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B-104080, DEC. 2, 1959

B-104080 Dec 02, 1959
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THEREBY FAILED TO RECEIVE A PERIODIC PAY INCREASE IN GRADE GS-12 WHICH HE WOULD HAVE RECEIVED IF HE HAD REMAINED IN GRADE GS-12. IF HE WERE ENTITLED TO SUCH GRADE UPON DEMOTION? * * * UNTIL THE EXPIRATION OF A PERIOD OF TWO YEARS IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF SUCH REDUCTION IN GRADE * * * TO RECEIVE THE RATE OF BASIC COMPENSATION TO WHICH HE WAS ENTITLED IMMEDIATELY PRIOR TO SUCH REDUCTION IN GRADE * * *.'. SIMILAR PROVISIONS ARE CONTAINED IN SECTION 507 (B) OF THE ACT. PROVIDES SO FAR AS IS PERTINENT THAT ANY EMPLOYEE WHO AT ANY TIME AFTER JUNE 17. IS REDUCED IN GRADE FOR OTHER THAN PERSONAL CAUSE AND WHO FOR TWO CONTINUOUS YEARS IMMEDIATELY PRIOR TO SUCH REDUCTION IN GRADE SERVED IN THE SAME DEPARTMENT AND IN THE SAME OR HIGHER GRADE.

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B-104080, DEC. 2, 1959

TO THE HONORABLE ROGER W. JONES, CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:

ON NOVEMBER 5, 1959, THE ACTING CHAIRMAN OF THE COMMISSION, ENCLOSED A COPY OF A PROPOSED REGULATION DESIGNED TO IMPLEMENT SECTION 507 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1107, AS AMENDED BY PUBLIC LAW 85- 737, APPROVED AUGUST 23, 1958, AND REQUESTED OUR COMMENTS THEREON. THE PROPOSED REGULATION PRESENTS IN ESSENCE THE FOLLOWING QUESTIONS:

1. WOULD AN EMPLOYEE WHO WORKS IN GRADE GS-12, THEN PROMOTED IN GRADE GS- 13--- THE COMBINED PERIOD COVERING AT LEAST TWO YEARS--- AND THEN DEMOTED TO GRADE GS-11 BE ENTITLED TO THE GRADE GS-12 RATE?

2. WOULD AN EMPLOYEE IN GRADE GS-13, THEN DEMOTED IN GRADE GS-12-- THE COMBINED PERIOD COVERING AT LEAST TWO YEARS--- AND FURTHER DEMOTED TO GRADE GS-11 BE ENTITLED TO THE GRADE GS-12 RATE?

3. WOULD AN EMPLOYEE WHO HAD BEEN PROMOTED FROM GRADE GS-12 TO GRADE GS- 13 BEFORE HIS DEMOTION TO GRADE GS-11, AND THEREBY FAILED TO RECEIVE A PERIODIC PAY INCREASE IN GRADE GS-12 WHICH HE WOULD HAVE RECEIVED IF HE HAD REMAINED IN GRADE GS-12, BE ENTITLED TO SERVICE CREDIT FOR THE ENTIRE PERIOD IN GRADES GS-12 AND GS-13 IN ARRIVING AT THE STEP IN GRADE GS-12, IF HE WERE ENTITLED TO SUCH GRADE UPON DEMOTION?

SECTION 507 (A) OF PUBLIC LAW 85-737 APPROVED AUGUST 23, 1958, PROVIDES IN PART AS FOLLOWS:

"/A) SUBJECT TO THE LIMITATIONS CONTAINED IN SUBSECTION (C) OF THIS SECTION, EACH OFFICER OR EMPLOYEE SUBJECT TO THIS ACT---

"/4) WHO, FOR TWO CONTINUOUS YEARS IMMEDIATELY PRIOR TO SUCH REDUCTION IN GRADE, SERVED * * * IN THE SAME GRADE OR IN THE SAME AND HIGHER GRADES;

"SHALL BE ENTITLED, * * * UNTIL THE EXPIRATION OF A PERIOD OF TWO YEARS IMMEDIATELY FOLLOWING THE EFFECTIVE DATE OF SUCH REDUCTION IN GRADE * * * TO RECEIVE THE RATE OF BASIC COMPENSATION TO WHICH HE WAS ENTITLED IMMEDIATELY PRIOR TO SUCH REDUCTION IN GRADE * * *.'

SIMILAR PROVISIONS ARE CONTAINED IN SECTION 507 (B) OF THE ACT.

SECTION 507 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1107, AS AMENDED BY SECTION 1 (A) OF PUBLIC LAW 85-737, PROVIDES SO FAR AS IS PERTINENT THAT ANY EMPLOYEE WHO AT ANY TIME AFTER JUNE 17, 1956, IS REDUCED IN GRADE FOR OTHER THAN PERSONAL CAUSE AND WHO FOR TWO CONTINUOUS YEARS IMMEDIATELY PRIOR TO SUCH REDUCTION IN GRADE SERVED IN THE SAME DEPARTMENT AND IN THE SAME OR HIGHER GRADE, SHALL BE ENTITLED TO RECEIVE FOR TWO YEARS THE BASIC COMPENSATION TO WHICH HE WAS ENTITLED IMMEDIATELY PRIOR TO SUCH REDUCTION IN GRADE.

WHILE THE PHRASE "IN THE SAME GRADE OR IN THE SAME AND HIGHER GRADES" IS NOT DEFINED IN THE STATUTE, IN THE ABSENCE OF ANYTHING IN THE LEGISLATIVE HISTORY TO INDICATE OTHERWISE, WE WOULD APPLY THE LITERAL MEANING OF THE TERM. CONSIDERING THIS PHRASE IN CONJUNCTION WITH THE REST OF THE STATUTE IT APPEARS TO US THAT "IN THE SAME GRADE" MEANS THE GRADE OCCUPIED BY THE EMPLOYEE AT THE TIME OF HIS DOWNGRADING AND NOT THE GRADE TO WHICH DOWNGRADED. IT FOLLOWS THAT THE PHRASE ,AND HIGHER GRADES" MEANS ANY GRADES HELD DURING THE TWO YEAR CONTINUOUS PERIOD PRIOR TO THE REDUCTION THAT WERE HIGHER THAN THE GRADE FROM WHICH DOWNGRADED.

THEREFORE, THE FIRST AND THIRD QUESTIONS ARE ANSWERED IN THE NEGATIVE. THE SECOND QUESTION IS ANSWERED IN THE AFFIRMATIVE.

CONCERNING THE PROPOSED REGULATION, 25.409 (B), UPON WHICH THE ACTING CHAIRMAN REQUESTED OUR COMMENT, WE ARE UNABLE TO CONCUR THAT IT IS A PROPER INTERPRETATION OF THE TERM "IN THE SAME AND HIGHER GRADES.' LIEU THEREOF WE SUGGEST FOR YOUR CONSIDERATION LANGUAGE ALONG THE LINES OF THE FOLLOWING:

(B) SERVICE IN SAME AND HIGHER GRADES. THE EMPLOYEE HAS HAD TWO YEARS OF CONTINUOUS SERVICE IN THE SAME AND HIGHER GRADES WHEN THE GRADE HELD BY THE EMPLOYEE IMMEDIATELY PRIOR TO DEMOTION IS THE LOWEST GRADE HELD DURING THE REQUIRED TWO-YEAR PERIOD.

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