A-82238, DECEMBER 17, 1936, 16 COMP. GEN. 598

A-82238: Dec 17, 1936

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IF THE MINIMUM SALARY RATE OF THE HIGHER GRADE IN WHICH REINSTATED IS GREATER THAN THE SALARY RATE UPON SEPARATION. IS AS FOLLOWS: AS A RESULT OF THE DECISION OF YOUR OFFICE OF NOVEMBER 29. SEVERAL QUESTIONS HAVE PRESENTED THEMSELVES AND ARE BEING SUBMITTED TO YOU AS FOLLOWS: 1. THAT IS. IS THERE ANY DISTINCTION BETWEEEN APPOINTMENTS IN THE DISTRICT OF COLUMBIA AND IN THE FIELD SERVICE? 2. IF AN EMPLOYEE FORMERLY IN THE GRADE OF ASSOCIATE MARKETING SPECIALIST IS REINSTATED TO A POSITION IN A LOWER CLASSIFICATION GRADE. IS THERE ANY DISTINCTION BETWEEN APPOINTMENTS IN THE DISTRICT OF COLUMBIA AND IN THE FIELD SERVICE? REINSTATEMENTS HAVE NOT BEEN REGARDED AS NEW APPOINTMENTS WITHIN THE MEANING OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT OF MARCH 4.

A-82238, DECEMBER 17, 1936, 16 COMP. GEN. 598

INITIAL SALARY RATES OF EMPLOYEES UPON REINSTATEMENT SUBJECT TO THE AVAILABILITY OF APPROPRIATED FUNDS, AND REGARDLESS OF THE AVERAGE PROVISION, AN ADMINISTRATIVE OFFICE MAY, IN BOTH THE DEPARTMENTAL AND FIELD SERVICES, FIX THE INITIAL SALARY RATE OF AN EMPLOYEE REINSTATED IN THE SAME OR CORRESPONDING GRADE AT NOT TO EXCEED THE SALARY RATE UPON SEPARATION, AND WHERE REINSTATED IN A HIGHER OR LOWER GRADE AT ANY RATE WITHIN THE SALARY RANGE OF THAT GRADE NOT TO EXCEED THE SALARY RATE UPON SEPARATION, BUT IF THE MINIMUM SALARY RATE OF THE HIGHER GRADE IN WHICH REINSTATED IS GREATER THAN THE SALARY RATE UPON SEPARATION, THE MINIMUM SALARY RATE OF THE HIGHER GRADE SHALL BE PAID. RULE STATED IN 3 COMP. GEN. 1004, AND 4 ID. 493, MODIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, DECEMBER 17, 1936:

YOUR LETTER OF DECEMBER 2, 1936, IS AS FOLLOWS:

AS A RESULT OF THE DECISION OF YOUR OFFICE OF NOVEMBER 29, 1924 (4 COMP. GEN. 493), RELATIVE TO SALARY PAYMENTS UNDER THE CLASSIFICATION ACT, SEVERAL QUESTIONS HAVE PRESENTED THEMSELVES AND ARE BEING SUBMITTED TO YOU AS FOLLOWS:

1. IF A PERSON WHO OCCUPIES A POSITION OF ASSOCIATE MARKETING SPECIALIST AT $3,400 PER ANNUM RESIGNS HIS POSITION, AT WHAT SALARY CAN HE BE REINSTATED IN THE GRADE; THAT IS, MAY HE BE REINSTATED AT A SALARY ABOVE THAT WHICH HE RECEIVED AT THE TIME OF HIS RESIGNATION, OR MUST HE BE REINSTATED AT THE MINIMUM OF THE GRADE? IS THERE ANY DISTINCTION BETWEEEN APPOINTMENTS IN THE DISTRICT OF COLUMBIA AND IN THE FIELD SERVICE?

2. IF AN EMPLOYEE FORMERLY IN THE GRADE OF ASSOCIATE MARKETING SPECIALIST IS REINSTATED TO A POSITION IN A LOWER CLASSIFICATION GRADE, MUST HE BE APPOINTED AT THE MINIMUM SALARY OF THE LOWER GRADE OR MAY HE BE REINSTATED AT ANY SALARY WITHIN THE RANGE OF THE LOWER GRADE? COULD HE BE REINSTATED IN A HIGHER CLASSIFICATION AND BE PAID A SALARY AT A RATE IN EXCESS OF THE MINIMUM RATE OF THE HIGHER GRADE? IS THERE ANY DISTINCTION BETWEEN APPOINTMENTS IN THE DISTRICT OF COLUMBIA AND IN THE FIELD SERVICE?

NEITHER THE ORIGINAL CLASSIFICATION ACT, NOR ANY OF ITS AMENDMENTS, NOR ANY OTHER STATUTE PRESCRIBES A RULE FOR FIXING THE INITIAL SALARY RATE OF EMPLOYEES UPON REINSTATEMENT. REINSTATEMENTS HAVE NOT BEEN REGARDED AS NEW APPOINTMENTS WITHIN THE MEANING OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1490. IN THE DECISION OF JUNE 26, 1924, 3 COMP. GEN. 1004, A QUESTION WAS STATED AND ANSWERED AS FOLLOWS:

SECTION 6 OF THE CLASSIFICATION ACT OF 1923 PRESCRIBES INTER ALIA THAT "ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.' UNDER THIS REQUIREMENT ARE REINSTATEMENTS CONSIDERED TO BE NEW APPOINTMENTS?

REINSTATEMENTS TO EXISTING VACANCIES UNDER CIVIL-SERVICE RULES AND REGULATIONS ARE NOT "NEW APPOINTMENTS" WITHIN THE MEANING OF SECTION 6 OF THE CLASSIFICATION ACT. HOWEVER, A REINSTATEMENT IN AN OFFICE OTHER THAN THE ONE FROM WHICH THE SERVICES LAST TERMINATED, IF WITHIN THE SAME GRADE IN WHICH LAST SERVING, MAY NOT BE AT A SALARY GREATER THAN THAT WHICH THE EMPLOYEE WAS RECEIVING WHEN THE PRIOR SERVICE CEASED. IF SUCH SERVICE CEASED PRIOR TO JULY 1, 1924, THE SALARY OF THE POSITION AS CLASSIFIED WOULD BE THE DETERMINING FACTOR.

IN THE CITED DECISION OF NOVEMBER 29, 1924, 4 COMP. GEN. 493, REFERRED TO IN YOUR LETTER--- THEN APPLICABLE ONLY IN THE DISTRICT OF COLUMBIA--- IT WAS STATED (P. 496) AS FOLLOWS:

* * * WHERE THE QUESTION OF AVERAGE IS NOT INVOLVED, REINSTATEMENTS IN THE SAME OFFICE TO THE SAME GRADE FROM WHICH AN EMPLOYEE WAS PREVIOUSLY SEPARATED MAY BE AT ANY SALARY RATE OF THE GRADE WHETHER THE SEPARATION WAS PRIOR OR SUBSEQUENT TO JULY 1, 1924. WITH RESPECT TO SEPARATIONS PRIOR TO JULY 1, THE GRADE TO WHICH THE POSITION HELD BY THE EMPLOYEE WAS ALLOCATED WILL CONTROL. REINSTATEMENTS TO THE SAME GRADE IN ANOTHER OFFICE MAY NOT BE AT A SALARY GREATER THAN THAT WHICH THE EMPLOYEE WAS RECEIVING WHEN THE PRIOR SERVICE CEASED. 3 COMP. GEN. 1004. REINSTATEMENTS TO A DIFFERENT GRADE, WHETHER HIGHER OR LOWER THAN THE ONE FROM WHICH SEPARATED, EITHER PRIOR OR SUBSEQUENT TO JULY 1, 1924, MUST BE AT THE MINIMUM SALARY RATE OF THE GRADE.

WHILE THESE RULES HAVE NOT BEEN EXPRESSLY RESCINDED OR MODIFIED BY SUBSEQUENT DECISIONS, THEY HAVE BEEN AFFECTED BY THE MODIFICATION OF THE AVERAGE PROVISION, BY THE ENACTMENT OF THE BROOKHART SALARY ACT EXTENDING THE PRINCIPLES OF CLASSIFICATION TO THE FIELD SERVICE, AND BY THE EXTENSION BY EXECUTIVE ORDER OF THE TIME WITHIN WHICH AND THE CONDITIONS UNDER WHICH REINSTATEMENTS MAY BE MADE. HENCE, A RESTATEMENT OF THE RULES APPLICABLE TO REINSTATEMENTS AND A RECONCILIATION THEREOF WITH THE RULES APPLICABLE TO TRANSFERS OR REAPPOINTMENTS WOULD APPEAR ADVISABLE. SEE IN THIS CONNECTION DECISION OF AUGUST 6, 1935, 15 COMP. GEN. 102, IN WHICH IT WAS STATED:

THE RULE GOVERNING THE FIXING OF SALARY RATES UPON TRANSFER BETWEEN DIFFERENT DEPARTMENTS OR ESTABLISHMENTS OF THE GOVERNMENT, FROM A HIGHER TO A LOWER GRADE AS PRESCRIBED BY THE CLASSIFICATION ACT, WAS FIRST STATED IN DECISION OF JUNE 26, 1924, 3 COMP. GEN. 1001, 1006, BASED ON THE PROVISIONS OF SECTION 10 OF THE ORIGINAL CLASSIFICATION ACT OF 1923, 42 STAT. 1491, THE RULE BEING STATED AS FOLLOWS:

"* * * THEREFORE, AN EMPLOYEE TRANSFERRED FROM ONE GRADE TO A LOWER GRADE CAN BE TRANSFERRED TO A POSITION IN WHICH THERE IS A VACANCY IN THE GRADE TO WHICH TRANSFERRED AT A SALARY NOT IN EXCESS OF THE SALARY OF THE POSITION FROM WHICH TRANSFERRED, ASSUMING, OF COURSE, THAT THE TRANSFER IS AUTHORIZED UNDER THE PROVISIONS OF THE CLASSIFICATION ACT AND THE CIVIL SERVICE ACTS, AND THE REGULATIONS MADE IN PURSUANCE THEREOF.'

THIS RULE WAS RESTATED IN 4 COMP. GEN. 151; ID. 495, AND THE PRINCIPLE THEREOF--- THAT UPON ENTRANCE INTO A LOWER GRADE BY TRANSFER, REAPPOINTMENT, OR REALLOCATION FROM A HIGHER GRADE, THERE WAS REQUIRED ONLY SUCH REDUCTION IN COMPENSATION AS NECESSARY TO BRING THE SALARY RATE WITHIN THE RANGE OF THE LOWER GRADE--- HAS BEEN APPLIED IN 8 COMP. GEN. 400, AND 9 ID. 193. HENCE, TRANSFERS, REAPPOINTMENTS, OR REALLOCATIONS FROM A HIGHER TO A LOWER GRADE IN THE SAME OR DIFFERENT DEPARTMENT OR ESTABLISHMENT OF THE GOVERNMENT HAVE NOT BEEN REGARDED AS "NEW APPOINTMENTS" WITHIN THE MEANING OF RULE 6, SECTION 6, OF THE ORIGINAL CLASSIFICATION ACT.

IN VIEW OF THE PRESENT STATE OF THE LAW WITH REFERENCE TO THIS MATTER IT WOULD APPEAR THAT, SUBJECT TO THE AVAILABILITY OF APPROPRIATED FUNDS, AND REGARDLESS OF THE AVERAGE PROVISION, THE ADMINISTRATIVE OFFICE MAY, WITHIN ITS DISCRETION, FIX THE INITIAL SALARY RATE OF AN EMPLOYEE REINSTATED IN THE SAME OR CORRESPONDING GRADE AT NOT TO EXCEED THE SALARY RATE PAID UPON SEPARATION FROM THE SERVICE, AND MAY FIX THE INITIAL SALARY RATE OF AN EMPLOYEE REINSTATED IN A HIGHER OR LOWER GRADE AT ANY RATE WITHIN THE SALARY RANGE OF THAT GRADE NOT TO EXCEED THE SALARY RATE PAID UPON SEPARATION FROM THE SERVICE, PROVIDED THAT IF THE MINIMUM SALARY RATE OF THE HIGHER GRADE IN WHICH REINSTATED IS IN EXCESS OF THE SALARY RATE THE EMPLOYEE WAS RECEIVING AT TIME OF SEPARATION, THE MINIMUM SALARY RATE OF SUCH HIGHER GRADE SHALL BE PAID. THIS RULE IS FOR APPLICATION BOTH IN THE DEPARTMENTAL AND FIELD SERVICES.

ANSWERING QUESTION 1, THE EMPLOYEE MAY BE PAID INITIALLY UPON REINSTATEMENT NOT TO EXCEED $3,400 PER ANNUM.

ANSWERING QUESTION 2, IF THE REINSTATEMENT IS TO A LOWER GRADE THE APPOINTMENT MAY BE AT ANY SALARY RATE WITHIN SAID GRADE NOT IN EXCESS OF THE SALARY RATE BEING PAID AT TIME OF SEPARATION. IF THE REINSTATEMENT IS IN A HIGHER GRADE THE APPOINTMENT MUST BE AT THE MINIMUM SALARY RATE OF THE GRADE UNLESS SUCH RATE BE LESS THAN THE SALARY RATE AT TIME OF SEPARATION, IN WHICH EVENT THE APPOINTMENT MAY BE AT ANY SALARY RATE WITHIN THE GRADE NOT IN EXCESS OF THE SALARY RATE AT TIME OF SEPARATION.