B-128220, AUG. 19, 1957

B-128220, AUG. 19, 1957

TO HONORABLE JAMES R. DURFEE, CHAIRMAN, CIVIL AERONAUTICS BOARD:

YOUR LETTER OF JULY 26, 1957, REQUESTS OUR DECISION CONCERNING THE PROPRIETY OF APPLYING THE HIGHEST PREVIOUS RATE RULE IN FIXING THE INITIAL COMPENSATION OF AN EMPLOYEE TRANSFERRING FROM A PROFESSIONAL STAFF POSITION UNDER THE CONGRESS TO A POSITION UNDER THE CIVIL AERONAUTICS BOARD. WE UNDERSTAND THAT THE CIVIL AERONAUTICS BOARD POSITION IS OUTSIDE THE CLASSIFIED CIVIL-SERVICE BUT IS SUBJECT TO THE CLASSIFICATION ACT OF 1949 AS AMENDED 5 U.S.C. 1071, ET SEQ.

WE HAVE APPROVED THE CURRENT REGULATIONS OF THE CIVIL SERVICE COMMISSION UNDER WHICH CONGRESSIONAL EMPLOYEES WHO ACQUIRE A CIVIL SERVICE STATUS IN ACCORDANCE WITH SECTION 2 (B) OF THE ACT OF NOVEMBER 26, 1940, 54 STAT. 1212, PUBLIC LAW 880, 5 U.S.C. 631 (B), MAY BE GRANTED THE BENEFITS OF THE HIGHEST PREVIOUS RATE RULE UPON THEIR APPOINTMENTS TO POSITIONS SUBJECT TO THE CLASSIFICATION ACT OF 1949. SEE DECISION OF JULY 13, 1956, B-128220.

YOU SAY IN YOUR LETTER THAT THE CIVIL SERVICE COMMISSION DETERMINED SOME TIME AGO THAT PROFESSIONAL STAFF POSITIONS FALL WITHIN THE CLASSES OF POSITIONS TO WHICH THE PROVISIONS OF SECTION 2 (B) OF PUBLIC LAW 880 APPLY. WE CONCUR IN THAT VIEW ALTHOUGH PROFESSIONAL STAFF POSITIONS ARE NOT SPECIFICALLY ENUMERATED IN SECTION 2 (B). OUR CONCLUSION IN THIS REGARD IS BASED PRIMARILY UPON THE FACT THAT AT THE TIME OF ENACTMENT OF PUBLIC LAW 880 THERE WERE NO PROFESSIONAL STAFF POSITIONS AS SUCH UNDER THE VARIOUS CONGRESSIONAL COMMITTEES. THIS CLASS OF EMPLOYEES(PROFESSIONAL STAFF EMPLOYEES) FIRST WAS PROVIDED FOR BY THE LEGISLATIVE REORGANIZATION ACT OF 1946, 60 STAT. 834, 2 U.S.C. 72A. UNDERSTAND, HOWEVER, THAT IN CERTAIN CASES CLERKS AND ASSISTANT CLERKS TO CERTAIN CONGRESSIONAL COMMITTEES CONTINUED IN THEIR SAME POSITIONS AFTER ENACTMENT OF THE LEGISLATIVE REORGANIZATION ACT OF 1946 BUT WERE DESIGNATED AS MEMBERS OF THE COMMITTEE'S PROFESSIONAL STAFF. IN VIEW THEREOF WE THINK THAT PROFESSIONAL STAFF EMPLOYEES, THOUGH NOT WITHIN THE LITERAL LANGUAGE OF SECTION 2 (A) OF PUBLIC LAW 880, CERTAINLY APPEAR TO BE WITHIN THE SPIRIT AND GENERAL PURPOSE OF THAT SECTION.

THE PRIMARY QUESTION YOU PRESENT IS WHETHER AN EMPLOYEE WHO HAS SERVED 4 YEARS ON THE PROFESSIONAL STAFF OF A CONGRESSIONAL COMMITTEE, AND WHO IS INVOLUNTARILY SEPARATED FROM HIS POSITION WITHOUT PREJUDICE, IS PRECLUDED FROM RECEIVING THE BENEFIT OF THE HIGHEST PREVIOUS RATE RULE UPON HIS APPOINTMENT TO A POSITION SUBJECT TO THE CLASSIFICATION ACT OF 1949 SOLELY BECAUSE THE POSITION TO WHICH APPOINTED IS OUTSIDE THE CLASSIFIED CIVIL- SERVICE.

IN OUR DECISION OF JULY 13, 1956, ABOVE, WE EXPRESSED THE VIEW THAT LEGISLATIVE EMPLOYEES WHO QUALIFY UNDER SECTION 2 (B) OF PUBLIC LAW 880 FOR TRANSFERS TO POSITIONS IN THE CLASSIFIED CIVIL-SERVICE MAY UPON SUCH TRANSFERS BE GIVEN THE BENEFIT OF THE HIGHEST PREVIOUS RATE RULE. UNDER A LITERAL INTERPRETATION OF SECTION 2 (B) IT IS NECESSARY FOR AN EMPLOYEE, IN ORDER TO QUALIFY FOR SUCH A TRANSFER, TO HAVE COMPLETED 4 OR MORE YEARS' SERVICE OF THE TYPE SPECIFIED IN THE SECTION, TO HAVE BEEN INVOLUNTARILY SEPARATED FROM A LEGISLATIVE POSITION TO WHICH THE SECTION APPLIES, AND FINALLY TO PASS A SUITABLE NONCOMPETITIVE CIVIL SERVICE EXAMINATION. IT APPEARS UNNECESSARY, HOWEVER, THAT AN EMPLOYEE ACTUALLY RECEIVE AN APPOINTMENT TO A POSITION IN THE CLASSIFIED CIVIL-SERVICE TO BE GIVEN THE BENEFIT OF THE HIGHEST PREVIOUS RATE RULE. ASSUME, FOR INSTANCE, THAT A PROFESSIONAL STAFF EMPLOYEE WITH 4 YEARS' SERVICE IN THAT CAPACITY IS INVOLUNTARILY SEPARATED WITHOUT PREJUDICE. ASSUME, ALSO, THAT HE APPLIES FOR A POSITION IN THE CLASSIFIED CIVIL-SERVICE AND THE CIVIL SERVICE COMMISSION DETERMINES ON THE BASIS OF A NONCOMPETITIVE EXAMINATION THAT HE IS QUALIFIED FOR SUCH POSITION. FINALLY, ASSUME THAT PRIOR TO HIS ACTUAL APPOINTMENT TO THAT POSITION HE IS OFFERED AND ACCEPTS A DIFFERENT POSITION SUBJECT TO THE CLASSIFICATION ACT BUT EXCEPTED FROM THE CLASSIFIED CIVIL-SERVICE. AT THE TIME OF HIS APPOINTMENT TO SUCH POSITION (OUTSIDE THE CLASSIFIED CIVIL-SERVICE) HE WILL HAVE COMPLIED WITH ALL THE CONDITIONS OF SECTION 2 (B) TO QUALIFY FOR A TRANSFER TO A POSITION IN THE CLASSIFIED CIVIL-SERVICE AND THEREFORE COULD BE GIVEN THE BENEFIT OF THE HIGHEST PREVIOUS RATE RULE IN ESTABLISHING HIS INITIAL RATE OF COMPENSATION IN THE POSITION TO WHICH ACTUALLY APPOINTED.

MOREOVER, IT APPEARS UNNECESSARY FOR SUCH AN EMPLOYEE TO PASS A NONCOMPETITIVE EXAMINATION BEFORE HIS INITIAL RATE OF COMPENSATION MAY BE FIXED IN ACCORDANCE WITH THE HIGHEST PREVIOUS RATE RULE UPON HIS APPOINTMENT TO A POSITION SUBJECT TO THE CLASSIFICATION ACT OF 1949 BUT EXCEPTED FROM THE CLASSIFIED CIVIL-SERVICE. POSITIONS OUTSIDE THE CLASSIFIED CIVIL-SERVICE ARE NOT FILLED ON THE BASIS OF CIVIL SERVICE EXAMINATIONS AND NO EXAMINATIONS ARE GIVEN FOR THOSE POSITIONS. IT WOULD BE IMPRACTICABLE AND UNREASONABLE TO REQUIRE AN APPLICANT TO PASS A NONCOMPETITIVE EXAMINATION FOR SOME POSITION IN THE CLASSIFIED CIVIL- SERVICE THAT HE DOESN-T INTEND TO ACCEPT FOR THE SOLE PURPOSE OF BECOMING ELIGIBLE FOR THE BENEFITS OF THE HIGHEST PREVIOUS RATE RULE UPON HIS APPOINTMENT TO AN EXCEPTED POSITION FOR WHICH HE HAS MADE APPLICATION.

WE FEEL WARRANTED THEREFORE IN CONCLUDING THAT AN EMPLOYEE HOLDING A POSITION IN ANY OF THE CLASSES ENUMERATED IN SECTION 2 (B) OF PUBLIC LAW 880 (INCLUDING PROFESSIONAL STAFF POSITIONS) WHO IS INVOLUNTARILY SEPARATED WITHOUT PREJUDICE AFTER HAVING COMPLETED 4 OR MORE YEARS OF SERVICE IN SUCH POSITION MAY BE GIVEN--- IN THE DISCRETION OF THE EMPLOYING AGENCY--- THE BENEFIT OF THE HIGHEST PREVIOUS RATE RULE IN THE ESTABLISHMENT OF HIS INITIAL RATE OF COMPENSATION UPON HIS SUBSEQUENT APPOINTMENT TO A POSITION SUBJECT TO THE CLASSIFICATION ACT OF 1949 BUT WHICH IS EXCEPTED FROM THE CLASSIFIED CIVIL-SERVICE.