B-147314, DECEMBER 6, 1961, 41 COMP. GEN. 389

B-147314, DECEMBER 6, 1961, 41 COMP. GEN. 389

COMPENSATION - RATES - HIGHEST PREVIOUS RATE - LEGISLATIVE AND JUDICIAL SERVICE THE 1958 AMENDMENTS TO SECTION 802 (A) OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1132 (A), WITH RESPECT TO INDIVIDUALS WITH PRIOR EMPLOYMENT IN THE LEGISLATIVE AND JUDICIAL BRANCHES OF THE GOVERNMENT ARE CONSTRUED AS ENLARGING THE CIVIL SERVICE COMMISSION AUTHORITY TO REGULATE THE COMPENSATION RATES, INCLUDING THE APPLICATION OF THE HIGHEST PREVIOUS SALARY RATE RULE, OF LEGISLATIVE AND JUDICIAL EMPLOYEES UPON APPOINTMENT TO POSITIONS UNDER THE CLASSIFICATION ACT, AND THE ENACTMENT OF A NEW SUBSECTION (C) TO SECTION 802, 5 U.S.C. 1132 (C), AUTHORIZING THE USE OF THE HIGHEST PREVIOUS SALARY RATE RULE TO LEGISLATIVE AND JUDICIAL EMPLOYEES WHO AFTER 2 OR MORE YEARS OF SERVICE TRANSFER TO CLASSIFICATION ACT POSITIONS IS CONSTRUED AS AUTHORITY TO USE THE RULE WITHOUT REGARD TO THE COMMISSION'S REGULATIONS; THEREFORE, THE APPLICATION OF THE HIGHEST PREVIOUS SALARY RATE RULE BY AN AGENCY UPON THE PROMOTION, SUBSEQUENT TO THE 1958 AMENDMENTS, OF AN EMPLOYEE WHO HAD LESS THAN 2 YEARS OF LEGISLATIVE SERVICE WHEN SHE WAS APPOINTED TO THE EXECUTIVE BRANCH WAS PROPER UNDER SECTION 802 (A).

TO THE ADMINISTRATOR, FEDERAL AVIATION AGENCY, DECEMBER 6, 1961:

ON SEPTEMBER 28, 1961, YOU REQUESTED OUR DECISION WHETHER AN EMPLOYEE OF THE FEDERAL AVIATION AGENCY MAY BE PAID AT THE MAXIMUM SCHEDULED RATE OF THE GRADE TO WHICH YOU INTEND TO PROMOTE HER UNDER THE FACTS AND CIRCUMSTANCES SET OUT BELOW.

THE EMPLOYEE CONCERNED WAS EMPLOYED IN VARIOUS POSITIONS IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT FOR A TOTAL OF 12 DAYS LESS THAN 2 YEARS BETWEEN JANUARY 19, 1953, AND SEPTEMBER 14, 1957. HER HIGHEST RATE OF COMPENSATION DURING THAT EMPLOYMENT WAS $6,042.94 PER ANNUM, WHICH SHE RECEIVED FROM SEPTEMBER 1, 1956, TO JANUARY 2, 1957. SHE WAS APPOINTED TO A GS-4 POSITION IN YOUR AGENCY ON JULY 28, 1958, AND PAID AT THE RATE OF $4,040 PER ANNUM--- WITHIN GRADE STEP D--- ON THE BASIS OF PREVIOUS EMPLOYMENT IN THE EXECUTIVE BRANCH. ON NOVEMBER 28, 1958, THE EMPLOYEE WAS PROMOTED TO A GRADE GS-5 POSITION AND PAID AT THE MAXIMUM SCHEDULED RATE OF THAT GRADE ($4,940 PER ANNUM), AND ON JUNE 28, 1959, SHE WAS PROMOTED TO GRADE GS-6 AND PAID AT THE MAXIMUM SCHEDULED RATE FOR THAT GRADE. YOU ASK WHETHER COMPENSATING THE EMPLOYEE CONCERNED AT THE MAXIMUM SCHEDULED RATES OF GRADES GS-5 AND GS 6 WAS JUSTIFIED ON THE BASIS OF HER HIGHEST RATE OF PAY DURING HER EMPLOYMENT IN THE LEGISLATIVE BRANCH AS ADJUSTED ACCORDING TO SECTION 25.103 (C) OF THE CIVIL SERVICE REGULATIONS AND WHETHER YOU MAY PAY HER AT THE MAXIMUM SCHEDULE RATE OF GRADE GS-7 ON THE SAME BASIS.

THE ACT OF MAY 29, 1958, 72 STAT. 151, AMENDING SECTION 802 OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 969, 5 U.S.C. 1132, ADDED THE UNDERSCORED WORDS TO SUBSECTION (A) OF THAT SECTION AS FOLLOWS:

(A) THE RATE OF BASIC COMPENSATION TO BE RECEIVED BY ANY OFFICER OR EMPLOYEE TO WHOM THIS ACT APPLIES SHALL BE GOVERNED BY REGULATIONS ISSUED BY THE COMMISSION IN CONFORMITY WITH THIS ACT WHEN---

(1) HE IS TRANSFERRED FROM A POSITION IN THE LEGISLATIVE, JUDICIAL, OR EXECUTIVE BRANCH TO WHICH THIS CHAPTER DOES NOT APPLY;

(2) HE IS TRANSFERRED FROM ANY POSITION IN THE LEGISLATIVE, JUDICIAL, OR EXECUTIVE BRANCH TO WHICH THIS CHAPTER APPLIES TO ANOTHER SUCH POSITION;

(4) HE IS REINSTATED, REAPPOINTED, OR REEMPLOYED IN ANY POSITION SUBJECT TO THIS ACT FOLLOWING SERVICE IN ANY POSITION IN THE LEGISLATIVE, JUDICIAL, OR EXECUTIVE BRANCH; * * *.

THAT ACT ALSO ADDED SUBSECTION (C) TO SECTION 802, 5 U.S.C. 1132 (C), AS FOLLOWS:

(C) ANY EMPLOYEE IN THE LEGISLATIVE BRANCH WHOSE COMPENSATION IS DISBURSED BY THE SECRETARY OF THE SENATE OR THE CLERK OF THE HOUSE OF REPRESENTATIVES, AND WHO HAS COMPLETED TWO OR MORE YEARS OF SERVICE AS SUCH AN EMPLOYEE MAY UPON APPOINTMENT TO A POSITION SUBJECT TO THE CLASSIFICATION ACT OF 1949 HAVE HIS INITIAL RATE OF COMPENSATION FIXED AT THE MINIMUM RATE OF THE APPROPRIATE GRADE, OR TO ANY STEP OF SUCH GRADE THAT DOES NOT EXCEED THE HIGHEST PREVIOUS RATE OF COMPENSATION RECEIVED BY HIM DURING SUCH SERVICE IN THE LEGISLATIVE BRANCH.

THOSE AMENDMENTS WERE DISCUSSED IN S. REPT. NO. 1399, 85TH CONGRESS ON PAGES 1 AND 2, AS OLLOWS:

SECTION 801 OF THE CLASSIFICATION ACT PROVIDES THAT " ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE.'

SECTION 802 PROVIDES, HOWEVER, THAT IN THE CASE OF A TRANSFER FROM ONE POSITION TO ANOTHER, THE BASIC COMPENSATION OF THE EMPLOYEE SHALL BE GOVERNED BY REGULATIONS OF THE CIVIL SERVICE COMMISSION.

THE COMPTROLLER GENERAL HAS HELD THAT THE MOVEMENT OF AN EMPLOYEE FROM THE LEGISLATIVE BRANCH TO THE EXECUTIVE BRANCH IS NOT A TRANSFER AND, THEREFORE, HIS ATTACHMENT TO THE EXECUTIVE BRANCH RESULTS FROM A NEW APPOINTMENT.

THE REGULATIONS OF THE COMMISSION PROVIDE THAT, IN THE CASE OF A TRANSFER OF AN EMPLOYEE FROM ONE POSITION TO ANOTHER, HIS PAY MAY BE FIXED AT ANY STEP RATE OF THE APPROPRIATE GRADE FOR THE POSITION TO WHICH HE IS BEING TRANSFERRED THAT DOES NOT EXCEED HIS RATE OF PAY IN THE POSITION FROM WHICH HE IS BEING TRANSFERRED. HOWEVER, THE DECISION OF THE COMPTROLLER FORECLOSES EXTENSION OF THE COMMISSION REGULATION TO AN EMPLOYEE WHO MOVES FROM THE LEGISLATIVE BRANCH TO A POSITION IN THE EXECUTIVE BRANCH. ACCORDINGLY, WHEN THAT OCCURS, THE EMPLOYEE IS COMPELLED TO START AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OF THE POSITION EVEN THOUGH HE WAS RECEIVING A HIGHER SALARY IN THE LEGISLATIVE BRANCH AND NOTWITHSTANDING THE FACT THAT THE DEPARTMENT OR AGENCY WOULD LIKE TO FIX HIS PAY AT A HIGHER STEP RATE THAN THE MINIMUM RATE OF THE APPROPRIATE GRADE FOR THE POSITION.

SECTION 4 REMOVES THE IMPEDIMENT CREATED BY THE DECISION OF THE COMPTROLLER GENERAL TO EXTENSION OF CIVIL SERVICE COMMISSION REGULATIONS TO EMPLOYEES OF THE LEGISLATIVE BRANCH THAT ACCEPT POSITIONS IN THE EXECUTIVE BRANCH.

THE AMENDMENTS TO SUBSECTION 802 (A), 5 U.S.C. 1132 (A), WHEN VIEWED ALONE SEEM TO PLACE INDIVIDUALS WITH PRIOR EMPLOYMENT IN THE LEGISLATIVE AND JUDICIAL BRANCHES IN THE SAME POSITION AS INDIVIDUALS WITH PRIOR EMPLOYMENT IN THE EXECUTIVE BRANCH. UNDER THE AUTHORITY OF THAT SUBSECTION AS AMENDED, THEREFORE, THE CIVIL SERVICE COMMISSION REGULATIONS WHICH FORMERLY HAD AUTHORIZED THE USE OF THE PREVIOUS HIGHEST RATES OF COMPENSATION EARNED IN THE EXECUTIVE BRANCH WERE AMENDED TO AUTHORIZE THE USE OF SUCH RATES OF COMPENSATION EARNED IN THE LEGISLATIVE AND JUDICIAL BRANCHES UNDER THE HIGHEST PREVIOUS RATE RULE. THE COMMISSION'S REGULATIONS AS GENERALLY APPLIED DO NOT REQUIRE 2 YEARS' SERVICE WITH THE GOVERNMENT BEFORE A FORMER RATE OF COMPENSATION MAY BE USED TO AUTHORIZE A RATE OF COMPENSATION IN EXCESS OF THE MINIMUM OF THE GRADE TO WHICH TRANSFERRED.

IN VIEW OF THE AMENDMENTS TO SUBSECTION 802 (A), AND THE ENACTMENT OF SECTION 802 (C), WE CONSTRUE THE FORMER AS ENLARGING THE COMMISSION'S AUTHORITY TO REGULATE AND THE LATTER--- CONCERNING THOSE EMPLOYEES MEETING THE CONDITIONS THEREOF--- AS STATUTORY AUTHORITY TO USE THE HIGHEST PREVIOUS RATE RULE WITHOUT REGARD TO THE COMMISSION'S REGULATIONS.

THEREFORE, YOUR ACTIONS IN ALLOWING THE EMPLOYEE INVOLVED THE MAXIMUM SCHEDULED RATES WHEN SHE WAS PROMOTED TO GS-5 ON NOVEMBER 28, 1958, AND TO GS-6 ON JUNE 28, 1959, UNDER THE COMMISSION'S REGULATIONS ISSUED PURSUANT TO SECTION 802 (A) WERE PROPER. FURTHERMORE, UPON HER PROMOTION TO GS-7 SHE MAY BE ALLOWED COMPENSATION OF ANY SCHEDULED STEP OF THAT GRADE WHICH DOES NOT EXCEED THE HIGHEST RATE OF COMPENSATION SHE EARNED WHILE EMPLOYED IN THE LEGISLATIVE BRANCH AS ADJUSTED UNDER SECTION 25.103 (C) OF THE CIVIL SERVICE REGULATIONS.