B-144932, APR. 18, 1961

B-144932: Apr 18, 1961

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WE NOTE THAT THE EMPLOYEE HERE INVOLVED WAS CARRIED ON LEAVE WITHOUT PAY FROM HIS POSITION IN THE COMMISSION WHILE EMPLOYED AND PAID BY A SUBCOMMITTEE OF THE HOUSE OF REPRESENTATIVES AT A HIGHER SALARY RATE. OUR DECISIONS ARE TO THE EFFECT THAT THE ACT OF JULY 31. IS APPLICABLE EVEN THOUGH AN EMPLOYEE MAY BE ON LEAVE WITHOUT PAY FROM ONE OF THE OFFICES. ONE EXCEPTION TO SUCH RULE IS THE GRANTING OF LEAVE WITHOUT PAY TO ACCEPT TEMPORARY EMPLOYMENT WHERE A SPECIFIC TASK IS TO BE PERFORMED FOR A COMMITTEE OR COMMISSION HAVING A TEMPORARY TENURE. SINCE THE EMPLOYEE WAS TREATED BY THE COMMISSION AS BEING IN A LEAVE WITHOUT PAY STATUS AND WAS RETURNED TO HIS POSITION ON THAT BASIS. WE WILL NOT INSIST ON ANY DIFFERENT TREATMENT IN THIS PARTICULAR CASE BECAUSE TO DO SO MIGHT REQUIRE OTHER ADJUSTMENTS NOT CONTEMPLATED AT THE TIME.

B-144932, APR. 18, 1961

TO AUTHORIZED CERTIFYING OFFICER, FEDERAL TRADE COMMISSION:

YOUR LETTER OF JANUARY 27 AS SUPPLEMENTED BY YOUR LETTER OF APRIL 3, 1961, ASKS WHETHER CONTINUOUS PAID EMPLOYMENT WITH A SUBCOMMITTEE OF THE HOUSE OF REPRESENTATIVES BY ONE OF YOUR EMPLOYEES, MR. JAMES M. HENDERSON, FROM JULY 9, 1958, TO AUGUST 15, 1960, CAN BE CREDITED TOWARDS SERVICE REQUIRED FOR A PERIODIC STEP-INCREASE. YOU SUBMIT A VOUCHER FOR $193.58 REPRESENTING PAYMENT AT THE HIGHER RATE FROM SEPTEMBER 4, 1960, TO APRIL 1, 1961, AND REQUEST OUR ADVICE WHETHER YOU MAY PROPERLY CERTIFY IT FOR PAYMENT.

WE NOTE THAT THE EMPLOYEE HERE INVOLVED WAS CARRIED ON LEAVE WITHOUT PAY FROM HIS POSITION IN THE COMMISSION WHILE EMPLOYED AND PAID BY A SUBCOMMITTEE OF THE HOUSE OF REPRESENTATIVES AT A HIGHER SALARY RATE. OUR DECISIONS ARE TO THE EFFECT THAT THE ACT OF JULY 31, 1894, AS AMENDED, 5 U.S.C. 62, WHICH PROHIBITS THE HOLDING OF MORE THAN ONE OFFICE WHEN THE SALARY OF ONE OF SUCH OFFICES AMOUNTS TO $2,500 PER ANNUM OR MORE, IS APPLICABLE EVEN THOUGH AN EMPLOYEE MAY BE ON LEAVE WITHOUT PAY FROM ONE OF THE OFFICES. UNDER SUCH CIRCUMSTANCES THE ACCEPTANCE OF THE SECOND OFFICE MAY BE CONSIDERED AS AN ABANDONMENT OF THE FIRST OFFICE. 3 COMP. GEN. 913, 12 ID. 77; 19 ID. 751 (LAST PARAGRAPH); AND 32 ID. 448. ONE EXCEPTION TO SUCH RULE IS THE GRANTING OF LEAVE WITHOUT PAY TO ACCEPT TEMPORARY EMPLOYMENT WHERE A SPECIFIC TASK IS TO BE PERFORMED FOR A COMMITTEE OR COMMISSION HAVING A TEMPORARY TENURE, WHICH DOES NOT APPEAR TO COVER THE SITUATION HERE INVOLVED. 30 COMP. GEN. 386; 31 ID. 414.

SINCE THE EMPLOYEE WAS TREATED BY THE COMMISSION AS BEING IN A LEAVE WITHOUT PAY STATUS AND WAS RETURNED TO HIS POSITION ON THAT BASIS, SUCH POSITION PRESUMABLY HAVING BEEN HELD VACANT FOR HIS RETURN, WE WILL NOT INSIST ON ANY DIFFERENT TREATMENT IN THIS PARTICULAR CASE BECAUSE TO DO SO MIGHT REQUIRE OTHER ADJUSTMENTS NOT CONTEMPLATED AT THE TIME. UNDER SUCH CIRCUMSTANCES, WE SEE NO OBJECTION TO CONSIDERING THE SERVICE IN THE HOUSE OF REPRESENTATIVES AS SERVICE FOR PURPOSES OF STEP INCREASES IF OTHERWISE CREDITABLE.

THE CHRONOLOGY OF MR. HENDERSON'S EMPLOYMENT AND SALARY, AS SUBMITTED, IS AS FOLLOWS:

TABLE

4/7/58 EMPLOYED BY FTC, GS-15, $11,610

7/9/58 LEAVE WITHOUT PAY FROM FTC

7/9/58 - 1/3/59 $12,551.72, SALARY WITH SUBCOMMITTEE

1/4/59 - 2/28/59 $12,551.72, SALARY WITH SUBCOMMITTEE

3/1/59 - 6/30/60 $13,352.79, SALARY WITH SUBCOMMITTEE

7/1/60 - 8/15/60 $14,349.25, SALARY WITH SUBCOMMITTEE

8/15/60 - RETURNED TO DUTY, FTC, GS-15, $13,730.

YOU SAY THAT THE EMPLOYEE'S "LAST EQUIVALENT INCREASE" WAS MARCH 1, 1959, AS THE INCREASE ON JULY 1, 1960, WAS THE RESULT OF A GENERAL PAY INCREASE.

SECTION 25.11 (D) (1) OF THE FEDERAL EMPLOYEES PAY REGULATIONS, FEDERAL PERSONNEL MANUAL, READS, IN PERTINENT PART, AS FOLLOWS:

"WAITING PERIOD IS THE MINIMUM TIME REQUIREMENT OF CREDITABLE SERVICE WITHOUT AN EQUIVALENT INCREASE IN COMPENSATION IN ORDER TO BE ELIGIBLE FOR CONSIDERATION FOR A PERIODIC STEP-INCREASE. THE WAITING PERIOD FOR * * * FULL-TIME * * * EMPLOYEES IS * * * 78 CALENDAR WEEKS FOR GRADES WITH STEP INCREASES OF $200 OR MORE. * * * (A CALENDAR WEEK IS A TOTAL OF ANY 7 CALENDAR DAYS BEFORE, BEGINNING WITH, OR AFTER SPECIFIED DAY.) * * * CREDITABLE SERVICE, IN THE COMPUTATION OF WAITING PERIODS, INCLUDES:

"/1) CONTINUOUS PAID CIVILIAN EMPLOYMENT IN ANY BRANCH (EXECUTIVE, LEGISLATIVE, OR JUDICIAL) OF THE FEDERAL GOVERNMENT * * * AND SERVICE UNDER A TEMPORARY APPOINTMENT * * *.'

SECTION 25.11 (E) OF THE SAME REGULATIONS READS, IN PERTINENT PART, AS FOLLOWS:

"EQUIVALENT INCREASE IN COMPENSATION IS THE TOTAL OF ANY INCREASE OR INCREASES IN BASIC COMPENSATION WHICH IS EQUAL TO OR GREATER THAN THE SMALLEST STEP-INCREASE IN ANY GRADE IN WHICH THE EMPLOYEE HAS SERVED DURING A PERIOD UNDER CONSIDERATION. * * * THE FOLLOWING, AMONG OTHERS, ARE NOT "EQUIVALENT INCREASES IN COMPENSATION: "

"/1) ANY INCREASE IN COMPENSATION GRANTED BY LAW AFTER JUNE 30, 1951; * *

SECTION 25.13 OF THE FOREGOING REGULATIONS READS AS FOLLOWS:

"/A) PERIODIC STEP-INCREASES SHALL BE MADE EFFECTIVE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE COMPLETION OF THE REQUIRED WAITING PERIOD AND COMPLIANCE WITH THE OTHER REQUIRED CONDITIONS OF ELIGIBILITY.

"/B) ANY STEP INCREASE BECOMING DUE AS THE RESULT OF RETROACTIVE CORRECTIVE ACTION IN ACCORDANCE WITH THE MANDATORY PROVISIONS OF ANY STATUTE OR COMMISSION REGULATION SHALL BE MADE EFFECTIVE AS OF THE DATE THE OFFICER OR EMPLOYEE WOULD HAVE MET ALL THE CONDITIONS IF PROPER ACTION HAD BEEN TAKEN ORIGINALLY.

"/C) WHERE A STEP-INCREASE IS DELAYED BEYOND ITS PROPER EFFECTIVE DATE, SOLELY THROUGH ADMINISTRATIVE ERROR, DELAY, OR OVERSIGHT, THE STEP- INCREASE SHALL BE MADE EFFECTIVE AS OF THE DATE IT WAS PROPERLY DUE.'

BASED UPON THE FACTS OF RECORD THE SERVICE AS AN EMPLOYEE OF THE SUBCOMMITTEE--- LEGISLATIVE BRANCH--- FALLS WITHIN THE PROVISIONS OF SECTION 25.11 (D) (1) ABOVE AND SINCE THE LAST EQUIVALENT INCREASE WAS RECEIVED MARCH 1, 1959, AND ASSUMING THE EMPLOYEE'S PERFORMANCE RATING FOR THE PERIOD INVOLVED WAS "SATISFACTORY" OR BETTER AS REQUIRED BY SECTION 25.12 OF THE FOREGOING REGULATIONS, HE WAS ENTITLED, UNDER THE PROVISIONS OF SECTION 25.13 QUOTED ABOVE, TO A PERIODIC STEP-INCREASE EFFECTIVE THE PAY PERIOD FOLLOWING COMPLETION OF 78 WEEKS OF SERVICE AFTER MARCH 1, 1959.

AS THE SUBMITTED VOUCHER, WHICH IS RETURNED HEREWITH, PROPOSES PAYMENT FROM SEPTEMBER 4, 1960, THE DATE THE PERIODIC STEP-INCREASE SHOULD HAVE BEEN PROCESSED, IT MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.