B-51697, AUGUST 28, 1945, 25 COMP. GEN. 230

B-51697, AUGUST 28, 1945, 25 COMP. GEN. 230

COMPENSATION - REEMPLOYMENT - INITIAL SALARY RATES - EFFECT OF FEDERAL EMPLOYEES PAY ACT OF 1945 THE BASIC SALARY RATE ACTUALLY RECEIVED AT THE TERMINATION OF AN EMPLOYEE'S LAST PERIOD OF SERVICE PRIOR TO THE EFFECTIVE DATE--- JULY 1, 1945--- OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, REGARDLESS OF THE LAW OR ADMINISTRATIVE REGULATION HAVING THE FORCE AND EFFECT OF LAW UNDER WHICH SUCH SALARY RATE WAS PAID, MAY BE INCREASED BY THE FORMULA PRESCRIBED BY SECTION 405 (A) OF SAID ACT TO DETERMINE THE MAXIMUM RATE ABOVE THE MINIMUM OF THE GRADE WHICH MAY BE PAID INITIALLY UPON THE EMPLOYEE'S RESTORATION ON OR AFTER JULY 1, 1945, IN A POSITION SUBJECT TO THE CLASSIFICATION ACT.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORKS ADMINISTRATOR, AUGUST 28, 1945:

I HAVE YOUR LETTER OF AUGUST 9, 1945, AS FOLLOWS:

THE BUREAU OF COMMUNITY FACILITIES, A CONSTITUENT BUREAU OF THE FEDERAL WORKS AGENCY, IS IN PROCESS OF EFFECTING THE REINSTATEMENT OF AN EMPLOYEE OF THE FORMER WORK PROJECTS ADMINISTRATION TO A POSITION AS DISTRICT ENGINEER, GRADE P-5, AT AN ANNUAL BASIC SALARY RATE OF $5,390.00, THE SECOND STEP IN THE GRADE. AT THE TIME THE EMPLOYEE IN QUESTION WAS SEPARATED FROM THE WORK PROJECTS ADMINISTRATION, HE WAS EMPLOYED AS SENIOR ADMINISTRATIVE ENGINEER, GRADE ACS-14, AT $5,000.00 PER ANNUM.

THIS AGENCY IS COGNIZANT OF PRIOR DECISIONS OF YOUR OFFICE WHICH PRECLUDE THE REINSTATEMENT OF AN EMPLOYEE AT AN INITIAL SALARY RATE IN EXCESS OF THE SALARY RATE WHICH WAS RECEIVED WHEN HE WAS LAST SEPARATED FROM THE FEDERAL SERVICE. HOWEVER, AFTER CONSIDERING THE FOLLOWING FACTS, YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER THIS FORMER EMPLOYEE MAY BE REINSTATED AT THE PROPOSED SALARY RATE.

AT THE TIME OF THE SEPARATION FROM THE WORKS PROJECTS ADMINISTRATION, THE EMPLOYEE WAS RECEIVING $5,000.00 PER ANNUM WHIICH WAS THE THIRD SALARY STEP IN GRADE ACS-14 ( APPOINTIVE COMPENSATION SCHEDULE) ESTABLISHED BY THE ACTING COMMISSIONER OF WORK PROJECTS BY GENERAL ORDER NO. 2, REVISED AUGUST 16, 1942. THE APPOINTIVE COMPENSATION SCHEDULE UNDER WHICH FIELD EMPLOYEES OF THE WORK PROJECTS ADMINISTRATION WERE CLASSIFIED WAS COMPARABLE TO GRADES ESTABLISHED BY THE CLASSIFICATION ACT OF 1923 AS AMENDED AND WAS SO RECOGNIZED BY THE CIVIL SERVICE COMMISSION. FOR EXAMPLE, THE INITIAL STEP OF GRADE ACS 14 WAS $4,600.00 WITH SALARY INCREMENTS OF $200.00. THE THIRD STEP WAS $5,000.00 AND THE FIFTH OR TOP OF THE GRADE WAS $5,400.00 PER ANNUM. THIS IS COMPARABLE IN EVERY RESPECT TO GRADES CAF-12 AND P-5 RESPECTIVELY.

THIS AGENCY IS ALSO COGNIZANT OF COMPTROLLER GENERAL RULINGS WHICH PERMIT THE CHANGE FROM EXECUTIVE ORDER GRADES TO CLASSIFICATION ACT GRADES PROVIDED THE CHANGE TO A CLASSIFICATION ACT GRADE CORRESPONDS TO THE PRIOR EXECUTIVE ORDER GRADE AND THE SALARY IS NOT CHANGED. IT WOULD APPEAR THEREFORE THAT THE EMPLOYEE MAY BE REINSTATED IN THE SECOND STEP OF GRADE P-5 SINCE AT THE TIME OF SEPARATION HE WAS IN THE THIRD STEP OF A COMPARABLE ACS GRADE. THIS RAISES THE QUESTION, HOWEVER, AS TO THE APPLICABILITY OF THE PROVISIONS OF THE FEDERAL EMPLOYEES PAY ACT OF 1945 WHICH PROVIDES FOR INCREASES IN BASIC RATES OF COMPENSATION AS SET FORTH IN SECTION 405 (A) OF SAID ACT. IN THIS PARTICULAR INSTANCE THE EMPLOYEE WOULD BE REINSTATED AT ONE SALARY STEP LOWER THAN THAT HELD IN THE PREVIOUS COMPARABLE GRADE BUT BY PROCESS OF LAW WOULD RECEIVE A SALARY RATE $390.00 IN EXCESS OF THAT PAID IN HIS PREVIOUS POSITION.

SINCE IT IS DESIRED TO MAKE THE APPOINTMENT OF THIS EMPLOYEE EFFECTIVE AS OF SEPTEMBER 1, 1945, YOUR EARLY CONSIDERATION OF THIS MATTER WILL BE GREATLY APPRECIATED.

REINSTATEMENTS ARE NOT NEW APPOINTMENTS WITHIN THE MEANING OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT, 42 STAT. 1490. 3 COMP. GEN. 1001, 1004; 29 ID. 626. THAT IS TRUE EVEN THOUGH THE PRIOR EMPLOYMENT WAS NOT SUBJECT TO THE CLASSIFICATION ACT. 22 COMP. GEN. 925. CONSEQUENTLY, THE INITIAL SALARY RATE OF A REINSTATED EMPLOYEE NEED NOT, AS A MATTER OF LAW, BE THE MINIMUM SALARY RATE OF THE GRADE TO WHICH AN EMPLOYEE IS REINSTATED. THE RULE IN EFFECT PRIOR TO JULY 1, 1945, WAS THAT EMPLOYEES MAY BE REINSTATED WITHIN ADMINISTRATIVE DISCRETION AT AN INITIAL SALARY RATE NOT IN EXCESS OF THAT WHICH WAS RECEIVED WHEN LAST SEPARATED FROM THE SERVICE EXCEPT WHERE AN INCREASE OVER THAT RATE IS NECESSARY TO PAY THE MINIMUM SALARY RATE OF THE GRADE TO WHICH REINSTATED. 16 COMP. GEN. 598; 20 ID. 318.

SECTION 405 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 300, INCREASES THE BASIC SALARY RATES PRESCRIBED BY THE CLASSIFICATION ACT. PROVISION APPEARS IN THE STATUTE EITHER AUTHORIZING OR PRECLUDING THE GRANTING OF THE BENEFITS OF THE INCREASED RATES TO REINSTATED EMPLOYEES AT THE DISCRETION OF AN ADMINISTRATIVE OFFICE. HOWEVER, THE THEORY OF THE LONG-STANDING REINSTATEMENT RULE--- TO MAINTAIN EMPLOYEES IN THE SAME RELATIVE STATUS WITH OTHER EMPLOYEES AS TO SALARY THAT THEY LAST HELD IN THE FEDERAL SERVICE--- JUSTIFIES THE GRANTING OF THE INCREASED RATES TO REINSTATED EMPLOYEES.

THEREFORE, THE BASIC SALARY RATE ACTUALLY RECEIVED AT THE TERMINATION OF AN EMPLOYEE'S LAST PERIOD OF FEDERAL SERVICE PRIOR TO JULY 1, 1945, REGARDLESS OF THE LAW OR ADMINISTRATIVE REGULATION HAVING THE FORCE AND EFFECT OF LAW UNDER WHICH SUCH BASIC SALARY RATE WAS PAID, PROPERLY MAY BE INCREASED BY THE FORMULA PRESCRIBED BY SECTION 405 (A) OF THE NEW PAY STATUTE TO DETERMINE THE MAXIMUM BASIC SALARY RATE WHICH MAY BE PAID INITIALLY TO AN EMPLOYEE REINSTATED ON OR AFTER JULY 1, 1945, IN A POSITION SUBJECT TO THE CLASSIFICATION ACT.

IN THE CASE PRESENTED THE SALARY RATE OF $5,000 PER ANNUM RECEIVED PRIOR TO JULY 1, 1945, UNDER ADMINISTRATIVE REGULATIONS, WOULD BE INCREASED TO $5,600 PER ANNUM BY THE FORMULA PRESCRIBED BY SECTION 405 (A) OF THE NEW PAY STATUTE IN A POSITION SUBJECT TO THE CLASSIFICATION ACT, THAT IS, THE THIRD STEP IN GRADE P-5 IN WHICH GRADE IT IS PROPOSED TO REINSTATE THE EMPLOYEE. UNDER THE RULE ABOVE STATED IT IS WITHIN YOUR ADMINISTRATIVE DISCRETION TO PAY THE EMPLOYEE INITIALLY AT THE RATE OF $5,390 PER ANNUM, THE SECOND SALARY STEP IN GRADE P-5 UPON HIS REINSTATEMENT IN THAT GRADE.