B-44589, SEPTEMBER 25, 1944, 24 COMP. GEN. 260

B-44589: Sep 25, 1944

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

COMPENSATION - REEMPLOYMENT - INITIAL SALARY RATES THE RULE THAT IT IS WITHIN ADMINISTRATIVE DISCRETION TO FIX THE INITIAL SALARY RATE OF AN EMPLOYEE UPON REINSTATEMENT TO A POSITION UNDER THE CLASSIFICATION ACT AT THE RATE IN THE SAME OR CORRESPONDING GRADE THE EMPLOYEE WAS RECEIVING AT THE TIME OF HIS SEPARATION FROM SERVICE IS APPLICABLE REGARDLESS OF THE LAW AND CIVIL SERVICE REGULATION PURSUANT TO WHICH REEMPLOYMENT IS EFFECTED. WAS GIVEN A "NEW APPOINTMENT" IN A CLASSIFIED POSITION UNDER WAR SERVICE REGULATION V WHEN SHE FAILED TO QUALIFY FOR "REAPPOINTMENT" UNDER WAR SERVICE REGULATION VIII MAY BE PAID INITIALLY THE SAME SALARY RATE. - WHICH IS ABOVE THE MINIMUM FOR THE GRADE IN WHICH APPOINTED.

B-44589, SEPTEMBER 25, 1944, 24 COMP. GEN. 260

COMPENSATION - REEMPLOYMENT - INITIAL SALARY RATES THE RULE THAT IT IS WITHIN ADMINISTRATIVE DISCRETION TO FIX THE INITIAL SALARY RATE OF AN EMPLOYEE UPON REINSTATEMENT TO A POSITION UNDER THE CLASSIFICATION ACT AT THE RATE IN THE SAME OR CORRESPONDING GRADE THE EMPLOYEE WAS RECEIVING AT THE TIME OF HIS SEPARATION FROM SERVICE IS APPLICABLE REGARDLESS OF THE LAW AND CIVIL SERVICE REGULATION PURSUANT TO WHICH REEMPLOYMENT IS EFFECTED, UNLESS OTHERWISE REQUIRED BY SUCH LAW OR REGULATION. 20 COMP. GEN. 318, AMPLIFIED. A FORMER EMPLOYEE WHO, UPON REEMPLOYMENT, WAS GIVEN A "NEW APPOINTMENT" IN A CLASSIFIED POSITION UNDER WAR SERVICE REGULATION V WHEN SHE FAILED TO QUALIFY FOR "REAPPOINTMENT" UNDER WAR SERVICE REGULATION VIII MAY BE PAID INITIALLY THE SAME SALARY RATE--- WHICH IS ABOVE THE MINIMUM FOR THE GRADE IN WHICH APPOINTED--- SHE WAS RECEIVING AT THE TIME OF HER SEPARATION FROM SERVICE, THE SAME AS IF SHE HAD BEEN "REAPPOINTED" OR "REINSTATED.'

COMPTROLLER GENERAL WARREN TO THE NATIONAL HOUSING ADMINISTRATOR, SEPTEMBER 25, 1944:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 15, 1944, FROM THE ASSISTANT COMMISSIONER, FEDERAL HOUSING ADMINISTRATION, READING AS FOLLOWS:

YOUR DECISION IS RESPECTFULLY REQUESTED AS TO THE SALARY RATE LEGALLY PAYABLE TO EMPLOYEES RE-ENTERING THE FEDERAL SERVICE UNDER AUTHORITY OF WAR SERVICE REGULATION V.

THIS OFFICE IS FAMILIAR WITH THE PROVISION OF SECTION 6 OF THE CLASSIFICATION ACT STATING THAT ,ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF; " ALSO WITH NUMEROUS DECISIONS RENDERED BY YOUR OFFICE HOLDING THAT THE TERM "NEW APPOINTMENT" APPEARING IN THIS PROVISION DOES NOT INCLUDE REINSTATEMENTS, REAPPOINTMENTS OR TRANSFERS OF FEDERAL PERSONNEL,WHETHER THE PRIOR EMPLOYMENT WAS WITHIN THE PURVIEW OF THE CLASSIFICATION ACT OR NOT. HOWEVER, WE ARE IN DOUBT AS TO WHETHER THE EXCLUSION FROM THIS PROVISION PERTAINS TO ALL REENTRIES INTO THE FEDERAL SERVICE REGARDLESS OF THE CIVIL SERVICE AUTHORITY UNDER WHICH THEY ARE APPROVED, OR WHETHER THE EXCLUSION APPLIES ONLY TO REINSTATEMENTS AND REAPPOINTMENTS IN THE STRICT SENSE OF THE WORD; THAT IS, THOSE APPROVED AS SUCH BY THE CIVIL SERVICE COMMISSION.

IN ILLUSTRATION OF THE QUESTION RAISED WE CITE BELOW ONE OF SEVERAL TYPICAL CASES AT HAND IN THIS OFFICE:

MISS INEZ S. GREEN WAS EMPLOYED BY THE OFFICE FOR EMERGENCY MANAGEMENT FROM APRIL, 1942 THROUGH MAY, 1944 AS TELEPHONE OPERATOR, GRADE CAF-2, HER FINAL SALARY IN SUCH POSITION BEING $1500 PER ANNUM. PURSUANT TO AUTHORITY RECEIVED FROM THE CIVIL SERVICE COMMISSION, MISS GREEN WAS APPOINTED TO THE POSITION OF TELEPHONE OPERATOR, GRADE CAF 2, WITH THIS ADMINISTRATION EFFECTIVE SEPTEMBER 11, 1944. INASMUCH AS SHE DID NOT MEET THE RECENTLY REVISED ELIGIBILITY REQUIREMENTS FOR ,REAPPOINTMENT" BUT AS A NEW APPOINTMENT UNDER WAR SERVICE REGULATION VIII, CIVIL SERVICE AUTHORITY FOR HER EMPLOYMENT WITH THIS ADMINISTRATION WAS GRANTED NOT AS A "REAPPOINTMENT" BUT AS NEW APPOINTMENT UNDER WAR SERVICE REGULATION V. IT IS OUR DESIRE TO PAY MISS GREEN AT THE RATE OF $1500 PER ANNUM IF THIS IS PERMISSIBLE. HOWEVER, SINCE THIS RATE IS ABOVE THE BASE OF THE GRADE WE WOULD FIRST APPRECIATE YOUR DECISION AS TO WHETHER HER EMPLOYMENT WITH THIS ADMINISTRATION IS CONSIDERED AS A "NEW APPOINTMENT" AS COVERED BY SECTION 6 OF THE CLASSIFICATION ACT, OR WHETHER PREVIOUS DECISIONS APPLICABLE TO REAPPOINTMENTS CAN BE CONSIDERED AS APPLICABLE IN THIS CASE.

A REPLY AT YOUR EARLIEST CONVENIENCE WILL BE APPRECIATED IN ORDER TO EXPEDITE PLACING MISS GREEN AND TWO OTHER NEW APPOINTEES ON THE PAY ROLL.

IN DECISION OF DECEMBER 17, 1940, 20 COMP. GEN. 318, THE FOLLOWING RULE WAS STATED (QUOTING FROM THE SYLLABUS):

AN ADMINISTRATIVE OFFICE MAY, BUT IS NOT REQUIRED TO FIX THE INITIAL SALARY RATE OF AN EMPLOYEE UPON REINSTATEMENT TO A POSITION WITHIN THE PURVIEW OF THE CLASSIFICATION ACT AT THE RATE IN THE SAME OR CORRESPONDING GRADE THE EMPLOYEE WAS RECEIVING AT TIME OF SEPARATION FROM THE SERVICE. SEE, ALSO, 19 COMP. GEN. 845.

IN STATING THE RULE THE TERM "REINSTATEMENT" WAS INTENDED TO BE USED IN THE GENERAL SENSE OF REEMPLOYMENT IN THE FEDERAL SERVICE IN ANY POSITION SUBJECT TO THE CLASSIFICATION ACT. HENCE, THE STATED RULE WOULD BE APPLICABLE REGARDLESS OF THE LAW AND CIVIL SERVICE REGULATION PURSUANT TO WHICH THE REEMPLOYMENT IS EFFECTED, UNLESS, OF COURSE, SUCH LAW OR CIVIL SERVICE REGULATION REQUIRES PAYMENT OF AN INITIAL SALARY RATE UPON REEMPLOYMENT ON SOME OTHER BASIS. CF. 21 COMP. GEN. 113. AS NOTHING APPEARS IN WAR SERVICE REGULATION V, NEGATIVING APPLICATION OF THE RULE STATED IN THE DECISION OF THIS OFFICE, SUPRA, AND SINCE A STATUS UNDER THE CLASSIFICATION ACT AND A STATUS UNDER THE CIVIL SERVICE LAWS AND REGULATIONS ARE CONTROLLED BY DIFFERENT LAWS HAVING SEPARATE AND DISTINCT PURPOSES AND SCOPES (SEE 17 COMP. GEN. 578; 18 ID. 223, AND 796), THE INITIAL SALARY RATE UPON REEMPLOYMENT OF THE EMPLOYEE WHOSE CASE IS HERE PRESENTED MAY BE $1,500 PER ANNUM IN GRADE CAF-2.