF $1,700 REPRESENTS A FAIR AMOUNT TO BRING THE SALARY OF THE SECOND ASSISTANT ARCHITECT IN LINE WITH THE SALARIES OF THE ARCHITECT AND ASSISTANT ARCHITECT WHICH WERE INCREASED BY THE FEDERAL EXECUTIVE PAY ACT OF 1956.

IN VIEW OF THAT LEGISLATIVE HISTORY THERE IS SOME BASIS FOR THE VIEW THAT THE SALARY RATE OF THE SECOND ASSISTANT ARCHITECT SHOULD BE GIVEN THE SAME EFFECT AS IF IT HAD BEEN ESTABLISHED BY THE FEDERAL EXECUTIVE PAY ACT ITSELF; BUT SHOULD THE 10 PERCENT INCREASE PROVIDED EMPLOYEES IN THE LEGISLATIVE BRANCH UNDER SECTION 4 (A) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958 BE HELD TO APPLY TO THE SECOND ASSISTANT ARCHITECT, THEN THE DIFFERENTIAL BETWEEN THE SALARY RATE OF HIS POSITION AND THAT OF THE POSITION OF ASSISTANT ARCHITECT WOULD BE EXTINGUISHED, THUS DESTROYING THE PLANNED SALARY STRUCTURE SET FORTH IN THE FEDERAL EXECUTIVE PAY ACT.

AN EVEN MORE SERIOUS OBJECTION TO A CONCLUSION THAT THE SECOND ASSISTANT ARCHITECT IS ENTITLED TO A SALARY INCREASE UNDER THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958 IS THE FACT THAT HIS SALARY FROM THE INCEPTION OF HIS POSITION HAS BEEN SPECIFICALLY PROVIDED FOR IN THE ANNUAL APPROPRIATION ACTS FOR THE LEGISLATIVE BRANCH. UNDER SOMEWHAT SIMILAR CIRCUMSTANCES OUR DECISIONS HAVE HELD THAT THE PROVISIONS OF SECTION 301 OF THE POSTAL RATE REVISION AND FEDERAL EMPLOYEES SALARY ACT OF 1948, 63 STAT. 1267, GRANTING ADDITIONAL COMPENSATION TO OFFICERS AND EMPLOYEES OF THE FEDERAL GOVERNMENT DO NOT APPLY TO PERSONS WHOSE COMPENSATION HAS BEEN SPECIFICALLY FIXED IN ANNUAL APPROPRIATION ACTS. SEE 28 COMP. GEN. 63; ID. 209; AND UNPUBLISHED DECISION OF NOVEMBER 30, 1948, B-80069.

IN THAT CONNECTION SECTION 103 OF THE LEGISLATIVE BRANCH APPROPRIATION ACT, 1958, IS AS OLLOWS:

"WHENEVER ANY OFFICE OR POSITION NOT SPECIFICALLY ESTABLISHED BY THE LEGISLATIVE PAY ACT OF 1929 IS APPROPRIATED FOR HEREIN OR WHENEVER THE RATE OF COMPENSATION OR DESIGNATION OF ANY POSITION APPROPRIATED FOR HEREIN IS DIFFERENT FROM THAT SPECIFICALLY ESTABLISHED FOR SUCH POSITION BY SUCH ACT, THE RATE OF COMPENSATION AND THE DESIGNATION OF THE POSITION, OR EITHER, APPROPRIATED FOR OR PROVIDED HEREIN, SHALL BE THE PERMANENT LAW WITH RESPECT THERETO: * * *"

UNDER THAT SECTION THERE WOULD APPEAR TO BE NO NECESSITY FOR THE CONGRESS TO HAVE SPECIFICALLY PROVIDED A SALARY RATE FOR THE POSITION OF SECOND ASSISTANT ARCHITECT IN EACH FISCAL YEAR'S APPROPRIATION SINCE THE SECTION PROVIDES THAT A RATE SO ESTABLISHED SHALL BE PERMANENT LAW. THEREFORE, THE ACTION ON THE PART OF CONGRESS IN SPECIFICALLY PROVIDING THE SALARY RATE FOR SUCH POSITION IN EACH ANNUAL APPROPRIATION IS AN INDICATION AT LEAST OF AN INTENT THAT ANY CHANGE IN SUCH SALARY RATE SHOULD BE EFFECTED ONLY BY AN EXPRESS PROVISION IN SUCH ANNUAL APPROPRIATION ACT OR BY A SPECIFIC PROVISION IN SOME OTHER LAW.

HENCE, IN VIEW OF THE SERIOUS DOUBT CONCERNING THE PROPRIETY OF APPROVING A SALARY INCREASE PROVIDED UNDER THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958 IN THE CASE OF THE SECOND ASSISTANT ARCHITECT OF THE CAPITOL, WE WOULD NOT BE WARRANTED IN RENDERING A FAVORABLE DECISION IN HIS CASE. IT IS THE INTENT OF THE CONGRESS THAT THE SALARY OF SECOND ASSISTANT ARCHITECT OF THE CAPITOL BE INCREASED IN ACCORDANCE WITH THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1958 OR THAT HE OTHERWISE BE GRANTED A SALARY INCREASE, THE OPPORTUNITY TO CLARIFY SUCH INTENT IS AVAILABLE IN THE CONSIDERATION OF THE 1959 APPROPRIATION ACT FOR THE LEGISLATIVE BRANCH, WHICH IS PENDING BEFORE THE CONGRESS AT THE PRESENT TIME.