B-104080, MAR. 29, 1965, 44 COMP. GEN. 588
Highlights
WHILE IN A "STATUS QUO" SITUATION AFTER HIS APPOINTMENT TO AN EXCEPTED POSITION IS CHANGED TO A COMPETITIVE POSITION. IS REDUCED IN GRADE IS REGARDED AS HAVING HIS . STATUS QUO" EMPLOYMENT CONTINUING UNCHANGED FROM THAT HELD UNDER THE EXCEPTED POSITION WHICH WAS EQUIVALENT TO A CAREER OR CAREER CONDITIONAL POSITION SO THAT HE HAS AN "EQUIVALENT TENURE" TO A CAREER APPOINTMENT AS THAT TERM IS USED IN THE SALARY RETENTION PROVISIONS IN SECTION 507 OF THE CLASSIFICATION ACT. SALARY RETENTION IN REDUCTION IN GRADE ACTIONS FOR EMPLOYEES WHO CONTINUE TO SERVE UNDER SIMILAR EXCEPTED SERVICE APPOINTMENTS IS PROPER. THE ISSUE IN THE CASE IS WHETHER THE EMPLOYEE. IS TO BE CONSIDERED AS HOLDING A CAREER OR CAREER-CONDITIONAL APPOINTMENT IN THE COMPETITIVE CIVIL SERVICE OR AN APPOINTMENT OF EQUIVALENT TENURE IN THE EXCEPTED SERVICE.
B-104080, MAR. 29, 1965, 44 COMP. GEN. 588
COMPENSATION - DOWNGRADING - SAVED COMPENSATION - EXCEPTED POSITIONS A FEDERAL EMPLOYEE WHO, WHILE IN A "STATUS QUO" SITUATION AFTER HIS APPOINTMENT TO AN EXCEPTED POSITION IS CHANGED TO A COMPETITIVE POSITION, IS REDUCED IN GRADE IS REGARDED AS HAVING HIS ,STATUS QUO" EMPLOYMENT CONTINUING UNCHANGED FROM THAT HELD UNDER THE EXCEPTED POSITION WHICH WAS EQUIVALENT TO A CAREER OR CAREER CONDITIONAL POSITION SO THAT HE HAS AN "EQUIVALENT TENURE" TO A CAREER APPOINTMENT AS THAT TERM IS USED IN THE SALARY RETENTION PROVISIONS IN SECTION 507 OF THE CLASSIFICATION ACT, 5 U.S.C. 1107 (A), AND, THEREFORE, SALARY RETENTION IN REDUCTION IN GRADE ACTIONS FOR EMPLOYEES WHO CONTINUE TO SERVE UNDER SIMILAR EXCEPTED SERVICE APPOINTMENTS IS PROPER.
TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, MARCH 29, 1965:
YOUR LETTER OF MARCH 12, 1965, ASKS OUR DECISION CONCERNING THE ENTITLEMENT OF AN EMPLOYEE TO SALARY RETENTION UNDER SECTION 507 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1107 (A).
THE ISSUE IN THE CASE IS WHETHER THE EMPLOYEE, IF GIVEN A REDUCTION IN GRADE, IS TO BE CONSIDERED AS HOLDING A CAREER OR CAREER-CONDITIONAL APPOINTMENT IN THE COMPETITIVE CIVIL SERVICE OR AN APPOINTMENT OF EQUIVALENT TENURE IN THE EXCEPTED SERVICE.
THE FACTS IN THE CASE ARE RECITED IN YOUR LETTER AS FOLLOWS:
THE EMPLOYEE WAS GIVEN AN UNLIMITED EXCEPTED APPOINTMENT UNDER A SCHEDULE A PROVISION ON OCTOBER 31, 1958. THE COMMISSION REVOKED THE SCHEDULE A PROVISION ON JANUARY 31, 1959. REVOCATION OF A SCHEDULE A PROVISION UNDER WHICH UNLIMITED APPOINTMENTS WERE AUTHORIZED DOES NOT, OF COURSE, TERMINATE APPOINTMENTS WHICH WERE MADE UNDER IT, BUT MERELY REVOKES THE AUTHORITY FOR FURTHER APPOINTMENTS.
SINCE THE EMPLOYEE HAD NOT HAD SIX MONTHS' CONTINUOUS SERVICE AT THAT TIME, HE DID NOT MEET THE SERVICE REQUIREMENT FOR NONCOMPETITIVE ACQUISITION OF CIVIL-SERVICE STATUS UNDER CIVIL SERVICE REGULATION 3.101 (NOW 316.702), AND THE AGENCY WAS THEREFORE ENTILED TO RETAIN HIM "IN STATUS .' (EMPLOYEES IN THIS SITUATION ARE REFERRED TO AS "STATUS QUO EMPLOYEES," DEFINED IN CIVIL SERVICE REGULATION 210.101/14). NO NEW APPOINTMENT WAS REQUIRED (FEDERAL PERSONNEL MANUAL, CH. 316, PAGES 17-18, SECTION 7-2C).
HE FILED APPLICATION FOR AN APPROPRIATE CIVIL-SERVICE EXAMINATION, RECEIVED AN ELIGIBLE RATING, AND WAS CERTIFIED. HOWEVER, HE WAS OVER AGE 70 AND COULD ONLY HAVE BEEN GIVEN A TEMPORARY-RENEWABLE APPOINTMENT IN THE COMPETITIVE SERVICE (PUBLIC LAW 84-623, SEC. 302); AND IT WAS DEEMED TO HIS ADVANTAGE TO REMAIN IN STATUS QUO.
SINCE THE EMPLOYEE'S APPOINTMENT WAS AN APPOINTMENT IN THE EXCEPTED SERVICE OF EQUIVALENT TENURE TO THAT OF A CAREER OR CAREER-CONDITIONAL APPOINTMENT, AND HE CONTINUES TO SERVE UNDER THE SAME APPOINTMENT (NO NEW APPOINTMENT BEING REQUIRED WHEN THE POSITION BECAME SUBJECT TO CIVIL- SERVICE REQUIREMENTS), IT SEEMS TO US THAT HE COMES WITHIN THE INTENT OF THE SALARY-RETENTION PROVISION.
AS WE UNDERSTAND THE SITUATION THE EMPLOYEE OCCUPIES A POSITION WHICH, BY ACTION OF THE CIVIL SERVICE COMMISSION, HAS BEEN PLACED IN THE COMPETITIVE SERVICE. YOU POINT OUT THAT THE INCUMBENT DOES NOT HAVE A COMPETITIVE STATUS. BY VIRTUE OF THE PROVISION IN SUBCHAPTER 7 OF CHAPTER 316, PAGES 17-18, OF THE FEDERAL PERSONNEL MANUAL, HOWEVER, THE AGENCY WAS PERMITTED TO RETAIN THE INCUMBENT IN THE POSITION WITHOUT FORMAL APPOINTMENT ACTION. IN SUCH CASE, HE IS CONSIDERED AS RETAINED IN A "STATUS QUO.' "STATUS QUO EMPLOYEE" IS DEFINED IN CIVIL SERVICE REGULATION 210.101/14) AS "AN EMPLOYEE WHO FAILED TO ACQUIRE A COMPETITIVE STATUS WHEN THE POSITION IN WHICH HE WAS SERVING WAS PLACED IN THE COMPETITIVE SERVICE BY A STATUTE, EXECUTIVE ORDER, OR CIVIL SERVICE RULE, WHICH PERMITTED HIS RETENTION WITHOUT THE ACQUISITION OF STATUS.' IT WOULD APPEAR THAT THE TENURE--- THE PERIOD OF TIME AN EMPLOYEE MAY REASONABLY BE EXPECTED TO SERVE UNDER HIS CURRENT APPOINTMENT--- ENJOYED BY THE EMPLOYEE UNDER HIS STATUS QUO EMPLOYMENT CONTINUES UNCHANGED FROM THAT HAD BY HIM AS AN APPOINTEE TO THE POSITION WHEN IT WAS IN THE EXCEPTED SERVICE. FURTHER, WE UNDERSTAND THAT PRIOR TO THE REVOCATION OF THE SCHEDULE A PROVISION ON JANUARY 31, 1959, THE EMPLOYEE HELD AN APPOINTMENT IN THE EXCEPTED SERVICE OF TENURE EQUIVALENT TO THAT HELD BY A CAREER OR CAREER CONDITIONAL APPOINTEE IN THE COMPETITIVE SERVICE. IN THAT REGARD, WE HAVE NOTED THE REQUIREMENTS OF THE CIVIL SERVICE REGULATION UNDER "SALARY RETENTION," COVERING ,EQUIVALENT TENURE-EXCEPTED SERVICE," FEDERAL PERSONNEL MANUAL SUPPLEMENT NO. 990-1, III-128, 531.505.
THEREFORE, WE CONCUR IN YOUR VIEW THAT THE EMPLOYEE HAS "EQUIVALENT TENURE" AS THAT TERM IS USED IN SECTION 507 OF THE CLASSIFICATION ACT OF 1949. ALSO, WE ARE OF THE OPINION THAT LIKE CASES WOULD FALL WITHIN YOUR REGULATORY AUTHORITY UNDER SECTION 507 (D) OF THE CLASSIFICATION ACT, 5 U.S.C. 1107 (D).