B-104722, MARCH 28, 1952, 31 COMP. GEN. 487

B-104722, MARCH 28, 1952, 31 COMP. GEN. 487

COMPENSATION - PROMOTION RESTRICTIONS - STATUTORY AND CIVIL SERVICE COMMISSION REGULATION RESTRICTIONS AN EMPLOYEE WHO RECEIVED A PERSONNEL ACTION PURPORTING TO PROMOTE HER FROM GRADE GS-4 TO GS-5, CONTINGENT UPON THE REMOVAL OF AN APPROPRIATION PROMOTION RESTRICTION, AND WHO, UPON THE REMOVAL OF SAID RESTRICTION BUT SUBSEQUENT TO THE EFFECTIVE DATE OF A CIVIL SERVICE COMMISSION REGULATION LIMITING PROMOTIONS TO TWO GRADES, WAS PROMOTED TO GRADE GS-7, RECEIVED A PROMOTION OF MORE THAN TWO GRADES IN CONTRAVENTION OF SAID REGULATION, AND THEREFORE, SALARY PAYMENTS AT THE RATE FOR THE GS-7 GRADE MAY NOT BE MADE TO THE EMPLOYEE.

COMPTROLLER GENERAL WARREN TO SOPHIE DONINE, OFFICE OF RENT STABILIZATION, MARCH 28, 1952:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 30, 1951, REFERENCE A-2 1, TRANSMITTING A PAY ROLL VOUCHER FOR &147.12, IN FAVOR OF CLYMINE E. CASTONIA, A GRADE GS-7 EMPLOYEE OF THE OFFICE OF RENT STABILIZATION, REPRESENTING COMPENSATION CLAIMED FOR THE PAY PERIOD ENDING JULY 21, 1951, AT THE RATE OF $3,825 PER ANNUM, AND REQUESTING TO BE ADVISED WHETHER UNDER THE FACTS HEREINAFTER RELATED THE VOUCHER PROPERLY MAY BE CERTIFIED FOR PAYMENT.

IT IS STATED IN YOUR LETTER THAT THE PERSONAL HISTORY OF THE EMPLOYEE IN THE OFFICE OF THE HOUSING EXPEDITER, THE PREDECESSOR AGENCY TO THE OFFICE OF RENT STABILIZATION, IS AS FOLLOWS:

NOVEMBER 2, 1950: PROMOTED FROM CLERK-STENOGRAPHER, GS-4, $3115 PER ANNUM TO PLACEMENT ASSISTANT, GS-5, ON A "SEE REMARKS" JOURNAL, AND PAYMENT OF SALARY IN THE HIGHER GRADE TO BE EFFECTIVE IF AND WHEN THE RESTRICTION WAS REMOVED.

JANUARY 21, 1951: PERIODIC-STEP INCREASE, GS-4, $3115 PER ANNUM TO $3195 PER ANNUM.

MAY 1, 1951: PROMOTED TO FILL A BONA FIDE VACANCY OCCURRING IN THE POSITION OF PLACEMENT ASSISTANT, GS-7, $3825 PER ANNUM.

ON NOVEMBER 2, 1950, THERE WAS IN EFFECT PUBLIC LAW 843, 81ST CONGRESS, APPROVED SEPTEMBER 27, 1950, 64 STAT. 1057, WHICH WITH RESPECT TO THE OFFICE OF THE HOUSING EXPEDITER PROVIDED THAT NO PART OF THIS APPROPRIATION MAY BE USED TO PAY COMPENSATION OF ANY EMPLOYEE IN A GRADE HIGHER THAN THE GRADE OF SUCH EMPLOYEE ON MAY 22, 1950.' THUS, NOTWITHSTANDING MISS CASTONIA'S PURPORTED PROMOTION ON NOVEMBER 2, 1950, SHE COULD NOT BE PAID THE SALARY OF THE HIGHER GRADE. SECTION 802 (B) OF THE CLASSIFICATION ACT OF 1949 63 STAT. 954 PROVIDES IN PART, AS FOLLOWS:

ANY OFFICER OR EMPLOYEE WHO IS PROMOTED OR TRANSFERRED TO A POSITION IN A HIGHER GRADE SHALL RECEIVE BASIC COMPENSATION AT THE LOWEST RATE OF SUCH HIGHER GRADE WHICH EXCEEDS HIS EXISTING RATE OF BASIC COMPENSATION BY NOT LESS THAN ONE STEP-INCREASE OF THE GRADE FROM WHICH HE IS PROMOTED OR TRANSFERRED. * * *

IT WOULD APPEAR, THEREFORE, THAT SINCE THE APPROPRIATION WAS NOT AVAILABLE TO PAY THE LAWFUL COMPENSATION ATTACHING TO THE POSITION TO WHICH IT WAS SOUGHT TO PROMOTE MISS CASTONIA, THE PERSONNEL ACTION TAKEN IN HER CASE WAS A NULLITY SO FAR AS IT CONCERNED A CHANGE IN THE EMPLOYEE'S GRADE. BY REGULATION EFFECTIVE DECEMBER 1, 1950 (SECTION 8.109, 15 F.R. 7748) THE CIVIL SERVICE COMMISSION PLACED RESTRICTIONS UPON PROMOTIONS AS FOLLOWS:

* * * ON AND AFTER DECEMBER 1, 1950 * * * NO EMPLOYEE MAY BE GIVEN, AT ANY ONE TIME, A PROMOTION OF MORE THAN TWO GRADES IF HE IS BEING ADVANCED FROM ANY GRADE BELOW GS-10 (OR EQUIVALENT) * * *. APPROVAL MUST BE OBTAINED FROM THE COMMISSION WHENEVER IT IS DESIRED TO MAKE AN EXCEPTION TO THE REQUIREMENTS OF THIS SECTION.

THE SAID REGULATION WAS IN EFFECT ON MAY 1, 1951, WHEN IT APPEARS THAT THE EMPLOYEE WAS PROMOTED FROM GRADE GS-4 TO GRADE GS-7 AND--- THE APPROPRIATION RESTRICTION HAVING BEEN REMOVED IN PART--- WAS PAID THE RATE OF COMPENSATION ATTACHING TO A POSITION IN THE LATTER GRADE. SINCE THE PERSONNEL ACTION OF MAY 1, 1951, INVOLVED A PROMOTION OF MORE THAN TWO GRADES IN CONTRAVENTION OF THE QUOTED CIVIL SERVICE REGULATIONS AND IT IS NOT SHOWN BY THE RECORD THAT SUCH PROMOTION WAS APPROVED BY THE CIVIL SERVICE COMMISSION, PAYMENT TO THE EMPLOYEE OF SALARY AT THE RATE OF $3,825 PER ANNUM IN GRADE GS-7 IS UNAUTHORIZED.

ACCORDINGLY, THE SUBMITTED VOUCHER, WHICH IS RETURNED HEREWITH, PROPERLY MAY NOT BE CERTIFIED FOR PAYMENT.