A-28275, AUGUST 14, 1929, 9 COMP. GEN. 71

A-28275: Aug 14, 1929

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WILL NO LONGER BE FOLLOWED. AS FOLLOWS: REFERENCE IS MADE TO THAT PART OF SECTION 2 OF AN ACT MAKING APPROPRIATIONS FOR THE EXECUTIVE OFFICES AND SUNDRY INDEPENDENT EXECUTIVE BUREAUS. THAT THIS RESTRICTION SHALL NOT APPLY "/3) TO REQUIRE THE 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. IN VIEW OF THE FOREGOING PROVISION OF LAW YOUR DECISION IS REQUESTED ON A CASE NOW CONFRONTING THE BUREAU IN WHICH THE FACTS ARE AS FOLLOWS: THE BUREAU DESIRES TO TRANSFER AN EMPLOYEE NOW SERVING IN GRADE P AND S -5 AT A SALARY OF $5. THE MATHEMATICAL AVERAGE FOR GRADE CAF-12 IS NOT NOW EXCEEDED AND WILL NOT BE EXCEEDED IF TRANSFER IS MADE AT THE SALARY THE EMPLOYEE NOW RECEIVES.

A-28275, AUGUST 14, 1929, 9 COMP. GEN. 71

CLASSIFICATION OF CIVILIAN EMPLOYEES - TRANSFERS FROM SERVICE TO SERVICE UNDER EXCEPTION (3) TO THE AVERAGE PROVISION APPEARING IN THE ANNUAL APPROPRIATION ACTS AND SECTION 10 OF THE ORIGINAL CLASSIFICATION ACT, AN EMPLOYEE MAY BE TRANSFERRED WITHOUT LOSS OF SALARY FROM ONE SERVICE TO ANOTHER SERVICE AS DEFINED BY THE ORIGINAL CLASSIFICATION ACT; I.E., FROM PS-5 TO CAF-12. THE RULE ANNOUNCED IN 4 COMP. GEN. 493, 498, QUESTION AND ANSWER 20, AND FOLLOWED IN 5 COMP. GEN. 560, THAT SUCH TRANSFERS SHOULD BE CONSIDERED AS NEW APPOINTMENTS REQUIRING PAYMENT INITIALLY OF THE MINIMUM SALARY RATE OF THE GRADE IN THE SERVICE TO WHICH TRANSFERRED, WILL NO LONGER BE FOLLOWED.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, AUGUST 14, 1929:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 8, 1929, AS FOLLOWS:

REFERENCE IS MADE TO THAT PART OF SECTION 2 OF AN ACT MAKING APPROPRIATIONS FOR THE EXECUTIVE OFFICES AND SUNDRY INDEPENDENT EXECUTIVE BUREAUS, BOARDS, COMMISSIONS, AND OFFICES, FOR THE FISCAL YEAR ENDING JUNE 30, 1930, AND FOR OTHER PURPOSES, APPROVED FEBRUARY 20, 1929 (PUBLIC, NO. 778--- 70TH CONGRESS), WHICH READS AS FOLLOWS: PROVIDED, THAT THIS RESTRICTION SHALL NOT APPLY "/3) TO REQUIRE THE 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.'

IN VIEW OF THE FOREGOING PROVISION OF LAW YOUR DECISION IS REQUESTED ON A CASE NOW CONFRONTING THE BUREAU IN WHICH THE FACTS ARE AS FOLLOWS: THE BUREAU DESIRES TO TRANSFER AN EMPLOYEE NOW SERVING IN GRADE P AND S -5 AT A SALARY OF $5,000 PER ANNUM TO A VACANT POSITION WHICH HAS ALREADY BEEN ALLOCATED BY THE PERSONNEL CLASSIFICATION BOARD TO GRADE CAF-12. THE MATHEMATICAL AVERAGE FOR GRADE CAF-12 IS NOT NOW EXCEEDED AND WILL NOT BE EXCEEDED IF TRANSFER IS MADE AT THE SALARY THE EMPLOYEE NOW RECEIVES. MAY THE EMPLOYEE BE TRANSFERRED IN THE MANNER AND UNDER THE CONDITIONS ABOVE INDICATED WITHOUT LOSS OF SALARY?

IN DECISION DATED NOVEMBER 29, 1924, 4 COMP. GEN. 493, 498, THE FOLLOWING QUESTION PROPOUNDED BY THE CIVIL SERVICE COMMISSION, WAS STATED AND ANSWERED:

20. UNDER WHAT PAY CONDITIONS MAY AN EMPLOYEE BE REASSIGNED WITHIN THE SAME DEPARTMENT FROM A GRADE IN ANOTHER SERVICE HAVING THE SAME PAY RANGE?

THE TERM "SERVICE" IS DEFINED IN SECTION 2 OF THE CLASSIFICATION ACT AS "THE BROADEST DIVISION OF RELATED OFFICES AND EMPLOYMENTS," AND FIVE SERVICES HAVE BEEN ESTABLISHED BY THE ACT, VIZ, PROFESSIONAL AND SCIENTIFIC, SUBPROFESSIONAL, CLERICAL, ADMINISTRATIVE AND FISCAL, CUSTODIAL AND CLERICAL-MECHANICAL. THE DIFFERENCE IN THE EDUCATION, QUALIFICATIONS, EXPERIENCE, ETC., NECESSARY FOR EMPLOYMENT IN THESE SERVICES IS SO GREAT THAT IT IS NOT CLEARLY UNDERSTOOD HOW THERE COULD BE REASSIGNMENTS BETWEEN THE SERVICES WITHOUT CIVIL-SERVICE EXAMINATION OR AN EQUIVALENT TEST TO SHOW THE EMPLOYEE'S FITNESS. IT WOULD APPEAR THEREFORE THAT REASSIGNMENTS BETWEEN SERVICES WOULD IN FACT BE NEW APPOINTMENTS REQUIRING THE PAYMENT OF THE MINIMUM SALARY RATE OF THE GRADE TO WHICH THE EMPLOYEES ARE "REASSIGNED.' IN THIS CONNECTION SEE ANSWER TO QUESTION 10.

THIS DECISION WAS CITED AND FOLLOWED IN DECISION OF JANUARY 30, 1926, 5 COMP. GEN. 560.

THE RULE WAS FIRST ANNOUNCED PRIOR TO JULY 1, 1925, EFFECTIVE DATE OF THE FIRST ENACTMENT OF THE AVERAGE PROVISION IN THE ANNUAL APPROPRIATION ACTS, CONTAINING EXCEPTION (3) QUOTED IN YOUR SUBMISSION (ACT OF JANUARY 22, 1925, 43 STAT. 764), AT A TIME WHEN IT APPEARED THAT THE GENERAL INTENT OF THE CLASSIFICATION ACT AND THE AVERAGE PROVISION WAS THAT ALL NEW ENTRANCES INTO A GRADE, OF WHATEVER NATURE, SHOULD BE AT THE MINIMUM SALARY RATE OF THE GRADE. 4 COMP. GEN. 79; ID. 294.

THE CHANGE IN THE AVERAGE PROVISION TO AUTHORIZE TRANSFERS BETWEEN GRADES WITHOUT REDUCTION IN THE SALARY OF THE PERSONS TRANSFERRED, MAY BE CONSIDERED AS HAVING HAD TWO PURPOSES, (1) TO SAVE THE EMPLOYEES FROM LOSS OF SALARY, AND (2) TO AFFORD THE ADMINISTRATIVE OFFICES MORE LEEWAY IN THE ADJUSTMENT OF PERSONNEL, BOTH INTEROFFICE AND INTRAOFFICE, TO MEET THE VARYING NEEDS OF THE SERVICE. 4 COMP. GEN. 670. THE SAME MAY BE SAID AS TO THE DUAL PURPOSE OF SECTION 10 OF THE ORIGINAL CLASSIFICATION ACT, DATED MARCH 4, 1923, 42 STAT. 1491, PROVIDING IN PART AS FOLLOWS:

THAT, SUBJECT TO SUCH RULES AND REGULATIONS AS THE PRESIDENT MAY FROM TIME TO TIME PRESCRIBE, AND REGARDLESS OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT IN WHICH THE POSITION IS LOCATED, AN EMPLOYEE MAY BE TRANSFERRED FROM A POSITION IN ONE GRADE TO A VACANT POSITION WITHIN THE SAME GRADE AT THE SAME RATE OF COMPENSATION OR PROMOTED TO A VACANT POSITION IN A HIGHER GRADE AT A HIGHER RATE OF COMPENSATION, IN ACCORDANCE WITH THE CIVIL-SERVICE RULES, ANY PROVISION OF EXISTING STATUTES TO THE CONTRARY NOTWITHSTANDING: * * *

THE QUALIFICATIONS OF A PERSON WHOM IT IS PROPOSED TO TRANSFER FROM ONE SERVICE TO ANOTHER, AS FOR INSTANCE FROM PS-5 TO CAF-12, AS IN THE INSTANT CASE, IS EXCLUSIVELY A MATTER BETWEEN THE ADMINISTRATIVE OFFICE AND THE CIVIL SERVICE COMMISSION, AND IF SUCH A TRANSFER MEETS THE CONDITIONS PRESCRIBED BY REGULATIONS WHICH MAY BE ISSUED BY THE PRESIDENT THROUGH THE CIVIL SERVICE COMMISSION, OR OTHERWISE, IT IS BELIEVED THAT THE ABOVE- QUOTED PROVISIONS FROM THE AVERAGE CLAUSE AND THE CLASSIFICATION ACT, AUTHORIZING TRANSFERS WITHOUT LOSS IN SALARY, MAY BE CONSIDERED AS APPLICABLE. ACCORDINGLY, THE ABOVE-QUOTED RULE FIRST ANNOUNCED IN DECISION OF NOVEMBER 29, 1924, WHEREBY TRANSFERS BETWEEN SERVICES WERE CONSIDERED AS NEW APPOINTMENTS, IS NO LONGER FOR APPLICATION.