B-153128, JANUARY 20, 1964, 43 COMP. GEN. 519

B-153128: Jan 20, 1964

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AN EMPLOYEE WHO WHEN PROMOTED TO GRADE GS-16 IS RECEIVING COMPENSATION AT ONE OF THE TOP THREE RATES OF COMPENSATION GS-15 (STEP 6. WHICH RATES ARE HIGHER THAN THE MAXIMUM RATE FOR GS-16. WHICH ONLY PERMITS RETENTION OF THE EXISTING RATE IN THOSE CASES WHERE THE EMPLOYEE'S CURRENT RATE IS IN EXCESS OF THE MAXIMUM RATE OF THE GRADE FROM WHICH PROMOTED. ARE HIGHER THAN THE TOP RATE PAYABLE IN GRADE GS-16. IT IS APPARENT FROM THE LEGISLATIVE HISTORY OF THE CLASSIFICATION ACT AMENDMENTS OF 1962. THAT IT WAS ANTICIPATED THAT THE CONGRESS WOULD ENACT LEGISLATION WHICH WOULD HAVE ADJUSTED THE RATES OF COMPENSATION OF HIGHER FEDERAL EXECUTIVE SALARIES. AN EMPLOYEE MAY RETAIN THE RATE OF COMPENSATION HE WAS ENTITLED TO IN ONE OF THE TOP 3 STEPS OF GRADE GS-15.

B-153128, JANUARY 20, 1964, 43 COMP. GEN. 519

COMPENSATION - PROMOTIONS - RATE IN LOWER GRADE RETENTION UNDER THE COMPENSATION SCHEDULE WHICH BECAME EFFECTIVE IN JANUARY 1964, AN EMPLOYEE WHO WHEN PROMOTED TO GRADE GS-16 IS RECEIVING COMPENSATION AT ONE OF THE TOP THREE RATES OF COMPENSATION GS-15 (STEP 6, 7 OR 8), WHICH RATES ARE HIGHER THAN THE MAXIMUM RATE FOR GS-16, DOES NOT COME UNDER THE RULE IN SECTION 604 (A) OF THE CLASSIFICATION ACT OF 1962, 5 U.S.C. 1132 (B), WHICH ONLY PERMITS RETENTION OF THE EXISTING RATE IN THOSE CASES WHERE THE EMPLOYEE'S CURRENT RATE IS IN EXCESS OF THE MAXIMUM RATE OF THE GRADE FROM WHICH PROMOTED, AND, THEREFORE, IN THE ABSENCE OF A STATUTORY PROVISION AUTHORIZING EMPLOYEES PROMOTED TO GRADE GS-16 TO RETAIN A RATE OF COMPENSATION IN EXCESS OF THE MAXIMUM RATE FOR THE GRADE, THE EMPLOYEE MAY NOT UPON PROMOTION BE PAID A RATE ABOVE THE MAXIMUM FOR GRADE GS-16.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JANUARY 20, 1964:

WE REFER TO YOUR LETTER OF DECEMBER 17, 1963, CONCERNING THE COMPENSATION TO BE PAID TO AN EMPLOYEE UPON HIS PROMOTION FROM ONE OF THE TOP THREE RATES OF COMPENSATION OF GRADE GS-15 TO GRADE GS-16.

THE QUESTION ARISES UNDER "COMPENSATION SCHEDULE II" CONTAINED IN SECTION 602 (A) OF THE CLASSIFICATION ACT AMENDMENTS OF 1962, APPROVED OCTOBER 11, 1962, PUBLIC LAW 87-793, 76 STAT. 843, 5 U.S.C. 1113 (B), WHICH BECAME EFFECTIVE THE FIRST DAY OF THE FIRST PAY PERIOD AFTER JANUARY 1, 1964, BECAUSE THE TOP 3 PAY RATES IN GRADE GS-15, STEPS 6 THROUGH 8, ARE HIGHER THAN THE TOP RATE PAYABLE IN GRADE GS-16.

IT IS APPARENT FROM THE LEGISLATIVE HISTORY OF THE CLASSIFICATION ACT AMENDMENTS OF 1962, THAT IT WAS ANTICIPATED THAT THE CONGRESS WOULD ENACT LEGISLATION WHICH WOULD HAVE ADJUSTED THE RATES OF COMPENSATION OF HIGHER FEDERAL EXECUTIVE SALARIES, INCLUDING GRADE GS 16, BEFORE THE EFFECTIVE DATE OF "COMPENSATION SCHEDULE II.' SEE S.REPT. NO. 2120, 87TH CONG., 2D SESS., PAGE 10. SINCE NO SUCH AMENDMENT HAS BEEN ENACTED YOU ASK WHETHER, UPON PROMOTION FROM GRADE GS-15 TO GRADE GS-16, AN EMPLOYEE MAY RETAIN THE RATE OF COMPENSATION HE WAS ENTITLED TO IN ONE OF THE TOP 3 STEPS OF GRADE GS-15. THE PROMOTION RULE, CONTAINED IN SECTION 604 (A) OF THE 1962 AMENDMENTS (5 U.S.C. 1132 (B) ( IS AS FOLLOWS:

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. IF, IN THE CASE OF ANY OFFICER OR EMPLOYEE SO PROMOTED OR TRANSFERRED WHO IS RECEIVING BASIC COMPENSATION AT A RATE IN EXCESS OF THE MAXIMUM RATE FOR HIS GRADE UNDER ANY PROVISION OF LAW, THERE IS NO RATE IN SUCH HIGHER GRADE WHICH IS AT LEAST TWO STEP-INCREASES ABOVE HIS EXISTING RATE OF BASIC COMPENSATION, HE SHALL RECEIVE (1) THE MAXIMUM RATE OF SUCH HIGHER GRADE, OR (2) HIS EXISTING RATE OF BASIC COMPENSATION, IF SUCH EXISTING RATE IS THE HIGHER. IN CASE ANY SUCH OFFICER OR EMPLOYEE SO PROMOTED OR TRANSFERRED IS RECEIVING BASIC COMPENSATION AT A RATE SAVED TO HIM UNDER SECTION 507 OF THIS ACT UPON REDUCTION IN GRADE, SUCH OFFICER OR EMPLOYEE SHALL RECEIVE (A) BASIC COMPENSATION AT A RATE TWO STEPS ABOVE THE RATE WHICH HE WOULD BE RECEIVING IF SUCH SECTION 507 WERE NOT APPLICABLE IN HIS CASE, OR (B) HIS EXISTING RATE OF BASIC COMPENSATION, IF SUCH EXISTING RATE IS THE HIGHER.

THAT PROVISION DOES NOT AUTHORIZE SUCH AN EMPLOYEE TO RETAIN HIS CURRENT RATE OF PAY WHEN PROMOTED TO A HIGHER GRADE IF HIS CURRENT RATE IS NOT A RATE IN EXCESS OF THE MAXIMUM RATE FOR THE GRADE FROM WHICH HE IS PROMOTED. WE FIND NO OTHER PROVISION OF LAW WHICH AUTHORIZES THE EMPLOYEES CONCERNED TO RETAIN A RATE OF COMPENSATION ABOVE THE RATES AUTHORIZED FOR THE GRADE TO WHICH THEY ARE PROMOTED. IN THE ABSENCE OF A STATUTORY PROVISION AUTHORIZING A RETAINED RATE THERE IS NO LEGAL BASIS FOR AUTHORIZING EMPLOYEES PROMOTED TO GRADE GS 16 TO RETAIN A RATE OF COMPENSATION IN EXCESS OF THE RATES AUTHORIZED FOR THAT GRADE. SEE 35 COMP. GEN. 251. THEREFORE, EMPLOYEES PROMOTED FROM GRADE GS-15 TO GRADE GS-16 WHILE "COMPENSATION SCHEDULE II" OF SECTION 602 (A) OF THE CLASSIFICATION ACT AMENDMENTS OF 1962 IS IN EFFECT ARE NOT ENTITLED TO A RATE OF COMPENSATION ABOVE THE MAXIMUM FOR GRADE GS-16 ON THE BASIS OF THE HIGHER RATE OF PAY TO WHICH THEY WERE ENTITLED IN STEP 6, 7 OR 8 OF GRADE GS-15.