B-22646, JANUARY 6, 1942, 21 COMP. GEN. 641

B-22646: Jan 6, 1942

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IS AN "EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE" WITHIN THE MEANING OF THE WITHIN-GRADE SALARY-ADVANCEMENT ACT OF AUGUST 1. OPERATES AS A BAR TO A WITHIN-GRADE PROMOTION UNDER SAID ACT UPON RETRANSFER TO THE PERMANENT ROLL UNTIL AFTER 18 OR 30 MONTHS FROM ITS DATE UNLESS THE RETRANSFER OCCURS AFTER THE TIME WHEN THE EMPLOYEE'S RIGHT WOULD HAVE ACCRUED UNDER THE SALARY-ADVANCEMENT STATUTE HAD HE REMAINED ON THE PERMANENT ROLL. A CENSUS EMPLOYEE WHO WAS GRANTED A SALARY INCREASE EQUAL TO A ONE STEP WITHIN-GRADE PROMOTION INCIDENT TO HIS TRANSFER PURSUANT TO THE ACT OF JUNE 18. WOULD HAVE ACCRUED A RIGHT TO A WITHIN- GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1. AT THE RATE TO WHICH HE WOULD HAVE BEEN ENTITLED UNDER THE SALARY -ADVANCEMENT STATUTE HAD HE REMAINED ON THE PERMANENT ROLL.

B-22646, JANUARY 6, 1942, 21 COMP. GEN. 641

COMPENSATION - WITHIN-GRADE PROMOTIONS - TEMPORARY CENSUS EMPLOYEES RETRANSFERRED TO PERMANENT ROLLS AN INCREASE IN COMPENSATION EQUAL TO A ONE STEP WITHIN-GRADE PROMOTION GRANTED A CENSUS EMPLOYEE, EITHER INCIDENT TO TRANSFER FROM THE PERMANENT TO THE TEMPORARY ROLL PURSUANT TO THE ACT OF JUNE 18, 1929, OR WHILE ON THE TEMPORARY ROLL, IS AN "EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE" WITHIN THE MEANING OF THE WITHIN-GRADE SALARY-ADVANCEMENT ACT OF AUGUST 1, 1941, AND OPERATES AS A BAR TO A WITHIN-GRADE PROMOTION UNDER SAID ACT UPON RETRANSFER TO THE PERMANENT ROLL UNTIL AFTER 18 OR 30 MONTHS FROM ITS DATE UNLESS THE RETRANSFER OCCURS AFTER THE TIME WHEN THE EMPLOYEE'S RIGHT WOULD HAVE ACCRUED UNDER THE SALARY-ADVANCEMENT STATUTE HAD HE REMAINED ON THE PERMANENT ROLL. A CENSUS EMPLOYEE WHO WAS GRANTED A SALARY INCREASE EQUAL TO A ONE STEP WITHIN-GRADE PROMOTION INCIDENT TO HIS TRANSFER PURSUANT TO THE ACT OF JUNE 18, 1929, FROM THE PERMANENT TO THE TEMPORARY ROLL, AND WHO, HAD HE REMAINED ON THE PERMANENT ROLL, WOULD HAVE ACCRUED A RIGHT TO A WITHIN- GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, PRIOR TO THE DATE OF HIS RETRANSFER TO THE PERMANENT ROLL MAY BE PAID, EFFECTIVE IMMEDIATELY UPON RETRANSFER RATHER THAN AT THE BEGINNING OF THE FOLLOWING QUARTER, AT THE RATE TO WHICH HE WOULD HAVE BEEN ENTITLED UNDER THE SALARY -ADVANCEMENT STATUTE HAD HE REMAINED ON THE PERMANENT ROLL.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, JANUARY 6, 1942:

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

SECTION 3 OF THE ACT APPROVED JUNE 18, 1929 (46 STAT. 21), PROVIDING FOR THE FIFTEENTH AND SUBSEQUENT DECENNIAL CENSUSES PROVIDES THAT---

"* * * IN ADDITION TO THE FORCE HEREINBEFORE PROVIDED FOR, THERE MAY BE APPOINTED BY THE DIRECTOR OF THE CENSUS, WITHOUT REGARD TO THE PROVISIONS OF THE CLASSIFICATION ACT, FOR ANY PERIOD NOT EXTENDING BEYOND THE DECENNIAL CENSUS PERIOD, AT RATES OF COMPENSATION TO BE FIXED BY HIM, AS MANY TEMPORARY EMPLOYEES IN THE DISTRICT OF COLUMBIA AS MAY BE NECESSARY TO MEET THE REQUIREMENTS OF THE WORK: PROVIDED, THAT CENSUS EMPLOYEES WHO MAY BE TRANSFERRED TO ANY SUCH TEMPORARY POSITIONS SHALL NOT LOSE THEIR PERMANENT CIVIL-SERVICE STATUS BY REASON OF SUCH TRANSFER: * * *"

PURSUANT TO THE ABOVE-QUOTED STATUTORY PROVISION, A LARGE NUMBER OF PERMANENT EMPLOYEES OF THE BUREAU OF THE CENSUS HAVE BEEN TRANSFERRED FROM PERMANENT POSITIONS WITHIN THE PURVIEW OF THE CLASSIFICATION ACT, AS AMENDED, TO TEMPORARY DECENNIAL CENSUS POSITIONS NOT SUBJECT TO THAT ACT. IN MANY CASES, BECAUSE OF INCREASED RESPONSIBILITIES OR CHANGES IN DUTIES, SUCH EMPLOYEES HAVE BEEN PAID COMPENSATION IN EXCESS OF THAT RECEIVED BY THEM IN THEIR PERMANENT POSITIONS. THESE SALARY INCREASES IN MOST CASES AMOUNT TO AS MUCH AS OR MORE THAN THE COMPENSATION INCREMENTS OF WITHIN- GRADE PROMOTIONS UNDER THE PAY SCHEDULES OF THE CLASSIFICATION ACT. BECAUSE OF COMPLETION OF THE SIXTEENTH DECENNIAL CENSUS WORK ON WHICH PERMANENT CENSUS WORKERS WERE OR ARE ENGAGED SOME HAVE ALREADY BEEN AND OTHERS WILL SOON BE RETRANSFERRED TO PERMANENT POSITIONS.

THE ACT APPROVED AUGUST 1, 1941 ( PUBLIC LAW NO. 200, 77TH CONG.), POPULARLY REFERRED TO AS THE MEAD-RAMSPECK LAW, PROVIDES IN PART AS FOLLOWS:

"SEC. 2. * * * (B) ALL EMPLOYEES COMPENSATED ON A PER ANNUM BASIS, AND OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT, WHO HAVE NOT ATTAINED THE MAXIMUM RATE OF COMPENSATION FOR THE GRADE IN WHICH THEIR POSITIONS ARE RESPECTIVELY ALLOCATED, SHALL BE ADVANCED IN COMPENSATION SUCCESSIVELY TO THE NEXT HIGHER RATE WITHIN THE GRADE AT THE BEGINNING OF THE NEXT QUARTER, FOLLOWING THE COMPLETION OF (1) EACH EIGHTEEN MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $60 OR $100, OR (2) EACH THIRTY MONTHS OF SERVICE IF SUCH EMPLOYEES ARE IN GRADES IN WHICH THE COMPENSATION INCREMENTS ARE $200 OR $250, SUBJECT TO THE FOLLOWING CONDITIONS:

" "/1) THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD, EXCEPT INCREASE MADE PURSUANT TO SUBSECTION (F) OF THIS SECTION; * * * "

IT IS THE OPINION OF THIS DEPARTMENT THAT THE PROMOTION ELIGIBILITY PERIOD OF PERMANENT CENSUS EMPLOYEES WHO HAVE BEEN SERVING IN TEMPORARY DECENNIAL CENSUS POSITIONS, SHOULD BE COMPUTED FROM THEIR LAST SALARY INCREASE WHILE SERVING IN THEIR PERMANENT POSITIONS. THEY SHOULD NOT, BY REASON OF THEIR TRANSFER TO TEMPORARY ASSIGNMENTS, BE DEPRIVED OF WITHIN- GRADE PROMOTIONS WHICH THEY WOULD HAVE RECEIVED AS THE RESULT OF THE ACT OF AUGUST 1, 1941, SUPRA, HAD THEY REMAINED IN THEIR PERMANENT POSITIONS. THE DEPARTMENT'S OPINION IN THIS CONNECTION IS SUPPORTED BY YOUR DECISION OF APRIL 9, 1931 (10 COMP. GEN. 458), DEFINING THE RIGHTS UNDER THE BROOKHART SALARY ACT (46 STAT. 1003) OF PERMANENT EMPLOYEES OF THE BUREAU OF THE CENSUS SIMILARLY SITUATED. THIS DECISION STATED IN PART---

"HOWEVER, IT CLEARLY APPEARS THAT IT WAS NOT THE SPIRIT AND INTENT OF THE STATUTE THAT EMPLOYEES HAVING A PERMANENT CIVIL-SERVICE STATUS SHOULD SUFFER A LOSS IN THEIR PERMANENT STATUS BY REASON OF SERVICE ON THE TEMPORARY ROLL DURING THE PEAK OF THE CENSUS. IT WOULD SEEM TO BE LEGAL AND PROPER, WITHIN AVAILABLE APPROPRIATIONS, TO RESTORE SUCH EMPLOYEES TO THE SAME SALARY STATUS ON THE PERMANENT ROLL THAT THEY WOULD HAVE BEEN ENTITLED TO BY VIRTUE OF THE BROOKHART SALARY ACT, OR REALLOCATION OF PERMANENT POSITION TO A HIGHER GRADE, HAD THEY REMAINED ON THE PERMANENT ROLL, NOTWITHSTANDING THE AVERAGE PROVISION WHICH WILL BE CONSIDERED AS NOT APPLICABLE TO PREVENT SUCH ADJUSTMENTS IN ORDER TO CARRY OUT THE SPIRIT AND INTENT OF THE CENSUS ACT.'

BEFORE TAKING ACTION IN DETERMINING THE ELIGIBILITY FOR WITHIN-GRADE PROMOTIONS OF CENSUS EMPLOYEES UPON RETRANSFER TO THEIR PERMANENT POSITIONS, YOUR DECISION IS REQUESTED ON THE FOLLOWING QUESTIONS:

1. A PERMANENT EMPLOYEE OF THE BUREAU OF THE CENSUS IN GRADE CAF-2, WAS LAST PROMOTED WHILE ASSIGNED TO A PERMANENT POSITION FROM $1,440 TO $1,500 PER ANNUM ON MARCH 1, 1940; ASSIGNED TO A TEMPORARY DECENNIAL CENSUS POSITION AT A SALARY RATE OF $1,560 PER ANNUM ON SEPTEMBER 1, 1940; AND WAS RETRANSFERRED TO THE FORMER PERMANENT POSITION IN THE BUREAU AT $1,500 PER ANNUM ON SEPTEMBER 1, 1941. PROVIDED ALL OTHER CONDITIONS FOR SALARY INCREASE ARE MET, ON WHAT DATE WOULD HE BE ELIGIBLE FOR A WITHIN-GRADE SALARY INCREASE:

(A) 18 MONTHS AFTER MARCH 1, 1940, THE DATE OF HIS LAST PROMOTION WHILE SERVING IN A PERMANENT POSITION?

(B) 18 MONTHS AFTER SEPTEMBER 1, 1940, THE DATE OF HIS LAST PROMOTION WHILE SERVING IN A TEMPORARY POSITION?

(C) 18 MONTHS AFTER SEPTEMBER 1, 1941, THE DATE OF HIS RETRANSFER TO A PERMANENT POSITION?

2. A PERMANENT EMPLOYEE OF THE BUREAU IN GRADE CAF-2 WAS PROMOTED FROM $1,440 TO $1,500 PER ANNUM ON MARCH 15, 1940; WAS ASSIGNED TO A TEMPORARY DECENNIAL CENSUS POSITION AT A SALARY RATE OF $1,560 PER ANNUM ON SEPTEMBER 15, 1940; AND WILL BE RETRANSFERRED TO HIS FORMER PERMANENT POSITION ON MAY 15, 1942. PROVIDED ALL OTHER CONDITIONS FOR SALARY INCREASE ARE MET:

(A) MAY HE BE RETRANSFERRED TO HIS PERMANENT POSITION AT $1,560 PER ANNUM WHICH WILL INCLUDE THE IMMEDIATE BENEFIT OF A WITHIN-GRADE SALARY INCREASE, OR (B) MUST SUCH INCREASE BE DEFERRED UNTIL JULY 1, 1942, THE BEGINNING OF THE FOLLOWING QUARTER?

IN CONNECTION WITH THE QUESTION PRESENTED THERE ARE PARTICULARLY FOR NOTING THE PROVISIONS OF SECTION 2 (B) (1) OF THE ACT OF AUGUST 1, 1941, 55 STAT. 614, FIXING AS ONE OF THE CONDITIONS TO ENTITLE AN EMPLOYEE TO THE PERIODIC WITHIN-GRADE SALARY ADVANCEMENT THAT NO EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE WAS RECEIVED DURING SUCH PERIOD, EXCEPT THE ADDITIONAL MERITORIOUS PROMOTION AUTHORIZED BY SUBSECTION (F) OF THE SAME SECTION OF THE STATUTE. THE EFFECT OF THIS STATUTORY PROVISION IS THAT THE PRESCRIBED PERIOD OF 18 OR 30 MONTHS BEGINS TO RUN FROM THE EFFECTIVE DATE OF AN EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE. SEE DECISION OF OCTOBER 2, 1941, B-20500, 21 COMP. GEN. 285, AND DECISION OF OCTOBER 27, 1941, B-20925, 21 ID. 369. THE WORDS "FROM ANY CAUSE" ARE VERY BROAD AND BECAUSE OF THAT FACT THE REASONING EMPLOYED IN 10 COMP. GEN. 458, QUOTED IN YOUR LETTER, IS NOT ENTIRELY FOR APPLICATION HERE. THERE IS NOTHING IN THE ACT OF JUNE 18, 1929--- APPLICABLE TO CENSUS EMPLOYEES--- OR OTHERWISE, JUSTIFYING OR AUTHORIZING THE CONCLUSION THAT AN INCREASE IN COMPENSATION INCIDENT TO THE TRANSFER OF AN EMPLOYEE FROM THE PERMANENT TO THE TEMPORARY CENSUS ROLL, OR AN EQUIVALENT INCREASE IN COMPENSATION WHILE ON THE TEMPORARY CENSUS ROLL, SHOULD BE CONSIDERED OTHER THAN AS "AN EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE.'

HOWEVER, THE ABOVE STATED RULE MUST BE CONSIDERED TOGETHER WITH THE RULE WITH RESPECT TO THE OPERATION OF SECTION 3 OF THE CENSUS ACT OF 1929, 46 STAT. 21, STATED IN THE DECISION OF OCTOBER 28, 1941, B-21205, 21 COMP. GEN. 386, AS FOLLOWS (QUOTING FROM THE SYLLABUS):

A NONCLASSIFIED TEMPORARY CENSUS EMPLOYEE RESTORED UNDER THE SPECIAL PROVISIONS OF SECTION 3 OF THE ACT OF JUNE 18, 1929, TO A FORMER PERMANENT POSITION STATUS ON THE CENSUS BUREAU PERMANENT ROLL IS ENTITLED, CONTRARY TO THE RULE GENERALLY APPLICABLE TO TRANSFERS FROM NONCLASSIFIED TO CLASSIFIED POSITIONS, TO BE RESTORED NOT ON THE BASIS OF HIS SALARY STATUS IN THE TEMPORARY POSITION BUT ON THE BASIS OF HIS PREVIOUS PERMANENT/ROLL SALARY STATUS, PLUS ANY INCREASE TO WHICH HE WOULD HAVE BEEN ENTITLED BY OPERATION OF LAW HAD HE REMAINED ON THE PERMANENT ROLL.

AS THE WITHIN-GRADE SALARY ADVANCEMENT PLAN FOR EMPLOYEES ON THE PERMANENT CENSUS ROLL DID NOT BECOME EFFECTIVE UNTIL OCTOBER 1, 1941, ANY EMPLOYEE RETRANSFERRED PRIOR TO THAT DATE FROM THE TEMPORARY TO THE PERMANENT ROLL AND WHO WAS ON THE PERMANENT ROLL SEPTEMBER 30, 1941, WOULD NOT HAVE BEEN ENTITLED BY OPERATION OF LAW, WHILE ON THE TEMPORARY ROLL PRIOR TO OCTOBER 1, 1941, TO A WITHIN-GRADE SALARY ADVANCEMENT HAD HE REMAINED ON THE PERMANENT ROLL. THE RULE STATED IN THE DECISION OF OCTOBER 28, 1941, ABOVE QUOTED, IS APPLICABLE ONLY AS OF THE DATE OF RETRANSFER TO THE PERMANENT ROLL, AND WOULD HAVE NO APPLICATION TO AUTHORIZE A WITHIN-GRADE SALARY ADVANCEMENT FIRST ACCRUING AFTER THAT DATE.

ACCORDINGLY, REFERRING TO CASE 1, INVOLVING AN EMPLOYEE WHO WAS ON THE PERMANENT ROLL SEPTEMBER 30, 1941, SAID EMPLOYEE WOULD BE ELIGIBLE FOR A WITHIN-GRADE SALARY INCREASE 18 MONTHS AFTER SEPTEMBER 1, 1940, THE DATE OF HIS LAST PROMOTION WHILE SERVING IN A TEMPORARY POSITION.

REFERRING TO CASE 2, WHICH WOULD INVOLVE AN EMPLOYEE NOT ON THE PERMANENT ROLL SEPTEMBER 30, 1941, SAID EMPLOYEE COULD UNDER EXISTING LAW BE RETRANSFERRED TO HIS PERMANENT POSITION ON MAY 15, 1942, AT THE SALARY RATE OF $1,560. IN OTHER WORDS, UNDER THE RULE STATED IN THE DECISION OF OCTOBER 28, 1941, B-21205, SUPRA, THE RETRANSFER FROM THE TEMPORARY TO THE PERMANENT ROLL ON MAY 15, 1942, MAY BE MADE AT THE RATE OF $1,560 PER ANNUM, THE RATE THE EMPLOYEE WOULD HAVE RECEIVED OCTOBER 1, 1941 (18 MONTHS AFTER THE EQUIVALENT INCREASE IN COMPENSATION RECEIVED ON THE PERMANENT ROLL MARCH 15, 1940), BY OPERATION OF LAW HAD HE REMAINED ON THE PERMANENT ROLL.