A-95430, JUNE 9, 1938, 17 COMP. GEN. 1061

A-95430: Jun 9, 1938

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IF THE TRANSFERS IN ANY INSTANCE AT THE RATE PROPOSED WOULD CAUSE THE AVERAGE OF THE GRADE TO WHICH THE EMPLOYEE IS TRANSFERRED TO BE EXCEEDED. IF THE AVERAGE THEREIN IS ALREADY EXCEEDED. THE TRANSFER AT THE RATE PROPOSED IS NOT AUTHORIZED. IS AS FOLLOWS: YOUR OPINION IS RESPECTFULLY REQUESTED WITH REGARD TO THE FOLLOWING QUESTIONS: (1) MAY AN EMPLOYEE HOLDING THE POSITION OF SENIOR STENOGRAPHER. YOUR CONSIDERATION OF AND REPLY TO THESE QUESTIONS WILL BE GREATLY APPRECIATED. IT WAS HELD AS FOLLOWS (QUOTING FORM THE SYLLABUS): HEREAFTER TRANSFERS OF EMPLOYEES FROM FIELD-SERVICE POSITIONS TO DEPARTMENTAL-SERVICE POSITIONS IN THE DISTRICT OF COLUMBIA UNDER THE SAME DEPARTMENT ARE NOT REQUIRED TO BE CONSIDERED AS NEW APPOINTMENTS AUTHORIZING PAYMENT INITIALLY OF THE MINIMUM SALARY RATE OF THE GRADE TO WHICH TRANSFERRED.

A-95430, JUNE 9, 1938, 17 COMP. GEN. 1061

OFFICERS AND EMPLOYEES - TRANSFERS - FIELD TO DEPARTMENTAL SERVICE - SALARY RATES AND CLASSIFICATION GRADES AN EMPLOYEE HOLDING THE POSITION OF SENIOR STENOGRAPHER, CAF-3, $1,980 PER ANNUM, IN THE FIELD SERVICE OF ONE GOVERNMENT DEPARTMENT MAY BE TRANSFERRED TO THE DEPARTMENTAL SERVICE OF ANOTHER DEPARTMENT AT THE SAME RATE OF PAY IN A CORRESPONDING GRADE, OR AS A JUNIOR STENOGRAPHER, CAF-2, $1,800 PER ANNUM, THE MAXIMUM OF THE LOWER GRADE, OR AS A CLERK STENOGRAPHER, CAF-4, $1,980 PER ANNUM, BUT IF THE TRANSFERS IN ANY INSTANCE AT THE RATE PROPOSED WOULD CAUSE THE AVERAGE OF THE GRADE TO WHICH THE EMPLOYEE IS TRANSFERRED TO BE EXCEEDED, OR, IF THE AVERAGE THEREIN IS ALREADY EXCEEDED, WOULD CAUSE IT TO BE EXCEEDED TO A GREATER EXTENT, THE TRANSFER AT THE RATE PROPOSED IS NOT AUTHORIZED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, JUNE 9, 1938:

YOUR LETTER OF JUNE 1, 1938, IS AS FOLLOWS:

YOUR OPINION IS RESPECTFULLY REQUESTED WITH REGARD TO THE FOLLOWING QUESTIONS:

(1) MAY AN EMPLOYEE HOLDING THE POSITION OF SENIOR STENOGRAPHER, CAF-3, $1,980 PER ANNUM, IN THE FIELD SERVICE OF ANOTHER DEPARTMENT OF THE GOVERNMENT BE TRANSFERRED TO THE DEPARTMENT OF AGRICULTURE FOR DUTY IN THE DEPARTMENTAL SERVICE, WASHINGTON, D.C., AS SENIOR STENOGRAPHER, CAF-3, AT $1,980 PER ANNUM?

(2) UNDER THE SAME CONDITIONS DESCRIBED IN (1), MAY THE EMPLOYEE BE TRANSFERRED TO A POSITION IN THIS DEPARTMENT AS A JUNIOR STENOGRAPHER, CAF -2, AT $1,800 PER ANNUM?

(3) UNDER THE SAME CONDITIONS DESCRIBED IN (1), MAY THE EMPLOYEE BE TRANSFERRED TO A POSITION AS A CLERK-STENOGRAPHER, CAF-4, AT $1,980 PER ANNUM?

YOUR CONSIDERATION OF AND REPLY TO THESE QUESTIONS WILL BE GREATLY APPRECIATED.

IN DECISION OF AUGUST 19, 1929, 9 COMP. GEN. 80, IT WAS HELD AS FOLLOWS (QUOTING FORM THE SYLLABUS):

HEREAFTER TRANSFERS OF EMPLOYEES FROM FIELD-SERVICE POSITIONS TO DEPARTMENTAL-SERVICE POSITIONS IN THE DISTRICT OF COLUMBIA UNDER THE SAME DEPARTMENT ARE NOT REQUIRED TO BE CONSIDERED AS NEW APPOINTMENTS AUTHORIZING PAYMENT INITIALLY OF THE MINIMUM SALARY RATE OF THE GRADE TO WHICH TRANSFERRED, BUT THE SALARY RATE PAYABLE INITIALLY UPON SUCH TRANSFERS TO THE DEPARTMENTAL SERVICE MAY NOT BE SUCH AS TO CAUSE THE PROPER AVERAGE OF THE GRADE TO WHICH TRANSFERRED TO BE EXCEEDED. RULE ANNOUNCED IN 3 COMP. GEN. 1001, 1006, AND FOLLOWED IN DECISIONS REPORTED IN 4 COMP. GEN. 63; ID. 493, 499; ID. 1003, ID. 1030; 5 ID. 302, 305; AND 8 ID. 202, 205, MODIFIED.

SEE, ALSO, DECISION OF FEBRUARY 20, 1934, 13 COMP. GEN. 222, 225, WHEREIN IT WAS STATED:

THE RULE IS THAT EMPLOYEES MAY BE REINSTATED OR REEMPLOYED WITHIN ADMINISTRATIVE DISCRETION AT NOT TO EXCEED THE SALARY RATE PREVIOUSLY PAID FOR PERFORMANCE OF SUBSTANTIALLY THE SAME DUTIES AND RESPONSIBILITIES, THAT IS, IN A POSITION ALLOCATED TO THE SAME GRADE IN WHICH PREVIOUSLY EMPLOYED. THIS RULE MAY BE APPLIED WHETHER REINSTATEMENT OR REEMPLOYMENT IS IN THE SAME OR DIFFERENT DEPARTMENT OR OFFICE IN WHICH PREVIOUSLY EMPLOYED * * *.

IN DECISION OF AUGUST 6, 1935, 15 COMP. GEN. 102, 103, IT WAS HELD:

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 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.

THESE DECISIONS AND OTHERS HAVE ESTABLISHED THE RULE THAT, INSOFAR AS THE CLASSIFICATION ACT IS CONCERNED, THE SALARY RATE OF A TRANSFERRED EMPLOYEE NEED BE REDUCED ONLY WHEN AND TO THE EXTENT NECESSARY TO BRING IT WITHIN A RATE PRESCRIBED FOR THE GRADE TO WHICH THE EMPLOYEE HAS BEEN TRANSFERRED. HOWEVER, IN EFFECTING TRANSFERS, THERE IS FOR CONSIDERATION THE AVERAGE PROVISION WHICH IS APPLICABLE TO EXPENDITURE OF DEPARTMENTAL PERSONNEL APPROPRIATIONS SUBJECT TO THE CLASSIFICATION ACT, BUT IS NOT APPLICABLE TO EXPENDITURES OF FIELD PERSONNEL APPROPRIATIONS. IN DECISION OF AUGUST 19, 1929, 9 COMP. GEN. 80, THE SYLLABUS OF WHICH HAS BEEN HEREINBEFORE QUOTED, IT WAS STATED:

HOWEVER, REFERRING TO REASON (2) SUPRA, AS THERE HAS BEEN NO EXTENSION OF THE AVERAGE PROVISION TO THE FIELD SERVICE, IT WOULD BE OBVIOUSLY UNFAIR TO EMPLOYEES IN THE DEPARTMENTAL SERVICE, AND, ALSO, CONTRARY TO THE PURPOSE AND INTENT OF THE LAW, TO PERMIT TRANSFERS FROM THE FIELD SERVICE TO THE DEPARTMENTAL SERVICE AT A SALARY RATE WHICH WOULD CAUSE THE PROPER AVERAGE TO BE EXCEEDED. IF SUCH A PRACTICE WERE PERMITTED, AN ADMINISTRATIVE OFFICE MIGHT, INTENTIONALLY OR UNINTENTIONALLY, TRANSFER PERSONNEL FROM THE DEPARTMENTAL TO THE FIELD SERVICE AND BACK AGAIN IN SUCH A MANNER AS EVENTUALLY TO PLACE ALL EMPLOYEES IN THE DEPARTMENTAL SERVICE AT SALARY RATES ABOVE THE AVERAGE OF THE GRADE, THEREBY DEFEATING THE SPIRIT AND INTENT OF THE STATUTORY RESTRICTION PLACED ON THE PAYMENT OF PERSONNEL IN THE DISTRICT OF COLUMBIA. THIS OFFICE HAS HAD OCCASION, HERETOFORE, TO DIRECT ATTENTION TO A SIMILAR UNLAWFUL PRACTICE OF ADJUSTING PERSONNEL BETWEEN DIFFERENT APPROPRIATION UNITS UNDER THE SAME DEPARTMENT SO AS TO DEFEAT THE AVERAGE PROVISION. 7 COMP. GEN. 587. THE FOLLOWING IS QUOTED FROM THAT DECISION:

"* * * AS LONG AS THE AVERAGE PROVISION APPEARS IN THE ANNUAL APPROPRIATION ACTS, IT WILL BE EXPECTED THAT THE ADMINISTRATIVE OFFICES WILL ENDEAVOR TO COMPLY WITH THE SPIRIT AND INTENT OF THE STATUTORY RESTRICTIONS THUS MADE ON PERSONNEL PAYMENTS IN THE DISTRICT OF COLUMBIA, AND WILL NOT RESORT TO SUCH MEANS AS WOULD APPEAR TO HAVE BEEN USED IN THESE CASES TO EVADE THE RESTRICTIONS.'

YOU ARE ADVISED, THEREFORE, THAT SUBJECT TO THE AVERAGE PROVISION THE TRANSFER IN EACH INSTANCE AT THE RATE PROPOSED, THAT IS, IN QUESTION (1) AT THE SAME RATE IN A CORRESPONDING GRADE, IN QUESTION (2) AT THE MAXIMUM OF A LOWER GRADE, AND IN QUESTION (3) AT THE SAME RATE IN A HIGHER GRADE, IS AUTHORIZED; BUT THAT IF THE TRANSFERS IN ANY INSTANCE AT THE RATE PROPOSED WOULD CAUSE THE AVERAGE OF THE GRADE TO WHICH THE EMPLOYEE IS TRANSFERRED TO BE EXCEEDED, OR, IF THE AVERAGE THEREIN IS ALREADY EXCEEDED WOULD CAUSE IT TO BE EXCEEDED TO A GREATER EXTENT, THE TRANSFER AT THE RATE PROPOSED IS NOT AUTHORIZED.