B-64486, APRIL 3, 1947, 26 COMP. GEN. 736

B-64486, APRIL 3, 1947, 26 COMP. GEN. 736

COMPENSATION - AGGREGATE LIMITATION; RATES - APPOINTMENTS UNDER THE UNITED NATIONS PARTICIPATION ACT OF 1945 AN INDIVIDUAL APPOINTED TO THE STAFF OF A REPRESENTATIVE OF THE UNITED STATES TO THE UNITED NATIONS, PURSUANT TO SECTION 7 OF THE UNITED NATIONS PARTICIPATION ACT OF 1945, WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS MAY BE COMPENSATED AT A PER ANNUM BASIC SALARY RATE IN EXCESS OF $10,000 BUT NOT IN EXCESS OF THE $12,000 RATE WHICH IS THE MAXIMUM AUTHORIZED TO BE PAID TO REPRESENTATIVES UNDER SAID ACT; AND SUCH STAFF EMPLOYEE NEED NOT BE REGARDED AS SUBJECT TO THE $10,000 PER ANNUM AGGREGATE COMPENSATION LIMITATION OF SECTION 7 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1946.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, APRIL 3, 1947:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 6, 1947, AS FOLLOWS:

SECTION 7 OF THE UNITED NATIONS PARTICIPATION ACT OF 1945 ( PUBLIC LAW 264, 79TH CONGRESS, ST SESSION) AUTHORIZES TO BE APPROPRIATED ANNUALLY TO THE DEPARTMENT OF STATE SUCH SUMS AS MAY BE NECESSARY "FOR ALL NECESSARY SALARIES AND EXPENSES OF THE REPRESENTATIVES PROVIDED FOR IN SECTION 2 HEREOF, AND OF THEIR APPROPRIATE STAFFS, INCLUDING PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA AND ELSEWHERE, WITHOUT REGARD TO THE CIVIL- SERVICE AND CLASSIFICATION LAWS.'

THE DEPARTMENT OF STATE APPROPRIATION ACT, 1947 ( PUBLIC LAW 490, 79TH CONGRESS, 2ND SESSION), APPROPRIATED FUNDS TO THE STATE DEPARTMENT " FOR ALL NECESSARY EXPENSES AUTHORIZED BY SECTION 7 OF THE UNITED NATIONS PARTICIPATION ACT OF 1945 INCIDENT TO THE PARTICIPATION BY THE UNITED STATES IN THE UNITED NATIONS PURSUANT TO THE PROVISIONS OF SAID ACT, INCLUDING ATTENDANCE AT MEETINGS OF SOCIETIES OR ASSOCIATIONS CONCERNED WITH THE WORK OF THE UNITED NATIONS; HIRE MAINTENANCE, OPERATION, AND REPAIR OF AUTOMOBILES; PURCHASE OF UNIFORMS; AND PRINTING AND BINDING WITHOUT REGARD TO SECTION 11 OF THE ACT OF MARCH 1, 1919 (44 U.S.C. 111).'

THE QUESTION HAS ARISEN WHETHER PURSUANT TO SECTION 7 OF THE UNITED NATIONS PARTICIPATION ACT AN APPOINTMENT MAY BE MADE TO THE STAFF OF A REPRESENTATIVE OF THE UNITED STATES TO THE UNITED NATIONS AT AN ANNUAL SALARY IN EXCESS OF TEN THOUSAND DOLLARS. IT APPEARS TO THE DEPARTMENT, IN VIEW OF THE LANGUAGE IN SECTION 7,"WITHOUT REGARD TO THE CIVIL-SERVICE AND CLASSIFICATION LAWS," THAT SUCH AN APPOINTMENT MAY BE MADE. THIS CONCLUSION IS SUPPORTED BY THE REPORT OF THE SENATE COMMITTEE ON FOREIGN RELATIONS (S.1REPT. NO. 713, NOVEMBER 8, 1945) AND THE REPORT OF THE HOUSE COMMITTEE ON FOREIGN AFFAIRS (H.1REPT. NO. 1383, DECEMBER 12, 1945) ON THE UNITED NATIONS PARTICIPATION ACT OF 1945. BOTH REPORTS STATE IN THEIR LAST PARAGRAPHS THAT SECTION 7 PROVIDES ,FOR THE WAIVER OF CIVIL- SERVICE AND CLASSIFICATION LAWS AND CERTAIN RELATED MATTERS WHICH THE COMMITTEE DEEMS NECESSARY TO INCLUDE IN THIS BILL IN ORDER TO PROVIDE THE MOST EFFECTIVE PARTICIPATION BY THE UNITED STATES IN THIS WORK.'

II WOULD APPRECIATE YOUR ADVISING ME AT YOUR EARLIEST CONVENIENCE WHETHER YOU AGREE WITH THE CONCLUSION REACHED BY THE DEPARTMENT.

THE UNITED NATIONS PARTICIPATION ACT OF 1945, APPROVED DECEMBER 20, 1945, 59 STAT. 619, 620, QUOTED IN PART IN YOUR LETTER, PROVIDES, INTER ALIA, FOR THE APPOINTMENT OF A REPRESENTATIVE WHO SHALL HAVE THE RANK OF ENVOY EXTRAORDINARY AND AMBASSADOR PLENIPOTENTIARY, AT A SALARY OF $20,000 PER ANNUM AND VARIOUS OTHER REPRESENTATIVES AND ALTERNATES AT SALARY RATES OF $12,000 PER ANNUM; ALSO, APPOINTMENT OF OTHER PERSONS TO REPRESENT THE UNITED STATES IN THE ORGANS AND AGENCIES OF THE UNITED NATIONS AT SALARIES NOT TO EXCEED $12,000 EACH PER ANNUM, IS AUTHORIZED. HOWEVER, IN PROVIDING FOR THE APPOINTMENT OF INDIVIDUALS, WITHOUT REGARD TO THE CIVIL SERVICE AND CLASSIFICATION LAWS, TO THE STAFFS OF THE REPRESENTATIVES, NO SALARY RATES ARE SPECIFIED OR NO LIMITATION IS FIXED AS TO THE COMPENSATION THEY MAY RECEIVE.

PRESUMABLY, YOUR QUESTION REGARDING THE APPOINTMENT AT A SALARY RATE IN EXCESS OF $10,000 PER ANNUM TO THE STAFF OF A REPRESENTATIVE OF THE UNITED STATES TO THE UNITED NATIONS ARISES BY VIRTUE OF THE AGGREGATE COMPENSATION LIMITATIONS APPEARING IN THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 303, AND OF 1946. SECTION 7 (B) OF THE 1946 ACT, 60 STAT. 218, PROVIDES AS FOLLOWS:

(B) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ACT, NO OFFICER OR EMPLOYEE SHALL, BY REASON OF THE ENACTMENT OF THIS ACT, BE PAID WITH RESPECT TO ANY PAY PERIOD, BASIC COMPENSATION, OR BASIC COMPENSATION PLUS ANY ADDITIONAL COMPENSATION PROVIDED BY THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, AT A RATE IN EXCESS OF $10,000 PER ANNUM.

IN RESPECT OF THAT STATUTORY LIMITATION, IT WAS HELD IN DECISION OF OCTOBER 2, 1946, B-60736, 26 COMP. GEN. 227, AS FOLLOWS (QUOTING THE LAST PARAGRAPH OF THE SYLLABUS):

INASMUCH AS THE COMPENSATION OF PERSONS EMPLOYED BY THE OFFICE OF FOREIGN LIQUIDATION, STATE DEPARTMENT, WITHOUT REGARD TO CIVIL SERVICE OR CLASSIFICATION LAWS IN CONNECTION WITH SURPLUS PROPERTY DISPOSAL OUTSIDE THE CONTINENTAL LIMITS OF THE UNITED STATES, PURSUANT TO AUTHORITY IN THE DEPARTMENT OF STATE APPROPRIATION ACT, 1947, WOULD NOT BE INCREASED OR OTHERWISE AFFECTED BY THE FEDERAL EMPLOYEES PAY ACT, OF 1945 OR 1946, SUCH EMPLOYEES ARE NOT SUBJECT TO THE $10,000 PER ANNUM AGGREGATE COMPENSATION LIMITATION IMPOSED BY SECTION 7 (B) OF THE 1946 PAY ACT.

IN A LATER DECISION, B-61845, DATED DECEMBER 11, 1946, 26 COMP. GEN. 402, TO THE SECRETARY OF WAR, IT WAS HELD THAT SINCE A PER DIEM RATE OF BASIC COMPENSATION ($40) AUTHORIZED BY SECTION 8 OF THE MILITARY APPROPRIATION ACT, 1947, 60 STAT. 564, WITHOUT REFERENCE TO CIVIL SERVICE OR CLASSIFICATION LAWS, WAS NOT INCREASED BY ANY PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND OF 1946, AUTHORIZING PERCENTUM INCREASES IN BASIC RATES OF COMPENSATION, THE $10,000 LIMITATION CONTAINED IN SAID ACTS IS NOT APPLICABLE.

IN CONFORMITY WITH THOSE RULINGS, IT IS EVIDENT THAT AN APPOINTMENT AT A BASIC RATE OF COMPENSATION IN EXCESS OF 10,000 PER ANNUM WITHOUT REGARD TO CIVIL SERVICE OR CLASSIFICATION LAWS IS NOT SUBJECT TO THE $10,000 AGGREGATE COMPENSATION RESTRICTIONS CONTAINED IN THE FEDERAL EMPLOYEES PAY ACT OF 1945, AND OF 1946.

MOREOVER, I AM NOT AWARE OF ANY OTHER STATUTE OR REGULATION PRECLUDING APPOINTMENTS TO POSITIONS AT BASIC SALARY RATES IN EXCESS OF $10,000 PER ANNUM, WHERE SUCH APPOINTMENTS ARE AUTHORIZED TO BE MADE WITHOUT REGARD TO THE CIVIL SERVICE OR CLASSIFICATION LAWS AND WITHOUT SPECIFYING THE RATES OF COMPENSATION APPLICABLE TO SUCH APPOINTMENTS. HOWEVER, SINCE THE UNITED NATIONS PARTICIPATION ACT OF 1945, SUPRA, SPECIFIED THAT THE REPRESENTATIVES OF THE UNITED STATES TO THE UNITED NATIONS, WITH THE EXCEPTION OF THE REPRESENTATIVE HAVING THE RANK OF ENVOY EXTRAORDINARY AND AMBASSADOR PLENIPOTENTIARY, SHALL BE COMPENSATED AT THE RATE OF $12,000 PER ANNUM AND THAT OTHER PERSONS MAY BE APPOINTED TO REPRESENT THE UNITED STATES AT SALARIES NOT TO EXCEED $12,000 EACH PER ANNUM, IT SEEMS REASONABLE TO CONCLUDE THE CONGRESS INTENDED THAT APPOINTMENTS TO THE STAFFS OF SUCH REPRESENTATIVES WOULD NOT BE MADE AT SALARY RATES IN EXCESS OF THAT AMOUNT.

ACCORDINGLY, YOU ARE ADVISED THAT AN APPOINTMENT TO THE STAFF OF A REPRESENTATIVE OF THE UNITED STATES TO THE UNITED NATIONS AT AN ANNUAL BASIC SALARY RATE IN EXCESS OF $10,000 BUT NOT IN EXCESS OF $12,000 PER ANNUM, IS AUTHORIZED UNDER THE PROVISIONS OF THE UNITED NATIONS PARTICIPATION ACT OF 1945, AND THE DEPARTMENT OF STATE APPROPRIATION ACT OF 1947, 60 STAT. 448.