B-122529, FEBRUARY 15, 1955, 34 COMP. GEN. 380

B-122529, FEBRUARY 15, 1955, 34 COMP. GEN. 380

COMPENSATION - RATES - RETROACTIVE - CORRECTION OF ADMINISTRATIVE ERROR FOREIGN SERVICE OFFICER WHERE, INCIDENT TO THE APPOINTMENT OF A FORMER FOREIGN SERVICE OFFICER TO A POSITION UNDER THE CLASSIFICATION ACT OF 1949, AN ADMINISTRATIVE ERROR WAS MADE IN FIXING HIS SALARY AT THE MINIMUM INSTEAD OF AT THE HIGHEST RATE HE HAD PREVIOUSLY EARNED, CONTRARY TO THE POLICY OF APPOINTING FORMER FEDERAL EMPLOYEES AT THE HIGHEST SALARY RATE PREVIOUSLY ATTAINED, RETROACTIVE SALARY ADJUSTMENT MAY BE MADE.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO GEORGE T. HAMMER, DEPARTMENT OF AGRICULTURE, FEBRUARY 15, 1955:

YOUR LETTER OF JANUARY 6, 1955, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE SUPPLEMENTAL PAYROLL VOUCHER THEREWITH TRANSMITTED PROPOSING PAYMENT TO FRED S. PERKERSON OF ADDITIONAL COMPENSATION TO COVER A RETROACTIVE ADJUSTMENT IN HIS COMPENSATION FROM THE MINIMUM RATE OF GS- 13, NAMELY, $8,360, AS FIXED IN HIS APPOINTMENT, TO THE MAXIMUM RATE IN THAT GRADE, NAMELY, $9,360.

THE FACTS ARE STATED IN YOUR LETTER, AS FOLLOWS:

DR. PERKERSON WAS APPOINTED TO THE POSITION OF CHEMIST, GS-13, AT THE SOUTHERN UTILIZATION RESEARCH BRANCH, AGRICULTURAL RESEARCH SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, NEW ORLEANS, LOUISIANA, AT $8,360 PER ANNUM ON APRIL 12, 1954. DUE TO THE FACT THAT HIS OFFICIAL PERSONNEL FOLDER WAS NOT RECEIVED UNTIL AFTER HE REPORTED FOR DUTY, THE QUESTION OF WHETHER OR NOT HE SHOULD HAVE BEEN APPOINTED AT A SALARY HIGHER THAN THE MINIMUM OF GRADE GS-13 WAS INADVERTENTLY OVERLOOKED. IT IS THE POLICY OF THE DEPARTMENT OF AGRICULTURE AND HAS BEEN THE POLICY AND PRACTICE OF THE SOUTHERN UTILIZATION RESEARCH BRANCH, AGRICULTURAL RESEARCH SERVICE, WHEN FILLING JOBS BY REAPPOINTMENT OF FORMER FEDERAL EMPLOYEES, TO APPOINT THEM AT THE HIGHEST SALARY PREVIOUSLY ATTAINED IN FEDERAL SERVICE, PROVIDED SUCH SALARY RATE IS NOT IN EXCESS OF THE MAXIMUM OF THE GRADE TO WHICH REAPPOINTED. IF IT HAD BEEN KNOWN THAT DR. PERKERSON, DUE TO HIS PREVIOUS SERVICE, COULD HAVE LEGALLY BEEN PAID AT THE TOP OF GRADE GS-13, HE WOULD HAVE BEEN APPOINTED ON APRIL 12, 1954, AT THE SALARY OF $9,360 PER ANNUM. IT IS THEREFORE CONSIDERED BY THIS OFFICE THAT HIS APPOINTMENT AT $8,360 WAS AN ADMINISTRATIVE ERROR.

YOUR DOUBT APPEARS TO CONCERN (1) THE EFFECT THAT SECTION 202 OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, HAS UPON THE WORDING OF DEPARTMENT OF AGRICULTURE REGULATION, TITLE 8, PARAGRAPH 148 (A); AND (2) THE FACT THAT THE PREVIOUS HIGHEST SALARY RATE IS SHOWN BY THE SCHEDULE ENCLOSED BY YOU TO HAVE BEEN EARNED BY MR. PERKERSON UNDER AN APPOINTMENT IN THE FOREIGN SERVICE OF THE UNITED STATES.

THE DEPARTMENT OF AGRICULTURE REGULATION, TITLE 8, PARAGRAPH 148 (A), PROVIDES AS FOLLOWS:

148. SALARY RATE ON TRANSFER, REEMPLOYMENT, PROMOTION, OR OTHER CHANGE. A. GENERAL RULE. PERSONNEL ACTIONS TO TRANSFER, REEMPLOY, REASSIGN, PROMOTE, REPROMOTE, OR DEMOTE AN EMPLOYEE, DEPENDENT ON HIS PREVIOUS SERVICE, NEED NOT BE MADE AT THE MINIMUM RATE OF THE GRADE. SUBJECT TO THE MANDATORY REQUIREMENTS OF SUBPARAGRAPHS D AND 3, BELOW, THE EMPLOYEE MAY BE PAID AT ANY SCHEDULED RATE OF THE GRADE TO WHICH CHANGED THAT DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE. THIS RULE APPLIES ONLY WHEN THE PRIOR POSITION WAS IN A DEPARTMENT AS DEFINED IN SECTION 201 (A) OF THE CLASSIFICATION ACT OF 1949, OR IN A MIXED OWNERSHIP CORPORATION, IRRESPECTIVE OF WHETHER OR NOT SUCH POSITION WAS SUBJECT TO THE PAY SCHEDULES OF THE CLASSIFICATION ACT. * * * ( ITALICS SUPPLIED.)

SECTION 201 (A) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, REFERRED TO IN THE ABOVE-QUOTED REGULATION, PROVIDES---

FOR THE PURPOSES OF THIS ACT, THE TERM "DEPARTMENT" INCLUDES (1) THE EXECUTIVE DEPARTMENTS, (2) THE INDEPENDENT ESTABLISHMENTS AND AGENCIES IN THE EXECUTIVE BRANCH, INCLUDING CORPORATIONS WHOLLY OWNED BY THE UNITED STATES, (3) THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, (4) THE LIBRARY OF CONGRESS, (5) THE BOTANIC GARDEN, (6) THE GOVERNMENT PRINTING OFFICE, (7) THE GENERAL ACCOUNTING OFFICE, (8) THE OFFICE OF THE ARCHITECT OF THE CAPITOL, AND (9) THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA.

WHILE SECTION 202 OF THE CLASSIFICATION ACT OF 1949 EXCLUDES FROM THE PROVISIONS OF THE CLASSIFICATION ACT CERTAIN CLASSES OF EMPLOYEES, INCLUDING EMPLOYEES OF THE FOREIGN SERVICE OF THE UNITED STATES, SUCH EXCLUSION HAS NO BEARING WHATEVER UPON THE EFFECT OF THE ABOVE-QUOTED DEPARTMENTAL REGULATION. THAT REGULATION IS CONFINED BY ITS TERM TO THE DEFINITION OF THE TERM ,DEPARTMENT" CONTAINED IN SECTION 201 (A) OF THE CLASSIFICATION ACT OF 1949. IT MAY BE STATED THAT LANGUAGE SIMILAR TO THAT CONTAINED IN THE REFERRED-TO REGULATION IS FOUND IN CIVIL SERVICE REGULATION 25.102 (J). THE LATTER REGULATION DEFINES THE HIGHEST PREVIOUS SALARY RATE, BUT THAT DEFINITION HAS NEVER BEEN CONSTRUED AS EXCLUDING THE SALARY RATES ATTAINED IN THE FOREIGN SERVICE.

IN 31 COMP. GEN. 15, IT WAS HELD, QUOTING FROM THE SYLLABUS:

THERE IS NO VESTED RIGHT IN AN EMPLOYEE UPON REEMPLOYMENT TO RECEIVE THE HIGHEST SALARY RATE PREVIOUSLY PAID TO HIM, AND THEREFORE THE CORRECTION OF AN ADMINISTRATIVE ERROR MADE IN FIXING THE SALARY OF AN EMPLOYEE UPON REEMPLOYMENT AT A LOWER RATE THAN THE HIGHEST SALARY RATE PREVIOUSLY HELD BY SUCH EMPLOYEE CAN BE ACCOMPLISHED ONLY BY ADMINISTRATIVE ACTION AND UPON SHOWING THAT AN ADMINISTRATIVE ERROR WAS IN FACT MADE IN FIXING THE ORIGINAL SALARY RATE UPON REEMPLOYMENT.

IN LIGHT OF THE REPORTED ADMINISTRATIVE POLICY, AND OF THE DETERMINATION OF ERROR IN NOT CARRYING OUT SAID POLICY IN THE CASE HERE SUBMITTED, AND IN LINE WITH THE ABOVE REFERRED-TO DECISION, WE WOULD NOT INTERPOSE ANY LEGAL OBJECTION TO EFFECTING THE PROPOSED RETROACTIVE ADJUSTMENT OF COMPENSATION IN THIS CASE TO THE MAXIMUM RATE OF THE GRADE.

ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IN THE ABSENCE OF OTHER OBJECTION. 32 COMP. GEN. 211.