B-224791, MAR 19, 1987

B-224791, MAR 19, 1987

CIVILIAN PERSONNEL - COMPENSATION - COMPENSATION RETENTION - FOREIGN SERVICE PERSONNEL - RECLASSIFICATION - GENERAL SCHEDULE PERSONNEL DIGEST: UNDER THE FOREIGN SERVICE ACT OF 1980, CERTAIN EMPLOYEES OF THE DEPARTMENT OF STATE WERE TO BE INVOLUNTARILY CONVERTED TO THE GENERAL SCHEDULE WITHOUT A REDUCTION IN CLASS, GRADE, OR BASIC RATE OF PAY. DURING A TRANSITION PERIOD OF 3 YEARS, THE INDIVIDUALS CONVERTED HAD A RIGHT TO BE PAID UNDER THE SENIOR FOREIGN SERVICE SCHEDULE. EMPLOYEE ALLEGES THAT DURING CONVERSION TO SENIOR FOREIGN SERVICE SCHEDULE, HE WAS REDUCED IN GRADE. EMPLOYEE WAS CONVERTED CONSISTENT WITH REGULATIONS AND HIS BELIEF THAT HE WAS DOWNGRADED WAS DUE TO AMBIGUITY IN AND RESULTING MISUNDERSTANDING ABOUT A FORM MEMORIALIZING HIS CONVERSION.

THE HONORABLE AUSTIN J. MURPHY:

THIS IS IN RESPONSE TO YOUR LETTER OF SEPTEMBER 18, 1986, WITH ENCLOSURES, REGARDING THE CONCERN OF YOUR CONSTITUENT, MR. KENNETH R. STRAWBERRY, THAT THE DEPARTMENT OF STATE MAY HAVE IMPROPERLY CONVERTED HIM FROM THE FOREIGN SERVICE SCHEDULE TO THE GENERAL SCHEDULE. MR. STRAWBERRY'S SPECIFIC CONCERN IS THAT THE DEPARTMENT OF STATE ARBITRARILY DOWNGRADED HIM AND REDUCED HIS BASIC RATE OF PAY WHEN HE WAS CONVERTED FROM THE FOREIGN SERVICE SCHEDULE TO THE GENERAL SCHEDULE AS REQUIRED BY THE FOREIGN SERVICE ACT OF 1980, PUBLIC LAW 96-465, 94 STAT. 2071, CODIFIED AT 22 U.S.C. SEC. 3901 ET SEQ. WE CONCLUDE THAT THE DEPARTMENT ACTED WITHIN ITS AUTHORITY WHEN IT CONVERTED MR. STRAWBERRY.

UNDER CERTAIN SECTIONS OF THE FOREIGN SERVICE ACT OF 1980, CODIFIED AT SUBCHAPTER 12 OF TITLE 22, U.S.C. INDIVIDUALS SUCH AS MR. STRAWBERRY, WHO HELD POSITIONS UNDER THE FOREIGN SERVICE SCHEDULE BUT WERE NOT AVAILABLE FOR WORLDWIDE ASSIGNMENT, WERE TO BE CONVERTED TO THE GENERAL SCHEDULE BY FEBRUARY 15, 1984. DURING THE TRANSITION PERIOD BETWEEN THE PASSAGE OF THE ACT, OCTOBER 17, 1980, AND THE TIME OF CONVERSION TO THE GENERAL SCHEDULE, MR. STRAWBERRY WAS ENTITLED TO BE A MEMBER OF THE SENIOR FOREIGN SERVICE, A SYSTEM SET UP BY THE ACT ANALOGOUS TO THE SENIOR EXECUTIVE SERVICE. INDIVIDUALS WERE TO BE PLACED IN THE SENIOR FOREIGN SERVICE WITHIN 120 DAYS OF FEBRUARY 15, 1981, AND THEN CONVERTED TO THE GENERAL SCHEDULE WITHIN 3 YEARS OF THE EFFECTIVE DATE OF THE ACT.

WHEN THE AGENCY CONVERTED MR. STRAWBERRY AND OTHERS SIMILARLY SITUATED, IT WAS REQUIRED TO COMPLY WITH A PROVISION OF THE ACT MANDATING THAT THE CONVERTED INDIVIDUALS SUFFER NO PECUNIARY OR OTHER DETRIMENT. SPECIFICALLY, THE LAW PROVIDED THAT:

"EVERY INDIVIDUAL WHO IS CONVERTED UNDER THIS SUBCHAPTER SHALL BE CONVERTED TO THE CLASS OR GRADE AND PAY RATE THAT MOST CLOSELY CORRESPONDS TO THE CLASS OR GRADE AND STEP AT WHICH THE INDIVIDUAL WAS SERVING IMMEDIATELY BEFORE CONVERSION. NO CONVERSION UNDER THIS SUBCHAPTER SHALL CAUSE ANY INDIVIDUAL TO INCUR A REDUCTION IN HIS OR HER CLASS, GRADE, OR BASIC RATE OF SALARY." 22 U.S.C. SEC. 4156(A)(1).

THE SECRETARY OF STATE WAS GIVEN THE AUTHORITY TO PROMULGATE REGULATIONS TO IMPLEMENT THE REVISED PERSONNEL SYSTEM SET UP UNDER THE ACT. SEE 22 U.S.C. SEC. 4157. UNDER THIS AUTHORITY, THE SECRETARY ESTABLISHED A SYSTEM OF CONVERSION EXPLAINED IN DETAIL IN FOREIGN AFFAIRS MANUAL CIRCULAR (FAMC) NO. 7, VOL. 3 - PERSONNEL, FEBRUARY 13, 1981. PARTICULAR RELEVANCE TO THE PRESENT INQUIRY IS APPENDIX B, "DOMESTIC PAY AND CONVERSION PROCESS," WHICH SET OUT THE CONVERSION PROCESS FOR INDIVIDUALS IN MR. STRAWBERRY'S SITUATION.

WHEN THE ACT WAS PASSED, MR. STRAWBERRY HELD THE POSITION OF INFORMATION OFFICER OR FOREIGN SERVICE RESERVE UNLIMITED (FSRU) OFFICER UNDER PART I OF THE FOREIGN SERVICE SCHEDULES AT THE CLASS 2, STEP 7, LEVEL. AS AN FSRU OFFICER AT LEVEL 2/7, HIS SCHEDULED RATE OF COMPENSATION PRIOR TO CONVERSION WAS $62,241 ALTHOUGH HIS RATE OF PAY WAS STATUTORILY LIMITED TO $50,112.50. SEE EXECUTIVE ORDER NO. 12248, OCTOBER 16, 1980.

UPON PASSAGE OF THE ACT MR. STRAWBERRY WAS TO BE CONVERTED TO THE SENIOR FOREIGN SERVICE WITHOUT SUFFERING A REDUCTION IN HIS CLASS, GRADE OR BASIC RATE OF SALARY. THAT IS, HE WAS TO BE PLACED IN THE SFS IN A LEVEL COMPARABLE TO HIS FORMER FSRU LEVEL. ALSO, HE WAS ENTITLED TO BE CONVERTED LATER TO THE GENERAL SCHEDULE WITHOUT REDUCTION IN HIS CLASS, GRADE OR BASIC RATE OF SALARY. THUS, WE MUST EXAMINE WHAT TRANSPIRED UPON THE INITIAL CONVERSION IN 1981 AND THE SUBSEQUENT CONVERSION IN 1984, ALTHOUGH, AS WILL BE ILLUSTRATED BELOW, IT WAS THE INITIAL CONVERSION THAT WAS THE CRITICAL ONE.

THE SENIOR FOREIGN SERVICE WAS SET UP UNDER EXECUTIVE ORDER NO. 12293, FEBRUARY 23, 1981. THE SFS ADOPTED THE SES LEVELS AND PAY SCALES SET OUT IN EXECUTIVE ORDER NO. 12248, OCTOBER 16, 1980, SO THAT THE SFS, AS DID THE SES, HAD SIX LEVELS WITH THE SCHEDULED RATES RANGING FROM $52,247 FOR SFS-1 TO $61,600 FOR SFS-6. THE ACTUAL RATE OF PAY, WITH CERTAIN EXCEPTIONS NOT RELEVANT HERE, FOR ALL SES LEVELS WAS LIMITED TO $50,112.50.

MR. STRAWBERRY AND ALL FSRU'S AT LEVEL 2/7 WERE PLACED IN SES LEVEL 4 WITH A SCHEDULED RATE OF PAY OF $57,673 AND AN ACTUAL RATE OF PAY OF $50,112.50. MR. STRAWBERRY HAS TWO BASIC COMPLAINTS ABOUT THIS INITIAL CONVERSION PROCESS, NAMELY THAT HE SUFFERED REDUCTIONS IN BOTH GRADE AND BASIC RATE OF SALARY.

HIS COMPLAINT RELATIVE TO HIS REDUCTION IN GRADE APPEARS TO ARISE FROM CERTAIN AGENCY FORMS HE RECEIVED WHICH ARE AMBIGUOUS. IN REGARD TO HIS CONVERSION, THE AGENCY SENT MR. STRAWBERRY A NOTIFICATION OF PERSONNEL ACTION DATED JANUARY 15, 1982, EFFECTIVE SEPTEMBER 28, 1981, TO WHICH YOU REFER IN YOUR LETTER, ADVISING HIM THAT HIS GRADE HAD BEEN CHANGED FROM "0207" TO "0204." SUBSEQUENTLY HE RECEIVED A CORRECTED NOTIFICATION OF PERSONNEL ACTION DATED MARCH 11, 1982, WHICH AGAIN SEEMED TO INDICATE HIS GRADE HAD BEEN CHANGED FROM 02/07 TO 02/04. MR. STRAWBERRY INDICATES THE BELIEF THAT HE MAY HAVE BEEN ARBITRARILY REDUCED FROM FSRU CLASS 2, STEP 7, TO FSRU CLASS 2, STEP 4. FROM A PERUSAL OF THE FORMS AND AN AGENCY LETTER EXPLAINING THEIR MEANING, WE COULD NOT ESTABLISH IF HIS INTERPRETATION WAS CORRECT, ALTHOUGH WE NOTED THAT THE FORMS INDICATED THAT NO REDUCTION IN SALARY WOULD RESULT FROM THE PERSONNEL ACTION. THEREFORE, WE INFORMALLY CONTACTED THE AGENCY AND WERE ADVISED THAT THE CHANGE ON THE FORM SHOULD BE READ AS AN 02/07 BEING CHANGED TO SFS LEVEL FOUR. THE "0204" MEANS THAT MR. STRAWBERRY WAS A FORMER CLASS 2 FOREIGN SERVICE OFFICER BEING CONVERTED TO SFS LEVEL 4. THUS, THE AGENCY HAD NOT REDUCED MR. STRAWBERRY'S GRADE.

IN VIEW OF THE ABOVE, THE ONLY REAL ISSUE IS WHETHER MR. STRAWBERRY SUFFERED A REDUCTION IN HIS BASIC RATE OF SALARY SINCE HIS NEW SCHEDULED RATE (AT SFS LEVEL 4) WAS LESS THAN HIS FORMER SCHEDULED RATE. IN THIS REGARD MR. STRAWBERRY SUGGESTS THAT HIS AGENCY SHOULD HAVE CONVERTED HIM TO SFS LEVEL 6 SINCE HIS SCHEDULED RATE AS AN FSRU 2/7 WAS SLIGHTLY IN EXCESS OF AN SFS-6.

OBVIOUSLY, HAD MR. STRAWBERRY SIMPLY BEEN CONVERTED INTO THE SFS ON THE BASIS OF PLACING HIM IN THE LEVEL WITH THE SCHEDULED SALARY MOST NEARLY APPROXIMATING HIS UNDER THE REPEALED FOREIGN SERVICE SCHEDULE, HE WOULD HAVE BEEN PLACED IN LEVEL SFS-6 WHICH HAD A SCHEDULED PAY RATE OF $61,300. THIS TYPE ACTION, HOWEVER, DOES NOT APPEAR TO BE MANDATED BY THE ACT. THE DEPARTMENT OF STATE, RECOGNIZING THE DISCRETION AFFORDED TO IT AS THE AGENCY RESPONSIBLE FOR IMPLEMENTING THE ACT, CHOSE NOT TO CONVERT FORMER FSRU'S AT LEVEL 2/7 TO SFS-6 SINCE THIS EFFECTIVELY WOULD HAVE GIVEN THESE INDIVIDUALS AN INCREASE IN THEIR CLASS OR GRADE. SPECIFICALLY AN FSRU 2/7 WAS NOT THE TOP GRADE OR CLASS UNDER THE FOREIGN SERVICE SCHEDULE AND, THEREFORE, NEED NOT HAVE BEEN PLACED AT THE TOP GRADE OR CLASS UNDER THE SFS.

THE AGENCY DEVISED A SYSTEM WHEREBY INDIVIDUALS SUCH AS MR. STRAWBERRY WOULD SUFFER NO LOSS IN EITHER THEIR SCHEDULED RATE OF PAY OR THEIR ACTUAL RATE OF PAY. SINCE BOTH BEFORE AND WHEN PLACED ON THE SFS SCHEDULE MR. STRAWBERRY WAS RECEIVING THE MAXIMUM AMOUNT PAYABLE BY LAW, $50,112.50, IT IS CLEAR THAT HE SUFFERED NO LOSS OF ACTUAL PAY.

THE AGENCY, HOWEVER, ALSO ENSURED THAT HE WOULD NEVER SUFFER A LOSS IN HIS SCHEDULED RATE OF PAY OF $62,241. THE AGENCY ENSURED THAT MR. STRAWBERRY'S PREVIOUS SCHEDULED RATE WOULD BE MAINTAINED WHEN HE WAS PLACED IN SFS-4, WHICH HAD A SCHEDULED RATE OF $57,673, BY PROVIDING HIM A SPECIAL "PROTECTED RATE" OF $62,241. THE "PROTECTED RATE" WAS THE RATE OF PAY MR. STRAWBERRY COULD RECEIVE UNLESS PRECLUDED BY SOME OTHER LAW. FOR EXAMPLE IN 1981, MR. STRAWBERRY WAS STATUTORILY LIMITED TO ACTUAL PAY OF $50,112.50 ALTHOUGH HIS SCHEDULED RATE AS AN SFS-4 WAS $57,673. IF, HOWEVER, THE STATUTORY MAXIMUM HAD BEEN $63,000 IN 1981, MR. STRAWBERRY WOULD HAVE BEEN PAID AT THE "PROTECTED RATE" OF $62,241 ALTHOUGH HIS SCHEDULED RATE AS AN SFS-4 WAS ONLY $57,673.

THUS, MR. STRAWBERRY NEVER HAD HIS SCHEDULED RATE OF PAY REDUCED. DURING THE 3-YEAR PERIOD HE WAS PAID AS AN SFS-4, HE WAS ALWAYS ENTITLED TO RECEIVE THE "PROTECTED RATE" OF $62,241 IF THIS WAS MORE THAN THE SCHEDULED RATE FOR SFS-4 BUT LESS THAN THE MAXIMUM PAYABLE UNDER THE LAW. IN FACT HE NEVER RECEIVED PAY AT THE PROTECTED RATE, SINCE FOR FISCAL YEARS 1981 AND 1982, BOTH THE SCHEDULED RATES AND PROTECTED RATES FOR MR. STRAWBERRY EXCEEDED THE MAXIMUM RATE PAYABLE UNDER THE LAW. IN FISCAL YEAR 1983, HE NO LONGER HAD A "PROTECTED RATE," SINCE HIS SCHEDULED RATE OF $63,800 AS AN SFS-4 EXCEEDED HIS "PROTECTED RATE."

WHEN MR. STRAWBERRY'S 3-YEAR PERIOD OF ENTITLEMENT TO BE PAID UNDER THE SFS ENDED, HE WAS BEING PAID $66,400 AS AN SFS-4. SEE EXECUTIVE ORDER NO. 12477, MAY 23, 1984 (EFFECTIVE THE FIRST PAY PERIOD BEGINNING AFTER JANUARY 1, 1984). AT THIS POINT, THE AGENCY CONVERTED HIM TO THE GENERAL SCHEDULE AT GRADE 16, STEP 5, AT SCHEDULED SALARY OF $67,119, WHICH WAS LIMITED TO A MAXIMUM PAYABLE RATE OF $66,400 AT THAT TIME. THUS, THE AGENCY ENSURED THAT MR. STRAWBERRY SUFFERED NO REDUCTION IN CLASS, GRADE OR BASIC SALARY.

MR. STRAWBERRY SUGGEST, HOWEVER, THAT HE SHOULD HAVE BEEN CONVERTED TO THE GENERAL SCHEDULE AT GRADE 16, STEP 7, ON THE BASIS THAT HAD HE ORIGINALLY BEEN CONVERTED TO SFS-6 THEN UPON CONVERSION TO THE GENERAL SCHEDULE, HE WOULD HAVE BEEN A GRADE 16, STEP 7. SINCE IT APPEARS THAT THE AGENCY'S ACTION OF PLACING HIM IN SFS-4 WAS CONSISTENT WITH THE LAW, THE AGENCY CORRECTLY PLACED MR. STRAWBERRY IN GRADE 16, STEP 5.

ALSO, IT SHOULD BE NOTED THAT AT ALL TIMES SINCE HIS CONVERSION TO THE SCHEDULE, MR. STRAWBERRY'S SCHEDULED RATE AS A GRADE 16, STEP 5, HAS BEEN IN EXCESS OF THE MAXIMUM PAYABLE IN LAW. THEREFORE, EVEN IF HE HAD BEEN CONVERTED TO A STEP 7, HE WOULD NOT HAVE RECEIVED ANY GREATER REMUNERATION.

ACCORDINGLY, MR. STRAWBERRY SUFFERED NO REDUCTION IN BASIC RATE OF PAY AND HIS CONVERSION TO THE GENERAL SCHEDULE, CONSISTENT WITH FAMC NO. 7, VOL. 3, WAS IN ACCORD WITH THE PROVISIONS OF THE FOREIGN SERVICE ACT OF 1980.