B-107729, FEBRUARY 12, 1952, 31 COMP. GEN. 386

B-107729: Feb 12, 1952

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RESIGNS AND IS REEMPLOYED BY ANOTHER AGENCY. 1952: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28. RESIGNS AND IS REEMPLOYED BY OR TRANSFERS TO ANOTHER AGENCY PRIOR TO THE EXPIRATION OF THE NOTICE PERIOD. THAT THIS SUBSECTION SHALL NOT APPLY TO ANY CASE INVOLVING AN EMPLOYEE WHO IS WITHIN REACH FOR APPOINTMENT TO A HIGHER GRADE POSITION ON A COMPETITIVE CIVIL SERVICE REGISTER. IN YOUR COMMENT UPON THE QUESTION PRESENTED BY YOUR LETTER IT IS STATED: AN EMPLOYEE WHO IS DEMOTED AS THE RESULT OF REDUCTION IN FORCE NOTICE AND REMAINS IN THE SAME AGENCY MAY BE ADVANCED UP TO HIS FORMER GRADE LEVEL WITHOUT REGARD TO THE PROMOTION RESTRICTIONS OF SECTION 1310 (C). WOULD BE DESIRABLE TO PERMIT AN EMPLOYEE WHO TRANSFERS TO A LOWER GRADE POSITION IN ANOTHER FEDERAL AGENCY PRIOR TO EXPIRATION OF HIS REDUCTION IN FORCE NOTICE PERIOD TO HAVE THE SAME PRIVILEGE.

B-107729, FEBRUARY 12, 1952, 31 COMP. GEN. 386

OFFICERS AND EMPLOYEES - REEMPLOYMENT IN OTHER AGENCIES FOLLOWING REDUCTION IN FORCE NOTICE - PROMOTION RESTRICTIONS IN SUPPLEMENTAL APPROPRIATION ACT, 1952 AN EMPLOYEE WHO, AFTER RECEIPT OF A REDUCTION IN FORCE NOTICE AND PRIOR TO THE EXPIRATION OF THE NOTICE PERIOD, RESIGNS AND IS REEMPLOYED BY ANOTHER AGENCY, OR ITS TRANSFERRED TO A POSITION IN A LOWER GRADE MAY BE RESTORED TO A POSITION IN THE GRADE HELD BY HIM PRIOR TO RECEIPT OF SAID NOTICE WITHOUT VIOLATING THE PROMOTION RESTRICTIONS OF SECTION 1310 (C) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, FEBRUARY 12, 1952:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 28, 1952, REQUESTING A DECISION AS TO WHETHER AN EMPLOYEE WHO AFTER RECEIPT OF A REDUCTION IN FORCE NOTICE, RESIGNS AND IS REEMPLOYED BY OR TRANSFERS TO ANOTHER AGENCY PRIOR TO THE EXPIRATION OF THE NOTICE PERIOD, MAY THEREAFTER BE RESTORED TO A POSITION IN THE GRADE HELD BY HIM PRIOR TO THE RECEIPT OF THE NOTICE, WITHOUT CONTRAVENING THE PROVISIONS OF SECTION 1310 (C) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952, PUBLIC LAW 253, APPROVED NOVEMBER 1, 1951.

THE PERTINENT PART OF SECTION 1310 (C), PUBLIC LAW 253, 65 STAT. 758, SUPRA, READS AS FOLLOWS:

* * * PROVIDED FURTHER, THAT THIS SUBSECTION SHALL NOT APPLY TO ANY CASE INVOLVING AN EMPLOYEE WHO IS WITHIN REACH FOR APPOINTMENT TO A HIGHER GRADE POSITION ON A COMPETITIVE CIVIL SERVICE REGISTER, OR BEING ADVANCED UP TO A GRADE LEVEL FROM WHICH HE HAD BEEN DEMOTED OR SEPARATED BECAUSE OF REDUCTION IN FORCE.

IN YOUR COMMENT UPON THE QUESTION PRESENTED BY YOUR LETTER IT IS STATED:

AN EMPLOYEE WHO IS DEMOTED AS THE RESULT OF REDUCTION IN FORCE NOTICE AND REMAINS IN THE SAME AGENCY MAY BE ADVANCED UP TO HIS FORMER GRADE LEVEL WITHOUT REGARD TO THE PROMOTION RESTRICTIONS OF SECTION 1310 (C). WOULD BE DESIRABLE TO PERMIT AN EMPLOYEE WHO TRANSFERS TO A LOWER GRADE POSITION IN ANOTHER FEDERAL AGENCY PRIOR TO EXPIRATION OF HIS REDUCTION IN FORCE NOTICE PERIOD TO HAVE THE SAME PRIVILEGE.

IN THE PAST, IN OTHER CONNECTIONS, THE COMMISSION HAS CONSIDERED THAT AN EMPLOYEE WHO TRANSFERS OR RESIGNS AFTER RECEIPT OF NOTICE HAS BEEN TRANSFERRED OR SEPARATED BECAUSE OF REDUCTION IN FORCE, OR THAT HIS SEPARATION FROM THE AGENCY HAS BEEN INVOLUNTARY BECAUSE OF REDUCTION IN FORCE ACTION, ALTHOUGH HIS SEPARATION WAS PRIOR TO THE EFFECTIVE DATE OF THE REDUCTION IN FORCE ACTION.

IT APPEARS FROM THE COMMENTS JUST QUOTED THAT THE COMMISSION HAS ADOPTED THE VIEW THAT SO FAR AS INTRA-AGENCY PROMOTIONS IN THE INVOLVED SITUATIONS ARE CONCERNED, THERE IS NO QUESTION OF THE VIOLATION OF SECTION 1310 (C) OF THE REFERRED-TO STATUTE. I CONCUR IN THAT VIEW; AND I FIND NOTHING IN THE LANGUAGE OF THE SAID STATUTE WHICH WOULD PROHIBIT ITS EXTENSION TO CASES WHERE AN EMPLOYEE HAS RESIGNED AND IS REEMPLOYED BY OR IS TRANSFERRED TO A POSITION IN ANOTHER AGENCY IN A LOWER GRADE, AS A CONSEQUENCE OF THE RECEIPT OF A REDUCTION IN FORCE NOTICE.