A-85715, MAY 5, 1937, 16 COMP. GEN. 979

A-85715: May 5, 1937

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COMPENSATION - REDUCTION - DELAYED NOTICE TO EMPLOYEE AND ATTEMPTED CHANGE OF EFFECTIVE DATE WHERE THE APPOINTING POWER IS IN THE HEAD OF A DEPARTMENT AND NOT IN A SUBORDINATE FIELD OFFICER. THE DEMOTION OF A FIELD EMPLOYEE UPON RECOMMENDATION OF THE FIELD SUBORDINATE IS NOT EFFECTIVE PRIOR TO THE DATE OF APPROVAL BY THE HEAD OF THE DEPARTMENT. KINGSLEY WAS PREVIOUSLY EMPLOYED ECW PROJECT SUPERINTENDENT AT $220 PER MONTH. HIS POSITION WAS CLASSIFIED AS ECW SENIOR PROJECT SUPERINTENDENT. THIS SERVICE WAS CONTINUOUS IN THAT CAMP TO AND INCLUDING MARCH 15. ON WHICH DATE HE WAS TRANSFERRED TO CAMP SP-51. THIS WAS APPROVED BY THE SECRETARY OF THE INTERIOR ON ECW ORDER NO. 608. WAS NOT RECEIVED IN THE OFFICE OF THE NATIONAL PARK SERVICE.

A-85715, MAY 5, 1937, 16 COMP. GEN. 979

COMPENSATION - REDUCTION - DELAYED NOTICE TO EMPLOYEE AND ATTEMPTED CHANGE OF EFFECTIVE DATE WHERE THE APPOINTING POWER IS IN THE HEAD OF A DEPARTMENT AND NOT IN A SUBORDINATE FIELD OFFICER, THE DEMOTION OF A FIELD EMPLOYEE UPON RECOMMENDATION OF THE FIELD SUBORDINATE IS NOT EFFECTIVE PRIOR TO THE DATE OF APPROVAL BY THE HEAD OF THE DEPARTMENT, AND MAY NOT BE MADE RETROACTIVELY EFFECTIVE FROM THE DATE FIXED BY THE SUBORDINATE. THE DEMOTION OF AN EMPLOYEE, INVOLVING A CHANGE OF DUTIES, FROM A SALARY RATE IN ONE CLASSIFICATION ACT GRADE TO A LOWER SALARY RATE IN A LOWER GRADE THE SALARY RANGE OF WHICH ALSO INCLUDES THE RATE RECEIVED BY THE EMPLOYEE IN THE HIGHER GRADE, MAY NOT BE MADE EFFECTIVE PRIOR TO RECEIPT OF NOTICE BY THE EMPLOYEE. THE HEAD OF A DEPARTMENT, THE APPOINTING POWER, MAY NOT RESCIND RETROACTIVELY EFFECTIVE A PRIOR ORDER, REDUCING AN EMPLOYEE, WHICH HAS BECOME EFFECTIVE.

DECISION BY ACTING COMPTROLLER GENERAL ELLIOTT, MAY 5, 1937:

E. A. KINGSLEY HAS FILED CLAIM FOR THE AMOUNT OF $198.35, DIFFERENCE BETWEEN $2,700 AND $2,300 PER ANNUM IN SALARY, FOR THE PERIOD MAY 1 TO JULY 24, 1936 ($93.35), AND REFUND OF DEDUCTIONS OF $35 PER MONTH FOR MAY, JUNE, AND JULY 1936 ($105), ON ACCOUNT OF ALLEGED INDEBTEDNESS DUE TO OVERPAYMENT IN SALARY FROM MAY 16, 1935, TO APRIL 30, 1936, IN THE AMOUNT OF $383.41, AS AN EMERGENCY CONSERVATION WORK EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR, NATIONAL PARK SERVICE.

THE RECORDS SHOW THAT MR. KINGSLEY WAS PREVIOUSLY EMPLOYED ECW PROJECT SUPERINTENDENT AT $220 PER MONTH, IN SP-14, TEXAS, AND ON JANUARY 1, 1935, HIS POSITION WAS CLASSIFIED AS ECW SENIOR PROJECT SUPERINTENDENT, FCS-11, AT A SALARY RATE OF $2,700 PER ANNUM. THIS SERVICE WAS CONTINUOUS IN THAT CAMP TO AND INCLUDING MARCH 15, 1935, ON WHICH DATE HE WAS TRANSFERRED TO CAMP SP-51, TEXAS.

ON JUNE 14, 1935, THE PROCUREMENT OFFICER, NATIONAL PARK SERVICE, AUSTIN, TEX., SUBMITTED A RECOMMENDATION TO THE SECRETARY OF THE INTERIOR FOR THE CONFIRMATION OF THE TRANSFER AND CHANGE IN STATUS OF MR. KINGSLEY, EFFECTIVE MAY 16, 1935, FROM SENIOR SUPERINTENDENT AT $2,700 PER ANNUM, GRADE FCS-11, IN SP-14, TO PROJECT SUPERINTENDENT AT $2,300 PER ANNUM, GRADE FCS-10, IN SP-51, TEXAS. THIS WAS APPROVED BY THE SECRETARY OF THE INTERIOR ON ECW ORDER NO. 608, DATED JULY 11, 1935. NOTICE OF THIS APPROVAL, HOWEVER, WAS NOT RECEIVED IN THE OFFICE OF THE NATIONAL PARK SERVICE, AUSTIN, TEX., UNTIL APPROXIMATELY 1 YEAR LATER, NOR WAS MR. KINGSLEY INFORMED OF THIS REDUCTION IN SALARY. ON JULY 25, 1936, ORDER NO. 927-ECW, WAS APPROVED BY THE SECRETARY OF THE INTERIOR AMENDING ORDER NO. 608-ECW TO BECOME EFFECTIVE JULY 25, 1936, SUBJECT TO TAKING OATH OF OFFICE. BEGINNING MAY 1, 1936, THROUGH JULY 24, 1936 (THE DAY IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE LATER ORDER), CLAIMANT WAS PAID AT THE REDUCED RATE--- THE REDUCTION OF SALARY OVER THIS PERIOD AMOUNTING TO $93.35. ALSO, COLLECTIONS WERE MADE AT THE RATE OF $35 A MONTH FROM THE SALARY DUE FOR THE MONTHS OF MAY, JUNE, AND JULY 1936 TO APPLY AGAINST THE ALLEGED OVERPAYMENT OF SALARY OVER THE PERIOD MAY 16, 1935, TO APRIL 30, 1936- - THE TOTAL COLLECTION FOR THE 3 MONTHS AMOUNTING TO $105. CLAIM IS, THEREFORE; BEING MADE FOR THE AMOUNT OF THE REDUCTION IN SALARY ($93.35) PLUS THE AMOUNT THUS COLLECTED ($105), OR A TOTAL OF $198.35.

AN EXPLANATION OF THE ADMINISTRATIVE ACTION TAKEN IN THIS CASE IS MADE IN LETTER DATED AUGUST 29, 1936, FROM THE TEXAS PROCUREMENT OFFICE TO THE FINANCE OFFICER, U.S. ARMY, FORT SAM HOUSTON, TEX., IN PART AS FOLLOWS:

ON MAY 16, 1935, MR. KINGSLEY WAS SENT FROM THE PALO DURO STATE PARK TO LOCKHART STATE PARK. PALO DURO STATE PARK HAD TWO COMPANIES AND THEREFORE THE SUPERINTENDENT AT THAT PARK CARRIED A RATING OF $2,700 PER ANNUM. THE LOCKHART PROJECT HAD ONLY ONE COMPANY AND THE SUPERINTENDENT AT THAT PARK CARRIED A RATING OF ONLY $2,300.00 PER ANNUM. PAPERS WERE PREPARED CONFIRMING THIS MOVE OF MR. KINGSLEY, RECOMMENDING A REDUCTION IN SALARY FROM $2,700.00 PER ANNUM TO $2,300.00 PER ANNUM, BUT NOTHING FURTHER WAS HEARD BY THIS OFFICE CONCERNING THE RECOMMENDATION UNTIL A LETTER OF MAY 14, 1936 FROM THE REGIONAL OFFICE IN OKLAHOMA CITY ADVISING US THAT THE TRANSFER HAD BEEN APPROVED EFFECTIVE MAY 16, 1935.

WE WERE ADVISED IN THIS SAME LETTER THAT THIS REDUCTION WAS APPROVED BY THE SECRETARY ON ECW ORDER NO. 608-ECW, DATED JULY 11, 1935. OF COURSE, THIS NECESSITATED A REIMBURSEMENT FROM MR. KINGSLEY FROM THE EFFECTIVE DATE, MAY 16, 1935, TO APRIL 30, 1936, THE PERIOD FOR WHICH HE WAS OVERPAID. THIS OFFICE ARRANGED WITH MR. KINGSLEY TO EFFECT THIS REIMBURSEMENT BY DEDUCTING $35.00 PER MONTH FROM HIS PAY UNTIL THE TOTAL AMOUNT WAS COLLECTED.

WE POINTED OUT TO OUR REGIONAL OFFICER, WHO IN TURN POINTED OUT TO OUR WASHINGTON OFFICE THAT NEITHER THIS OFFICE NOR THE REGIONAL OFFICE HAD EVER BEEN NOTIFIED NOR FURNISHED A COPY OF THE SECRETARY'S ORDER NO. 608- ECW OF JULY 11, 1935. IN VIEW OF THIS NONNOTIFICATION AND OF THE HARDSHIP INFLICTED ON MR. KINGSLEY THROUGH NO FAULT OF HIS OWN, THE WASHINGTON OFFICE RECOMMENDED TO THE SECRETARY THAT HIS ORIGINAL ORDER NO. 608-ECW BE AMENDED SO THAT THE REDUCTION WOULD BECOME EFFECTIVE AT A DATE TO MORE NEARLY CORRESPOND TO THE ACTUAL NOTIFICATION TO MR. KINGSLEY.

IN VIEW OF THIS RECOMMENDATION, THE SECRETARY AMENDED HIS ORIGINAL ORDER WHICH STATED THAT THE REDUCTION WOULD BECOME EFFECTIVE MAY 16, 1935, BY HIS ORDER NO. 927-ECW, WHICH STATES THE REDUCTION IS TO BECOME EFFECTIVE JULY 25, 1936. IN VIEW OF THIS ORDER, IT IS OUR INTERPRETATION THAT MR. KINGSLEY WAS ENTITLED TO HIS $2,700.00 PER ANNUM UP TO JULY 25, 1936. WE, THEREFORE, PREPARED SUPPLEMENTAL PAY ROLLS TO COVER THE AMOUNT ERRONEOUSLY DEDUCTED FROM HIS PAY. THESE PAY ROLLS ARE AGAIN RETURNED HEREWITH.

REGULATIONS FOR THE GOVERNMENT OF THE PERSONNEL IN STATE PARKS, EMERGENCY CONSERVATION WORK, PROMULGATED PRIOR TO THE TIME HERE INVOLVED, CONTAINED THE FOLLOWING PROVISIONS:

ALL APPOINTMENTS TO SALARIED POSITIONS EXCEPT CAMP FACILITATING PERSONNEL IN STATE PARK EMERGENCY CONSERVATION WORK, REGARDLESS OF THE SOURCE OF RECOMMENDATIONS, ARE MADE BY THE SECRETARY OF THE INTERIOR. * * *

(A) ALL APPOINTMENTS MADE OVER THE SIGNATURE OF THE SECRETARY OF THE INTERIOR IN CONNECTION WITH STATE PARK CONSERVATION WORK MUST REMAIN IN FORCE UNTIL THE SECRETARY HAS APPROVED THE APPOINTEE'S RELEASE, WHETHER THIS RELEASE BE BY DISCHARGE OR BY THE ACCEPTANCE OF THE APPOINTEE'S RESIGNATION.

THE FOLLOWING IS A TABULATION OF THE APPROVED CLASSIFICATION AND SALARIES FOR CAMP SUPERVISORY FACILITATING PERSONNEL: SENIOR PROJECT SUPERINTENDENT (IN CHARGE OF MORE THAN

ONE CAMP OF 200 MEN) -------------------------------- $2,600 PER ANNUM PROJECT SUPERINTENDENT (IN CHARGE OF A SINGLE CAMP OF

200 MEN) -------------------------------------------- $2,300 PER ANNUM

AS THE EMPLOYEE WAS PAID $2,700 PER ANNUM IN HIS FIRST POSITION AND AS THE APPOINTMENTS OF THESE EMPLOYEES ARE MADE TO, AND SHOWN ON THE PAY ROLLS IN FCS (FIELD CLASSIFICATION SCHEDULE) GRADES, CORRESPONDING WITH CLASSIFICATION ACT GRADES, IT IS UNDERSTOOD THAT THE RATES STATED IN THE REGULATIONS ARE MERELY INTENDED TO BE THE MINIMUM OF THE FCS GRADES IN WHICH THE SEVERAL CLASSES OF POSITIONS MENTIONED IN THE REGULATIONS HAD BEEN ADMINISTRATIVELY ALLOCATED. THE SALARY RATE OF $2,700 PER ANNUM RECEIVED BY CLAIMANT IN HIS FIRST POSITION IS THE SECOND RATE OF GRADE FCS -11, CORRESPONDING WITH GRADE CAF-7, WITH SALARY RANGE FROM $2,600 TO $3,200 PER ANNUM, AND THE SALARY RATE OF $2,300 PER ANNUM RECEIVED BY CLAIMANT IN HIS SECOND POSITION IS THE MINIMUM SALARY RATE OF GRADE FCS- 10, CORRESPONDING WITH GRADE CAF-6 WITH SALARY RANGE FROM $2,300 TO $2,900 PER ANNUM.

SINCE THE RATE OF $2,700 PER ANNUM APPEARS IN EACH OF THESE GRADES, THE LOCAL ADMINISTRATIVE ACTION, EFFECTIVE MAY 15, 1935, TRANSFERRING CLAIMANT FROM THE ONE POSITION TO THE OTHER DID NOT AUTOMATICALLY REDUCE HIS SALARY RATE. FURTHERMORE, AS THE REGULATIONS PROVIDE THAT BOTH OF CLAIMANT'S APPOINTMENTS WERE REQUIRED TO BE MADE BY THE SECRETARY OF THE INTERIOR, AND ONLY THE SECRETARY COULD RELEASE HIM FROM SERVICE UNDER AN APPOINTMENT, THE RECOMMENDATION OF THE FIELD OFFICER DATED JUNE 14, 1935, FOR REDUCTION OF CLAIMANT'S SALARY DID NOT OF ITSELF REDUCE THE SALARY. UNDER THE CITED REGULATIONS AND PURSUANT TO THE GENERAL RULE IN CASES WHERE THERE IS NO APPOINTING POWER IN THE SUBORDINATE OFFICIAL, THE ACTION OF THE SECRETARY OF THE INTERIOR, DATED JULY 11, 1935, APPROVING THE CLAIMANT'S CHANGE IN STATUS HAD NO RETROACTIVE EFFECT.

THE PRIMARY QUESTION IN THIS CASE IS, THEREFORE, WHETHER THE DEMOTION OF THE EMPLOYEE WAS EFFECTIVE FROM JULY 11, 1935, THE DATE OF THE ACTION BY THE SECRETARY OF THE INTERIOR, THE APPOINTING POWER, OR MAY 1, 1936, EFFECTIVE DATE OF THE REDUCTION IN COMPENSATION WHICH SERVED AS THE FIRST NOTICE TO THE EMPLOYEE OF HIS DEMOTION. IN DECISION OF FEBRUARY 28, 1924, 3 COMP. GEN. 559, 561, IT WAS STATED.

* * * ORIGINAL APPOINTMENTS TO POSITIONS IN THE CLASSIFIED CIVIL SERVICE AND PROMOTIONS THEREIN INVOLVING A CHANGE IN DUTIES ARE EFFECTIVE ONLY FROM DATE OF ACCEPTANCE AND ENTRANCE UPON DUTY AFTER NOTICE OF APPOINTMENT. * * *

THE SAME IS TRUE OF DEMOTIONS AS WELL AS PROMOTIONS INVOLVING A CHANGE OF DUTIES.

UNDER THE SAME GENERAL RULE THE ACTION OF THE SECRETARY OF THE INTERIOR OF JULY 25, 1936, ATTEMPTING TO RESCIND HIS ACTION OF JULY 11, 1935, AND POSTPONE THE EFFECTIVE DATE OF THE DEMOTION OR REDUCTION IN COMPENSATION TO JULY 26, 1936, WAS WITHOUT FORCE AND EFFECT.

IT IS A WELL ESTABLISHED RULE THAT WHERE THE RIGHT OF AN EMPLOYEE TO COMPENSATION FIXED BY CONTRACT OF EMPLOYMENT OR APPOINTMENT HAS ACCRUED BY SERVICE, IT CANNOT BE LAWFULLY INCREASED OR DIMINISHED. 5 COMP. DEC. 216; 15 ID. 703; 17 ID. 15; 20 ID. 214; 24 ID. 582, 585; 26 ID. 432; OGDEN V. UNITED STATES, 27 CT.CLS. 469. IN 15 COMP. DEC. 703, 705, CITED ABOVE, IT WAS STATED:

* * * NO OFFICE OF THE GOVERNMENT IS AUTHORIZED, AFTER FIXING THE COMPENSATION OF A GOVERNMENT OFFICIAL WHERE HE IS AUTHORIZED BY LAW TO FIX IT, TO INCREASE OR DECREASE THE SAME AFTER THE SERVICE HAS BEEN RENDERED UNDER THE CONTRACT SO FIXING IT. * * *

OF COURSE, THIS RULE IS NOT APPLICABLE WHERE A LOWER RATE HAS PREVIOUSLY BEEN FIXED BY LAW OR REGULATION ISSUED PURSUANT TO LAW WHETHER OR NOT THE EMPLOYEE HAD NOTICE. DECISION OF JULY 18, 1924, A 3285. IN THE INSTANT CASE THE REGULATIONS ARE INTERPRETED AS FIXING $2,300 AND $2,600 PER ANNUM AS THE MINIMUM RATES OF THE GRADES IN WHICH THE POSITIONS WERE ALLOCATED, AND, ACCORDINGLY, THAT $2,300 PER ANNUM WAS NOT THE ONLY RATE THAT COULD HAVE BEEN PAID CLAIMANT AFTER HIS TRANSFER MAY 15, 1935, BUT THAT HE COULD HAVE CONTINUED AT THE RATE OF $2,700 PER ANNUM HAD THE SECRETARY OF THE INTERIOR, THE APPOINTING POWER, SO DETERMINED.

IT IS CONCLUDED, THEREFORE, THAT CLAIMANT'S REDUCTION FROM $2,700 TO $2,300 PER ANNUM WAS EFFECTIVE FROM AND AFTER MAY 1, 1936, THE EFFECTIVE DATE OF THE ACTUAL REDUCTION IN COMPENSATION, PRIOR TO WHICH NEITHER HE NOR THE LOCAL ADMINISTRATIVE OFFICE HAD RECEIVED NOTICE OF THE DEMOTION. ACCORDINGLY, SETTLEMENT WILL ISSUE IN FAVOR OF THE CLAIMANT FOR $105, THE AMOUNT WITHHELD FROM HIS SALARY FOR ALLEGED OVERPAYMENTS OF COMPENSATION MADE FOR PERIODS PRIOR TO MAY 1, 1936, AND CREDIT WILL BE ALLOWED IN THE ACCOUNTS OF THE DISBURSING OFFICERS FOR PAYMENTS OF COMPENSATION TO CLAIMANT AT THE RATE OF $2,700 PER ANNUM FOR PERIODS PRIOR TO MAY 1, 1936.

THE CLAIM FOR $93.35 REPRESENTING THE DIFFERENCE IN COMPENSATION BETWEEN $2,700 AND $2,300 PER ANNUM FOR THE PERIOD MAY 1 TO JULY 24, 1936, IS DISALLOWED.