B-149353, AUGUST 16, 1962, 42 COMP. GEN. 114

B-149353: Aug 16, 1962

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TO BE CONSIDERED A FIRST EMPLOYMENT WHEN THE CONSULTANT IS APPOINTED TO A REGULAR FULL TIME POSITION FOR THE PURPOSE OF FIXING HIS COMPENSATION ABOVE THE MINIMUM RATE FOR THE GRADE WOULD NOT ONLY BE AN EVASION OF THE WITHIN-GRADE WAITING REQUIREMENTS FOR ADVANCEMENT TO HIGHER STEPS IN GRADES BUT WOULD BE CONTRARY TO THE SPIRIT AND INTENT OF THE CLASSIFICATION ACT OF 1949. THE FIXING OF THE SALARY OF A CONSULTANT EMPLOYED UNDER SECTION 15 OF THE 1946 ACT WHEN HE IS APPOINTED TO A REGULAR POSITION AT A RATE OF COMPENSATION BASED ON HIS PER DIEM RATE WHICH IS ABOVE THE MINIMUM RATE FOR THE GRADE OF THE REGULAR POSITION IS NOT PROPER. THE SOLE QUESTION INVOLVED IS WHETHER MR. TO WHICH HE WAS APPOINTED ON JUNE 19.

B-149353, AUGUST 16, 1962, 42 COMP. GEN. 114

COMPENSATION - RATES - HIGHEST PREVIOUS RATE - CONSULTANT SERVICE TO PERMIT EMPLOYMENT AS A CONSULTANT ON AN INTERMITTENT BASIS UNDER SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 55A, TO BE CONSIDERED A FIRST EMPLOYMENT WHEN THE CONSULTANT IS APPOINTED TO A REGULAR FULL TIME POSITION FOR THE PURPOSE OF FIXING HIS COMPENSATION ABOVE THE MINIMUM RATE FOR THE GRADE WOULD NOT ONLY BE AN EVASION OF THE WITHIN-GRADE WAITING REQUIREMENTS FOR ADVANCEMENT TO HIGHER STEPS IN GRADES BUT WOULD BE CONTRARY TO THE SPIRIT AND INTENT OF THE CLASSIFICATION ACT OF 1949; THEREFORE, THE FIXING OF THE SALARY OF A CONSULTANT EMPLOYED UNDER SECTION 15 OF THE 1946 ACT WHEN HE IS APPOINTED TO A REGULAR POSITION AT A RATE OF COMPENSATION BASED ON HIS PER DIEM RATE WHICH IS ABOVE THE MINIMUM RATE FOR THE GRADE OF THE REGULAR POSITION IS NOT PROPER.

TO MISS ETHELREDA C. FESMIRE, NATIONAL LABOR RELATIONS BOARD, AUGUST 16, 1962:

YOUR LETTER OF JULY 2, 1962, REQUESTS OUR DECISION CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT A PAY ROLL VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MR. DANIEL H. POLLITT. THE SOLE QUESTION INVOLVED IS WHETHER MR. POLLITT'S RATE OF PAY IN THE GS-15 POSITION, TO WHICH HE WAS APPOINTED ON JUNE 19, 1962, PROPERLY WAS PREDICATED UPON A RATE OF COMPENSATION PREVIOUSLY RECEIVED BY HIM WHILE SERVING UNDER AN EMPLOYMENT MADE IN ACCORDANCE WITH SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, 5 U.S.C. 55A.

YOU SAY THAT MR. POLLITT WAS EMPLOYED AS A SPECIAL ASSISTANT AND CONSULTANT TO THE CHAIRMAN OF THE NATIONAL LABOR RELATIONS BOARD EFFECTIVE JUNE 19, 1961, WITH COMPENSATION PAYABLE AT THE RATE OF $60.88 A DAY. THIS EMPLOYMENT WAS MADE UNDER THE AUTHORITY OF SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT AND WAS NOT TO EXTEND BEYOND JUNE 18, 1962. ON APRIL 24, 1962, MR. POLLITT'S EMPLOYMENT WAS CONVERTED RETROACTIVELY AS OF DECEMBER 19, 1961, FROM AN INTERMITTENT WAE BASIS TO A TEMPORARY EXCEPTED APPOINTMENT WITH A REGULAR TOUR OF DUTY. THIS CONVERSION ACTION WAS REQUIRED BY FEDERAL PERSONNEL MANUAL, CH. A-7-13, WHICH PROVIDES FOR CONVERTING INTERMITTENT EMPLOYMENT TO TEMPORARY EMPLOYMENT WHEN THE TOTAL TIME WORKED INTERMITTENTLY IN ANY YEAR EXCEEDS MORE THAN ONE-HALF OF FULL TIME EMPLOYMENT. YOU SAY ALSO THAT EFFECTIVE JUNE 19, 1962, MR. POLLITT WAS APPOINTED TO THE POSITION OF ATTORNEY ADVISER, GS-15, UNDER THE AUTHORITY OF SCHEDULE A 6.101A. HIS COMPENSATION WAS FIXED AT THE RATE OF $15,030 PER ANNUM, THE TOP SCHEDULED STEP FOR GRADE GS-15.

YOUR DOUBT AS TO THE PROPRIETY OF USING THE PER DIEM RATE OF $60.88AS A HIGHEST PREVIOUS RATE FOR PURPOSES OF FIXING THE INITIAL SALARY OF MR. POLLITT IN THE GRADE GS-15 POSITION ARISES BECAUSE OF OUR HOLDING IN 30 COMP. GEN. 375 TO THE EFFECT THAT EMPLOYMENT UNDER SECTION 15 MAY NOT BE CONSIDERED AS A FIRST APPOINTMENT FOR PURPOSES OF SECTION 801 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1131.

WE CAREFULLY HAVE REVIEWED THE HOLDING IN 30 COMP. GEN. 375 AND CONSIDER IT TO BE SOUND. A CONTRARY CONCLUSION WOULD PERMIT EVASION OF THE WITHIN- GRADE WAITING REQUIREMENTS FOR ADVANCEMENT TO THE TOP SCHEDULED STEPS OF CLASSIFICATION ACT GRADES AND WOULD NOT BE EITHER WITHIN THE INTENT OR SPIRIT OF SECTION 801 AND OTHER PROVISIONS OF THE CLASSIFICATION ACT.

OUR DECISION OF JULY 29, 1959, B-130988, CITED IN YOUR LETTER, IS DISTINGUISHABLE FROM THE HOLDING IN 30 COMP. GEN. 375 IN THAT THE EMPLOYEE THERE INVOLVED WAS NOT APPOINTED UNDER SECTION 15 OF PUBLIC LAW 600. MOREOVER, HE WORKED FULL TIME ON A REGULARLY SCHEDULED TOUR OF DUTY FOR OVER SEVEN YEARS.

WE DO NOT VIEW THE REGULATIONS OF THE CIVIL SERVICE COMMISSION, TO WHICH YOU REFER IN YOUR LETTER--- FEDERAL EMPLOYEES' PAY REGULATIONS, SECTION 25.102 (F/--- AS IN CONFLICT WITH THE HOLDING IN 30 COMP. GEN. 375. THE HOLDING IN THAT DECISION IS CLEAR. EMPLOYMENT UNDER SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT DOES NOT CONSTITUTE A PREVIOUS APPOINTMENT WARRANTING AN EXCEPTION TO THE REQUIREMENT CONTAINED IN SECTION 801 OF THE CLASSIFICATION ACT OF 1949 THAT ALL NEW APPOINTMENTS BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE. CF. 33 COMP. GEN. 371. WHILE SECTION 25.102 (F) OF THE COMMISSION'S REGULATIONS MAKES NO MENTION OF THE NONAPPLICATION OF THAT SECTION TO PERSONS APPOINTED UNDER SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT NOR TO OUR DECISION IN 30 COMP. GEN. 375, WE MUST CONCLUDE THAT SUCH REGULATIONS WERE NOT INTENDED TO (AND COULD NOT) OVERCOME OUR DECISION WHICH WE CONSIDER TO HAVE BEEN REQUIRED IN ORDER TO PRESERVE THE PURPOSE AND INTENT OF THE CLASSIFICATION ACT OF 1949.

ACCORDINGLY, THE VOUCHER WHICH IS RETURNED HEREWITH MAY NOT BE CERTIFIED FOR PAYMENT.