B-145491, JUNE 6, 1961, 40 COMP. GEN. 655

B-145491: Jun 6, 1961

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THAT LONGEVITY STEP-INCREASES ONCE ATTAINED ARE PRESERVED AUTOMATICALLY FOR RECREDIT TO AN EMPLOYEE IN THE EVENT OF A DEMOTION AND SUBSEQUENT REPROMOTION TO THE SAME GRADE. A DEMOTION IS REGARDED AS TERMINATING THE LONGEVITY STEP-INCREASE PREVIOUSLY ATTAINED. AN EMPLOYEE WHO IS REPROMOTED TO THE MAXIMUM STEP OF A GRADE IN WHICH SHE HAD PREVIOUSLY ATTAINED THE FIRST LONGEVITY STEP-INCREASE IS NOT ENTITLED TO HAVE THE FORMER THREE-YEAR LONGEVITY PERIOD RECREDITED FOR ENTITLEMENT TO THE FIRST LONGEVITY STEP. THE RELEVANT FACTS AND THE QUESTION STATED IN THE LETTER OF MARCH 30 ARE AS FOLLOWS: THE EMPLOYEE WAS PROMOTED FROM GS-4. WHICH WAS THEN $4. AT LEAST THREE YEARS OF WHICH WERE AT THE MAXIMUM SCHEDULED RATE OF THE GRADE.

B-145491, JUNE 6, 1961, 40 COMP. GEN. 655

CIVILIAN PERSONNEL - COMPENSATION - LONGEVITY INCREASES - REPROMOTIONS IN THE ABSENCE OF ANY INDICATION OF A LEGISLATIVE INTENT UNDER THE LONGEVITY INCREASE PROVISIONS OF SECTION 703 (A) OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1123 (A), THAT LONGEVITY STEP-INCREASES ONCE ATTAINED ARE PRESERVED AUTOMATICALLY FOR RECREDIT TO AN EMPLOYEE IN THE EVENT OF A DEMOTION AND SUBSEQUENT REPROMOTION TO THE SAME GRADE, A DEMOTION IS REGARDED AS TERMINATING THE LONGEVITY STEP-INCREASE PREVIOUSLY ATTAINED; THEREFORE, AN EMPLOYEE WHO IS REPROMOTED TO THE MAXIMUM STEP OF A GRADE IN WHICH SHE HAD PREVIOUSLY ATTAINED THE FIRST LONGEVITY STEP-INCREASE IS NOT ENTITLED TO HAVE THE FORMER THREE-YEAR LONGEVITY PERIOD RECREDITED FOR ENTITLEMENT TO THE FIRST LONGEVITY STEP.

TO THE SECRETARY OF COMMERCE, JUNE 6, 1961:

ON MARCH 30, 1961, YOUR EXECUTIVE ASSISTANT REQUESTED OUR OPINION REGARDING AN EMPLOYEE'S ELIGIBILITY FOR A LONGEVITY STEP-INCREASE UNDER THE PROVISIONS OF SECTION 703 OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 968, AS AMENDED, 5 U.S.C. 1123, AND THE CIVIL SERVICE COMMISSION'S REGULATION 25.53, IN THE CIRCUMSTANCES QUOTED BELOW.

THE RELEVANT FACTS AND THE QUESTION STATED IN THE LETTER OF MARCH 30 ARE AS FOLLOWS:

THE EMPLOYEE WAS PROMOTED FROM GS-4, $4,515, TO GS-5 ON AUGUST 30, 1959 AND HER SALARY ADMINISTRATIVELY FIXED AT THE MAXIMUM SCHEDULE RATE OF THE GRADE, WHICH WAS THEN $4,940 PER ANNUM, NOW $5,335. THE EMPLOYEE PREVIOUSLY HAD TEN YEARS AT THE GS-5 LEVEL, AT LEAST THREE YEARS OF WHICH WERE AT THE MAXIMUM SCHEDULED RATE OF THE GRADE, AND HAD BEEN GRANTED THE FIRST LONGEVITY STEP INCREASE AT GS-5 DURING PRIOR SERVICE. ADVICE IS DESIRED AS TO WHETHER THE SAME THREE-YEAR LONGEVITY PERIOD SHOULD BE USED TO AGAIN ADVANCE THE EMPLOYEE, EFFECTIVE SEPTEMBER 6, 1959, FROM THE MAXIMUM SCHEDULED RATE OF THE GS 5 TO THE FIRST LONGEVITY STEP OF GS-5. WE ARE AWARE THAT AT THE TIME OF PROMOTION TO GS-5 THE EMPLOYEE'S RATE OF PAY COULD HAVE BEEN FIXED AT THE FIRST LONGEVITY RATE OF GS-5, BUT THAT THE RATE OF PAY CANNOT BE CHANGED ADMINISTRATIVELY AT THIS TIME, IN THE ABSENCE OF A POLICY PRESCRIBING THE SETTING OF THE EMPLOYEE'S RATE OF PAY AT THE HIGHEST RATE FOR WHICH ELIGIBLE.

THE PROVISIONS OF LAW APPLICABLE TO THE SUBMITTED MATTER ARE CONTAINED IN SUBSECTION 703 (A) OF THE ACT, AS AMENDED SEPTEMBER 1, 1954, 5 U.S.C. 1123 (A), AS FOLLOWS:

(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, AND AS A REWARD FOR LONG AND FAITHFUL SERVICE, EACH DEPARTMENT SHALL GRANT AN ADDITIONAL STEP- INCREASE (TO BE KNOWN AS A LONGEVITY STEP-INCREASE) BEYOND THE MAXIMUM SCHEDULED RATE OF THE GRADE IN WHICH HIS POSITION IS PLACED, TO EACH OFFICER OR EMPLOYEE FOR EACH THREE YEARS OF CONTINUOUS SERVICE COMPLETED BY HIM AT SUCH MAXIMUM RATE OR AT A RATE IN EXCESS THEREOF AUTHORIZED BY THIS SECTION WITHOUT INCREASE IN GRADE OR RATE OF BASIC COMPENSATION EXCEPT SUCH INCREASE AS MAY BE PRESCRIBED BY ANY PROVISION OF LAW OF GENERAL APPLICATION. * * *

THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, FEDERAL PERSONNEL MANUAL, PAGE Z1-317, PROVIDE:

SEC. 25.53. CONDITIONS OF ELIGIBILITY. EACH OFFICER OR EMPLOYEE IN A PERMANENT POSITION WHO HAS COMPLETED THE REQUIRED AGGREGATE PERIOD SHALL BE GRANTED A LONGEVITY STEP INCREASE FOR EACH LONGEVITY PERIOD COMPLETED IN HIS GRADE, PROVIDED HIS CURRENT PERFORMANCE RATING IS 1SATISFACTORY"OR BETTER. THE REQUIREMENT OF A PERFORMANCE RATING SHALL BE WAIVED FOR ANY PERIOD OF INTERVENING MILITARY SERVICE. NO OFFICER OR EMPLOYEE SHALL BE GIVEN MORE THAN ONE LONGEVITY STEP INCREASE FOR ANY LONGEVITY PERIOD, OR MORE THAN THREE SUCCESSIVE LONGEVITY STEP INCREASES.

AN EXAMINATION OF THE PERTINENT STATUTE AND REGULATION FAILS TO REVEAL ANY PARTICULAR PROVISION COVERING A SITUATION OF THIS NATURE. HOWEVER, OUR VIEW IS THAT IT WAS NEVER THE INTENTION OF SECTION 703 OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, THAT LONGEVITY STEP INCREASES ONCE ATTAINED IN A PARTICULAR GRADE WOULD BE PRESERVED AUTOMATICALLY BY OPERATION OF SUCH SECTION FOR RECREDIT TO AN EMPLOYEE IN THE EVENT HE IS DEMOTED AND SUBSEQUENTLY REPROMOTED TO THAT GRADE. ON THE CONTRARY, WE FEEL THAT THE DEMOTION OF AN EMPLOYEE HAS THE EFFECT OF ERASING ANY MANDATORY ENTITLEMENT TO LONGEVITY STEP-INCREASES ATTAINED IN THE HIGHER GRADE, AND THAT THE SOLE AUTHORITY FOR RESTORING A LONGEVITY STEP-INCREASE --- PREVIOUSLY ATTAINED IN THE HIGHER GRADE--- UPON REPROMOTION THERETO IS THE RULE (A DISCRETIONARY RULE) AS SET FORTH IN PART 25.103 (E) OF THE REGULATIONS OF THE CIVIL SERVICE COMMISSION. CF. 21 COMP. GEN. 791; 37 ID. 134.

THEREFORE, WE HOLD THAT THE EMPLOYEE HERE INVOLVED WAS NOT ON SEPTEMBER 6, 1959, ENTITLED TO A LONGEVITY INCREASE BECAUSE OF HER REPROMOTION TO THE MAXIMUM SCHEDULED RATE OF GRADE GS-5.