A-16749, DECEMBER 23, 1926, 6 COMP. GEN. 413

A-16749: Dec 23, 1926

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SHALL BE FIXED SO AS TO CAUSE A REDUCTION FROM THE SALARY RATE PROPERLY AND LAWFULLY FIXED IN THE LOWER GRADE IN WHICH THE POSITION WAS ORIGINALLY CREATED AND ALLOCATED. WAS ASSIGNED BY THE PERSONNEL CLASSIFICATION BOARD TO CLERICAL. ON JULY 1 HIS SALARY WAS SET AT $1. HIS POSITION WAS PLACED IN CLERICAL. HIS SALARY WAS AT ONCE INCREASED TO $2. WHICH WAS POSSIBLE WITHOUT EXCEEDING THE AVERAGE -SALARY REQUIREMENT. POSITION OF THIS EMPLOYEE WAS REALLOCATED TO CLERICAL. AT THAT TIME THERE WAS BUT ONE OTHER EMPLOYEE IN SUCH GRADE AND HE WAS RECEIVING THE MAXIMUM SALARY. WHICH WAS SLIGHTLY ABOVE THE AVERAGE RATE. WAS PERMITTED UNDER ORIGINAL ALLOCATION OF JULY 1. IN VIEW OF THE FACTS THAT THERE IS NO SALARY IN GRADE 5 CORRESPONDING TO MR.

A-16749, DECEMBER 23, 1926, 6 COMP. GEN. 413

CLASSIFICATION OF CIVILIAN EMPLOYEES - REALLOCATION OF POSITIONS CREATED SINCE JULY 1, 1924 - AVERAGE PROVISION COMPLIANCE WITH THE AVERAGE PROVISION APPEARING IN THE ANNUAL APPROPRIATION ACTS DOES NOT REQUIRE THAT THE SALARY RATE UNDER A REALLOCATION OF A POSITION ORIGINALLY CREATED AND ALLOCATED SINCE JULY 1, 1924, SHALL BE FIXED SO AS TO CAUSE A REDUCTION FROM THE SALARY RATE PROPERLY AND LAWFULLY FIXED IN THE LOWER GRADE IN WHICH THE POSITION WAS ORIGINALLY CREATED AND ALLOCATED.

COMPTROLLER GENERAL MCCARL TO THE PUBLIC PRINTER, DECEMBER 23, 1926: CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF DECEMBER 18, 1926, AS FOLLOWS:

NORMAN K. BERRY, CLERK IN THIS OFFICE, ON JULY 1, 1924, WAS ASSIGNED BY THE PERSONNEL CLASSIFICATION BOARD TO CLERICAL, ADMINISTRATIVE, AND FISCAL SERVICE, GRADE 3. HE HAD BEEN RECEIVING $1,600 PER ANNUM, PLUS $240 BONUS, AND ON JULY 1 HIS SALARY WAS SET AT $1,860, AS REQUIRED BY LAW.

ON OCTOBER 16, 1924, BY REASON OF AN EXTENSION OF HIS DUTIES, HIS POSITION WAS PLACED IN CLERICAL, ADMINISTRATIVE, AND FISCAL SERVICE, GRADE 4, WITH APPROVAL OF THE PERSONNEL CLASSIFICATION BOARD. HIS SALARY WAS AT ONCE INCREASED TO $2,040, WHICH WAS POSSIBLE WITHOUT EXCEEDING THE AVERAGE -SALARY REQUIREMENT.

ON DECEMBER 16, 1926, UPON APPEAL AND WITHOUT CHANGE IN DUTIES, POSITION OF THIS EMPLOYEE WAS REALLOCATED TO CLERICAL, ADMINISTRATIVE AND FISCAL SERVICE, GRADE 5; AT THAT TIME THERE WAS BUT ONE OTHER EMPLOYEE IN SUCH GRADE AND HE WAS RECEIVING THE MAXIMUM SALARY--- $2,400 PER ANNUM.

THE PERSONNEL IN CLERICAL, ADMINISTRATIVE, AND FISCAL SERVICE, GRADE 5, ON OCTOBER 16, 1924, CONSISTED OF FIVE EMPLOYEES. THE SALARIES AVERAGED $2,112, WHICH WAS SLIGHTLY ABOVE THE AVERAGE RATE, BUT WAS PERMITTED UNDER ORIGINAL ALLOCATION OF JULY 1, 1924.

IN VIEW OF THE FACTS THAT THERE IS NO SALARY IN GRADE 5 CORRESPONDING TO MR. BERRY'S PRESENT PAY ($2,040) AND THAT TO SET HIS COMPENSATION AT THE NEXT HIGHER SALARY IN GRADE 5 ($2,100) WOULD ESTABLISH AN EXCESS AVERAGE AND TO SET IT AT THE NEXT LOWER ONE ($2,000) WOULD SEEM TO BE CONTRARY TO THE INTENT OF THE LAW, THE QUESTION ARISES AS TO WHAT SALARY CAN PROPERLY BE PAID NORMAN K. BERRY FOR THE PAY PERIOD ENDING DECEMBER 31, 1926, AND THEREAFTER. IT IS NOT DESIRED THAT HE BE REDUCED, BUT RATHER THAT HE BE PAID A SALARY FITTING THE HIGHER GRADE TO WHICH HIS POSITION HAS BEEN ALLOCATED.

YOUR DECISION IS REQUESTED IN THIS MATTER, AND I WOULD GREATLY APPRECIATE AN EARLY REPLY IN ORDER TO MAKE THE PROPER DISBURSEMENT AT THE CLOSE OF THE CURRENT QUARTER.

THE POSITION ALLOCATED IN GRADE 4, OCTOBER 16, 1924, BY REASON OF EXTENSION OF DUTIES, WAS IN EFFECT THE CREATION AND ALLOCATION OF A NEW POSITION NOT PREVIOUSLY IN EXISTENCE ON JULY 1, 1924. RELATIVE TO THE FIXING OF SALARY RATES OF NEW AND VACANT POSITIONS IN A GRADE, IT WAS STATED IN DECISION OF MAY 22, 1925, 4 COMP. GEN. 982, AS FOLLOWS:

* * * WHEN A VACANCY EXISTS THE SALARY OF THE VACANT POSITION IS NOT NECESSARILY AT THE MINIMUM SALARY RATE OR THE SALARY RATE RECEIVED BY THE LAST INCUMBENT, BUT MAY BE FIXED BY THE ADMINISTRATIVE OFFICE IN ACCORDANCE WITH THE RULES AND REGULATIONS TO THE CLASSIFICATION ACT AT ANY AUTHORIZED SALARY RATE WITHIN THE GRADE WHICH DOES NOT CAUSE THE PROPER AVERAGE FOR THE GRADE TO BE EXCEEDED. 4 COMP. GEN. 127; ID, 493. FOR INSTANCE, NEW APPOINTMENTS TO VACANT POSITIONS ARE REQUIRED TO BE MADE AT THE MINIMUM SALARY RATE OF THE GRADE, BUT TRANSFERS TO THE GRADE FROM OTHER OFFICES AND GRADES IN THE SAME OFFICE NEED NOT NECESSARILY BE AT THE MINIMUM SALARY RATE OF THE GRADE, HENCE UNTIL A VACANCY IS FILLED THERE WOULD BE NO SALARY RATE FIXED FOR THE POSITION.

THUS IN THE PRESENT CASE, WHERE THE POSITION WAS FILLED BY A TRANSFER FROM ANOTHER GRADE IN THE SAME OFFICE, IT WAS LAWFUL TO FIX THE SALARY RATE OF THE NEW POSITION IN GRADE 4 AT $2,040 PER ANNUM, THE MAXIMUM SALARY RATE OF THAT GRADE, THE AVERAGE FOR THE GRADE NOT BEING EXCEEDED THEREBY.

FOR THE REASON THAT THIS POSITION WAS NOT IN EXISTENCE JULY 1, 1924, THE FIXING OF THE PROPER SALARY RATE IN GRADE 5 UNDER THE REALLOCATION OF DECEMBER 16, 1926, DOES NOT FALL SQUARELY WITHIN EXCEPTION (2) TO THE AVERAGE PROVISION, SAVING FROM "REDUCTION IN SALARY OF ANY PERSON WHOSE COMPENSATION WAS FIXED AS OF JULY 1, 1924, IN ACCORDANCE WITH THE RULES OF SECTION 6 OF SUCH ACT.' SEE SECTION 3 OF THE ACT OF MAY 13, 1926, 44 STAT. 553.

BUT THE QUESTION PRESENTED IN THIS CASE IS WHETHER THE AVERAGE PROVISION MUST BE APPLIED IN FIXING THE SALARY RATE UNDER THE REALLOCATION OF A POSITION ORIGINALLY CREATED AND ALLOCATED SUBSEQUENT TO JULY 1, 1924, SO AS TO REQUIRE THE REDUCTION IN THE SALARY RATE PROPERLY FIXED BY THE ADMINISTRATIVE OFFICE IN THE LOWER GRADE IN WHICH THE POSITION WAS ORIGINALLY CREATED AND ALLOCATED.

WHILE THE REALLOCATION OF A POSITION IS ON THE ASSUMPTION THAT AN ERROR WAS ORIGINALLY MADE IN THE ALLOCATION OF THE DIVISION, IT HAS BEEN HELD AND RECOGNIZED THAT THE EFFECTIVE DATE OF THE REALLOCATION IS THE BEGINNING OF THE PAY PERIOD CURRENT WHEN NOTICE OF THE REALLOCATION AS RECEIVED IN THE ADMINISTRATIVE OFFICE. 4 COMP. GEN. 280; 4 ID. 721; 6 ID. 202. THAT IS TO SAY, ALL THAT WAS LAWFULLY DONE PRIOR TO THAT DATE IN THE FIXING OF SALARY RATES ON THE BASIS THAT THE POSITION WAS PROPERLY ALLOCATED IN THE LOWER GRADE, NEED NOT BE DISTURBED BY REASON OF THE REALLOCATION TO A HIGHER GRADE, BUT ADJUSTMENT OF SALARIES IN THE HIGHER GRADE UNDER THE REALLOCATION IS AUTHORIZED SO AS NOT TO REQUIRE ANY REDUCTION IN A SALARY RATE PROPERLY AND LAWFULLY FIXED BY THE ADMINISTRATIVE OFFICE IN THE LOWER GRADE UNDER THE AVERAGE PROVISION PURSUANT TO THE PRIOR ACTION OF THE PERSONNEL CLASSIFICATION BOARD. SUCH IS BELIEVED TO BE THE PURPOSE AND INTENT OF THE EXCEPTIONS TO THE AVERAGE PROVISION IN THEIR ENTIRETY, ALTHOUGH THIS PARTICULAR SITUATION IS NOT EXPRESSLY COVERED. FOR INSTANCE, UNDER EXCEPTION (2), ABOVE QUOTED, THERE IS SAVED FROM REDUCTION THE SALARY OF A POSITION FIXED AS OF JULY 1, 1924, AND UNDER EXCEPTION (3) THERE IS SAVED FROM---

REDUCTION IN SALARY OF ANY PERSON WHO IS TRANSFERRED FROM ONE POSITION TO ANOTHER POSITION IN THE SAME OR DIFFERENT GRADE IN THE SAME OR A DIFFERENT BUREAU, OFFICE, OR OTHER APPROPRIATION UNIT. * * *

THE ADMINISTRATIVE OFFICE IN THIS CASE HAVING LAWFULLY FIXED THE SALARY RATE OF A NEW POSITION UNDER THE ORIGINAL ALLOCATION IN GRADE NO. 4 AT $2,040 PER ANNUM, AND NO REDUCTION BEING REQUIRED BY REASON OF THE REALLOCATION OF THAT POSITION TO GRADE 5, AND THERE BEING NO SALARY AT $2,040 PER ANNUM IN GRADE 5, THE SALARY RATE FOR THE POSITION IN GRADE 5 MAY BE FIXED AT $2,100 PER ANNUM, THE NEXT HIGHER RATE ABOVE $2,040, ALTHOUGH THE AVERAGE OF THE SALARIES OF THE TWO PERSONS IN THE GRADE WILL EXCEED THE AVERAGE OF THE SALARY RATES FOR THE GRADE.