B-128220, JUL. 13, 1956

B-128220, JUL. 13, 1956

TO THE HONORABLE PHILIP YOUNG, CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION:

YOUR LETTER OF JUNE 8, 1956, ASKS WHETHER OUR OFFICE FINDS ANY LEGAL OBJECTION TO THE PROPOSED REVISION OF CIVIL SERVICE REGULATIONS 25.102/A) AND 25.102/J), FEDERAL PERSONNEL MANUAL Z 1/317-318.

YOU SUBMIT A DRAFT OF TWO SUGGESTED REVISIONS, THE FIRST OF WHICH READS AS FOLLOWS:

"SEC. 25.102. DEFINITIONS.

"/A) NEW APPOINTMENT IS THE FIRST APPOINTMENT, REGARDLESS OF THE TENURE OF APPOINTMENT, AS A CIVILIAN OFFICER OR EMPLOYEE IN ANY BRANCH (EXECUTIVE, LEGISLATIVE, OR JUDICIAL) OF THE FEDERAL GOVERNMENT, OR IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA.

"SEC. 25.102

"/J) HIGHEST PREVIOUS RATE IS THE HIGHEST BASIC SALARY RATE PREVIOUSLY PAID TO A CIVILIAN EMPLOYEE IN ANY BRANCH (EXECUTIVE, LEGISLATIVE, OR JUDICIAL) OF THE FEDERAL GOVERNMENT, OR IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, IRRESPECTIVE OF WHETHER OR NOT SUCH POSITION IS SUBJECT TO THE PAY SCHEDULES OF THE CLASSIFICATIONS ACT. IF SUCH HIGHEST PREVIOUS RATE WAS EARNED IN A POSITION NOT SUBJECT TO THE CLASSIFICATION ACT, IT SHALL BE INCREASED ONLY BY THOSE AMENDMENTS TO THE CLASSIFICATION ACT OR OTHER APPLICABLE STATUTORY AMENDMENTS WHICH ARE ENACTED DURING A PERIOD WHEN THE EMPLOYEE WAS NOT A CIVILIAN SERVICE AS DESCRIBED ABOVE.'

THE ALTERNATE REVISION SUGGESTED IS AS FOLLOWS:

"SEC. 25.102. DEFINITIONS.

"/A) NEW APPOINTMENT IS THE FIRST APPOINTMENT, REGARDLESS OF THE TENURE OF APPOINTMENT, AS A FEDERAL CIVILIAN OFFICER OF EMPLOYEE IN ANY DEPARTMENT AS DEFINED IN SECTION 201/A) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, OR IN A MIXED OWNERSHIP CORPORATION, OR IN A POSITION IN THE LEGISLATIVE OR JUDICIAL BRANCH BEFORE TRANSFER IN ACCORDANCE WITH SECTION 2/B) OF PUBLIC LAW 880, 76TH CONGRESS, AS AMENDED (5 U.S.C. 631B).

"SEC. 25.102

"/J) HIGHEST PREVIOUS RATE IS THE HIGHEST BASIC SALARY RATE PREVIOUSLY PAID TO A FEDERAL CIVILIAN EMPLOYEE OCCUPYING A POSITION IN A DEPARTMENT AS DEFINED IN SECTION 201/A) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, OR IN A MIXED OWNERSHIP CORPORATION, OR IN A POSITION IN THE LEGISLATIVE OR JUDICIAL BRANCH, BEFORE TRANSFER IN ACCORDANCE WITH SECTION 2 (B) OF PUBLIC LAW 880, 76TH CONGRESS, AS AMENDED, IRRESPECTIVE OF WHETHER OR NOT SUCH POSITION IS SUBJECT TO THE PAY SCHEDULES OF THE CLASSIFICATION ACT. IF SUCH HIGHEST PREVIOUS RATE WAS EARNED IN A POSITION NOT SUBJECT TO THE CLASSIFICATION ACT, IT SHALL BE INCREASED ONLY BY THOSE AMENDMENTS TO THE CLASSIFICATION ACT OR OTHER APPLICABLE STATUTORY AMENDMENTS WHICH WERE ENACTED DURING A PERIOD WHEN THE EMPLOYEE WAS NOT IN CIVILIAN SERVICE AS DESCRIBED ABOVE.'

THE HIGHEST PREVIOUS RATE RULE IN RELATION TO THE LEGISLATIVE AND JUDICIAL BRANCHES OF THE GOVERNMENT WAS CONSIDERED IN OUR DECISION OF FEBRUARY 11, 1949, 28 COMP. GEN. 455, IN WHICH WE SAID---

"THE SAID CLASSIFICATION ACT (OF 1923) IS APPLICABLE EXCLUSIVELY TO POSITIONS IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT--- AS DISTINGUISHED FROM THE LEGISLATIVE AND JUDICIAL BRANCHES THEREOF--- WITH THE EXCEPTION OF POSITIONS IN CERTAIN OTHER FEDERAL AGENCIES SPECIFICALLY INCLUDED THEREUNDER. HENCE, THE REQUIREMENTS IN SECTION 6 OF THAT ACT THAT ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM SALARY RATE OF THE GRADE NECESSARILY APPLIES TO NEW APPOINTMENTS TO POSITIONS IN THE SPECIFICALLY NAMED AGENCIES NOT IN THE EXECUTIVE BRANCH. CONSEQUENTLY, THE RULE SET OUT IN THE DECISION OF NOVEMBER 7, 1946, SUPRA, CONSTITUTING, AS IT WERE, AN EXCEPTION TO THE INITIAL SALARY RATE REQUIREMENTS OF THE SAID SECTION 6 OF THE CLASSIFICATION ACT, LIKEWISE IS FOR APPLICATION ONLY TO PERSONNEL ACTIONS OF THE CHARACTER DESCRIBED THEREIN WHICH INVOLVE POSITIONS IN THE EXECUTIVE BRANCH OR IN THE OTHER NAMED AGENCIES. ACCORDINGLY, IN THE APPLICATION OF THAT RULE, THERE ARE NOT FOR CONSIDERATION SALARY RATES ATTAINED IN POSITIONS IN AGENCIES UNDER THE LEGISLATIVE OR JUDICIAL BRANCH OF THE FEDERAL GOVERNMENT--- NOT OTHERWISE SUBJECT TO THE CLASSIFICATION ACT. SEE 26 COMP. GEN. 601; ID. 664; 28 ID. 71.'

SECTION 6, REFERRED TO IN THE ABOVE-QUOTED CONTRACT, HAS ITS COUNTERPART IN SECTION 801 OF THE CLASSIFICATION ACT OF 1949. WHILE SECTION 802A OF THE CLASSIFICATION ACT OF 1949 VESTS IN THE COMMISSION JURISDICTION TO PRESCRIBE PAY RULES GOVERNING THE RATE OF COMPENSATION TO BE RECEIVED BY ANY OFFICER OR EMPLOYEE TO WHOM THE ACT APPLIES WHEN, AMONG OTHER THINGS,")1) HE IS TRANSFERRED FROM A POSITION TO WHICH THE ACT DOES NOT APPLY," SUCH AUTHORITY ALONE IS DEEMED TO APPLY ONLY TO POSITIONS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, IN LINE WITH THE RATIONALE OF THE DECISION QUOTED ABOVE. ACCORDINGLY, WE THINK THAT THE FIRST REVISION PROPOSED BY YOU IS TOO BROAD WHEN IT ATTEMPTS TO APPLY THE HIGHEST PREVIOUS SALARY RATE RULE TO EMPLOYEES IN THE THREE BRANCHES OF THE GOVERNMENT WITHOUT QUALIFICATION, RESTRICTION, OR LIMITATION.

HOWEVER, WE FEEL THAT LEGISLATIVE AND JUDICIAL EMPLOYEES WHO QUALIFY UNDER SECTION 2/B) OF THE ACT OF NOVEMBER 26, 1940, 56 STAT. 1212, OR UNDER SECTION 2/C) AS ADDED BY THE ACT OF JUNE 24, 1952, 66 STAT. 155, FOR TRANSFER TO A POSITION IN A CLASSIFIED CIVIL SERVICE PROPERLY MAY COME WITHIN THE PURVIEW OF SECTION 802/A) (1).

SECTION 2/B) OF THE ACT OF NOVEMBER 26, 1940, 54 STAT. 1212, READS AS FOLLOWS:

"/B) THAT FROM AND AFTER THE EFFECTIVE DATE OF THIS ACT ANY PERSON WHO SHALL HAVE SERVED FOR FOUR YEARS AS A SECRETARY, CLERK OR ASSISTANT CLERK TO A SENATOR, REPRESENTATIVE, DELEGATE OR RESIDENT COMMISSIONER, OR AS A CLERK OR ASSISTANT CLERK TO A STANDING COMMITTEE OF THE SENATE OR HOUSE OF REPRESENTATIVES OR AS A CLERICAL EMPLOYEE OF THE SENATE OR HOUSE OF REPRESENTATIVES AND WHOSE SEPARATION FROM THE SERVICE IS INVOLUNTARY AND WITHOUT PREJUDICE SHALL ACQUIRE, UPON PASSING SUCH SUITABLE NONCOMPETITIVE EXAMINATION AS THE CIVIL SERVICE COMMISSION MAY PRESCRIBE, A CLASSIFIED CIVIL SERVICE STATUS FOR TRANSFER TO A POSITION IN THE CLASSIFIED CIVIL SERVICE NOTWITHSTANDING ANY CONTRARY PROVISIONS OF THE CIVIL SERVICE LAWS OR REGULATIONS: PROVIDED, THAT ANY INDIVIDUAL WHO MAY HOLD SUCH A POSITION IN THE LEGISLATIVE BRANCH MUST OBTAIN SUCH TRANSFER WITHIN ONE YEAR FROM THE DATE OF SEPARATION, AND NOTHING IN THIS ACT SHALL BE CONSTRUED TO IMPAIR ANY RIGHT OF RETRANSFER PROVIDED FOR UNDER CIVIL SERVICE LAWS OR REGULATIONS MADE THEREUNDER.'

SECTION 2/C) ADDED BY THE ACT OF JUNE 24, 1952, 66 STAT. 155, CONFERS SIMILAR BENEFITS UNDER SIMILAR SITUATIONS TO ANY PERSON WHO SHALL HAVE SERVED FOR FOUR YEARS AS A SECRETARY, LAW CLERK, OR SECRETARY AND LAW CLERK TO ANY JUSTICE OR JUDGE OF THE UNITED STATES.

AS BOTH THE ACT OF NOVEMBER 26, 1940, AND THE ACT OF JUNE 24, 1952-- CODIFIED AS 5 U.S.C. 631B (B) AND (C/---CONFER SPECIAL BENEFITS UNDER THE CLASSIFICATION ACT TO EMPLOYEES COMING WITHIN THEIR TERMS WE SEE NO OBJECTION TO THE ADOPTION OF THE ALTERNATE SUGGESTED REVISION.