B-113134, DECEMBER 29, 1952, 32 COMP. GEN. 305

B-113134: Dec 29, 1952

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" IT IS NOT REQUIRED THAT THE EMPLOYING AGENCY. MUST HAVE BEEN IN EXISTENCE OR MUST HAVE HAD AN ESTABLISHED PROCEDURE PRIOR TO SEPTEMBER 1. WHICH WAS AVAILABLE TO ALL AGENCIES PRIOR TO SUCH DATE. 1952: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 11. O-MALLEY WAS PROMOTED FROM GRADE GS-15 TO GRADE GS-17. THAT HIS SELECTION WAS ACCOMPLISHED BY AN EXAMINING BOARD COMPOSED OF THE DIRECTOR OF THE OFFICE OF PRICE STABILIZATION. BACKGROUND OF EACH OF THE CANDIDATES WERE CAREFULLY REVIEWED. THAT THIS PROCEDURE WAS BASED UOON THE REGULAR APPOINTMENT SYSTEM OR PROCEDURE ESTABLISHED PRIOR TO SEPTEMBER 1. PLACED CERTAIN RESTRICTIONS UPON ADVANCEMENTS BETWEEN GRADES REQUIRING GENERALLY ONE YEAR'S SERVICE IN EACH GRADE BUT CONTAINED THE FOLLOWING PROVISO: "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.'.

B-113134, DECEMBER 29, 1952, 32 COMP. GEN. 305

COMPENSATION - PROMOTIONS - SERVICE IN GRADE REQUIREMENT - EXCEPTED POSITIONS UNDER THE PROVISIONS OF SECTION 1310 OF THE SUPPLEMENTAL APPROPRIATION ACT OF 1952, AS AMENDED, WHICH EXCEPTS FROM ITS PROMOTION RESTRICTIONS PERSONS "ELIGIBLE FOR APPOINTMENT IN ACCORDANCE WITH A REGULAR APPOINTMENT SYSTEM OR PROCEDURE ESTABLISHED PRIOR TO SEPTEMBER 1, 1950, TO A HIGHER GRADE POSITION OUTSIDE THE COMPETITIVE CIVIL SERVICE," IT IS NOT REQUIRED THAT THE EMPLOYING AGENCY, ITSELF, MUST HAVE BEEN IN EXISTENCE OR MUST HAVE HAD AN ESTABLISHED PROCEDURE PRIOR TO SEPTEMBER 1, 1950, BUT RATHER THAT THE CONTEMPLATED PROMOTION BE EFFECTED UNDER A GENERAL APPOINTMENT OR PROCEDURE SYSTEM, ADOPTED BY THE AGENCY, WHICH WAS AVAILABLE TO ALL AGENCIES PRIOR TO SUCH DATE.

ACTING COMPTROLLER GENERAL FISHER TO JUANITA S. MAYOLA, OFFICE OF PRICE STABILIZATION, DECEMBER 29, 1952:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 11, 1952, REQUESTING DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE PAYROLL VOUCHER THEREWITH FORWARDED PROPOSING PAYMENT OF COMPENSATION TO MR. LAMBERT S. O-MALLEY IN GS-17 FROM NOVEMBER 23, TO DECEMBER 6, 1952, INCLUSIVE. YOUR DOUBT IN THE MATTER APPEARS TO BE WHETHER MR. O-MALLEY COMES WITHIN THE EXCEPTION COVERED BY SECTION 1310 OF THE ACT OF NOVEMBER 1, 1951, 65 STAT. 757, AS AMENDED BY SECTION 1302 OF THE ACT OF JUNE 5, 1952, 66 STAT. 122.

YOU STATE THAT EFFECTIVE AUGUST 3, 1952, MR. O-MALLEY WAS PROMOTED FROM GRADE GS-15 TO GRADE GS-17; THAT AT THAT TIME HE HAD SERVED LESS THAN ONE YEAR AT HIS PREVIOUS GRADE ( GS-15); THAT HIS SELECTION WAS ACCOMPLISHED BY AN EXAMINING BOARD COMPOSED OF THE DIRECTOR OF THE OFFICE OF PRICE STABILIZATION, DEPUTY DIRECTOR OF THE OFFICE OF PRICE STABILIZATION, AND THE PERSONNEL DIRECTOR OF THE OFFICE OF PRICE STABILIZATION; THAT THIS BOARD MADE THIS SELECTION FROM A REGISTER CONSISTING OF APPROXIMATELY 30 ELIGIBLE CANDIDATES; THAT THE EMPLOYMENT RECORDS, TRAINING EXPERIENCE, AND BACKGROUND OF EACH OF THE CANDIDATES WERE CAREFULLY REVIEWED, ANALYZED, AND COMPARED IN MAKING THE FINAL DESIGNATION; AND THAT THIS PROCEDURE WAS BASED UOON THE REGULAR APPOINTMENT SYSTEM OR PROCEDURE ESTABLISHED PRIOR TO SEPTEMBER 1, 1950, BY CHAPTER 21 OF THE FEDERAL PERSONNEL MANUAL FOR NONCOMPETITIVE POSITIONS.

SECTION 1310 OF THE ACT OF NOVEMBER 1, 1951, COMMONLY REFERRED TO AS THE WHITTEN RIDER, PLACED CERTAIN RESTRICTIONS UPON ADVANCEMENTS BETWEEN GRADES REQUIRING GENERALLY ONE YEAR'S SERVICE IN EACH GRADE BUT CONTAINED THE FOLLOWING PROVISO: "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.' BY AMENDMENT OF JUNE 5, 1952, THERE WAS INSERTED IMMEDIATELY FOLLOWING THE ABOVE-QUOTED LANGUAGE, THE FOLLOWING: "OR IS ELIGIBLE FOR APPOINTMENT IN ACCORDANCE WITH A REGULAR APPOINTMENT SYSTEM OR PROCEDURE ESTABLISHED PRIOR TO SEPTEMBER 1, 1950, TO A HIGHER GRADE POSITION OUTSIDE THE COMPETITIVE CIVIL SERVICE.' THE DATE SEPTEMBER 1, 1950, IS THE DATE THE RESTRICTION UPON INCREASE IN THE NUMBER OF PERMANENT EMPLOYEES IN THE FEDERAL SERVICES WAS FIRST APPLIED. SEE SEC. 1302, ACT OF SEPTEMBER 27, 1950, PUBLIC LAW 843, 81ST CONGRESS, 64 STAT. 1044. HOWEVER, YOUR SUBMISSION RAISES THE QUESTION WHETHER THE AMENDMENT TO THE WHITTEN RIDER REFERS TO A PROCEDURE ADOPTED BY A PARTICULAR AGENCY PRIOR TO SEPTEMBER 1, 1950--- WHICH, IF LITERALLY APPLIED, WOULD AUTOMATICALLY ELIMINATE THE OFFICE OF PRICE STABILIZATION AS IT WAS NOT IN EXISTENCE AT THAT DATE--- OR WHETHER IT HAS REFERENCE TO A GENERAL SYSTEM OR PROCEDURE AVAILABLE TO ALL EXECUTIVE AGENCIES PRIOR THERETO--- SUCH AS THAT COVERED BY CHAPTER 21, F.P.M.--- BUT ADOPTED BY A PARTICULAR AGENCY SUBSEQUENT TO SEPTEMBER 1, 1950.

THE STATEMENTS OF REPRESENTATIVE WHITTEN ON THE FLOOR OF CONGRESS IN SUPPORT OF THE AMENDMENT (SEE CONGRESSIONAL RECORD OF MARCH 13, 1952, PAGES 2329 TO 2334, INCLUSIVE) INDICATE THAT IT WAS INTENDED TO OVERCOME CERTAIN DECISIONS OF THIS OFFICE HOLDING THAT THE PROVISO REFERRING TO THE CIVIL SERVICE REGISTER DID NOT APPLY TO POSITIONS FOR WHICH THERE WAS NO CIVIL SERVICE ELIGIBLE REGISTER. COMPARE 31 COMP. GEN. 205 AND 426. LIGHT OF THE LEGISLATIVE HISTORY COVERING THE REFERRED-TO AMENDMENT OF JUNE 5, 1952, I FEEL THAT THE SAID AMENDMENT DOES NOT REQUIRE THAT THE AGENCY ITSELF MUST HAVE BEEN IN EXISTENCE OR MUST HAVE HAD AN ESTABLISHED PROCEDURE PRIOR TO SEPTEMBER 1, 1950, BUT RATHER THAT THE AMENDMENT APPLIES TO A GENERAL APPOINTMENT OR PROCEDURE SYSTEM AVAILABLE TO ALL AGENCIES, SUCH AS CHAPTER 21 OF THE FEDERAL PERSONNEL MANUAL AND ADOPTED BY THE PARTICULAR AGENCY. ACCORDINGLY, THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.