B-15940, APRIL 11, 1941, 20 COMP. GEN. 626

B-15940, APRIL 11, 1941, 20 COMP. GEN. 626

APPOINTMENTS - EXCESS OF GRADE MINIMUM - TRANSFER TO NATIONAL DEFENSE POSITION THE RULE THAT TRANSFERS, REAPPOINTMENTS, OR REINSTATEMENTS NEED NOT BE REGARDED AS NEW APPOINTMENTS WITHIN THE MEANING OF RULE 6, SECTION 6, OF THE CLASSIFICATION ACT OF 1923, WHICH PROVIDES THAT "ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS," IS APPLICABLE TO A TRANSFER OR REAPPOINTMENT TO A NATIONAL DEFENSE POSITION IN ACCORDANCE WITH THE TERMS OF EXECUTIVE ORDER NO. 8458, DATED JUNE 27, 1940.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, APRIL 11, 1941:

I HAVE YOUR LETTER OF APRIL 3, 1941, AS FOLLOWS:

THE DEPARTMENT HAS RECENTLY APPOINTED A PERSON IN GRADE CAF-11 AT $4,000 PER ANNUM, UNDER THE PROVISIONS OF EXECUTIVE ORDER NO. 8458 OF JUNE 27, 194O. THE PERSON WAS PREVIOUSLY EMPLOYED IN THE PUBLIC WORKS ADMINISTRATION AT A SALARY OF $4,000 PER ANNUM, AND THERE WAS NO BREAK IN SERVICE BETWEEN HIS TERMINATION WITH THE PUBLIC WORKS ADMINISTRATION AND HIS APPOINTMENT IN THE DEPARTMENT.

AN OPINION IS REQUESTED AS TO WHETHER OR NOT THE DEPARTMENT MAY LEGALLY PAY THE PERSON AT THE RATE OF $4,000 PER ANNUM, WHICH IS ABOVE THE ENTRANCE RATE OF THE GRADE.

EXECUTIVE ORDER NO. 8458, DATED JUNE 27, 1940, AS AMENDED BY EXECUTIVE ORDER NO. 8532, DATED SEPTEMBER 4, 1940, READS AS FOLLOWS:

1. THE CIVIL SERVICE COMMISSION SHALL ESTABLISH A REPLACEMENT LIST OF EMPLOYEES WHO DO NOT POSSESS A COMPETITIVE CIVIL-SERVICE STATUS, WHO HAVE BEEN INVOLUNTARILY SEPARATED FROM THE FEDERAL SERVICE, WITH GOOD RECORDS, ON OR AFTER JUNE 30, 1939, AND WHO HAVE HAD AT LEAST SIX MONTHS OF GOVERNMENT SERVICE IMMEDIATELY PRIOR TO SEPARATION; SUCH LIST TO BE USED FOR TEMPORARY APPOINTMENTS TO NATIONAL-DEFENSE POSITIONS FOR TERMS NOT EXTENDING BEYOND THE DURATION OF THE NATIONAL-DEFENSE PROGRAM.

2. THE COMMISSION SHALL DETERMINE WHAT POSITIONS ARE NATIONAL DEFENSE POSITIONS, AND SHALL PRESCRIBE SUCH REGULATIONS AS MAY BE NECESSARY TO EFFECTUATE THE PROVISIONS OF THIS ORDER. SUCH REGULATIONS SHALL, AMONG OTHER THINGS (A) PRESCRIBE THE CONDITIONS OF ENTRY ON SUCH LIST, INCLUDING THE PASSING OF NONCOMPETITIVE TESTS OF FITNESS AND CHARACTER INVESTIGATIONS; (B) FORMULATE THE PLAN BY WHICH CERTIFICATIONS FROM SUCH LIST ARE TO BE MADE; AND (C) PROVIDE OPPORTUNITY FOR THE USE OF SUCH LIST IN THEIR DISCRETION BY AGENCIES HAVING NATIONAL-DEFENSE POSITIONS.

3. PERSONS APPOINTED FROM SUCH LIST SHALL NOT ACQUIRE A COMPETITIVE CIVIL -SERVICE STATUS BY VIRTUE OF SUCH APPOINTMENT.

THIS OFFICE HAS HELD IN A NUMBER OF DECISIONS THAT TRANSFERS, REAPPOINTMENTS, OR REINSTATEMENTS IN THE SAME OR DIFFERENT DEPARTMENTS OR ESTABLISHMENT OF THE GOVERNMENT NEED NOT BE REGARDED AS NEW APPOINTMENTS WITHIN THE MEANING OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1490, WHICH PROVIDES THAT "ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF," THE EFFECT BEING THAT LOSS OF SALARY IS NOT NECESSARILY REQUIRED UPON PERSONNEL ADJUSTMENTS EITHER IN THE SAME OR DIFFERENT DEPARTMENTS OR ESTABLISHMENTS OF THE GOVERNMENT. AN EXCEPTION TO THIS RULE HAS BEEN RECOGNIZED WHERE AN EMPLOYEE GOES FROM A POSITION NOT SUBJECT TO THE AVERAGE PROVISION TO A POSITION SUBJECT TO THE AVERAGE PROVISION, IN WHICH EVENT THE EMPLOYEE MAY NOT BE PAID AT A RATE ABOVE THE MINIMUM SALARY RATE OF HIS GRADE WHICH WOULD CAUSE THE AVERAGE TO BE EXCEEDED, OR IF ALREADY EXCEEDED, WHICH WOULD CAUSE THE AVERAGE TO BE EXCEEDED TO A GREATER EXTENT. SEE 9 COMP. GEN. 80; 13 ID. 222; 15 ID. 102; 17 ID. 1061; 19 ID. 20; ID. 763; 20 ID. 17; ID. 318; DECISION OF MARCH 31, 1941, B-15676, 20 COMP. GEN. 579.

THERE APPEARS NOTHING IN EXECUTIVE ORDER NO. 8458, AS AMENDED, TO PRECLUDE APPLICATION OF THIS GENERAL RULE IN THE INSTANT CASE--- THE TERMS OF SECTION 2 OF THE EXECUTIVE ORDER NOT VESTING IN THE CIVIL SERVICE COMMISSION ANY AUTHORITY TO PROVIDE ANY CONDITION AS TO THE INITIAL SALARY RATE UPON REAPPOINTMENT UNDER THE TERMS OF THE ORDER.

YOU ARE ADVISED, THEREFORE, THAT, UNDER THE GENERAL RULE ABOVE STATED, THE EMPLOYEE LEGALLY MAY BE PAID THE INITIAL SALARY RATE OF $4,000 PER ANNUM IN GRADE CAF-11, IF SUCH PAYMENT IS NOT PRECLUDED BY THE AVERAGE PROVISION.