B-26241, JANUARY 30, 1943, 22 COMP. GEN. 718

B-26241, JANUARY 30, 1943, 22 COMP. GEN. 718

COMPENSATION - WITHIN-GRADE PROMOTIONS - EMPLOYEES ENGAGED ON COOPERATIVE PROJECTS SINCE IT NOW APPEARS FROM ADDITIONAL FACTS PRESENTED THAT THE APPOINTMENT, FIXING OF SALARIES IN ACCORDANCE WITH THE CLASSIFICATION ACT SUPERVISION OF WORK, ETC., OF GEOLOGICAL SURVEY EMPLOYEES ENGAGED ON STATE -FEDERAL COOPERATIVE PROJECTS ARE CONTROLLED BY THE FEDERAL GOVERNMENT RATHER THAN BY THE STATES, IT IS CONCLUDED THAT THE EMPLOYEES OCCUPY PERMANENT FEDERAL POSITIONS WITHIN THE PURVIEW OF THE CLASSIFICATION ACT, AND THAT, BY REASON OF SUCH STATUS, THEY ARE ENTITLED TO THE WITHIN-GRADE SALARY ADVANCEMENTS AUTHORIZED BY THE ACT OF AUGUST 1, 1941, EFFECTIVE FROM AND AFTER OCTOBER 1, 1941, WHICH SALARY ADVANCEMENTS ARE TO BE PAID FROM FEDERAL FUNDS FOR ANY PART OF THE SALARY NOT COVERED BY STATE PAYMENTS. 21 COMP. GEN. 1145, MODIFIED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, JANUARY 30, 1943:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 29, 1942, AS FOLLOWS:

THE QUESTION IN THE LETTER OF MAY 22, ANSWERED BY YOUR LETTER OF JUNE 30 (B-26241), RELATED TO THE PROCEDURE TO BE FOLLOWED IN EFFECTING PAYMENT TO GEOLOGICAL SURVEY EMPLOYEES FOR INCREASES IN COMPENSATION UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1941 ( PUBLIC LAW 200, 77TH CONGRESS).

THE FACTS PRESENTED TO THE GENERAL ACCOUNTING OFFICE IN THAT LETTER EVIDENTLY WERE NOT STATED WITH SUFFICIENT COMPLETENESS OR CLARITY TO DEMONSTRATE THE PERMANENT STATUS OF THE EMPLOYEES INVOLVED, HENCE IT WAS HELD THAT THERE WOULD BE NO AUTHORITY TO PAY FROM FEDERAL FUNDS THE INCREASES IN COMPENSATION COVERING THE PERIOD DURING WHICH THE SALARIES OF THE EMPLOYEES WERE PAID ON STATE PAYROLLS AT THEIR EARLIER RATES OF COMPENSATION. IT IS REQUESTED, THEREFORE, THAT THE MATTER BE REVIEWED IN THE LIGHT OF THE FOLLOWING ADDITIONAL INFORMATION.

THE EMPLOYEES OF THE DEPARTMENT WHO ARE ASSIGNED TO THE COOPERATIVE WORK OF THE GEOLOGICAL SURVEY ARE APPOINTED BY THE SECRETARY OF THE INTERIOR AFTER CERTIFICATION BY THE CIVIL SERVICE COMMISSION, AND ARE SUBJECT TO ALL THE LAWS, RULES, AND REGULATIONS OF THE CLASSIFICATION ACT OF 1923 AS AMENDED. THEY REMAIN DEPARTMENT OF THE INTERIOR EMPLOYEES WHILE ON STATE PAYROLLS. THE WORDING OF THE COOPERATIVE AGREEMENTS RESERVES TO STATES NO SUPERVISORY CONTROL OVER THESE EMPLOYEES IN PERSON OR OVER THEIR OFFICIAL DUTIES, THEIR SALARY RATES, THEIR PER DIEM ALLOWANCES, THEIR HOURS OF WORK, OR ANY OTHER DETAILS; BUT ON THE CONTRARY PROVIDES THAT THE FIELD AND OFFICE WORK PERTAINING TO THE COOPERATIVE INVESTIGATIONS SHALL BE UNDER THE DIRECTION OF AN AUTHORIZED REPRESENTATIVE OF THE GEOLOGICAL SURVEY, WHO SHALL SUPERVISE THE WORK AND CERTIFY TO THE EXPENDITURE OF FUNDS CONTRIBUTED BY BOTH PARTIES. THAT PART OF THE AGREEMENT WHICH PROVIDES THAT ,EXPENSES OF THE WORK MAY BE PAID BY EITHER PARTY IN CONFORMITY WITH THE LAWS AND REGULATIONS RESPECTIVELY GOVERNING EACH PARTY" RELATES ONLY TO THE MANNER OF EXPENDING FUNDS.

IN UTILIZING THE FUNDS MADE AVAILABLE BY THE STATES, THE GEOLOGICAL SURVEY OCCASIONALLY ENCOUNTERS A STATE LAW THAT PREVENTS THE STATE FROM REIMBURSING THE FEDERAL GOVERNMENT FOR SALARIES OF FEDERAL EMPLOYEES, BUT PERMITS THE STATE TO CARRY FEDERAL EMPLOYEES ON THE STATE PAYROLL. OCCASIONALLY OTHER FISCAL CIRCUMSTANCES MAKE IT NECESSARY OR DESIRABLE TO CARRY FEDERAL EMPLOYEES ON THE PAYROLL OF THE COOPERATING AGENCY, AS WAS DONE IN THE CASE OF THE FEDERAL EMPLOYEES HEREIN INVOLVED, BUT WHENEVER THIS IS DONE THE STATES EXERCISE NO CONTROL OVER THE FEDERAL EMPLOYEES, WHO REMAIN COMPLETELY UNDER THE CONTROL AND DIRECTION OF THE DEPARTMENT OF THE INTERIOR. PAYMENT IN SUCH CASES IS MADE FROM STATE FUNDS FOR FISCAL REASONS ONLY (WITH NO RIGHTS INURING TO THE STATES EXCEPT AS TO SHARING OF THE RESULTS OF THE PROJECT); THE INDIVIDUALS DO NOT LOSE THEIR STATUS AS PERMANENT FEDERAL EMPLOYEES; AND WHEN SO PAID THEY ARE REQUIRED TO DEPOSIT TO THE CREDIT OF THE UNITED STATES CIVIL SERVICE RETIREMENT AND DISABILITY FUND FIVE PERCENT OF THE AMOUNT PAID AS SALARY BY THE STATES (SEE LETTER OF THE COMPTROLLER GENERAL TO THE SECRETARY OF THE INTERIOR DATED OCTOBER 28, 1926, A-11196). IT APPEARS THEREFORE THAT THE EMPLOYEES OCCUPY PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THE ACT OF AUGUST 1, 1941, SUPRA, AND ARE ENTITLED TO RECEIVE THE WITHIN-GRADE SALARY ADVANCEMENTS AUTHORIZED BY SAID ACT, AND TO BE PAID FROM FEDERAL FUNDS FOR ANY PART OF THE SALARY NOT COVERED BY STATE PAYMENTS.

THE DECISION OF JUNE 30, 1942, B-26241, 21 COMP. GEN. 1145, OF WHICH RECONSIDERATION IS REQUESTED ON THE BASIS OF ADDITIONAL FACTS SUBMITTED, HELD (QUOTING FROM THE SYLLABUS):

GEOLOGICAL SURVEY EMPLOYEES WHO ARE ENGAGED ON PROJECTS PURSUANT TO COOPERATIVE AGREEMENTS WITH STATES AND MUNICIPALITIES, THE EFFECT OF WHICH AGREEMENTS IS TO RESERVE TO THE STATE OR MUNICIPALITY SUPERVISORY CONTROL AS TO THE FIXING OF SALARIES, ARE NOT "OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES" FIXED BY THE CLASSIFICATION ACT WITHIN THE MEANING OF THE WITHIN-GRADE SALARY ADVANCEMENT STATUTE OF AUGUST 1, 1941, SO AS TO ENTITLE THEM AS A MATTER OF RIGHT TO WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE STATUTE.

THERE IS FOR NOTING THAT THE RULE THUS STATED WAS CONDITIONED UPON THE FACTS THERE UNDERSTOOD AS EVIDENCED FROM THE FOLLOWING STATEMENT APPEARING IN THE BODY OF THE DECISION:

IF, AS STATED IN YOUR LETTER, THE COOPERATIVE AGREEMENTS PURSUANT TO WHICH THE INVOLVED EMPLOYEES ARE EMPLOYED AND PAID, PROVIDE "THAT EXPENSES OF THE WORK MAY BE PAID BY EITHER PARTY IN CONFORMITY WITH THE LAWS AND REGULATIONS RESPECTIVELY GOVERNING EACH PARTY" (QUOTING FROM YOUR LETTER), THERE HAS BEEN RESERVED TO THE STATE BY SUCH AGREEMENTS SUPERVISORY CONTROL--- AT LEAST, AS TO THE FIXING OF SALARIES. IT WOULD APPEAR, THEREFORE, THAT THE PROVISIONS OF THE CLASSIFICATION ACT, AS AMENDED, REASONABLY CANNOT BE APPLIED TO THE INVOLVED COOPERATIVE EMPLOYEES AND, ACCORDINGLY, THEY MAY NOT BE REGARDED AS "OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT" (QUOTING FROM SEC. 7 OF THE CLASSIFICATION ACT, AS AMENDED BY SEC. 2 OF THE ACT OF AUGUST 1, 1941, 55 STAT. 613) AND, BY VIRTUE OF THEIR STATUS, THEY ARE NOT ENTITLED TO WITHIN-GRADE SALARY ADVANCEMENTS AS A MATTER OF RIGHT UNDER THAT STATUTE. COMPARE THE PROVISIONS OF SECTION 4 OF THE ACT OF NOVEMBER 26, 1940, 54 STAT. 1214, 1215.

YOUR LETTER, SUPRA, INDICATES THAT THIS OFFICE MISUNDERSTOOD THE PURPOSE AND INTENT OF THE TERMS OF THE REFERRED-TO COOPERATIVE AGREEMENTS WHEN THE DECISION OF JUNE 30, 1942, WAS RENDERED. IN VIEW OF THE SPECIFIC STATEMENTS CONTAINED IN THE THIRD PARAGRAPH OF YOUR LETTER CLARIFYING THE STATUS OF THE INVOLVED EMPLOYEES, AND IN LINE WITH THE RULES STATED IN PRIOR DECISIONS OF THIS OFFICE RESPECTING EMPLOYEES HAVING SUCH STATUS, IT IS CONCLUDED THAT THE INVOLVED COOPERATIVE EMPLOYEES OCCUPY PERMANENT FEDERAL POSITIONS UNDER THE SUPERVISION AND CONTROL OF THE GEOLOGICAL SURVEY WITHIN THE PURVIEW OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, AS AMENDED, AND THAT, BY REASON OF SUCH STATUS, THEY ARE ENTITLED TO THE WITHIN-GRADE SALARY ADVANCEMENTS AUTHORIZED AND REQUIRED BY THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, 55 STAT. 613, AMENDING THE CLASSIFICATION ACT, EFFECTIVE ON AND AFTER OCTOBER 1, 1941, WHICH SALARY ADVANCEMENTS ARE TO BE PAID FROM FEDERAL FUNDS FOR ANY PART OF THE SALARY NOT COVERED BY STATE PAYMENTS. SEE 11 COMP. GEN. 187; 12 ID. 248; 15 ID. 852; 17 ID. 362; AND DECISION OF JANUARY 25, 1943, B-31805, 22 COMP. GEN. 702. COMPARE 12 COMP. GEN. 651; 16 ID. 49.