B-22953, JANUARY 30, 1942, 21 COMP. GEN. 722

B-22953: Jan 30, 1942

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1942: I HAVE YOUR LETTER OF JANUARY 1. THE DEPARTMENT HAS A NUMBER OF EMPLOYEES WHO WERE SERVING IN EXCEPTED POSITIONS ON OCTOBER 1. WHO WERE ELIGIBLE FOR WITHIN-GRADE ADVANCEMENT ON THAT DATE. HAVE BEEN CERTIFIED FROM CIVIL-SERVICE REGISTERS AND PROBATIONALLY APPOINTED TO POSITIONS OF THE SAME GRADE AND SALARY AS THOSE IN WHICH THEY SERVED IN EXCEPTED POSITIONS. THEY ARE AT PRESENT STILL SERVING THEIR PROBATIONARY PERIODS. IF THESE EMPLOYEES ARE GRANTED WITHIN-GRADE ADVANCEMENTS ON OCTOBER 1. OR AT THE BEGINNING OF ANY SUBSEQUENT QUARTER FOR THOSE EMPLOYEES IN THE SAME CATEGORY WHO WILL BE ELIGIBLE AT SOME FUTURE DATE. THEY CAN RECEIVE THE INCREASED COMPENSATION ONLY FROM THE DATE IT WAS GRANTED TO THE DATE THEY ARE PROBATIONALLY APPOINTED.

B-22953, JANUARY 30, 1942, 21 COMP. GEN. 722

COMPENSATION - WITHIN-GRADE PROMOTIONS - NONPOSTPONEMENT OF EFFECTIVE DATE WITH EMPLOYEES' CONSENT AN EMPLOYEE WHO BECAME ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT AS OF OCTOBER 1, 1941, OR THE BEGINNING OF A SUBSEQUENT QUARTER, BY OPERATION OF THE UNIFORM WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, MAY NOT BY CONSENT POSTPONE THE EFFECTIVE DATE OF THE ADVANCEMENT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, JANUARY 30, 1942:

I HAVE YOUR LETTER OF JANUARY 1, 1942, AS FOLLOWS:

IN CONNECTION WITH THE GRANTING OF WITHIN-GRADE SALARY ADVANCEMENTS UNDER THE PROVISIONS OF SECTION 2 (B) OF THE ACT OF AUGUST 1, 1941 ( PUBLIC 200, 77TH CONGRESS), RETROACTIVE TO OCTOBER 1, 1941, IN ACCORDANCE WITH YOUR DECISION B-20911 OF OCTOBER 14, 1941, THE DEPARTMENT HAS A NUMBER OF EMPLOYEES WHO WERE SERVING IN EXCEPTED POSITIONS ON OCTOBER 1, 1941, AND WHO WERE ELIGIBLE FOR WITHIN-GRADE ADVANCEMENT ON THAT DATE, BUT SUBSEQUENT TO OCTOBER 1, 1941, HAVE BEEN CERTIFIED FROM CIVIL-SERVICE REGISTERS AND PROBATIONALLY APPOINTED TO POSITIONS OF THE SAME GRADE AND SALARY AS THOSE IN WHICH THEY SERVED IN EXCEPTED POSITIONS. THEY ARE AT PRESENT STILL SERVING THEIR PROBATIONARY PERIODS. UNDER THE CIVIL-SERVICE RULES A PROBATIONAL APPOINTMENT MUST BE MADE AT THE MINIMUM SALARY RATE OF THE GRADE. IF THESE EMPLOYEES ARE GRANTED WITHIN-GRADE ADVANCEMENTS ON OCTOBER 1, 1941, OR AT THE BEGINNING OF ANY SUBSEQUENT QUARTER FOR THOSE EMPLOYEES IN THE SAME CATEGORY WHO WILL BE ELIGIBLE AT SOME FUTURE DATE, THEY CAN RECEIVE THE INCREASED COMPENSATION ONLY FROM THE DATE IT WAS GRANTED TO THE DATE THEY ARE PROBATIONALLY APPOINTED, WHICH PERIOD, IN SOME CASES, AMOUNTS TO ONLY A FEW WEEKS OR LESS. THE EMPLOYEES WOULD NOT BE ELIGIBLE FOR FURTHER WITHIN-GRADE ADVANCEMENT UNDER SECTION 2 (B) OF THE ACT UNTIL 18 OR 30 MONTHS FROM THE DATE OF THAT INCREASE, PROVIDED THEY ARE THEN OTHERWISE ELIGIBLE. THE EFFECT OF THIS WOULD BE THAT IN SOME INSTANCES AN EMPLOYEE MUST WAIT PRACTICALLY TWICE THE REQUIRED LENGTH OF TIME BEFORE ANY SUBSTANTIAL BENEFITS CAN BE REALIZED FROM THE ACT.

DECISION IS REQUESTED AS TO WHETHER THE DEPARTMENT MAY, WITH THE EMPLOYEES' CONSENT, WITHHOLD AUTHORIZATION FOR PAYMENT OF THE INCREASES TO THE EMPLOYEES MENTIONED ABOVE, UNTIL THE BEGINNING OF THE QUARTER IMMEDIATELY FOLLOWING THE DATE ON WHICH THE PROBATIONARY PERIOD IS COMPLETED, SO THAT THEY MAY RECEIVE THE CONTINUED BENEFITS OF THE ACT.

IN DECISION OF OCTOBER 27, 1941, 21 COMP. GEN. 369, 371, 375, APPEAR THE FOLLOWING QUESTION AND ANSWER:

A THIRD QUESTION IS WHETHER AN EMPLOYEE WHO WAS DEMOTED IN GRADE AND SALARY, WITHIN THE 18-MONTH PERIOD PRIOR TO OCTOBER 1, AND LATER DURING THE SAME PERIOD WAS RESTORED TO HIS FORMER GRADE AND SALARY, WOULD BE PROMOTABLE IF OTHERWISE ELIGIBLE. AN ILLUSTRATION OF THIS QUESTION WOULD BE AN EMPLOYEE IN GRADE CAF-3 AT $1,620 PER ANNUM OCCUPYING AN EXCEPTED POSITION, WHO UPON BECOMING ELIGIBLE THROUGH CIVIL-SERVICE EXAMINATION, WAS GIVEN A PROBATIONAL APPOINTMENT IN GRADE CAF-2 AT $1,440 PER ANNUM. AFTER THE PROBATIONARY PERIOD HAD BEEN COMPLETED, THE EMPLOYEE WAS RESTORED TO HIS FORMER GRADE AND SALARY OF CAF-3 AT $1,620 PER ANNUM.

THIRD QUESTION.--- IN DECISIONS OF OCTOBER 2, 1941, B-20500, 21 COMP. GEN. 285, AND OCTOBER 13, 1941, B-20841, 21 COMP. GEN. 326, IT WAS HELD THAT A RESTORATION IN COMPENSATION AFTER A REDUCTION IS AN "EQUIVALENT INCREASE IN COMPENSATION" FOR ANY CAUSE WITHIN THE MEANING OF SECTION 2 (B) (1) OF THE STATUTE AND SECTION 1 (D) OF THE PRESIDENT'S REGULATION. IN THE ILLUSTRATION GIVEN, THE 18 MONTHS' PERIOD WOULD BEGIN TO RUN FROM THE DATE THE EMPLOYEE WAS RESTORED TO HIS FORMER GRADE AND SALARY OF CAF-3 AT $1,620 PER ANNUM. THAT QUESTION AND ANSWER INVOLVED THE MEANING OF THE WORDS ,EQUIVALENT INCREASE IN COMPENSATION FROM ANY CAUSE" APPEARING IN SECTION 2 (B) (1) OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 614, AND IT WAS HELD THAT SUCH A RESTORATION IN COMPENSATION CAME WITHIN THE MEANING OF THE QUOTED WORDS OF THE STATUTE AND ACCORDINGLY THAT THE PROMOTABLE PERIOD MUST DATE FROM SUCH RESTORATION IN COMPENSATION.

IN THE DECISION OF OCTOBER 14, 1941, B-20911, 21 COMP. GEN. 335, CITED IN YOUR LETTER, IT WAS HELD AS FOLLOWS (QUOTING FROM THE SYLLABUS):

THE WORDS "SHALL BE ADVANCED IN COMPENSATION" APPEARING IN THE ACT OF AUGUST 1, 1941, PROVIDING FOR UNIFORM WITHIN-GRADE SALARY ADVANCEMENTS, ARE IMPERATIVE AND MANDATORY, AND, THEREFORE, IF AN EMPLOYEE MEETS THE TERMS AND CONDITIONS OF THE STATUTE, HE IS ENTITLED AS A MATTER OF RIGHT TO THE PERIODIC ADVANCEMENT IN SALARY.

THE EFFECTIVE DATE OF THE ACT OF AUGUST 1, 1941, PROVIDING FOR UNIFORM WITHIN-GRADE SALARY ADVANCEMENTS, IS FIXED THEREIN AS JULY 1, 1941, AND SINCE THE FIRST PERIODIC ADVANCEMENT IN SALARY IS AUTHORIZED AND REQUIRED TO BE MADE AS OF OCTOBER 1, 1941, TO ALL EMPLOYEES WHO QUALIFY ON AND AFTER OCTOBER 1, 1941, AND THE BEGINNING OF SUBSEQUENT QUARTERS, THE ONLY LEGAL RATE OF SALARY PAYABLE TO EMPLOYEES WHO QUALIFY AS OF THOSE DATES IS THE ADVANCED SALARY REQUIRED BY THE ACT TO BE PAID.

THE MANDATORY PROVISIONS OF THE ACT OF AUGUST 1, 1941, PROVIDING FOR UNIFORM WITHIN-GRADE SALARY ADVANCEMENTS, SUPERSEDE AND RENDER INOPERATIVE THAT PORTION OF SECTION 7 OF THE CLASSIFICATION ACT OF 1923 PROHIBITING INCREASES IN COMPENSATION "UNLESS CONGRESS HAS APPROPRIATED MONEY FROM WHICH THE INCREASES MAY LAWFULLY BE PAID," AND, THEREFORE, EXISTING SALARY APPROPRIATIONS ARE AVAILABLE FOR PAYMENT OF THE SALARY ADVANCEMENTS FROM AND AFTER OCTOBER 1, 1941, OR FROM AND AFTER THE BEGINNING OF ANY LATER QUARTER OF THE PRESENT FISCAL YEAR, REGARDLESS OF THE FACT THAT A DEFICIENCY MAY BE INCURRED.

WHILE IT IS PROPER THAT ACTUAL PAYMENT OF THE WITHIN-GRADE SALARY ADVANCEMENTS REQUIRED BY THE ACT OF AUGUST 1, 1941, BE POSTPONED PURSUANT TO THE REQUEST OF THE HOUSE APPROPRIATIONS COMMITTEE AND THE BUREAU OF THE BUDGET IN ITS CIRCULAR NO. 381, DATED SEPTEMBER 27, 1941, UNTIL THE APPROPRIATION OF ADDITIONAL FUNDS FOR THE PAYMENT OF THE SALARY INCREASES, SUCH INCREASES WILL BE RETROACTIVELY EFFECTIVE TO OCTOBER 1, 1941, OR TO THE BEGINNING OF A LATER QUARTER OF THE PRESENT FISCAL YEAR FOR THOSE EMPLOYEES WHO OTHERWISE QUALIFY UNDER THE STATUTE.

ANSWERING THE SPECIFIC QUESTION PRESENTED, IT WOULD SEEM TO FOLLOW THAT AN EMPLOYEE WHO BECAME ENTITLED TO A WITHIN-GRADE SALARY ADVANCEMENT AS OF OCTOBER 1, 1941, OR THE BEGINNING OF A SUBSEQUENT QUARTER, BY OPERATION OF LAW, MAY NOT BY CONSENT POSTPONE THE EFFECTIVE DATE OF THE ADVANCEMENT. ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.