B-123846, AUG. 5, 1955

B-123846: Aug 5, 1955

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YOU SAY THAT THERE ARE SEVERAL CHIEF ATTORNEYS INVOLVED IN YOUR QUESTION. WHEN HE WAS APPOINTED ASSOCIATE SOLICITOR. PRIOR TO DECEMBER 1945 THE POSITION OF THE CHIEF ATTORNEY OF THE DENVER REGIONAL OFFICE WAS CLASSIFIED AS FOLLOWS: FEBRUARY 3. IN THE POSITION AS ASSOCIATE SOLICITOR OF THE DENVER BRANCH THE EMPLOYEE WAS RATED AS P AND S 7. DURING HIS ABSENCE THE POSITION OF CHIEF ATTORNEY IN THE DENVER REGIONAL OFFICE WAS GRADED P AND S 6 (GS 13). HE WAS ASSIGNED THAT GRADE ON HIS RETURN TO THE POSITION OF CHIEF ATTORNEY. YOUR GENERAL COUNSEL HAS EXPRESSED THE VIEW THAT THE DUTIES AND RESPONSIBILITIES OF THE CHIEF ATTORNEY HAVE BEEN ESSENTIALLY CONSTANT OVER THE PAST 25 YEARS EVEN THOUGH THE PROBLEMS ENCOUNTERED IN THE POSITION HAVE INCREASED IN VOLUME AND COMPLEXITY SINCE WORLD WAR II.

B-123846, AUG. 5, 1955

TO HONORABLE HARVEY V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:

YOUR LETTER OF MAY 2, 1955, REQUESTS OUR DECISION WHETHER, IN THE CASE OF CHIEF ATTORNEYS OF THE VETERANS ADMINISTRATION, SERVICE IN A POSITION WITH THE SAME TITLE BUT THEN ALLOCATED IN LOWER GRADES MAY BE COUNTED TOWARD THE 10-YEAR WAITING PERIOD REQUIREMENT FOR LONGEVITY STEP INCREASES UNDER SECTION 703 (B) (6) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, 969, AS AMENDED BY THE ACT OF SEPTEMBER 1, 1954, 68 STAT. 1105.

YOU SAY THAT THERE ARE SEVERAL CHIEF ATTORNEYS INVOLVED IN YOUR QUESTION, AND AS AN EXAMPLE, YOU PRESENT THE CASE OF THE CHIEF ATTORNEY AT THE DENVER REGIONAL OFFICE---

"* * * WHO CONTINUOUSLY OCCUPIED THAT POSITION FROM FEBRUARY 3, 1934 TO DECEMBER 19, 1945, WHEN HE WAS APPOINTED ASSOCIATE SOLICITOR, DENVER BRANCH OFFICE. ON MAY 1, 1949, THE BRANCH HAVING BEEN DISCONTINUED, HE RESUMED HIS DUTIES AS CHIEF ATTORNEY AT THE DENVER REGIONAL OFFICE AND HAS CONTINUOUSLY OCCUPIED THAT POSITION SINCE MAY 1, 1949. PRIOR TO DECEMBER 1945 THE POSITION OF THE CHIEF ATTORNEY OF THE DENVER REGIONAL OFFICE WAS CLASSIFIED AS FOLLOWS: FEBRUARY 3, 1934 TO JUNE 18, 1936, P AND S 3 (GS 9); JUNE 19, 1936 TO JANUARY 15, 1945, P AND S 4 (GS 11) AND FROM JANUARY 16, 1945, P AND S 5 (GS 12). IN THE POSITION AS ASSOCIATE SOLICITOR OF THE DENVER BRANCH THE EMPLOYEE WAS RATED AS P AND S 7. DURING HIS ABSENCE THE POSITION OF CHIEF ATTORNEY IN THE DENVER REGIONAL OFFICE WAS GRADED P AND S 6 (GS 13), AND HE WAS ASSIGNED THAT GRADE ON HIS RETURN TO THE POSITION OF CHIEF ATTORNEY, VA REGIONAL OFFICE, DENVER, COLORADO IN MAY 1949.'

YOUR GENERAL COUNSEL HAS EXPRESSED THE VIEW THAT THE DUTIES AND RESPONSIBILITIES OF THE CHIEF ATTORNEY HAVE BEEN ESSENTIALLY CONSTANT OVER THE PAST 25 YEARS EVEN THOUGH THE PROBLEMS ENCOUNTERED IN THE POSITION HAVE INCREASED IN VOLUME AND COMPLEXITY SINCE WORLD WAR II. ON THE OTHER HAND, YOUR PERSONNEL OFFICIALS CONTEND THAT SINCE THE "VOLUME AND PERPLEXITY OF THE WORK LOAD" HAS INCREASED, THERE HAS BEEN A CHANGE OF DUTIES IN THE CHIEF ATTORNEY POSITION.

ONE OF THE ELIGIBILITY REQUIREMENTS FOR A LONGEVITY STEP-INCREASE UNDER SECTION 703 (B) OF THE CLASSIFICATION ACT OF 1949 IS THAT

"/6) THE OFFICER OR EMPLOYEE SHALL HAVE HAD, IN THE AGGREGATE, NOT LESS THAN TEN YEARS OF SERVICE IN THE POSITION WHICH HE THEN OCCUPIES, OR IN POSITIONS OF EQUIVALENT OR HIGHER CLASS OR GRADE.'

SECTION 301 (1) OF THE ACT, 63 STAT. 957, DEFINES "POSITION" AS "THE WORK, CONSISTING OF THE DUTIES AND RESPONSIBILITIES, ASSIGNABLE TO AN OFFICER OR EMPLOYEES.' IT IS APPARENT, THEREFORE, THAT SERVICE MAY BE COUNTED TOWARD THE 10-YEAR SERVICE REQUIREMENT SO LONG AS THE DUTIES AND RESPONSIBILITIES OF THE POSITION REMAIN THE SAME, REGARDLESS OF A CHANGE IN THE GRADE TO WHICH THE POSITION IS ALLOCATED. 33 COMP GEN. 362.

THE HEAD OF THE AGENCY HAS THE AUTHORITY TO ASSIGN DUTIES AND RESPONSIBILITIES TO EMPLOYEES AND, SUBJECT TO THE CLASSIFICATION ACT OF 1949 AND CIVIL SERVICE REGULATIONS, TO CLASSIFY POSITIONS. SEE FEDERAL PERSONNEL MANUAL, AT PAGE P2-7. INHERENT IN THAT AUTHORITY IS THE RESPONSIBILITY FOR DETERMINING WHETHER DUTIES AND RESPONSIBILITIES HAVE CHANGED OR REMAINED CONSTANT. IT FOLLOWS THAT THE DECISION WHETHER THE RECLASSIFIED POSITION IS THE SAME WITHIN THE PURVIEW OF SECTION 703 (B) (6) OF THE CLASSIFICATION ACT OF 1949 SHOULD BE MADE BY THE AGENCY HEAD OR UNDER HIS AUTHORITY.

SHOULD THE AGENCY HEAD DESIRE HE MAY, PURSUANT TO SECTION 501 OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 958, REQUEST THE CIVIL SERVICE COMMISSION TO ASCERTAIN THE FACTS AS TO THE DUTIES AND RESPONSIBILITIES OF ANY POSITION.

YOU ARE ADVISED, THEREFORE, THAT SERVICE IN A POSITION AT A LOWER GRADE MAY BE COUNTED TOWARD THE AGGREGATE REQUIREMENT UNDER SECTION 703 (B) (6) OF THE CLASSIFICATION ACT OF 1949 UPON A DETERMINATION BY THE AGENCY HEAD OR THE CIVIL SERVICE COMMISSION THAT THE DUTIES AND RESPONSIBILITIES AT THE HIGHER GRADE DO NOT DIFFER MATERIALLY FROM THOSE AT THE LOWER GRADE.