B-151874, SEP. 12, 1963

B-151874, SEP. 12, 1963

TO MR. V. H. EASTMAN, AUTHORIZED CERTIFYING OFFICER, AGRICULTURAL RESEARCH SERVICE:

YOUR LETTER DATED JUNE 18, 1963, WITH ENCLOSURES, REQUESTS OUR DECISION WITH RESPECT TO THE PROPRIETY OF A PROPOSED PERSONNEL ACTION INVOLVING MR. JOHN F. LEE, AN EMPLOYEE OF THE AGRICULTURAL RESEARCH SERVICE AT BELTSVILLE, MARYLAND.

IT APPEARS THAT MR. LEE WAS SERVING AS AN ANIMAL CARETAKER WB-4 (STEP 3) AT $2.11 PER HOUR AT BELTSVILLE WHEN THE FUNCTION IN WHICH HE WAS ENGAGED WAS TRANSFERRED TO THE NEW NATIONAL ANIMAL DISEASE LABORATORY AT AMES, IOWA. HE WAS UNABLE TO LEAVE THE LOCAL COMMUTING AREA AND ON JUNE 25, 1961, WAS PLACED IN THE POSITION OF AGRICULTURAL AID, GS-2. SINCE THE PER ANNUM EQUIVALENT OF MR. LEE'S WB-4 POSITION (2,080 HOURS AT $2.11 PER HOUR) WAS $4,388.80, HE WAS GIVEN A "SAVED" PAY RATE IN THAT AMOUNT. EFFECTIVE MAY 27, 1962, HE WAS PROMOTED TO CROPS RESEARCH HELPER WB-4 (STEP 3) WITH SALARY AT THE RATE OF $2.15 PER HOUR. THE DIFFERENCE IN HIS CURRENT SALARY OF $2.15 PER HOUR AND THAT OF $2.11 PER HOUR WHICH HE WAS RECEIVING AS AN ANIMAL CARETAKER WB-4 IS ACCOUNTED FOR BY AN INCREASE IN THE SALARY RATES OF WAGE BOARD POSITIONS WHICH OCCURRED EFFECTIVE DECEMBER 10, 1961.

BY INFORMAL INQUIRY DATED MARCH 19, 1963, OUR CIVIL ACCOUNTING AND AUDITING DIVISION INFORMED YOU THAT THE EMPLOYEE UPON THE CHANGE FROM THE WAGE BOARD TO A CLASSIFICATION ACT POSITION COULD NOT BE PAID A SALARY RATE IN EXCESS OF THE MAXIMUM SCHEDULED RATE FOR THE CLASSIFICATION ACT POSITION IN WHICH HE WAS PLACED AND THAT THE PAYMENT AT THE "SAVED" RATE FOR THE PAY PERIODS ENDING JULY 8, 1961, THROUGH MAY 26, 1962, WAS IMPROPER, RESULTING IN AN OVERPAYMENT OF $231.36. SEE IN THIS CONNECTION B-151298, MAY 13, 1963.

THE POINTS RAISED IN THE INFORMAL INQUIRY WERE REFERRED TO THE PERSONNEL DIVISION OF THE AGRICULTURAL RESEARCH SERVICE FOR CONSIDERATION AND TECHNICAL ADVICE. PURSUANT THERETO THE ACTING CHIEF, EMPLOYMENT AND PLACEMENT BRANCH PREPARED A MEMORANDUM, A COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER, CONTAINING EXPLANATORY BACKGROUND INFORMATION RELEVANT TO THE CASE AND PROPOSING CORRECTIVE PERSONNEL ACTIONS.

THE MEMORANDUM STATES THAT THERE IS AN UNUSUAL ASPECT TO MR. LEE'S CASE WHICH HAS TO DO WITH AN EVOLVING SITUATION WHICH HAS OCCURRED OVER THE LAST SEVERAL YEARS FOR THE CONVERSION OF AGRICULTURAL AID AND CERTAIN OTHER SUPPORT-TYPE POSITIONS FROM CLASSIFICATION ACT TO WAGE BOARD POSITIONS. AS A PART OF THIS PROGRAM STANDARDS WERE ISSUED IN JANUARY 1961 COVERING POSITIONS OF CROPS RESEARCH HELPER, LIVESTOCK RESEARCH HELPER, INSECT RESEARCH HELPER, AND SOILS RESEARCH HELPER, NECESSITATING THE CONVERSION OF POSITIONS OF AGRICULTURAL AIDS UNDER THE CLASSIFICATION ACT TO THESE NEW TITLES UNDER THE WAGE BOARD SYSTEM. SEVERAL HUNDRED JOBS THROUGHOUT THE AGRICULTURAL RESEARCH SERVICE WERE INVOLVED IN THIS CONVERSION PROGRAM AND CONSIDERABLE TIME WAS REQUIRED TO IMPLEMENT IT NOT ONLY BECAUSE OF THE SIZE OF THE UNDERTAKING BUT ALSO DUE TO OTHER PROBLEMS SUCH AS AN UNUSUALLY LARGE NUMBER OF BORDERLINE CASES WHICH INVOLVED DETAILED STUDIES AND DESK AUDITS TO DECIDE WHETHER THE POSITIONS SHOULD REMAIN UNDER THE CLASSIFICATION ACT OR BE CONVERTED TO THE WAGE BOARD SYSTEM.

THE MEMORANDUM GOES ON TO SAY THAT MR. LEE'S PROMOTION FROM AGRICULTURAL AID GS-2 TO CROPS RESEARCH HELPER WB-4 AT $2.15 PER HOUR (STEP 3) ACTUALLY REPRESENTED THE CONVERSION OF THE POSITION HE HAD OCCUPIED SINCE JUNE 25, 1961, TO THE WAGE BOARD SYSTEM AND THIS WAS SO STATED UNDER REMARKS ON THE SF-50 COVERING THIS ACTION; THAT IN ESTABLISHING THE CROPS RESEARCH HELPER WB-4 POSITION IN HIS CASE THE RECORDS CLEARLY REFLECT THAT THIS JOB WAS IN LIEU OF THE GS-2 AGRICULTURAL AID POSITION PREVIOUSLY OCCUPIED BY HIM; AND THAT AS A MATTER OF FURTHER INFORMATION, ALL EMPLOYEES, INCLUDING MR. LEE, OCCUPYING AGRICULTURAL AID POSITIONS WHICH WERE DETERMINED TO BE PROPERLY THOSE OF CROPS RESEARCH HELPERS UNDER THE WAGE BOARD SYSTEM IN ACCORDANCE WITH THE NEW STANDARDS ISSUED IN JANUARY 1961 ACTUALLY WERE SO CONVERTED AS A GROUP ON MAY 27, 1962, IN ORDER TO AVOID NUMEROUS PROBLEMS WHICH WOULD HAVE OCCURRED IN PROCEEDING WITH THIS CONVERSION ON A PIECEMEAL BASIS.

THE MEMORANDUM THEN MAKES THE FOLLOWING STATEMENT:

"IT IS APPARENT, THEREFORE, THAT WE HAVE A SITUATION HERE WHEREIN MR. LEE WAS PERFORMING EXACTLY THE SAME DUTIES AS AN AGRICULTURAL AID GS-2 AS IN THE POSITION OF CROPS RESEARCH HELPER WB-4 TO WHICH HE WAS CHANGED ON MAY 27, 1962. THIS BEING THE CASE, AND SINCE THE STANDARDS RESULTING IN THE CONVERSION OF THE AGRICULTURAL AID GS-2 POSITIONS TO THAT OF CROPS RESEARCH HELPER WB-4 WERE ACTUALLY ISSUED IN JANUARY 1961, IT IS APPARENT THAT IN REALITY MR. LEE SHOULD HAVE BEEN CHANGED FROM ANIMAL CARETAKER W-4 AT STEP 3 TO CROPS RESEARCH HELPER WB-4 AT STEP 3 WITHOUT ANY CHANGE IN SALARY AND WITHOUT ANY SAVED RATE BEING IN THE PICTURE EFFECTIVE JUNE 25, 1961, RATHER THAN HAVING INITIALLY BEEN CHANGED TO AGRICULTURAL AID GS-2 AND THEN CHANGED BACK TO THE WAGE BOARD POSITION IN WB-4.

" * * * CERTAINLY UNDER THESE CIRCUMSTANCES, IT WOULD NEITHER BE LOGICAL NOR FAIR TO SAY THAT MR. LEE COULD NOT RECEIVE SALARY AT THE RATE OF STEP 3 OF WB-4 DURING THE PERIOD JUNE 25, 1961, TO MAY 26, 1962, WITH THERE BEING NO QUESTION ABOUT HIS RECEIVING STEP 3 OF WB-4 ON AND AFTER MAY 27, 1962, WHEREAS IN FACT HE WAS PERFORMING EXACTLY THE SAME DUTIES DURING BOTH PERIODS. ACCORDINGLY, WE PROPOSE TO TAKE CORRECTIVE ACTION IN THIS CASE TO CHANGE MR. LEE FROM AN ANIMAL CARETAKER W-4 POSITION, WITH SALARY AT STEP 3, TO CROPS RESEARCH HELPER WB-4, WITH SALARY AT STEP 3, EFFECTIVE JUNE 25, 1961, AND TO EFFECT A PAY ADJUSTMENT FOR HIM AT THE SAME GRADE AND STEP FROM $2.11 PER HOUR TO $2.15 PER HOUR EFFECTIVE DECEMBER 10, 1961, IN ACCORDANCE WITH THE REVISED SALARY RATES FOR WAGE BOARD POSITIONS WHICH WERE PUT INTO EFFECT AT THAT TIME. THESE CORRECTIVE ACTIONS WOULD ELIMINATE ANY QUESTION ABOUT OVERPAYMENT OF SALARY IN MR. LEE'S CASE BUT BEFORE TAKING THEM WE SHOULD LIKE TO KNOW WHETHER OUR PROPOSED COURSE OF ACTION MEETS WITH THE APPROVAL OF THE GAO AUDITORS.'

COPIES OF SF-50, NOTIFICATION OF PERSONNEL ACTION, EFFECTIVE JUNE 25, 1961, AND DECEMBER 10, 1961, WERE ENCLOSED WHICH WOULD GIVE EFFECT TO (1) REASSIGNING MR. LEE FROM AN ANIMAL CARETAKER WB-4 POSITION TO A CROPS RESEARCH HELPER WB-4 POSITION WITHOUT ANY CHANGE IN SALARY, $2.11 PER HOUR, AND (2) GIVE EFFECT TO A PAY ADJUSTMENT FOR HIM IN THE CROPS RESEARCH HELPER WB-4 POSITION FROM $2.11 PER HOUR TO $2.15 PER HOUR IN CONFORMITY WITH REVISED SALARY RATES FOR WAGE BOARD POSITIONS IN ACCORDANCE WITH WAGE BOARD NOTICE NUMBER MA-121-61.

BASED ON THE INFORMATION PRESENTED OUR DECISION IS REQUESTED AS TO WHETHER WE WOULD BE REQUIRED TO OBJECT TO THE PROPOSED CORRECTIVE ACTION REASSIGNING MR. LEE TO A POSITION AS A CROPS RESEARCH HELPER, WB-4 AT $2.11 PER HOUR EFFECTIVE JUNE 25, 1961, AND THE CORRELATIVE PAY ADJUSTMENT FOR HIM AT $2.15 PER HOUR EFFECTIVE DECEMBER 10, 1961.

IT LONG HAS BEEN THE RULE OF ACCOUNTING OFFICERS THAT A PERSONNEL ACTION MAY NOT BE MADE RETROACTIVELY EFFECTIVE SO AS TO DECREASE OR INCREASE THE RIGHT OF AN EMPLOYEE TO COMPENSATION 40 COMP. GEN. 207; 39 ID. 583; 33 ID. 140. AS THE ORIGINAL PERSONNEL ACTION EFFECTIVE JUNE 25, 1961, WAS PROPER WHEN MADE AND CLEARLY WAS IN ACCORDANCE WITH THE ADMINISTRATIVE INTENTION AT THAT TIME, ANY RETROACTIVE PERSONNEL ACTIONS MADE NOW WOULD CONSTITUTE A RETROACTIVE PROMOTION CONTRARY TO THE GENERAL RULE STATED ABOVE. ACCORDINGLY, WE ARE REQUIRED TO OBJECT TO THE PROPOSED ACTION CONTEMPLATED IN YOUR LETTER.

THEREFORE, THE COPIES OF SF-50 WHICH ARE RETURNED HEREWITH PROPERLY MAY NOT BE PROCESSED TO BE A BASIS FOR THE CERTIFICATION OF A VOUCHER IN PAYMENT OF ANY ADJUSTMENT IN COMPENSATION.