B-18898, AUGUST 6, 1941, 21 COMP. GEN. 113

B-18898: Aug 6, 1941

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- WHETHER IN THE SAME OR DIFFERENT POSITION OR WHETHER THE POSITION IN WHICH SUCH STATUS MAY BE ACQUIRED IS WITHIN OR WITHOUT THE SCOPE OF THE CLASSIFICATION ACT OF 1923. WHILE DECISIONS OF THIS OFFICE WITH REFERENCE TO THE CLASSIFICATION ACT OF 1923 HAVE HELD THAT EMPLOYEES TRANSFERRED. 1941: I HAVE YOUR LETTER OF JULY 17. AS FOLLOWS: THERE ARE IN THE DEPARTMENT OF AGRICULTURE A NUMBER OF POSITIONS CLASSIFIED PURSUANT TO THE CLASSIFICATION ACT OF 1923. THE INCUMBENTS OF WHICH HAVE BEEN APPOINTED WITHOUT REGARD TO CIVIL SERVICE LAW AND REGULATIONS. THE INITIAL APPOINTMENTS OF SUCH INCUMBENTS WERE. HAVE RECEIVED ADMINISTRATIVE INCREASES TO HIGHER RATES WITHIN THE GRADES OF THE POSITIONS OCCUPIED.

B-18898, AUGUST 6, 1941, 21 COMP. GEN. 113

OFFICERS AND EMPLOYEES - TRANSFERS - UNCLASSIFIED TO CLASSIFIED POSITIONS - INITIAL SALARY RATES THE GENERAL ACCOUNTING OFFICE HAS NO JURISDICTION OR AUTHORITY TO FIX OR DETERMINE THE CONDITIONS FOR ACQUIRING A COMPETITIVE CLASSIFIED CIVIL- SERVICE STATUS--- WHETHER IN THE SAME OR DIFFERENT POSITION OR WHETHER THE POSITION IN WHICH SUCH STATUS MAY BE ACQUIRED IS WITHIN OR WITHOUT THE SCOPE OF THE CLASSIFICATION ACT OF 1923. WHILE DECISIONS OF THIS OFFICE WITH REFERENCE TO THE CLASSIFICATION ACT OF 1923 HAVE HELD THAT EMPLOYEES TRANSFERRED, REAPPOINTED, OR REINSTATED FROM CLASSIFIED OR UNCLASSIFIED POSITIONS TO CLASSIFIED POSITIONS NEED NOT BE APPOINTED AT THE MINIMUM SALARY RATE OF THE GRADE, EMPLOYEES ALREADY IN THE FEDERAL SERVICE UNDER AN APPOINTMENT MADE WITHOUT REGARD TO THE CIVIL- SERVICE LAWS AND REGULATIONS BY COMPETITIVE EXAMINATION, WHEN ACQUIRING A CLASSIFIED CIVIL-SERVICE STATUS, MUST BE APPOINTED, UNDER EXISTING CIVIL SERVICE REGULATIONS, AT THE MINIMUM SALARY RATE OF THE GRADE IN WHICH THE POSITION HAS BEEN ALLOCATED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, AUGUST 6, 1941:

I HAVE YOUR LETTER OF JULY 17, 1941, AS FOLLOWS:

THERE ARE IN THE DEPARTMENT OF AGRICULTURE A NUMBER OF POSITIONS CLASSIFIED PURSUANT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, THE INCUMBENTS OF WHICH HAVE BEEN APPOINTED WITHOUT REGARD TO CIVIL SERVICE LAW AND REGULATIONS. THE INITIAL APPOINTMENTS OF SUCH INCUMBENTS WERE, OF COURSE, MADE AT THE MINIMUM SALARY RATES OF THE GRADES TO WHICH THESE POSITIONS HAD BEEN ALLOCATED. SOME OF THE INCUMBENTS, AS A RESULT OF SATISFACTORY SERVICES RENDERED OVER A PERIOD OF TIME, HAVE RECEIVED ADMINISTRATIVE INCREASES TO HIGHER RATES WITHIN THE GRADES OF THE POSITIONS OCCUPIED. FROM TIME TO TIME THE NAME OF ONE OF THESE INCUMBENTS IS REACHED ON A CIVIL SERVICE REGISTER OF ELIGIBLES, AND IT IS THE POLICY OF THE DEPARTMENT, WHENEVER IT IS PRACTICABLE TO DO SO AND THE SERVICES OF THE INCUMBENT HAVE BEEN THOROUGHLY SATISFACTORY, TO APPOINT SUCH A PERSON FROM THE REGISTER IN ORDER THAT HE MAY GAIN CIVIL SERVICE STATUS. IN SOME CASES THE APPOINTMENT IS MADE TO THE POSITION ALREADY OCCUPIED; IN OTHER INSTANCES IT IS TO A DIFFERENT POSITION, DEPENDING GENERALLY UPON THE NATURE OF THE COMPETITIVE EXAMINATION WHICH THE EMPLOYEE HAS PASSED.

UNDER SUCH CIRCUMSTANCES, DOES THE CHANGE FROM AN EXCEPTED TO A PROBATIONAL APPOINTMENT CONSTITUTE A "NEW" APPOINTMENT WITHIN THE MEANING OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923? MORE SPECIFICALLY, WHERE NO CHANGE IN GRADE IS INVOLVED AND WHERE THE EMPLOYEE IS RECEIVING A SALARY RATE ABOVE THE MINIMUM OF THE GRADE, IS IT NECESSARY TO REDUCE HIS SALARY TO SUCH MINIMUM AT THE TIME OF MAKING THE CHANGE FROM AN EXCEPTED TO A PROBATIONAL APPOINTMENT? IF AN EMPLOYEE IS SERVING SATISFACTORILY IN A POSITION IN A GRADE HIGHER THAN THAT OF THE CLASS OF POSITION FOR WHICH HE WAS EXAMINED AND CERTIFIED BY THE CIVIL SERVICE COMMISSION, MUST HIS SALARY AT THE TIME OF PROBATIONAL APPOINTMENT TO THE LOWER GRADE POSITION FOR WHICH HE IS CERTIFIED BE REDUCED TO THE MINIMUM OF THAT GRADE?

IN VIEW OF THE FACT THAT THE REQUIREMENTS OF THE CLASSIFICATION ACT REGARDING INITIAL SALARY RATE HAVE ALREADY BEEN COMPLIED WITH AND IN LIGHT OF VARIOUS DECISIONS PREVIOUSLY RENDERED BY YOUR OFFICE, WE ARE INCLINED TO BELIEVE THAT ALL THREE OF THE FOREGOING QUESTIONS WOULD BE ANSWERED IN THE NEGATIVE. SINCE WE DO NOT FIND ANY WRITTEN DECISION TO BE PRECISELY IN POINT, HOWEVER, WE SHALL APPRECIATE YOUR RULINGS ON THESE QUESTIONS.

A FOURTH RELATED QUESTION IS AS FOLLOWS: IF AN EMPLOYEE HAS AN EXCEPTED APPOINTMENT TO A POSITION CLASSIFIED PURSUANT TO EXECUTIVE ORDER NO. 6746 AT THE TIME OF BEING REACHED ON A CIVIL SERVICE REGISTER, MAY HIS SALARY AT THE TIME OF MAKING THE CHANGE FROM AN EXCEPTED TO A PROBATIONAL APPOINTMENT BE ADJUSTED IN ACCORDANCE WITH THE RULES SET FORTH IN YOUR DECISION OF JULY 7, 1939, TO THE SECRETARY OF STATE (B-4565), PROVIDED HIS POSITION IS AT THAT TIME ALLOCATED TO THE PROPER GRADE UNDER THE CLASSIFICATION ACT, AS AMENDED?

YOUR EARLY DECISION ON THE FOREGOING POINTS WILL BE GREATLY APPRECIATED.

THIS OFFICE, IN A LONG LINE OF DECISIONS, HAS HELD THAT THE TRANSFER, REAPPOINTMENT, OR REINSTATEMENT OF AN EMPLOYEE FROM A CLASSIFIED OR UNCLASSIFIED POSITION TO A CLASSIFIED POSITION DOES NOT CONSTITUTE A "NEW" APPOINTMENT WITHIN THE MEANING OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923, APPROVED MARCH 4, 1923, 42 STAT. 1490, PROVIDING AS FOLLOWS: "ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.' SEE 9 COMP. GEN. 71; ID. 80; ID. 313; 13 ID. 22; ID. 86; ID. 222; 15 ID. 102; ID. 797; 16 ID. 598; ID. 994; 17 ID. 460; ID. 563; ID. 1061; 19 ID. 20; ID. 763; 20 ID. 17; ID. 318. THESE DECISIONS WERE RENDERED WITH REFERENCE TO THE CLASSIFICATION ACT OF 1923, EXCLUSIVELY, AND THE ADJUSTMENT OF PERSONNEL BETWEEN POSITIONS THEREIN CONSIDERED RELATE TO STATUS UNDER THE CLASSIFICATION ACT, NOT TO STATUS UNDER THE CIVIL SERVICE LAWS AND REGULATIONS. SEE 17 COMP. GEN. 578; 18 ID. 223; ID. 796. THIS OFFICE HAS NO JURISDICTION OR AUTHORITY TO FIX OR DETERMINE THE CONDITIONS FOR ACQUIRING A COMPETITIVE CLASSIFIED CIVIL SERVICE STATUS--- WHETHER IN THE SAME OR DIFFERENT POSITION OR WHETHER THE POSITION IN WHICH SUCH CLASSIFIED CIVIL SERVICE STATUS MAY BE ACQUIRED IS WITHIN OR WITHOUT THE SCOPE OF THE CLASSIFICATION ACT. SEE 17 COMP. GEN. 786; 18 ID. 217; ID. 775; 19 ID. 125; 20 ID. 538.

SO FAR AS THE CLASSIFICATION ACT IS CONCERNED A CHANGE IN STATUS OF AN EMPLOYEE IN THE SAME OR A DIFFERENT POSITION WOULD NOT BE REGARDED AS A "NEW" APPOINTMENT UNDER THE RULES STATED IN THE CITED DECISIONS OF THIS OFFICE REQUIRING PAYMENT INITIALLY OF THE MINIMUM SALARY RATE OF THE GRADE TO AN EMPLOYEE WHOSE SALARY RATE WAS ALREADY ABOVE THE MINIMUM; BUT THE QUESTIONS PRESENTED IN YOUR LETTER INVOLVE THE CONDITIONS PRESCRIBED BY THE UNITED STATES CIVIL SERVICE COMMISSION FOR ACQUIRING A CLASSIFIED CIVIL SERVICE STATUS AS A RESULT OF SUCCESSFULLY PASSING A COMPETITIVE CIVIL-SERVICE EXAMINATION BY AN EMPLOYEE ALREADY IN THE FEDERAL SERVICE UNDER AN APPOINTMENT MADE WITHOUT REGARD TO THE CIVIL SERVICE LAWS AND REGULATIONS. SEE, IN THIS CONNECTION, DEPARTMENTAL CIRCULAR NO. 190, ISSUED BY THE UNITED STATES CIVIL SERVICE COMMISSION UNDER DATE OF JUNE 14, 1939, AS FOLLOWS: SUBJECT: ACCORDING A CLASSIFIED CIVIL SERVICE STATUS TO A NONCLASSIFIED

EMPLOYEE WHEN HE IS REACHED FOR CERTIFICATION ON AN APPROPRIATE

REGISTER--- SALARY.

TO HEADS OF DEPARTMENTS AND INDEPENDENT ESTABLISHMENTS:

ATTENTION IS INVITED TO DECISIONS OF THE ACTING COMPTROLLER GENERAL, UNDER DATES OF MAY 10, 1937 (16 COMP. GEN. 994) AND OCTOBER 15, 1938 (A- 98468), WHICH HELD IN EFFECT THAT WHERE THE SALARY A FEDERAL EMPLOYEE RECEIVED AT THE TIME HIS POSITION WAS CLASSIFIED (UNDER THE CLASSIFICATION ACT), HAD BEEN REGULARLY FIXED AT A RATE NOT INCONSISTENT WITH THE PROVISIONS OF THE CLASSIFICATION ACT AND HAD BEEN ATTAINED BY REASON OF EXTENDED EFFICIENT SERVICE ON THE SAME JOB AND THE RATE SO FIXED IS ONE OF THE RATES PRESCRIBED FOR THE GRADE TO WHICH THE POSITION HAS BEEN ALLOCATED, REDUCTION IN SALARY TO THE MINIMUM OF THE GRADE IS NOT REQUIRED.

IT HAS COME TO THE COMMISSION'S ATTENTION THAT THESE DECISIONS HAVE BEEN CONSTRUED BY SOME FEDERAL AGENCIES AS PERMITTING A NONCLASSIFIED EMPLOYEE TO ACQUIRE A CLASSIFIED CIVIL-SERVICE STATUS AT THE SALARY HE IS RECEIVING AT THE TIME HIS NAME IS REACHED ON AN APPROPRIATE REGISTER, REGARDLESS OF THE FACT THAT SUCH SALARY MAY BE IN EXCESS OF THE RATE FOR WHICH HE CAN BE CERTIFIED.

THE COMMISSION WISHES TO CORRECT ANY SUCH ERRONEOUS IMPRESSION. THIS OFFICE CONSTRUES THE DECISIONS OF THE COMPTROLLER GENERAL AND THE ACTING COMPTROLLER GENERAL ON THIS SUBJECT TO RELATE PRIMARILY TO THE PROVISIONS OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AS REGARDS THE PAYMENT OF SALARY ONLY, BUT NOT IN ANY WAY NULLIFYING THE COMPETITIVE REQUIREMENTS OF THE CIVIL SERVICE ACT AND RULES OR PERMITTING THE SETTING ASIDE OF SUCH COMPETITIVE REQUIREMENTS IN WHOLE OR IN PART IN ANY INDIVIDUAL CASE WHERE THE NECESSITY OF MEETING SUCH REQUIREMENTS IS A PREREQUISITE TO THE ACQUISITION OF A CLASSIFIED CIVIL-SERVICE STATUS.

IN A DECISION OF JUNE 26, 1924 (3 COMP. GEN. 1001-1006), IT WAS HELD THAT:

"* * * THEREFORE, AN EMPLOYEE TRANSFERRED FROM ONE GRADE TO A LOWER GRADE CAN BE TRANSFERRED TO POSITION IN WHICH THERE IS A VACANCY IN THE GRADE TO WHICH TRANSFERRED AT A SALARY NOT IN EXCESS OF THE SALARY OF THE POSITION FROM WHICH TRANSFERRED, ASSUMING, OF COURSE, THAT THE TRANSFER IS AUTHORIZED UNDER THE PROVISIONS OF THE CLASSIFICATION ACT AND THE CIVIL- SERVICE ACTS, AND THE REGULATIONS MADE IN PURSUANCE THEREOF.' ( ITALICS SUPPLIED.) THIS LANGUAGE BEING QUOTED IN DECISION OF THE COMPTROLLER GENERAL OF AUGUST 6, 1935 (15 COMP. GEN. 102).

FOR A NUMBER OF YEARS THE COMMISSION HAS FOLLOWED THE PRACTICE OF ACCORDING A COMPETITIVE CLASSIFIED STATUS TO A NONCLASSIFIED EMPLOYEE OR A PERMANENT STATUS TO AN UNCLASSIFIED LABORER WHERE THE EMPLOYEE'S NAME IS REACHED FOR CERTIFICATION ON AN APPROPRIATE COMPETITIVE REGISTER AND THE VARIOUS CONDITIONS PRECEDENT TO HIS ACQUISITION OF A STATUS ARE MET IN CONNECTION THEREWITH. THIS POLICY HAS BEEN FOLLOWED WHETHER THE POSITION OCCUPIED BY THE EMPLOYEE IS EXCEPTED BY STATUTE, EXECUTIVE ORDER, OR THE CIVIL-SERVICE RULES. FOR THE GUIDANCE OF FEDERAL OFFICIALS, HOWEVER, IT IS DESIRED AT THIS TIME TO INVITE SPECIFIC ATTENTION TO THE FACT THAT IN ANY CASE OF THIS KIND SUCH AN EMPLOYEE MAY BE ACCORDED THE COMPETITIVE STATUS ONLY AT THE SALARY FOR WHICH HIS NAME IS REACHED. HE IS REQUIRED THEREAFTER TO SERVE THE PROBATIONARY PERIOD IN CONFORMITY WITH THE CIVIL- SERVICE RULES AT SUCH SALARY RATE, AND ON THE SAME DUTIES FOR THE ENTIRE PERIOD OF PROBATION AS WOULD BE REQUIRED HAD HE BEEN APPOINTED ORIGINALLY TO THE POSITION COMPETITIVELY UNDER THE RULES, UNLESS OTHER ACTION IS SPECIFICALLY AUTHORIZED.

AS STATED, THE DECISIONS OF THE COMPTROLLER GENERAL AND THE ACTING COMPTROLLER GENERAL ON THIS SUBJECT RELATE SOLELY TO THE PAYMENT OF SALARY AND DO NOT CHANGE IN ANY WAY THE PROCEDURE UNDER THE CIVIL SERVICE ACT AND THE RULES IN ACCORDING OR WITHHOLDING A CLASSIFIED STATUS.

SEE, ALSO, DEPARTMENTAL CIRCULAR, NATIONAL DEFENSE SERIES NO. 9, SUPPLEMENT NO. 1, ISSUED BY THE COMMISSION UNDER DATE OF JULY 28, 1941, RELAXING THE RULE TO SOME EXTENT IN DEFENSE AGENCIES. THIS OFFICE HAS NO JURISDICTION OR AUTHORITY TO REVIEW OR REVISE THESE REGULATIONS TO CONFORM TO THE RULES STATED IN THE DECISIONS OF THIS OFFICE WITH REFERENCE TO THE CLASSIFICATION ACT.

IN VIEW OF THE TERMS OF THE QUOTED CIVIL-SERVICE REGULATION IT WOULD APPEAR THAT AS TO EACH OF THE CLASSES OF CHANGES IN STATUS PRESENTED IN YOUR LETTER--- THEY ALL INVOLVING A CHANGE FROM AN UNCLASSIFIED TO A COMPETITIVE CLASSIFIED CIVIL-SERVICE STATUS--- THE INITIAL SALARY RATE OF THE EMPLOYEE UPON ACQUIRING THE COMPETITIVE CLASSIFIED CIVIL-SERVICE STATUS IN THE SAME OR A DIFFERENT POSITION WOULD BE THE MINIMUM SALARY RATE OF THE GRADE IN WHICH THE POSITION HAS BEEN ALLOCATED, UNLESS OTHER ACTION IS SPECIFICALLY AUTHORIZED BY THE CIVIL SERVICE COMMISSION. COMPARE 20 COMP. GEN. 191.