B-124408, JUL. 20, 1955

B-124408: Jul 20, 1955

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WERE CONVERTED FROM THE CRAFTS. IT IS UNDERSTOOD THAT THE CONVERSIONS REFERRED TO RESULTED IN OVERPAYMENTS TO THE EMPLOYEES BECAUSE OF SALARY ADJUSTMENTS TO HIGHER GS RATES UNDER SECTION 106 (B) (3) OF PUBLIC LAW 763. THE FACTS RELATING TO THE CASE ARE STATED IN THE SECOND AND THIRD PARAGRAPHS OF THE LETTER AS FOLLOWS: "A COPY OF A LETTER FROM THIS AUTHORITY TO THE U.S. 1955 ARE ENCLOSED FOR INFORMATION. THE COMMISSION HAS DECLINED TO CONCUR IN THE AUTHORITY'S OPINION THAT PREVAILING RATE DETERMINATIONS ARE IMPRACTICABLE FOR USE IN ESTABLISHING THE PAY OF CERTAIN AUTHORITY EMPLOYEES AS PROVIDED IN SECTION 105 OF P.L. 763. - THE AUTHORITY IS RE- CONVERTING THE POSITIONS. THIS RE CONVERSION IS TO BECOME EFFECTIVE AT THE BEGINNING OF THE FIRST PAY PERIOD FOLLOWING THE COMMISSION'S DETERMINATION OF JUNE 10.

B-124408, JUL. 20, 1955

TO HONORABLE SAMUEL SPENCER, CHAIRMAN, NATIONAL CAPITAL HOUSING AUTHORITY:

THE EXECUTIVE DIRECTOR'S LETTER OF JUNE 22, 1955, REQUESTS OUR DECISION UPON A QUESTION AFFECTING SOME 170 EMPLOYEES OF THE NATIONAL CAPITAL HOUSING AUTHORITY, WHOSE POSITIONS, THROUGH ADMINISTRATIVE ERROR, WERE CONVERTED FROM THE CRAFTS, PROTECTIVE, CUSTODIAL (CPC) SCHEDULE TO THE GENERAL SCHEDULE (GS) UNDER SECTION 106 OF PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954. IT IS UNDERSTOOD THAT THE CONVERSIONS REFERRED TO RESULTED IN OVERPAYMENTS TO THE EMPLOYEES BECAUSE OF SALARY ADJUSTMENTS TO HIGHER GS RATES UNDER SECTION 106 (B) (3) OF PUBLIC LAW 763, APPROVED SEPTEMBER 1, 1954.

THE FACTS RELATING TO THE CASE ARE STATED IN THE SECOND AND THIRD PARAGRAPHS OF THE LETTER AS FOLLOWS:

"A COPY OF A LETTER FROM THIS AUTHORITY TO THE U.S. CIVIL SERVICE COMMISSION DATED MAY 27, 1955, AND A COPY OF THE COMMISSION'S REPLY DATED JUNE 10, 1955 ARE ENCLOSED FOR INFORMATION. IN SUBSTANCE, THE COMMISSION HAS DECLINED TO CONCUR IN THE AUTHORITY'S OPINION THAT PREVAILING RATE DETERMINATIONS ARE IMPRACTICABLE FOR USE IN ESTABLISHING THE PAY OF CERTAIN AUTHORITY EMPLOYEES AS PROVIDED IN SECTION 105 OF P.L. 763.

"UNDER INSTRUCTIONS FROM THE CIVIL SERVICE COMMISSION--- SEE SECOND LAST PARAGRAPH OF THE COMMISSION'S LETTER OF JUNE 10--- THE AUTHORITY IS RE- CONVERTING THE POSITIONS, WHICH HAD BEEN CONVERTED FROM CPC GRADES TO GS GRADES ON MARCH 13, 1955, UNDER P.L. 763. THIS RE CONVERSION IS TO BECOME EFFECTIVE AT THE BEGINNING OF THE FIRST PAY PERIOD FOLLOWING THE COMMISSION'S DETERMINATION OF JUNE 10, 1955, I.E., ON JUNE 19, 1955. LIKEWISE, THE POSITIONS OF FIVE EMPLOYEES WHO WERE APPOINTED TO GS POSITIONS (PREVIOUSLY IN THE CPC GRADES) SUBSEQUENT TO MARCH 13, 1955, BUT BEFORE JUNE 18, 1955, ARE BEING CONVERTED TO APPROPRIATE CPC GRADES. UNDER THE RE-CONVERSION, SALARY STEPS OF THE AFFECTED POSITIONS ARE BEING ESTABLISHED ON THE BASIS OF THE RATES WITHIN THE CPC GRADES WHICH THE EMPLOYEES WOULD HAVE ATTAINED HAD THE POSITIONS CONTINUED UNDER THE CPC SCHEDULE ON AND SUBSEQUENT TO MARCH 13, 1955. (COPIES OF ADMINISTRATIVE MEMORANDA, (A) DATED FEBRUARY 25, 1955, COVERING THE MARCH 13 CONVERSION ACTION, AND (B) DATED JUNE 17, 1955, COVERING THE JUNE 19, 1955 RE- CONVERSION ACTION, ARE ENCLOSED ALSO FOR YOUR INFORMATION.)

THE DIRECTOR'S LETTER POINTS OUT THAT A RETROACTIVE RECONVERSION OF THE EMPLOYEES TO THE CPC SCHEDULE, INCLUDING THOSE NOW SEPARATED, WOULD PRESENT MANY COMPLEX ADMINISTRATIVE PROBLEMS AND REQUIRE EXPENDITURES WHICH APPARENTLY ARE DEEMED UNWARRANTED. FURTHER, IT IS URGED THAT, SINCE THE OVERPAYMENTS RESULTING FROM THE UNAUTHORIZED CONVERSION OF THE POSITIONS TO THE GENERAL SCHEDULE WERE CAUSED SOLELY BY ADMINISTRATIVE ACTION AND IN NO WAY MAY BE ATTRIBUTED TO THE EMPLOYEES CONCERNED, RECOVERY OF SUCH OVERPAYMENTS WOULD BE UNDESIRABLE. ACCORDINGLY, A DECISION IS REQUESTED WHETHER THE REQUIRED RECONVERSION OF THE POSITIONS FROM THE GS TO THE CPC SCHEDULE MAY BE MADE ON A PROSPECTIVE BASIS AND WITHOUT RETROACTIVE APPLICATION SO FAR AS THE OVERPAYMENT OF THE EMPLOYEES IS CONCERNED.

THE AUTHORITY'S MEMORANDUM OF JUNE 17, 1955, PURPORTING TO CONTROL THE RECONVERSION OF THE POSITIONS AFFECTED, PROVIDES IN PART AS FOLLOWS:

"THEREFORE, ALL NCHA POSITIONS CONVERTED FROM THE CPC SCHEDULE TO THE GS SCHEDULE ON MARCH 13, 1955 WILL BE RESTORED TO THE CPC SCHEDULE EFFECTIVE JUNE 19, 1955. SALARY STEPS OF THE AFFECTED EMPLOYEES WILL BE ESTABLISHED IN EACH CASE ON THE BASIS OF THE RATE THE EMPLOYEE WOULD HAVE RECEIVED OR ATTAINED HAD HIS POSITION REMAINED UNDER THE CPC SCHEDULE.'

THE QUOTED PROVISIONS SEEM TO US TO BE INCOMPATIBLE. THE FIRST SENTENCE WOULD OPERATE TO RECONVERT THE AFFECTED POSITIONS FROM THE GS SCHEDULE TO THE CPC SCHEDULE, EFFECTIVE JUNE 19, 1955. THE SECOND WOULD GIVE RECOGNITION TO THE SERVICE OF THE EMPLOYEES CONCERNED ON THE ASSUMED BASIS THAT IT WAS RENDERED UNDER THE CPC SCHEDULE WHICH IS CONTRARY TO FACT. ASIDE FROM THE QUESTION OF THE OVERPAYMENTS RECEIVED BY THE EMPLOYEES WHILE SERVING IN POSITIONS ERRONEOUSLY CONVERTED TO THE GS SCHEDULE, THERE ARE FOR CONSIDERATION THE RETROACTIVE FEATURES OF PUBLIC LAW 94, APPROVED JUNE 28, 1955, WHICH MIGHT GIVE RISE TO CLAIMS BY THE EMPLOYEES FOR RETROACTIVE COMPENSATION BASED UPON THE GS SCHEDULED RATES RECEIVED BY THEM DURING THE PERIOD MARCH 13 TO JUNE 19, 1955.

IN VIEW OF THE FOREGOING AND OF THE DETERMINATION BY THE CIVIL SERVICE COMMISSION THAT THE INITIAL CONVERSION WAS UNLAWFUL, WE ARE LED TO CONCLUDE THAT SUCH CONVERSION SHOULD BE TREATED AS A NULLITY AND THAT ANY OVERPAYMENTS RESULTING THEREFROM SHOULD BE COLLECTED FROM THE EMPLOYEES CONCERNED. PLEASE ADVISE US WHEN SUCH COLLECTION HAS BEEN ACCOMPLISHED.