B-15676, MARCH 31, 1941, 20 COMP. GEN. 579

B-15676: Mar 31, 1941

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

COMPENSATION - ADJUSTMENT - TRANSFER FROM HIGHER TO LOWER GRADE WHERE AN EMPLOYEE IS TRANSFERRED FROM A HIGHER TO A LOWER GRADE INCIDENT TO AN ADMINISTRATIVE ADJUSTMENT OF PERSONNEL. THERE IS NO SALARY RATE IN THE LOWER GRADE IDENTICAL WITH THE RATE RECEIVED IN THE HIGHER GRADE. 1941: I HAVE YOUR LETTER OF MARCH 18. AS FOLLOWS: IN AN EFFORT TO MAKE A PERSONNEL ADJUSTMENT FOR THE BENEFIT OF THE SERVICE THERE WAS APPROVED THE TRANSFER OF MR. ALTHOUGH POSITIONS IN CIVILIAN CONSERVATION CORPS CAMPS ARE NOT SUBJECT TO CIVIL-SERVICE REGULATIONS. PROVIDED THERE IS SUCH A RATE WITHIN THE LOWER GRADE. OR SHOULD HE BE PAID THE MINIMUM OF THE GRADE TO WHICH THE LOWER POSITION IS ALLOCATED? IT THUS APPEARS THAT A TRANSFER FROM A POSITION IN ONE GRADE TO ANOTHER POSITION IN THE SAME GRADE IN ANOTHER OFFICE AT A HIGHER RATE OF COMPENSATION IS NOT AUTHORIZED.

B-15676, MARCH 31, 1941, 20 COMP. GEN. 579

COMPENSATION - ADJUSTMENT - TRANSFER FROM HIGHER TO LOWER GRADE WHERE AN EMPLOYEE IS TRANSFERRED FROM A HIGHER TO A LOWER GRADE INCIDENT TO AN ADMINISTRATIVE ADJUSTMENT OF PERSONNEL, AND THERE IS NO SALARY RATE IN THE LOWER GRADE IDENTICAL WITH THE RATE RECEIVED IN THE HIGHER GRADE, THE INITIAL SALARY RATE IN THE LOWER GRADE MAY BE FIXED AT THE RATE PRESCRIBED BY THE CLASSIFICATION ACT NEXT ABOVE THAT RECEIVED IN THE HIGHER GRADE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE INTERIOR, MARCH 31, 1941:

I HAVE YOUR LETTER OF MARCH 18, 1941, AS FOLLOWS:

IN AN EFFORT TO MAKE A PERSONNEL ADJUSTMENT FOR THE BENEFIT OF THE SERVICE THERE WAS APPROVED THE TRANSFER OF MR. CLARENCE R. DAVIS FROM SENIOR FOREMAN (ARCHITECT), FCS-9, $2,000 PER ANNUM, ST. ALBANS BAY STATE FOREST PARK CIVILIAN CONSERVATION CORPS CAMP SP-8, VERMONT, TO A NEW POSITION AS FOREMAN, FCS-8, $2,040 PER ANNUM, AT THE OKEMO MOUNTAIN STATE FOREST PARK CAMP SP-6, VERMONT. ALTHOUGH POSITIONS IN CIVILIAN CONSERVATION CORPS CAMPS ARE NOT SUBJECT TO CIVIL-SERVICE REGULATIONS, IT HAS BEEN THE POLICY OF THIS DEPARTMENT TO APPLY, INSOFAR AS POSSIBLE, REGULATIONS GOVERNING CIVIL-SERVICE ACTIVITIES IN THE HANDLING OF NON- CIVIL-SERVICE PERSONNEL ACTIONS.

THE FINANCE OFFICER HAS TAKEN EXCEPTION TO THE SALARY RATE OF $2,040 PER ANNUM IN THE POSITION TO WHICH MR. DAVIS HAS BEEN TRANSFERRED AND HAS BASED HIS ACTION ON THE ANSWER CONTAINED IN 3 COMP. GEN. 1001 TO THE FOLLOWING QUESTION REGARDING SECTION 10 OF THE CLASSIFICATION ACT OF 1923:

" IN THE EVENT OF THE TRANSFER OF AN EMPLOYEE FROM ONE OFFICE OR BUREAU TO A VACANT POSITION IN A LOWER GRADE IN ANOTHER OFFICE OR BUREAU IN THE SAME DEPARTMENT, SHOULD THE EMPLOYEE RECEIVE IN HIS NEW POSITION THE SAME SALARY THAT HE RECEIVED IN HIS FORMER POSITION, PROVIDED THERE IS SUCH A RATE WITHIN THE LOWER GRADE, OR SHOULD HE BE PAID THE MINIMUM OF THE GRADE TO WHICH THE LOWER POSITION IS ALLOCATED?

THE ANSWER GIVEN IN THE ABOVE-REFERRED-TO DECISION TO THIS QUESTION READS AS FOLLOWS:

" UNDER THIS PROVISION AN EMPLOYEE MAY BE TRANSFERRED FROM A POSITION IN ONE GRADE TO A VACANT POSITION WITHIN THE SAME GRADE "AT THE SAME RATE OF COMPENSATION" OR PROMOTED TO A VACANT POSITION IN A HIGHER GRADE AT A HIGHER RATE OF COMPENSATION. IT THUS APPEARS THAT A TRANSFER FROM A POSITION IN ONE GRADE TO ANOTHER POSITION IN THE SAME GRADE IN ANOTHER OFFICE AT A HIGHER RATE OF COMPENSATION IS NOT AUTHORIZED. THEREFORE, AN EMPLOYEE TRANSFERRED FROM ONE GRADE TO A LOWER GRADE CAN BE TRANSFERRED TO POSITION IN WHICH THERE IS A VACANCY IN THE GRADE TO WHICH TRANSFERRED AT A SALARY NOT IN EXCESS OF THE SALARY OF THE POSITION FROM WHICH TRANSFERRED, ASSUMING, OF COURSE, THAT THE TRANSFER IS AUTHORIZED UNDER THE PROVISIONS OF THE CLASSIFICATION ACT AND THE CIVIL SERVICE ACTS, AND THE REGULATIONS MADE IN PURSUANCE THEREOF.'

THE FINANCE OFFICER HAS ALSO REFERRED TO 15 COMP. GEN. 102 TO SUPPORT HIS CONTENTION THAT MR. DAVIS' SALARY RATE, UPON TRANSFER TO THE FCS-8 GRADE POSITION, SHOULD NOT BE IN EXCESS OF $1,980 PER ANNUM. HOWEVER, THIS DECISION APPEARS TO REFUTE THE FINANCE OFFICER'S CONTENTION SINCE MR. DAVIS' SALARY IN THE FCS-9 POSITION WAS NOT IN EXCESS OF THE MAXIMUM RATE ESTABLISHED FOR GRADE FCS-8 POSITIONS. ATTACHED IS A TABLE SHOWING RATES AND GRADES IN EFFECT IN THE FIELD SERVICE OF THIS DEPARTMENT, AND A COMPARISON WITH CLASSIFICATION ACT GRADES IN EFFECT IN THE DISTRICT OF COLUMBIA.

THE RATE OF $2,040 PER ANNUM IN THE FCS-8 GRADE WAS SELECTED, AS $2,000 IS NOT A STEP WITHIN THIS GRADE, AND IN ORDER TO PRECLUDE ANY HARDSHIP BY EFFECTING A DECREASE IN MR. DAVIS' COMPENSATION TO THE NEXT STEP WITHIN THE GRADE BELOW THE SALARY RECEIVED IN THE HIGHER GRADE POSITION. THIS ACTION APPEARS TO BE SUPPORTED BY THE GENERAL PRINCIPLE ANNOUNCED IN 8 COMP. GEN. 393, AND CITED IN 8 COMP. GEN. 400 IN CONNECTION WITH A SIMILAR CASE, AS FOLLOWS:

" WHEN A NEW POSITION IS CREATED BY AN ADMINISTRATIVE OFFICE AND FINALLY ALLOCATED AS PROVIDED BY LAW, THE ADMINISTRATIVE OFFICE MAY TRANSFER TO THE NEW POSITION AN EMPLOYEE FROM A LOWER OR HIGHER GRADE WITHOUT REDUCTION IN SALARY, PROVIDED THERE IS A SALARY RATE IN THE GRADE TO WHICH TRANSFERRED EQUAL TO OR GREATER THAN THE SALARY RATE BEING RECEIVED AT THE TIME OF SUCH TRANSFER.'

YOUR DECISION IS REQUESTED AS TO WHETHER MR. DAVIS MAY BE TRANSFERRED TO THIS NEW POSITION AND PAID AT THE RATE OF $2,040 PER ANNUM.

RELATIVE TO THE MATTER IN THE LAST SENTENCE OF THE FIRST PARAGRAPH OF YOUR LETTER, IT MAY BE STATED THAT EXEMPTION OF EMPLOYEES FROM THE TERMS OF THE CIVIL-SERVICE LAWS AND REGULATIONS DOES NOT EXEMPT THE FIXING OF THEIR SALARIES FROM THE TERMS OF THE CLASSIFICATION ACT, AS AMENDED. SEE DECISION OF JANUARY 19, 1938, 17 COMP. GEN. 578, WHICH HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE CIVIL-SERVICE LAWS AND REGULATIONS, RELATING TO APPOINTMENTS, AND THE CLASSIFICATION ACT OF 1923, RELATING TO THE FIXING OF SALARY RATES, ARE SEPARATE AND DISTINCT STATUTES WITH ENTIRELY DIFFERENT SCOPES AND PURPOSES.

THE CIVILIAN CONSERVATION CORPS CREATED BY ACT JUNE 28, 1937, 50 STAT. 319, BEING A DEPARTMENT" AND ITS CIVILIAN PERSONNEL BEING "EMPLOYEES" OCCUPYING "POSITIONS" WITHIN THE MEANING OF THOSE TERMS AS DEFINED IN THE CLASSIFICATION ACT OF 1923, SUCH PERSONNEL--- BOTH IN THE DEPARTMENTAL AND FIELD SERVICES--- AS DISTINGUISHED FROM ENROLLEES AND MILITARY PERSONNEL ASSIGNED TO DUTY WITH THE CORPS, ARE WITHIN THE PURVIEW OF THE CLASSIFICATION ACT, AS AMENDED, AND THEIR SALARIES SHOULD BE ADJUSTED ACCORDINGLY, NOTWITHSTANDING THE ACT OF JUNE 28, 1937, SUPRA, PROVIDES FOR THEIR APPOINTMENT "WITHOUT REGARD TO THE CIVIL-SERVICE LAWS AND REGULATIONS.' SEE ALSO 19 COMP. GEN. 20; ID. 160.

SECTION 10 OF THE ORIGINAL CLASSIFICATION ACT OF 1923, APPROVED MARCH 4, 1923, 42 STAT. 1491--- WHICH SECTION HAS NOT BEEN AMENDED--- PROVIDES:

THAT, SUBJECT TO SUCH RULES AND REGULATIONS AS THE PRESIDENT MAY FROM TIME TO TIME PRESCRIBE, AND REGARDLESS OF THE DEPARTMENT OR INDEPENDENT ESTABLISHMENT IN WHICH THE POSITION IS LOCATED, AN EMPLOYEE MAY BE TRANSFERRED FROM A POSITION IN ONE GRADE TO A VACANT POSITION WITHIN THE SAME GRADE AT THE SAME RATE OF COMPENSATION, OR PROMOTED TO A VACANT POSITION IN A HIGHER GRADE AT A HIGHER RATE OF COMPENSATION, IN ACCORDANCE WITH CIVIL-SERVICE RULES, ANY PROVISION OF EXISTING STATUTES TO THE CONTRARY NOTWITHSTANDING: PROVIDED, THAT NOTHING HEREIN SHALL BE CONSTRUED TO AUTHORIZE OR PERMIT THE TRANSFER OF AN EMPLOYEE OF THE UNITED STATES TO A POSITION UNDER THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, OR AN EMPLOYEE OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA TO A POSITION UNDER THE UNITED STATES.

WHEN ENACTED, THIS SECTION, AS WELL AS THE PROVISIONS OF THE ENTIRE STATUTE, WAS LIMITED TO THE DEPARTMENTAL SERVICE. HOWEVER, THE MANDATORY PROVISIONS OF SECTION 2 OF THE BROOKHART SALARY ACT OF JULY 3, 1930, 46 STAT. 1005, HAD THE EFFECT OF EXTENDING TO THE FIELD SERVICE THE PROVISIONS OF THE CLASSIFICATION ACT CONTROLLING THE FIXING OF SALARY RATES IN THE DEPARTMENTAL SERVICE. 11 COMP. GEN. 177; ID. 211; ID. 259; 14 ID. 183; ID. 392; 15 ID. 128; 19 ID. 887.

THEREFORE, THE GENERAL RULE STATED IN THE DECISION OF JUNE 26, 1924, 3 COMP. GEN. 1001, 1006, QUOTED IN YOUR LETTER, AS SUBSEQUENTLY MODIFIED, IS APPLICABLE IN FIXING THE INITIAL SALARY RATES UPON TRANSFER OF FIELD EMPLOYEES FROM A HIGHER TO A LOWER GRADE. SAID RULE, IN EFFECT, WAS MODIFIED BY THE RULE STATED IN THE DECISION OF JANUARY 24, 1929, 8 COMP. GEN. 393, THE LAST PARAGRAPH OF WHICH IS QUOTED IN THE PENULTIMATE PARAGRAPH OF YOUR LETTER. ON THE BASIS OF SUCH MODIFICATION, AND IN LINE WITH OTHER DECISIONS HOLDING THAT LOSS OF SALARY UPON PERSONAL ADJUSTMENT IS NOT NECESSARILY REQUIRED, IT APPEARS PROPER TO HOLD THAT WHERE THERE IS NO ADMINISTRATIVE PURPOSE TO REDUCE THE SALARY OF AN EMPLOYEE FOR INEFFICIENCY OR DISCIPLINE, BUT THERE IS INVOLVED SOLELY AN ADMINISTRATIVE ADJUSTMENT OF PERSONNEL, AND THERE IS NO SALARY RATE IN THE LOWER GRADE IDENTICAL WITH THE SALARY RATE RECEIVED IN THE HIGHER GRADE, THE INITIAL SALARY RATE OF AN EMPLOYEE TRANSFERRED FROM A HIGHER TO A LOWER GRADE MAY BE FIXED IN THE LOWER GRADE AT THE RATE PRESCRIBED BY THE CLASSIFICATION ACT NEXT ABOVE THAT RECEIVED IN THE HIGHER GRADE. COMPARE 19 COMP. GEN. 763; 20 ID. 17.

THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER IS ANSWERED IN THE AFFIRMATIVE.