A-40953, MARCH 17, 1932, 11 COMP. GEN. 352

A-40953: Mar 17, 1932

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AGAINST LOSS OF SALARY TO AN EMPLOYEE WHOSE POSITION IS REALLOCATED TO A LOWER GRADE BY THE ACTION OF THE PERSONNEL CLASSIFICATION BOARD. IS NOT APPLICABLE TO A FIELD POSITION OVER WHICH THE BOARD HAS NO JURISDICTION. NOR IS IT APPLICABLE TO PREVENT A REDUCTION IN SALARY OF AN EMPLOYEE WHOSE DUTIES AND/OR RESPONSIBILITIES ARE SO CHANGED AS TO REQUIRE ALLOCATION IN A LOWER GRADE. AS FOLLOWS: REFERENCE IS MADE TO YOUR NOTICE OF EXCEPTION. THERE WERE TWO EMPLOYEES ASSIGNED TO THE PORT OF PETERSBURG. THE MAN IN CHARGE IS GIVEN GRADE CAF-6. UNDER THIS PRACTICE THE POSITION OF DEPUTY COLLECTOR IN CHARGE AT PETERSBURG WAS ALLOCATED TO GRADE CAF-6. LATER THERE WAS A FALLING OFF IN CUSTOMS BUSINESS AT PETERSBURG.

A-40953, MARCH 17, 1932, 11 COMP. GEN. 352

CLASSIFICATION OF CIVILIAN EMPLOYEES - FIELD SERVICE - REDUCTION ON REALLOCATION THE SAVING CLAUSE IN THE PROVISO TO SECTION 4 OF THE CLASSIFICATION ACT, AS AMENDED BY SECTION 3 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, AGAINST LOSS OF SALARY TO AN EMPLOYEE WHOSE POSITION IS REALLOCATED TO A LOWER GRADE BY THE ACTION OF THE PERSONNEL CLASSIFICATION BOARD, IS NOT APPLICABLE TO A FIELD POSITION OVER WHICH THE BOARD HAS NO JURISDICTION, NOR IS IT APPLICABLE TO PREVENT A REDUCTION IN SALARY OF AN EMPLOYEE WHOSE DUTIES AND/OR RESPONSIBILITIES ARE SO CHANGED AS TO REQUIRE ALLOCATION IN A LOWER GRADE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, MARCH 17, 1932:

THERE HAS BEEN RECEIVED A LETTER DATED FEBRUARY 6, 1932, FROM THE ACTING COMMISSIONER OF CUSTOMS, AS FOLLOWS:

REFERENCE IS MADE TO YOUR NOTICE OF EXCEPTION, RECEIVED IN THIS BUREAU UNDER DATE OF DECEMBER 28, 1931, FROM THE COLLECTOR OF CUSTOMS AT NORFOLK, SUSPENDING VOUCHER 784 IN THE COLLECTOR'S ACCOUNTS FOR JUNE, 1931, COVERING THE AMOUNT IN EXCESS OF THE MAXIMUM RATE OF PAY FOR CLASSIFICATION GRADE CAF-5, PAID JOHN S. EPES, DEPUTY COLLECTOR IN CHARGE AT THE PORT OF PETERSBURG.

PRIOR TO JANUARY 1, 1931, THERE WERE TWO EMPLOYEES ASSIGNED TO THE PORT OF PETERSBURG, THE DEPUTY COLLECTOR IN CHARGE AT THAT PLACE HAVING SUPERVISION OVER ONE EMPLOYEE. UNDER THE PRESENT CLASSIFICATION SCHEDULE FOR THE CUSTOMS FIELD SERVICE AT PORTS OF ENTRY WHERE THE BUSINESS JUSTIFIES THE ASSIGNMENT OF TWO FULL-TIME EMPLOYEES, THE MAN IN CHARGE IS GIVEN GRADE CAF-6. THEREFORE, UNDER THIS PRACTICE THE POSITION OF DEPUTY COLLECTOR IN CHARGE AT PETERSBURG WAS ALLOCATED TO GRADE CAF-6. LATER THERE WAS A FALLING OFF IN CUSTOMS BUSINESS AT PETERSBURG; IT WAS FOUND THAT ONE MAN COULD TAKE CARE OF THE BUSINESS AT THAT PORT; AND THE FORCE WAS ACCORDINGLY REDUCED TO ONE EMPLOYEE. AS DEPUTY COLLECTORS IN CHARGE AT PORTS OF ENTRY IN THE CUSTOMS FIELD SERVICE WHERE THE BUSINESS DOES NOT WARRANT THE EMPLOYMENT OF MORE THAN ONE PERSON, ARE GIVEN GRADE CAF-5, IT WAS NECESSARY TO REDUCE THE CLASSIFICATION GRADE OF MR. EPES FROM CAF-6 TO CAF-5. THIS ACTION WAS APPROVED IN BUREAU LETTER OF DECEMBER 17, 1930, EFFECTIVE AS OF JANUARY 1, 1931.

WHILE MR. EPES AT THE TIME OF HIS REDUCTION IN GRADE WAS RECEIVING $2,900 PER ANNUM, WHICH IS $300 ABOVE THE MAXIMUM OF GRADE CAF-5, NO CHANGE WAS MADE IN HIS RATE OF PAY. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO SECTION 4 OF THE BROOKHART ACT, WHICH READS AS FOLLOWS:

"PROVIDED FURTHER, THAT IN ALL CASES WHERE THE BOARD SHALL CHANGE THE ALLOCATION OF A POSITION TO A LOWER GRADE THE RATE OF PAY FIXED FOR SUCH POSITION PRIOR TO SUCH CHANGE MAY BE CONTINUED SO LONG AS THE POSITION IS HELD BY THE INCUMBENT THEN OCCUPYING IT.'

THE QUOTED PROVISO FROM SECTION 4 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY SECTION 3 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, IS NOT APPLICABLE IN THIS CASE, FOR TWO REASONS--- (1) THE EMPLOYEE IS IN THE FIELD SERVICE OVER WHICH THE "BOARD," MEANING THE PERSONNEL CLASSIFICATION BOARD, HAS NO JURISDICTION; AND (2) THE ACTION TAKEN BY THE ADMINISTRATIVE OFFICE, IN EFFECT, WAS NOT THE ALLOCATION OR PLACEMENT OF THE SAME POSITION IN A LOWER GRADE, BUT THE CREATION OF A DIFFERENT POSITION WITH SUCH DUTIES AND RESPONSIBILITIES AS REQUIRED ITS ALLOCATION OR PLACEMENT IN A LOWER GRADE.

SECTION 4 OF THE ORIGINAL CLASSIFICATION ACT, AND AS AMENDED, PRESCRIBES A PROCEDURE INCIDENT TO THE ALLOCATION AND REALLOCATION OF POSITIONS FOR THE GUIDANCE OF THE PERSONNEL CLASSIFICATION BOARD, WHICH HAS JURISDICTION ONLY IN THE DEPARTMENTAL SERVICE IN THE DISTRICT OF COLUMBIA. HENCE, THE SAVING CLAUSE IN THE PROVISO TO THE SECTION CAN HAVE NO APPLICATION TO EMPLOYEES IN POSITIONS THE ALLOCATION OF WHICH IS NOT SUBJECT TO APPROVAL BY THE PERSONNEL CLASSIFICATION BOARD. THE BASIS FOR THE SAVING CLAUSE WAS THE JOINT JURISDICTION OF THE ADMINISTRATIVE OFFICE AND THE PERSONNEL CLASSIFICATION BOARD IN THE ALLOCATION AND REALLOCATION OF POSITIONS IN THE DEPARTMENTAL SERVICE AND TO PREVENT REDUCTION IN THE SALARY RATES OF EMPLOYEES REMAINING IN THE SAME POSITION BY THE FINAL ACTION OF AN AGENCY OUTSIDE THE ADMINISTRATIVE OFFICE IN WHICH THE EMPLOYEE IS SERVING. AS TO THE FIELD SERVICE, WHERE THE ALLOCATION AND REALLOCATION OF POSITIONS, PURSUANT TO THE PRINCIPLES OF CLASSIFICATION, ARE EXCLUSIVELY AN ADMINISTRATIVE MATTER, THERE IS NOT PRESENT THE CONDITIONS WHICH PROMPTED THE ENACTMENT OF THE SAVING CLAUSE IN QUESTION.

THE SAVING CLAUSE IS PERSONAL TO AN EMPLOYEE AND REMAINS APPLICABLE ONLY SO LONG AS THE EMPLOYEE REMAINS IN THE SAME POSITION HAVING THE SAME DUTIES AND RESPONSIBILITIES. OBVIOUSLY, IN THE INSTANT CASE, WHILE THE DUTIES MAY HAVE REMAINED PARTIALLY THE SAME AFTER THE REDUCTION IN THE NUMBER OF EMPLOYEES FROM TWO TO ONE, THE DUTIES AND RESPONSIBILITIES WERE CHANGED FROM THOSE INVOLVING SUPERVISION TO THOSE INVOLVING NO SUPERVISION. EVEN IF APPLICABLE TO THE FIELD SERVICE, THE SAVING CLAUSE COULD NOT BE INVOKED IN THIS CASE, FOR THE REASON THAT THE EMPLOYEE DID NOT REMAIN IN THE SAME POSITION ON AND AFTER JANUARY 1, 1931, WITHIN THE MEANING OF ITS TERMS.

YOU ARE ADVISED, THEREFORE, THAT THE MAXIMUM SALARY RATE LAWFULLY PAYABLE TO THIS EMPLOYEE FROM AND AFTER JANUARY 1, 1931, THE EFFECTIVE DATE OF THE ADMINISTRATIVE ACTION CHANGING THE DUTIES AND RESPONSIBILITIES OF THE POSITION AND ALLOCATING THE SAME IN GRADE CAF 5, WAS $2,600 PER ANNUM, THE MAXIMUM SALARY RATE OF THE GRADE. THE SALARY OF THE EMPLOYEE SHOULD BE ADJUSTED ACCORDINGLY. ACTION IN THE AUDIT OF ACCOUNTS WILL BE TAKEN PURSUANT HEREWITH.