B-155863, JAN. 13, 1965

B-155863, JAN. 13, 1965

TO MR. N. O. WOOD, JR. DIRECTOR OF MANAGEMENT OPERATIONS, CERTIFYING OFFICER, UNITED STATES DEPARTMENT OF THE INTERIOR:

YOUR LETTER OF DECEMBER 29, 1964, ENCLOSING A PAY ADJUSTMENT VOUCHER FOR $4,252.57 IN FAVOR OF THE HONORABLE D. OTIS BEASLEY, ASSISTANT SECRETARY OF THE INTERIOR FOR ADMINISTRATION, REQUESTS OUR DECISION WHETHER THE VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT. THE VOUCHERED AMOUNT REPRESENTS THE DIFFERENCE BETWEEN THE SALARY RATES OF $19,000 AND $20,000 PER ANNUM FOR THE PERIOD JULY 10, 1960 THROUGH JULY 4, 1964.

YOUR LETTER DISCLOSES THAT BY SECTION 205 OF THE PUBLIC WORKS APPROPRIATION ACT, 1958, APPROVED AUGUST 26, 1957, PUB.L. 85-167, 71 STAT. 423, MR. BEASLEY'S SALARY AS ADMINISTRATIVE ASSISTANT SECRETARY WAS ASSIMILATED TO THAT OF THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR WHICH, AT THE TIME, WAS $19,000.

BY SECTION 3/B) OF PUB.L. 86-370, APPROVED SEPTEMBER 23, 1959, 73 STAT. 651, MR. BEASLEY'S OFFICE WAS PLACED UNDER SECTION 106/B)OF THE FEDERAL EXECUTIVE PAY ACT OF 1956, AS AMENDED, 5 U.S.C. 2205/B), ALONG WITH THOSE OF OTHER ADMINISTRATIVE ASSISTANT SECRETARIES AT AN ANNUAL RATE OF BASIC COMPENSATION OF $19,000 WHICH RATES HE ALREADY WAS RECEIVING. NO LANGUAGE IN PUB.L. 86-370, EXPRESSLY REPEALED THAT PART OF SECTION 205 OF PUB.L. 85 -167, WHICH ASSIMILATED MR. BEASLEY'S SALARY RATE TO THAT OF THE SOLICITOR. AT THAT TIME, HOWEVER, THE SOLICITOR'S SALARY WAS SET AT $19,000 BY THE SAME SECTION (106/B) ( OF THE FEDERAL EXECUTIVE PAY ACT OF 1956.

THE SOLICITOR'S SALARY WAS INCREASED TO $20,000 PER ANNUM BY SECTION 201 OF PUB.L. 86-568, 71 STAT. 305, EFFECTIVE JULY 10, 1960, WHICH ACT AMENDED THE FEDERAL EXECUTIVE PAY ACT OF 1956 TO PLACE THE SOLICITOR AND THE LEGAL ADVISER OR GENERAL COUNSEL OF AN EXECUTIVE DEPARTMENT (EXCLUDING THE DEPARTMENT OF JUSTICE) UNDER SECTION 106/A) OF THAT ACT. HOWEVER, ACCORDING TO YOUR LETTER, MR. BEASLEY'S SALARY WAS NOT INCREASED AT THAT TIME BECAUSE IT WAS THEN ASSUMED THAT PUB.L. 86-370, PLACING THE OFFICE OF THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR UNDER SECTION 106 (B) OF THE FEDERAL EXECUTIVE PAY ACT OF 1956, AS AMENDED, WAS CONTROLLING.

YOU NOW EXPRESS THE VIEW THAT SECTION 205 OF PUB.L. 85-167, SO FAR AS IT APPLIED TO MR. BEASLEY'S OFFICE, CONTINUED AS EFFECTIVE LAW UNTIL JULY 5, 1964, WHEN IT EXPRESSLY WAS REPEALED BY SECTION 305/37) OF PUB.L. 88-426, APPROVED AUGUST 14, 1964. ON THE BASIS OF THAT CONCLUSION THE VOUCHER IS SUBMITTED FOR APPROVAL.

THE ISSUE IN THE CASE IS WHETHER THE LEGAL AUTHORITY FOR THE PAYMENT OF MR. BEASELY'S SALARY AFTER THE ENACTMENT OF PUB.L. 86-370 IN 1959, CONTINUED TO STEM FROM SECTION 205 OF THE PUBLIC WORKS APPROPRIATION ACT, 1958, PUB.L. 85-167, OR THEREAFTER, WAS TO BE FOUND IN THE FEDERAL EXECUTIVE PAY ACT, AS AMENDED BY PUB.L. 86-370.

IN HOUSE REPORT NO. 1138, 86TH CONGRESS, TO ACCOMPANY S. 1845, THE BILL WHICH BECAME PUB.L. 86-370, THE COMMENT OF THE UNITED STATES CIVIL SERVICE COMMISSION AS FOLLOWS WAS INCORPORATED IN THE REPORT:

"SUBSECTION (A) OF SECTION 4 FIXES AT $19,000 PER ANNUM THE SALARY OF THE ADMINISTRATIVE ASSISTANT SECRETARY IN THE DEPARTMENT OF THE INTERIOR, DEPARTMENT OF AGRICULTURE, DEPARTMENT OF LABOR, AND DEPARTMENT OF THE TREASURY, RESPECTIVELY, AND THE ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF JUSTICE.

"THE COMMISSION REGARDS THIS AS A SOUND PROPOSAL. THE COMMISSION FURTHER CONSIDERS AS VERY DESIRABLE THE INCLUSION OF SUCH PROVISIONS IN THE ONE BASIS STATUTE WHICH COVERS GENERALLY THE COMPENSATION OF TOP LEVEL POSITIONS IN THE FEDERAL SERVICE. THEREFORE, THE COMMITTEE MAY WISH TO CONSIDER THE INCLUSION OF THESE POSITIONS UNDER SUBSECTION (B) OF SECTION 106 OF THE FEDERAL EXECUTIVE PAY ACT OF 1956, AS AMENDED (5 U.S.C. 2205/B) ). THE FOLLOWING DRAFT OF LANGUAGE WOULD ACCOMPLISH THIS OBJECTIVE:

"SEC. 4. (A) SECTION 106/B) OF THE FEDERAL EXECUTIVE PAY ACT OF 1956, AS AMENDED (5 U.S.C. 2205/B) (, IS FURTHER AMENDED BY ADDING THE FOLLOWING NEW PARAGRAPHS:

"/10) ADMINISTRATIVE ASSISTANT ATTORNEY GENERAL.

"/11) ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR.

"/12) ADMINISTRATIVE ASSISTANT SECRETARY OF AGRICULTURE.

"/13) ADMINISTRATIVE ASSISTANT SECRETARY OF LABOR.

"/14) ADMINISTRATIVE ASSISTANT SECRETARY OF THE TREASURY.'"

THESE RECOMMENDATIONS WERE INCLUDED IN SECTION 3 OF THE ACT.

IN SENATE REPORT NO. 1590, 86TH CONGRESS, TO ACCOMPANY S. 3672, THE BILL WHICH BECAME PUB.L. 86-568, APPROVED JULY 1, 1960, THE CHANGE OF STATUS AND SALARIES OF THE CHIEF LEGAL OFFICERS OF THE EXECUTIVE DEPARTMENTS IS THE SUBJECT OF COMMENTS ON PAGES 2 AND 11. ON PAGE 2 OF THE REPORT THE FOLLOWING COMMENT APPEARS:

"1. THE CHIEF LEGAL OFFICERS OF THE EXECUTIVE DEPARTMENTS ARE GIVEN THE SAME STANDING AS ASSISTANT SECRETARIES. AS A RESULT OF THIS CHANGE, THE SALARY OF THESE OFFICERS WOULD BE INCREASED FROM $19,000 TO $20,000 A YEAR.

"2. THE POSITION OF ADMINISTRATIVE ASSISTANT SECRETARY IS ESTABLISHED IN THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE ON THE SAME BASIS AS IT EXISTS IN THE OTHER DEPARTMENTS.'

ON PAGE 11 A FURTHER DISTINCTION BETWEEN LEGAL OFFICERS, INCLUDING THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR, AND ADMINISTRATIVE ASSISTANT SECRETARIES IS DRAWN IN THE FOLLOWING LANGUAGE:

"SECTION 201 AMENDS THE FEDERAL EXECUTIVE PAY ACT OF 1956 SO AS TO GIVE THE LEGAL ADVISER, SOLICITOR, OR GENERAL COUNSEL OF AN EXECUTIVE DEPARTMENT (EXCLUDING THE DEPARTMENT OF JUSTICE) THE SAME STANDING AND PAY AS AN ASSISTANT SECRETARY.

"SECTION 202 CREATES IN THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE THE POSITION OF ADMINISTRATIVE ASSISTANT SECRETARY AS NOW EXISTS IN THE OTHER EXECUTIVE DEPARTMENTS.'

MORE PERSUASIVE OF THE EFFECT OF PUB.L. 86-370 ON THE POSITION OF ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, FROM THE POINT OF VIEW OF THE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, HOUSE OF REPRESENTATIVES, THE OFFICE OF THE LEGISLATIVE COUNSEL, HOUSE OF REPRESENTATIVES, AND THE CIVIL SERVICE COMMISSION, IS THE COMMENT AND FOOTNOTE FOUND ON PAGE 84, HOUSE REPORT NO. 69, 87TH CONGRESS, 1STSESSION, WHICH READS IN PART AS FOLLOWS:

"THAT PART OF SECTION 205 OF THE PUBLIC WORKS APPROPRIATION ACT, 1958, SET FORTH ABOVE, WHICH RELATES TO THE SALARY OF THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE DEPARTMENT OF THE INTERIOR, IS NOW OBSOLETE BY REASON OF THE ENACTMENT OF THE ACT OF SEPTEMBER 23, 1959 (PUBLIC LAW 86- 370). SECTION 3/B) OF SUCH ACT (73 STAT. 651; PUBLIC LAW 86-370) ADDED THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE DEPARTMENT OF THE INTERIOR TO THE LIST OF OFFICIALS WHOSE ANNUAL RATES OF BASIC COMPENSATION ARE FIXED AT $19,000 BY SECTION 106/B) OF THE FEDERAL EXECUTIVE PAY ACT OF 1956.'

FURTHER EVIDENCE THAT MR. BEASLEY'S POSITION WAS INTENDED TO BE BROUGHT UNDER PUB.L. 86-370, MAY BE FOUND IN FOOTNOTE 44, PAGE 17 OF HOUSE REPORT NO. 1606, 87TH CONGRESS, 2D SESSION, DATED APRIL 12, 1962.

ASIDE FROM THE FACT THAT THE INCLUSION OF MR. BEASELY'S POSITION IN PUB.L. 86-370 WOULD APPEAR TO BE RENDERED PURPOSELESS IF THE LEGAL AUTHORITY FOR HIS SALARY RATE CONTINUED TO STEM FROM SECTION 205 OF PUB.L. 85-167, IT IS EVIDENT FROM THE FOREGOING THAT THE WEIGHT OF OPINION IS TO THE EFFECT THAT PUB.L. 86-370 REPEALED BY IMPLICATION THE PERTINENT PART OF SECTION 205, AND THAT AFTER SEPTEMBER 23, 1959, THE RATE OF MR. BEASELY'S SALARY WAS DETERMINED BY THE FEDERAL EXECUTIVE PAY ACT, AS AMENDED BY PUB.L. 86-370.

WE NOTE, ALSO, THAT UNDER THE CURRENT STATUTE, PUB.L. 88-426, THE SOLICITOR REMAINS ON A SALARY PARITY WITH ASSISTANT SECRETARIES (SALARY LEVEL IV) AND THAT THE ASSISTANT SECRETARIES FOR ADMINISTRATION ARE IN LEVEL V, THUS CONTINUING THE SALARY DIFFERENTIAL BETWEEN THE TWO CLASSES THAT HAD EXISTED SINCE 1960.

WHILE UNDER THE GENERAL RULES OF STATUTORY CONSTRUCTION, LATER EXPRESS REPEALS OF A PARTICULAR STATUTE (IN THIS CASE SECTION 305/37), PUB.L. 88- 426) MAY BE CONSTRUED AS SOME INDICATION THAT THE LEGISLATURE DID NOT PREVIOUSLY INTEND TO REPEAL THE STATUTE BY IMPLICATION, THIS RULE MAY BE ACCORDED NO MORE WEIGHT THAN IS CUSTOMARILY GIVEN CONTEMPORARY INTERPRETATION ORIGINATING FROM OTHER SOURCES. SEE SECTION 2015, SUTHERLAND, STATUTORY CONSTRUCTION, 3RD EDITION.

IN VIEW OF THE UNIFORM OPINION AS EXPRESSED IN PERTINENT LEGISLATIVE HISTORY MENTIONED ABOVE THAT MR. BEASELY'S POSITION FELL WITHIN THE PURVIEW OF PUB.L. 86-370, WHICH VIEW PLACES HIS POSITION IN THE SAME PAY STATUS OF THE OTHER ASSISTANT SECRETARIES FOR ADMINISTRATION (FORMERLY ADMINISTRATIVE ASSISTANT SECRETARIES) WE MUST CONCLUDE THAT SECTION 205 OF PUB.L. 85-167 WAS REPEALED IN PERTINENT PART BY IMPLICATION WITH THE ENACTMENT OF PUB.L. 86-370.

THEREFORE, THE VOUCHER TRANSMITTED WITH YOUR LETTER, WHICH IS RETURNED, PROPERLY MAY NOT BE CERTIFIED FOR PAYMENT.