B-116343, AUGUST 28, 1953, 33 COMP. GEN. 96

B-116343, AUGUST 28, 1953, 33 COMP. GEN. 96

DETAILS - INTRA-OFFICE - COMPENSATION PAYABLE DURING DETAIL - VACANCY IN POSITIONS HELD BY PRESIDENTIAL APPOINTEES A VACANCY IN A POSITION REQUIRED TO BE FILLED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, MAY NOT BE FILLED ADMINISTRATIVELY BY THE DETAIL OF ANOTHER EMPLOYEE, AND THEREFORE, AN EMPLOYEE WHO IS ADMINISTRATIVELY ASSIGNED TO AND PERFORMS THE DUTIES OF SUCH POSITION IS NOT ENTITLED TO ANY ADDITIONAL COMPENSATION BY VIRTUE OF THE ASSIGNMENT. AN EMPLOYEE WHO IS DETAILED FROM LOW GRADE POSITION TO A HIGHER GRADE ONE IS TO BE CONSIDERED AS REMAINING IN THE REGULAR POSITION AND COMPENSATION DURING THE PERIOD OF DETAIL CONTINUES TO BE THAT OF THE REGULAR POSITION.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, INTERSTATE COMMERCE COMMISSION, AUGUST 28, 1953:

REFERENCE IS MADE TO YOUR LETTER OF JULY 22, 1953, SUBMITTING FOR CONSIDERATION A COPY OF MEMORANDUM DATED JULY 9, 1953, FROM MR. ALLYN C. BREED, MAKING CLAIM FOR ADDITIONAL COMPENSATION BELIEVED DUE AS A RESULT OF HIS ASSIGNMENT FROM THE POSITION OF SENIOR ASSISTANT DIRECTOR OF LOCOMOTIVE INSPECTION, GRADE GS-14, TO THE POSITION OF ACTING DIRECTOR OF LOCOMOTIVE INSPECTION, GRADE GS-15, DURING A VACANCY THEREIN. YOU ASK WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, THE CLAIMANT IS ENTITLED TO BE PAID THE DIFFERENCE IN SALARY FOR THE ENTIRE PERIOD FROM OCTOBER 1, 1952, THE DATE HE BECAME ACTING DIRECTOR, UNTIL HE IS RELIEVED FROM HIS PRESENT ASSIGNMENT, OR FOR THE PERIOD FROM APRIL 1, 1953, WHICH MARKED THE END OF 6 MONTHS' SERVICE IN THAT CAPACITY, UNTIL HE IS RELIEVED FROM HIS PRESENT ASSIGNMENT.

YOUR LETTER STATES THAT UNDER DATE OF SEPTEMBER 26, 1952, THE COMMISSION ENTERED A MINUTE READING AS FOLLOWS:

VOTED THAT DURING THE VACANCY OF THE POSITION OF DIRECTOR IN THE BUREAU OF LOCOMOTIVE INSPECTION, SENIOR ASSISTANT DIRECTOR, A. C. BREED, WILL SERVE AS ACTING DIRECTOR UNTIL THE VACANCY IS FILLED. AND THAT PURSUANT TO SAID ACTION MR. BREED BECAME ACTING DIRECTOR OF THE BUREAU OF LOCOMOTIVE INSPECTION ON OCTOBER 1, 1952, AND HAS CONTINUED IN THAT CAPACITY UNTIL THE PRESENT TIME, RECEIVING THROUGHOUT THAT PERIOD THE PAY OF SENIOR ASSISTANT DIRECTOR, GRADE GS-14.

UNDER 45 U.S.C. 24, THE APPOINTMENT OF BOTH THE DIRECTOR AND ASSISTANT DIRECTOR IS REQUIRED TO BE "BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE.' IT IS NOT EXACTLY UNDERSTOOD UPON WHAT AUTHORITY THE COMMISSION PROCEEDED TO FILL THE POSITION OF DIRECTOR BY AN ACTING DIRECTOR AS INDICATED BY THE ABOVE-QUOTED MINUTES. COMPARE, FOR INSTANCE, AUTHORITY SUCH AS THAT COVERED BY 26 U.S.C. 3995 (B). SUCH ACTION PRESUMABLY WAS TAKEN PURSUANT TO SECTION 14, CHAPTER X-1, OF THE FEDERAL PERSONNEL MANUAL. YOUR LETTER REFERS TO CERTAIN PROVISIONS THEREOF PROVIDING THAT " AN EMPLOYEE MAY BE DETAILED FOR NOT TO EXCEED 6 MONTHS WITHIN ANY PERIOD OF 12 SUCCESSIVE MONTHS IF HE MERITS ALL THE REQUIREMENTS FOR POSITION CHANGES TO THE POSITION TO WHICH DETAILED," THAT " AGENCIES MUST SECURE PRIOR APPROVAL FROM THE CERTIFYING OFFICER FOR DETAILS OF LONGER DURATION," AND THAT THE SECTION DEFINES A DETAIL AS "THE TEMPORARY ASSIGNMENT OF AN EMPLOYEE FROM HIS REGULAR POSITION TO ANOTHER POSITION WITHIN THE AGENCY, WITHOUT CHANGE IN HIS CIVIL SERVICE OR PAY STATUS. AT THE END OF THE DETAIL THE EMPLOYEE RETURNS TO HIS REGULAR DUTIES.' THE LETTER STATES FURTHER THAT "THE COMMISSION, IN THE ABSENCE OF A DULY APPOINTED AND QUALIFIED DIRECTOR SIMPLY DETAILED MR. BREED "TO SERVE AS ACTING DIRECTOR UNTIL THE VACANCY HAS BEEN FILLED.' " HOWEVER, THE FOLLOWING PROVISION OF THE SAME CHAPTER APPEARS PERTINENT HERE, VIZ:

THIS SECTION COVERS DETAILS WITHIN AN AGENCY OF EMPLOYEES WHO ARE SERVING UNDER ANY TYPE OF APPOINTMENT INCLUDING STATUS, STATUS QUO, INDEFINITE, TEMPORARY JOB APPOINTMENTS. IT IS NOT APPLICABLE WHEN THE POSITIONS INVOLVED ARE NOT UNDER THE CIVIL SERVICE ACT OR THE CLASSIFICATION ACT OF 1949. * * * ( ITALICS SUPPLIED.)

SINCE THE POSITION HERE INVOLVED IS REQUIRED TO BE FILLED BY APPOINTMENT MADE BY THE PRESIDENT, BY AND WITH THE CONSENT OF THE SENATE, SAID POSITION IS OUTSIDE THE CIVIL SERVICE ACT; HENCE, THE PROVISIONS OF SECTION 14, SUPRA, WOULD APPEAR TO HAVE NO APPLICATION TO THE SITUATION HERE INVOLVED.

MR. BREED'S CLAIM IS PREDICATED UPON OFFICE DECISION OF MARCH 2, 1953, B- 112656 (32 COMP. GEN. 381), THE PERTINENT PART OF WHICH, AS QUOTED IN HIS MEMORANDUM, IS AS FOLLOWS:

* * * THE ASSIGNMENT OF AN EMPLOYEE TO OCCUPY AND PERFORM THE DUTIES OF A POSITION CLASSIFIED IN ONE GRADE WHILE HIS SALARY IS FIXED IN THAT OF A POSITION CLASSIFIED IN A LOWER GRADE, APPEARS TO BE CONTRARY TO THE PROVISIONS OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, WHICH CONTEMPLATES THAT EMPLOYEES SHALL RECEIVE THE SALARY PROVIDED FOR THE GRADE IN WHICH THE POSITION THEY OCCUPY AND PERFORM THE DUTIES OF HAS BEEN CLASSIFIED. * * *

THE STATEMENT IN THE DECISION OF MARCH 2, 1953, UPON WHICH THE OFFICER PREDICATES HIS CLAIM RELATES ONLY TO SITUATIONS WHERE AN OFFICER OTHERWISE IS PROPERLY PLACED IN A POSITION BY THE APPOINTING AUTHORITIES PURSUANT TO LAW. AS INDICATED ABOVE, THERE APPEARS TO BE NO STATUTE PROVIDING THAT AN ASSISTANT DIRECTOR OF LOCOMOTIVE INSPECTION IS TO BE ASSIGNED TO THE OFFICE OF DIRECTOR IN THE EVENT OF A VACANCY IN SAID OFFICE AND THAT, UPON SUCH ASSIGNMENT THE ASSISTANT DIRECTOR IS TO RECEIVE THE SALARY PROVIDED FOR THE DIRECTOR.

IF THE MATTER HERE INVOLVED BE VIEWED AS A PROPER DETAIL FROM A POSITION OF A LOWER GRADE TO ONE OF A HIGHER GRADE, THE GENERAL RULE IN SUCH CASES IS WELL ESTABLISHED THAT DURING THE PERIOD OF DETAIL THE EMPLOYEE REMAINS IN HIS REGULAR POSITION AND HIS COMPENSATION DURING SAID PERIOD CONTINUES TO BE THAT OF HIS REGULAR POSITION. 23 COMP. GEN. 145; 24 ID. 483 (NEAR TOP OF PAGE 488), 518, 563, 816.

I HAVE TO ADVISE YOU THAT I KNOW OF NO LEGAL AUTHORITY WHEREBY THE CLAIMANT IS ENTITLED TO ANY ADDITIONAL COMPENSATION BY VIRTUE OF HIS ASSIGNMENT PURSUANT TO THE ABOVE-QUOTED MINUTE OF THE COMMISSION.