B-154195, JUN. 11, 1964

B-154195: Jun 11, 1964

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WERE PAID AT RATES OF COMPENSATION ABOVE THE MINIMUM RATES OF THE GRADES TO WHICH THEY WERE APPOINTED IN VIOLATION OF SECTION 801 OF THAT ACT. SECTION 802 OF THAT ACT PROVIDES THAT THE CIVIL SERVICE COMMISSION SHALL PROVIDE BY REGULATION FOR THE RATE OF COMPENSATION TO BE PAID WHEN AN EMPLOYEE'S POSITION OR STATUS IS CHANGED SUBSEQUENT TO HIS FIRST APPOINTMENT. TWENTY-SEVEN PRESENT AND PAST EMPLOYEES OF THE PEACE CORPS WHO WERE ORIGINALLY EMPLOYED AS EXPERTS OR CONSULTANTS UNDER SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 AS AUTHORIZED BY SECTION 13 (A) OF THE PEACE CORPS ACT. " WERE LATER APPOINTED TO CLASSIFICATION ACT POSITIONS AND ALLOWED COMPENSATION AT RATES ABOVE THE MINIMUM OF THE APPROPRIATE GRADE ON THE BASIS OF THE HIGHER RATES OF PAY THEY HAD RECEIVED UNDER THEIR APPOINTMENTS AS EXPERTS OR CONSULTANTS.

B-154195, JUN. 11, 1964

TO THE DIRECTOR, PEACE CORPS:

WE REFER TO YOUR LETTER OF MAY 12, 1964, CONCERNING CERTAIN EMPLOYEES OF THE PEACE CORPS WHO UPON APPOINTMENT TO THE POSITIONS UNDER THE CLASSIFICATION ACT OF 1949, AS AMENDED, WERE PAID AT RATES OF COMPENSATION ABOVE THE MINIMUM RATES OF THE GRADES TO WHICH THEY WERE APPOINTED IN VIOLATION OF SECTION 801 OF THAT ACT, 63 STAT. 969, 5 U.S.C. 1131, AS INTERPRETED IN OUR DECISIONS 30 COMP. GEN. 375 (1951) AND 42 COMP. GEN. 114 (1962).

SECTION 810 OF THE CLASSIFICATION ACT OF 1949, PROVIDES THAT ALL NEW APPOINTMENTS MUST BE MADE AT THE MINIMUM PAY RATE OF THE APPROPRIATE GRADE. SECTION 802 OF THAT ACT PROVIDES THAT THE CIVIL SERVICE COMMISSION SHALL PROVIDE BY REGULATION FOR THE RATE OF COMPENSATION TO BE PAID WHEN AN EMPLOYEE'S POSITION OR STATUS IS CHANGED SUBSEQUENT TO HIS FIRST APPOINTMENT. IN 30 COMP. GEN. 375 AND AGAIN IN 42 COMP. GEN. 114 WE HELD THAT EMPLOYMENT AS AN EXPERT OR CONSULTANT UNDER THE AUTHORITY OF SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946, APPROVED AUGUST 2, 1946, CH. 744, 60 STAT. 810, 5 U.S.C. 55A, DID NOT CONSTITUTE A PREVIOUS APPOINTMENT WARRANTING AN EXCEPTION TO THE REQUIREMENT OF SECTION 801 OF THE CLASSIFICATION ACT OF 1949 THAT NEW APPOINTMENTS BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE.

TWENTY-SEVEN PRESENT AND PAST EMPLOYEES OF THE PEACE CORPS WHO WERE ORIGINALLY EMPLOYED AS EXPERTS OR CONSULTANTS UNDER SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 AS AUTHORIZED BY SECTION 13 (A) OF THE PEACE CORPS ACT, APPROVED SEPTEMBER 22, 1961, PUB.L. 87-293, 75 STAT. 619, 22 U.S.C. 2512 (A), WHICH SECTION PROVIDES THAT "CONTRACTS FOR SUCH EMPLOYMENT MAY BE RENEWED ANNUALLY," WERE LATER APPOINTED TO CLASSIFICATION ACT POSITIONS AND ALLOWED COMPENSATION AT RATES ABOVE THE MINIMUM OF THE APPROPRIATE GRADE ON THE BASIS OF THE HIGHER RATES OF PAY THEY HAD RECEIVED UNDER THEIR APPOINTMENTS AS EXPERTS OR CONSULTANTS. THE APPROXIMATE LENGTH OF FULL TIME SERVICE AS AN EXPERT OR CONSULTANT IN ALL CASES EXCEPT ONE--- FOR 13 MONTHS--- WAS LESS THAN ONE YEAR. THE APPOINTMENTS TO THE CLASSIFICATION ACT POSITIONS WERE MADE BETWEEN JANUARY 7, 1962, AND OCTOBER 13, 1963.

IT APPEARS THAT UNTIL THE ISSUANCE OF OUR DECISION 42 COMP. GEN. 114 ON AUGUST 16, 1962, BOTH YOUR OFFICE AND THE CIVIL SERVICE COMMISSION WERE OF THE OPINION THAT A RATE OF COMPENSATION PREVIOUSLY EARNED BY AN APPOINTEE AS AN EXPERT OR CONSULTANT EMPLOYED UNDER SECTION 15 OF THE ADMINISTRATIVE EXPENSES ACT OF 1946 COULD BE USED TO JUSTIFY ALLOWING SUCH APPOINTEE COMPENSATION ABOVE THE MINIMUM RATE OF THE GRADE TO WHICH HE WAS APPOINTED IF HIS SERVICE AS AN EXPERT OR CONSULTANT MET THE REGULAR TOUR OF DUTY AND 90-DAY SERVICE REQUIREMENTS OF SECTION 25.103 (C) OF THE CIVIL SERVICE REGULATIONS THEN IN FORCE. FURTHERMORE, YOUR GENERAL COUNSEL IN HIS MEMORANDUM OF MAY 8, 1964, WHICH YOU ATTACHED TO YOUR LETTER, INDICATES THAT YOUR AGENCY DID NOT KNOW OF THE ISSUANCE OF OUR DECISION 42 COMP. GEN. 114 UNTIL OCTOBER 1963 AT WHICH TIME THE CIVIL SERVICE COMMISSION INDICATED THAT IT WOULD AMEND ITS REGULATIONS TO REFLECT THE HOLDING IN THAT CASE.

IT APPEARS THAT YOUR AGENCY RELIED UPON THE REGULATIONS OF THE CIVIL SERVICE COMMISSION AND UPON INFORMAL ADVICE FROM THEM IN ALLOWING THE EMPLOYEES CONCERNED RATES OF COMPENSATION ABOVE THE MINIMUM OF THE CIVIL SERVICE GRADES TO WHICH THEY WERE APPOINTED. IT ALSO APPEARS THAT THE CIVIL SERVICE COMMISSION WHICH IS CHARGED WITH THE RESPONSIBILITY OF ISSUING REGULATIONS GOVERNING THE RATE OF PAY TO BE ALLOWED EMPLOYEES UPON REAPPOINTMENT OR UPON CHANGE IN APPOINTMENT DID NOT CONSIDER OUR DECISION 30 COMP. GEN. 375 AS PRECLUDING THE CONSIDERATIONS OF RATES OF PAY EARNED UNDER EXPERT OR CONSULTANT APPOINTMENTS PROVIDED SUCH SERVICE WAS OTHERWISE CREDITABLE UNDER THEIR REGULATIONS.

IN VIEW OF THE CONFUSION WHICH EXISTED WITH REGARD TO COMPENSATION WHICH COULD BE ALLOWED THE EMPLOYEES HERE INVOLVED WE WILL NOT REQUIRE COLLECTION OF OVERPAYMENTS MADE FOR ANY PAY PERIOD BEGINNING PRIOR TO THIS DATE. HOWEVER, CORRECTIVE ACTION SHOULD BE TAKEN PROSPECTIVELY FROM THE BEGINNING OF THE PAY PERIOD FOLLOWING THIS DECISION IN ALL APPLICABLE CASES.