B-155641, JAN. 7, 1965

B-155641, JAN. 7, 1965

TO MR. WILLIAM AMKRAUT, AUTHORIZED CERTIFYING OFFICER, WEATHER BUREAU:

YOUR LETTER OF NOVEMBER 17, 1964, FILE ROI-3.2, REQUESTS OUR DECISION CONCERNING THE CORRECT SALARY RATE PAYABLE TO MRS. GRACE P. DALY, UPON HER REEMPLOYMENT AS CLERK-TYPIST GS-3, AT THE WEATHER BUREAU, NEW BRUNSWICK, NEW JERSEY, ON DECEMBER 27, 1962.

IT APPEARS THAT EFFECTIVE SEPTEMBER 6, 1962, MRS. DALY RECEIVED A TEMPORARY APPOINTMENT (PART TIME) NOT TO EXCEED OCTOBER 5, 1962, AT THE INITIAL STEP OF GS-3, $3,760 PER ANNUM. THE APPOINTMENT WAS EXTENDED EFFECTIVE OCTOBER 6, 1962, NOT TO EXCEED NOVEMBER 5, 1962. EFFECTIVE OCTOBER 14, 1962, SHE WAS ADVANCED TO STEP 2 OF HER GRADE AT $3,925. SUCH ADVANCEMENT WAS MADE PURSUANT TO SECTION 602 (B) (1) OF THE FEDERAL SALARY REFORM ACT OF 1962, 76 STAT. 844, 5 U.S.C. 1113 (B). THEREAFTER, EFFECTIVE NOVEMBER 6, 1962, HER APPOINTMENT AGAIN WAS EXTENDED TO DECEMBER 5, 1962, AND AT THE EXPIRATION THEREOF SHE WAS SEPARATED FROM SERVICE. HER SALARY RATE AT THE TIME OF SUCH SEPARATION WAS $3,925 PER ANNUM.

ON DECEMBER 27, 1962, MRS. DALY WAS REEMPLOYED UNDER A CAREER CONDITIONAL APPOINTMENT (PART TIME) AT GRADE GS-3 (2) " $3,925 PER ANNUM ALTHOUGH SHE HAD SERVED LESS THAN NINETY DAYS AT THAT RATE WHEN SEPARATED. YOU FEEL SINCE THE DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE POSITION TO WHICH SHE WAS APPOINTED UPON REEMPLOYMENT WERE THE SAME AS THOSE OF THE POSITION FROM WHICH SHE WAS SEPARATED SHE HAD A VESTED RIGHT TO THE SALARY RATE SHE WAS RECEIVING AT THE TIME OF SUCH SEPARATION. ALSO, YOU EXPRESS THE VIEW THAT THE REGULATIONS "PERTAINING TO THE NINETY DAY WAITING PERIOD" ARE INAPPLICABLE IN THIS CASE AND FINALLY, THAT THE ENTIRE PERIOD SHOULD BE CONSIDERED IN DETERMINING WHETHER THE EMPLOYEE QUALIFIED FOR RETAINING THE INCREASED SALARY RATE.

THE ONE STEP ADVANCEMENT WHICH THE CITED SECTION OF THE ACT PROVIDED FOR THE EMPLOYEES SPECIFIED THEREIN DID NOT CONSTITUTE AN UPGRADING OF THEIR POSITIONS UPON THE BASIS OF THE REQUIRED DUTIES AND RESPONSIBILITIES BUT WAS A MEANS OF GRANTING ADDITIONAL INCREASES IN SALARY TO THOSE EMPLOYEES WHO HELD SUCH POSITIONS ON THE DAY PRECEDING THE EFFECTIVE DATE OF THE ACT. HENCE, THE RIGHT SO GRANTED DID NOT ATTACH TO THE POSITIONS AND THE FACT THAT MRS. DALY PERFORMED THE SAME DUTIES AND HAD THE SAME RESPONSIBILITIES BOTH BEFORE AND AFTER HER SEPARATION AND REEMPLOYMENT DID NOT, OF ITSELF, ENTITLE HER TO RETAIN THE ADDITIONAL STEP GRANTED HER INCIDENT TO HER FORMER EMPLOYMENT.

THERE IS NO VESTED RIGHT IN AN EMPLOYEE UPON REEMPLOYMENT TO RECEIVE THE HIGHEST SALARY RATE PREVIOUSLY RECEIVED BY HIM. 31 COMP. GEN. 15. THE REGULATIONS OF THE CIVIL SERVICE COMMISSION PROVIDE THAT AN INDIVIDUAL WHO IS REEMPLOYED MAY, UNDER STATED CONDITIONS, BE PAID AT ANY SCHEDULED RATE FOR HIS GRADE WHICH DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE BUT THERE IS NO REQUIREMENT THAT THE EMPLOYING AGENCY DO SO. (SECTION 25.103 (C) OF THE FEDERAL EMPLOYEES PAY REGULATIONS (NOW531-6, 2-4 (A), FEDERAL PERSONNEL MANUAL) ). ONE OF THE CONDITIONS SPECIFIED IN THE REGULATIONS IN THE USE OF A HIGHEST PREVIOUS RATE IS AS FOLLOWS:

"/C) COMPUTATION OF HIGHEST PREVIOUS RATE. THE HIGHEST PREVIOUS RATE MUST BE BASED ON A REGULAR TOUR OF DUTY AT SUCH RATE * * * (2) FOR A CONTINUOUS PERIOD OF NOT LESS THAN 90 DAYS UNDER ONE OR MORE APPOINTMENTS WITHOUT A BREAK IN SERVICE. * * *"

THE QUOTED PORTION OF THE REGULATIONS CLEARLY REQUIRES NINETY DAYS OF SERVICE AT THE RATE SOUGHT TO BE ESTABLISHED AS THE PREVIOUS HIGHEST RATE. WE ARE NOT AWARE OF ANY AUTHORITY UNDER WHICH SERVICE AT A LOWER RATE MAY BE INCLUDED. SINCE AT THE TIME OF HER SEPARATION FROM SERVICE MRS. DALY HAD SERVED ONLY 52 DAYS AT THE RATE OF $3,925 PER ANNUM, THE USE THEREOF AS HER HIGHEST PREVIOUS RATE UPON HER REEMPLOYMENT WAS CONTRARY TO THE APPLICABLE REGULATIONS. IT IS ASSUMED THAT PROPER ADJUSTMENTS WILL BE MADE IN THE MATTER.