B-122753, AUGUST 2, 1956, 36 COMP. GEN. 73

B-122753: Aug 2, 1956

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COMPENSATION - RATES - DEMOTION AFTER ERRONEOUS PROMOTION - HIGHEST PREVIOUS SALARY RATE - DE JURE AND DE FACTO STATUS THE MAXIMUM SALARY RATE RULE WHICH PERMITS AN EMPLOYEE WHO IS DEMOTED TO BE PAID AT ANY SCHEDULED RATE. IS NOT APPLICABLE IF THE PREVIOUS RATES OR POSITIONS WERE NOT LEGALLY EARNED OR ATTAINED BY THE EMPLOYEE. THE COMPENSATION RECEIVED BY AN EMPLOYEE PRIOR TO DEMOTION TO HIS FORMER POSITION WHEN HE WAS FOUND PHYSICALLY UNQUALIFIED FOR PROMOTION MAY BE RETAINED UNDER THE DE FACTO RULE. THE EMPLOYEE IS TO BE REGARDED AS IN A DE JURE STATUS DURING THE PERIOD HE RECEIVED COMPENSATION AT A HIGHER RATE THAN HE HAD PREVIOUSLY RECEIVED IN THE LOWER POSITION ON THE BASIS OF THE ERRONEOUS PROMOTION.

B-122753, AUGUST 2, 1956, 36 COMP. GEN. 73

COMPENSATION - RATES - DEMOTION AFTER ERRONEOUS PROMOTION - HIGHEST PREVIOUS SALARY RATE - DE JURE AND DE FACTO STATUS THE MAXIMUM SALARY RATE RULE WHICH PERMITS AN EMPLOYEE WHO IS DEMOTED TO BE PAID AT ANY SCHEDULED RATE, WHICH DOES NOT EXCEED THE HIGHEST PREVIOUS RATE RECEIVED, IS NOT APPLICABLE IF THE PREVIOUS RATES OR POSITIONS WERE NOT LEGALLY EARNED OR ATTAINED BY THE EMPLOYEE. THE COMPENSATION RECEIVED BY AN EMPLOYEE PRIOR TO DEMOTION TO HIS FORMER POSITION WHEN HE WAS FOUND PHYSICALLY UNQUALIFIED FOR PROMOTION MAY BE RETAINED UNDER THE DE FACTO RULE, BUT THE EMPLOYEE IS TO BE REGARDED AS IN A DE JURE STATUS DURING THE PERIOD HE RECEIVED COMPENSATION AT A HIGHER RATE THAN HE HAD PREVIOUSLY RECEIVED IN THE LOWER POSITION ON THE BASIS OF THE ERRONEOUS PROMOTION, AND SUCH EXCESS COMPENSATION MUST BE REFUNDED.

TO THE SECRETARY OF COMMERCE, AUGUST 2, 1956:

IN LETTER DATED MAY 28, 1956, YOUR ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTS OUR ADVICE (1) WHETHER THE PERSONNEL ACTION OF THE CIVIL AERONAUTICS ADMINISTRATION WHICH "DEMOTED" AN EMPLOYEE ON APRIL 15, 1951, FROM GS-9 ($4,600 PER ANNUM) TO GS-7 ($4,575 PER ANNUM, TOP STEP RATE) WAS CORRECT, OR (2) IF INCORRECT, WHETHER THE EMPLOYEE'S CONTINUANCE AT THAT RATE OF $4,575 PER ANNUM CAME UNDER THE DE FACTO RULE (28 COMP. GEN. 514) OR ANY OTHER AUTHORIZATION ENTITLING HIM TO RETAIN THE EXCESS COMPENSATION HE RECEIVED DURING THE PERIOD FROM APRIL 15, 1951, TO JUNE 24, 1955. THE LATTER DATE HIS SALARY RATE AS GS 7 WAS REDUCED TO $4,075 (3RD STEP) FROM WHICH HE WAS ERRONEOUSLY PROMOTED TO GS-9 ON MARCH 4, 1951, AS RELATED HEREINAFTER. RESPECTING THE FACTS STATED IN THE ASSISTANT SECRETARY'S LETTER, WE FIND THAT THIS MATTER WAS THE SUBJECT OF AN INQUIRY OF OUR AUDITORS IN 1954 CONCERNING THE SERVICES OF DONALD B. DOIG, AN EMPLOYEE OF THE CIVIL AERONAUTICS ADMINISTRATION, SIXTH REGION, HONOLULU ( HAWAII) TRAFFIC CONTROL CENTER.

THE RECORD SHOWS MR. DOIG WAS APPOINTED AUGUST 30, 1948, TO A TRAINEE POSITION (CAF-6) IN THE HONOLULU TRAFFIC CONTROL TOWER, AT WHICH TIME HE PASSED A "SECOND CLASS" MEDICAL EXAMINATION AS REQUIRED OF APPLICATIONS FOR ALL TRAFFIC CONTROL TOWER POSITIONS. SUCH AN EXAMINATION IS REQUIRED UNDER THE REGULATIONS OF THE CIVIL AERONAUTICS BOARD (14 C.F.R. 26.34 AND 29.3) ISSUED PURSUANT TO SECTION 205 OF THE CIVIL AERONAUTICS ACT OF 1938, AS AMENDED, 49 U.S.C. 425 (A). THE BOARD'S REGULATIONS INTERPRET AND APPLY THE PROVISIONS OF SECTIONS 601 AND 602 OF THE ACT, 49 U.S.C. 551 AND 552. MR. DOIG WAS PROMOTED DECEMBER 12, 1948, TO CAF-7 AND WAS TRANSFERRED TO THE HONOLULU TRAFFIC CONTROL CENTER. ON JANUARY 1, 1949, HE WAS TRANSFERRED TO THE TOWER AT HILO, HAWAII. ON APRIL 3, 1949, HE WAS RETURNED TO THE TRAFFIC CONTROL TOWER AT HONOLULU, BUT WITHOUT A NEW MEDICAL CERTIFICATE WHICH, WE UNDERSTAND, IS ADMINISTRATIVELY REQUIRED OF SUCH EMPLOYEES EVERY 6 MONTHS. HOWEVER, ON MARCH 4, 1951, MR. DOIG WAS PROMOTED FROM GS-7 ($4,075 PER ANNUM) TO GS-9 ($4,600 PER ANNUM) AS AIR TRAFFIC CONTROLLER AT THE HONOLULU TOWER. IT APPEARS THIS LAST PROMOTION ACTION ALSO INADVERTENTLY OMITTED THE PREREQUISITE MEDICAL EXAMINATION. WHEN HE WAS EXAMINED BY THE REGIONAL MEDICAL OFFICER, MR. DOIG FAILED THE VISUAL ACUITY TEST REQUIRED OF HOLDERS OF AIR-TRAFFIC CONTROL-TOWER CERTIFICATES. HENCE, HE WAS "DEMOTED" ON APRIL 15, 1951, TO GS-7 AND RESUMED HIS FORMER POSITION AT THE HONOLULU CENTER. IN EFFECTING THIS "DEMOTION," HOWEVER, THE MAXIMUM SALARY RATE OF GS-7, $4,575 PER ANNUM, WAS APPLIED ADMINISTRATIVELY BASED UPON THE PROVISIONS OF THE FEDERAL EMPLOYEES' PAY REGULATIONS, 5 C.F.R. 25.103 (B) (1).

THE CITED PAY REGULATIONS PROVIDE THAT AN EMPLOYEE WHO IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED, REPROMOTED, OR DEMOTED MAY BE PAID AT ANY SCHEDULED RATE FOR HIS GRADE WHICH DOES NOT EXCEED THE EMPLOYEE'S HIGHEST PREVIOUS RATE. HOWEVER, THAT REGULATION AND THE DEFINITIONS OF ,PROMOTION," "DEMOTION," AND "HIGHEST PREVIOUS RATE" IN SUBSECTIONS 25.102 (E), (G) AND (J) ARE NOT REGARDED BY US AS APPLYING TO PREVIOUS RATES OR POSITIONS WHICH LEGALLY ARE NOT EARNED OR ATTAINED BY THE EMPLOYEE, SUCH AS APPEARS TO BE THE CASE HERE. SUCH REGULATIONS CONTEMPLATE THAT THE PERSONNEL ACTIONS ARE PROPER AND CORRECT ACTIONS.

IN THIS CASE, IT APPEARS A DE FACTO STATUS EXISTED ONLY DURING THE PERIOD FROM MARCH 4 TO APRIL 15, 1951. UNDER THE RULE AT 28 COMP. GEN. 514, MR. DOIG COULD RETAIN THE COMPENSATION HE HAD RECEIVED DURING THAT 6-WEEKS PERIOD IN GRADE GS-9. HOWEVER, UPON RESTORATION TO GRADE GS-7 HE WAS NOT IN A DE FACTO STATUS BUT RATHER, IN A DE JURE STATUS AND, AS EXPLAINED ABOVE, HE WAS NOT ENTITLED UNDER THE "HIGHEST PREVIOUS RATE" RULE TO HAVE HIS GS-7 SALARY RATE FIXED UPON THE BASIS OF THE ERRONEOUS GS-9 RATE AS WAS ADMINISTRATIVELY DONE IN THIS CASE. FURTHER, IN THAT LIGHT, THE ERRONEOUS PROMOTION OF MARCH 4, 1951, WAS NOT AN "EQUIVALENT INCREASE" FROM SUCH CAUSE AS WOULD REQUIRE THE BEGINNING OF A NEW WAITING PERIOD FOR WITHIN GRADE GS-7 STEP INCREASES UNDER SECTION 701 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1121.

AS TO THE QUESTIONS PRESENTED, WE ARE NOT AWARE OF ANY AUTHORITY WHEREBY MR. DOIG IS ENTITLED TO RETAIN THE EXCESS COMPENSATION HE RECEIVED DURING THE PERIOD FROM APRIL 15, 1951, TO JUNE 24, 1955. ACCORDINGLY, OUR ANSWER TO THE PRIMARY QUESTION (1), AND THE ALTERNATE QUESTION (2) IS IN THE NEGATIVE.