B-153712, MAY 11, 1964

B-153712: May 11, 1964

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FROM THE PAPERS SUBMITTED IT APPEARS THAT MISS PARKS WAS CONTACTED BY TELEPHONE BY AN OFFICER OF THE SOCIAL SECURITY ADMINISTRATION CONCERNING A POSITION AS STENOGRAPHER FOLLOWING WHICH SHE WAS INTERVIEWED BY SUPERVISORS IN THE OKLAHOMA CITY DISTRICT OFFICE. DURING THE INTERVIEW MISS PARKS SPECIFICALLY ASKED WHETHER SHE WOULD RECEIVE THE SAME PAY SHE THEN WAS RECEIVING AT THE TINKER AIR FORCE BASE. WHICH WAS $4. UPON BEING ASSURED THAT IT WAS THE POLICY TO TRANSFER EMPLOYEES FROM OTHER AGENCIES AT NO REDUCTION IN SALARY AND THAT HER THEN EXISTING SALARY WOULD BE MATCHED SHE ACCEPTED THE POSITION EFFECTIVE JULY 21. MISS PARKS SAYS THAT A FEW DAYS BEFORE SHE RECEIVED HER FIRST PAY CHECK SHE WAS ADVISED THAT HER SALARY RATE HAD BEEN ADJUSTED TO GS-3.

B-153712, MAY 11, 1964

TO MISS DORTHEA A. MCMAHON, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE:

ON MARCH 6, 1964, YOU REQUESTED OUR DECISION CONCERNING A RETROACTIVE SALARY ADJUSTMENT IN THE CASE OF MISS BARBARA LEE PARKS, CLERK STENOGRAPHER, GS-4, SOCIAL SECURITY ADMINISTRATION, DIVISION OF FIELD OPERATIONS, OKLAHOMA CITY, OKLAHOMA.

FROM THE PAPERS SUBMITTED IT APPEARS THAT MISS PARKS WAS CONTACTED BY TELEPHONE BY AN OFFICER OF THE SOCIAL SECURITY ADMINISTRATION CONCERNING A POSITION AS STENOGRAPHER FOLLOWING WHICH SHE WAS INTERVIEWED BY SUPERVISORS IN THE OKLAHOMA CITY DISTRICT OFFICE. DURING THE INTERVIEW MISS PARKS SPECIFICALLY ASKED WHETHER SHE WOULD RECEIVE THE SAME PAY SHE THEN WAS RECEIVING AT THE TINKER AIR FORCE BASE, WHICH WAS $4,830 PER ANNUM (GS-3, STEP 10). UPON BEING ASSURED THAT IT WAS THE POLICY TO TRANSFER EMPLOYEES FROM OTHER AGENCIES AT NO REDUCTION IN SALARY AND THAT HER THEN EXISTING SALARY WOULD BE MATCHED SHE ACCEPTED THE POSITION EFFECTIVE JULY 21, 1963.

MISS PARKS SAYS THAT A FEW DAYS BEFORE SHE RECEIVED HER FIRST PAY CHECK SHE WAS ADVISED THAT HER SALARY RATE HAD BEEN ADJUSTED TO GS-3, STEP 2, $3,925 PER ANNUM, PENDING RECEIPT OF HER PERSONNEL FILE FROM TINKER AIR FORCE BASE BUT THAT SHE WOULD RECEIVE RETROACTIVE PAY FOR THAT PERIOD. THEREAFTER SHE WAS INFORMED THAT HER SALARY RATE WOULD NOT BE THE SAME AS THAT OF HER PRIOR POSITION BECAUSE OF THE DIFFERENT SALARY FIXING POLICIES OF THE TWO AGENCIES BUT A SUBSEQUENT SALARY ADJUSTMENT (APPARENTLY RETROACTIVELY EFFECTIVE) INCREASED HER SALARY TO $4,135 PER ANNUM, OR STEP 4 OF GRADE GS-3. EFFECTIVE OCTOBER 15, 1963, SHE WAS PROMOTED TO GS-4, STEP 3, $4,390 PER ANNUM, WHICH STILL WAS $440 PER ANNUM LESS THAN THE SALARY RATE IN GS-3, STEP 10, WHICH SHE WAS RECEIVING AT THE TIME OF THE TRANSFER.

THE EMPLOYEE'S STATEMENT THAT SHE WAS INFORMED THAT THE TRANSFER WOULD BE MADE AT NO LOSS IN SALARY HAS BEEN VERIFIED BY A SUPERVISOR WHO WAS PRESENT AT THE INTERVIEW. NO ONE CONTENDS OTHERWISE.

SECTION 531.203 (B), FORMERLY SECTION 25.103 (B), OF THE FEDERAL PERSONNEL MANUAL PROVIDES SO FAR AS PERTINENT HERE, THAT WHEN AN EMPLOYEE IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED OR DEMOTED THE DEPARTMENT MAY PAY HIM AT ANY RATE OF HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE.

IT APPEARS THAT THE INSTRUCTIONS CONTAINED IN THE AGENCY'S PERSONNEL GUIDES FOR SUPERVISORS (CHAPTER IV, GUIDE 1) ISSUED IN IMPLEMENTATION OF THE ABOVE RULE SET FORTH THE FOLLOWING CIRCUMSTANCES UNDER WHICH A SUPERVISOR MIGHT RECOMMEND THE APPLICATION OF SUCH HIGHEST PREVIOUS RULE:

"HIS EXCEPTIONAL WORK HISTORY INDICATES THAT HIS PERFORMANCE OF THE JOB MAY BE EXPECTED TO BE OF SUCH A HIGH LEVEL AS TO WARRANT PAY HIGHER THAN THE "USUAL" SALARY.

"WHEN YOU HAVE DIFFICULTY FILLING A POSITION DUE TO UNUSUAL, CIVIL SERVICE COMMISSION APPROVED, QUALIFICATION REQUIREMENTS OR SHORTAGE OF QUALIFIED CANDIDATES.'

IT APPEARS FROM THE MEMORANDUM OF THE DIRECTOR OF PERSONNEL, DATED DECEMBER 16, 1963, THAT THE SELECTING OFFICERS WHO RECOMMENDED THE APPOINTMENT AND THE APPOINTING OFFICIAL WHO APPROVED THE ACTION BELIEVED THAT THEY WERE PREVENTED FROM RECOMMENDING THE HIGHER RATE BY THE ABOVE- QUOTED CONDITIONS WHICH THEY CONSIDERED TO BE LIMITATIONS. THEREFORE, IN THE ABSENCE OF SUCH RECOMMENDATION HER INITIAL SALARY RATE WAS ESTABLISHED AT $3,925 PER ANNUM (GS-3, STEP 2), NOTWITHSTANDING THE VERBAL COMMITMENT TO HER THAT SHE WOULD BE TRANSFERRED AT A SALARY NO LESS THAN THE $4,830 (GS-3, STEP 10), SHE THEN WAS RECEIVING AND THE FACT THAT SHE HAD ENTERED ON DUTY PURSUANT TO SUCH COMMITMENT.

THE MEMORANDUM OF THE DIRECTOR OF PERSONNEL MENTIONED ABOVE CONTAINS THE FOLLOWING STATEMENT:

"MY OFFICE MUST TAKE RESPONSIBILITY FOR AN ADMINISTRATIVE ERROR IN ISSUING AN OVER-SIMPLIFICATION OF THE DEPARTMENT'S POLICY THAT APPEARS TO LIMIT EXCEPTIONS TO THESE TWO CIRCUMSTANCES. THESE ARE EXAMPLES OF COMMON AND ACCEPTABLE REASONS FOR EXCEPTION; BUT EXCEPTION CAN BE, AND NOT INFREQUENTLY IS, MADE FOR OTHER SOUND REASONS. THE STATEMENT IN THE PERSONNEL GUIDES WILL BE REVISED SOON.'

FROM THE FACTS SUBMITTED IT IS APPARENT THAT THE EMPLOYEE WAS PROMISED A SALARY RATE EQUAL TO THAT SHE WAS RECEIVING AT THE TIME OF HER TRANSFER. SHE SAYS SHE WOULD NOT HAVE TRANSFERRED OTHERWISE AND THERE APPEARS NO REASON TO DOUBT HER STATEMENT. FURTHER, IT APPEARS THAT HAD THE RECOMMENDATION BEEN MADE HER SALARY RATE WOULD HAVE BEEN FIXED AT $4,830 PER ANNUM AND ALSO THAT SUCH RECOMMENDATION WOULD HAVE BEEN MADE SAVE FOR THE MISCONSTRUCTION OF THE AGENCY'S INSTRUCTIONS WHICH THE DIRECTOR OF PERSONNEL SAYS WERE OVERSIMPLIFIED AND DID NOT CLEARLY SET FORTH THE POLICY OF THE AGENCY. UNDER SUCH CIRCUMSTANCES WE WOULD NOT BE REQUIRED TO OBJECT TO A RETROACTIVELY EFFECTIVE ADJUSTMENT IN THE EMPLOYEE'S SALARY TO CONFORM TO THE ORIGINAL UNDERSTANDING AND THE AGENCY'S POLICY IN THE MATTER.

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