B-126177, DECEMBER 23, 1955, 35 COMP. GEN. 370

B-126177: Dec 23, 1955

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

REASSIGNMENT OR DEMOTION TO A PERMANENT POSITION PROVIDING THE HIGHEST PREVIOUS RATE IS BASED ON A REGULAR TOUR OF DUTY AT SUCH RATE UNDER AN APPOINTMENT NOT LIMITED TO 90 DAYS OR LESS. EMPLOYEES SO ASSIGNED ARE ORDINARILY GIVEN TEMPORARY PROMOTIONS AND ARE SUBSEQUENTLY RESTORED TO THEIR PREVIOUS GRADE OR TO AN INTERMEDIATE GRADE. OTHER PERMANENT EMPLOYEES ARE TEMPORARILY PROMOTED TO THE POSITIONS VACATED BY SUCH EMPLOYEES. DOUBT IN THE MATTER APPEARS TO HAVE ARISEN BECAUSE OF OUR DECISION OF MAY 8. QUOTING FROM THE SYLLABUS: EMPLOYEE WHO RECEIVES A TEMPORARY PROMOTION LIMITED TO THE DURATION OF THE ABSENCE OF THE EMPLOYEE PERMANENTLY ASSIGNED TO THE POSITION IS ENTITLED UPON RESTORATION TO HIS PERMANENT GRADE.

B-126177, DECEMBER 23, 1955, 35 COMP. GEN. 370

COMPENSATION - RATES - TEMPORARY PROMOTIONS - RATE ON RESTORATION TO PERMANENT GRADE THE SALARY RATE RECEIVED DURING PERIODS OF TEMPORARY PROMOTION MAY BE USED FOR ESTABLISHING THE INITIAL SALARY RATE ON THE SUBSEQUENT APPOINTMENT, REASSIGNMENT OR DEMOTION TO A PERMANENT POSITION PROVIDING THE HIGHEST PREVIOUS RATE IS BASED ON A REGULAR TOUR OF DUTY AT SUCH RATE UNDER AN APPOINTMENT NOT LIMITED TO 90 DAYS OR LESS, OR A CONTINUOUS PERIOD OF 90 DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT A BREAK IN SERVICE.

TO THE SECRETARY OF COMMERCE, DECEMBER 23, 1955:

ON NOVEMBER 22, 1955 THE ASSISTANT SECRETARY FOR ADMINISTRATION REQUESTED OUR DECISION WHETHER THE SALARY RECEIVED DURING CERTAIN PERIODS OF TEMPORARY PROMOTION MAY BE USED AS A BASIS FOR ESTABLISHING THE INITIAL SALARY RATES UPON SUBSEQUENT APPOINTMENTS, REASSIGNMENTS, OR DEMOTIONS TO PERMANENT POSITIONS.

THE QUESTION RELATES PARTICULARLY TO TEMPORARY APPOINTMENTS IN THE BUREAU OF THE CENSUS UNDER SITUATIONS SET OUT IN THE LETTER, AS FOLLOWS:

IN ORDER TO ACCOMPLISH ITS PERIODIC, LARGE, TEMPORARY INCREASES IN STAFF, THE BUREAU APPOINTS PERSONS ON A TEMPORARY BASIS. THE DURATION OF THESE APPOINTMENTS VARIES BUT SELDOM EXCEEDS TWO YEARS. AT THE SAME TIME, PERMANENT EMPLOYEES OF THE BUREAU MAY BE ASSIGNED TO TEMPORARY CENSUS WORK, FOR THE PERIOD OF THE EXPANSION, FOR THE PURPOSE OF TRAINING AND SUPERVISING TEMPORARY EMPLOYEES. EMPLOYEES SO ASSIGNED ARE ORDINARILY GIVEN TEMPORARY PROMOTIONS AND ARE SUBSEQUENTLY RESTORED TO THEIR PREVIOUS GRADE OR TO AN INTERMEDIATE GRADE. OTHER PERMANENT EMPLOYEES ARE TEMPORARILY PROMOTED TO THE POSITIONS VACATED BY SUCH EMPLOYEES. UPON THE RETURN OF THE EMPLOYEES ASSIGNED TO TEMPORARY WORK, THESE REPLACEMENTS LIKEWISE REVERT TO THEIR FORMER GRADE OR TO AN INTERMEDIATE GRADE.

DOUBT IN THE MATTER APPEARS TO HAVE ARISEN BECAUSE OF OUR DECISION OF MAY 8, 1953, 32 COMP. GEN. 488, WHEN CONSIDERED IN THE LIGHT OF SECTION 25.102 (J) OF THE FEDERAL EMPLOYEES PAY REGULATIONS. THE REFERRED-TO DECISION HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

EMPLOYEE WHO RECEIVES A TEMPORARY PROMOTION LIMITED TO THE DURATION OF THE ABSENCE OF THE EMPLOYEE PERMANENTLY ASSIGNED TO THE POSITION IS ENTITLED UPON RESTORATION TO HIS PERMANENT GRADE, TO THE RATE HE WOULD HAVE RECEIVED IF HE HAD REMAINED IN HIS PERMANENT GRADE.

THE REFERRED-TO CIVIL SERVICE REGULATION, ISSUED PURSUANT TO SECTION 802 (A) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 969, WAS AMENDED SUBSEQUENT TO THAT DECISION--- EFFECTIVE SEPTEMBER 23, 1955--- FOR THE PURPOSE OF ESTABLISHING A CLEARER BASIS FOR APPLYING THE HIGHEST PREVIOUS- SALARY RULE TO REINSTATEMENTS, REAPPOINTMENTS, ETC., OF EMPLOYEES WHO PREVIOUSLY HAD HELD TEMPORARY APPOINTMENTS. THE AMENDMENT CONSISTS OF THE ADDITION OF THE FOLLOWING LANGUAGE:

THE HIGHEST PREVIOUS RATE MUST BE BASED ON A REGULAR TOUR OF DUTY AT SUCH RATE (1) UNDER AN APPOINTMENT NOT LIMITED TO 90 DAYS OR LESS, OR (2) FOR A CONTINUOUS PERIOD OF 90 DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT A BREAK IN SERVICE.

SO LONG AS THAT AMENDMENT IS NOT USED AS A VEHICLE TO CIRCUMVENT THE PERIOD REQUIRED FOR WITHIN-GRADE SALARY ADVANCEMENTS AS CIRCUMSCRIBED IN SECTION 701 (A) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 967, WE SEE NO REASON WHY THE AMENDMENT SHOULD NOT BE APPLIED IN DETERMINING THE INITIAL SALARY RATES IN THE SITUATIONS COVERED BY YOUR DEPARTMENT'S LETTER. THAT EXTENT, THEREFORE, IN THE TYPE OF CASES PRESENTED THE DECISION IN 32 COMP. GEN. 488 IS NOT CONTROLLING ON AND AFTER THE EFFECTIVE DATE OF THE CIVIL SERVICE PAY REGULATION IN QUESTION.