B-176583, SEP 6, 1972

B-176583: Sep 6, 1972

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SINCE RETENTION OF THE HIGHER SALARY WAS APPLICABLE SPECIFICALLY TO COMMITMENTS MADE ON THE BASIS OF OFFERS PURSUANT TO FPM LETTER NO. 530 156. GAO FINDS NO BASIS FOR CONCLUDING THAT AN ADMINISTRATIVE ERROR WAS MADE FOR FAILURE TO ADJUST THE OFFER TO THE RATES STATED IN FPM LETTER NO. 530-156. THE INFORMATION OF RECORD SHOWS THAT MISS AHERN WAS NOTIFIED BY LETTER DATED JANUARY 4. THIS WAS THE SALARY RATE AS OF JANUARY 4. 526 FOR THE POSITION WAS CHANGED TO $12. THIS LETTER WAS ISSUED UNDER THE AUTHORITY OF 5 U.S.C. 5303(D) WHICH REQUIRES A DETERMINATION ON HOW THE SALARY RATES OF EMPLOYEES COVERED BY THE SPECIAL RATE SCHEDULES SHALL BE ADJUSTED AT THE TIME OF A GENERAL PAY INCREASE. WILL HAVE THEIR SALARY SET ACCORDING TO RATES SET IN FPM LETTER NO. 530-156 IF THE PROVISIONS OF PARAGRAPH 3 ARE MET.

B-176583, SEP 6, 1972

CIVILIAN EMPLOYEES - SPECIAL SALARY RATES CONCERNING THE PROPER SALARY OF ELINOR G. AHERN UPON HER APPOINTMENT EFFECTIVE MARCH 1, 1971, AS AN OPERATIONS RESEARCH ANALYST GS-1515, GRADE 9, STEP 1, WITH THE INTERNAL REVENUE SERVICE. THE SPECIAL SALARY OF $11,526 OFFERED MISS AHERN BY LETTER DATED JANUARY 4, 1971, HAD BEEN ADJUSTED TO $12,215 BY FPM LETTER NO. 530-156 ON JANUARY 29. SUBSEQUENT LETTERS, HOWEVER, SUPERSEDED AND CANCELLED FPM LETTER NO. 530-156, AND ESTABLISHED A SPECIAL RATE OF $11,168; EMPLOYEES WHO HAD ENTERED ON DUTY AFTER JANUARY 30 AND BEFORE MARCH 12, 1971, RETAINED THE SALARY SET BY FPM LETTER NO. 530-156. SINCE RETENTION OF THE HIGHER SALARY WAS APPLICABLE SPECIFICALLY TO COMMITMENTS MADE ON THE BASIS OF OFFERS PURSUANT TO FPM LETTER NO. 530 156, IT WOULD NOT BE APPLICABLE IN THIS CASE SINCE CLAIMANT HAD NOT BEEN OFFERED A HIGHER SALARY RATE UNDER SUCH LETTER. FURTHER, IN LIGHT OF THE NOTICE GIVEN MISS AHERN THAT AN ADDITIONAL FPM WOULD BE PUBLISHED SHORTLY WITH THE SUGGESTION THAT MANY OF THE SPECIAL RATES WOULD BE LOWERED, GAO FINDS NO BASIS FOR CONCLUDING THAT AN ADMINISTRATIVE ERROR WAS MADE FOR FAILURE TO ADJUST THE OFFER TO THE RATES STATED IN FPM LETTER NO. 530-156.

TO MISS MARY E. RUDDY:

THIS REFERS TO YOUR LETTER OF JULY 19, 1972, WITH ENCLOSURES, REFERENCE A:F:AF REGARDING THE PROPER SALARY OF MISS ELINOR G. AHERN UPON HER APPOINTMENT EFFECTIVE MARCH 1, 1971, WITH THE INTERNAL REVENUE SERVICE.

THE INFORMATION OF RECORD SHOWS THAT MISS AHERN WAS NOTIFIED BY LETTER DATED JANUARY 4, 1971, OF HER APPOINTMENT EFFECTIVE MARCH 1, 1971, AS AN OPERATIONS RESEARCH ANALYST GS-1515, GRADE 9, STEP 1, WITH AN ANNUAL SALARY RATE OF $11,526. THIS WAS THE SALARY RATE AS OF JANUARY 4, 1971, FOR GRADE GS-9 IN ACCORDANCE WITH FEDERAL PERSONNEL MANUAL (FPM) LETTER NO. 530-131 DATED APRIL 30, 1970, ESTABLISHING A SPECIAL SALARY RATE FOR THIS POSITION. BY FPM LETTER NO. 530-156 DATED JANUARY 29, 1971, THE SPECIAL RATE OF $11,526 FOR THE POSITION WAS CHANGED TO $12,215 EFFECTIVE THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER JANUARY 1, 1971. THIS LETTER WAS ISSUED UNDER THE AUTHORITY OF 5 U.S.C. 5303(D) WHICH REQUIRES A DETERMINATION ON HOW THE SALARY RATES OF EMPLOYEES COVERED BY THE SPECIAL RATE SCHEDULES SHALL BE ADJUSTED AT THE TIME OF A GENERAL PAY INCREASE. THE COMMISSION DECIDED THAT THE PAY OF SUCH EMPLOYEES SHALL BE INCREASED BY AN AMOUNT FULLY EQUIVALENT TO THE GENERAL PAY INCREASE FOR GENERAL SCHEDULE EMPLOYEES AUTHORIZED BY EXECUTIVE ORDER 11576. SUBSEQUENTLY FPM LETTER NO. 530-157 DATED FEBRUARY 2, 1971, ESTABLISHED A SPECIAL RATE OF $11,168 FOR THE POSITION OF OPERATIONS RESEARCH ANALYST, GS-9, EFFECTIVE THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER JANUARY 31, 1971.

FPM LETTER NO. 530-160 DATED MARCH 12, 1971, ISSUED INSTRUCTIONS FOR SETTING PAY RATES FOR EMPLOYMENT COMMITMENTS AUTHORIZED BY FPM LETTER NO. 530-156. PARAGRAPH 4 PROVIDED THAT EMPLOYEES WHO HAD ENTERED ON DUTY ON OR AFTER THE PAY PERIOD BEGINNING JANUARY 31, 1971, AND BEFORE MARCH 12, 1971, WILL HAVE THEIR SALARY SET ACCORDING TO RATES SET IN FPM LETTER NO. 530-156 IF THE PROVISIONS OF PARAGRAPH 3 ARE MET. BASICALLY THIS REQUIRES OFFER, ACCEPTANCE, AND ENTRANCE ON DUTY BEFORE MARCH 12, 1971, AND DOCUMENTATION FOR THE RECORD.

IN VIEW OF THE ABOVE THE FOLLOWING QUESTIONS ARE SUBMITTED:

1. WAS THE SALARY OF $11,526 THE CORRECT RATE OF PAY FOR MISS AHERN WHEN SHE WAS APPOINTED ON MARCH 1, 1971? IF NOT, WHAT SHOULD HER SALARY HAVE BEEN?

2. CAN ANY CONSIDERATION BE GIVEN TO THE FACT THAT AN ADMINISTRATIVE ERROR OCCURRED IN NOT ADJUSTING THE OFFER OF EMPLOYMENT TO THE SPECIAL RATE OF $12,215 AUTHORIZED BY FPM LETTER NO. 530-156? IF SO, IS IT NOT PROPER TO ADJUST HER PAY RETROACTIVELY TO THAT RATE EFFECTIVE MARCH 1, 1971?

THE SALARY RATE IN THE OPERATIONS RESEARCH ANALYST POSITION WAS SET AT A RATE BY THE CIVIL SERVICE COMMISSION ABOVE THAT NORMALLY PROVIDED FOR GRADE GS-9 UNDER THE AUTHORITY OF 5 U.S.C. 5303 AND EXECUTIVE ORDER 11073. THE EXECUTIVE ORDER REQUIRES AN ANNUAL REVIEW OF SPECIAL SALARY SCHEDULES AND SERVES AS A BASIS FOR DETERMINING WHICH SPECIAL SCHEDULES WILL BE CONTINUED, AND WHICH SCHEDULES WILL BE ADJUSTED UP OR DOWN. BASED ON THE COMMISSION'S ANNUAL REVIEW, BY FPM LETTER NO. 530-157, DATED FEBRUARY 2, 1971, WHICH SUPERSEDED AND CANCELLED FPM LETTER NO. 530-156, THE GRADE GS-9 OPERATIONS RESEARCH ANALYST POSITION WAS ADJUSTED DOWN TO $11,168. THIS WAS THE ONLY LEGAL RATE IN EFFECT FOR THAT POSITION AT THE TIME MISS AHERN REPORTED FOR DUTY ON MARCH 1, 1971.

YOU SAY THAT SETTING THE SALARY RATE AT $11,168 APPEARS TO BE INCONSISTENT WITH THE PROVISIONS OF PARAGRAPH 4 OF FPM LETTER NO. 530 160, DATED MARCH 12, 1971. THIS FPM LETTER PROVIDES TEMPORARY AUTHORITY AND PROCEDURES TO PERMIT AGENCIES TO MEET EMPLOYMENT COMMITMENTS MADE AND ACCEPTED BY APPLICANTS AT THE HIGHER SPECIAL SALARY RATES AS SHOWN IN FPM LETTER NO. 530-156. IT WAS APPLICABLE SPECIFICALLY TO COMMITMENTS MADE AT THE HIGHER RATES SET FORTH IN FPM LETTER NO. 530-156 AND THEREFORE WOULD NOT BE APPLICABLE TO THE CASE AT HAND SINCE MISS AHERN HAD NOT BEEN OFFERED A HIGHER SALARY RATE UNDER SUCH LETTER.

IN VIEW OF THE FOREGOING AND SINCE FPM LETTER NO. 530-157 WHICH ESTABLISHED THE RATE OF $11,168 HAS THE FORCE AND EFFECT OF LAW, THERE IS NO BASIS FOR PAYMENT OF A HIGHER RATE OF SALARY IN THE INSTANT CASE. QUESTION NO. 1 IS ANSWERED ACCORDINGLY.

REGARDING YOUR SECOND QUESTION, NO BASIS IS APPARENT FOR CONCLUDING THAT AN ADMINISTRATIVE ERROR WAS MADE FOR FAILURE TO ADJUST THE OFFER TO THE RATES STATED IN FPM LETTER NO. 530-156, DATED JANUARY 29, 1971. THIS IS FOR THE REASON THAT UNDER PARAGRAPH 4 THEREOF NOTICE WAS GIVEN THAT AN ADDITIONAL FPM WOULD BE PUBLISHED SHORTLY WITH THE SUGGESTION THAT MANY OF THE SPECIAL RATES WOULD BE LOWERED. SINCE THE APPOINTMENT HERE INVOLVED WAS NOT TO BECOME EFFECTIVE UNTIL MARCH 1, 1971, WE DO NOT VIEW THE FAILURE TO ADJUST AS CONSTITUTING AN ADMINISTRATIVE ERROR.