B-3597, MAY 20, 1939, 18 COMP. GEN. 875

B-3597, MAY 20, 1939, 18 COMP. GEN. 875

COMPENSATION - PROMOTIONS' LIMITATIONS - UNITED STATES HOUSING AUTHORITY APPROPRIATION THE PROVISO IN THE APPROPRIATION FOR THE UNITED STATES HOUSING AUTHORITY INCLUDED IN THE DEPARTMENT OF THE INTERIOR APPROPRIATION ACT FOR THE FISCAL YEAR 1940, 53 STAT. 690,"THAT NO PART OF THE FUNDS MADE AVAILABLE * * * FOR ADMINISTRATIVE EXPENSES * * * SHALL BE USED TO INCREASE THE SALARY OF ANY POSITION WHICH ON THE DATE OF THE APPROVAL OF THIS ACT IS PROVIDED FOR AT THE RATE OF $4,000 OR MORE PER ANNUM, EXCEPT IN CONSEQUENCE OF A REALLOCATION OF POSITION UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED," BECOMES EFFECTIVE JULY 1, 1939, BUT IS FOR EXECUTING UPON THE STATUS OF THE SALARY OF THE POSITION AS OF MAY 10, 1939, THE DATE OF THE APPROVAL OF THE ACT, AND THE WORDS "SALARY OF ANY POSITION," USED THEREIN, MEAN ANY SALARY PAID AN EMPLOYEE WITHIN THE SALARY RANGE OF THE CLASSIFICATION ACT GRADE IN WHICH THE POSITION OF THE EMPLOYEE HAS BEEN ALLOCATED. THE PROVISO IN THE APPROPRIATION FOR THE UNITED STATES HOUSING AUTHORITY INCLUDED IN THE DEPARTMENT OF THE INTERIOR APPROPRIATION ACT FOR THE FISCAL YEAR 1940, 53 STAT. 690,"THAT NO PART OF THE FUNDS MADE AVAILABLE * * * FOR ADMINISTRATIVE EXPENSES * * * SHALL BE USED TO INCREASE THE SALARY OF ANY POSITION WHICH ON THE DATE OF THE APPROVAL OF THIS ACT IS PROVIDED FOR AT THE RATE OF $4,000 OR MORE PER ANNUM, EXCEPT IN CONSEQUENCE OF A REALLOCATION OF POSITION UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED," DOES NOT PROHIBIT AN INCREASE IN SALARY TO OR ABOVE $4,000 PER ANNUM AT ANY TIME DURING OR BEFORE THE FISCAL YEAR 1940, IN THE CASE OF AN EMPLOYEE RECEIVING LESS THAN $4,000 ON DATE OF APPROVAL OF THE ACT, PROVIDED THE APPLICABLE AVERAGE OF THE GRADE SALARY PROVISION IS NOT VIOLATED, NOR DOES IT PROHIBIT AN INCREASE IN COMPENSATION, DURING THE FISCAL YEAR 1939, TO AN EMPLOYEE WHO ON MAY 10, 1939--- THE DATE OF APPROVAL OF THE ACT--- WAS RECEIVING $4,000 OR MORE PER ANNUM, BUT IN THE LATTER CASE THE PROVISO, EFFECTIVE JULY 1, 1939, WOULD REQUIRE A REDUCTION IN THE INCREASED SALARY RATE ON THAT DATE TO THE RATE RECEIVED BY THE EMPLOYEE ON MAY 10, 1939, IF OCCUPYING THE SAME POSITION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, UNITED STATES HOUSING AUTHORITY, MAY 20, 1939:

I HAVE YOUR LETTER OF MAY 6, 1939, AS FOLLOWS:

YOUR OPINION IS REQUESTED WITH RESPECT TO THE PROPER CONSTRUCTION OF CERTAIN AMBIGUOUS LANGUAGE CONTAINED IN H.R. 4853 (4852), MAKING APPROPRIATIONS FOR THE DEPARTMENT OF THE INTERIOR FOR THE FISCAL YEAR ENDING JUNE 30, 1940.

THE LANGUAGE IN QUESTION IS ITALICIZED BELOW:

"* * * UNITED STATES HOUSING AUTHORITY SALARIES AND EXPENSES: NOT TO EXCEED $4,500,000 OF THE FUNDS OF THE UNITED STATES HOUSING AUTHORITY, ESTABLISHED BY THE UNITED STATES HOUSING ACT OF 1937 (50 STAT. 888), AS AMENDED BY THE UNITED STATES HOUSING ACT AMENDMENTS OF 1938 (52 STAT. 820), SHALL BE AVAILABLE DURING THE FISCAL YEAR 1940 FOR ADMINISTRATIVE EXPENSES OF THE AUTHORITY IN CARRYING OUT THE PROVISIONS OF SAID ACTS * * * PROVIDED FURTHER, THAT NO PART OF THE FUNDS MADE AVAILABLE IN THIS PARAGRAPH FOR ADMINISTRATIVE EXPENSES OF THE AUTHORITY SHALL BE USED TO INCREASE THE SALARY OF ANY POSITION WHICH ON THE DATE OF THE APPROVAL OF THIS ACT IS PROVIDED FOR AT THE RATE OF $4,000 OR MORE PER ANNUM, EXCEPT IN CONSEQUENCE OF A REALLOCATION OF POSITION UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED.'

THE BUDGET, AS SUBMITTED BY THE PRESIDENT, DID NOT PROVIDE FOR THE ABOVE LIMITATION. THE LANGUAGE WAS INSERTED BY THE HOUSE UNDER THE IMPRESSION THAT THE SALARIES OF TOP-RANKING OFFICIALS OF THE UNITED STATES HOUSING AUTHORITY WERE HIGHER THAN THOSE OF OTHER AGENCIES. IN A LETTER TO SENATOR HAYDEN, CHAIRMAN OF THE SENATE SUBCOMMITTEE ON APPROPRIATIONS, DATED MARCH 21, 1939 (P. 374, PRINTED SENATE HEARINGS ON H.R. 4853 (4852); I ENDEAVORED TO SHOW THAT THIS IMPRESSION WAS ERRONEOUS, SETTING FORTH TABLES EVIDENCING THE FACT THAT THE SALARIES PAID TOP-RANKING OFFICIALS OF THE UNITED STATES HOUSING AUTHORITY (BASED ON 1939 FIGURES) ARE LOWER THAN THOSE PAID BY OTHER AGENCIES, AND ARE BELOW THE AVERAGE OF THE GRADE ALTHOUGH THE UNITED STATES HOUSING AUTHORITY HAD NOT BEEN SUBJECT TO AN AVERAGE OF THE GRADE LIMITATION.

THE SENATE SUBCOMMITTEE DETERMINED TO RETAIN THE PROVISION AS AN EXPERIMENT. IN THE WORDS OF THE CHAIRMAN: "OUR COMMITTEE FELT THAT WE WOULD NOT BE JUSTIFIED IN OVERRIDING THE JUDGMENT OF THE HOUSE IN THIS MATTER; AND THAT WE COULD THROW IT OUT AFTER HAVING TRIED IT FOR A YEAR, IF WE FOUND THAT IT DID NOT WORK" (76 CONG.REC., APRIL 17, 1939, AT 6041). PARENTHETICALLY, THE HOUSE HAD BEEN WITHOUT BENEFIT OF THE ADDITIONAL DATA SUBMITTED IN THE AFORESAID LETTER TO SENATOR HAYDEN.

TWO QUESTIONS ARE PRESENTED TO YOU WITH RESPECT TO THE ABOVE PROVISO:

FIRST: DOES A POSITION FALL WITHIN THE RESTRICTION OF THE PROVISO WHEN THAT POSITION WAS PROVIDED FOR AT THE RATE OF LESS THAN $4,000 PER ANNUM ON THE DATE OF THE APPROVAL OF THE ACT, BUT ON JULY 1, 1940, IS PROVIDED FOR AT THE RATE OF $4,000 OR MORE PER ANNUM? IN OTHER WORDS, IF AN EMPLOYEE WERE RECEIVING A SALARY OF $3,800 ON THE DATE OF THE APPROVAL OF THE ACT, WOULD THE ABOVE PROVISO PROHIBIT AN INCREASE IN HIS SALARY TO OR ABOVE $4,000 AT ANY TIME DURING OR BEFORE THE FISCAL YEAR 1940?

SECOND: UNDER THE WORDING OF THE PROVISO IS AN ADMINISTRATIVE INCREASE WITHIN A GRADE PERMISSIBLE IN THE CASE OF AN EMPLOYEE WHO RECEIVES $4,000 OR MORE PER ANNUM ON THE DATE OF THE APPROVAL OF THE ACT, IF SUCH INCREASE IS MADE PRIOR TO THE BEGINNING OF THE FISCAL YEAR 1940? IN OTHER WORDS, IF AN EMPLOYEE IS RECEIVING $4,000 ON THE DATE OF THE APPROVAL OF THE ACT, DOES THE PROVISO PROHIBIT AN INCREASE IN HIS SALARY ABOVE $4,000 BETWEEN THE DATE OF THE APPROVAL OF THE ACT AND JULY 1, 1940?

FIRST QUESTION

THE PROVISO FIXES THE DATE OF DETERMINATION OF THE SALARY OF A POSITION, FOR PURPOSES OF INCLUSION OR NONINCLUSION WITHIN THE RESTRICTION ON INTRAGRADE INCREASES, AS THE DATE OF APPROVAL OF THE ACT. THIS BEING SO,IF THE SALARY PROVIDED FOR THE POSITION ON SUCH DATE IS LESS THAN THE $4,000 FIGURE ON WHICH THE RESTRICTION IS IMPOSED, IT IS IMMATERIAL THAT ANY TIME DURING OR BEFORE THE FISCAL YEAR 1940 THE SALARY IS INCREASED TO $4,000 OR MORE, AND THE FUNDS MADE AVAILABLE BY THE ACT MAY BE USED TO INCREASE THE SALARY OF THE POSITION DURING THE 1940 FISCAL YEAR.

SECOND QUESTION

THE PURPOSE OF CONGRESS WAS TO PLACE RESTRICTIONS ON SALARY INCREASES ONLY DURING THE FISCAL YEAR 1940, AND THE ABOVE PROVISO THEREFORE HAS NO APPLICATION TO INCREASES MADE BEFORE JULY 1, 1939, AND TO BE PAID FROM FUNDS AUTHORIZED FOR THE FISCAL YEAR 1939. THIS IS TRUE BECAUSE OF THE FOLLOWING REASONS:

1. THE LEGISLATIVE HISTORY DEMONSTRATES AN INTENTION TO LIMIT THE OPERATION OF THIS PROVISO TO THE PROHIBITION OF INCREASES DURING THE FISCAL YEAR 1940.

THE REASON FOR INSERTING THE PROVISO IS CLEARLY STATED IN REPORT NO. 161 OF THE HOUSE OF REPRESENTATIVES COMMITTEE ON APPROPRIATIONS:

"IN STUDYING THE BREAK-DOWN OF PERSONNEL AS SUBMITTED IN THE BUDGET, THE COMMITTEE WAS IMPRESSED BY THE FACT THAT THE RATES OF PAY FOR POSITIONS WERE IN EXCESS, IN MANY INSTANCES, OF THE AMOUNT REQUIRED TO CARRY ON THIS PROGRAM IN AN EFFICIENT MANNER, AND THAT NUMEROUS PROMOTIONS WERE CONTEMPLATED IN MAY OF THE HIGHER SALARY GRADES. THE COMMITTEE IS OPPOSED TO SUCH A PROMOTION PROGRAM AND HAS INSERTED IN THE BILL A LIMITATION PROHIBITING THE USE OF FUNDS FOR PROMOTIONS WHERE A POSITION IS PROVIDED FOR AT THE RATE OF $4,000 OR MORE PER ANNUM, EXCEPT IN CASES WHERE A POSITION IS REALLOCATED UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED.'

SENATOR HAYDEN, CHAIRMAN OF THE SENATE SUBCOMMITTEE IN CHARGE OF THE INTERIOR APPROPRIATIONS BILLS, DECLARED THIS TO BE THE REASON FOR INCORPORATING THE PROVISION IN THE APPROPRIATIONS BILL AND STATED FURTHER:

"THE LIMITATION APPLIES ONLY TO THIS ONE APPROPRIATION" (76 CONG.REC., APRIL 17, 1939, AT 6041).

IN VIEW OF THE PURPOSE OF CONGRESS TO PLACE A RESTRICTION ONLY UPON SALARY INCREASES DURING THE FISCAL YEAR 1940, AS EVIDENCED BY THE QUOTATIONS ABOVE, IT IS CLEAR THAT THE PROHIBITION OF RAISES WITHIN GRADES IN THE CASE OF POSITIONS OF $4,000 OR MORE PER ANNUM SHOULD APPLY ONLY TO INCREASES EFFECTIVE ON AND AFTER JULY 1, 1939.

2. THE LANGUAGE OF THE PROVISO RELATES SPECIFICALLY TO THE USE OF PART OF THE FUNDS MADE AVAILABLE FOR ADMINISTRATIVE EXPENSES IN THE FISCAL YEAR 1940, AND THE PROVISO THEREFORE SHOULD PROPERLY BE CONSTRUED AS PROSPECTIVE IN APPLICATION FROM THE BEGINNING OF THE FISCAL YEAR 1940.

THE LANGUAGE IN PART PROVIDES "THAT NO PART OF THE FUNDS MADE AVAILABLE IN THIS PARAGRAPH FOR ADMINISTRATIVE EXPENSES OF THE AUTHORITY SHALL BE USED TO INCREASE THE SALARY OF ANY POSITION," ETC. IN THE CASE OF AN INCREASE EFFECTIVE PRIOR TO JULY 1, 1940, THE 1939APPROPRIATION WILL BE USED TO INCREASE THE SALARY OF THE POSITION, SINCE THE 1940 APPROPRIATION "MADE AVAILABLE IN THIS PARAGRAPH" WILL NOT YET BE AVAILABLE, AND THERE CAN BE NO QUESTION OF USE OF SUCH FUNDS TO INCREASE THE SALARY. IN OTHER WORDS, THE PROVISION PROHIBITS THE INCREASING OF A SALARY OUT OF 1940 FUNDS, NOT THE MAINTAINING IN STATUS QUO OF A SALARY INCREASED OUT OF 1939 FUNDS PRIOR TO AVAILABILITY OF 1940 FUNDS.

THE SIGNIFICANCE OF PROVIDING THAT THE DATE OF THE APPROVAL OF THE ACT SHOULD BE THE CUT-OFF DATE WITH RESPECT TO ADMINISTRATIVE INCREASES OF POSITIONS WITH SALARIES OF $4,000 OR MORE PER ANNUM OUT OF FUNDS PROVIDED BY THE 1940 APPROPRIATION IS BELIEVED TO BE ONE OF DRAFTSMANSHIP. ARBITRARY DETERMINATION DATE WAS DESIRED, TO AVOID ANY QUESTION AS TO WHICH DATE WOULD GOVERN SO FAR AS SALARY RATE IS CONCERNED. WHILE IT IS REGRETTABLE THAT THE DATE PROVIDED IS NOT ENTIRELY GERMANE TO THE OBJECT SOUGHT, IT IS READILY UNDERSTOOD IN THE LIGHT OF THE COMMON PRACTICE IN DRAFTING LEGISLATION TO RELATE THE EFFECTIVE DATE TO THE APPROVAL DATE. THE CUT-OFF PROVISION IS CONFINED TO THIS CONSTRUCTION OF ITS SIGNIFICANCE BY THE IMPOSSIBILITY OF OTHERWISE RECONCILING THE LIMITATION OF THE PROVISO TO THE USE OF THE FUNDS APPROPRIATED FOR THE FISCAL YEAR 1940 WITH, SO FAR AS APPLICABLE SALARY RATE IS CONCERNED, THE REFERENCE TO A DATE ANTECEDENT TO THE BEGINNING OF THE FISCAL YEAR 1940.

3. EVEN WITHOUT THE SPECIFIC LANGUAGE ("THAT NO PART OF THE FUNDS MADE AVAILABLE IN THIS PARAGRAPH FOR ADMINISTRATIVE EXPENSES OF THE AUTHORITY SHALL BE USED TO INCREASE THE SALARY * * "), THE GENERAL RULE WOULD APPLY THAT APPROPRIATIONS AND RESTRICTIONS THEREON FOR EXECUTIVE DEPARTMENTS BECOME OPERATIVE ON THE JULY 1 OF THE FISCAL YEAR TO WHICH THEY RELATE.

4. TO CONSTRUE THE PROVISION IN QUESTION AS AFFECTING SALARY INCREASES BETWEEN THE DATE OF APPROVAL OF THE INTERIOR DEPARTMENT APPROPRIATION ACT FOR THE FISCAL YEAR 1940 AND JULY 1, 1940, WOULD DISRUPT THE ORDERLY AND NORMAL PERSONNEL POLICY WHICH WAS WORKED OUT ON THE BASIS OF THE AUTHORIZATION GRANTED TO THE UNITED STATES HOUSING AUTHORITY FOR THE FISCAL YEAR 1939. PROPOSED INCREASES IN SALARIES IN THE REMAINDER OF THIS FISCAL YEAR WOULD BE RENDERED IMPOSSIBLE EVEN THOUGH THEY HAVE LONG BEEN CONTEMPLATED ON THE BASIS OF AUTHORIZATIONS GRANTED TO THE UNITED STATES HOUSING AUTHORITY FOR THIS FISCAL YEAR. IN EFFECT, IT WOULD ADVANCE THE OPERATION OF THE RESTRICTIVE PROVISIONS OF THE 1940 APPROPRIATION BY MAKING THEM APPLICABLE TO A PERIOD COVERED BY THE 1939 AUTHORIZATIONS. THERE IS EVERY COMPELLING REASON IN THIS CASE FOR FOLLOWING THE ORDINARY RULE THAT PROVISOS ARE TO BE STRICTLY CONSTRUED. THIS RULE SHOULD BE INVOKED TO PREVENT THE EXTENSION OF THE PROVISO IN QUESTION BEYOND ITS NORMAL, REASONABLE AND NECESSARY APPLICATION AS APPLYING ONLY TO THE FISCAL YEAR 1940.

YOUR EARLY OPINION ON THE MATTER WILL BE APPRECIATED IN VIEW OF THE DIRECT EFFECT THIS OPINION WILL BEAR ON NORMAL PERSONNEL RELATIONS OF THE AUTHORITY, BETWEEN NOW AND JULY 1, 1939.

THE DEPARTMENT OF THE INTERIOR APPROPRIATION ACT FOR THE FISCAL YEAR 1940, CONTAINING THE APPROPRIATION RESTRICTION QUOTED IN YOUR LETTER ON INCREASES IN THE COMPENSATION OF EMPLOYEES OF THE UNITED STATES HOUSING AUTHORITY, WAS APPROVED BY THE PRESIDENT MAY 10, 1939, PUBLIC, NO. 68. THE PROVISO IN QUESTION IS A RESTRICTION ON THE USE OF FUNDS APPROPRIATED FOR THE ADMINISTRATIVE EXPENSES OF THE UNITED STATES HOUSING AUTHORITY FOR THE FISCAL YEAR 1940 AND BECOMES EFFECTIVE JULY 1, 1939, BUT IS FOR EXECUTING UPON THE STATUS OF THE SALARY OF THE POSITION AS OF MAY 10, 1939 --- THE DATE OF THE APPROVAL OF THE ACT. IT DOES NOT CONSTITUTE A RESTRICTION ON THE USES OF APPROPRIATIONS PROVIDED FOR THE CURRENT FISCAL YEAR 1939.

THE POSITIONS UNDER THE UNITED STATES HOUSING AUTHORITY ARE SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED. SECTION 4 OF THE ACT OF SEPTEMBER 1, 1937, 50 STAT. 889. THE "SALARY OF ANY POSITION" WITHIN THE PURVIEW OF THE CLASSIFICATION ACT MEANS ANY SALARY PAID AN EMPLOYEE WITHIN THE SALARY RANGE OF THE GRADE IN WHICH THE POSITION OF THE EMPLOYEE HAS BEEN ALLOCATED. 3 COMP. GEN. 1001, 1005.

I HAVE GIVEN CAREFUL CONSIDERATION TO THE LEGAL ARGUMENTS ADVANCED RESPECTING THE PURPORT AND INTENT OF THE PROVISO IN QUESTION, BUT I AM UNABLE TO CONCUR IN THE CONCLUSION REACHED IN YOUR LETTER. THE PROVISO IS IN CLEAR TERMS. IT IS WELL SETTLED THAT IF A LAW IS PLAIN, AND WITHIN THE LEGISLATIVE POWERS, IT DECLARES ITSELF AND NOTHING IS LEFT FOR CONSTRUCTION. THUS, WHEN THE MEANING OF A STATUTE IS CLEAR, ITS CONSEQUENCES, IF EVIL, CAN ONLY BE AVOIDED BY A CHANGE OF THE LAW ITSELF, TO BE EFFECTED BY THE LEGISLATURE AND NOT BY CONSTRUCTION. THE PROVISO THUS BEING CLEAR THE LETTER THEREOF MAY NOT BE DISREGARDED UNDER THE PRETEXT OF PURSUING ITS SPIRIT.

IF ON MAY 10, 1939, THE SALARY OF ANY EMPLOYEE OF THE UNITED STATES HOUSING AUTHORITY IS $4,000 OR MORE PER ANNUM, THE APPROPRIATIONS FOR THE FISCAL YEAR 1940, EFFECTIVE JULY 1, 1939, MAY NOT BE USED TO PAY THE EMPLOYEE A HIGHER RATE WITHIN THE SALARY RANGE OF THE GRADE IN WHICH HIS POSITION HAS BEEN ALLOCATED, DURING THE FISCAL YEAR 1940. BY ITS EXPRESS TERMS THE APPROPRIATION RESTRICTION DOES NOT APPLY TO AN EMPLOYEE WHOSE SALARY RATE ON MAY 10, 1939, WAS LESS THAN $4,000 PER ANNUM. THERE IS NO REASONABLE BASIS FOR ANY OTHER CONSTRUCTION EVEN THOUGH APPLICATION OF THE PROVISO WILL PERMIT AN INCREASE IN THE COMPENSATION OF AN EMPLOYEE WHO ON MAY 10, 1939, WAS RECEIVING $3,800 PER ANNUM, THE MINIMUM RATE OF GRADES CAF-11 AND P-4, AND THE AVERAGE RATE OF GRADE CAF-10, WITHIN THE SALARY RANGE OF HIS GRADE, EVEN ABOVE THE RATE OF $4,000 PER ANNUM, PROVIDED THE AVERAGE PROVISION APPEARING IN THE APPROPRIATION ACT IS NOT VIOLATED, WHEREAS THE SALARY RATE OF AN EMPLOYEE, WHO ON MAY 10, 1939, WAS RECEIVING $4,000 PER ANNUM OR MORE, MAY NOT BE INCREASED WITHIN THE SALARY RANGE OF HIS GRADE.

YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE.

REFERRING TO YOUR SECOND QUESTION, WHILE THE PROVISO WOULD NOT PROHIBIT AN INCREASE IN THE COMPENSATION OF AN EMPLOYEE DURING THE FISCAL YEAR 1939, WHO ON MAY 10, 1939, WAS RECEIVING $4,000 OR MORE PER ANNUM, THE PROVISO EFFECTIVE JULY 1, 1939, WOULD OPERATE TO REQUIRE A REDUCTION IN THE INCREASED SALARY RATE OF SUCH AN EMPLOYEE EFFECTIVE ON THAT DATE TO THE RATE RECEIVED BY THE EMPLOYEE ON MAY 10, 1939, IF OCCUPYING THE SAME POSITION.