B-109988, JUNE 25, 1952, 31 COMP. GEN. 684

B-109988: Jun 25, 1952

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1952 EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1949 OCCUPYING NON COMPETITIVE POSITIONS WHICH ARE REALLOCATED UPWARD TO THE NEXT HIGHER GRADE. - ARE NOT PRECLUDED BY SECTION 1310 (C) OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1952. 1952: REFERENCE IS MADE TO YOUR LETTER OF MAY 29. SAID SECTION 1310 (C) IS. AS FOLLOWS: * * * NO PERSON IN ANY EXECUTIVE DEPARTMENT OR AGENCY WHOSE POSITION IS SUBJECT TO THE CLASSIFICATION ACT OF 1949. THAT THE CIVIL SERVICE COMMISSION FOR POSITIONS IN THE COMPETITIVE SERVICE AND THE HEAD OF THE EMPLOYING AGENCY FOR POSITIONS OUTSIDE THE COMPETITIVE SERVICE MAY BY REGULATION PROVIDE FOR PROMOTIONS OF TWO GRADES IN ONE YEAR * * * (4) OF AN EMPLOYEE OF THE AGENCY CONCERNED WHEN THERE IS NO POSITION IN THE NORMAL LINE OF PROMOTION IN THE GRADE IMMEDIATELY BELOW THAT OF THE POSITION TO BE FILLED * * *.

B-109988, JUNE 25, 1952, 31 COMP. GEN. 684

COMPENSATION - RATES - POSITION REALLOCATION - APPROPRIATION RESTRICTIONS IN SUPPLEMENTAL APPROPRIATION ACT, 1952 EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT OF 1949 OCCUPYING NON COMPETITIVE POSITIONS WHICH ARE REALLOCATED UPWARD TO THE NEXT HIGHER GRADE--- THERE BEING NO POSITIONS IN THE NORMAL LINES OF PROMOTIONS IN GRADES IMMEDIATELY BELOW THOSE OF THE REALLOCATED POSITION--- ARE NOT PRECLUDED BY SECTION 1310 (C) OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1952--- COMMONLY REFERRED TO AS THE WHITTEN RIDER--- FROM RECEIVING THE COMPENSATION APPLICABLE TO THE REALLOCATED POSITIONS, EVEN THOUGH LESS THAN ONE YEAR HAS ELAPSED SINCE THE EMPLOYEES RECEIVED PROMOTIONS TO THE RESPECTIVE POSITIONS.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, FEDERAL POWER COMMISSION, JUNE 25, 1952:

REFERENCE IS MADE TO YOUR LETTER OF MAY 29, 1952, REQUESTING A DECISION AS TO THE APPLICABILITY OF SECTION 1310 (C) OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1952, 65 STAT. 758, APPROVED NOVEMBER 1, 1951--- COMMONLY REFERRED TO AS THE WHITTEN RIDER--- TO THE PERSONNEL SITUATIONS HEREINAFTER DESCRIBED.

SAID SECTION 1310 (C) IS, IN PART, AS FOLLOWS:

* * * NO PERSON IN ANY EXECUTIVE DEPARTMENT OR AGENCY WHOSE POSITION IS SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, SHALL BE PROMOTED OR TRANSFERRED TO A HIGHER GRADE SUBJECT TO SUCH ACT WITHOUT HAVING SERVED AT LEAST ONE YEAR IN THE NEXT LOWER GRADE: PROVIDED, THAT THE CIVIL SERVICE COMMISSION FOR POSITIONS IN THE COMPETITIVE SERVICE AND THE HEAD OF THE EMPLOYING AGENCY FOR POSITIONS OUTSIDE THE COMPETITIVE SERVICE MAY BY REGULATION PROVIDE FOR PROMOTIONS OF TWO GRADES IN ONE YEAR * * * (4) OF AN EMPLOYEE OF THE AGENCY CONCERNED WHEN THERE IS NO POSITION IN THE NORMAL LINE OF PROMOTION IN THE GRADE IMMEDIATELY BELOW THAT OF THE POSITION TO BE FILLED * * *.

IT IS STATED IN YOUR LETTER THAT THE FEDERAL POWER COMMISSION HAS REALLOCATED THE POSITION OF PRIVATE SECRETARY TO THE COMMISSIONER FROM GRADE GS-6 TO GRADE GS-7, AND THE POSITION OF ASSISTANT TO THE CHAIRMAN FROM GRADE GS-10 TO GRADE GS-11. THE QUESTION PRESENTED FOR DECISION IS WHETHER THE INCUMBENTS OF SUCH POSITIONS MAY BE GRANTED THE INCREASE INCIDENT TO THE REALLOCATIONS INASMUCH AS LESS THAN ONE YEAR HAS ELAPSED SINCE THEY RECEIVED PROMOTIONS TO THE RESPECTIVE POSITIONS. YOU HAVE POINTED OUT THAT THERE ARE NO POSITIONS IN THE NORMAL LINES OF PROMOTIONS IN THE GRADES IMMEDIATELY BELOW THOSE OF THE POSITIONS TO BE FILLED AND FOR THAT REASON YOU CONSIDER THAT THE INSTANT CASES ARE EXCEPTED FROM THE SAID STATUTORY RESTRICTIONS ON PROMOTION.

IF THE UPWARD REALLOCATIONS OF THE SAID POSITIONS HAD BEEN EFFECTED PRIOR TO THE DATES THE RESPECTIVE EMPLOYEES WERE PROMOTED THERETO, IT IS CLEAR THAT SUCH EMPLOYEES COULD HAVE RECEIVED THE TWO-GRADE ADVANCEMENT, THERE BEING NO POSITIONS IN THE NORMAL LINES OF PROMOTIONS IN GRADES IMMEDIATELY BELOW THOSE OF THE REALLOCATED POSITIONS. THE FACT THAT SUCH REALLOCATIONS WERE NOT ACTUALLY ACCOMPLISHED UNTIL AFTER THE EMPLOYEES HAD RECEIVED PROMOTIONS TO THE POSITIONS IN QUESTION DOES NOT OPERATE TO PRECLUDE PAYMENT TO THEM OF THE COMPENSATION LEGALLY APPLICABLE TO SUCH REALLOCATED POSITIONS.