Page images
PDF
EPUB

Stat. 1490, providing as follows: "All new appointments shall be made at the minimum rate of the appropriate grade or class thereof." See 9 Comp. Gen. 71; id. 80; id. 313; 13 id. 22; id. 86; id. 222; 15 id. 102; id. 797; 16 id. 598; id. 994; 17 id. 460; id. 563; id. 1061; 19 id. 20; id. 763; 20 id. 17; id. 318.

Under the rules stated in those decisions, an employee may be paid initially in a grade or position to which transferred, promoted, or reduced without loss of the salary rate, including any periodic or meritorious within-grade salary advancement, paid the employee in his old position, or with as little loss of salary as is necessary to pay a salary rate prescribed for the grade to which the employee is transferred, promoted, or reduced. In other words, under section 10 of the original classification act, supra, it is proper and within administrative discretion to save an employee's periodic or meritorious within-grade salary advancement acquired in one grade or position after transfer, promotion, or reduction to another grade or position. However, when an employee is transferred, promoted, or reduced from one position to another separate and distinct position with different duties and responsibilities, whether in the same or a different grade, it is within administrative discretion-availability of funds to be considered, of course—to pay initially any salary rate prescribed by the classification act for the grade to which the employee is transferred, promoted, or reduced, without regard to the rate paid in the position occupied prior to the transfer, promotion, or reduction. That is to say, section 10 of the original classification act, above quoted— which, as previously stated, has not been affected in any manner by the amendatory act of August 1, 1941-vests a discretion in the administrative office but does not require administrative action to save an employee's periodic or meritorious within-grade salary advancements paid to him prior to his transfer, promotion, or reduction from one position to another, whether in the same or different grade.

Referring to such questions a, b, c, and d of question numbered 1, none of the employees would be entitled, as a matter of right, to the periodic increase in compensation after date of transfer from one position to another, but, in view of your statement "that there is no administrative desire for a reduction in salary" (except apparently as to question d), and as the actual payments of the periodic increases effective October 1, 1941, have been delayed, during which period of delay you state "it became necessary to effect changes in status and transfers of certain employees," in respect of which action there were no guiding rules for paying initial salary rates with relation to the application of the provisions of the amendatory act, it is within administrative discretion to grant the employees in each case the withingrade salary advancement effective on the date of the transfer, it being understood with regard to question d that the salary rate including the periodic increase after date of transfer will be $1,500 per annum. Regarding question numbered 2, the discussion herein, preceding

answer to question numbered 1, appears to constitute a complete answer to this question.

Under the provisions of section 7 (f) of the classification act (added by the act of August 1, 1941), and section 3 of Executive Order No. 8882, dated September 3, 1941, one additional meritorious promotion or within-grade salary advancement of one step in a grade may be made at any time during each promotable period of 18 or 30 months, as the case may be, regardless of whether the effective date is at the beginning of a quarter or prior to the beginning of the quarter when the employee attains eligibility for his first periodic increase. Accordingly, question numbered 3 is answered in the affirmative. In the example stated, the employee, if otherwise entitled thereto, may be granted a meritorious promotion to $2,700 per annum at this time, prospectively effective.

Referring to question numbered 4, in decision of October 2, 1941, 21 Comp. Gen. 285, it was held as follows (quoting from the first paragraph of the syllabus):

Eligibility for promotion as of October 1, 1941, when the first within-grade compensation increases become effective under the act of August 1, 1941, is for determination on the basis of service rendered during the last preceding 18 or 30 months, as the case may be, and the amount of the increase is to be determined by the rates applicable to the particular grade in which the employee is serving at the time he becomes eligible for the increase.

That rule was stated with relation to an employee who had not been in a nonpay status for a period exceeding 30 days during the 18 or 30 months immediately preceding October 1, 1941. There is nothing in the terms of section 7 (e) of the classification act, added by section 2 of the act of August 1, 1941, to preclude the counting of a longer period immediately prior to October 1, 1941, where the employee had been in a nonpay status for more than 30 days and less than one year prior to October 1, 1941. That is to say, the rules stated in section 2 of the President's Regulations for computing length of service may be applied to any necessary period immediately prior to October 1, 1941, in the same manner as they are applicable to any other corresponding period immediately prior to the beginning of any subsequent quarter.

Accordingly, as to the first subquestion under this question numbered 4, the employee who was on leave without pay for four months immediately preceding October 1, 1941, but who had had 18 or 30 months or more of continuous service, including time prior to such period in a nonpay status, without having received an equivalent increase in compensation, was eligible for a within-grade salary advancement as of October 1, 1941, if otherwise qualified. Regarding the second subquestion under the question numbered 4, a period in a nonpay status not exceeding 30 days may be included in counting longevity for purposes of computing the promotable period and only the excess over

30 days in a nonpay status must be excluded. See the last paragraph of decision of October 11, 1941, 21 Comp. Gen. 313, 316, wherein it was stated as follows:

Under the terms of section 2 (c) of the regulations, the aggregate of time elapsing in a nonpay status, whether in one or more periods, in the 18 or 30 months' period immediately preceding the beginning of a quarter that may be counted, shall not exceed 30 days. Any period in a nonpay status in excess of 30 days in the aggregate may not be counted in computing the 18 or 30 months' period.

It would seem unreasonable to conclude that an employee who had been in a nonpay status exactly 30 days could count such period in computing his promotable period, whereas an employee who had been absent in a nonpay status for 31 days could not count any of such period. Accordingly, the employee in the example stated under this subquestion was eligible for a within-grade salary advancement as of January 1, 1942, if otherwise qualified.

Regarding question numbered 5, the rule stated in the cited decision of October 27, 1941, 21 Comp. Gen. 369, was with reference to employees who did not continue in the service in any position subject to the classification act (as amended) after October 1, 1941. It was concluded that where an employee was finally separated from the service simultaneously with the effective date of the act, no within-grade salary advancement should be made. However, as all continuous civilian service is creditable in computing the 18- or 30-month period regardless of the department or agency in which employed (see sec. 2 (a) of the regulations), an employee who remained in the service after October 1, 1941, in a permanent position subject to the classification act should be considered for a promotion as of October 1, 1941, by the Federal Security Administration, notwithstanding the employee resigned at the close of business October 1, 1941, to go to another agency, without break in service. This question is answered in the affirmative.

With respect to question numbered 6, in decision of October 5, 1937, 17 Comp. Gen. 303, 305, relative to part-time physicians in the Public Health Service, it was stated as follows:

The decisions of this Office where the rules have been stated for fixing the compensation rates of part-time positions, have held in effect (1) the positions must be classified if the character of the duties performed is the same or similar to the duties of employees on a full-time basis required to be classified; (2) the rates of compensation must be fixed administratively on an annual basis having substantially the same relation to the rates fixed for full time in the same or similar positions which the part-time service required to be performed bears to full-time service; (3) that "service" of part-time professional and scientific personnel and those similarly employed may include both availability for duty as well as actual service; (4) the letters of appointment or contracts of employment should show the basis or method used in determining the per annum rate of compensation on a part-time basis; (5) the pay roll should reflect the classification grade, the annual salary rate, and the ratio or percentage that the part-time compensation bears to the full-time compensation in similar positions. 11 Comp. Gen. 105; id. 211; id. 217; id. 260; id. 362. As to professional and scientific personnel it was stated in decision of January 7, 1932, 11 Comp. Gen. 260, 262, as follows:

"It is understood from the statement made in the two letters quoted that the annual salary of these two consultant or part-time physicians has been fixed on two primary elements, to wit: (1) Availability for duty at all times upon the call of the Veterans' Administration, necessitating the physicians so to arrange their private practice as to meet the needs of the Government; and (2) the minimum time of actual service on Government work without special call.

"The right of an employee of the Government to compensation is dependent upon the rendering of service, 5 Comp. Gen. 566, and, ordinarily, there is no authority for the payment of a stipulated annual salary in the nature of a retainer having an uncertain relation to, and possibly in excess of, services actually rendered. However, in view of the professional nature of the part-time service rendered by consulting physicians for the Veterans' Administration, involving, in addition to actual attendance at Government institutions, research and other similar work during time not actually spent at the Government institutions, as well as the necessity of adjustment in private practice with little or no notice in order to be available upon the call of the Government, it is believed that both of the elements above stated reasonably may be classed as 'service' and properly are for consideration in fixing the part-time compensation on an annual basis having proper relation to the time served by full-time employees in similar positions, the salaries for which have been fixed in accordance with the principles of classification."

In other words, this Office has definitely recognized that the availability of professional and scientific personnel also engaged in private practice or commercial pursuits for duty upon call by the Government has a value and constitutes "service" which may not in all cases be measured with mathematical exactitude. The evaluation of such part-time service of professional and scientific personnel and other employees whose work is of a similar nature or performed in connection with the work of professional and scientific personnel is of necessity an administrative responsibility and it is not the purpose or intent of this Office in making requirements for audit purposes to question the administrative action in this regard, but simply to have a practical basis on which it may be determined that none but lawful expenditures are made.

The act of May 14, 1937, 50 Stat. 148, considered in that decision, contains a provision as follows:

Hereafter field employees of the Public Health Service, except those employed on a per diem or fee basis, who render part-time duty and are also subject to call at any time for other services, may be paid annual compensation for such part-time duty and, in addition, such fees for such other services as the Secretary of the Treasury may determine: Provided, That the total amount paid to any such employee for any fiscal year shall in no case exceed the amount of the minimum annual salary rate of the classification grade of the employee.

That statute is permanent legislation. There is for noting particularly the limitation fixed in the proviso to the statute on part-time salary rates that may be paid to field personnel of the Public Health Service who render part-time duty and are subject to call at any time. While the statute definitely recognizes that the part-time positions mentioned under this question (No. 6), the salary of which is paid. on a per annum basis, are within the purview of the classification act, as held in the decision of this office, supra, the authority to pay to the same part-time employees both salary on a time basis and fees, and the limitation fixed on the total amount of compensation, including both salary and fees that may be paid during a year, to wit, "shall in no case exceed the amount of the minimum annual salary rate of the classification grade of the employee," would appear to be inconsistent with the plan prescribed by the act of August 1, 1941, for granting withingrade salary advancements on the basis of longevity, efficiency ratings,

etc. Section 8 of the act of August 1, 1941, provides that "Insofar as they are inconsistent or in conflict with prior laws, the provisions of this Act shall control." Thus, it may seem, at first blush, that the act of May 14, 1937, supra, no longer controls the fixing of salary rates of part-time field personnel of the Public Health Service whose positions are within the purview of the classification act. However, section 4 of the act of November 26, 1940, 54 Stat. 1214, 1215, provides, in pertinent part, as follows:

The President is authorized, after suitable investigation by the Commission, which shall include consultation with representatives of the heads of executive departments and independent agencies, in or under the jurisdiction of which the offices or positions hereinafter designated are located, and upon a finding that such action is necessary to the more efficient operation of the Government, to exclude, by Executive order, from the provisions of the Classification Act of 1923, as amended and extended under this act

* offices or positions filled by persons employed locally on a fee, contract, or piece-work basis who may lawfully perform their duties concurrently with their private profession, business, or other employment and whose duties require only a portion of their time, where it is impracticable to ascertain or anticipate the proportion of time devoted to the service of the Federal Government.

While it is understood that no Executive order has as yet been issued under that authority, the statute indicates a legislative recognition "that it may not always be practicable or necessary to classify part-time professional positions" (quoting from the decision of April 10, 1940, 19 Comp. Gen. 849, 853). You are advised therefore that in view of said statute and of the irregular periods during which the personnel mentioned in this question are employed and paid for part-time professional service, there is justified the conclusion that their salary rates may continue to be paid pursuant to the terms and conditions of the act of May 14, 1937, supra, without regard to the provisions of the act of August 1, 1941, and accordingly, that the within-grade salary-advancement plan prescribed by the later statute has no application to such part-time personnel. The answer to this question is to be distinguished from the rule stated. in decision of January 7, 1942, B-22683, 21 Comp. Gen. 644, applicable to part-time physicians of the District of Columbia, for the reason that there has been no special statute enacted applicable to part-time physicians of the District of Columbia similar to that enacted for controlling the salary rates of part-time employees in the field service of the Public Health Service, the part-time positions of the District of Columbia physicians being properly within the purview of the classification act.

(B-23725)

COST-PLUS-A-PERCENTAGE-OF-COST CONTRACT PROHIBITION

A contract for stevedoring services entered into without advertising pursuant to section 1 (a) of the act of July 2, 1940, providing for payment on a

« PreviousContinue »