B-129965, AUG. 28, 1957

B-129965, AUG. 28, 1957

TO THE SECRETARY OF THE NAVY:

THIS REFERS TO THE NEXT TO LAST PARAGRAPH OF OUR LETTER OF JULY 2, 1957, B-129965, REGARDING THE QUESTION PRESENTED IN YOUR ASSISTANT SECRETARY'S LETTER OF MAY 2, 1957, CONCERNING COMPENSATION SAVED UNDER THE ACT OF SEPTEMBER 1, 1954, PUBLIC LAW 763, 68 STAT. 1105, 1111, WHICH, BY SECTION 208 (A), ADDED SECTION 401 TO THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED. THE SPECIFIC CASE AND QUESTION, AS PRESENTED BY THE ASSISTANT SECRETARY, ARE AS FOLLOWS:

"A FIREFIGHTER, SUBJECT TO THE SAVING PAY PROVISIONS OF SECTION 401 (B) BECAUSE OF HIS REGULARLY SCHEDULED 72-HOUR WEEKLY TOUR OF DUTY WAS, ON 27 MARCH 1955, ASSIGNED TO A 40-HOUR TOUR OF DUTY IN THE FIRE DEPARTMENT. CHANGE OF POSITION WAS INVOLVED. ON 21 MAY 1956 THE FIREFIGHTER WAS REASSIGNED TO HIS FORMER 72-HOUR TOUR OF DUTY AND AGAIN PAID THE RATE SAVED TO HIM BY SECTION 401 (B). PAYMENT OF SAVED RATE, WHICH APPEARS TO BE IN KEEPING WITH SECTION 25.274 (1) OF THE COMMISSION'S RULES AND REGULATIONS, HAS BEEN QUESTIONED BECAUSE OF THE LENGTH OF TIME SERVED ON A 40-HOUR WORKWEEK BASIS.'

IN THE CIRCUMSTANCES, IT APPEARING THAT THE ABOVE CASE WAS THE ONE WHICH OUR AUDITORS HAD PREVIOUSLY QUESTIONED BY INFORMAL INQUIRY NO. 7 20824, WE HAVE OBTAINED FROM OUR AUDITORS A FURTHER REPORT AND TRANSCRIPT OF THE EMPLOYEE'S PAY HISTORY.

THE REFERENCE TO "SECTION 401 (B)" RELATES TO THE PROVISION CONTAINED IN SUBSECTION 208 (B) OF THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1111, AS FOLLOWS:

"/B) NOTHING CONTAINED IN THIS SECTION SHALL BE CONSTRUED TO DECREASE THE EXISTING AGGREGATE RATE OF COMPENSATION OF ANY PRESENT EMPLOYEE, BUT WHEN THE POSITION OF SUCH EMPLOYEE BECOMES VACANT ANY SUBSEQUENT APPOINTEE THERETO SHALL RECEIVE PREMIUM COMPENSATION PROVIDED FOR SUCH POSITION IN ACCORDANCE WITH THIS SECTION.'

THAT SAVINGS PROVISION EXPRESSLY RELATED TO THE INCUMBENT'S PAY RATE IS THE POSITION HE OCCUPIES ON THE DATE THAT COMPUTATION OF PREMIUM COMPENSATION FOR HIS POSITION IS CONVERTED TO ONE OF THE PAY SYSTEMS PROVIDED FOR IN SECTION 401. IN THE INTERPRETATION AND APPLICATION OF THE STATUTE, HERE INVOLVED, THERE ARE FOR CONSIDERATION THE PAY REGULATIONS OF THE CIVIL SERVICE COMMISSION, PRESCRIBING THE RESPONSIBILITIES OF DEPARTMENTS AND THE GENERAL RULES GOVERNING PAYMENTS OF THE SAVED COMPENSATION. SECTION 25.274 (F) OF THE FEDERAL PERSONNEL MANUAL PROVIDES:

"THE USE OF THE "SAVED RATE" CONSTRUCTED UNDER SUBPARAGRAPH (A) SHALL CONTINUE SO LONG AS THE EMPLOYEE REMAINS IN A POSITION TO WHICH THE PROVISIONS OF SECTION 25.251 OR 25.261 ARE APPLICABLE, HIS TOUR OF DUTY DOES NOT DECREASE IN LENGTH, AND HE CONTINUES TO PERFORM EQUIVALENT NIGHT, HOLIDAY, AND IRREGULAR OVERTIME WORK.'

THE RECORD SHOWS THAT THE EMPLOYEE WAS PAID ON THE BASIS OF A "SAVED RATE" TO DECEMBER 19, 1954, AT WHICH TIME HE WAS CHANGED TO A LOWER GRADE. THE RECORD INDICATES THE DEMOTION WAS AT THE REQUEST OF THE EMPLOYEE AND INVOLVED A CHANGE OF POSITION. UPON HIS OWN REQUEST HE WAS TRANSFERRED EFFECTIVE MARCH 14, 1955, FROM HIS POSITION AS FIREFIGHTER SECOND WATCH (72-HOUR TOUR PER WEEK) TO A 40-HOUR TOUR OF DUTY IN THE SAME GRADE, GS-4 STEP 7, AS FIRE OBSERVER. AS POINTED OUT BY THE ASSISTANT SECRETARY HE WAS REASSIGNED TO A 72-HOUR TOUR OF DUTY ON MAY 21, 1956. OUR RECORDS SHOW THAT AS OF THAT DATE HIS SALARY WAS CHANGED TO THE "SAVED RATE" BUT, AS A RESULT OF THE INFORMAL INQUIRY OF OUR OFFICE AS TO THE PROPRIETY OF RESTORATION OF THE "SAVED RATE" UPON REASSIGNMENT TO THE 72- HOUR TOUR OF DUTY, PAYMENT HAS BEEN MADE ON BASIS OF 20 PERCENT PREMIUM PAY SINCE JANUARY 27, 1957.

SECTION 25.274 (F), ABOVE, CLEARLY CONTEMPLATES THAT THE USE OF THE "SAVED RATE" SHOULD CONTINUE ONLY SO LONG AS THE EMPLOYEES TOUR OF DUTY IS NOT DECREASED IN LENGTH AND IF HE CONTINUES TO PERFORM EQUIVALENT NIGHT, HOLIDAY, AND IRREGULAR OVERTIME WORK. ONCE THOSE CONDITIONS ARE NOT MET-- - IRRESPECTIVE OF THE LENGTH OF TIME--- THE "SAVED RATE" IS NO LONGER PAYABLE. NEITHER THE STATUTE NOR THE REGULATIONS PROVIDE FOR RESTORATION OF THE "SAVED RATE" TO THE EMPLOYEE AT A DATE SUBSEQUENT TO HIS HAVING SERVED IN A POSITION TO WHICH THE "SAVED RATE" DID NOT APPLY.

THE EMPLOYEE IN THIS CASE WAS ASSIGNED TO A DIFFERENT POSITION IN DECEMBER 1954. ADDITIONALLY, IN MARCH 1955 THERE WAS A "DECREASE IN LENGTH" OF THE EMPLOYEE'S TOUR OF DUTY (72 HOURS TO 40 HOURS), WITHIN THE MEANING OF THE RULE STATED IN THE CITED REGULATIONS, AND IT DOES NOT APPEAR THAT HE PERFORMED DURING THE PERIOD OF THE 40-HOUR TOUR NIGHT, HOLIDAY, AND OVERTIME DUTY EQUIVALENT TO THAT WHICH WAS PRESCRIBED FOR THE POSITION HE OCCUPIED PRIOR TO MARCH 14, 1955.

THEREFORE, WE SUSTAIN OUR AUDITOR'S INFORMAL INQUIRY NO. 7-90024 IN THE MATTER OF THE COMPENSATION RATE PAID TO JAMES G. SIMS.