A-30866, APRIL 2, 1930, 9 COMP. GEN. 424

A-30866, APRIL 2, 1930, 9 COMP. GEN. 424

COMPENSATION - PROMOTION - IMMIGRANT INSPECTORS FROM AND AFTER THE EFFECTIVE DATE OF THE IMMIGRANT INSPECTORS CLASSIFICATION ACT OF MAY 29, 1928, 45 STAT. 954, THE SALARY RATES THEREIN FIXED FOR IMMIGRANT INSPECTORS WERE AND ARE EXCLUSIVE, AND NO IMMIGRANT INSPECTOR, WHETHER STATIONED AT HOME OR ABROAD, WAS OR IS AUTHORIZED TO BE PAID COMPENSATION IN EXCESS OF THE RATE OF $3,000 PER ANNUM, THE MAXIMUM RATE FIXED THEREIN AS FOR GRADE 5. UPON THE TRANSFER OF AN IMMIGRANT INSPECTOR FROM ONE STATION TO ANOTHER, EITHER IN THE UNITED STATES OR ABROAD, AND FROM A HIGHER TO A LOWER GRADE, THERE MAY BE INCLUDED IN DETERMINING THEREAFTER THE ONE YEAR'S SERVICE FOR THE PURPOSE OF PROMOTION TO THE NEXT HIGHER GRADE, CONTINUOUS SERVICE AS AN IMMIGRANT INSPECTOR PERFORMED PRIOR TO THE TRANSFER IN A HIGHER GRADE. (AMPLIFIED BY 9 COMP. GEN. 455.)

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, APRIL 2, 1930:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 13, 1930, REQUESTING REVIEW OF CERTAIN DISALLOWANCES OF CREDIT IN THE ACCOUNTS OF J. R. DEMOREST, DISBURSING CLERK, DEPARTMENT OF LABOR, FOR THE DIFFERENCE IN SALARY BETWEEN THE RATES OF $2,500 AND $2,700 PER ANNUM, PAID ON VOUCHERS 3463, 5699, 7940, 10341, 12529, AND 15797 TO IMMIGRANT INSPECTOR WILLIAM M. JOHNSON, COVERING THE PERIOD, FROM JULY 1, 1929, THE EFFECTIVE DATE OF HIS PROMOTION TO $2,700, TO OCTOBER 15, 1929. CREDIT FOR THE ITEMS IN QUESTION WAS DISALLOWED UPON THE GROUND THAT THE PROMOTION OF THE INSPECTOR FROM GRADE 3, AT $2,500, TO WHICH POSITION HE WAS APPOINTED ON FEBRUARY 1, 1929, TO GRADE 4, AT $2,700, BEFORE THE COMPLETION OF ONE YEAR'S SERVICE IN GRADE 3, WAS IN CONTRAVENTION OF THE ACT OF MAY 29, 1928, 45 STAT. 954, WHICH PROVIDES, IN PART, AS FOLLOWS:

IMMIGRANT INSPECTORS SHALL BE DIVIDED INTO FIVE GRADES, AS FOLLOWS: GRADE 1, SALARY $2,100; GRADE 2, SALARY $2,300; GRADE 3, SALARY $2,500; GRADE 4, SALARY $2,700; GRADE 5, SALARY $3,000; AND, HEREAFTER, INSPECTORS SHALL BE PROMOTED SUCCESSIVELY TO GRADES 2 AND 3 AT THE BEGINNING OF THE NEXT QUARTER FOLLOWING ONE YEAR'S SATISFACTORY SERVICE (DETERMINED BY A STANDARD OF EFFICIENCY WHICH IS TO BE DEFINED BY THE COMMISSIONER GENERAL OF IMMIGRATION, WITH THE APPROVAL OF THE SECRETARY OF LABOR) IN THE NEXT LOWER GRADE; NOT TO EXCEED 50 PERCENTUM OF THE FORCE TO GRADES 4 AND 5 FOR MERITORIOUS SERVICE AFTER NO LESS THAN ONE YEAR'S SERVICE IN GRADES 3 AND 4, RESPECTIVELY: PROVIDED FURTHER, THAT PROMOTION ABOVE GRADE 3 SHALL BE AT THE DISCRETION OF THE SECRETARY OF LABOR, UPON THE RECOMMENDATION OF THE COMMISSIONER GENERAL OF IMMIGRATION: * * *

IN THE REQUEST FOR REVIEW YOU SUBMIT THE FOLLOWING STATEMENT REGARDING THE SERVICE RECORD OF THE EMPLOYEE:

MR. JOHNSON WAS ORIGINALLY APPOINTED TO THE POSITION OF IMMIGRANT INSPECTOR ON SEPTEMBER 2, 1906, AND HE HAS BEEN IN THE IMMIGRATION SERVICE CONTINUOUSLY SINCE THAT DATE. ON JULY 16, 1926, HE WAS PROMOTED TO $2,400 PER ANNUM, AND RECEIVED PAY AT THAT RATE UNTIL JUNE 1, 1927, ON WHICH DATE HE WAS PROMOTED TO $3,000 PER ANNUM AND TRANSFERRED TO NAPLES, ITALY. CONNECTION WITH THE ADOPTION OF A NEW POLICY BY THE DEPARTMENT, EFFECTIVE JULY 1, 1928, MR. JOHNSON'S TITLE WAS CHANGED FROM IMMIGRANT INSPECTOR TO TECHNICAL ADVISER AND HIS SALARY INCREASED FROM $3,000 TO $3,500 PER ANNUM, BUT HE CONTINUED TO PERFORM THE SAME DUTIES THAT HE HAD BEEN PERFORMING UNDER THE TITLE OF IMMIGRANT INSPECTOR SINCE JUNE 1, 1927.

THE ACT OF MAY 29, 1928, PROVIDES NO SALARY RATE OF $2,400 PER ANNUM, AND IF IMMIGRANT INSPECTOR JOHNSON HAD REMAINED IN THE UNITED STATES HIS SALARY WOULD HAVE BEEN FIXED AUTOMATICALLY AT $2,500 PER ANNUM EFFECTIVE JULY 1, 1928, AND HE WOULD HAVE COMPLETED ONE YEAR OF SERVICE IN THAT GRADE ON JULY 1, 1929. WHEN HE RETURNED FROM EUROPE ON FEBRUARY 1, 1929, HIS SALARY WAS FIXED AT $2,500 PER ANNUM, WHICH IS THE AMOUNT HE WOULD HAVE BEEN RECEIVING AT THAT TIME IF HE HAD REMAINED IN THE UNITED STATES. HIS SERVICES DURING THE PERIOD JULY 1, 1928, TO JULY 1, 1929, WERE MERITORIOUS, AND HE WAS CONSIDERED AND PROMOTED ALONG WITH OTHER IMMIGRANT INSPECTORS WHO HAD PERFORMED ONE YEAR OF MERITORIOUS SERVICE IN THE $2,500 GRADE. TO DO OTHERWISE WOULD RESULT IN PENALIZING IMMIGRANT INSPECTOR JOHNSON BECAUSE OF HIS SPECIAL DETAIL ABROAD.

FROM AND AFTER THE EFFECTIVE DATE OF THE IMMIGRANT INSPECTORS CLASSIFICATION ACT, TO WIT, MAY 29, 1928, THE SALARY RATES THEREIN FIXED FOR IMMIGRANT INSPECTORS WERE AND ARE EXCLUSIVE. NO IMMIGRANT INSPECTOR, WHETHER STATIONED AT HOME OR ABROAD, WAS OR IS AUTHORIZED TO BE PAID COMPENSATION IN EXCESS OF THE RATE OF $3,000 PER ANNUM, THE MAXIMUM RATE FIXED THEREIN AS FOR GRADE 5. THEREFORE, ON THE BASIS OF YOUR STATEMENT THAT INSPECTOR JOHNSON WHILE SITUATED ABROAD AND SERVING UNDER THE TITLE OF "TECHNICAL ADVISER" ACTUALLY "CONTINUED TO PERFORM THE SAME DUTIES THAT HE HAD BEEN PERFORMING UNDER THE TITLE OF IMMIGRANT INSPECTOR SINCE JUNE 1, 1927," IT MUST BE CONCLUDED THAT HE WAS IN FACT AN IMMIGRANT INSPECTOR AND WAS OVERPAID AS SUCH DURING THE PERIOD OF JULY 1, 1928, TO AND INCLUDING JANUARY 31, 1929, AT THE RATE OF $500 PER ANNUM, THE DIFFERENCE BETWEEN $3,000, THE MAXIMUM RATE AUTHORIZED BY THE CONTROLLING STATUTE, AND $3,500, THE RATE ACTUALLY PAID. THE ACCOUNTS OF THE DISBURSING OFFICER WILL BE REVISED AND CREDIT WILL BE DISALLOWED THEREIN FOR THE EXCESS PAYMENT INDICATED.

SINCE THE POSITION OF "IMMIGRANT INSPECTOR" HAS NOW A DEFINITE STATUTORY STATUS WITH CERTAIN SPECIFIC SALARY RATES AND SUBJECT TO CERTAIN LIMITATIONS AS TO PROMOTIONS, THERE WOULD APPEAR TO BE NO AUTHORITY IN THE ADMINISTRATIVE OFFICE TO DESIGNATE SUCH POSITIONS BY ANY TITLE OTHER THAN ,IMMIGRANT INSPECTOR," AND THE PRACTICE, IF STILL MAINTAINING, SHOULD BE DISCONTINUED.

WITH REFERENCE TO INSPECTOR JOHNSON'S PROPER AND LEGAL SALARY RATE OF COMPENSATION ON AND AFTER FEBRUARY 1, 1929, WHEN HE WAS RETURNED TO THE UNITED STATES, AS HE WAS AN IMMIGRANT INSPECTOR RECEIVING $3,000 PER ANNUM WHEN THE CLASSIFICATION ACT OF MAY 29, 1928, WENT INTO EFFECT, WHICH WAS HIS LEGAL SALARY RATE UNTIL HIS RETURN TO THE UNITED STATES, IT WAS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO HAVE CONTINUED HIM IN GRADE 5 AT THAT RATE UPON HIS TRANSFER TO A STATION IN THE UNITED STATES, OR TO HAVE PLACED HIM IN A LOWER GRADE, EITHER AT THE MINIMUM OR ABOVE (9 COMP. GEN. 315), THERE BEING NOTHING IN THE STATUTE OR OTHERWISE PROHIBITING THE ADMINISTRATIVE OFFICE FROM REDUCING THE GRADE AND SALARY RATE OF AN IMMIGRANT INSPECTOR UPON HIS TRANSFER FROM ONE STATION TO ANOTHER OR UPON HIS RETURN TO THE UNITED STATES FROM SERVICE ABROAD. WHEN THE PLACEMENT IS MADE IN THE LOWER GRADE UPON TRANSFER, THE RESTRICTIONS ON SUBSEQUENT PROMOTIONS TO A HIGHER GRADE FIXED BY THE STATUTE APPLICABLE TO THAT GRADE ARE CONTROLLING. INSPECTOR JOHNSON WAS PLACED IN GRADE 3 AT $2,500 PER ANNUM FEBRUARY 1, 1929, UPON HIS RETURN TO THE UNITED STATES, AND HE WAS, IN FACT, PROMOTED TO GRADE 4 JULY 1, 1929, ON THE BASIS THAT THERE MIGHT BE INCLUDED TO MAKE UP THE YEAR OF SERVICE IN GRADE 3, SERVICE AS IMMIGRANT INSPECTOR WHILE ABROAD IN A HIGHER GRADE.

THE STATUTE SPECIFICALLY PROVIDES FOR PROMOTION OF "NOT TO EXCEED 50 PERCENTUM OF THE FORCE TO GRADES 4 AND 5 FOR MERITORIOUS SERVICE AFTER NO LESS THAN ONE YEAR'S SERVICE IN GRADES 3 AND 4, RESPECTIVELY.' THEREFORE, NO INSPECTOR MAY BE CHOSEN FOR PROMOTION FROM GRADE 3 TO GRADE 4 UNLESS AND UNTIL HE HAS HAD THE EQUIVALENT OF NO LESS THAN ONE YEAR'S SERVICE IN GRADE 3. WHILE THE STATUTE DOES NOT SPECIFICALLY AUTHORIZE CREDIT FOR SERVICE IN A HIGHER GRADE OF IMMIGRANT INSPECTOR, ABROAD OR AT HOME, THE PURPOSE AND INTENT OF THE STATUTE WOULD SEEM TO BE TO AUTHORIZE A PROMOTION FOR AT LEAST ONE YEAR'S EXPERIENCE IN WORK OF THE CHARACTER PERFORMED IN GRADE 3 OR BETTER. ACCORDINGLY, IT REASONABLY MAY BE HELD THAT UPON TRANSFER OF AN INSPECTOR FROM ONE STATION TO ANOTHER AND FROM A HIGHER TO A LOWER GRADE THERE MAY BE INCLUDED IN DETERMINING THEREAFTER THE ONE YEAR'S SERVICE FOR THE PURPOSE OF PROMOTION TO GRADE 4, CONTINUOUS SERVICE PERFORMED IN A HIGHER GRADE OF IMMIGRANT INSPECTOR, AS, IN THIS CASE, SERVICE PERFORMED AS IN GRADE 5 WHILE ABROAD FROM THE DATE OF THE ACT OF MAY 29, 1928, TO JULY 1, 1929. IT IS TO BE UNDERSTOOD, HOWEVER, THAT SERVICE IN ANY OTHER CAPACITY THAN THAT OF IMMIGRANT INSPECTOR MAY NOT BE CREDITED FOR THE PURPOSE OF PROMOTION OF IMMIGRANT INSPECTORS. SITUATION SOMEWHAT ANALOGOUS IN THE POSTAL SERVICE WAS CONSIDERED IN DECISION OF THIS OFFICE DATED DECEMBER 6, 1927, 7 COMP. GEN. 367, IN WHICH IT WAS HELD (QUOTING FROM THE SYLLABUS):

WHERE THERE IS A REINSTATEMENT OR TRANSFER OF A REGULAR CLERK IN FIRST AND SECOND CLASS POST OFFICES OR CARRIER IN THE CITY DELIVERY SERVICE TO THE POSITION OF SUBSTITUTE IN THE SAME SERVICE, CREDIT MAY BE ALLOWED FOR SERVICE AS A REGULAR CLERK OR CARRIER IN ORDER LATER TO RESTORE THE REINSTATED OR TRANSFERRED CLERK OR CARRIER TO THE REGULAR GRADE PREVIOUSLY HELD.

NO FURTHER OBJECTION WILL BE MADE TO THE PROMOTION OF IMMIGRANT INSPECTOR JOHNSON FROM GRADE 3, $2,500 PER ANNUM, TO GRADE 4, $2,700 PER ANNUM, EFFECTIVE JULY 1, 1929, AND TO PAYMENT OF SALARY AT THE RATE OF $2,700 THEREAFTER, BUT THE OVERPAYMENT MADE TO HIM FOR THE PERIOD FROM JULY 1, 1928, TO JANUARY 31, 1929, SHOULD BE ADJUSTED FORTHWITH.