B-26077, MAY 29, 1942, 21 COMP. GEN. 1067

B-26077: May 29, 1942

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AN EMPLOYEE WHO WAS TRANSFERRED FROM A POSITION NOT SUBJECT TO THE EFFICIENCY RATING SYSTEM PRESCRIBED BY THE CIVIL SERVICE COMMISSION UNDER THE CLASSIFICATION ACT TO A POSITION SUBJECT TO SUCH SYSTEM WILL NOT BE ENTITLED. TO A WITHIN GRADE PROMOTION UNTIL THE BEGINNING OF A QUARTER WHEN THERE IS ON RECORD AN EFFICIENCY RATING. PROVIDED 18 OR 30 MONTHS DID NOT ELAPSE BETWEEN THE FIRST INCREASE AND THE BEGINNING OF THE QUARTER WHEN THE WITHIN-GRADE PROMOTION OTHERWISE IS DUE. 1942: I HAVE YOUR LETTER OF MAY 11. WERE FOUND NOT TO HAVE BEEN RATED IN THEIR PREVIOUS EMPLOYMENT UNDER A SYSTEM OF EFFICIENCY RATINGS ESTABLISHED UNDER THE CLASSIFICATION ACT OF 1923. RATINGS IN THIS DEPARTMENT HAVE BEEN MADE AS OF MARCH 31.

B-26077, MAY 29, 1942, 21 COMP. GEN. 1067

COMPENSATION - WITHIN-GRADE PROMOTIONS A DECISION RENDERED BY THE COMPTROLLER GENERAL AT THE REQUEST OF THE HEAD OF ONE DEPARTMENT OR ESTABLISHMENT MAY NOT BE RECONSIDERED AT THE REQUEST OF THE HEAD OF ANOTHER DEPARTMENT OR ESTABLISHMENT. THE TENURE OF EMPLOYMENT OF THE INDIVIDUAL EMPLOYEE UNDER THE TERMS OF ANY APPLICABLE LAW, OR UNDER THE TERMS AND CONDITIONS OF HIS APPOINTMENT OR CONTRACT OF EMPLOYMENT, MUST CONTROL IN DETERMINING WHETHER THE EMPLOYEE OCCUPIES A "PERMANENT" OR "TEMPORARY" POSITION WITHIN THE MEANING OF THE WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS THEREUNDER. AN EMPLOYEE WHO WAS TRANSFERRED FROM A POSITION NOT SUBJECT TO THE EFFICIENCY RATING SYSTEM PRESCRIBED BY THE CIVIL SERVICE COMMISSION UNDER THE CLASSIFICATION ACT TO A POSITION SUBJECT TO SUCH SYSTEM WILL NOT BE ENTITLED, UNDER THE WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS THEREUNDER, TO A WITHIN GRADE PROMOTION UNTIL THE BEGINNING OF A QUARTER WHEN THERE IS ON RECORD AN EFFICIENCY RATING, OF GOOD OR BETTER THAN GOOD, FOR THE EMPLOYEE IN HIS NEW POSITION. WHERE AN EMPLOYEE HAS RECEIVED THREE SALARY INCREASES NEITHER ONE OF WHICH EQUALED A ONE-STEP COMPENSATION INCREMENT IN THE LOWEST GRADE HELD BUT ANY TWO OF WHICH EQUALED OR EXCEEDED SUCH INCREMENT, THE 18- OR 30- MONTH PERIOD WHICH THE EMPLOYEE MUST SERVE WITHOUT AN "EQUIVALENT INCREASE IN COMPENSATION" TO BE ELIGIBLE FOR A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS THEREUNDER, BEGAN TO RUN FROM THE DATE OF THE SECOND INCREASE, PROVIDED 18 OR 30 MONTHS DID NOT ELAPSE BETWEEN THE FIRST INCREASE AND THE BEGINNING OF THE QUARTER WHEN THE WITHIN-GRADE PROMOTION OTHERWISE IS DUE.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF LABOR, MAY 29, 1942:

I HAVE YOUR LETTER OF MAY 11, 1942, WHEREIN YOU REQUEST RECONSIDERATION OF CERTAIN PORTIONS OF THE DECISION OF OCTOBER 27, 1941, 21 COMP. GEN. 369, AND WHEREIN, ALSO, YOU REQUEST DECISION ON TWO QUESTIONS STATED AS FOLLOWS:

CASE NO. 1.--- SEVERAL EMPLOYEES RECENTLY ENTERED ON DUTY IN THIS DEPARTMENT, BY TRANSFER FROM OTHER DEPARTMENTS, WERE FOUND NOT TO HAVE BEEN RATED IN THEIR PREVIOUS EMPLOYMENT UNDER A SYSTEM OF EFFICIENCY RATINGS ESTABLISHED UNDER THE CLASSIFICATION ACT OF 1923. RATINGS IN THIS DEPARTMENT HAVE BEEN MADE AS OF MARCH 31, 1942, BUT BECAUSE OF THE NECESSARY REVIEW AND APPROVAL, SUCH RATINGS WILL NOT BE COMPLETED FOR SOME TIME AFTER MARCH 31. A FEW OF THE EMPLOYEES MENTIONED WERE ELIGIBLE FOR SALARY INCREASE ON THE BASIS OF ALL STANDARDS OTHER THAN THEIR EFFICIENCY RATING ON JANUARY 1, 1942, AND OTHERS HAVE BECOME SIMILARLY ELIGIBLE ON APRIL 1, 1942. WILL THE LACK OF A RATING DEPRIVE THESE EMPLOYEES OF THEIR SALARY INCREASES ON THOSE DATES? IF NOT, WILL THE EMPLOYEES BECOME ENTITLED TO SALARY INCREASES AFTER THEY HAVE BEEN RATED GOOD OR BETTER, RETROACTIVELY TO THE DATE OF JANUARY 1 OR APRIL 1?

CASE NO. 2.--- IN CHECKING THE RECORDS OF EMPLOYEES WHO WERE FORMERLY EMPLOYED IN THE BUREAU OF THE CENSUS, THIS DEPARTMENT ENCOUNTERED CASES WHERE A SERIES OF THREE SMALL INCREASES, NONE OF WHICH EQUALED THE INCREMENT OF THE LOWER GRADE HAD BEEN GRANTED. ANY TWO OF THE THREE INCREASES, HOWEVER, EITHER EQUALED OR EXCEEDED THIS INCREMENT. DOES THE PERIOD OF ELIGIBILITY (18 OR 30 MONTHS) BEGIN WITH THE DATE OF THE SECOND INCREASE OR OF THE THIRD INCREASE?

THE DECISION OF OCTOBER 27, 1941, B-20925, 21 COMP. GEN. 369, OF WHICH RECONSIDERATION IS REQUESTED, WAS RENDERED TO THE SECRETARY OF THE INTERIOR IN RESPONSE TO HIS REQUEST OF OCTOBER 1, 1941, AND PROPERLY MAY NOT BE RECONSIDERED AT THE REQUEST OF THE SECRETARY OF LABOR. THAT PART OF THE DECISION TO WHICH YOU HAVE TAKEN EXCEPTION INVOLVED QUESTIONS OF WHETHER, UNDER THE FACTS AND CIRCUMSTANCES THERE APPEARING, AN EMPLOYEE WOULD BE ENTITLED TO THE WITHIN-GRADE AUTOMATIC INCREASE IN SALARY UNDER THE PROVISIONS OF THE ACT OF AUGUST 1, 1941, PUBLIC LAW 200, 55 STAT. 613- -- A PAY STATUTE--- AND THE PRESIDENT'S REGULATIONS THEREUNDER ( EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941), AND WAS NOT INTENDED TO, AND DOES NOT, AFFECT IN ANY WAY THE PREVIOUS HOLDINGS OF THE UNITED STATES CIVIL SERVICE COMMISSION OR OF THIS OFFICE WITH RESPECT TO THE STATUS OR RIGHT OF EMPLOYEES OCCUPYING "PERMANENT" OR "TEMPORARY POSITIONS, OR DURING A PERIOD OF PROBATION UNDER OTHER LAWS AND REGULATIONS, IT BEING PARTICULARLY FOR NOTING THAT THE TERMINOLOGY "PERMANENT POSITIONS" OR "TEMPORARY POSITIONS" FOR CIVIL SERVICE PURPOSES--- CONTROLLING APPOINTMENT PROCEDURE--- IS NOT NECESSARILY CONTROLLING IN THE APPLICATION OF PAY STATUTES, SUCH AS THE ACT OF AUGUST 1, 1941.

WHILE THE DECISION IN QUESTION IS NOT PROPERLY FOR RECONSIDERATION ON THE BASIS OF YOUR REQUEST, NEVERTHELESS, SINCE THE DEPARTMENT OF LABOR DOUBTLESS HAS PERSONNEL PROBLEMS SIMILAR TO THOSE WHICH WERE PRESENTED TO THIS OFFICE BY THE SECRETARY OF THE INTERIOR, THERE HAVE BEEN CAREFULLY CONSIDERED THE ARGUMENTS ADVANCED IN YOUR LETTER IN SUPPORT OF A DIFFERENT BASIS FOR APPLYING THE TERM "PERMANENT POSITIONS" AS USED IN THE ACT OF AUGUST 1, 1941--- THE STATUTE LIMITING THE BENEFITS THEREOF TO "ALL EMPLOYEES COMPENSATED ON A PER ANNUM BASIS AND OCCUPYING PERMANENT POSITIONS WITHIN THE SCOPE OF THE COMPENSATION SCHEDULES FIXED BY THIS ACT.' ( ITALICS SUPPLIED.) A BRIEF DISCUSSION OF THE ARGUMENTS THUS ADVANCED MAY NOT BE AMISS HERE.

SECTION 1 (A) OF EXECUTIVE ORDER NO. 8882 PROVIDES AS FOLLOWS:

(A) "PERMANENT POSITIONS" SHALL INCLUDE ALL POSITIONS EXCEPT THOSE DESIGNATED AS TEMPORARY BY LAW AND THOSE ESTABLISHED FOR DEFINITE PERIODS OF SIX MONTHS OR LESS.

THE ARGUMENTS ADVANCED IN YOUR LETTER ARE BASED ON THE PROPOSITION STATED IN THE FOURTH PARAGRAPH OF YOUR LETTER, THAT:

IT IS THE OPINION OF THIS DEPARTMENT THAT THE RULES CITED FROM YOUR DECISION FAIL TO RECOGNIZE ONE OF THE FUNDAMENTAL PRINCIPLES OF PERSONNEL ADMINISTRATION THAT AN APPOINTMENT AND A POSITION ARE BY NO MEANS IDENTICAL AND THAT THE STATUS OF A POSITION IS NOT AFFECTED BY THE NATURE OF THE APPOINTMENT HELD BY ITS INCUMBENT. * * *

ON THE CONTRARY, THIS OFFICE HAS ALWAYS RECOGNIZED THE PROPOSITION THAT AN APPOINTMENT AND A POSITION ARE NOT NECESSARILY IDENTICAL, AND THAT THE STATUS OF A POSITION IS NOT NECESSARILY AFFECTED BY THE NATURE OF THE APPOINTMENT HELD BY ITS INCUMBENT. THE RULES STATED IN THE DECISION OF OCTOBER 27, 1941, TO WHICH EXCEPTION IS TAKEN IN YOUR PRESENT LETTER, WERE BASED UPON THE FUNDAMENTAL PROPOSITION AS FOLLOWS:

THE ACT OF AUGUST 1, 1941, SUPRA, PROVIDES A PLAN FOR MAKING WITHIN GRADE SALARY ADVANCEMENTS TO EMPLOYEES ON THE BASIS OF THEIR INDIVIDUAL SERVICE. SEE 21 COMP. GEN. 118, 119. HENCE, IT IS THE STATUS OF THE INDIVIDUAL EMPLOYEE WHICH MUST CONTROL IN DETERMINING WHETHER THE EMPLOYEE IS OCCUPYING A "PERMANENT POSITION" AT THE BEGINNING OF ANY QUARTER. WHETHER A POSITION IS ,PERMANENT" OR "TEMPORARY" WITHIN THE MEANING OF THE LAW AND REGULATIONS IS DETERMINED BY THE TENURE OF EMPLOYMENT OF THE INDIVIDUAL EMPLOYEE UNDER THE TERMS OF ANY APPLICABLE LAW, OR THE TERMS AND CONDITIONS OF HIS APPOINTMENT OR CONTRACT OF EMPLOYMENT. * * *

THE ORIGINAL CLASSIFICATION ACT OF 1923, APPROVED MARCH 4, 1923, 42 STAT. 1488, DEFINED THE TERM "POSITION" TO MEAN "A SPECIFIC CIVILIAN OFFICE OR EMPLOYMENT, WHETHER OCCUPIED OR VACANT.' BECAUSE OF SAID DEFINITION IT HAS BEEN HELD IN THE DECISIONS OF THIS OFFICE THAT ALL POSITIONS OTHERWISE COMING WITHIN THE PURVIEW OF THE CLASSIFICATION ACT MUST BE CLASSIFIED REGARDLESS OF THE TENURE OF THE INDIVIDUAL INCUMBENT, THAT IS, WHETHER PERMANENT, TEMPORARY, OR PART TIME. SEE 4 COMP. GEN. 239; ID. 296; ID. 325; ID. 851; 5 ID. 302; ID. 763; 17 ID. 303; 19 ID. 160. THAT IS TO SAY, SO FAR AS THE CLASSIFICATION OF POSITIONS IS CONCERNED THE STATUTE IS DIRECTED TO POSITIONS AND THEIR DUTIES AND RESPONSIBILITIES.

HOWEVER, SECTION 7 OF THE CLASSIFICATION ACT AS AMENDED BY THE ACT OF AUGUST 1, 1941, DOES NOT RELATE TO POSITIONS BUT IS DIRECTED TO EMPLOYEES, THE OCCUPANTS OF POSITIONS, AND PRESCRIBED A PLAN DIFFERENT FROM THE ORIGINAL CLASSIFICATION ACT WHEREBY INDIVIDUAL OCCUPANTS OF PERMANENT POSITIONS MAY BE PERIODICALLY PROMOTED WITHIN THEIR POSITIONS. IF THE CONGRESS HAD INTENDED EVERY EMPLOYEE, REGARDLESS OF TENURE, WHOSE POSITION COMES WITHIN THE SCOPE OF THE CLASSIFICATION ACT TO BE ENTITLED TO WITHIN- GRADE SALARY ADVANCEMENTS, IT WOULD NOT HAVE MADE THE CONDITION THAT THE EMPLOYEES MUST OCCUPY "PERMANENT POSITIONS" TO BE ENTITLED TO SUCH SALARY ADVANCEMENTS. HENCE, THERE CAN BE NO DOUBT BUT THAT THE BENEFITS OF THE STATUTE ARE FOR DETERMINATION ON THE STATUS, SERVICE, AND ATTAINMENTS OF INDIVIDUAL EMPLOYEES. THAT IS NECESSARILY SO. NO AUTOMATIC PROMOTION PLAN WOULD BE PRACTICAL--- AND NONE HERETOFORE HAS BEEN PROVIDED--- ON ANY OTHER BASIS THAN THE INDIVIDUAL STATUS OF EMPLOYEES. THE ONLY PRACTICABLE BASIS FOR DETERMINING WHETHER AN EMPLOYEE OCCUPIES A "PERMANENT POSITION" IS THE TENURE OF HIS APPOINTMENT OR CONTRACT OF EMPLOYMENT. IN LIMITING THE BENEFITS OF THE STATUTE TO EMPLOYEES OCCUPYING "PERMANENT POSITIONS" THE CONGRESS AND THE PRESIDENT EVIDENTLY INTENDED TO EXCLUDE THOSE EMPLOYEES WHOSE TENURE IS OF SHORT DURATION AND WHOSE SERVICE DURING A TEMPORARY PERIOD COULD NOT PROPERLY BE EVALUATED IN TERMS OF EFFICIENCY AND SERVICE AND CONDUCT TO ENTITLE THEM TO A PROMOTION. THE PRESIDENT WAS CAREFUL IN HIS REGULATIONS TO SAVE TO EMPLOYEES THE BENEFIT OF SERVICE IN TEMPORARY POSITIONS IF AND WHEN THEY ARE APPOINTED TO PERMANENT POSITIONS BY PERMITTING THEM TO COUNT SUCH SERVICE IN COMPUTING THE ELIGIBILITY PERIOD OF 18 OR 30 MONTHS. SEE SECTION 2 (A) OF EXECUTIVE ORDER NO. 8882.

ACCORDINGLY, EVEN IF THE PRIOR DECISION WERE PROPERLY FOR RECONSIDERATION AT YOUR REQUEST, THIS OFFICE COULD NOT ACCEPT THE CONTENTIONS ADVANCED IN YOUR LETTER AS IN ANY WISE CONTROLLING IN THE APPLICATION OF THE TERM "PERMANENT POSITIONS," AS USED IN THE ACT OF AUGUST 1, 1941.

CONSIDERATION NOW WILL BE GIVEN TO THE QUESTIONS PRESENTED IN THE CASES NOS. 1 AND 2, STATED IN YOUR LETTER.

AUTOMATIC PROMOTIONS ARE AUTHORIZED TO BE MADE UNDER THE ACT OF AUGUST 1, 1941, ONLY AT THE BEGINNING OF A QUARTER, THAT IS, JANUARY 1, APRIL 1, JULY 1, AND OCTOBER 1. ONE OF THE CONDITIONS PRESCRIBED BY THE STATUTE TO ENTITLE AN EMPLOYEE TO AN AUTOMATIC PROMOTION AT THE BEGINNING OF A QUARTER IS THAT HIS "CURRENT EFFICIENCY IS GOOD OR BETTER THAN GOOD.' SECTION 1 (E) OF EXECUTIVE ORDER NO. 8882, PROVIDES AS FOLLOWS:

(E) "CURRENT EFFICIENCY" SHALL MEAN THE LATEST EFFICIENCY RATING ON RECORD FOR THE EMPLOYEE, MADE UNDER A SYSTEM OF EFFICIENCY RATINGS PRESCRIBED OR APPROVED BY THE CIVIL SERVICE COMMISSION. ( ITALICS SUPPLIED.) HENCE, AN AUTOMATIC PROMOTION MAY BE MADE AT THE BEGINNING OF A QUARTER ONLY IF THERE BE ON RECORD AN EFFICIENCY RATING OF THE INDIVIDUAL EMPLOYEE, MADE IN ACCORDANCE WITH A SYSTEM OF EFFICIENCY RATINGS PRESCRIBED OR APPROVED BY THE CIVIL SERVICE COMMISSION, ENTITLING THE INDIVIDUAL EMPLOYEE TO A PROMOTION. THE SYSTEM OF EFFICIENCY RATINGS PRESCRIBED OR APPROVED BY THE CIVIL SERVICE COMMISSION--- SEE " EFFICIENCY RATING MANUAL," EFFECTIVE MARCH 31, 1942 -- PROVIDES FOR AN ANNUAL EFFICIENCY RATING AS OF MARCH 31 OF EACH YEAR, BUT DOES NOT PROVIDE FOR A SPECIAL RATING RETROACTIVELY EFFECTIVE IN THE CASE OF EMPLOYEES TRANSFERRED FROM A POSITION NOT SUBJECT TO THE EFFICIENCY RATING SYSTEM PRESCRIBED UNDER THE CLASSIFICATION ACT TO A POSITION SUBJECT TO SUCH EFFICIENCY RATING SYSTEM. ACCORDINGLY, THE EMPLOYEES MENTIONED IN CASE NO. 1 WILL BE ENTITLED TO AUTOMATIC PROMOTIONS EFFECTIVE JULY 1, 1942--- AND NOT PRIOR THERETO--- IF AT THAT TIME THE EFFICIENCY RATINGS MADE AS OF MARCH 31, 1942, BE ON RECORD AND AVAILABLE AS A BASIS FOR MAKING AUTOMATIC PROMOTIONS.

SECTION 1 (D) OF EXECUTIVE ORDER NO. 8882 PROVIDES:

(D) "EQUIVALENT INCREASE IN COMPENSATION" SHALL MEAN ANY INCREASE OR INCREASES WHICH IN TOTAL ARE EQUAL TO OR GREATER THAN THE COMPENSATION INCREMENT IN THE LOWEST GRADE IN WHICH THE EMPLOYEE HAS SERVED DURING THE TIME PERIOD OF EIGHTEEN OR THIRTY MONTHS, AS THE CASE MAY BE.

ACCORDINGLY, UNDER THE PLAIN TERMS OF THIS REGULATION, THE PERIOD OF ELIGIBILITY (18 OR 30 MONTHS) OF EMPLOYEES MENTIONED IN CASE NO. 2 BEGAN TO RUN FROM THE DATE OF THE SECOND INCREASE, PROVIDED, OF COURSE, THAT A PERIOD OF 18 OR 30 MONTHS, AS THE CASE MAY BE, DID NOT ELAPSE BETWEEN THE FIRST INCREASE AND THE DATE (BEGINNING OF THE QUARTER) WHEN THE AUTOMATIC PROMOTION OTHERWISE IS DUE.