B-155068, SEPTEMBER 24, 1964, 44 COMP. GEN. 171

B-155068, SEPTEMBER 24, 1964, 44 COMP. GEN. 171

COMPENSATION - DOWNGRADING - DURING RETROACTIVE PERIOD OF SALARY INCREASE ACT AN EMPLOYEE WHO UPON BEING DOWNGRADED AT HIS OWN REQUEST FROM GS-16, STEP 4, AT $17,500 PER ANNUM TO GS-15 PRIOR TO THE ENACTMENT OF THE GOVERNMENT EMPLOYEES SALARY REFORM ACT OF 1964, APPROVED AUGUST 14, 1964, IS PLACED IN STEP 5, GS-15, AT $17,725 PER ANNUM, THE $17,500 RATE FALLING BETWEEN STEPS 4 AND 5 OF GS-15, IS ENTITLED TO A SALARY ADJUSTMENT AS THOUGH HE ACTUALLY HAD BEEN IN GRADE GS-16, STEP 4, ON JULY 5, 1964, THE FIRST DAY OF THE FIRST PAY PERIOD PRESCRIBED BY THE ACT, AND IN RECEIPT OF $20,900 PER ANNUM AT THE TIME OF DOWNGRADING, AND ALTHOUGH THE ACT IS SILENT AS TO DOWNGRADING OR DEMOTION ACTIONS OCCURRING DURING THE RETROACTIVE PERIOD, THE NEW SALARY SCHEDULE IS FOR APPLICATION AND THE EMPLOYEE'S SALARY SHOULD BE ADJUSTED TO GS-16, STEP 4, AT $20,900, FROM THE EFFECTIVE DATE OF THE ACT UNTIL THE DATE OF DOWNGRADING, AND TO GS-15, STEP 9, AT $21,020 PER ANNUM THEREAFTER.

TO THE SECRETARY OF THE TREASURY, SEPTEMBER 24, 1964:

ON AUGUST 25, 1964, THE ACTING DEPUTY ASSISTANT SECRETARY FOR ADMINISTRATION, TREASURY DEPARTMENT, REQUESTED OUR OPINION CONCERNING THE CORRECT SALARY RATE PAYABLE UNDER THE GOVERNMENT EMPLOYEES SALARY REFORM ACT OF 1964, PUBLIC LAW 88-426, APPROVED AUGUST 14, 1964, 78 STAT. 400, TO MR. ELLIS R. ROGERS, DISTRICT DIRECTOR, INTERNAL REVENUE SERVICE, PROVIDENCE, RHODE ISLAND, DISTRICT.

IT APPEARS THAT PRIOR TO JULY 19, 1964, MR. ROGERS WAS SERVING AS ASSISTANT DISTRICT DIRECTOR, PHILADELPHIA, GRADE GS-16, STEP 4, AT $17,500 PER ANNUM. EFFECTIVE THAT DATE HE WAS DOWNGRADED AT HIS OWN REQUEST TO DISTRICT DIRECTOR OF THE SMALLER PROVIDENCE DISTRICT, GRADE GS-15. SINCE THE $17,500 RATE FELL BETWEEN STEPS 4 AND 5 OF GRADE GS 15, HE WAS PLACED IN STEP 5 THEREOF AT $17,725 PER ANNUM.

UNDER THE ABOVE-CITED SALARY ACT THE RATE FOR GS-16, STEP 4, WAS INCREASED TO $20,900 PER ANNUM. WITH CERTAIN EXCEPTIONS NOT PERTINENT HERE THE INCREASES GRANTED BY THE ACT WERE MADE RETROACTIVELY EFFECTIVE FROM THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGAN ON OR AFTER JULY 1, 1964, OR IN THIS CASE FROM JULY 5, 1964. THEREFORE, THE EMPLOYEE, WAS ENTITLED TO THE SALARY RATE $20,900 PER ANNUM RETROACTIVE TO JULY 5, 1964, AND IF HE HAD ACTUALLY BEEN IN RECEIPT OF SUCH SALARY RATE AT THE TIME OF THE DOWNGRADING, IT IS STATED THAT HE WOULD HAVE BEEN PLACED IN STEP 9 OF GRADE GS-15 AT $21,020 PER ANNUM.

THE ACTING DEPUTY ASSISTANT SECRETARY REFERS TO SECTION 102 (B) (6) OF THE ACT, 78 STAT. 401, WHICH PROVIDES THAT THE COMPENSATION OF A CLASSIFICATION ACT EMPLOYEE WHO, BETWEEN THE EFFECTIVE DATE AND THE DATE OF ENACTMENT THEREOF, WAS PROMOTED FROM ONE GRADE TO ANOTHER GRADE AT A SALARY RATE IN EXCESS OF THE MINIMUM RATE FOR THE NEW GRADE SHALL BE ADJUSTED FROM THE EFFECTIVE DATE OF THE ACT TO THE DATE OF SUCH PROMOTION ON THE BASIS OF THE SALARY HE ACTUALLY WAS RECEIVING BEFORE SUCH PROMOTION AND THEREAFTER ON THE BASIS OF THE NUMERICAL STEP OF THE HIGHER GRADE IN WHICH HE WAS PLACED AT THE TIME OF THE PROMOTION. THUS, IN THE CASE OF A PROMOTION ABOVE THE MINIMUM OF THE GRADE NO ADJUSTMENT IS PERMITTED WHICH WOULD PLACE AN EMPLOYEE IN A DIFFERENT STEP OF THE GRADE WHEN PROMOTED DURING THE RETROACTIVE PERIOD OF THE SALARY INCREASE LAW. HOWEVER, THE ACT IS SILENT AS TO DOWNGRADING OR DEMOTION ACTIONS OCCURRING DURING THE RETROACTIVE PERIOD. OUR DECISIONS CONCERNING THE RETROACTIVE PROVISIONS OF SALARY INCREASE ACTS HAVE CONSISTENTLY REQUIRED--- IN THE ABSENCE OF SPECIFIC LANGUAGE TO THE CONTRARY--- THAT SUCH ACTS BE APPLIED TO REFLECT THE SALARY STATUS OF EACH EMPLOYEE UNDER THE INCREASED RATES AS IF SUCH RATES HAD BEEN IN FORCE AND EFFECT AT THE TIME OF THE CHANGE IN HIS STATUS. 31 COMP. GEN. 166, 320; 38 ID. 188. HENCE, WE ARE IN AGREEMENT WITH THE CONCLUSION EXPRESSED IN THE LETTER OF AUGUST 25, 1964, THAT THE NEW SALARY SCHEDULE IS CONTROLLING IN ARRIVING AT THE EMPLOYEE'S PROPER SALARY RATE IN THIS CASE. IT FOLLOWS THAT THE SALARY OF MR. ROGERS SHOULD BE ADJUSTED TO GS-16, STEP 4, AT $20,900 FROM THE EFFECTIVE DATE OF THE ACT UNTIL THE DATE OF DOWNGRADING AND TO GS-15, STEP 9, AT $21,020 THEREAFTER.