B-174020, FEB 3, 1972

B-174020: Feb 3, 1972

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THE AGENCY SEEMS TO HAVE REMAINED WELL WITHIN ITS DISCRETIONARY AUTHORITY UNDER APPROPRIATE REGULATIONS OF BOTH THE IRS AND THE CIVIL SERVICE COMMISSION. WHEN SHE WAS APPOINTED BY THAT AGENCY TO THE PERMANENT POSITION OF CLERK STENOGRAPHER. SHE WAS GIVEN A TEMPORARY APPOINTMENT NOT TO EXTEND BEYOND SEPTEMBER 30. HER TEMPORARY APPOINTMENT WAS EXTENDED AND ON DECEMBER 13. SHE WAS GIVEN A PERMANENT APPOINTMENT BY IRS AS A CLERK-STENOGRAPHER. WRENN WAS GIVEN A TEMPORARY APPOINTMENT ON AUGUST 10. HER SALARY WAS DETERMINED ON THE BASIS OF SECTION 0531.33 OF THE INTERNAL REVENUE MANUAL WHICH PROVIDES AS FOLLOWS: "WHEN A REEMPLOYED EMPLOYEE IS GIVEN A TEMPORARY LIMITED APPOINTMENT OF 90 DAYS OR LESS.

B-174020, FEB 3, 1972

CIVILIAN EMPLOYEE - ENTITLEMENT TO PAY GRADE DECISION CONCERNING THE PROPRIETY OF THE SALARY RATE ASSIGNED TO LOIS WRENN, INCIDENT TO HER APPOINTMENT AS A CLERK-STENOGRAPHER, GS-312-4, STEP 1, BY THE INTERNAL REVENUE SERVICE (IRS) AFTER PRIOR EMPLOYMENT WITH THE ARMY COMBAT DEVELOPMENT COMMAND, FORT BELVOIR, VA., AT GS-312 5, STEP 10. SINCE THE IRS DID NOT REGARD THE APPOINTMENT AS A REEMPLOYMENT ACTION, THE AGENCY SEEMS TO HAVE REMAINED WELL WITHIN ITS DISCRETIONARY AUTHORITY UNDER APPROPRIATE REGULATIONS OF BOTH THE IRS AND THE CIVIL SERVICE COMMISSION.

TO NATIONAL ASSOCIATION OF INTERNAL REVENUE EMPLOYEES:

WE FURTHER REFER TO YOUR LETTER OF SEPTEMBER 1, 1971, IN WHICH YOU QUESTIONED THE CORRECTNESS OF THE SALARY RATE ASSIGNED MRS. LOIS WRENN, AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE (IRS), WHEN SHE WAS APPOINTED BY THAT AGENCY TO THE PERMANENT POSITION OF CLERK STENOGRAPHER, GS-312-4, STEP 1, EFFECTIVE DECEMBER 13, 1970, AFTER PRIOR EMPLOYMENT WITH THE U.S. ARMY COMBATS DEVELOPMENT COMMAND, FORT BELVOIR, VIRGINIA.

THE PERTINENT FACTS AND CIRCUMSTANCES DISCLOSE THAT EFFECTIVE MAY 15, 1970, MRS. WRENN RESIGNED FROM HER POSITION AS A CLERK-STENOGRAPHER, GS 312-5, STEP 10, WITH A SALARY OF $8,510 ANNUALLY WITH THE DEPARTMENT OF THE ARMY. ON AUGUST 10, 1970, AFTER A BREAK IN SERVICE OF APPROXIMATELY 3 MONTHS, SHE WAS GIVEN A TEMPORARY APPOINTMENT NOT TO EXTEND BEYOND SEPTEMBER 30, 1970, AS A CLERK-STENOGRAPHER, GS-312-4, STEP 1, AT A SALARY OF $5,853 PER ANNUM, WITH IRS. ON OCTOBER 1, 1970, HER TEMPORARY APPOINTMENT WAS EXTENDED AND ON DECEMBER 13, 1970, SHE WAS GIVEN A PERMANENT APPOINTMENT BY IRS AS A CLERK-STENOGRAPHER, GS 312-4, AT $5,853 PER ANNUM.

THE REPORT RECEIVED FROM IRS INDICATES THAT WHEN MRS. WRENN WAS GIVEN A TEMPORARY APPOINTMENT ON AUGUST 10, 1970, HER SALARY WAS DETERMINED ON THE BASIS OF SECTION 0531.33 OF THE INTERNAL REVENUE MANUAL WHICH PROVIDES AS FOLLOWS:

"WHEN A REEMPLOYED EMPLOYEE IS GIVEN A TEMPORARY LIMITED APPOINTMENT OF 90 DAYS OR LESS, NORMALLY THE EMPLOYEE WILL BE ASSIGNED THE BASE STEP OF THE GRADE TO WHICH APPOINTED UNLESS THE EMPLOYEE'S PRIOR SERVICE IS DIRECTLY APPLICABLE TO THE REEMPLOYED POSITION. IN SUCH CASES, THE APPOINTING OFFICER MAY DETERMINE AN APPROPRIATE SALARY BASED ON THE EMPLOYEE'S PREVIOUS EMPLOYMENT AND QUALIFICATIONS AND THE AVAILABILITY OF FUNDS. SALARY RATES CHOSEN CANNOT EXCEED THE MAXIMUM RATE PERMITTED UNDER IRM 0531.32."

AS TO THE APPLICATION OF THE ABOVE REGULATION, IRS STATES:

" *** IN SUCH CASES, THE APPOINTING OFFICER MAY DETERMINE AN APPROPRIATE SALARY BASED ON THE EMPLOYEE'S PREVIOUS EMPLOYMENT AND QUALIFICATIONS AND THE AVAILABILITY OF FUNDS. MRS. WRENN'S PRIOR SERVICE WAS WITH THE DEPARTMENT OF THE ARMY. IT WAS FELT THE CARRYOVER FROM HER OLD POSITION TO IRS WOULD ONLY BE IN THE AREA OF SKILLS SUCH AS TYPING AND SHORTHAND. THE SUBJECT MATTER AND THE PROCEDURES INVOLVED IN HER WORK WITH THE ARMY WOULD HAVE BEEN QUITE DIFFERENT FROM THE SUBJECT MATTER AND PROCEDURES SHE WOULD ENCOUNTER WITH AN IRS AUDIT GROUP. ALSO IT SEEMED VERY FEASIBLE FROM A FISCAL STANDPOINT TO OFFER THIS EMPLOYEE A POSITION AT THE LOWEST STEP. MRS. WRENN ACCEPTED THE OFFER."

ON DECEMBER 13, 1970, WHEN MRS. WRENN'S TYPE OF APPOINTMENT WAS CHANGED FROM TEMPORARY TO PERMANENT, IRS REPORTS THAT IT WAS DECIDED TO CONTINUE MRS. WRENN IN THE FIRST STEP OF GRADE GS-4 UNDER THE AUTHORITY CONTAINED IN SECTION 0531.22 OF THE INTERNAL REVENUE MANUAL WHICH QUOTES SECTION 531.203(C) OF THE CIVIL SERVICE REGULATIONS IN PERTINENT PART AS FOLLOWS:

" *** WHENEVER AN EMPLOYEE IS REEMPLOYED, TRANSFERRED, REASSIGNED, PROMOTED, DEMOTED, OR HIS TYPE OF APPOINTMENT IS CHANGED IN THE SAME GRADE, THE AGENCY MAY PAY HIM AT ANY RATE OF HIS GRADE THAT DOES NOT EXCEED HIS HIGHEST PREVIOUS RATE. *** "

SECTION 0531.22 GOES ON TO POINT OUT THAT THE USE OF THE HIGHEST PREVIOUS RATE RULE IS SUBJECT TO OTHER SPECIFIC RULES DISCUSSED IN OTHER PARTS OF THE REGULATIONS SUCH AS SECTION 0531.32 RELATING TO "REEMPLOYMENT NOT LIMITED IN TENURE." THIS LATTER REGULATION PROVIDES THAT WHEN AN EMPLOYEE IS REEMPLOYED IN A LOWER GRADE UNDER AN APPOINTMENT NOT LIMITED IN TENURE HIS HIGHEST PREVIOUS RATE WILL BE USED IN DETERMINING HIS STEP IN THE LOWER GRADE. HOWEVER, IF THE EMPLOYEE'S PRIOR SERVICE IS NOT DIRECTLY APPLICABLE TO THE REEMPLOYED POSITION, THE APPOINTING OFFICER MAY DETERMINE AN APPROPRIATE SALARY BASED UPON THE EMPLOYEE'S PREVIOUS EMPLOYMENT AND QUALIFICATIONS.

APPARENTLY, IRS DID NOT REGARD THE CHANGE OF MRS. WRENN'S TYPE OF APPOINTMENT IN DECEMBER 1970 AS A REEMPLOYMENT ACTION AND THUS AT THAT TIME INVOKED THE DISCRETIONARY AUTHORITY CONTAINED IN SECTION 0531.22 ABOVE. WE NOTE THE FOLLOWING DEFINITION OF REEMPLOYMENT CONTAINED IN THE PRIOR NUMBERED SECTION 1913.1(3) OF THE INTERNAL REVENUE MANUAL:

"REEMPLOYMENT MEANS AN EMPLOYMENT, INCLUDING REINSTATEMENT OR ANOTHER TYPE OF APPOINTMENT, AFTER A BREAK IN SERVICE OF AT LEAST ONE FULL WORKDAY. UNLESS ONE FULL WORKDAY HAS PASSED, THE EMPLOYEE IS DEEMED TO HAVE BEEN CONTINUOUSLY EMPLOYED."

ACCORDINGLY, OUR VIEW IS THAT THE ACTION OF IRS IN FIXING MRS. WRENN'S SALARY RATE WAS IN ACCORDANCE WITH ITS OWN REGULATIONS AS WELL AS THOSE OF THE CIVIL SERVICE COMMISSION.