B-152868, DEC. 23, 1963

B-152868, DEC. 23, 1963

MR. J. E. PERRY, AUTHORIZED CERTIFYING OFFICER, BONNEVILLE POWER ADMINISTRATION:

YOUR LETTER OF NOVEMBER 7, 1963, REQUESTS ADVICE CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT A PAYROLL VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MRS. CLARICE C. BAER, AN EMPLOYEE OF THE BUREAU OF LAND MANAGEMENT, IN THE GROSS AMOUNT OF $67.90 WHICH REPRESENTS A RETROACTIVE INCREASE IN COMPENSATION FOR THE PERIOD MAY 26, 1963, TO OCTOBER 12, 1963.

YOU SAY IN YOUR LETTER THAT DURING THE PERIOD OCTOBER 17, 1960, TO FEBRUARY 3, 1961, MRS. BAER HELD A TEMPORARY APPOINTMENT--- GRADE GS-4, STEP 1--- PENDING ESTABLISHMENT OF A REGISTER. ON JANUARY 8, 1963, AFTER A BREAK IN SERVICE OF NEARLY 2 YEARS SHE AGAIN WAS EMPLOYED BY THE BUREAU OF LAND MANAGEMENT. THIS TIME AS A CLERK-TYPIST (GRADE GS 3, STEP 4--- $4,135 PER ANNUM--- BASED UPON HER HIGHEST PREVIOUS RATE) UNDER A TEMPORARY APPOINTMENT (OUTSIDE REGISTER) FOR NOT TO EXCEED 700 HOURS. EFFECTIVE FEBRUARY 14 THIS APPOINTMENT WAS AMENDED TO SHOW FULL TIME EMPLOYMENT. EFFECTIVE MAY 10, 1963, MRS. BAER RECEIVED A TEMPORARY APPOINTMENT FROM REGISTER FOR EMPLOYMENT NOT TO EXTEND BEYOND AUGUST 9, 1963, AT HER SAME GRADE AND SALARY (GS-3, STEP 4, $4,135 PER ANNUM). THEREAFTER, ON MAY 26, 1963, SHE WAS GIVEN A CAREER CONDITIONAL APPOINTMENT TO THE POSITION OF CLERK-STENOGRAPHER, GRADE GS-4, STEP 2, $4,250 PER ANNUM. ON OCTOBER 22, 1963, A CORRECTIVE ACTION WAS TAKEN CHANGING MRS. BAER'S SALARY RATE TO $4,390 PER ANNUM, RETROACTIVE TO MAY 26, 1963.

THE SOLE QUESTION INVOLVED IS WHETHER THE ACTION CHANGING MRS. BAER'S RATE OF COMPENSATION FROM $4,250 PER ANNUM TO $4,390 PER ANNUM, RETROACTIVELY EFFECTIVE TO MAY 26, 1963, WAS LEGAL AND PROPER. WE THINK THAT IT WAS.

SECTION 25.102 (I) OF THE FEDERAL EMPLOYEES PAY REGULATIONS, FEDERAL PERSONNEL MANUAL Z1-315, WHICH WAS IN EFFECT ON MAY 26, 1963, AND THEREAFTER UNTIL DECEMBER 15, 1963, IS IN PART AS OLLOWS:

" "PROMOTION" IS THE ADVANCEMENT OF AN EMPLOYEE WHILE CONTINUOUSLY EMPLOYED FROM ONE CLASSIFICATION ACT GRADE TO A HIGHER CLASSIFICATION ACT GRADE * * *"

UNDER THE WORDING OF THE QUOTED DEFINITION IT WOULD APPEAR TO BE IMMATERIAL WHETHER THE TENURE OF THE EMPLOYEE IN THE POSITION FROM WHICH SHE WAS ADVANCED WAS TEMPORARY. IN VIEW THEREOF WE SEE NO BASIS UPON WHICH WE PROPERLY MAY CONCLUDE THAT THE EMPLOYEE WAS NOT "PROMOTED" WHEN SHE WAS ADVANCED FROM THE TEMPORARY CLERK-TYPIST (GS 3) POSITION TO THE CLERK-STENOGRAPHER (GS-4) POSITION ON MAY 26, 1963.

WHEN THE PERSONNEL ACTION OF MAY 26, 1963, IS VIEWED AS A PROMOTION, AS THE REGULATION REQUIRES THAT IT MUST BE VIEWED, THEN EFFECT MUST BE GIVEN TO THE MANDATORY PROVISIONS OF SECTION 802 (B) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED BY SECTION 604 (A) OF PUB.L. 87 793, 5 U.S.C. 1132 (B), WHICH PROVIDES THAT "ANY OFFICER OR EMPLOYEE WHO IS PROMOTED OR TRANSFERRED TO A POSITION IN A HIGHER GRADE SHALL RECEIVE BASIC COMPENSATION AT THE LOWEST RATE OF SUCH HIGHER GRADE WHICH EXCEEDS HIS EXISTING RATE OF BASIC COMPENSATION BY NOT LESS THAN TWO STEP-INCREASES OF THE GRADE FROM WHICH HE IS PROMOTED OR TRANSFERRED.' SINCE THE $4,390 RATE IS THE LOWEST RATE IN GRADE GS-4 THAT EXCEEDS THE EMPLOYEE'S FORMER RATE ($4,135 PER ANNUM) IN GRADE GS 3 BY AS MUCH AS 2 STEP-INCREASES OF THAT GRADE, SUCH RATE $4,390) IS THE ONE TO WHICH MRS. BAER WAS ENTITLED UPON HER PROMOTION TO GRADE GS 4 ON MAY 26, 1963. HENCE, THE RETROACTIVE ACTION IN INCREASING MRS. BAER'S RATE OF COMPENSATION FROM $4,250 PER ANNUM TO $4,390 PER ANNUM WAS PROPER.

ACCORDINGLY THE VOUCHER, WHICH IS RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.