B-18540, JULY 11, 1941, 21 COMP. GEN. 13

B-18540, JULY 11, 1941, 21 COMP. GEN. 13

COMPENSATION - WITHIN-GRADE PROMOTIONS - APPLICABILITY OF STATUTORY PROHIBITION THE WITHIN-GRADE PROMOTION OF THE INCUMBENT OF A POSITION PURSUANT TO A STATUTORY PROVISION FIXING THE ANNUAL SALARY OF THE POSITION AT AN INCREASE OVER THE PRIOR RATE IS A LEGISLATIVE PROMOTION AND NOT AN ADMINISTRATIVE ONE WITHIN THE PROHIBITION IN SECTION 302 OF THE ACT OF JULY 3, 1941, AGAINST ADMINISTRATIVE WITHIN-GRADE PROMOTIONS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, INTERSTATE COMMERCE COMMISSION, JULY 11, 1941:

I HAVE YOUR LETTER OF JULY 3, 1941, AS FOLLOWS:

PUBLIC LAW 28--- 77TH CONGRESS, MAKING APPROPRIATIONS FOR THE EXECUTIVE OFFICE AND SUNDRY INDEPENDENT EXECUTIVE BUREAUS, BOARDS, COMMISSIONS, AND OFFICES, FOR THE FISCAL YEAR ENDING JUNE 30, 1942, CONTAINS THE FOLLOWING PROVISION UNDER THE APPROPRIATION FOR VALUATION OF PROPERTY OF CARRIERS:

"ONE VALUATION ENGINEER AT $7,500 PER ANNUM.'

THIS PROVISION WAS INSERTED ON THE RECOMMENDATION OF THIS COMMISSION DUE TO THE FOLLOWING EXPLANATION GIVEN BY ME TO THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS OF THE HOUSE OF REPRESENTATIVES:

" MR. EASTMAN. THERE IS ANOTHER MATTER THAT I THINK WE SHOULD CALL TO YOUR ATTENTION, MR. CHAIRMAN. IN THE BUREAU OF VALUATION THEY HAVE FOUR MEN OF PRACTICALLY EQUAL RANK, THE HEAD VALUATION ENGINEER, THE HEAD VALUATION EXAMINER, THE HEAD VALUATION APPRAISER, AND THE HEAD VALUATION AUDITOR. THOSE FOUR MEN, DURING THE TIME VALUATION WAS AT ITS HEIGHT, WERE EACH GETTING $9,000 A YEAR. UNDER THE ECONOMY ACT OF 1933 THEY WERE CUT DOWN TO $7,500 AND PUT IN GRADE P-7. SO THEY WERE ALL GETTING $7,500.

"THEN ONE OF THEM DIED, OR WAS RETIRED, AND A NEW MAN WAS APPOINTED TO TAKE HIS PLACE, AND HE CAME IN AT $6,500. HE IS ANCHORED THERE UNTIL THERE ARE MORE DEATHS OR RESIGNATIONS, BECAUSE WE CANNOT, UNDER CIVIL- SERVICE REGULATIONS, GO BEYOND THE AVERAGE OF THE GRADE, THE OTHER THREE BEING IN THE TOP GRADE. SO HE IS ANCHORED DEFINITELY AT $6,500.

"BUT HE DOES WORK WHICH IS AS IMPORTANT AS THAT OF THE REST OF THEM AND I SHOULD THINK IT RANKS AT THE TOP, HE BEING THE ENGINEER. WE WOULD LIKE TO SEE THAT CORRECTED IN THE APPROPRIATION ACT, SO HE CAN BE PAID WHAT THESE OTHER MEN ARE BEING PAID AND RESTORE THAT PARITY WHICH HAS ALWAYS EXISTED IN THE CASE OF THOSE FOUR POSITIONS.

" MR. FITZPATRICK. WHEN HE WAS APPOINTED, COULD YOU NOT HAVE PLACED HIM AT $7,500?

" MR. EASTMAN. NO; HE WOULD START AT THE INITIAL SALARY OF THE GRADE, WHICH IS $6,500.

" MR. HOUSTON. HE IS ANCHORED AT $6,500?

" MR. EASTMAN. YES.'

H.R. 5166--- 77TH CONGRESS, MAKING APPROPRIATIONS TO SUPPLY DEFICIENCIES IN CERTAIN APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1941, AND FOR PRIOR FISCAL YEARS, TO PROVIDE SUPPLEMENTAL APPROPRIATIONS FOR THE FISCAL YEAR ENDING JUNE 30, 1942, PROVIDES:

"NO APPROPRIATION OR PART OF ANY APPROPRIATION AVAILABLE FOR OBLIGATION DURING THE FISCAL YEAR 1942, INCLUDING FUNDS OF GOVERNMENT OWNED OR CONTROLLED CORPORATIONS, SHALL BE USED FOR GRANTING WITHIN GRADE SALARY ADVANCEMENTS TO ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES, ETC.; PROVIDED, THAT THIS SECTION SHALL CEASE TO BE OPERATIVE WHENEVER A UNIFORM, WITHIN-GRADE, SALARY-ADVANCEMENT PLAN FOR POSITIONS COMPENSATED ACCORDING TO SUCH CLASSIFICATION ACT, AS AMENDED, SHALL TAKE EFFECT, PURSUANT TO LAW.'

THE APPROPRIATION ACT APPEARS TO MAKE THE SALARY FOR THE VALUATION ENGINEER STATUTORY, BUT IN VIEW OF THE FACT THAT THIS ENGINEER IS IN GRADE P-7 AT $6,500 AND THAT IN CHANGING IT TO $7,500 WE ARE STILL WITHIN THE SALARY RANGE OF P-7, IT IS BELIEVED BEST TO REQUEST A DECISION AS TO WHETHER THE COMMISSION MAY PAY A SALARY OF $7,500 A YEAR TO THE VALUATION ENGINEER AS OF JULY 1, 1941.

SECTION 302 OF THE ACT OF JULY 3, 1941, PUBLIC LAW 150, 55 STAT. 575, PROVIDES AS FOLLOWS:

NO APPROPRIATION OR PART OF ANY APPROPRIATION AVAILABLE FOR OBLIGATION DURING THE FISCAL YEAR 1942, INCLUDING FUNDS OF GOVERNMENT OWNED OR CONTROLLED CORPORATIONS, SHALL BE USED FOR GRANTING WITHIN GRADE SALARY ADVANCEMENTS TO ANY OFFICER OR EMPLOYEE OF THE GOVERNMENT OF THE UNITED STATES, THE DISTRICT OF COLUMBIA, OR OF ANY SUCH CORPORATION, WHO IS COMPENSATED ON A PER ANNUM BASIS AND WHO OCCUPIES A POSITION THE COMPENSATION OF WHICH IS FIXED (1) ACCORDING TO THE SCHEDULES PRESCRIBED BY THE CLASSIFICATION ACT OF 1923, AS AMENDED, OR (2) BY EXECUTIVE ORDER NUMBERED 6746, OR (3) ADMINISTRATIVELY ACCORDING TO SCHEDULES PATTERNED AFTER SUCH CLASSIFICATION ACT: PROVIDED, THAT THIS SECTION SHALL CEASE TO BE OPERATIVE WHENEVER A UNIFORM, WITHIN-GRADE, SALARY-ADVANCEMENT PLAN FOR POSITIONS COMPENSATED ACCORDING TO SUCH CLASSIFICATION ACT, AS AMENDED, SHALL TAKE EFFECT, PURSUANT TO LAW.

THE ABOVE-QUOTED PROVISION OF LAW RELATES TO ADMINISTRATIVE WITHIN GRADE PROMOTIONS. THE SALARY RATE OF $7,500 PER ANNUM NOW HAS BEEN FIXED BY STATUTE FOR ONE VALUATION ENGINEER UNDER THE APPROPRIATION FOR THE INTERSTATE COMMERCE COMMISSION, SUBHEADING," VALUATION OF PROPERTY OF CARRIERS," INDEPENDENT OFFICES APPROPRIATION ACT, 1942, APPROVED APRIL 5, 1941, PUBLIC LAW 28, 55 STAT. 113, AND THAT RATE IS THE ONLY ONE LEGALLY PAYABLE FOR THAT POSITION FOR THE FISCAL YEAR 1942. AS THE PROMOTION OF THE INCUMBENT OF THE POSITION FROM $6,500 TO $7,500 PER ANNUM IS REQUIRED BY LAW, IT IS PROPERLY CLASSED AS A LEGISLATIVE OR STATUTORY PROMOTION RATHER THAN AN ADMINISTRATIVE ONE AND, AS SUCH, IS NOT WITHIN THE PROHIBITION CONTAINED IN SECTION 302 OF THE ACT OF JULY 3, 1941, SUPRA.

ACCORDINGLY, THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE.