A-90374, DECEMBER 11, 1937, 17 COMP. GEN. 484

A-90374: Dec 11, 1937

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COMPENSATION - PROMOTIONS - ADMINISTRATIVE - EFFICIENCY RATING REQUIREMENTS ADMINISTRATIVE PROMOTION OF AN EMPLOYEE WITH A "FAIR" EFFICIENCY RATING IS WITHOUT AUTHORITY OF LAW. IS AS FOLLOWS: THE ACT MAKING APPROPRIATIONS FOR THE DEPARTMENT OF THE INTERIOR FOR THE FISCAL YEAR 1938 (PUBLIC NO. 249. A NUMBER OF EMPLOYEES HAVE BEEN PROMOTED ONE STEP IN THEIR GRADE. WAS PROMOTED FROM $1. THE EFFICIENCY RATINGS OF THE EMPLOYEES WERE CHECKED. JONES WAS GRANTED THE INCREASE WITH AN EFFICIENCY RATING OF "FAIR.'. SHE COULD NOT HAVE BEEN PROMOTED WITH A RATING OF "FAIR.'. THIS MATTER WAS TAKEN UP WITH THE CIVIL SERVICE COMMISSION. OR WHETHER IT WILL BE NECESSARY TO COLLECT THE AMOUNT BY WHICH HER SALARY WAS INCREASED.

A-90374, DECEMBER 11, 1937, 17 COMP. GEN. 484

COMPENSATION - PROMOTIONS - ADMINISTRATIVE - EFFICIENCY RATING REQUIREMENTS ADMINISTRATIVE PROMOTION OF AN EMPLOYEE WITH A "FAIR" EFFICIENCY RATING IS WITHOUT AUTHORITY OF LAW, THE REGULATIONS PROMULGATED BY THE CIVIL SERVICE COMMISSION PURSUANT TO AUTHORITY OF SECTION 9 OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1490, LIMITING INCREASES IN SALARY WITHIN A GRADE, TO EMPLOYEES ATTAINING EFFICIENCY RATINGS OF "EXCELLENT," "VERY GOOD," OR "GOOD," AND THE AMOUNT PAID TO THE EMPLOYEE AS INCREASE IN SALARY SHOULD BE RECOVERED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, DECEMBER 11, 1937:

YOUR LETTER OF NOVEMBER 8, 1937, IS AS FOLLOWS:

THE ACT MAKING APPROPRIATIONS FOR THE DEPARTMENT OF THE INTERIOR FOR THE FISCAL YEAR 1938 (PUBLIC NO. 249, 75TH CONGRESS), APPROVED AUGUST 9, 1937, PROVIDES FUNDS FOR INCREASING THE SALARIES OF EMPLOYEES ON THE CUSTODIAL FORCE RECEIVING LESS THAN $1,200 PER ANNUM. A NUMBER OF EMPLOYEES HAVE BEEN PROMOTED ONE STEP IN THEIR GRADE, AND EFFECTIVE AUGUST 16, 1937, MRS. ANNA MAY JONES, LABORER, CU-2, WAS PROMOTED FROM $1,080 TO $1,140 PER ANNUM. THE EFFICIENCY RATINGS OF THE EMPLOYEES WERE CHECKED, BUT INADVERTENTLY MRS. JONES WAS GRANTED THE INCREASE WITH AN EFFICIENCY RATING OF "FAIR.' UNDER THE RULES OF THE CIVIL SERVICE COMMISSION GOVERNING EFFICIENCY RATINGS, SHE COULD NOT HAVE BEEN PROMOTED WITH A RATING OF "FAIR.'

THIS MATTER WAS TAKEN UP WITH THE CIVIL SERVICE COMMISSION, WHICH OFFICE SUGGESTS THAT IT BE PRESENTED TO YOU. PLEASE ADVISE WHETHER THE INCREASE MAY REMAIN IN EFFECT, TO BE ADJUSTED BACK TO HER RATE OF $1,080 CURRENTLY, OR WHETHER IT WILL BE NECESSARY TO COLLECT THE AMOUNT BY WHICH HER SALARY WAS INCREASED.

SECTION 9 OF THE CLASSIFICATION ACT OF 1923, DATED MARCH 4, 1923, 42 STAT. 1490, PROVIDES IN PART AS FOLLOWS:

THAT THE BOARD SHALL REVIEW AND MAY REVISE UNIFORM SYSTEMS OF EFFICIENCY RATING ESTABLISHED OR TO BE ESTABLISHED FOR THE VARIOUS GRADES OR CLASSES THEREOF, WHICH SHALL SET FORTH THE DEGREE OF EFFICIENCY WHICH SHALL CONSTITUTE GROUND FOR (A) INCREASE IN THE RATE OF COMPENSATION FOR EMPLOYEES WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF THE CLASS TO WHICH THEIR POSITIONS ARE ALLOCATED, (B) CONTINUANCE AT THE EXISTING RATE OF COMPENSATION WITHOUT INCREASE OR DECREASE, (C) DECREASE IN THE RATE OF COMPENSATION FOR EMPLOYEES WHO AT THE TIME ARE ABOVE THE MINIMUM RATE FOR THE CLASS TO WHICH THEIR POSITIONS ARE ALLOCATED, AND (D) DISMISSAL.

THE HEAD OF EACH DEPARTMENT SHALL RATE IN ACCORDANCE WITH SUCH SYSTEMS THE EFFICIENCY OF EACH EMPLOYEE UNDER HIS CONTROL OR DIRECTION. THE CURRENT RATINGS FOR EACH GRADE OR CLASS THEREOF SHALL BE OPEN TO INSPECTION BY THE REPRESENTATIVES OF THE BOARD AND BY THE EMPLOYEES OF THE DEPARTMENT UNDER CONDITIONS TO BE DETERMINED BY THE BOARD AFTER CONSULTATION WITH THE DEPARTMENT HEADS.

THE DUTIES OF THE PERSONNEL CLASSIFICATION BOARD UNDER THE STATUTE HAVE SINCE BEEN VESTED IN THE UNITED STATES CIVIL SERVICE COMMISSION.

DEPARTMENTAL CIRCULAR NO. 133 PROMULGATED BY THE UNITED STATES CIVIL SERVICE COMMISSION, MAY 6, 1935, CONTAINS THE FOLLOWING PROVISIONS:

11. RULES FOR SALARY INCREASES.--- THE FOLLOWING RULES ARE PRESCRIBED TO ESTABLISH RATINGS WHICH EMPLOYEES MUST ATTAIN TO BE ELIGIBLE FOR SALARY INCREASES:

(1) AN EMPLOYEE ATTAINING A FINAL RATING OF "EXCELLENT" OR "VERY GOOD" IS ELIGIBLE FOR A SALARY INCREASE WITHIN THE GRADE TO WHICH HIS POSITION IS ALLOCATED IF HE IS NOT ALREADY RECEIVING THE MAXIMUM PAY RATE OF HIS GRADE.

(2) AN EMPLOYEE ATTAINING A FINAL RATING OF "GOOD" IS ELIGIBLE FOR A SALARY INCREASE UP TO, BUT NOT BEYOND, THE MIDDLE SALARY RATE OF THE GRADE TO WHICH HIS POSITION IS ALLOCATED, BUT IF HE IS ALREADY RECEIVING A SALARY HIGHER THAN THE MIDDLE RATE OF HIS GRADE HE IS NOT SUBJECT TO A SALARY REDUCTION ON THAT ACCOUNT.

(3) FOR CU-2 AND CU-3 THE FOURTH SALARY RATE WILL BE CONSIDERED THE MIDDLE RATE.

THESE REGULATIONS ARE AUTHORIZED AND REQUIRED BY THE QUOTED STATUTE AND HAVE THE FORCE AND EFFECT OF LAW.

THE REGULATION SPECIFICALLY STATES THAT AN EMPLOYEE "MUST ATTAIN" AN EFFICIENCY RATING OF ,EXCELLENT," "VERY GOOD," OR "GOOD," "TO BE ELIGIBLE FOR SALARY INCREASE" AND THERE IS NO PROVISION FOR INCREASING THE SALARY IN THE GRADE OF AN EMPLOYEE WHOSE EFFICIENCY RATING IS AIR.'

IT MUST BE CONCLUDED THEREFORE THAT THE ADMINISTRATIVE ACTION IN THIS CASE INCREASING THE SALARY OF THE EMPLOYEE WHOSE EFFICIENCY RATING WAS "FAIR" ONE SALARY STEP IN GRADE CU-2, WAS WITHOUT AUTHORITY OF LAW AND THAT THE AMOUNT OF THE INCREASE CONSTITUTES AN UNLAWFUL PAYMENT OF APPROPRIATED FUNDS WHICH MUST BE RECOVERED.

WHILE IT IS TO BE REGRETTED THAT THIS LOW-SALARIED EMPLOYEE MUST BE CALLED UPON TO REFUND THE AMOUNT OF THE SALARY INCREASE WHICH SHE RECEIVED THROUGH ADMINISTRATIVE ERROR, THERE IS NO AUTHORITY IN THIS OFFICE TO WAIVE RECOVERY OF UNLAWFUL PAYMENTS CAUSED BY THE MISTAKES OF ADMINISTRATIVE OFFICERS.