B-169257, JUL. 1, 1970

B-169257: Jul 1, 1970

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EMPLOYEE WHO WAS APPOINTED TO TEMPORARY POSITION OF PROGRAM MANAGER AT GS -15 BUT POSITION INCLUDED DUTIES OF DEPUTY DIRECTOR OF TEACHERS' CORPS FOR WHICH A STATUTORY RATE FOR GRADE GS-16 WAS PRESCRIBED UNDER 20 U.S.C. 1102 MAY BE REGARDED AS HAVING HIS SALARY FIXED WITHOUT REGARD TO THE MANDATORY REQUIREMENT OF THE STATUTE AND THEREFORE A RETROACTIVE READJUSTMENT IN SALARY MAY BE MADE. WILLIAMS WHO WAS APPOINTED TO A POSITION IN THE OFFICE OF EDUCATION OF THE DEPARTMENT OF HEALTH. THE TEMPORARY APPOINTMENT WAS TERMINATED AND HE RECEIVED A "CONVERSION TO REINSTATEMENT CAREER CONDITIONAL" IN THE POSITION OF PROGRAM MANAGER. THE LATTER POSITION DESCRIPTION SHOWS THAT HE WAS TO PERFORM THE FUNCTIONS OF DEPUTY DIRECTOR OF THE TEACHER CORPS.

B-169257, JUL. 1, 1970

CIVIL PAY -- SALARY RATE -- RETROACTIVE DECISION TO SECRETARY OF HEW VERIFYING PROPER SALARY RATE FOR EMPLOYEE APPOINTED AS PROGRAM MANAGER AND DEPUTY DIRECTOR OF THE TEACHERS' CORPS, OFFICE OF EDUCATION. EMPLOYEE WHO WAS APPOINTED TO TEMPORARY POSITION OF PROGRAM MANAGER AT GS -15 BUT POSITION INCLUDED DUTIES OF DEPUTY DIRECTOR OF TEACHERS' CORPS FOR WHICH A STATUTORY RATE FOR GRADE GS-16 WAS PRESCRIBED UNDER 20 U.S.C. 1102 MAY BE REGARDED AS HAVING HIS SALARY FIXED WITHOUT REGARD TO THE MANDATORY REQUIREMENT OF THE STATUTE AND THEREFORE A RETROACTIVE READJUSTMENT IN SALARY MAY BE MADE.

TO MR. SECRETARY:

THIS REFERS TO LETTER OF FEBRUARY 27, 1970, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION CONCERNING THE PROPER SALARY RATE OF MR. LAWRENCE E. WILLIAMS WHO WAS APPOINTED TO A POSITION IN THE OFFICE OF EDUCATION OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW), ON NOVEMBER 26, 1967.

THE INFORMATION FURNISHED SHOWS THAT MR. WILLIAMS RECEIVED A TEMPORARY APPOINTMENT ON NOVEMBER 26, 1967, TO THE POSITION OF PROGRAM MANAGER, GRADE GS-15, IN THE OFFICE OF EDUCATION. ON MAY 26, 1968, THE TEMPORARY APPOINTMENT WAS TERMINATED AND HE RECEIVED A "CONVERSION TO REINSTATEMENT CAREER CONDITIONAL" IN THE POSITION OF PROGRAM MANAGER. THE LATTER POSITION DESCRIPTION SHOWS THAT HE WAS TO PERFORM THE FUNCTIONS OF DEPUTY DIRECTOR OF THE TEACHER CORPS.

SECTION 512 OF PUBLIC LAW 89-329, AS AMENDED BY PUBLIC LAW 90-35, 20 U.S.C. 1102, WHICH ESTABLISHED THE TEACHER CORPS, PROVIDES IN PART AS FOLLOWS:

" ***THE TEACHER CORPS SHALL BE HEADED BY A DIRECTOR WHO SHALL BE COMPENSATED AT THE RATE PRESCRIBED FOR GRADE 17 OF THE GENERAL SCHEDULE OF THE CLASSIFICATION ACT OF 1949, AND A DEPUTY DIRECTOR WHO SHALL BE COMPENSATED AT THE RATE PRESCRIBED FOR GRADE 16 OF THE GENERAL SCHEDULE.

THE EFFECT OF THE ABOVE STATUTE IS TO CREATE MANDATORY SALARY RANGES FOR THE DIRECTOR AND DEPUTY DIRECTOR, TEACHER CORPS, WITHOUT REGARD TO THE CLASSIFICATION OF DUTIES OF THE POSITIONS WHICH MIGHT OTHERWISE BE REQUIRED UNDER APPLICABLE PROVISIONS OF LAW. THUS, THE CLASSIFICATION OF THE DUTIES OF THE POSITION OF DEPUTY DIRECTOR AND THE ASSIGNMENT OF GRADE GS-15 THERETO APPEARS INCONSISTENT WITH THE STATUTORY MANDATE THAT HIS SALARY BE IN THE GRADE GS-16 SALARY RANGE.

IN THE LETTER OF FEBRUARY 27, 1970, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION, IT IS STATED THAT SINCE THE STATUTE SAYS THAT THE DEPUTY DIRECTOR OF THE TEACHER CORPS SHALL BE COMPENSATED "AT THE RATE PRESCRIBED FOR GRADE 16 OF SUCH GENERAL SCHEDULE" THERE SEEMS TO BE NO DOUBT THAT MR. WILLIAMS SHOULD HAVE BEEN COMPENSATED AT A RATE EQUIVALENT TO A GS-16. VIEW OF THE FOLLOWING CIRCUMSTANCES, APPROVAL IS REQUESTED FOR RETROACTIVE PAYMENT TO MR. WILLIAMS OF THE DIFFERENCE BETWEEN THE COMPENSATION HE HAS RECEIVED AND COMPENSATION "AT THE RATE" PRESCRIBED FOR GRADE GS-16.

MR. WILLIAMS' SALARY UPON HIS APPOINTMENT TO THE TEACHER CORPS WAS SET AT THE FOURTH STEP OF GRADE GS-15, BASED ON HIS HIGHEST PREVIOUS RATE, WHICH WAS THE PAY HE WAS RECEIVING WHEN HE RESIGNED HIS POSITION WITH THE OFFICE OF ECONOMIC OPPORTUNITY ON NOVEMBER 25, 1967.

WE HAVE INFORMALLY OBTAINED INFORMATION WHICH SHOWS THAT MR. CHARLES N. ZELLERS FORMERLY OCCUPIED THE POSITION OF DEPUTY DIRECTOR AT THE SALARY RATE SPECIFIED FOR STEP 6 OF GRADE GS-16 (1720 SERIES). HE WAS PROMOTED THERETO FROM A POSITION IN GRADE GS-15, STEP 8. THE STANDARD FORM 50 UNDER "POSITION TITLE AND NUMBER" REFLECTS "DEPUTY DIRECTOR, NATIONAL TEACHER CORPS, OC-756." MR. ZELLERS OCCUPIED SUCH POSITION FROM APRIL 1966 TO APRIL 1967.

WE NOTE THAT WHEN MR. WILLIAMS RECEIVED A TEMPORARY APPOINTMENT ON NOVEMBER 26, 1967, THE TITLE AND NUMBER OF THE POSITION WAS LISTED AS PROGRAM MANAGER, ES-491 (340 SERIES). THE POSITION DESCRIPTION STATES THAT SUCH POSITION IS "ESTABLISHED FOR INCUMBENT ONLY IN LIEU OF OC 756." HOWEVER, IN SPECIFYING THE MAJOR DUTIES THE POSITION IS REFERRED TO AS DEPUTY DIRECTOR AND INDICATES THAT THE INCUMBENT OF SUCH POSITION ASSUMES ALL THE RESPONSIBILITY AND AUTHORITY OF THE DIRECTOR IN HIS ABSENCE. THIS SAME POSITION DESCRIPTION CARRIED OVER WHEN MR. WILLIAMS' TEMPORARY APPOINTMENT WAS CONVERTED TO CAREER-CONDITIONAL ON MAY 26, 1968.

THE FILE CONTAINS A COPY OF A MEMORANDUM DATED JUNE 19, 1968, SIGNED BY MR. HAROLD SUSKIN, DIRECTOR, PERSONNEL DIVISION, TO THE DIRECTOR, DIVISION OF EXECUTIVE MANPOWER, REQUESTING THAT THE POSITION OF DEPUTY DIRECTOR, TEACHER CORPS BE RECLASSIFIED FROM THE 1720 SERIES TO THE GS 340, PROGRAM MANAGEMENT SERIES. THE MEMORANDUM GOES ON TO SAY:

"MR. LAWRENCE WILLIAMS HAS BEEN SERVING IN AN ACTING CAPACITY IN THIS POSITION AS A PROGRAM MANAGER, GS-340-15 SINCE NOVEMBER 1967. DURING THIS PERIOD HE HAS DEMONSTRATED AN EXCEPTIONAL ABILITY AS A PROGRAM MANAGER. MR. WILLIAMS IS BEING PROPOSED FOR DEPUTY DIRECTOR, TEACHER CORPS, BUREAU OF EDUCATIONAL PERSONNEL DEVELOPMENT."

IT IS DIFFICULT TO RECONCILE MR. SUSKIN'S STATEMENT UNDERLINED ABOVE WITH THE PREVIOUS ACTION IN ESTABLISHING THE POSITION OF PROGRAM MANAGER FOR MR. WILLIAMS IN NOVEMBER 1967 IN WHICH HE WAS TO PERFORM THE DUTIES OF DEPUTY DIRECTOR (WORD ACTING NOT USED). AS A MATTER OF FACT THE POSITION DESCRIPTION OF THE POSITION OF PROGRAM MANAGER APPEARS TO HAVE BEEN COPIED FOR THE MOST PART FROM THE POSITION DESCRIPTION WHICH PREVAILED WHEN MR. ZELLERS OCCUPIED THE POSITION OF DEPUTY DIRECTOR. WE ASSUME THE RECLASSIFICATION REQUESTED BY MR. SUSKIN WAS APPROVED.

WHILE MR. SUSKIN'S REFERENCE TO MR. WILLIAMS AS SERVING IN AN ACTING CAPACITY CAUSES SOME DOUBT CONCERNING WHETHER IT WAS ACTUALLY INTENDED THAT MR. WILLIAMS BE APPOINTED AS DEPUTY DIRECTOR FROM THE TIME OF HIS TEMPORARY APPOINTMENT IN NOVEMBER 1967, THE RECORD OTHERWISE IS TO THE CONTRARY. FROM THE BEGINNING MR. WILLIAMS' DUTIES WERE THOSE OF THE DEPUTY DIRECTOR. HE WAS NOT APPOINTED TO A DIFFERENT POSITION IN THE TEACHER CORPS AND THEN DETAILED TO PERFORM THE DUTIES OF DEPUTY DIRECTOR IN AN ACTING CAPACITY. WE CAN ONLY CONCLUDE THAT THE ACTIONS PREVIOUSLY REFERRED TO MUST HAVE BEEN TAKEN WITHOUT REGARD TO THE MANDATORY REQUIREMENT OF THE STATUTE THAT THE SALARY OF THE DEPUTY DIRECTOR, TEACHER CORPS, BE FIXED IN THE GRADE GS-16 SALARY RANGE.

IN LINE WITH THE FOREGOING MR. WILLIAMS WAS ENTITLED TO HAVE HIS SALARY FIXED IN THE GRADE 16 SALARY RANGE FROM NOVEMBER 26, 1967. WE ASSUME FROM YOUR LETTER THAT SINCE HE PREVIOUSLY HAD BEEN IN A GRADE GS 15, STEP 4 POSITION HIS SALARY WOULD HAVE BEEN SET AT THE RATE APPLICABLE TO GS-16, STEP 1. ACCORDINGLY, SUCH ACTION SHOULD NOW BE TAKEN AND MR. WILLIAMS PAID THE DIFFERENCE IN SALARY FROM NOVEMBER 26, 1967, AS SUGGESTED IN THE SECOND ALTERNATIVE PRESENTED IN YOUR LETTER.