B-11095, JULY 10, 1940, 20 COMP. GEN. 17

B-11095, JULY 10, 1940, 20 COMP. GEN. 17

APPOINTMENTS - SALARY IN EXCESS OF CLASSIFICATION GRADE MINIMUM WHERE BECAUSE OF THE EFFECT OF A SAVING CLAUSE, SUCH AS SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939, APPOINTMENTS WERE MADE AT RATES ABOVE THE MINIMUM SALARY RATE OF THE CLASSIFICATION GRADE OR CLASS, THE SALARIES NEED NOT BE REDUCED TO THE MINIMUM SALARY RATE OF THE GRADE OR CLASS WHEN THE PERIOD COVERED BY THE SAVING CLAUSE HAS EXPIRED AS THE REQUIREMENT OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923, THAT ALL NEW APPOINTMENTS BE AT THE MINIMUM SALARY OF THE GRADE OR CLASS, RELATES ONLY TO INITIAL APPOINTMENTS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE FEDERAL SECURITY ADMINISTRATOR, JULY 10, 1940:

I HAVE YOUR LETTER OF JUNE 28, 1940, AS FOLLOWS:

IN YOUR LETTER OF AUGUST 22, 1939 (19 COMP. GEN. 237), REPLYING TO MY REQUEST OF JULY 24 FOR DECISIONS ON A NUMBER OF POINTS IN CONNECTION WITH SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939, YOU HELD, RELATIVE TO PROBATIONAL APPOINTMENTS OF PERSONS WHO OCCUPIED TEMPORARY OR EXCEPTED POSITIONS AT SALARIES IN EXCESS OF THE MINIMUM OF THE GRADE,THAT---

"SECTION 10 (B) OF THE REORGANIZATION ACT IS A PROHIBITION ONLY AGAINST A CHANGE IN CLASSIFICATION OR COMPENSATION DURING THE FISCAL YEAR 1940 OF AN EMPLOYEE TRANSFERRED UNDER THE PROVISIONS OF TITLE I OF THE ACT. THEREFORE, A PERSON WHO HAS A TEMPORARY OR EXCEPTED STATUS IN THE AGENCY TRANSFERRED BY OPERATION OF THE ACT MAY BE PROBATIONALLY APPOINTED TO A VACANT POSITION ONLY IF SUCH POSITION BE IN THE SAME CLASSIFICATION GRADE AS THE POSITION HELD JUNE 30, 1939, AND AT THE SAME COMPENSATION RATE HE RECEIVED ON SAID DATE.'

A QUESTION HAS NOW ARISEN AS TO WHETHER AN EMPLOYEE WHO WAS APPOINTED PROBATIONALLY IN ACCORDANCE THEREWITH, AT A RATE OF PAY ABOVE THE MINIMUM OF THE GRADE, WOULD HAVE TO BE REDUCED TO THE MINIMUM OF THE GRADE, EFFECTIVE JULY 1, 1940. SECTION 6 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, REQUIRES THAT "ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.' HOWEVER, IT WOULD APPEAR THAT SECTION 10 (B) OF THE REORGANIZATION ACT OF 1939 SUPERSEDES THAT SECTION DURING THE PRESENT FISCAL YEAR, SO FAR AS EMPLOYEES TRANSFERRED BY REORGANIZATION ARE CONCERNED, AND THAT, INASMUCH AS ALL SUCH PROBATIONARY APPOINTMENTS MADE DURING THAT PERIOD MET ALL REQUIREMENTS OF THE LAW THEN IN EFFECT, NO ACTION WILL BE REQUIRED AFTER THE EXPIRATION OF THIS FISCAL YEAR TO ADJUST THOSE SALARIES TO CONFORM TO SECTION 6 OF THE CLASSIFICATION ACT IN THE CASES OF THOSE PERSONS WHO MAY STILL BE IN THEIR PROBATIONARY PERIODS. NEVERTHELESS, I SHOULD LIKE TO HAVE YOUR CONFIRMATION OF THIS VIEW BEFORE ACCEPTING IT AS FINAL.

THE REQUIREMENT OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1490, THAT ALL NEW APPOINTMENTS BE AT THE MINIMUM SALARY OF THE GRADE OR CLASS RELATES TO THE INITIAL APPOINTMENT, ONLY; AND IF SUCH INITIAL APPOINTMENT BE OTHERWISE AUTHORIZED BY STATUTE TO BE MADE AT A RATE ABOVE THE MINIMUM SALARY RATE--- WHICH APPEARS TO BE THE SITUATION HERE--- THERE IS NO REQUIREMENT THAT THE EMPLOYEE BE REDUCED TO THE MINIMUM SALARY RATE WHEN THE SAVING CLAUSE, NAMELY, SECTION 10 (B) OF THE REORGANIZATION ACT, WHICH PERMITTED SUCH APPOINTMENT AT A HIGHER RATE, HAS EXPIRED.