B-38950, JANUARY 4, 1944, 23 COMP. GEN. 486

B-38950, JANUARY 4, 1944, 23 COMP. GEN. 486

COMPENSATION - RESTORATION TO FORMER GRADE AND SALARY THROUGH EFFICIENCY RATING APPEAL; WITHIN-GRADE PROMOTION WHERE, DUE TO A REDUCTION IN FORCE, AN EMPLOYEE WITH AN EFFICIENCY RATING OF "FAIR-7" WAS REDUCED IN GRADE AND SALARY, AND SUBSEQUENTLY RESTORED TO HIS FORMER GRADE AND SALARY BY REASON OF A DECISION OF AN EFFICIENCY RATING APPEALS BOARD CHANGING SUCH RATING TO "GOOD/5," THERE IS NO AUTHORITY UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, EXECUTIVE ORDER NO. 9252, OR REGULATIONS OF THE CIVIL SERVICE COMMISSION TO PAY THE EMPLOYEE THE SALARY RATE, RETROACTIVELY EFFECTIVE AS OF THE DATE OF THE REDUCTION, OF THE HIGHER GRADE WHICH HE, IN FACT, DID NOT HOLD DURING THE PERIOD OF SUCH REDUCTION. IN THE CASE OF AN EMPLOYEE WHO WAS REDUCED IN GRADE AND SALARY ON THE BASIS OF HIS EFFICIENCY RATING, AND SUBSEQUENTLY RESTORED TO HIS FORMER GRADE AND SALARY AS THE RESULT OF AN APPEAL TO AN EFFICIENCY RATING BOARD, THE RESTORATION OF THE EMPLOYEE TO HIS FORMER POSITION NEED NOT BE REGARDED AS AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, AND, THEREFORE, SUCH AN EMPLOYEE MAY BE RESTORED TO THE SALARY RATE OF HIS FORMER GRADE PLUS ANY AUTOMATIC PROMOTION HE WOULD HAVE RECEIVED HAD HE NOT BEEN SO REDUCED.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, INTERSTATE COMMERCE COMMISSION, JANUARY 4, 1944:

THERE WAS RECEIVED DECEMBER 14, 1943, AN UNDATED LETTER FROM THE SECRETARY AND AUTHORIZED CERTIFYING OFFICER OF THE INTERSTATE COMMERCE COMMISSION, REFERENCE WPB:HS, READING AS FOLLOWS:

THE FOLLOWING QUESTION HAS ARISEN IN CONNECTION WITH THE APPLICATION OF SECTION 9 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND OF THE REGULATIONS APPROVED IN EXECUTIVE ORDER NO. 9252, DATED OCTOBER 9, 1942, RELATING TO BOARD OF REVIEW ON EFFICIENCY RATINGS AND OF THE ACT OF AUGUST 1, 1941 ( PUBLIC LAW 200, 77TH CONGRESS):

AN ASSOCIATE EXAMINER IN THE INTERSTATE COMMERCE COMMISSION WAS PROMOTED ON APRIL 1, 1942, FROM A P-2 POSITION AT $2,700 PER ANNUM TO P-3 OF $3,200 PER ANNUM. HE WAS GIVEN AN EFFICIENCY RATING OF "FAIR 7" FOR THE PERIOD ENDED MARCH 31, 1943. BECAUSE OF THE NECESSITY FOR A REDUCTION IN OUR FORCE IN THE SECTION IN WHICH EMPLOYED, THIS EMPLOYEE WAS TRANSFERRED TO ANOTHER SECTION OF THE COMMISSION AND REDUCED IN GRADE TO THAT OF JUNIOR EXAMINER IN P-1 AT $2,600 PER ANNUM EFFECTIVE JUNE 7, 1943. HE APPEALED HIS EFFICIENCY RATING TO THE BOARD OF REVIEW IN ACCORDANCE WITH U.S. CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR NO. 265, REVISED, ISSUED PURSUANT TO THE CLASSIFICATION OF ACT AND THE EXECUTIVE ORDER REFERRED TO. AFTER HEARING THE BOARD OF REVIEW RENDERED THE FOLLOWING DECISION---

"THE EFFICIENCY RATING IS CHANGED FROM "FAIR-7" TO "GOOD/5.' THE DECISION OF THE BOARD OF REVIEW ALSO CONTAINED THE FOLLOWING STATEMENT --

ENTITLED " PROCEDURAL INSTRUCTION RELATING TO BOARD OF REVIEW ON EFFICIENCY RATINGS.'

"ALL RECORDS OF THE DEPARTMENT SHALL BE CORRECTED ACCORDINGLY AND APPROPRIATE CORRECTIVE ACTION SHALL BE INITIATED IN COMPLIANCE WITH SECTION 403 OF CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR NO. 265 ( REVISED).'

SECTION 403 READS:

"EFFECT OF DECISIONS.--- UPON RECEIPT OF THE ANNOUNCED DECISION OF THE BOARD OF REVIEW MAKING AN ADJUSTMENT IN THE EFFICIENCY RATING OF AN EMPLOYEE, THE DEPARTMENT SHALL CAUSE THE ADJUSTED EFFICIENCY RATING TO BE SUBSTITUTED IN ITS OFFICIAL RECORDS FOR THE ORIGINAL EFFICIENCY RATING IN EACH PLACE WHERE THE ORIGINAL EFFICIENCY RATING WAS RECORDED, SHALL RECONSIDER ANY AND ALL ADMINISTRATIVE ACTIONS BASED ON THE ORIGINAL EFFICIENCY RATING, AND IN SO FAR AS POSSIBLE UNDER THE LAW AND REGULATIONS AND IN THE PUBLIC INTEREST, RE-DETERMINE AND ADJUST SUCH ADMINISTRATIVE ACTIONS TO CONFORM TO THE ADJUSTED EFFICIENCY RATINGS.'

THIS DECISION OF THE BOARD OF REVIEW WAS DATED OCTOBER 6, 1943, BUT WAS NOT APPROVED AND SENT UNTIL NOVEMBER 24, 1943. IN VIEW OF THE ACTION OF THE BOARD THE COMMISSION HAS REINSTATED THIS EMPLOYEE TO THE POSITION FORMERLY OCCUPIED AS AN ASSOCIATE EXAMINER IN P-3 EFFECTIVE DECEMBER 7, 1943.

THE FOLLOWING QUESTIONS ARE PRESENTED:

(1) IN VIEW OF THE ACTION OF THE BOARD OF REVIEW IN CHANGING THE EFFICIENCY RATING FROM ,FAIR-7" TO "GOOD/5," WILL IT BE NECESSARY FOR THE COMMISSION TO RECONSIDER ITS ADMINISTRATIVE ACTION BASED ON THE ORIGINAL EFFICIENCY RATING AND RESTORE THE EMPLOYEE'S SALARY TO $3,200 AS OF JUNE 7, 1943, THE DATE HIS GRADE WAS CHANGED TO P-1 AND HIS SALARY REDUCED TO $2,600 PER ANNUM? IF THE ANSWER IS IN THE NEGATIVE, THIS FURTHER QUESTION IS PROPOUNDED:

(2) UNDER PUBLIC 200 THIS EMPLOYEE WOULD HAVE BEEN ENTITLED TO AN AUTOMATIC PROMOTION OF $100 EFFECTIVE OCTOBER 1, 1943, BUT FOR THE ADMINISTRATIVE ACTION IN REDUCING HIS GRADE FROM P-3 TO P-1 EFFECTIVE JUNE 7, 1943. THIS EMPLOYEE HAD MILITARY PREFERENCE AND HAD HE BEEN GIVEN A RATING INITIALLY OF "GOOD/5," HE WOULD NOT HAVE BEEN ONE OF THOSE SELECTED FOR RELEASE, TRANSFER, OR DEMOTION. THE QUESTION ARISES AS TO WHETHER HE SHOULD BE RESTORED TO THE P-3 POSITION AT $3,300 PER ANNUM RATHER THAN THE MINIMUM OF THE GRADE OF $3,200 PER ANNUM.

WE ARE NOT UNMINDFUL OF YOUR DECISION B-20500, 21 C.G. 285, BUT THE FACTS HERE PRESENTED ARE DIFFERENT THAN THOSE IN THE CASE CITED, IN THAT WE ARE NOW CALLED UPON TO RECONSIDER OUT ADMINISTRATIVE ACTION IN ACCORDANCE WITH SECTION 403 OF CIVIL SERVICE COMMISSION DEPARTMENTAL CIRCULAR NO. 265 ( REVISED).

(3) IF HE MAY NOT BE RESTORED TO HIS FORMER POSITION AT $3,300, WHAT DATE SHALL BE USED IN DETERMINING WHEN THE RAMSPECK PROMOTION IS DUE?

IT IS UNDERSTOOD THAT, BECAUSE OF A REDUCTION IN FORCE, THE INVOLVED EMPLOYEE WAS ADMINISTRATIVELY TRANSFERRED AND REDUCED FROM A POSITION IN GRADE P-3, WITH SALARY AT THE RATE OF $3,200 PER ANNUM, TO A POSITION IN GRADE P-1, WITH SALARY AT THE RATE OF $2,600 PER ANNUM--- THE MAXIMUM RATE OF THE GRADE--- EFFECTIVE JUNE 7, 1943, AND THAT, BECAUSE OF SUBSEQUENT DEVELOPMENTS, HE WAS RESTORED TO HIS FORMER POSITION AND SALARY EFFECTIVE DECEMBER 7, 1943. ALSO, IT IS UNDERSTOOD THAT THE SELECTION OF THE EMPLOYEE FOR REDUCTION WAS BASED UPON HIS "FAIR-7" EFFICIENCY RATING OF RECORD AT THE TIME OF THE REDUCTION. HOWEVER, REGARDLESS OF THE ADMINISTRATIVE REASON FOR THE REDUCTION OF THE EMPLOYEE FROM ONE POSITION TO ANOTHER, THERE IS NO AUTHORITY OF LAW TO PAY THE EMPLOYEE A SALARY RATE RETROACTIVELY EFFECTIVE PRIOR TO DECEMBER 7, 1943, IN A GRADE (P-3) OR POSITION WHICH HE, IN FACT, DID NOT HOLD. AS HE WAS PAID AT THE MAXIMUM SALARY RATE OF GRADE P-1, IN WHICH THE POSITION HE OCCUPIED DURING THE PERIOD JUNE 7 TO DECEMBER 6, 1943, INCLUSIVE, WAS ALLOCATED, NO ADDITIONAL AMOUNT OF COMPENSATION MAY BE PAID TO HIM FOR THAT PERIOD.

THERE IS NOTHING IN THE CLASSIFICATION ACT, AS AMENDED BY THE ACT OF AUGUST 1, 1941, 55 STAT. 613, OR IN EXECUTIVE ORDER NO. 9252, DATED OCTOBER 9, 1942, OR IN THE CITED REGULATIONS OF THE CIVIL SERVICE COMMISSION PURPORTING TO AUTHORIZE OR REQUIRE PAYMENT TO AN EMPLOYEE OF A SALARY RATE FOR A POSITION HE DOES NOT HOLD--- THE CITED REGULATION OF THE COMMISSION SPECIFICALLY PROVIDING THAT THE ADMINISTRATIVE ADJUSTMENT OF AN EMPLOYEE'S SALARY RATE, BASED ON A CORRECTION IN HIS EFFICIENCY RATING AS A RESULT OF AN APPEAL, SHALL BE ONLY "IN SO FAR AS POSSIBLE UNDER THE LAW AND REGULATIONS AND IN THE PUBLIC INTEREST.' ACCORDINGLY QUESTION (1) IS ANSWERED IN THE NEGATIVE.

RESTORATION OF THE EMPLOYEE TO HIS FORMER POSITION IN GRADE P-3, EFFECTIVE DECEMBER 7, 1943, AS A RESULT OF A CORRECTION IN HIS EFFICIENCY RATING BASED UPON AN APPEAL, IS NOT REQUIRED TO BE REGARDED AS AN "EQUIVALENT INCREASE IN COMPENSATION" WITHIN THE MEANING OF THE ACT OF AUGUST 1, 1941, SUPRA, AND SECTION 1 (D) OF THE PRESIDENT'S REGULATIONS ISSUED PURSUANT TO THAT STATUTE. ( EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 5, 1941). COMPARE 21 COMP. GEN. 285, TO WHICH YOU REFER; ALSO, 21 COMP. GEN. 369; AND 23 COMP. GEN. 265. IT IS BELIEVED THE PURPOSE AND INTENT OF THE APPLICABLE LAW AND REGULATIONS ARE SUCH AS TO AUTHORIZE RESTORATION OF THE EMPLOYEE IN THIS CASE--- EFFECTIVE DECEMBER 7, 1943--- TO THE SALARY RATE IN GRADE P-3, WHICH HE WOULD HAVE RECEIVED HAD HE BEEN GIVEN THE EFFICIENCY RATING OF GOOD/5 IN THE FIRST INSTANCE. ACCORDINGLY, QUESTION (2) IS ANSWERED IN THE AFFIRMATIVE, MAKING IT UNNECESSARY TO ANSWER QUESTION (3).