B-48721, MAY 14, 1945, 24 COMP. GEN. 816

B-48721: May 14, 1945

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AN EMPLOYEE'S POSITION IS ALLOCATED TO A NEW GRADE UNDER THE CLASSIFICATION ACT. RESULTING FROM THE REALLOCATION BECOMES EFFECTIVE BEGINNING WITH THE PAY PERIOD CURRENT WHEN NOTICE OF THE FINAL ACTION OF THE CIVIL SERVICE COMMISSION IS RECEIVED IN THE ADMINISTRATIVE OFFICE. WHERE A PRESENT EMPLOYEE MERELY IS DETAILED (FORMALLY OR INFORMALLY) TO PERFORM THE DUTIES OF A PROJECTED NEW POSITION (WHETHER A NEW COMBINATION OF OLD DUTIES OR A COMBINATION OF NEW DUTIES/. - COMPENSATION IS NOT SUSCEPTIBLE OF ADJUSTMENT TO ACCORD WITH THE CLASSIFICATION AS OF THE BEGINNING OF THE PAY PERIOD CURRENT WHEN NOTICE OF FINAL ALLOCATION ACTION IS RECEIVED. OR AT ANY OTHER TIME UNTIL THE DETAIL IS TERMINATED AND THE EMPLOYEE IS GIVEN AN APPOINTMENT TO THE NEW POSITION. 24 COMP.

B-48721, MAY 14, 1945, 24 COMP. GEN. 816

ALLOCATION OR REALLOCATION OF POSITIONS - EFFECTIVE DATE OF COMPENSATION INCREASE WHERE, DUE TO A GRADUAL ACCRETION OF DUTIES AND RESPONSIBILITIES OR A REVALUATION OF THOSE PRESENTLY ASSIGNED, AN EMPLOYEE'S POSITION IS ALLOCATED TO A NEW GRADE UNDER THE CLASSIFICATION ACT, THE INCREASE IN COMPENSATION OF THE EMPLOYEE, OTHERWISE ELIGIBLE, RESULTING FROM THE REALLOCATION BECOMES EFFECTIVE BEGINNING WITH THE PAY PERIOD CURRENT WHEN NOTICE OF THE FINAL ACTION OF THE CIVIL SERVICE COMMISSION IS RECEIVED IN THE ADMINISTRATIVE OFFICE. WHERE A PRESENT EMPLOYEE MERELY IS DETAILED (FORMALLY OR INFORMALLY) TO PERFORM THE DUTIES OF A PROJECTED NEW POSITION (WHETHER A NEW COMBINATION OF OLD DUTIES OR A COMBINATION OF NEW DUTIES/--- AS DISTINGUISHED FROM ACTUALLY BEING APPOINTED OR ASSIGNED TO THE POSITION ITSELF--- COMPENSATION IS NOT SUSCEPTIBLE OF ADJUSTMENT TO ACCORD WITH THE CLASSIFICATION AS OF THE BEGINNING OF THE PAY PERIOD CURRENT WHEN NOTICE OF FINAL ALLOCATION ACTION IS RECEIVED, OR AT ANY OTHER TIME UNTIL THE DETAIL IS TERMINATED AND THE EMPLOYEE IS GIVEN AN APPOINTMENT TO THE NEW POSITION. 24 COMP. GEN. 563, AMPLIFIED. IF A DEFINITE COMMITMENT HAS BEEN MADE BY AN AUTHORIZED ADMINISTRATIVE OFFICER TO APPOINT, NOT DETAIL, AN EMPLOYEE TO A NEW POSITION PRIOR TO ITS ALLOCATION, A DEFINITE ACCEPTANCE BEING MADE BY THE EMPLOYEE--- NOTWITHSTANDING NEITHER PARTY WAS IN A POSITION TO BE ASSURED WHAT COMPENSATION WAS TO BE ALLOCATED--- AND SOME DEFINITE WRITTEN EVIDENCE BEING CURRENTLY RECORDED TO SHOW THE ACTION TAKEN, THE COMPENSATION RATE ALLOCATED MAY BE REGARDED AS EFFECTIVE FROM THE BEGINNING OF THE PAY PERIOD CURRENT WHEN ADVICE OF THE CLASSIFICATION IS RECEIVED, BUT NOT PRIOR TO THE DATE OF SUCH DEFINITE COMMITMENT AND ACCEPTANCE. 24 COMP. GEN. 563, DISTINGUISHED. NORMALLY, WHEN AN ENTIRELY NEW POSITION, AS DISTINGUISHED FROM AN ADDITIONAL POSITION, IS CREATED BY AN ADMINISTRATIVE OFFICE AND AN EMPLOYEE ALREADY IN THE SERVICE IS ASSIGNED TO IT PENDING FINAL ALLOCATION ACTION, THE ASSIGNMENT SHOULD BE CONSIDERED AS IN THE NATURE OF A DETAIL, AND ANY INCREASE IN COMPENSATION RESULTING FROM THE ALLOCATION WOULD NOT COMMENCE WITH THE BEGINNING OF THE PAY PERIOD CURRENT WHEN NOTICE OF THE FINAL ALLOCATION ACTION IS RECEIVED IN THE ADMINISTRATIVE OFFICE BUT WOULD COMMENCE ONLY WITH THE EFFECTIVE DATE OF THE EMPLOYEE'S APPOINTMENT TO THE NEW POSITION.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, MAY 14, 1945:

CONSIDERATION HAS BEEN GIVEN YOUR LETTER OF MARCH 24, 1945, AS FOLLOWS:

YOUR DECISION OF JANUARY 27, 1945, B-47029, CONTAINS A RULING TO THE EFFECT THAT YOUR PREVIOUS RULINGS ON THE EFFECTIVE DATES OF DEPARTMENTAL ALLOCATION ACTIONS (4 COMP. GEN. 395; 10 COMP. GEN. 284; 18 COMP. GEN. 794; B-45172 OF OCTOBER 25, 1944; AND OTHERS) APPLY TO CASES IN WHICH THERE WAS A GRADUAL GROWTH IN THE DUTIES OF A POSITION ALREADY HELD BY AN EMPLOYEE; AND THAT THESE RULINGS DO NOT APPLY TO A CASE IN WHICH AN EMPLOYEE WAS DETAILED OUT OF A POSITION TO ANOTHER AGGREGATION OF DUTIES.

IN THIS DEPARTMENT, FROM TIME TO TIME, IT IS NECESSARY TO CHANGE MATERIALLY OR COMPLETELY THE DUTY ASSIGNMENTS OF ONE OR MORE EMPLOYEES. THIS IS USUALLY BROUGHT ABOUT BY REORGANIZATION, ACTION TO ATTAIN MAXIMUM UTILIZATION OF EMPLOYEE SKILLS, ASSUMPTION OF ADDITIONAL FUNCTIONS, DECREASES IN WORK, OR CHANGES IN PROGRAM REQUIREMENTS AND POLICIES. SOMETIMES THE EMPLOYEES REMAIN IN THE SAME ORGANIZATIONAL UNIT; AT OTHER TIMES, THEY ARE ASSIGNED TO OTHER ALREADY EXISTING ORGANIZATIONAL UNITS OR TO OTHER NEWLY ESTABLISHED ORGANIZATIONAL UNITS. UNDER THESE CIRCUMSTANCES, THIS DEPARTMENT DOES NOT REGARD THE EMPLOYEES AS BEING ON DETAIL OUT OF THEIR POSITIONS TO OTHER WORK OR TO OTHER POSITIONS. REGARDS THE EMPLOYEES AS BEING ASSIGNED TO NEW POSITIONS WHICH HAVE NOT YET BEEN ALLOCATED UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED. CLASSIFICATION ACTION, OF COURSE, IS INITIATED AS SOON AS POSSIBLE AFTER REASSIGNMENT.

YOUR DECISION IS REQUESTED AS TO WHETHER THE RULE LAID DOWN IN B 47029 APPLIES TO THE EFFECTIVE DATE UNDER THE CIRCUMSTANCES DESCRIBED, OR WHETHER THE EFFECTIVE DATE FOR QUALIFIED EMPLOYEES UNDER SUCH CIRCUMSTANCES IS THE BEGINNING OF THE PAY PERIOD CURRENT DURING WHICH NOTICE OF THE CIVIL SERVICE COMMISSION'S ALLOCATION ACTION IS RECEIVED IN THE ADMINISTRATIVE OFFICE.

THE DECISION OF JANUARY 27, 1945, TO BE PUBLISHED AS 24 COMP. GEN. 563, HELD, AS APPEARING IN THE SYLLABUS:

WHERE AN EMPLOYEE IS ON DETAIL FROM HIS REGULAR POSITION TO A NEW POSITION PENDING ALLOCATION THEREOF, THE HIGHER SALARY RATE OF THE NEW POSITION IS NOT EFFECTIVE FROM THE BEGINNING OF THE PAY PERIOD CURRENT WHEN NOTICE OF THE ALLOCATION IS RECEIVED IN THE ADMINISTRATIVE OFFICE, UNDER THE GENERAL RULE, BUT IS EFFECTIVE ONLY FROM THE DATE ADMINISTRATIVE ACTION IS TAKEN TO TERMINATE THE DETAIL AND TRANSFER OR APPOINT THE EMPLOYEE TO THE NEW POSITION AS ALLOCATED. 18 COMP. GEN. 794, DISTINGUISHED.

IT IS IMPORTANT THAT CARE BE TAKEN TO DISTINGUISH THE SITUATION WHERE THE POSITION UNDER CONSIDERATION IS, IN ESSENCE, THE SAME POSITION PREVIOUSLY ALLOCATED AND HELD BY THE EMPLOYEE WHEN, DUE TO A GRADUAL ACCRETION OF DUTIES AND RESPONSIBILITIES, OR A REVALUATION OF THOSE PRESENTLY ASSIGNED, A NEW ALLOCATION UNDER THE CLASSIFICATION ACT IS BELIEVED TO BE APPROPRIATE AND IS TAKEN UP FOR CONSIDERATION AND THE SITUATION WHERE, AS IN THE CASE OF A REORGANIZATION WITHIN THE OFFICE OR THE TAKING UP OF ENTIRELY NEW RESPONSIBILITIES, THERE IS CREATED AN ENTIRELY NEW POSITION (WHETHER A NEW COMBINATION OF OLD DUTIES OR A COMBINATION OF NEW DUTIES), RESULTING IN AN AGGREGATION OF DUTIES SO DISTINCTLY SEPARATE FROM THOSE HITHERTO PERFORMED AS TO CONSTITUTE A NEW POSITION AND AN ENTIRELY SEPARATE EMPLOYMENT. SEE 10 COMP. GEN. 210 AT PAGE 212. IN THE FORMER SITUATION, THAT IS, THE OLD POSITION BEING REALLOCATED TO REVALUATE ITS DUTIES OR TO TAKE INTO ACCOUNT NEW RESPONSIBILITIES, IT IS THE UNDOUBTED RULE THAT AN INCREASE FOR AN ELIGIBLE EMPLOYEE RESULTING FROM THE REALLOCATION OF HIS POSITION BECOMES EFFECTIVE WITH THE BEGINNING OF THE PAY PERIOD CURRENT WHEN THERE IS RECEIVED IN THE ADMINISTRATIVE OFFICE THE NOTICE OF THE FINAL ACTION OF THE CIVIL SERVICE COMMISSION. 4 COMP. GEN. 280, 24 ID. 518.

HOWEVER, IN THE SITUATION WHERE A NEW POSITION IS BEING CREATED EITHER IN THE SAME OR IN A DIFFERENT ORGANIZATIONAL OR APPROPRIATION UNIT AND A PERSON ALREADY EMPLOYED IS IN CONTEMPLATION FOR THE POSITION, THE LAW PROVIDES A SYSTEM FOR DETAILING THE PRESENT EMPLOYEE TO THE DUTIES OF THE NEW POSITION FOR A REASONABLE PERIOD (AND PERHAPS WHILE THE ALLOCATION IS BEING EFFECTED) TO PERMIT A TEST WHETHER THE POSITION AS THUS PLANNED IS PRACTICABLE IN ACTUAL OPERATION, WHETHER THE PARTICULAR EMPLOYEE IS SUITABLE FOR THE POSITION, AS WELL AS WHETHER THE POSITION IS SUITABLE TO THE EMPLOYEE. ( SECTION 166, REV. STAT., 5 U.S.C. 38.) WHEN THOSE FACTORS BECOME KNOWN, HE (OR SOMEONE ELSE) CAN BE APPOINTED TO THE NEW POSITION AND RECEIVE THE NEW SALARY FROM THE EFFECTIVE DATE OF SUCH APPOINTMENT. WITH THAT METHOD AVAILABLE, IT IS NOT NECESSARY OR APPROPRIATE TO APPOINT THE EMPLOYEE AT ONCE TO THE NEW POSITION AND, IN ONE SENSE, A DEFINITE COMMITMENT TO THE NEW POSITION IS HARDLY POSSIBLE SINCE NEITHER THE APPOINTING AUTHORITY NOR THE EMPLOYEE CAN BE AWARE OF THE SALARY RANGE TO WHICH IT FINALLY MAY BE CLASSIFIED.

WHEN, IN FACT, THE PRESENT EMPLOYEE MERELY IS DETAILED (WHETHER FORMALLY OR INFORMALLY) TO PERFORM THE DUTIES OF A PROJECTED NEW POSITION, AS DISTINGUISHED FROM AN ACTUAL APPOINTMENT OR ASSIGNMENT TO THE POSITION ITSELF, IT IS NOT POSSIBLE TO ADJUST THE COMPENSATION TO ACCORD WITH THE CLASSIFICATION AS OF THE BEGINNING OF THE PAY PERIOD CURRENT WHEN THE NOTICE IS RECEIVED OR AT ANY OTHER TIME UNTIL THE DETAIL, AS SUCH, IS TERMINATED AND THE EMPLOYEE IS GIVEN AN APPOINTMENT TO THE NEW POSITION--- THE RULE BEING, OF COURSE, AXIOMATIC THAT NO ONE IS ENTITLED TO THE SALARY OF A POSITION HE DOES NOT THEN HOLD, THAT IS, TO WHICH HE HAS NOT BEEN LEGALLY APPOINTED. 6 COMP. GEN. 133, 10 ID. 514, 20 ID. 267, 23 ID. 145. RATHER, THE NEW RATE OF COMPENSATION BEGINS UPON THE EFFECTIVE DATE OF HIS APPOINTMENT TO THE NEW POSITION.

IT IS NOT OVERLOOKED THAT IN A FEW CASES THERE HAVE BEEN RECOGNIZED SITUATIONS IN WHICH THE EMPLOYEE SEEMED ACTUALLY TO HAVE BEEN APPOINTED TO THE NEW POSITION (AS DISTINGUISHED FROM A DETAIL TO PERFORM THE DUTIES OF THE POSITION) NOTWITHSTANDING THE LACK OF A FINAL ALLOCATION, IN CONNECTION WITH WHICH NO ERROR WAS FOUND IN THE PAYMENT OF THE INCREASE FOR THE ENTIRE PAY PERIOD CURRENT WHEN THE ALLOCATION NOTICE WAS RECEIVED, SINCE THE EMPLOYEE ACTUALLY HELD THE NEW POSITION DURING THAT ENTIRE PERIOD. IF SUCH BE THE FACTS WITH RESPECT TO THE CASES THE SUBJECT OF YOUR LETTER, THAT IS, IF A DEFINITE COMMITMENT HAS BEEN MADE BY AN OFFICER OF YOUR DEPARTMENT AUTHORIZED TO EFFECT APPOINTMENTS AND A DEFINITE ACCEPTANCE HAS BEEN MADE BY THE EMPLOYEE--- NOTWITHSTANDING NEITHER PARTY IS IN A POSITION TO BE ASSURED WHAT COMPENSATION RATE FINALLY WILL BE ALLOCABLE TO THE POSITION--- AND SOME DEFINITE, WRITTEN EVIDENCE IS RECORDED CURRENTLY TO SHOW THE ACTION TAKEN, THERE WOULD BE NO OBJECTION TO RECOGNIZING THE NEWLY ALLOCATED COMPENSATION RATE FOR THE POSITION AS OF THE BEGINNING OF THE PAY PERIOD CURRENT WHEN ADVICE OF THE CLASSIFICATION IS RECEIVED BUT NOT PRIOR TO THE DATE OF SUCH DEFINITE COMMITMENT AND ACCEPTANCE. COMPARE 21 COMP. GEN. 947 AT PAGE 952. BUT IN THE NORMAL AND REGULAR COURSE, AS STATED IN 9 COMP. GEN. 128:

* * * WHEN AN ENTIRELY NEW POSITION, AS DISTINGUISHED FROM AN ADDITIONAL POSITION, IS CREATED BY AN ADMINISTRATIVE OFFICE AND AN EMPLOYEE ALREADY IN THE SERVICE IS ASSIGNED THERETO, PENDING FINAL ACTION OF THE PERSONNEL CLASSIFICATION BOARD IN ALLOCATING THE NEW POSITION, THE ASSIGNMENT OF THE EMPLOYEE SHOULD BE CONSIDERED IN THE NATURE OF A DETAIL PENDING RECEIPT OF NOTICE OF THE BOARD'S ACTION, WHICH IS NECESSARY TO DETERMINE THE PROPER GRADE AND SALARY RATE FOR THE NEW POSITION. * * * AND THE RULE, AS RECENTLY REEMPHASIZED IN THE DECISION OF JANUARY 27, 1945, APPLIES.