B-12456, OCTOBER 9, 1940, 20 COMP. GEN. 191

B-12456: Oct 9, 1940

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THE SALARY OF A NON-CIVIL SERVICE EMPLOYEE OF THE FEDERAL HOUSING ADMINISTRATION IS REDUCED TO THE MINIMUM RATE OF HIS GRADE AT THE TIME HIS NAME IS REACHED FOR CERTIFICATION BY THE CIVIL SERVICE COMMISSION AND HE IS GIVEN A CIVIL SERVICE STATUS SUBJECT TO THE USUAL PROBATIONARY PERIOD. 1940: I HAVE YOUR LETTER OF SEPTEMBER 18. A NUMBER OF SUCH EMPLOYEES WHO HAVE BEEN CERTIFIED BY THE CIVIL SERVICE COMMISSION AND ARE ELIGIBLE IN ALL RESPECTS TO RECEIVE A CIVIL SERVICE STATUS IN THEIR EMPLOYMENT WITH THE FEDERAL HOUSING ADMINISTRATION ARE NOW RECEIVING A SALARY IN EXCESS OF THE BASE SALARY OF THE APPROPRIATE GRADE BY VIRTUE OF ONE OR MORE ADMINISTRATIVE PROMOTIONS. IN THE PAST WHEN SUCH AN EMPLOYEE WAS ELIGIBLE AND DESIRED A CIVIL-SERVICE STATUS IT HAS BEEN OUR POLICY TO REDUCE THE EMPLOYEE'S SALARY TO THE BASE OF THE GRADE FOR THE DURATION OF THE PROBATIONARY PERIOD AND THEN AUTOMATICALLY TO READJUST THE EMPLOYEE'S SALARY TO THE AMOUNT HE WAS RECEIVING ORIGINALLY.

B-12456, OCTOBER 9, 1940, 20 COMP. GEN. 191

COMPENSATION - ADJUSTMENT UPON ACQUISITION OF CIVIL-SERVICE STATUS - APPLICABILITY OF ADMINISTRATIVE PROMOTION LIMITATION WHERE, PURSUANT TO AN ADMINISTRATIVE POLICY, THE SALARY OF A NON-CIVIL SERVICE EMPLOYEE OF THE FEDERAL HOUSING ADMINISTRATION IS REDUCED TO THE MINIMUM RATE OF HIS GRADE AT THE TIME HIS NAME IS REACHED FOR CERTIFICATION BY THE CIVIL SERVICE COMMISSION AND HE IS GIVEN A CIVIL SERVICE STATUS SUBJECT TO THE USUAL PROBATIONARY PERIOD, THE RESTORATION TO HIS ORIGINAL SALARY AT THE END OF THE PROBATIONARY PERIOD WOULD NOT CONSTITUTE AN ADMINISTRATIVE WITHIN-GRADE PROMOTION WITHIN THE PURVIEW OF THE LIMITATION IN SECTION 5 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1941.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR, FEDERAL HOUSING ADMINISTRATION, OCTOBER 9, 1940:

I HAVE YOUR LETTER OF SEPTEMBER 18, 1940, AS FOLLOWS:

UNDER CERTAIN CONDITIONS A CLASSIFIED CIVIL-SERVICE STATUS MAY BE ACQUIRED BY EMPLOYEES OF THE FEDERAL HOUSING ADMINISTRATION UPON BEING REACHED FOR CERTIFICATION BY THE CIVIL SERVICE COMMISSION. HOWEVER, TO ATTAIN A CIVIL-SERVICE STATUS SUCH EMPLOYEE MUST SATISFACTORILY SERVE THE REQUIRED SIX-MONTH PROBATIONARY PERIOD AT THE BASE SALARY OF THE GRADE.

A NUMBER OF SUCH EMPLOYEES WHO HAVE BEEN CERTIFIED BY THE CIVIL SERVICE COMMISSION AND ARE ELIGIBLE IN ALL RESPECTS TO RECEIVE A CIVIL SERVICE STATUS IN THEIR EMPLOYMENT WITH THE FEDERAL HOUSING ADMINISTRATION ARE NOW RECEIVING A SALARY IN EXCESS OF THE BASE SALARY OF THE APPROPRIATE GRADE BY VIRTUE OF ONE OR MORE ADMINISTRATIVE PROMOTIONS. IN THE PAST WHEN SUCH AN EMPLOYEE WAS ELIGIBLE AND DESIRED A CIVIL-SERVICE STATUS IT HAS BEEN OUR POLICY TO REDUCE THE EMPLOYEE'S SALARY TO THE BASE OF THE GRADE FOR THE DURATION OF THE PROBATIONARY PERIOD AND THEN AUTOMATICALLY TO READJUST THE EMPLOYEE'S SALARY TO THE AMOUNT HE WAS RECEIVING ORIGINALLY.

IN VIEW OF THE RESTRICTION AGAINST ADMINISTRATIVE PROMOTIONS IN THE INDEPENDENT OFFICES APPROPRIATION ACT, FOR THE FISCAL YEAR 1941, APPROVED APRIL 18, 1940, PUBLIC, NO. 450, SECTION 5, AN OFFICIAL RULING AS TO WHETHER SUCH A READJUSTMENT WOULD BE CONSIDERED AS AN ADMINISTRATIVE INCREASE WITHIN THE PROHIBITION OF SAID ACT IS RESPECTFULLY REQUESTED.

SECTION 5 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1941, APPROVED APRIL 18, 1940, PUBLIC NO. 459, 54 STAT. 141, PROVIDES AS FOLLOWS:

THE TOTAL AMOUNT USED ON AN ANNUAL BASIS FOR ADMINISTRATIVE WITHIN GRADE PROMOTIONS FOR OFFICERS AND EMPLOYEES UNDER ANY APPROPRIATION OR OTHER FUND MADE AVAILABLE IN THIS ACT SHALL NOT EXCEED THE AMOUNT DETERMINED BY THE BUREAU OF THE BUDGET TO BE AVAILABLE FOR SUCH PURPOSE ON THE BASIS OF THE BUDGET ESTIMATE FOR SUCH APPROPRIATION OR FUND EXCLUSIVE OF NEW MONEY IN ANY SUCH BUDGET ESTIMATE FOR SUCH ADMINISTRATIVE PROMOTIONS.

THE BACKGROUND OF THIS PROVISION IS EXPLAINED IN HOUSE REPORT NO. 1515, SEVENTY-SIXTH CONGRESS, THIRD SESSION, AT PAGES 2 TO 4, WHICH CONCLUDES---

A PROVISION HAS BEEN INSERTED IN THIS BILL AS SECTION 5, AND WILL BE CARRIED IN EACH OTHER APPROPRIATION BILL, DESIGNED TO HOLD THE TOTAL AMOUNT THAT MAY BE USED FOR ADMINISTRATIVE PROMOTIONS WITHIN THE AGGREGATE AMOUNT ($3,901,000) WHICH HAS BEEN ESTIMATED WILL EVENTUATE FOR THAT PURPOSE ON THE BASIS OF THE ESTIMATES OF APPROPRIATIONS AND FUNDS IN THE 1941 BUDGET.

AS--- SO FAR AS APPEARS--- THE EMPLOYEES IN QUESTION WILL CONTINUE TO BE PAID FROM THE SAME APPROPRIATION AFTER THEY HAVE ACQUIRED THE CLASSIFIED CIVIL-SERVICE STATUS, IT IS APPARENT THAT ANY ADMINISTRATIVE READJUSTMENTS DESIGNED TO RESTORE, AFTER ANY NECESSARY PROBATIONARY PERIOD, SALARY RATES WHICH WERE REDUCED AT THE BEGINNING THEREOF, WOULD NOT CONSTITUTE THE USE OF ANY PART OF THE APPROPRIATION FOR AN ADMINISTRATIVE WITHIN-GRADE PROMOTION WITHIN THE PURVIEW OF THE SAID SECTION 5, SO LONG AS THE ORIGINAL SALARY RATE IS NOT EXCEEDED IN ANY CASE.

YOU ARE ADVISED, THEREFORE, THAT WHERE REDUCTIONS ARE MADE DURING THE FISCAL YEAR IN ACCORDANCE WITH THE POLICY REFERRED TO, RESTORATION THEREOF AT THE END OF THE PROBATIONARY PERIOD WOULD NOT BE PROHIBITED BY SECTION 5 OF THE ACT ABOVE QUOTED. THERE SHOULD NOT, HOWEVER, BE OVERLOOKED REQUIREMENTS OF THE "AVERAGE CLAUSE," APPEARING AS SECTION 2 OF THE SAME ACT, 54 STAT. 141.