B-63219, FEBRUARY 18, 1947, 26 COMP. GEN. 601

B-63219: Feb 18, 1947

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WHETHER OR NOT SUCH POSITION WAS UNDER THE CLASSIFICATION ACT. SAID RULE IS APPLICABLE IN THE CASE OF EMPLOYEES TRANSFERRED. 1947: I HAVE YOUR LETTER OF JANUARY 21. GEN. 368): "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 POSITION.'. THE SPECIFIC CASES TO WHICH YOUR DECISION B-61181 WAS DIRECTED DID NOT INVOLVE TEMPORARY EMPLOYEES. TEMPORARY EMPLOYEES ARE NOT GOVERNMENT EMPLOYEES IN THE USUAL FULL SENSE. THE QUALIFICATIONS FOR TEMPORARY APPOINTMENT ARE LESS EXACTING THAN FOR PERMANENT APPOINTMENT.

B-63219, FEBRUARY 18, 1947, 26 COMP. GEN. 601

COMPENSATION - INITIAL SALARY RATES - TRANSFER, PROMOTION, DEMOTION, REINSTATEMENT OR REEMPLOYMENT THE SALARY RATE OF A PRIOR TEMPORARY POSITION IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, WHETHER OR NOT SUCH POSITION WAS UNDER THE CLASSIFICATION ACT, MAY BE USED IN APPLYING THE RULE IN DECISION OF NOVEMBER 27, 1946, 26 COMP. GEN. 368, TO THE EFFECT THAT THE INITIAL SALARY RATE OF EMPLOYEES IN CLASSIFICATION ACT POSITIONS TO WHICH TRANSFERRED, PROMOTED, DEMOTED, REINSTATED OR REEMPLOYED MAY BE FIXED ON THE BASIS OF THE HIGHEST SALARY ATTAINED IN ANY PRIOR GOVERNMENT POSITION; AND SAID RULE IS APPLICABLE IN THE CASE OF EMPLOYEES TRANSFERRED, REINSTATED, ETC., TO TEMPORARY POSITIONS UNDER THE CLASSIFICATION ACT.

COMPTROLLER GENERAL WARREN TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, FEBRUARY 18, 1947:

I HAVE YOUR LETTER OF JANUARY 21, 1947, AS FOLLOWS:

THE COMMISSION DESIRES YOUR DECISION ON CERTAIN QUESTIONS AS TO THE INTERPRETATION OF THE FOLLOWING GENERAL RULE GIVEN IN YOUR DECISION B 61181 OF NOVEMBER 27, 1946 (26 COMP. GEN. 368):

"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.'

OUR FIRST QUESTION HAS TO DO WITH THE MEANING OF "ANY PRIOR GOVERNMENT POSITION" IN THE ABOVE GENERAL RULE. THE SPECIFIC CASES TO WHICH YOUR DECISION B-61181 WAS DIRECTED DID NOT INVOLVE TEMPORARY EMPLOYEES.

TEMPORARY EMPLOYEES ARE NOT GOVERNMENT EMPLOYEES IN THE USUAL FULL SENSE. IN GENERAL, THE QUALIFICATIONS FOR TEMPORARY APPOINTMENT ARE LESS EXACTING THAN FOR PERMANENT APPOINTMENT. A TEMPORARY EMPLOYEE HAS ALMOST NONE OF THE RIGHTS, SAFEGUARDS AND BENEFITS OF A PERMANENT EMPLOYEE. ORDINARILY HE CAN BE SEPARATED WHENEVER HIS AGENCY DESIRES, AND HE IS EXCLUDED FROM THE BENEFITS OF THE WITHIN-GRADE SALARY ADVANCEMENT LAW AND THE CIVIL SERVICE RETIREMENT ACT. HENCE IT WOULD SEEM ILLOGICAL IF AN EMPLOYEE'S PERMANENT SALARY RATE COULD BE BASED UPON A PREVIOUS TEMPORARY RATE, WHICH MIGHT HAVE COVERED ONLY A FEW DAYS OR A FEW WEEKS' EMPLOYMENT.

YOUR DECISION IS THEREFORE REQUESTED AS TO WHETHER THE PHRASE "ANY PRIOR GOVERNMENT POSITION" IN THE GENERAL RULE QUOTED ABOVE MAY NOT BE INTERPRETED AS MEANING "ANY PRIOR GOVERNMENT POSITION, OTHER THAN ONE OCCUPIED AS A TEMPORARY EMPLOYEE.' BY TEMPORARY EMPLOYEE WE MEAN ONE WHOSE EMPLOYMENT IS OF A TYPE DESIGNATED AS TEMPORARY BY LAW OR REGULATIONS, OR WHOSE EMPLOYMENT IS FOR A DEFINITE PERIOD OF ONE YEAR OR LESS. THIS MEANING IS COMPATIBLE WITH THE DEFINITION OF PERMANENT POSITIONS IN THE COMMISSION'S PERIODIC WITHIN-GRADE SALARY ADVANCEMENT REGULATIONS (PAGE Z1-425, FEDERAL PERSONNEL MANUAL).

OUR SECOND QUESTION HAS TO DO WITH THE APPLICABILITY OF THE ABOVE QUOTED GENERAL RULE IN CASES WHERE A PERSON WITH PRIOR GOVERNMENT SERVICE, OTHER THAN AS A TEMPORARY EMPLOYEE, REENTERS THE GOVERNMENT SERVICE BY TEMPORARY APPOINTMENT. EARLIER DECISIONS OF YOUR OFFICE IN 4 COMP. GEN. 54, JULY 14, 1924 AND 14 COMP. GEN. 180, AUGUST 31, 1934, TO THE EFFECT THAT A TEMPORARY EMPLOYEE CAN RECEIVE ONLY THE MINIMUM SALARY RATE OF THE GRADE IN WHICH HIS POSITION HAS BEEN ALLOCATED, DID NOT APPARENTLY CONTEMPLATE SUCH CASES.

UNDER PRESENT CONDITIONS, WE ARE OF THE OPINION THAT THERE ARE FREQUENTLY SOUND REASONS FOR PERMITTING A TEMPORARY APPOINTEE'S RATE OF PAY WITHIN THE GRADE TO BE BASED UPON THE SALARY RATE PREVIOUSLY ATTAINED BY HIM DURING PRIOR NON-TEMPORARY EMPLOYMENT, IF THE EMPLOYING AGENCY, IN ITS DISCRETION, DECIDES THAT THIS IS JUSTIFIED. AT PRESENT, SUBSTANTIAL NUMBERS OF FORMER PERMANENT OR WAR-SERVICE INDEFINITE EMPLOYEES ARE REENTERING THE GOVERNMENT THROUGH TEMPORARY APPOINTMENT UNDER TEMPORARY CIVIL SERVICE REGULATION VIII, SECTION 2, PENDING THE ESTABLISHMENT OF REGISTERS OF ELIGIBLES. MANY ARE RETURNED VETERANS OF WORLD WAR II. MANY HOPE TO QUALIFY FOR PERMANENT APPOINTMENTS WHEN APPROPRIATE EXAMINATIONS ARE ANNOUNCED. SITUATIONS ARISE, TOO, WHERE AN AGENCY HAS TEMPORARY NEED OF THE SERVICES OF A WELL QUALIFIED FORMER EMPLOYEE, AND WISHES TO INDUCE HIM TO ACCEPT TEMPORARY EMPLOYMENT AT HIS FORMER SALARY RATE WITHIN THE GRADE.

IN SUCH CASES AND IN THE CASE OF TEMPORARY APPOINTEES GENERALLY, WE ARE ABLE TO VISUALIZE NO VERY COMPELLING REASON WHY THE ADMINISTRATIVE AGENCY SHOULD NOT HAVE THE DISCRETION TO PAY THE TEMPORARY APPOINTEE A SALARY RATE WITHIN THE GRADE BASED UPON THE EMPLOYEE'S FORMER NON TEMPORARY RATE. THE GENERAL EFFECT WOULD BE MERELY TO PERMIT THE CONTINUATION, DURING TEMPORARY EMPLOYMENT, OF A PRIOR PERMANENT RATE.

OUR SECOND QUESTION, THEREFORE, IS WHETHER THE GENERAL RULE QUOTED ABOVE, AS AMPLIFIED BY YOUR DECISION ON OUR FIRST QUESTION, IS FOR APPLICATION WHEN A FORMER NON-TEMPORARY EMPLOYEE RE-ENTERS THE GOVERNMENT SERVICE BY TEMPORARY APPOINTMENT.

DECISIONS ON THESE QUESTIONS ARE SOUGHT SO THAT THEY MAY BE INCLUDED OR ACCOMMODATED IN THE COMMISSION'S REGULATIONS, INSTRUCTIONS AND INFORMATIONAL PUBLICATIONS AND IN THE COMMISSION'S EXTERNAL AND INTERNAL OPERATIONS.

RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1490, PROVIDES AS FOLLOWS:

ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.

IT REPEATEDLY HAS BEEN HELD IN THE DECISIONS OF THIS OFFICE THAT REINSTATEMENTS, REAPPOINTMENTS, AND TRANSFERS ARE NOT NEW APPOINTMENTS WITHIN THE PURVIEW OF RULE 6 OF SECTION 6, SUPRA, AND PRIOR TO THE DECISION OF NOVEMBER 27, 1946, B-61181, 26 COMP. GEN. 368, THE RULE IN SUCH CASES WAS THAT THE INITIAL SALARY OF AN EMPLOYEE IN ANY OF THOSE CATEGORIES COULD BE FIXED AT ANY RATE IN THE SALARY RANGE OF THE GRADE IN WHICH THE POSITION TO WHICH TRANSFERRED OR REAPPOINTED HAS BEEN ALLOCATED NOT TO EXCEED THE MAXIMUM RATE OF COMPENSATION ATTAINED IN THE POSITION LAST OCCUPIED, REGARDLESS OF WHETHER THE PRIOR EMPLOYMENT WAS WITHIN THE PURVIEW OF THE CLASSIFICATION ACT OF 1923. SEE 22 COMP. GEN. 925, AND DECISIONS CITED THEREIN; ALSO 24 ID. 368. THE RULE SET FORTH IN THE DECISION OF NOVEMBER 27, 1946, QUOTED IN YOUR LETTER, MERELY IS AN EXTENSION OF THE PREVIOUS RULE RESPECTING TRANSFERS, REAPPOINTMENTS, AND REINSTATEMENTS SO AS TO PERMIT AN INITIAL SALARY RATE TO BE BASED UPON THE SALARY RATE ATTAINED IN ANY PRIOR GOVERNMENT POSITION RATHER THAN BEING LIMITED TO THE MAXIMUM SALARY RATE ATTAINED IN THE POSITION LAST OCCUPIED. OF COURSE, THAT RULE RELATES TO STATUS UNDER THE CLASSIFICATION ACT AND IS WITHOUT FORCE WHERE CIVIL SERVICE REGULATIONS HAVING THE FORCE AND EFFECT OF LAW REQUIRE A DIFFERENT RULE IN ESTABLISHING A STATUS UNDER CIVIL SERVICE LAWS. 21 COMP. GEN. 113.

WHILE, AS STATED IN YOUR LETTER, QUALIFICATIONS FOR TEMPORARY EMPLOYEES MAY BE LESS EXACTING THAN FOR PERMANENT EMPLOYEES, THERE APPEARS NO SOUND LEGAL BASIS FOR DIFFERENTIATING BETWEEN SUCH EMPLOYEES FOR PURPOSES OF DETERMINING THE SALARY RATES WHICH MAY BE FIXED FOR AN APPOINTEE, ON THE BASIS OF THE VIEWS ADVANCED IN YOUR LETTER. IN THE STATING OF THE RULE COVERED BY THE DECISION OF NOVEMBER 27, 1946, SUPRA, THERE WAS NO INTENTION THAT THE PHRASE "IN ANY PRIOR GOVERNMENT POSITION" BE APPLIED ONLY TO PERMANENT POSITIONS, BUT IT WAS INTENDED TO APPLY PRIMARILY TO POSITIONS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. I MUST HERE EMPHASIZE, HOWEVER, THAT IN THE APPLICATION OF THE REFERRED TO RULE, IT IS NOT MANDATORY UPON AN ADMINISTRATIVE OFFICE TO FIX THE INITIAL SALARY RATE OF AN EMPLOYEE AT A RATE HIGHER THAN THE MINIMUM OF THE GRADE; AND EFFICIENT ADMINISTRATION IN THE APPLICATION OF SAID RULE WOULD REQUIRE CAREFUL CONSIDERATION OF ALL FACTORS BEFORE SO DOING, AND THE FACT, FOR INSTANCE, THAT ONE FORMERLY OCCUPIED A TEMPORARY POSITION AT A SALARY RATE HIGHER THAN HE WOULD HAVE RECEIVED HAD HIS PREVIOUS APPOINTMENT BEEN TO A PERMANENT POSITION VERY WELL WOULD BE ONE OF SUCH FACTORS TO BE CONSIDERED.

ACCORDINGLY, YOUR FIRST QUESTION IS ANSWERED IN THE NEGATIVE AND THE SECOND QUESTION IN THE AFFIRMATIVE.