B-167005, JUN. 27, 1969, 48 COMP. GEN. 805

B-167005: Jun 27, 1969

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BOTH ACTIONS BEING PRESIDENTIAL THEY ARE OUTSIDE THE SCOPE OF 5 U.S.C. 5334 (D). AUTHORIZING SALARY RETENTION FOR EMPLOYEES WHO TOGETHER WITH THEIR POSITIONS ARE BROUGHT UNDER THE CLASSIFICATION ACT FROM SOME OTHER FEDERAL PAY SYSTEM. EVEN IF NO CHANGE OF POSITION IS CONSIDERED TO HAVE OCCURRED INCIDENT TO THE PRESIDENTIAL ACTIONS. THE SITUATION WOULD BE WITHIN THE PURVIEW OF SECTION 539.203 OF THE CIVIL SERVICE REGULATIONS LIMITING THE APPLICATION OF 5 U.S.C. 5334 (D) TO THE CASE WHERE "THE EMPLOYEE AND HIS POSITION ARE INITIALLY BROUGHT UNDER THE GENERAL SCHEDULE. WAS ORIGINALLY ESTABLISHED AND CLASSIFIED IN GRADE GS-16 ON MARCH 9. AS A RESULT OF SUBSTANTIAL EXPANSIONS IN THE PRESIDENTIAL LIBRARY SYSTEM THAT POSITION WAS RECLASSIFIED TO GRADE GS-17 ON JUNE 28.

B-167005, JUN. 27, 1969, 48 COMP. GEN. 805

COMPENSATION--DOWNGRADING--SAVED COMPENSATION--CONVERSION OF POSITIONS BETWEEN EXECUTIVE AND GENERAL SCHEDULES UPON REMOVAL OF THE LEVEL V POSITION OF ASSISTANT ARCHIVIST FOR PRESIDENTIAL LIBRARIES FROM THE EXECUTIVE SCHEDULE AND RETURN OF THE POSITION TO ITS FORMER GS-17 CLASSIFICATION UNDER THE GENERAL SCHEDULE, THE HIGHER COMPENSATION OF THE LEVEL V POSITION MAY NOT BE SAVED TO THE INCUMBENT, BOTH ACTIONS BEING PRESIDENTIAL THEY ARE OUTSIDE THE SCOPE OF 5 U.S.C. 5334 (D), AUTHORIZING SALARY RETENTION FOR EMPLOYEES WHO TOGETHER WITH THEIR POSITIONS ARE BROUGHT UNDER THE CLASSIFICATION ACT FROM SOME OTHER FEDERAL PAY SYSTEM. EVEN IF NO CHANGE OF POSITION IS CONSIDERED TO HAVE OCCURRED INCIDENT TO THE PRESIDENTIAL ACTIONS, THE SITUATION WOULD BE WITHIN THE PURVIEW OF SECTION 539.203 OF THE CIVIL SERVICE REGULATIONS LIMITING THE APPLICATION OF 5 U.S.C. 5334 (D) TO THE CASE WHERE "THE EMPLOYEE AND HIS POSITION ARE INITIALLY BROUGHT UNDER THE GENERAL SCHEDULE.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 27, 1969:

YOUR LETTER OF MAY 16, 1969, ENCLOSES A COPY OF A LETTER FROM THE DIRECTOR OF PERSONNEL, GENERAL SERVICES ADMINISTRATION, SHOWING THAT THE POSITION OF ASSISTANT ARCHIVIST FOR PRESIDENTIAL LIBRARIES, WAS ORIGINALLY ESTABLISHED AND CLASSIFIED IN GRADE GS-16 ON MARCH 9, 1964; AS A RESULT OF SUBSTANTIAL EXPANSIONS IN THE PRESIDENTIAL LIBRARY SYSTEM THAT POSITION WAS RECLASSIFIED TO GRADE GS-17 ON JUNE 28, 1968, AND THE PRESENT INCUMBENT WAS APPOINTED THERETO AUGUST 11, 1968. FURTHER, THE RECORD SHOWS THAT BY EXECUTIVE ORDER NO. 11441, DECEMBER 23, 1968, THE POSITION WAS PLACED IN LEVEL V OF THE EXECUTIVE SCHEDULE; THE POSITION REMAINED IN THE COMPETITIVE SERVICE AND THE PRESENT INCUMBENT CONTINUED TO OCCUPY IT AS A CAREER EMPLOYEE. WE UNDERSTAND THAT A PROPOSAL IS PENDING TO REMOVE THE POSITION FROM THE EXECUTIVE SCHEDULE BY THE ISSUANCE OF AN EXECUTIVE ORDER AND HAVE THE POSITION PLACED IN ITS FORMER CLASSIFICATION BY THE COMMISSION UNDER THE GENERAL SCHEDULE, I.E; GRADE GS-17. THE CURRENT LEVEL V RATE IS SHOWN TO BE $36,000 PER ANNUM.

THE QUESTION PRESENTED IS WHETHER THE PERTINENT PROVISIONS OF 5 U.S.C. 5334 (D) AND SECTION 539.203 OF THE CIVIL SERVICE REGULATIONS WOULD BE FOR APPLICATION IF THE PRESENT INCUMBENT AND HIS POSITION ARE AGAIN PLACED IN GRADE GS-17, THUS SAVING TO HIM THE $36,000 PER ANNUM SALARY.

5 U.S.C. 5334 (D) READS AS FOLLOWS:

THE COMMISSION MAY PRESCRIBE REGULATIONS GOVERNING THE RETENTION OF THE RATE OF BASIC PAY OF AN EMPLOYEE WHO TOGETHER WITH HIS POSITION IS BROUGHT UNDER THIS SUBCHAPTER AND CHAPTER 51 OF THIS TITLE. IF AN EMPLOYEE SO ENTITLED TO A RETAINED RATE UNDER THESE REGULATIONS IS LATER DEMOTED TO A POSITION UNDER THIS SUBCHAPTER AND CHAPTER 51 OF THIS TITLE, HIS RATE OF BASIC PAY IS DETERMINED UNDER SECTION 5337 OF THIS TITLE. HOWEVER, FOR THE PURPOSE OF SECTION 5337 OF THIS TITLE, SERVICE IN THE POSITION WHICH WAS BROUGHT UNDER THIS SUBCHAPTER AND CHAPTER 51 OF THIS TITLE IS DEEMED SERVICE UNDER THIS SUBCHAPTER AND CHAPTER 51 OF THIS TITLE.

SECTION 539.203 ISSUED PURSUANT TO THE FOREGOING PROVISION READS, IN PERTINENT PART, AS FOLLOWS:

SEC. 539.203 RATE OF BASIC PAY IN CONVERSION ACTIONS. WHEN AN EMPLOYEE OCCUPIES A POSITION NOT SUBJECT TO THE GENERAL SCHEDULE AND THE EMPLOYEE AND HIS POSITION ARE INITIALLY BROUGHT UNDER THE GENERAL SCHEDULE PURSUANT TO A REORGANIZATION PLAN OR OTHER LEGISLATION, AN EXECUTIVE ORDER, A DECISION OF THE COMMISSION UNDER SECTION 5103 OF TITLE 5, U.S.C. OR AN ACTION BY AN AGENCY UNDER AUTHORITY OF SECTION 511.202 OF THIS CHAPTER, THE AGENCY SHALL DETERMINE THE EMPLOYEE'S RATE OF BASIC PAY AS FOLLOWS:

(D)WHEN THE EMPLOYEE IS RECEIVING A RATE OF BASIC PAY ABOVE THE MAXIMUM RATE OF THE GRADE IN WHICH HIS POSITION IS PLACED, HE IS ENTITLED TO RETAIN HIS FORMER RATE AS LONG AS HE REMAINS CONTINUOUSLY IN THE SAME POSITION OR IN A POSITION OF HIGHER GRADE IN THE SAME AGENCY, OR UNTIL HE RECEIVES A HIGHER RATE OF BASIC PAY BY OPERATION OF CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53 OF TITLE 5, UNITED STATES CODE, AND PART 531 OF THIS CHAPTER. THE EMPLOYEE MAY RETAIN HIS FORMER RATE ON SUBSEQUENT REASSIGNMENT AS DEFINED IN SECTION 531.202 (M) OF THIS CHAPTER. IF THE EMPLOYEE IS SUBSEQUENTLY DEMOTED TO A POSITION SUBJECT TO THE GENERAL SCHEDULE, THE AGENCY SHALL DETERMINE HIS RATE OF BASIC PAY IN ACCORDANCE WITH SECTION 531.203 (C) OR SUBPART E OF PART 531 OF THIS CHAPTER, AS APPROPRIATE.

THE PURPOSE OF THE LEGISLATION, I.E; SECTION 604 (B), PUBLIC LAW 87 793, APPROVED OCTOBER 11, 1962, 76 STAT. 848 (NOW CODIFIED AS 5 U.S.C. 5334 (D)), QUOTED ABOVE, WAS TO AUTHORIZE SALARY RETENTION FOR EMPLOYEES WHO, TOGETHER WITH THEIR POSITIONS, WERE BROUGHT UNDER THE GENERAL SCHEDULE THUS OVERCOMING THE DIFFICULTY PREVIOUSLY ENCOUNTERED UPON CONVERSION OF THE EMPLOYEES WITH THEIR POSITIONS TO CLASSIFICATION ACT COVERAGE. THE LEGISLATIVE HISTORY OF THE FOREGOING LEGISLATION REVEALS NUMEROUS STATEMENTS SIMILAR TO THE ONE CONTAINED IN H. REPT. NO. 2532, 87TH CONG; 2D SESS. 61, READING AS FOLLOWS:

SECTION 604 (B) ADDS A NEW SUBSECTION (D) TO SECTION 802 OF THE CLASSIFICATION ACT OF 1949. THERE IS NO PRESENT AUTHORITY FOR SAVING THE BASIC COMPENSATION OF AN EMPLOYEE WHO, TOGETHER WITH HIS POSITION, IS BROUGHT UNDER THE CLASSIFICATION ACT FROM SOME OTHER FEDERAL PAY SYSTEM (SUCH AS THE WAGE BOARD SYSTEM), IF HIS SALARY RATE IS IN EXCESS OF THE MAXIMUM RATE OF THE CLASSIFICATION GRADE IN WHICH HIS POSITION IS PLACED.

UNDER 5 U.S.C. 5317 THE PRESIDENT IS AUTHORIZED TO PLACE A LIMITED NUMBER OF POSITIONS IN LEVELS IV AND V OF THE EXECUTIVE SCHEDULE "WHEN HE CONSIDERS THAT ACTION NECESSARY TO REFLECT CHANGES IN ORGANIZATION, MANAGEMENT RESPONSIBILITIES OR WORKLOAD IN AN EXECUTIVE AGENCY." OUR OPINION IS THAT IN THE EXERCISE OF THE PRESIDENTIAL AUTHORITY A DETERMINATION OF A CHANGE IN THE RESPONSIBILITIES OR DUTIES OF A POSITION WHICH HAD BEEN PLACED IN GRADE GS-17 WOULD NECESSARILY BE INVOLVED. SIMILAR CHANGE WOULD NECESSARILY BE PRESENT UPON RETURN OF THE EMPLOYEE FROM THE EXECUTIVE SCHEDULE TO THE GENERAL SCHEDULE, GRADE GS-17. THEREFORE, WE VIEW THOSE PRESIDENTIAL ACTIONS AS BEING OUTSIDE THE SCOPE OF 5 U.S.C. 5334 (D).

ASIDE FROM THE STATUTORY RESTRICTION THE REGULATION, QUOTED ABOVE, LIMITS ITS APPLICATION TO THE CASE WHERE "THE EMPLOYEE AND HIS POSITION ARE INITIALLY BROUGHT UNDER THE GENERAL SCHEDULE." THE EMPLOYEE AND HIS POSITION IN THIS INSTANCE ORIGINALLY WERE SUBJECT TO THE GENERAL SCHEDULE AND NOW THE PROPOSAL IS TO RETURN THE EMPLOYEE AND HIS POSITION FROM THE EXECUTIVE SCHEDULE TO THE GENERAL SCHEDULE. THEREFORE, EVEN IF IT COULD BE CONCLUDED THAT NO CHANGE OF POSITION OCCURRED INCIDENT TO THE PRESIDENTIAL ACTIONS, WE DO NOT FEEL THAT THE SITUATION PRESENTED IS WITHIN THE PURVIEW OF THE REGULATION.

IN THE CIRCUMSTANCES WE FIND NO PROPER BASIS TO AUTHORIZE RETENTION TO THE EMPLOYEE OF HIS EXISTING SALARY RATE ($36,000) UNDER 5 U.S.C. 5334 (D) AND SECTION 539.203 OF THE CIVIL SERVICE REGULATIONS UPON THE RETURN OF THE EMPLOYEE TO THE POSITION UNDER THE GENERAL SCHEDULE WHICH HE OCCUPIED PRIOR TO HIS BEING PLACED IN THE POSITION IN THE EXECUTIVE SCHEDULE.