B-107130, JANUARY 18, 1952, 31 COMP. GEN. 314

B-107130, JANUARY 18, 1952, 31 COMP. GEN. 314

COMPENSATION - RETROACTIVE SALARY INCREASES - POSITIONS WITH AGGREGATE COMPENSATION LIMITATION EMPLOYEES PERFORMING PART-TIME DUTIES IN CLASSIFIED POSITIONS UNDER EXCEPTED APPOINTMENTS SUBJECT TO CIVIL SERVICE REGULATION 6.101 ARE COMPENSATED IN ACCORDANCE WITH THE RATES PRESCRIBED IN THE CLASSIFICATION ACT OF 1949, AS AMENDED, AND WHILE THE RETROACTIVE INCREASE PROVIDED BY THE AMENDATORY ACT OF OCTOBER 24, 1951, HAS THE EFFECT OF CAUSING SUCH EMPLOYEES TO RECEIVE COMPENSATION IN EXCESS OF $900 PER ANNUM, THE LIMITATION PRESCRIBED FOR EXCEPTING THEIR POSITIONS FROM THE COMPETITIVE SYSTEM, SUCH EXCESS IS NOT TO BE CONSIDERED AS DEPRIVING THE EMPLOYEES OF THE RETROACTIVE INCREASE IN COMPENSATION AUTHORIZED BY THE AMENDATORY ACT.

COMPTROLLER GENERAL WARREN TO DEE R. CONANT, DEPARTMENT OF JUSTICE, JANUARY 18, 1952:

THERE HAS BEEN CONSIDERED YOUR LETTER OF DECEMBER 14, 1951, YOUR REFERENCE 56221/941-D, REQUESTING A DECISION OF THIS OFFICE AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A SUPPLEMENTAL PAY ROLL FOR RETROACTIVE COMPENSATION UNDER PUBLIC LAW 201, APPROVED OCTOBER 24, 1951, 65 STAT. 612, AMENDING THE CLASSIFICATION ACT OF 1949, 63 STAT. 965. THE FACTS INVOLVED AND THE QUESTION SUBMITTED FOR DECISION ARE SET FORTH IN YOUR LETTER AS FOLLOWS:

THERE HAS BEEN PREPARED FOR MY SIGNATURE AS AN AUTHORIZED CERTIFYING OFFICER FOR THIS SERVICE, A SUPPLEMENTAL PAYROLL ( FORM 1128) IN THE AMOUNT OF $76.50. THIS AMOUNT REPRESENTS RETROACTIVE PAY INCREASES PRESUMED DUE SEVERAL EMPLOYEES OF THIS SERVICE UNDER THE PROVISIONS OF PUBLIC LAW 201, APPROVED OCTOBER 24, 1951. THESE EMPLOYEES ARE PERFORMING PART-TIME DUTIES IN A CLASSIFIED POSITION UNDER (EXCEPTED) APPOINTMENTS SUBJECT TO CIVIL SERVICE REGULATIONS 6.101 (G).

THE AMOUNT SHOWN ABOVE, IF CERTIFIED FOR PAYMENT, WILL RESULT IN THESE EMPLOYEE'S TOTAL CALENDAR YEAR EARNINGS EXCEEDING THE $900 LIMITATION ALLOWED BY THEIR APPOINTMENTS. ON THAT FACT, A QUESTION HAS ARISEN AS TO WHETHER I SHOULD CERTIFY FOR PAYMENT THIS AMOUNT. * * *

WHEN REQUEST IS MADE BY A CERTIFYING OFFICER UNDER AUTHORITY OF SECTION 3 OF THE ACT OF DECEMBER 29, 1941, 55 STAT. 876, FOR A DECISION BY THE COMPTROLLER GENERAL UPON A QUESTION OF LAW THE VOUCHER PRESENTED TO HIM FOR CERTIFICATION MUST ACCOMPANY THE REQUEST FOR DECISION. 26 COMP. GEN. 797; 21 ID. 1128. IN THE INSTANT CASE NO VOUCHER WAS SUBMITTED, BUT SINCE THE SPECIFIC QUESTION PRESENTED IS STATED TO HAVE ARISEN IN CONNECTION WITH A VOUCHER THAT HAS BEEN PREPARED FOR YOUR SIGNATURE, AND PRESUMABLY HAS BEEN PRESENTED TO YOU FOR CERTIFICATION, THE FAILURE TO FORWARD THE VOUCHER WILL NOT, IN THIS INSTANCE, BE CONSIDERED AS PRECLUDING A DECISION IN THE MATTER PRESENTED.

THE CIVIL SERVICE REGULATION 6.101 ENUMERATES THE POSITIONS EXCEPTED FROM THE COMPETITIVE SERVICE, TO WHICH APPOINTMENTS MAY BE MADE WITHOUT EXAMINATION BY THE COMMISSION. THE POSITIONS THUS EXCEPTED ARE NOT THEREBY TAKEN OUT OF THE PURVIEW OF THE CLASSIFICATION ACT. SEE 20 COMP. GEN. 451. IN A DISCUSSION CONTAINED IN OFFICE DECISION OF AUGUST 5, 1939, 19 COMP. GEN. 160, AS TO THE NATURE OF THE CIVIL SERVICE REGULATIONS AND THE CLASSIFICATION ACT OF 1923, SIMILAR IN PURPOSE TO THE CURRENT CLASSIFICATION ACT, IT WAS STATED:

THE CIVIL SERVICE LAWS AND REGULATIONS, HAVING TO DO WITH APPOINTMENTS, AND THE CLASSIFICATION ACT OF 1923, HAVING TO DO WITH THE FIXING OF SALARY RATES, ARE SEPARATE AND DISTINCT WITH ENTIRELY DIFFERENT SCOPES AND PURPOSES. 17 COMP. GEN. 578; 18 ID. 796. THE FACT THAT APPOINTMENTS TO THE POSITIONS LISTED IN YOUR LETTER ARE EXCEPTED FROM COMPETITIVE EXAMINATION DOES NOT EXEMPT THE POSITIONS FROM THE CLASSIFICATION ACT. COMP. GEN. 827; 18 ID. 223.

THE COMPENSATION TO BE RECEIVED BY THE INVOLVED EMPLOYEES IN THEIR CLASSIFIED POSITIONS MUST BE WITH REGARD TO THE RATES PRESCRIBED IN THE CLASSIFICATION ACT OF 1949, AS AMENDED, AND THE FACT THAT THE RETROACTIVE INCREASE PROVIDED BY PUBLIC LAW 201 AMENDING SAID ACT HAS THE INCIDENTAL EFFECT OF CAUSING THE INVOLVED EMPLOYEES TO RECEIVE COMPENSATION IN EXCESS OF $900 PER ANNUM, THE LIMITATION PRESCRIBED FOR EXCEPTING THEIR POSITIONS FROM THE COMPETITIVE SYSTEM, CANNOT BE CONSIDERED AS DEPRIVING THE EMPLOYEES OF THE RETROACTIVE INCREASE IN COMPENSATION GRANTED BY PUBLIC LAW 201. IT HAS BEEN INFORMALLY ASCERTAINED FROM THE CIVIL SERVICE COMMISSION THAT ANY PAYMENT IN EXCESS OF SUCH LIMITATION IN SITUATIONS OF THIS KIND, WHERE NO BAD FAITH IS INVOLVED, WOULD NOT CONSTITUTE GROUNDS FOR VITIATING THE EXCEPTED APPOINTMENT.

YOU ARE ADVISED, THEREFORE, THAT IF RETROACTIVE COMPENSATION UNDER PUBLIC LAW 201 IS OTHERWISE PAYABLE TO THE EMPLOYEES, THE FACT THAT SUCH PAYMENT CAUSES THE $900 LIMITATION OF THEIR EXCEPTED APPOINTMENTS TO BE EXCEEDED IS NOT CONSIDERED AS INHIBITING SUCH PAYMENT.