B-153693, MAR. 18, 1964

B-153693: Mar 18, 1964

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STEPHENSON WAS APPOINTED TO THE POSITION OF MINING ENGINEER (STUDENT ASSISTANT). THE APPOINTMENT WAS MADE PURSUANT TO SCHEDULE A. IT ALSO APPEARS THAT THE FIRST STEP FOR A MINING ENGINEER WAS CONSIDERED TO BE THE SEVENTH STEP OF THE REGULAR GS-7 GRADE OR $6. WHICH AMOUNT WAS CLEARLY SET FORTH IN THE APPOINTING PAPER. YOU SAY THE EMPLOYEE INADVERTENTLY WAS PERMITTED TO WORK UNTIL HE HAD EXCEEDED THE DOLLAR LIMITATION ( 1/3 OF $6. STEPHENSON WAS GIVEN A TEMPORARY APPOINTMENT FOR ONE YEAR AT THE SAME GRADE AND SALARY EFFECTIVE DECEMBER 4. SECTION 6.101 (S) OF THE CIVIL SERVICE REGULATIONS (Z1 240) READS IN PERTINENT PART AS FOLLOWS: "/S) TEMPORARY OR INTERMITTENT POSITIONS AT GS-7 AND BELOW WHEN THE APPOINTEES ARE TO ASSIST SCIENTIFIC.

B-153693, MAR. 18, 1964

TO MR. W. F. OWEN, JR., BUREAU OF MINES, DEPARTMENT OF THE INTERIOR:

ON MARCH 9, 1964, YOU REQUESTED OUR DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER FOR $455.95, REPRESENTING SALARY FOR SERVICES RENDERED BY BRIAN R. STEPHENSON, BUREAU OF MINES, MINING RESEARCH CENTER, SUBSEQUENT TO THE EXPIRATION OF HIS APPOINTMENT.

IT APPEARS THAT MR. STEPHENSON WAS APPOINTED TO THE POSITION OF MINING ENGINEER (STUDENT ASSISTANT), GS-880-7, $6,650 PER ANNUM, EFFECTIVE JULY 9, 1963. THE APPOINTMENT WAS MADE PURSUANT TO SCHEDULE A, SECTION 6.101/S), CIVIL SERVICE REGULATIONS. THE "NOTICE OF SHORT TERM MPLOYMENT" EVIDENCING SUCH APPOINTMENT CONTAINED THE STATEMENT, "EMPLOYMENT SHALL NOT EXCEED EITHER 130 WORKING DAYS A YEAR OR A TOTAL COMPENSATION OF 33 1/3 PERCENT OF THE ANNUAL SALARY FOR THE 1ST STEP OF A GS-7.' IT ALSO APPEARS THAT THE FIRST STEP FOR A MINING ENGINEER WAS CONSIDERED TO BE THE SEVENTH STEP OF THE REGULAR GS-7 GRADE OR $6,650 PER ANNUM, WHICH AMOUNT WAS CLEARLY SET FORTH IN THE APPOINTING PAPER.

YOU SAY THE EMPLOYEE INADVERTENTLY WAS PERMITTED TO WORK UNTIL HE HAD EXCEEDED THE DOLLAR LIMITATION ( 1/3 OF $6,650 OR $2,216) BY $440 DURING THE PAY PERIODS NOVEMBER 10-23, AND NOVEMBER 24-DECEMBER 7, 1963, BUT THAT PAYMENT THEREFOR HAS NOT BEEN MADE. YOU ALSO POINT OUT THAT MR. STEPHENSON WAS GIVEN A TEMPORARY APPOINTMENT FOR ONE YEAR AT THE SAME GRADE AND SALARY EFFECTIVE DECEMBER 4, 1963, BUT YOU EXPRESS DOUBT THAT PAYMENT OF THE EARNINGS BETWEEN THE TERMINATION DATE OF THE FIRST APPOINTMENT AND THE EFFECTIVE DATE OF THE NEW APPOINTMENT MAY BE MADE.

SCHEDULE A, SECTION 6.101 (S) OF THE CIVIL SERVICE REGULATIONS (Z1 240) READS IN PERTINENT PART AS FOLLOWS:

"/S) TEMPORARY OR INTERMITTENT POSITIONS AT GS-7 AND BELOW WHEN THE APPOINTEES ARE TO ASSIST SCIENTIFIC, PROFESSIONAL, OR TECHNICAL EMPLOYEES. PERSONS EMPLOYED UNDER THIS PROVISION SHALL BE (1) BONA FIDE STUDENTS AT HIGH SCHOOLS OR ACCREDITED COLLEGES OR UNIVERSITIES PURSUING COURSES RELATED TO THE FIELD IN WHICH EMPLOYED, OR (2) BONA FIDE HIGH SCHOOL SCIENCE AND MATHEMATICS TEACHERS. NO PERSON SHALL BE EMPLOYED UNDER THIS PROVISION (1) IN A POSITION OF A ROUTINE CLERICAL TYPE; OR (2) IN EXCESS OF 130 WORKING DAYS A YEAR; OR (3) AT A COMPENSATION DURING A PERIOD OF A YEAR THAT AGGREGATES FOR POSITIONS AT GS-4 AND BELOW MORE THAN 40 PERCENT OF THE ANNUAL SALARY FOR THE FIRST STEP OF GS-3, AND FOR POSITIONS AT GS-5, 6, OR 7 MORE THAN 33 1/3 PERCENT OF THE ANNUAL SALARY FOR THE FIRST STEP OF THE GRADE AT WHICH THE POSITION IS CLASSIFIED. THE GRADE LEVEL AT WHICH THE PERSON ENTERS ON DUTY DETERMINES THE PAY LIMITATION APPLICABLE TO HIM THROUGHOUT HIS SERVICE YEAR. THESE LIMITATIONS ON COMPENSATION INCLUDE ANY PREMIUM PAY SUCH AS FOR OVERTIME, NIGHT, SUNDAY, OR HOLIDAY WORK. * * *"

THE APPOINTMENT WAS MADE IN STRICT CONFORMITY WITH THE FOREGOING REGULATION. THE LIMITATIONS AS TO TIME AND THE MAXIMUM EARNINGS UNDER THE APPOINTMENT WERE CLEARLY DEFINED IN THE NOTICE OF THE APPOINTMENT, HENCE, THE EMPLOYEE MUST OR SHOULD HAVE BEEN AWARE OF THEM. THE TERM OF EMPLOYMENT WOULD EXPIRE WHEN THE EMPLOYEE HAD SERVED 130 WORKING DAYS (INCLUDING SUNDAY OR HOLIDAY WORK) OR WHEN HE HAD REACHED THE MAXIMUM EARNINGS WHICHEVER OCCURRED FIRST. HIS SUPERVISORS COULD NOT BY INADVERTENCE OR OTHERWISE DEPART FROM THE REGULATION SO AS TO INCREASE OR EXPAND THE EMPLOYEE'S RIGHTS UNDER THE REGULATION NOR COULD THE EMPLOYEE DO SO BY CONTINUING TO WORK IN A POSITION WHICH LEGALLY HE NO LONGER OCCUPIED. ALSO, WE ARE IN AGREEMENT WITH YOUR VIEW THAT PAYMENT MAY NOT BE MADE UNDER AUTHORITY OF THE SECOND APPOINTMENT WHICH WAS MADE AND BECAME EFFECTIVE SUBSEQUENT TO THE PERIODS IN WHICH THE SUBJECT SERVICES WERE RENDERED.

WHILE IT IS REGRETTABLE THAT MR. STEPHENSON CONTINUED TO RENDER SERVICES AFTER THE EXPIRATION OF HIS TERM OF EMPLOYMENT WE KNOW OF NO EXISTING AUTHORITY UNDER WHICH HE MAY BE COMPENSATED THEREFOR.

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