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B-151483, JANUARY 14, 1964, 43 COMP. GEN. 507

B-151483 Jan 14, 1964
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WAS DEMOTED TO GS -10 WITH SALARY RETENTION. WAS REPROMOTED TO GS-12. WHEN AN EMPLOYEE WITH A RETAINED RATE IS PROMOTED BACK TO THE GRADE FROM WHICH DEMOTED. APPLY SO THAT IF HIS EXISTING RATE IS CONTINUED UNDER SECTION 802 (B) OF THE CLASSIFICATION ACT. IT IS A RETAINED RATE SUBJECT TO EXPIRATION? 2. ANOTHER QUESTION ARISES BECAUSE THE DECISION MADE SOME RATES TEMPORARY WHICH THE AGENCIES AND EMPLOYEES CONCERNED BELIEVED WERE PERMANENT. WHERE A PROMOTION WAS PROCESSED AND THE PROMOTION RULE CITED AS THE AUTHORITY UNDER WHICH THE RATE WAS FIXED. THE AGENCY NOW DETERMINES THAT IF IT HAD KNOWN THE RATE UNDER THAT AUTHORITY TO BE TEMPORARY IT WOULD HAVE FIXED THE RATE UNDER THE HIGHEST-PREVIOUS RATE.

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B-151483, JANUARY 14, 1964, 43 COMP. GEN. 507

COMPENSATION - PROMOTIONS - SUBSEQUENT TO DOWNGRADING AN EMPLOYEE WHO, UPON REPROMOTION TO HIS FORMER GRADE WHILE RECEIVING SALARY RETENTION BENEFITS UNDER SECTION 507 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1107, HAS HIS COMPENSATION FIXED UNDER SECTION 802 (B) OF THE ACT, 5 U.S.C. 1132 (B), AT A RATE THAT EQUALS BOTH HIS RETAINED RATE AND HIS HIGHEST PREVIOUS RATE MUST BE REGARDED AS RECEIVING A PERMANENT RATE IN THE GRADE TO WHICH PROMOTED RATHER THAN AS RECEIVING A RETAINED RATE SUBJECT TO LATER ADJUSTMENT AND THE REPROMOTION MUST BE CONSTRUED AS AN EQUIVALENT INCREASE IN COMPENSATION FOR THE COMMENCEMENT OF A NEW WAITING PERIOD FOR THE NEXT STEP INCREASE.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 14, 1964:

YOUR LETTER OF NOVEMBER 20, 1963, ACKNOWLEDGED DECEMBER 6, PRESENTS THE CASE OF AN EMPLOYEE WHO ON OCTOBER 30, 1961, RECEIVED A WITHIN GRADE INCREASE TO THE THIRD RATE OF GS-12; ON OCTOBER 1, 1962, WAS DEMOTED TO GS -10 WITH SALARY RETENTION, THE AGENCY SELECTING THE MAXIMUM SCHEDULED SEVENTH RATE AS HIS POST-RETENTION RATE; AND ON OCTOBER 27, 1963, WAS REPROMOTED TO GS-12, THIRD RATE. YOU ASK THE FOLLOWING QUESTIONS:

1. WHEN AN EMPLOYEE WITH A RETAINED RATE IS PROMOTED BACK TO THE GRADE FROM WHICH DEMOTED, DOES YOUR DECISION B-151483 OF JUNE 18, 1963, APPLY SO THAT IF HIS EXISTING RATE IS CONTINUED UNDER SECTION 802 (B) OF THE CLASSIFICATION ACT, IT IS A RETAINED RATE SUBJECT TO EXPIRATION?

2. WOULD THE EMPLOYEE IN THE ABOVE EXAMPLE QUALIFY FOR ADVANCEMENT TO THE FOURTH RATE BY VIRTUE OF HIS SERVICE OF MORE THAN FIFTY-TWO WEEKS WITHOUT AN INCREASE IN SALARY (ASSUMING A CERTIFICATION OF ACCEPTABLE LEVEL OF COMPETENCE/?

3. IF THE AGENCY APPLIED THE HIGHEST-PREVIOUS-RATE RULE AND SELECTED THE THIRD RATE OF GS-12 AS HIS INITIAL RATE ON A PERMANENT BASIS, WOULD HE QUALIFY FOR SUCH ADVANCEMENT? IF NOT, WHEN WOULD SUCH ADVANCEMENT BE DUE?

4. ANOTHER QUESTION ARISES BECAUSE THE DECISION MADE SOME RATES TEMPORARY WHICH THE AGENCIES AND EMPLOYEES CONCERNED BELIEVED WERE PERMANENT. WHERE A PROMOTION WAS PROCESSED AND THE PROMOTION RULE CITED AS THE AUTHORITY UNDER WHICH THE RATE WAS FIXED, BUT THE AGENCY NOW DETERMINES THAT IF IT HAD KNOWN THE RATE UNDER THAT AUTHORITY TO BE TEMPORARY IT WOULD HAVE FIXED THE RATE UNDER THE HIGHEST-PREVIOUS RATE, IS THERE ANY OBJECTION TO ITS CORRECTING THE RECORD TO SHOW THE HIGHEST-PREVIOUS-RATE RULE (C.S. REG. 25.103 (B) ( AS AUTHORITY FOR THE RATE, THUS ESTABLISHING IT AS A PERMANENT RATE AS ORIGINALLY INTENDED?

OUR DECISION B-151483, JUNE 18, 1963, 42 COMP. GEN. 702, TO WHICH YOU REFER, CONCERNED THE PROMOTION OF A RETAINED RATE EMPLOYEE TO AN INTERMEDIATE GRADE AND HELD THAT SINCE THE MAXIMUM RATE HE COULD RECEIVE WITHIN THE SCHEDULED RATES OF THE GRADE UPON THE PROMOTION WOULD BE LESS THAN THE RETAINED RATE HE CONTINUED UNDER SECTION 507 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1107, TO BE ENTITLED TO THE RETAINED RATE FOR THE REMAINDER OF THE 2-YEAR PERIOD. IN REGARD TO THE STATEMENT IN THE NEXT TO THE LAST PARAGRAPH OF THAT DECISION IT WAS NOT OUR PURPOSE TO IMPLY THAT UNDER THE HIGHEST PREVIOUS-RATE RULE THE AGENCY CONCERNED COULD NOT HAVE EXERCISED ITS DISCRETION TO GRANT THE MAXIMUM RATE ($8,700) AT THE TIME OF THE PROMOTION TO GRADE GS-9 TO TAKE EFFECT UPON TERMINATION OF THE RETAINED RATE. HOWEVER, IT IS NOT PERCEIVED HOW THE REQUIRED PRESERVATION OF THE BENEFITS GRANTED BY SECTION 507 IN THAT CASE APPLIES TO THE FACTUAL SITUATION UPON WHICH THE QUESTIONS IN YOUR LETTER OF NOVEMBER 20, 1963, ARE PREDICATED.

AS WE UNDERSTAND THE FACTS IN THE INSTANT CASE, THE EMPLOYEE HAS BEEN REPROMOTED TO HIS FORMER GRADE. HIS RATE OF COMPENSATION HAS BEEN FIXED AT THE INITIAL RETAINED RATE AS ADJUSTED BY THE APPLICABLE SCHEDULE OF PUBLIC LAW 87-793, 76 STAT. 843, 5 U.S.C. 1113 (B), AND HIS PRESENT RATE CORRESPONDS WITH BOTH HIS EXISTING RATE AND HIS HIGHEST PREVIOUS RATE.

IF THAT UNDERSTANDING IS CORRECT THERE WOULD SEEM TO BE NO SOUND REASON FOR VIEWING HIS RATE ($10,105; GS-12, STEP 3) AT THE TIME OF THE REPROMOTION AS BEING ANY OTHER THAN A PERMANENT RATE RATHER THAN A RETAINED RATE SUBJECT TO LATER ADJUSTMENT. THEREFORE, QUESTION 1 IS ANSWERED IN THE NEGATIVE.

CONCERNING QUESTION 2, THE LAST SENTENCE OF SECTION 802 (B) OF THE CLASSIFICATION ACT OF 1949, APPROVED OCTOBER 28, 1949, CH. 782, 63 STAT. 969, AS AMENDED BY THE FEDERAL SALARY REFORM ACT OF 1962, 5 U.S.C. 1132 (B), REQUIRES THE USE OF CONSTRUCTIVE WITHIN-GRADE INCREASES IN DETERMINING THE RATE TO BE PAID AN EMPLOYEE WHO IS PROMOTED WHILE RECEIVING SAVED RATE OF COMPENSATION. THEREFORE, UPON REPROMOTION ON OCTOBER 27, 1963, THE EMPLOYEE MUST BE CONSIDERED AS HAVING RECEIVED AN EQUIVALENT INCREASE IN COMPENSATION, AND THE WAITING PERIOD FOR THE NEXT STEP INCREASE WOULD COMMENCE ON THE DATE OF THE REPROMOTION ON OCTOBER 27, 1963, THE EMPLOYEE MUST BE CONSIDERED AS

IN VIEW OF OUR REPLIES TO QUESTIONS 1 THROUGH 3, NO ANSWER TO QUESTION 4 APPEARS TO BE NECESSARY.

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