B-113967, APRIL 20, 1953, 32 COMP. GEN. 463

B-113967: Apr 20, 1953

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COMPENSATION - RATES - POSITION REALLOCATIONS ADMINISTRATIVE ACTIONS WHICH ESTABLISHED SALARY RATES LOWER THAN PERMITTED BY FEDERAL EMPLOYEES PAY REGULATIONS FOR POSITIONS WHICH WERE ALLOCATED TO LOWER GRADES UPON POST AUDIT BY THE CIVIL SERVICE COMMISSION. WHICH WERE PROPER AT THE TIME TAKEN. MAY NOT BE DISTURBED NOW SO AS TO ALLOW EMPLOYEES HOLDING SUCH POSITIONS THE HIGHER SALARY RATES ON THE BASIS THAT RATES WERE ESTABLISHED PURSUANT TO DEPARTMENTAL INSTRUCTIONS WHICH WERE BASED UPON AN ERRONEOUS ADMINISTRATIVE INTERPRETATION OF THE REGULATIONS AND THE DECISION OF THIS OFFICE PUBLISHED IN 30 COMP. 1953: REFERENCE IS MADE TO THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER OF FEBRUARY 25.

B-113967, APRIL 20, 1953, 32 COMP. GEN. 463

COMPENSATION - RATES - POSITION REALLOCATIONS ADMINISTRATIVE ACTIONS WHICH ESTABLISHED SALARY RATES LOWER THAN PERMITTED BY FEDERAL EMPLOYEES PAY REGULATIONS FOR POSITIONS WHICH WERE ALLOCATED TO LOWER GRADES UPON POST AUDIT BY THE CIVIL SERVICE COMMISSION, AND WHICH WERE PROPER AT THE TIME TAKEN, MAY NOT BE DISTURBED NOW SO AS TO ALLOW EMPLOYEES HOLDING SUCH POSITIONS THE HIGHER SALARY RATES ON THE BASIS THAT RATES WERE ESTABLISHED PURSUANT TO DEPARTMENTAL INSTRUCTIONS WHICH WERE BASED UPON AN ERRONEOUS ADMINISTRATIVE INTERPRETATION OF THE REGULATIONS AND THE DECISION OF THIS OFFICE PUBLISHED IN 30 COMP. GEN. 319.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, APRIL 20, 1953:

REFERENCE IS MADE TO THE ADMINISTRATIVE ASSISTANT SECRETARY'S LETTER OF FEBRUARY 25, 1953, REQUESTING A DECISION WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, THE SALARY RATES ESTABLISHED ADMINISTRATIVELY, IN ACCORDANCE WITH THEN EXISTING DEPARTMENTAL INSTRUCTIONS, AND AS A RESULT OF ALLOCATIONS TO LOWER GRADES UPON POST AUDITS BY THE CIVIL SERVICE COMMISSION, NOW CAN BE REESTABLISHED UPWARD.

IT IS STATED THAT AT THE TIME THE SALARY RATES HERE INVOLVED WERE ESTABLISHED IT WAS DEPARTMENTAL POLICY TO FOLLOW THE HIGHEST PREVIOUS RATE RULE OF SECTION 25.103 (B) OF THE FEDERAL EMPLOYEES PAY REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION PURSUANT TO SECTION 802 (A) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 959. THE POLICY, SET FORTH IN DEPARTMENTAL SUPPLEMENT DATED MARCH 25, 1959, READS, AS FOLLOWS:

THE DEPARTMENT FAVORS THE POLICY OF MINIMIZING SO FAR AS PRACTICABLE REDUCTION IN PAY OF AFFECTED EMPLOYEES.

IT IS STATED FURTHER THAT, BASED UPON AN APPARENT ERRONEOUS ADMINISTRATIVE INTERPRETATION OF THE REGULATIONS--- PRESUMABLY 25.103 (B/- -- AND DECISION OF THIS OFFICE PUBLISHED IN 30 COMP. GEN. 319, DEPARTMENTAL INSTRUCTIONS WERE ISSUED, PM MEMORANDUM NO. 267, SUPPLEMENT 3, JULY 17, 1952, WHEREIN THE SALARY STEP TO BE ALLOWED WHEN A POSITION IS DOWNGRADED AS A RESULT OF A POST AUDIT WAS BASED UPON "TOTAL WAITING PERIOD IN BOTH GRADE LEVELS OF THE POSITION.' THE EXAMPLES SET FORTH IN YOUR LETTER SHOW THAT IN CASES PROCESSED BOTH PRIOR AND SUBSEQUENT TO THE ADMINISTRATIVE REGULATION THE SALARY ALLOWED UPON DEMOTION OR DOWNGRADING AS A RESULT OF A POST AUDIT WAS BASED UPON WAITING TIME, AND RESULTED IN A LOWER SALARY RATE THAN WOULD HAVE BEEN ALLOWED UNDER THE HIGHEST PREVIOUS RATE RULE OF SECTION 25.103 (B) OF THE CIVIL SERVICE REGULATIONS.

IT IS STATED THAT UPON THE AMENDMENT OF SECTION 25.103 (B), SUPRA, EFFECTIVE AUGUST 5, 1952, BY THE CIVIL SERVICE COMMISSION, AND BASED UPON THE DECISION OF THIS OFFICE DATED NOVEMBER 6, 1952, B-110864, REVISED INSTRUCTIONS WERE ISSUED, PM MEMORANDUM NO. 267, SUPPLEMENT 4, DATED DECEMBER 23, 1952, UNDER WHICH THE EMPLOYEES COULD HAVE RECEIVED THE MAXIMUM RATE AUTHORIZED BY THE HIGHEST PREVIOUS RATE RULE. IT IS FURTHER STATED THAT THE POSITIONS LISTED WERE ALLOCATED TO THE GRADES INITIALLY ACCORDED THEM IN COMPLIANCE WITH THE THEN EXISTING CLASSIFICATION STANDARDS AND PROCEDURES; THAT THE CIVIL SERVICE COMMISSION WAS NOT CONSULTED REGARDING THE INITIAL ALLOCATION ACTION, AND THE COMMISSION HAD NOT PLACED THEM IN LOWER GRADES OR OFFICIALLY INFORMED THE DEPARTMENT THAT THEY BELONGED IN LOWER GRADES, AS PROVIDED IN SECTION 25.103 (B) (2) OF THE AMENDED PAY REGULATIONS AND THE OFFICE DECISION CITED BY YOU.

SECTION 25.103 (B) (1), WHICH WAS IN FORCE AND EFFECT DURING THE PERIOD COVERED BY THE CASES HERE INVOLVED, READS, IN PERTINENT PART, AS FOLLOWS:

* * * AN EMPLOYEE WHO IS * * * DEMOTED MAY BE PAID AT ANY SCHEDULED RATE FOR HIS GRADE WHICH DOES NOT EXCEED THE EMPLOYEE'S HIGHEST PREVIOUS RATE. IF THE EMPLOYEE'S HIGHEST PREVIOUS RATE FALLS BETWEEN TWO SCHEDULED RATES OF THE NEW GRADE, HE MAY BE GIVEN THE HIGHER RATE. * * *

UNDER THE PROVISIONS THEREOF THE ACTION BY THE ADMINISTRATIVE OFFICE IN FIXING THE SALARY RATE, WHEN AN EMPLOYEE IS DEMOTED OR DOWNGRADED, IS DISCRETIONARY, BEING MANDATORY ONLY TO THE EXTENT THAT THE EMPLOYEE'S SALARY CANNOT EXCEED HIS HIGHEST PREVIOUS RATE AND MUST BE AT ONE OF THE STEPS OR RATES, IN THE GRADE FINALLY ASSIGNED, AS ESTABLISHED BY THE CLASSIFICATION ACT OF 1949, AS AMENDED, 63 STAT. 954.

SINCE THE ORIGINAL ADMINISTRATIVE ACTIONS WERE PROPERLY TAKEN AT THE TIME, IN ACCORDANCE WITH THE DISCRETIONARY AUTHORITY AND THE THEN EXISTING REGULATIONS, NO PROPER BASIS EXISTS FOR DISTURBING SAID ACTIONS. YOUR QUESTIONS MUST THEREFORE BE ANSWERED IN THE NEGATIVE.