A-85998, MAY 10, 1937, 16 COMP. GEN. 994

A-85998: May 10, 1937

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APPOINTMENTS - NEWLY CLASSIFIED POSITIONS - RATE IN EXCESS OF MINIMUM OF THE GRADE WHERE THE SALARY AN EMPLOYEE WAS RECEIVING AT THE TIME HIS POSITION WAS CLASSIFIED HAD BEEN REGULARLY FIXED AT A RATE NOT INCONSISTENT WITH THE PROVISIONS OF THE CLASSIFICATION ACT AND HAS BEEN ATTAINED BY REASON OF EXTENDED EFFICIENT SERVICE ON THE SAME JOB. THE RATE SO FIXED IS ONE OF THE RATES PRESCRIBED FOR THE GRADE TO WHICH THE POSITION HAS BEEN ALLOCATED. REDUCTION IN SALARY TO THE MINIMUM OF THE GRADE IS NOT REQUIRED UPON APPOINTMENT TO THE NEWLY CLASSIFIED POSITION. IS AS FOLLOWS: THE BUREAU OF ANIMAL INDUSTRY OF THIS DEPARTMENT. THIS EMPLOYEE WAS SUBSEQUENTLY PROMOTED WITH INCREASES IN SALARY TO $1.

A-85998, MAY 10, 1937, 16 COMP. GEN. 994

APPOINTMENTS - NEWLY CLASSIFIED POSITIONS - RATE IN EXCESS OF MINIMUM OF THE GRADE WHERE THE SALARY AN EMPLOYEE WAS RECEIVING AT THE TIME HIS POSITION WAS CLASSIFIED HAD BEEN REGULARLY FIXED AT A RATE NOT INCONSISTENT WITH THE PROVISIONS OF THE CLASSIFICATION ACT AND HAS BEEN ATTAINED BY REASON OF EXTENDED EFFICIENT SERVICE ON THE SAME JOB, AND THE RATE SO FIXED IS ONE OF THE RATES PRESCRIBED FOR THE GRADE TO WHICH THE POSITION HAS BEEN ALLOCATED, REDUCTION IN SALARY TO THE MINIMUM OF THE GRADE IS NOT REQUIRED UPON APPOINTMENT TO THE NEWLY CLASSIFIED POSITION.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, MAY 10, 1937:

YOUR LETTER OF MAY 4, 1936, IS AS FOLLOWS:

THE BUREAU OF ANIMAL INDUSTRY OF THIS DEPARTMENT, ON JUNE 16, 1924, EMPLOYED AN UNSKILLED LABORER AT A SALARY OF $780 PER ANNUM. THIS EMPLOYEE WAS SUBSEQUENTLY PROMOTED WITH INCREASES IN SALARY TO $1,020, $1,140, AND $1,320, PER ANNUM, WHICH IS HIS PRESENT SALARY. HIS DUTIES ARE AS FOLLOWS:

HANDLES THE SHORTHORN HERD. DOES THE MILKING, TAKES CARE OF BREEDING AND FEEDING WITH RECORDS AS REQUIRED. ASSISTS WITH FARM OPERATIONS AS REQUIRED, ESPECIALLY DURING THE EXTREMELY BUSY PERIOD. APPROXIMATELY 75 PERCENT OF TIME WITH THE HERD, AND 25 PERCENT OF TIME WITH OTHER FARM OPERATIONS.

RECENTLY THE UNITED STATES CIVIL SERVICE AUTHORITIES IN THE BOSTON DISTRICT REVIEWED THE VARIOUS UNSKILLED LABOR POSITIONS AT THE MIDDLEBURY, VERMONT, STATION AND SUBSEQUENTLY CIVIL SERVICE EXAMINATIONS WERE HELD TO PROVIDE ELIGIBLES FOR APPOINTMENT TO THOSE POSITIONS. THE UNSKILLED LABORER IN QUESTION SUCCESSFULLY PASSED THE EXAMINATION AND HIS NAME HAS BEEN CERTIFIED BY THE FIRST CIVIL SERVICE DISTRICT FOR A PROBATIONAL APPOINTMENT AS A SENIOR LABORER AT THE SALARY OF $1,320 PER ANNUM. THE ENTRANCE SALARY FOR THE GRADE TO WHICH THE LABORER HAS BEEN TEMPORARILY ALLOCATED, CU-3, IS $1,200 PER ANNUM. YOUR ADVICE IS HEREBY REQUESTED AS TO THE AUTHORITY OF THIS DEPARTMENT TO GIVE THE LABORER IN QUESTION A PROBATIONAL APPOINTMENT IN THE CLASSIFIED CIVIL SERVICE AS A SKILLED LABORER IN GRADE CU-3 AT A SALARY OF $1,320 PER ANNUM, WHICH IS IN EXCESS OF THE ENTRANCE SALARY OF THAT GRADE.

WE ARE AWARE THAT UNDER SECTION 6 OF THE CLASSIFICATION ACT OF 1923 (42 STAT. 1490,"ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.'

SECTION 7 OF THE SAME ACT, HOWEVER, PROVIDES THAT "INCREASES IN COMPENSATION SHALL BE ALLOWED UPON THE ATTAINMENT AND MAINTENANCE OF THE APPROPRIATE EFFICIENCY RATINGS, TO THE NEXT HIGHER RATE WITHIN THE SALARY RANGE. * * *

IT WOULD APPEAR, IN VIEW OF SECTION 6, SUPRA, THAT THE APPOINTMENT OF THE LABORER IN QUESTION MUST BE MADE AT THE MINIMUM RATE OF THE GRADE, I.E., $1,200, BUT AS A PRACTICAL MATTER IT OCCURS TO US THAT THERE IS A POSSIBILITY OF MAKING THE APPOINTMENT IN QUESTION AT THE MINIMUM OF THE GRADE AND GIVING THE EMPLOYEE CONCERNED A PROMOTION WITHIN THE GRADE SIMULTANEOUSLY WITH THE APPOINTMENT. OUR ATTENTION IS DIRECTED TO THIS POSSIBILITY BY AT LEAST THREE DECISIONS WHICH HAVE EMANATED FROM YOUR OFFICE. IN A DECISION OF JULY 19, 1924 (4 COMP. GEN. 77), IT WAS HELD THAT (QUOTING FROM THE SYLLABUS):

"THE COMPENSATION OF AN EMPLOYEE MAY BE INCREASED FROM THE MINIMUM TO THE MAXIMUM RATE IN THE SAME GRADE, IF THE PROPER AVERAGE IS MAINTAINED AND HE HAS ATTAINED THE REQUIRED EFFICIENCY RATING, BY ONE ADMINISTRATIVE ACTION CONSTITUTING IN EFFECT A SERIES OF PROMOTIONS SIMULTANEOUSLY EFFECTIVE.'

IN A DECISION OF NOVEMBER 29, 1924 (4 COMP. GEN. 493), YOU ADDRESSED AN ANSWER TO THE FOLLOWING QUESTION:

"8. WHEN THE AVERAGE PROVISION IS NOT A FACTOR, MAY AN EMPLOYEE WHO IS TRANSFERRED FROM ONE DEPARTMENT TO ANOTHER, AND SIMULTANEOUSLY PROMOTED TO A POSITION IN A HIGHER GRADE, BE PAID INITIALLY---

"/A) AT ANY ONE OF THE RATES WITHIN THE RANGE FOR THE GRADE TO WHICH PROMOTED; OR

"/B) IF HE HAS BEEN RECEIVING LESS THAN THE MINIMUM RATE OF THE GRADE TO WHICH PROMOTED MUST HE BE PAID AT THAT MINIMUM RATE; OR,

"/C) WHEN THE GRADE RANGES OVERLAP, IF HE HAS BEEN RECEIVING MORE THAN THE MINIMUM RATE OF THE GRADE TO WHICH PROMOTED MUST HE BE PAID AT THE SAME RATE?

YOUR REPLY IS AS FOLLOWS:

"/A) YES; IF THERE IS MADE A PROPER COMPARISON OF EFFICIENCY RATINGS BETWEEN THE EMPLOYEE TRANSFERRED TO THE GRADE FROM ANOTHER OFFICE AND THOSE ALREADY IN THE GRADE. WHILE THE SPIRIT AND INTENT OF THE CLASSIFICATION ACT WOULD SEEM TO PROVIDE THAT TRANSFERS FROM A LOWER TO A HIGHER GRADE BETWEEN DEPARTMENTS SHOULD BE AT THE MINIMUM SALARY RATE OF THE HIGHER GRADE, IN ORDER TO PROTECT THE INTERESTS OF THOSE ALREADY IN THE GRADE IN THE OFFICE TO WHICH TRANSFERRED IT IS WITHIN THE ADMINISTRATIVE AUTHORITY TO DETERMINE SIMULTANEOUSLY WITH THE TRANSFER THE RIGHT OF THE EMPLOYEE TO BE PROMOTED WITHIN THE GRADE TO WHICH TRANSFERRED BY COMPARING HIS EFFICIENCY WITH THE EFFICIENCY OF THOSE ALREADY IN THE GRADE. SEE 4 COMP. GEN. 78.

"/B) AND (C) NOT NECESSARILY, IF THE RESULT OF THE EFFICIENCY COMPARISON JUSTIFIES A HIGHER RATE OF COMPENSATION.'

IN A DECISION OF JULY 31, 1928 (8 COMP. GEN. 47), IT WAS HELD THAT (QUOTING FROM THE SYLLABUS):

"UNDER SECTION 6 OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1490, ALL NEW APPOINTMENTS ARE REQUIRED TO BE MADE AT THE MINIMUM SALARY RATE OF THE GRADE, AND UNDER SECTION 7, INCREASES WITHIN THE GRADE ARE DEPENDENT UPON THE ATTAINMENT AND MAINTENANCE OF A PROPER EFFICIENCY RATING. ANY INCREASE IN COMPENSATION MADE EFFECTIVE ON THE SAME DAY AS A NEW APPOINTMENT WOULD RELATE BACK TO THE BEGINNING OF THAT DAY, AND BEING SIMULTANEOUSLY EFFECTIVE WITH THE APPOINTMENT, THE EMPLOYEE WOULD NOT HAVE BEEN IN RECEIPT OF THE MINIMUM SALARY RATE PRIOR TO THE PROMOTION, AND AS NO EFFICIENCY RATING WOULD HAVE BEEN ATTAINED, THE APPOINTMENT WOULD NOT BE AT THE MINIMUM SALARY RATE OF THE GRADE BUT AT THE HIGHER RATE TO WHICH STATED TO HAVE BEEN PROMOTED AND WOULD BE IN CONTRAVENTION OF THE LAW.'

IT WAS STATED, HOWEVER, IN THE BODY OF THE OPINION, THAT "IT IS EVIDENT ALSO THAT ONE WHO WAS NOT THERETOFORE IN THE GOVERNMENT SERVICE COULD NOT HAVE ATTAINED AND MAINTAINED AN EFFICIENCY RATING AS PRESCRIBED IN ACCORDANCE WITH THE LAW.' THE IMPLICATION OF THIS STATEMENT IS THAT IF THE APPOINTEE HAD BEEN PREVIOUSLY IN THE GOVERNMENT SERVICE, THERE WOULD HAVE BEEN IN EXISTENCE FACTS UPON WHICH TO BASE AN EFFICIENCY RATING AND THAT, THEREFORE, A PROMOTION SIMULTANEOUS WITH THE APPOINTMENT WOULD NOT HAVE BEEN IN CONTRAVENTION OF SECTION 6 OF THE CLASSIFICATION ACT, SUPRA.

IN THE CASE OF THE EMPLOYEE IN QUESTION THERE IS, IN FACT, A BASIS FOR AN EFFICIENCY RATING INASMUCH AS HE WAS APPOINTED WITHOUT CLASSIFICATION AS AN UNSKILLED LABORER ON JUNE 16, 1924, AT $780 PER ANNUM, AND SUBSEQUENTLY PROMOTED TO $1,020, $1,140, AND $1,320 PER ANNUM, HIS PRESENT SALARY. THERE SHOULD BE, THEREFORE, NO DIFFICULTY IN ASCERTAINING DATA UPON WHICH TO BASE AN EFFICIENCY RATING WHICH WOULD SEEM TO JUSTIFY MAKING A PROMOTION SIMULTANEOUSLY WITH THE APPOINTMENT.

OUR PERSONNEL OFFICERS ARE RELUCTANT TO TAKE ANY STEPS IN THIS CASE UNTIL ADVICE IS RECEIVED FROM YOU. IN THE MEANTIME THE APPOINTMENT IS BEING HELD UP. YOUR USUAL PROMPT RESPONSE TO INQUIRIES OF THIS KIND WILL, THEREFORE, BE GREATLY APPRECIATED.

IT IS UNDERSTOOD FROM YOUR SUBMISSION THAT THERE IS NOT INVOLVED IN THE PRESENT CASE A TRANSFER FROM ONE DEPARTMENT TO ANOTHER OR A TRANSFER FROM ONE GRADE TO ANOTHER WITHIN A DEPARTMENT BUT THAT THE EMPLOYEE IS TO REMAIN ON THE SAME JOB, THAT IS, IN THE SAME POSITION WHICH FOR THE FIRST TIME HAS BEEN CLASSIFIED. HENCE, THE DECISIONS REFERRED TO IN YOUR LETTER ARE NOT APPLICABLE. A DECISION MORE NEARLY IN POINT IS THE DECISION OF AUGUST 29, 1935, 15 COMP. GEN. 154, IN WHICH IT WAS HELD (QUOTING FROM THE SYLLABUS):

IN THE CLASSIFICATION OF POSITIONS THE SALARIES OF WHICH HAVE NOT BEEN PREVIOUSLY FIXED PURSUANT TO THE CLASSIFICATION ACT, AS AMENDED, THE INITIAL SALARY RATES FIXED PURSUANT TO SAID ACT MUST BE THE MINIMUM OF THE GRADES IN WHICH THE POSITIONS ARE PROPERLY ALLOCATED BY THE CIVIL SERVICE COMMISSION, IF IN THE DISTRICT OF COLUMBIA, OR BY THE ADMINISTRATIVE OFFICE IF IN THE FIELD.

HOWEVER, IN THE PRESENT CASE THE SALARY THE EMPLOYEE WAS RECEIVING AT THE TIME HIS POSITION WAS CLASSIFIED HAD BEEN REGULARLY AND LEGALLY FIXED AT A RATE NOT INCONSISTENT WITH THE PROVISIONS OF THE CLASSIFICATION ACT AND SAID RATE IS ONE OF THE RATES PRESCRIBED FOR THE GRADE TO WHICH THE POSITION HAS BEEN ALLOCATED. ALSO, SAID SALARY RATE HAD BEEN ATTAINED BY THE EMPLOYEE AS A RESULT OF SEVERAL YEARS OF EFFICIENT SERVICE ON THE SAME JOB. THEREFORE, THERE WOULD APPEAR FOR CONSIDERATION HERE THE PROVISION OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923, APPROVED MARCH 4, 1923, 42 STAT. 1490, WHICH READS:

THAT IN DETERMINING THE COMPENSATION TO BE ESTABLISHED INITIALLY FOR THE SEVERAL EMPLOYEES THE FOLLOWING RULES SHALL GOVERN:

3. IF THE EMPLOYEE IS RECEIVING COMPENSATION WITHIN THE RANGE OF SALARY PRESCRIBED FOR THE APPROPRIATE GRADE AT ONE OF THE RATES FIXED THEREIN, NO CHANGE SHALL BE MADE IN THE EXISTING COMPENSATION.

RATHER THAN SUBPARAGRAPH 6 OF SAID SECTION WHICH READS:

6. ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.

THIS VIEW SEEMS TO BE IN ACCORD WITH THE SPIRIT AND PURPOSE OF THE ORIGINAL CLASSIFICATION ACT, THE SALARY RATES UNDER WHICH DID NOT BECOME EFFECTIVE UNTIL AFTER THIS EMPLOYEE'S ORIGINAL EMPLOYMENT ON THE JOB HE IS STILL HOLDING, AND, ALSO, OF THE AMENDMENTS THERETO AS INDICATED BY THE SAVING CLAUSES IN SECTION 1 OF THE ACT OF MAY 28, 1928, 45 STAT. 776, 784; IN SECTIONS 1 AND 4 OF THE ACT OF JULY 3, 1930, 46 STAT. 1004 AND 1005; AND IN SECTION 17 OF THE ACT OF JUNE 16, 1933, 48 STAT. 308.

ACCORDINGLY, THE PROPOSED APPOINTMENT AND CHANGE OF CIVIL SERVICE STATUS IN THE PRESENT CASE WILL NOT REQUIRE A REDUCTION IN THE SALARY RATE OF THE EMPLOYEE.