B-14697, FEBRUARY 14, 1941, 20 COMP. GEN. 451

B-14697, FEBRUARY 14, 1941, 20 COMP. GEN. 451

CIVIL SERVICE LAWS AND CLASSIFICATION ACT - EXEMPTIONS, JURISDICTION, ETC. AN EXECUTIVE ORDER MERELY AUTHORIZING THE CONTINUANCE OF CERTAIN GOVERNMENT EMPLOYEES IN THEIR POSITIONS WITHOUT REGARD TO THE REQUIREMENTS OF THE CIVIL SERVICE RULES DOES NOT EXEMPT THE POSITIONS FROM THE REQUIREMENTS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND WHILE THE PRESIDENT IS AUTHORIZED BY THE PROVISIONS OF THE CIVIL SERVICE LAW TO EXCEPT POSITIONS FROM CIVIL SERVICE, THERE IS NO PROVISION IN THE CLASSIFICATION ACT AS ORIGINALLY ENACTED OR AS AMENDED PRIOR TO THE ACT OF NOVEMBER 26, 1940, AUTHORIZING HIM TO EXEMPT POSITIONS FROM CLASSIFICATION. THE CLASSIFICATION ACT VESTS IN THE CIVIL SERVICE COMMISSION THE FINAL AUTHORITY TO ALLOCATE A POSITION IN THE PROPER GRADE AND THERE IS NO AUTHORITY FOR AN ADMINISTRATIVE OFFICE TO IGNORE THE COMMISSION'S ACTION AND, WITHOUT RESORTING TO THE ESTABLISHED APPEAL PROCEDURE, TO INCREASE AN EMPLOYEE'S SALARY TO A RATE IN EXCESS OF THE MAXIMUM RATE FOR THE GRADE IN WHICH HIS POSITION WAS ALLOCATED BY THE COMMISSION. WHERE THE EMPLOYEE'S SALARY RATE AT THE TIME OF INITIAL CLASSIFICATION OF HIS POSITION WAS ONE OF THE RATES OF THE GRADE IN WHICH HIS POSITION WAS ALLOCATED BY ACTION OF THE CIVIL SERVICE COMMISSION, NO CHANGE IN HIS SALARY RATE WAS REQUIRED BY REASON OF SUCH ACTION. SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939, PROHIBITING CHANGES DURING THE FISCAL YEAR 1940 IN COMPENSATION AND CLASSIFICATION OF PERSONNEL TRANSFERRED UNDER TITLE I OF SAID ACT, DID NOT SAVE TO AN EMPLOYEE DURING THE FISCAL YEAR 1940 A GRADE AND SALARY RATE ADMINISTRATIVELY FIXED PRIOR THERETO CONTRARY TO LAW. WHERE AN ADMINISTRATIVE OFFICE INCREASED AN EMPLOYEE'S SALARY TO A RATE IN EXCESS OF THE MAXIMUM RATE OF THE GRADE IN WHICH HIS POSITION WAS ALLOCATED BY CIVIL SERVICE COMMISSION, HE SHOULD BE REQUIRED TO REFUND ALL PAYMENTS IN EXCESS OF THE MAXIMUM RATE OF THE GRADE OR, IF PAYMENT OF SUCH MAXIMUM CAUSED THE AVERAGE RATE OF THE GRADE TO BE EXCEEDED, HE SHOULD MAKE REFUND ON THE BASIS OF A RATE WHICH DID NOT VIOLATE THE AVERAGE PROVISION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, FEBRUARY 14, 1941:

I HAVE YOUR LETTER OF JANUARY 27, 1941, AS FOLLOWS:

THE GENERAL QUESTION PRESENTED HEREWITH IS WHETHER, IN VIEW OF ALL THE CIRCUMSTANCES, THERE HAS BEEN ANY SUCH OVERPAYMENT OF SALARY TO AN EMPLOYEE OF THIS DEPARTMENT AS REQUIRES HIM TO MAKE RESTITUTION. THE MATERIAL CONSIDERATIONS ARE THESE:

1. SECTION 2 (A) OF THE BITUMINOUS COAL ACT OF 1937 (50 STAT. 72) PROVIDED THAT ALL EMPLOYEES OF THE NATIONAL BITUMINOUS COAL COMMISSION SHOULD BE APPOINTED AND THEIR COMPENSATION FIXED IN ACCORDANCE WITH THE PROVISIONS OF THE CIVIL SERVICE LAWS AND THE CLASSIFICATION ACT OF 1923, AS AMENDED, EXCEPTING, HOWEVER,"THE SECRETARY, A CLERK TO EACH COMMISSIONER, THE ATTORNEYS, THE MANAGERS AND EMPLOYEES OF THE STATISTICAL BUREAUS HEREINAFTER PROVIDED FOR, AND SUCH SPECIAL AGENTS, TECHNICAL EXPERTS, AND EXAMINERS AS THE COMMISSION MAY REQUIRE.'

2. RELYING UPON THE EXCEPTION, THE COAL COMMISSION, ON OR ABOUT DECEMBER 1, 1937, APPOINTED MR. W. B. ROBERTS III, AN EXAMINER, FIXING HIS COMPENSATION AT $3,600 A YEAR, AND THEN OR SHORTLY THEREAFTER DESIGNATED HIM AS CHIEF, CODE MEMBERSHIP SECTION, ASSIGNED HIM TO THE OFFICE OF THE SECRETARY OF THE COMMISSION AS AN ASSISTANT TO THE SECRETARY AND CHARGED HIM WITH THE PERFORMING OF CERTAIN SPECIFIED DUTIES AND FUNCTIONS.

3. DURING THE FOLLOWING SPRING (THE QUESTION SEEMS FIRST TO HAVE ARISEN IN MARCH, 1938) THE CIVIL SERVICE COMMISSION DECIDED, AND ACCORDINGLY SO ADVISED THE COAL COMMISSION, THAT THE POSITION OF " CHIEF, CODE MEMBERSHIP SECTION" (AMONG SEVERAL OTHERS) MIGHT NOT PROPERLY BE CONSIDERED AS AN EXEMPTED POSITION UNDER THE BITUMINOUS COAL ACT; CLASSIFIED THE POSITION OF " CHIEF, CODE MEMBERSHIP SECTION" AS CAF-9; AND ISSUED A DISPLACEMENT CERTIFICATE AGAINST MR. ROBERTS ON THE GROUND THAT HE DID NOT HAVE A CLASSIFIED STATUS.

4. THE COAL COMMISSION REQUESTED A TEMPORARY CERTIFICATE FOR THE CONTINUANCE OF MR. ROBERTS (AND TWO OTHER EMPLOYEES) IN EMPLOYMENT PENDING AN ATTEMPT TO PROCURE AN EXECUTIVE ORDER ESPECIALLY AUTHORIZING THE CONTINUED EMPLOYMENT. THE CIVIL SERVICE COMMISSION GRANTED AUTHORITY (REFERRING TO SECTION 1 OF RULE VIII) FOR THE RETENTION OF SUCH EMPLOYEES IN THEIR THEN POSITIONS UNTIL IT SHOULD HAVE BEEN DETERMINED WHETHER THE PROPOSED EXECUTIVE ORDER WOULD ISSUE.

5. AN EXECUTIVE ORDER ISSUED IN DUE COURSE, AS FOLLOWS:

" EXECUTIVE ORDER

" AUTHORIZING CERTAIN PERSONS TO BE CONTINUED IN THEIR PRESENT POSITIONS IN THE NATIONAL BITUMINOUS COAL COMMISSION

"BY VIRTUE OF AND PURSUANT TO THE AUTHORITY VESTED IN ME BY THE PROVISIONS OF PARAGRAPH EIGHTH TO SUBDIVISION SECOND OF SECTION 2 OF THE CIVIL SERVICE ACT (22 STAT. 403, 404), IT IS HEREBY ORDERED THAT EDGAR C. FARIS, JR., ASSISTANT SECRETARY, WILLIAM B. ROBERTS III, CHIEF, CODE MEMBERSHIP SECTION, AND LEONARD W. MOSBY, DIRECTOR OF PUBLIC RELATIONS, MAY BE CONTINUED IN THEIR RESPECTIVE POSITIONS IN THE OFFICE OF THE SECRETARY OF THE NATIONAL BITUMINOUS COAL COMMISSION WITHOUT REGARD TO THE REQUIREMENTS OF THE CIVIL SERVICE RULES AND WITHOUT THEREBY ACQUIRING A CLASSIFIED STATUS.

" FRANKLIN D. ROOSEVELT

" THE WHITE HOUSE,

" AUG. 2, 1938.

7943"

6. MR. ROBERTS ACCORDINGLY CONTINUED IN HIS POSITION, AND EFFECTIVE JUNE 28, 1939, HIS COMPENSATION WAS INCREASED FROM $3,600 TO $4,200 A YEAR.

7. EFFECTIVE JULY 1, 1939, MR. ROBERTS WAS TRANSFERRED, "WITHOUT CHANGE IN POSITION, GRADE, OR SALARY," TO THIS DEPARTMENT IN ACCORDANCE WITH THE PROVISIONS OF THE REORGANIZATION ACT OF APRIL 3, 1939 (53 STAT. 561), AND REORGANIZATION PLAN NO. II (53 STAT. 1431). THE REORGANIZATION ACT CONTAINED THE NOW WELL-KNOWN PROHIBITION--- SECTION 10 (B/--- AGAINST CHANGING, UNTIL AFTER THE EXPIRATION OF THE FISCAL YEAR IN WHICH A TRANSFER WAS EFFECTED, THE CLASSIFICATION OR COMPENSATION OF ANY EMPLOYEE SO TRANSFERRED. WE QUOTE SECTION 10 (B) FOR READY REFERENCE:

"/B) ANY TRANSFER OF PERSONNEL UNDER THIS TITLE SHALL BE WITHOUT CHANGE IN CLASSIFICATION OR COMPENSATION, EXCEPT THAT THIS REQUIREMENT SHALL NOT OPERATE AFTER THE END OF THE FISCAL YEAR DURING WHICH THE TRANSFER IS MADE TO PREVENT THE ADJUSTMENT OF CLASSIFICATION OR COMPENSATION TO CONFORM TO THE DUTIES TO WHICH SUCH TRANSFERRED PERSONNEL MAY BE ASSIGNED.'

8. EFFECTIVE JUNE 28, 1939, THEREAFTER DURING THE ENTIRE FISCAL YEAR BEGINNING JULY 1, 1939, AND UNTIL DECEMBER 16, 1940, MR. ROBERTS CONTINUED TO DRAW COMPENSATION AT THE RATE OF $4,200 A YEAR.

9. IN SEPTEMBER 1940, THIS DEPARTMENT ASKED THE CIVIL SERVICE COMMISSION TO ADVISE WHETHER THE EXECUTIVE ORDER OF AUGUST 2, 1939 (1938), EXCLUDED THE POSITIONS REFERRED TO, AS WELL AS THE NAMED INDIVIDUALS, FROM THE PROVISIONS OF THE CLASSIFICATION ACT AND THE CIVIL SERVICE RULES, AND TO ALLOCATE THE POSITIONS IN APPROPRIATE GRADES IF THERE WERE NO SUCH EXCLUSIONS.

10. BY LETTER DATED OCTOBER 29, 1940, THE CIVIL SERVICE COMMISSION ADVISED THIS DEPARTMENT THAT THE EXECUTIVE ORDER DID NOT EXEMPT THE POSITIONS FROM THE CLASSIFICATION ACT, AND THAT THE POSITION OCCUPIED BY MR. ROBERTS HAD BEEN ALLOCATED TO GRADE CAF-9.

11. THE DEPARTMENT APPEALED THE ALLOCATION, CONTENDING THAT CAF-10 RATHER THAN CAF-9 WAS PROPER. THE CIVIL SERVICE COMMISSION DENIED THE APPEAL.

12. THE COMPENSATION OF MR. ROBERTS WAS REDUCED, EFFECTIVE DECEMBER 16, 1949, FROM $4,200 A YEAR TO $3,800 A YEAR.

13. THE MAXIMUM RATE OF PAY FOR GRADE CAF-9 IS $3,800 A YEAR.

FROM THE FOREGOING IT IS APPARENT THAT THE GENERAL QUESTION OF OVERPAYMENT AND RESTITUTION IS COMPOSED OF SEVERAL SUBSIDIARY QUESTIONS.

FIRST, IF THE EXECUTIVE ORDER OF AUGUST 2, 1939 (1938), EXEMPTED THE POSITIONS AS WELL AS THE INDIVIDUALS, NO FURTHER DISCUSSION IS NECESSARY. IN THAT EVENT, MR. ROBERTS, AS CHIEF, CODE MEMBERSHIP SECTION, WAS AN EXEMPTED INDIVIDUAL EMPLOYED IN AN EXEMPTED POSITION, AND THE MATTER OF FIXING HIS COMPENSATION LAY WITHIN THE SOUND DISCRETION OF THE COAL COMMISSION. THIS WAS THE VIEW OF THE EXECUTIVE ORDER OBVIOUSLY TAKEN BY THE COAL COMMISSION, BUT WAS NOT AND IS NOT THE VIEW TAKEN BY THE CIVIL SERVICE COMMISSION (SEE PARAGRAPH NUMBERED 10, ABOVE).

SECOND, IF THE VIEW TAKEN OF THE EXECUTIVE ORDER BY THE COAL COMMISSION WAS AND IS INCORRECT, THEN THERE ARISES THE QUESTION OF THE EFFECT, IF ANY, TO BE GIVEN TO SECTION 10 (B) OF THE REORGANIZATION ACT. WHEN MR. ROBERTS WAS TRANSFERRED TO THIS DEPARTMENT ON JULY 1, 1939, SUCH TRANSFER WAS REQUIRED TO BE, ACCORDING TO THE LETTER OF THE STATUTE,"WITHOUT CHANGE IN CLASSIFICATION OR COMPENSATION.' THIS DEPARTMENT, WITHOUT EXPRESS AUTHORIZATION FROM YOUR OFFICE, NATURALLY HESITATES TO CONSTRUE THE STATUE AS IF IT READ "* * * WITHOUT CHANGE IN CLASSIFICATION (PROVIDED SUCH CLASSIFICATION, IN THE OPINION OF THE CIVIL SERVICE COMMISSION, BE CORRECT) OR COMPENSATION (PROVIDED SUCH COMPENSATION DOES NOT EXCEED THE MAXIMUM RATE OF PAY FOR THE POSITION AS CLASSIFIED BY THE CIVIL SERVICE COMMISSION).'

THIRD, IF THE STATUTE HAD THE EFFECT OF INSULATING MR. ROBERTS OR HIS SALARY FROM CHANGES DURING THE FISCAL YEAR, ENDED JUNE 30, 1940, PRESUMABLY THERE WOULD STILL REMAIN THE QUESTION OF POSSIBLE OVER PAYMENTS FROM JUNE 28, 1939, THROUGH JUNE 30, 1939, AND FROM JULY 1, 1940, THROUGH DECEMBER 15, 1940.

ACCORDINGLY, WE ASK WHETHER, IN YOUR OPINION, THE EXECUTIVE ORDER OF AUGUST 2, 1939 (1938), EXEMPTED THE POSITIONS AS WELL AS THE INDIVIDUALS. IF YOUR ANSWER BE IN THE NEGATIVE, WE THEN ASK WHETHER SECTION 10 (B) OF THE REORGANIZATION ACT IS TO BE CONSTRUED AS ASSURING MR. ROBERTS THE RIGHT TO RECEIVE (AND RETAIN) COMPENSATION AT THE RATE OF $4,200 A YEAR DURING THE FISCAL YEAR FROM JULY 1, 1939, TO JUNE 30, 1940. FINALLY, IF YOUR ANSWER TO THE QUESTION INVOLVING SECTION 10 (B) IS IN THE AFFIRMATIVE WE ASK WHETHER, FROM JUNE 28, 1939, THROUGH JUNE 30, 1939, AND FROM JULY 1, 1940, THROUGH DECEMBER 15, 1940, PAYMENTS AT THE RATE OF $4,200 A YEAR CONSTITUTED OVER PAYMENTS FOR WHICH WE ARE REQUIRED TO DEMAND RESTITUTION FROM THE EMPLOYEE.

SECTION 2 (A) OF THE BITUMINOUS COAL ACT OF 1937, APPROVED APRIL 26, 1937, 50 STAT. 72, 73, PROVIDES, IN PERTINENT PART, AS FOLLOWS:

* * * THE COMMISSION IS AUTHORIZED TO APPOINT AND FIX THE COMPENSATION AND DUTIES OF A SECRETARY AND NECESSARY PROFESSIONAL, CLERICAL, AND OTHER ASSISTANTS. WITH THE EXCEPTION OF THE SECRETARY, A CLERK TO EACH COMMISSION, THE ATTORNEYS, THE MANAGERS AND EMPLOYEES OF THE STATISTICAL BUREAUS HEREINAFTER PROVIDED FOR, AND SUCH SPECIAL AGENTS, TECHNICAL EXPERTS, AND EXAMINERS AS THE COMMISSION MAY REQUIRE, ALL EMPLOYEES OF THE COMMISSION SHALL BE APPOINTED AND THEIR COMPENSATION FIXED IN ACCORDANCE WITH THE PROVISIONS OF THE CIVIL SERVICE LAWS AND THE CLASSIFICATION ACT OF 1923, AS AMENDED. * * *

IN DECISION OF JANUARY 3, 1938, TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, 17 COMP. GEN. 537, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

WHERE A STATUTE EXPRESSLY EXCEPTS ATTORNEYS, SPECIAL AGENTS, EXAMINERS, ETC., FROM THE PROVISIONS OF EITHER THE CIVIL-SERVICE LAWS AND REGULATIONS, AND/OR THE CLASSIFICATION ACT, AS AMENDED, IT IS FOR THE CIVIL SERVICE COMMISSION TO DETERMINE WHETHER A PARTICULAR POSITION, OR CLASS OF POSITIONS, FALLS WITHIN THE EXCEPTION. 16 COMP. GEN. 703, AMPLIFIED.

WHERE A STATUTE EXPRESSLY EXCEPTS EXPERTS, ATTORNEYS, ETC., FROM THE PROVISIONS OF THE CIVIL-SERVICE AND REGULATIONS AND/OR THE CLASSIFICATION ACT, AS AMENDED, THE EXCEPTED DESIGNATIONS REFER TO BOTH POSITIONS AND PERSONS. 16 COMP. GEN. 703, AMPLIFIED.

A PERSON APPOINTED WITHOUT REGARD TO CIVIL-SERVICE LAWS AND REGULATIONS UNDER A DESIGNATION OF EXPERT, ATTORNEY, ETC., EXPRESSLY EXCEPTED BY STATUTE FROM SUCH LAWS AND REGULATIONS, MAY NOT, IMMEDIATELY UPON APPOINTMENT, OR THEREAFTER, BE ASSIGNED TO WORK OF A POSITION IN THE COMPETITIVE CLASSIFIED SERVICE. 16 COMP. GEN. 703, AMPLIFIED.

A PERSON APPOINTED AS EXPERT, ATTORNEY, ETC., WITHOUT REGARD TO THE CLASSIFICATION ACT, AS AMENDED, WITH SALARY FIXED ACCORDINGLY, MAY NOT BE ASSIGNED TO DUTIES AND RESPONSIBILITIES THAT WOULD CAUSE HIS POSITION TO FALL UNDER SAID ACT. 16 COMP. GEN. 703, AMPLIFIED.

WHERE A STATUTE EXCEPTS POSITIONS OF A DESIGNATED CLASS, SUCH AS "ATTORNEYS" AND "ENGINEERS" FROM THE CIVIL-SERVICE LAWS AND REGULATIONS AND/OR CLASSIFICATION ACT, AS AMENDED, AND THE DUTIES OF THE POSITION SOUGHT TO BE FILLED REQUIRE THE SERVICES OF AN ATTORNEY OR ENGINEER AS THE CASE MAY BE, THE EXCEPTION APPLIES, NOTWITHSTANDING THE POSITION COULD BE FILLED SATISFACTORILY UNDER THE CIVIL-SERVICE LAWS AND REGULATIONS AND AT RATES FIXED PURSUANT TO THE CLASSIFICATION ACT, AS AMENDED. COMPARE 17 COMP. GEN. 797. THERE IS FOR NOTING THAT THE DECISION, THE SYLLABUS OF WHICH IS QUOTED ABOVE, WAS RENDERED AND PUBLISHED BY THIS OFFICE PRIOR TO THE TIME (1MARCH 1938) THAT YOU STATE THE CIVIL SERVICE COMMISSION FIRST QUESTIONED THE STATUS AND CLASSIFICATION OF THE POSITION OF CHIEF, CODE MEMBERSHIP SECTION, OCCUPIED BY MR. ROBERTS.

REGARDING THE SCOPE AND PURPOSES OF (1) THE CIVIL SERVICE LAWS AND REGULATIONS AND (2) THE CLASSIFICATION ACT OF 1923, AS AMENDED, IT WAS STATED IN DECISION OF AUGUST 5, 1939, 19 COMP. GEN. 160, IN PERTINENT PART, AS FOLLOWS:

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 EXEMPTED FROM COMPETITIVE EXAMINATION DOES NOT EXEMPT THE POSITIONS FROM THE CLASSIFICATION ACT. COMP. GEN. 827; 18 ID. 223.

UNLIKE THE AUTHORITY VESTED IN THE PRESIDENT BY THE TERMS OF THE CIVIL SERVICE LAW TO EXCEPT POSITIONS FROM THE COMPETITIVE CLASSIFIED CIVIL SERVICE BY EXECUTIVE ORDER, THERE IS NO PROVISION IN THE CLASSIFICATION ACT AS ORIGINALLY ENACTED OR AS AMENDED PRIOR TO THE ACT OF NOVEMBER 26, 1940, 54 STAT. 1211, AUTHORIZING THE PRESIDENT BY EXECUTIVE ORDER TO EXEMPT POSITIONS FROM THE CLASSIFICATION ACT WHERE THE POSITIONS ARE OTHERWISE REQUIRED BY LAW TO BE CLASSIFIED UNDER SAID ACT. HENCE, THE EXECUTIVE ORDER DATED AUGUST 2, 1938, QUOTED IN YOUR LETTER, DOES NOT, AND COULD NOT UNDER THE TERMS OF THE CONTROLLING STATUTE, HAVE THE EFFECT OF EXEMPTING THE POSITION IN QUESTION FROM THE REQUIREMENTS OF THE CLASSIFICATION ACT. THE AUTHORITY VESTED IN THE PRESIDENT BY SECTION 4 OF THE ACT OF NOVEMBER 26, 1940, 54 STAT. 1214, TO EXEMPT POSITIONS FROM THE CLASSIFICATION ACT OF 1923, HAS NO APPLICATION IN THIS CASE.

THE CLASSIFICATION ACT VESTS IN THE CIVIL SERVICE COMMISSION THE FINAL AUTHORITY TO ALLOCATE A POSITION IN THE PROPER GRADE. SEE 7 COMP. GEN. 820; 8 ID. 441. COMPARE 5 ID. 406. WHILE AN APPEAL PROCEDURE HAS BEEN SET UP PURSUANT TO WHICH AN ADMINISTRATIVE OFFICE MAY APPEAL THE ALLOCATION OF A PARTICULAR POSITION MADE BY THE CIVIL SERVICE COMMISSION-- - AND IT HAS BEEN HELD BY THIS OFFICE THAT THE FIXING OF A SALARY RATE IN ACCORDANCE WITH THE ACTION OF THE CIVIL SERVICE COMMISSION IN ALLOCATING A POSITION TO A PARTICULAR GRADE MAY BE DELAYED WHERE AN APPEAL IS TAKEN IMMEDIATELY (SEE 9 COMP. GEN. 325/--- THERE WAS NO AUTHORITY IN THE BITUMINOUS COAL COMMISSION IN THE INSTANT CASE TO IGNORE THE ACTION OF THE CIVIL SERVICE COMMISSION IN ALLOCATING MR. ROBERTS' POSITION IN GRADE CAF- 9 AND, WITHOUT APPEALING FROM SUCH ACTION, TO INCREASE HIS SALARY TO A RATE IN EXCESS OF ANY RATE UNDER SAID GRADE MORE THAN A YEAR AFTER SUCH ALLOCATION. BASED UPON THE CONTROLLING STATUTE AND THE DECISIONS ABOVE CITED, THIS OFFICE HAS NO ALTERNATIVE BUT TO CONCLUDE THAT THE ACTION OF THE CIVIL SERVICE COMMISSION TAKEN APPARENTLY IN MARCH 1938, OR THEREABOUTS, IN CLASSIFYING THE POSITION IN QUESTION IN GRADE CAF-9 WITH SALARY RANGE FROM $3,200 TO $3,800 PER ANNUM, WAS FINAL AND BINDING UPON THE BITUMINOUS COAL COMMISSION. AS THE SALARY RATE OF $3,600 PER ANNUM THEN BEING PAID THE EMPLOYEE IS ONE OF THE SALARY RATES OF THAT GRADE, NO CHANGE IN THE SALARY RATE WAS REQUIRED AT THAT TIME BY REASON OF THE ACTION OF THE CIVIL SERVICE COMMISSION. SEE 19 COMP. GEN. 20.

HOWEVER, THE ADMINISTRATIVE ACTION TAKEN JUNE 28, 1939, PURPORTING TO INCREASE THE SALARY RATE OF THE EMPLOYEE TO $4,200 PER ANNUM, WAS ILLEGAL AND WITHOUT FORCE OR EFFECT TO THE EXTENT THAT IT PURPORTED TO INCREASE THE RATE ABOVE $3,800 PER ANNUM, THE MAXIMUM RATE OF GRADE CAF 9. ALSO, THE INCREASE WITHIN THE RANGE OF GRADE CAF-9 ($3,600 TO $3,800) WOULD BE ILLEGAL TO THE EXTENT THAT SUCH ACTION MAY HAVE VIOLATED THE "AVERAGE PROVISION" APPEARING IN THE APPROPRIATION ACTS.

OBVIOUSLY, SECTION 10 (B) OF THE REORGANIZATION ACT DID NOT SAVE TO AN EMPLOYEE DURING THE FISCAL YEAR 1940 A GRADE AND SALARY RATE ADMINISTRATIVELY FIXED PRIOR THERETO CONTRARY TO LAW.

ACCORDINGLY, IT WILL BE NECESSARY TO ADJUST THE SALARY OF THE EMPLOYEE DURING THE PERIOD FROM JUNE 28, 1939, TO DECEMBER 15, 1940, INCLUSIVE, IN ACCORDANCE WITH THE CONTROLLING LAW AND DECISIONS. IF PAYMENT OF $3,800 PER ANNUM, THE MAXIMUM RATE OF GRADE CAF-9, ON JUNE 28, 1939, DID NOT CAUSE THE AVERAGE OF THE GRADE TO BE EXCEEDED, OR, IF ALREADY EXCEEDED, DID NOT CAUSE IT TO BE FURTHER EXCEEDED, THE EMPLOYEE SHOULD BE REQUIRED TO REFUND THE DIFFERENCE BETWEEN $3,800 AND $4,200 PER ANNUM FOR THE ENTIRE PERIOD. IF THE PAYMENT OF $3,800 PER ANNUM VIOLATED THE AVERAGE PROVISION ON JUNE 28, 1939, THE ADJUSTMENT SHOULD BE MADE FOR THE PERIOD IN QUESTION, IN WHOLE OR IN PART, ON THE BASIS OF A RATE, EITHER $3,700 OR $3,600 PER ANNUM, WHICH DID NOT VIOLATE THE AVERAGE PROVISION. FOR THE RULES IN COMPUTING THE AVERAGE, SEE 4 COMP. GEN. 77; ID. 333; ID. 459; 9 ID. 355.