B-63142, JANUARY 28, 1947, 26 COMP. GEN. 530

B-63142: Jan 28, 1947

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IF SUCH HIGHEST RATE IS NOT IDENTICAL WITH ANY RATE IN THE GRADE. 1947: I HAVE YOUR UNDATED LETTER. AS FOLLOWS: FOR A PROPER DETERMINATION OF MATTERS ARISING IN CONNECTION WITH PERSONNEL ACTIONS WHICH ARE NOW PENDING. YOUR DECISION ON THE FOLLOWING QUESTIONS IS RESPECTFULLY REQUESTED. IT IS STATED THAT (IN THE ABSENCE OF A STATUTE. SPECIFICALLY CONTROLLING) WHEN AN EMPLOYEE IS TRANSFERRED. DEMOTED OR SEPARATED IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO PAY. OR REEMPLOYED" THE MINIMUM SALARY RATE OF THE GRADE OR POSITION "OR SUCH HIGHER RATE WITHIN THE GRADE AS WILL NOT EXCEED THE HIGHEST SALARY PREVIOUSLY ATTAINED BY HIM IN ANY PRIOR GOVERNMENT ITION.'. WHERE THE HIGHEST SALARY RATE SO PREVIOUSLY ATTAINED IS WITHIN THE RANGE OF THE GRADE OF THE CLASSIFIED POSITION TO WHICH THE EMPLOYEE IS TRANSFERRED.

B-63142, JANUARY 28, 1947, 26 COMP. GEN. 530

COMPENSATION - INITIAL SALARY RATES - TRANSFER, PROMOTION, DEMOTION, REINSTATEMENT, REEMPLOYMENT, OR REALLOCATION THE INITIAL SALARY RATE OF EMPLOYEES IN CLASSIFICATION ACT POSITIONS TO WHICH TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, OR REEMPLOYED IN THE SAME OR DIFFERENT AGENCY, INCLUDING CASES OF REALLOCATION OF OCCUPIED POSITIONS FROM CLASSIFICATION ACT GRADES AND FROM GRADES UNDER EXECUTIVE ORDER NO. 6746, MAY, WITHIN ADMINISTRATIVE DISCRETION AND AVAILABLE FUNDS, BE FIXED AT A RATE WITHIN THE RANGE OF SALARIES IN THE GRADE TO WHICH TRANSFERRED, ETC., UP TO THE HIGHEST RATE ATTAINED IN ANY PRIOR POSITIONS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT (INCLUDING WHOLLY OWNED GOVERNMENT CORPORATIONS), OR, IF SUCH HIGHEST RATE IS NOT IDENTICAL WITH ANY RATE IN THE GRADE, THE NEXT HIGHER RATE THEREIN MAY BE PAID; HOWEVER, SUCH RULE, AS HEREIN AMPLIFIED, MAY NOT BE APPLIED TO CASES HERETOFORE PROCESSED. 26 COMP. GEN. 368, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE NATIONAL HOUSING ADMINISTRATOR, JANUARY 28, 1947:

I HAVE YOUR UNDATED LETTER, RECEIVED HERE JANUARY 20, 1947, AS FOLLOWS:

FOR A PROPER DETERMINATION OF MATTERS ARISING IN CONNECTION WITH PERSONNEL ACTIONS WHICH ARE NOW PENDING, YOUR DECISION ON THE FOLLOWING QUESTIONS IS RESPECTFULLY REQUESTED.

IN DECISION OF NOVEMBER 27, 1946, B-61181, TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, IT IS STATED THAT (IN THE ABSENCE OF A STATUTE, OR REGULATION HAVING THE FORCE OF LAW, SPECIFICALLY CONTROLLING) WHEN AN EMPLOYEE IS TRANSFERRED, PROMOTED, DEMOTED OR SEPARATED IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO PAY--- WITHIN AVAILABLE APPROPRIATIONS--- SUCH EMPLOYEE "IN ANY CLASSIFIED POSITION TO WHICH TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, OR REEMPLOYED" THE MINIMUM SALARY RATE OF THE GRADE OR POSITION "OR SUCH HIGHER RATE WITHIN THE GRADE AS WILL NOT EXCEED THE HIGHEST SALARY PREVIOUSLY ATTAINED BY HIM IN ANY PRIOR GOVERNMENT ITION.'

WHERE THE HIGHEST SALARY RATE SO PREVIOUSLY ATTAINED IS WITHIN THE RANGE OF THE GRADE OF THE CLASSIFIED POSITION TO WHICH THE EMPLOYEE IS TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, OR REEMPLOYED, BUT THERE IS NO SALARY RATE IN SUCH GRADE WHICH IS IDENTICAL WITH SUCH HIGHEST PREVIOUS SALARY, A LITERAL READING OF THE LANGUAGE LAST ABOVE QUOTED FROM SAID DECISION WOULD APPEAR TO PREVENT IN ALL SUCH CASES THE USE OF THE SALARY RATE NEXT HIGHER THAN SUCH HIGHEST PREVIOUS SALARY, AND TO FIX AS A MAXIMUM THE SALARY RATE NEXT LOWER THAN SUCH HIGHER PREVIOUS SALARY. THE OTHER HAND, IN VIEW OF SUCH DECISIONS AS THOSE IN 20 COMP. GEN. 579 AND 25 COMP. GEN. 90 (FOURTH CASE), IT SEEMS DOUBTFUL WHETHER YOU INTENDED TO IMPOSE SUCH A STRICT RULE, WHICH MIGHT RESULT IN COMPULSORY REDUCTION OF A SALARY WHICH THE EMPLOYEES HAD ATTAINED THROUGH YEARS OF FAITHFUL SERVICE TO THE GOVERNMENT, OR IN SITUATIONS IN WHICH A PROMOTION FROM ONE GRADE TO ANOTHER GRADE COULD NOT BE MADE WITHOUT AN ACTUAL LOWERING OF THE EMPLOYEE'S SALARY.

ACCORDINGLY, DECISION IS REQUESTED AS TO WHETHER, IN CASES OF (A) TRANSFER (1) WITHIN AN AGENCY OR (2) BETWEEN AGENCIES, (B) PROMOTION, (C) DEMOTION, OR (E) REINSTATEMENT OR REEMPLOYMENT (1) IN THE SAME AGENCY OR (2) IN A DIFFERENT AGENCY, IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE (SUFFICIENT FUNDS BEING AVAILABLE TO FIX THE EMPLOYEE'S INITIAL RATE IN THE CLASSIFIED POSITION TO WHICH HE IS SO TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, OR REEMPLOYED AT THE NEXT HIGHER RATE THAN THE HIGHEST SALARY PREVIOUSLY ATTAINED BY HIM IN ANY GOVERNMENT POSITION WHERE SUCH HIGHEST PREVIOUS SALARY IS WITHIN THE RANGE OF THE GRADE OF THE CLASSIFIED POSITION TO WHICH THE TRANSFER, PROMOTION, DEMOTION, REINSTATEMENT, OR REEMPLOYMENT IS MADE BUT IS NOT IDENTICAL WITH ANY OF THE RATES IN SUCH GRADE, OR WHETHER, IN ALL CIRCUMSTANCES OR IN SOME CIRCUMSTANCES, IT IS NECESSARY IN SOME OR ALL OF SUCH CASES TO TAKE AS A MAXIMUM THE NEXT LOWER RATE OF SUCH CLASSIFIED POSITION. IF, IN ANY OF SAID CASES, IT WOULD BE PERMISSIBLE, WITHIN ADMINISTRATIVE DISCRETION AND AVAILABLE FUNDS, TO FIX A HIGHER RATE THAN SUCH NEXT HIGHER RATE, PLEASE ADVISE AS TO THAT MATTER LIKEWISE.

IN ADDITION, PLEASE ADVISE AS TO WHETHER THE SAME RULES WOULD BE APPLICABLE TO CASES WHERE AN EMPLOYEE'S POSITION IS REALLOCATED (A) FROM ONE GRADE OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, TO ANOTHER GRADE OF SAID ACT, AS AMENDED, OR (B) FROM ONE OF THE GRADES OF EXECUTIVE ORDER NO. 6746 OF JUNE 21, 1934, AS AMENDED, TO ONE OF THE GRADES OF THE CLASSIFICATION ACT OF 1923, AS AMENDED.

IT IS ASSUMED THAT THE TERM "CLASSIFIED POSITION" AS USED IN THE LANGUAGE FIRST ABOVE QUOTED FROM SAID DECISION OF NOVEMBER 27, 1946, REFERS TO CLASSIFICATION UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, RATHER THAN TO CLASSIFICATION UNDER THE CIVIL SERVICE ACT OF JANUARY 16, 1883, 22 STAT. 403, AS AMENDED, AND WOULD BE APPRECIATED. FURTHER, IT WOULD BE APPRECIATED IF YOU WOULD ADVISE AS TO WHETHER THE TERM "ANY PRIOR GOVERNMENT POSITION" AS USED IN THE SECOND QUOTATION ABOVE FROM SAID DECISION OF NOVEMBER 27, 1946, INCLUDES A POSITION WITH A CORPORATE AGENCY OR INSTRUMENTALITY OF THE UNITED STATES WITH CAPITAL STOCK WHOLLY OWNED BY THE UNITED STATES, OR WHOLLY OWNED BY A CORPORATION WHOSE CAPITAL STOCK IN TURN IS WHOLLY OWNED BY THE UNITED STATES.

SINCE THIS SUBMISSION INVOLVES PENDING CASES WHICH, FOR PROPER HANDLING, MUST BE DELAYED UNTIL YOUR DECISION IS RECEIVED, IT WOULD BE HELPFUL IF A DECISION IN THE MATTER WERE RENDERED AT YOUR EARLIEST CONVENIENCE.

IN 20 COMP. GEN. 579, IT WAS HELD, QUOTING FROM THE SYLLABUS:

WHERE AN EMPLOYEE IS TRANSFERRED FROM A HIGHER TO A LOWER GRADE INCIDENT TO AN ADMINISTRATIVE ADJUSTMENT OF PERSONNEL, AND THERE IS NO SALARY RATE IN THE LOWER GRADE IDENTICAL WITH THE RATE RECEIVED IN THE HIGHER GRADE, THE INITIAL SALARY RATE IN THE LOWER GRADE MAY BE FIXED AT THE RATE PRESCRIBED BY THE CLASSIFICATION ACT NEXT ABOVE THAT RECEIVED IN THE HIGHER GRADE.

THE SAME RULE WAS APPLIED IN 25 COMP. GEN. 90 TO THE FOURTH CASE THEREIN CONSIDERED, IN WHICH AN EMPLOYEE REDUCED FROM CAF-5 AT A SALARY OF $2,000 PER ANNUM TO CAF-4, IN WHICH GRADE THERE WAS NO $2,000 RATE, WAS AUTHORIZED TO BE GIVEN THE NEXT HIGHER RATE OR $2,040. HOWEVER, THE GENERAL RULE WAS STATED IN 23 COMP. GEN. 201, AT PAGE 203, AS FOLLOWS:

TRANSFERS, PROMOTIONS, AND DEMOTIONS ARE NOT REGARDED AS NEW APPOINTMENTS SUCH AS ARE REQUIRED TO BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE. 20 COMP. GEN. 626; 22 ID. 925. THE GENERAL RULE FOR DETERMINING THE SALARY RATE INITIALLY APPLICABLE WHEN AN EMPLOYEE IS TRANSFERRED, PROMOTED, OR DEMOTED BETWEEN CLASSIFICATION ACT POSITIONS IS THAT THE EMPLOYEE MAY BE PAID INITIALLY IN THE GRADE TO WHICH TRANSFERRED, PROMOTED, OR DEMOTED, (A) WITHOUT LOSS OF SALARY RATE PAID THE EMPLOYEE IN HIS FORMER POSITION, INCLUDING ANY PERIODIC OR MERITORIOUS SALARY ADVANCEMENT, PROVIDING HIS FORMER SALARY RATE, ALSO, IS A STANDARD RATE IN THE NEW GRADE, OR (B) WITH AS LITTLE LOSS OF SALARY AS IS NECESSARY TO PAY A RATE PRESCRIBED FOR THE GRADE TO WHICH TRANSFERRED, PROMOTED, OR REDUCED. SEE 20 COMP. GEN. 579; 21 ID. 791, 796; 22 ID. 489, AND THE DECISIONS THEREIN CITED.

THAT GENERAL RULE HAS BEEN APPLIED IN ALL CASES OF ODD SALARY RATES (NOT INVOLVING THE ADJUSTMENT OF PERSONNEL IN THE SAME AGENCY) TO MEAN THAT AN EMPLOYEE SO TRANSFERRED, PROMOTED, OR DEMOTED BE GIVEN THE REGULAR SALARY RATE NEXT BELOW THE ODD SALARY RATE RATHER THAN THE NEXT HIGHER RATE. COMP. GEN. 925; B-61072, OCTOBER 24, 1946, 26 COMP. GEN. 267.

IN THE DECISION OF NOVEMBER 27, 1946, B-61181, 26 COMP. GEN. 368, IT WAS STATED, WITH REFERENCE TO THE ABOVE-STATED RULES, AS FOLLOWS:

IN VIEW OF THE FOREGOING, AND IN ORDER TO CLARIFY AND COORDINATE THE PREVIOUS DECISIONS RESPECTING THE SALARY RATE PAYABLE UPON TRANSFER, PROMOTION, DEMOTION, AND REINSTATEMENT, AND IN THE ABSENCE OF A STATUTE, OR REGULATION HAVING THE FORCE OF LAW, SPECIFICALLY CONTROLLING, THE GENERAL RULE PROPERLY MAY BE AMPLIFIED AND RESTATED AS FOLLOWS: WHEN AN EMPLOYEE IS TRANSFERRED, PROMOTED, DEMOTED, OR SEPARATED IT IS WITHIN THE DISCRETION OF THE ADMINISTRATIVE OFFICE TO PAY--- WITHIN AVAILABLE APPROPRIATIONS--- SUCH EMPLOYEE IN ANY CLASSIFIED POSITION TO WHICH TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, OR REEMPLOYED THE MINIMUM SALARY RATE OF THE GRADE OR POSITION OR SUCH HIGHER RATE WITHIN THE GRADE AS WILL NOT EXCEED THE HIGHEST SALARY PREVIOUSLY ATTAINED BY HIM IN ANY PRIOR GOVERNMENT POSITION. IN APPLYING THE RULE IT WILL NOT BE CONSIDERED MATERIAL THAT THE EMPLOYEE, AFTER OCCUPYING THE HIGHEST SALARIED POSITION, OCCUPIED ONE OR MORE POSITIONS AT A LOWER SALARY RATE OR WITHOUT COMPENSATION BEFORE BEING CONSIDERED FOR THE POSITION TO WHICH THE SALARY CURRENTLY IS UNDER CONSIDERATION.

SAID DECISION OF NOVEMBER 27, 1946, DID NOT SPECIFICALLY PASS UPON THE CASES INVOLVING ODD SALARY RATES. HOWEVER, NO COGENT REASON SUGGESTS ITSELF WHY THERE SHOULD BE A DIFFERENT RULE APPLIED TO CASES INVOLVING ODD SALARY RATES IRRESPECTIVE OF WHETHER THE POSITIONS BE IN THE SAME OR IN DIFFERENT EXECUTIVE AGENCIES. ACCORDINGLY, IN ORDER TO FURTHER CLARIFY AND COORDINATE PRIOR DECISIONS THE RULE QUOTED ABOVE FROM DECISION B-61181 IS AMPLIFIED BY FURTHER HOLDING THAT IF THE HIGHEST SALARY RATE PREVIOUSLY ATTAINED BY THE INVOLVED EMPLOYEE IN THE GOVERNMENT SERVICE IS WITHIN THE RANGE OF SALARIES IN THE GRADE TO WHICH THE EMPLOYEE IS TRANSFERRED, PROMOTED, DEMOTED, OR REINSTATED, BUT SAID HIGHEST SALARY RATE IS NOT IDENTICAL WITH ANY SALARY RATE IN SUCH GRADE, THE EMPLOYEE MAY BE GIVEN THE NEXT HIGHER SALARY RATE IN THAT GRADE, IRRESPECTIVE OF WHETHER IN THE SAME OR A DIFFERENT DEPARTMENT OR AGENCY.

SAID AMPLIFIED RULE WILL BE FOR APPLICATION IN THE CASE OF REALLOCATION OF OCCUPIED POSITIONS UNDER EITHER OF THE CONDITIONS SPECIFIED IN THE FIFTH PARAGRAPH OF YOUR LETTER, SUPRA. THE RM,"CLASSIFIED POSITION," REFERRED TO IN THE RULE QUOTED FROM THE DECISION OF NOVEMBER 27, 1946, SUPRA, RELATES TO POSITIONS THE SALARIES OF WHICH ARE FIXED UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED--- THE CIVIL SERVICE LAWS AND REGULATIONS MERELY PRESCRIBING CONDITIONS AND QUALIFICATIONS FOR APPOINTMENTS TO BE MADE IN THE FEDERAL SERVICE AS DISTINGUISHED FROM THE MATTER OF FIXING SALARY RATES. 17 COMP. GEN. 578; 18 ID. 223, 796.

THE REFERENCE TO THE HIGHEST SALARY PAID IN PRIOR POSITIONS RELATES TO POSITIONS IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT AND WOULD INCLUDE EMPLOYMENT IN A CORPORATION WHOLLY OWNED BY THE UNITED STATES EITHER DIRECTLY OR THROUGH ANOTHER WHOLLY OWNED GOVERNMENT CORPORATION. COMPARE 24 COMP. GEN. 876.

THE STATEMENT CONTAINED IN THE DECISION OF NOVEMBER 27, 1946, RELATING TO THE RULE THEREIN ANNOUNCED THAT "AS THE RULE STATED HEREIN IS, IN EFFECT, A MODIFICATION OF EXISTING RULES AS UNDERSTOOD AND APPLIED IN THE LIGHT OF RELATED DECISIONS OF THIS OFFICE, IT MAY NOT BE APPLIED TO CASES WHICH ALREADY HAVE BEEN PROCESSED," APPLIES WITH EQUAL FORCE TO THE AMPLIFICATION HEREIN MADE.