B-81537, JANUARY 25, 1949, 28 COMP. GEN. 433

B-81537: Jan 25, 1949

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IS NOT APPLICABLE WHERE AN EMPLOYEE TRANSFERRED FROM A POSITION WITH THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION. THE EMPLOYEE IS TO BE REGARDED AS A NEW APPOINTEE ENTITLED ONLY TO THE MINIMUM SALARY OF THE GRADE UNDER RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT. IN WHICH IT IS STATED THAT. AN EMPLOYEE OF THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION WAS TRANSFERRED FROM A STENOGRAPHIC POSITION IN THAT ADMINISTRATION PAYING $2. WAS THE FOURTH SALARY STEP FOR THE GRADE. IT IS STATED THAT THE APPOINTMENT AT A SALARY RATE ABOVE THE MINIMUM RATE FOR THE GRADE APPEARED TO HAVE BEEN IN LINE WITH THE DECISION OF NOVEMBER 27. MAY BE FIXED AT SUCH A RATE ABOVE THE MINIMUM OF THE GRADE AS WILL NOT EXCEED THE HIGHEST SALARY RATE ATTAINED IN ANY PRIOR GOVERNMENT POSITION.

B-81537, JANUARY 25, 1949, 28 COMP. GEN. 433

COMPENSATION - INITIAL SALARY RATE - TRANSFER FROM UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION TO CLASSIFIED POSITION THE RULE IN 26 COMP. GEN. 368, TO THE EFFECT THAT THE INITIAL SALARY RATE OF EMPLOYEES IN CLASSIFIED POSITIONS TO WHICH TRANSFERRED, ETC., MAY BE FIXED ON THE BASIS OF THE HIGHEST SALARY ATTAINED IN ANY PRIOR GOVERNMENT POSITION, IS NOT APPLICABLE WHERE AN EMPLOYEE TRANSFERRED FROM A POSITION WITH THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION--- AN INTERNATIONAL, RATHER THAN A FEDERAL, AGENCY--- TO A CLASSIFIED POSITION; INSTEAD, THE EMPLOYEE IS TO BE REGARDED AS A NEW APPOINTEE ENTITLED ONLY TO THE MINIMUM SALARY OF THE GRADE UNDER RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT, AS AMENDED.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, SECURITIES AND EXCHANGE COMMISSION, JANUARY 25, 949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF NOVEMBER 8, 1948, IN WHICH IT IS STATED THAT, EFFECTIVE FEBRUARY 2, 1948, AN EMPLOYEE OF THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION WAS TRANSFERRED FROM A STENOGRAPHIC POSITION IN THAT ADMINISTRATION PAYING $2,450 PER ANNUM TO A SIMILAR POSITION IN GRADE CAF-3 IN THE SECURITIES AND EXCHANGE COMMISSION AT A SALARY RATE OF $2,394 PER ANNUM WHICH, AT THAT TIME, WAS THE FOURTH SALARY STEP FOR THE GRADE. IT IS STATED THAT THE APPOINTMENT AT A SALARY RATE ABOVE THE MINIMUM RATE FOR THE GRADE APPEARED TO HAVE BEEN IN LINE WITH THE DECISION OF NOVEMBER 27, 1946, REPORTED IN 26 COMP. GEN. 368, WHICH HELD, INTER ALIA, THAT THE INITIAL SALARY RATE OF AN EMPLOYEE IN A CLASSIFIED POSITION TO WHICH TRANSFERRED, ETC., WITHIN ADMINISTRATIVE DISCRETION AND AVAILABILITY OF APPROPRIATIONS, MAY BE FIXED AT SUCH A RATE ABOVE THE MINIMUM OF THE GRADE AS WILL NOT EXCEED THE HIGHEST SALARY RATE ATTAINED IN ANY PRIOR GOVERNMENT POSITION.

UPON SUBSEQUENT REVIEW OF THE MATTER, IT ADMINISTRATIVELY WAS DETERMINED THAT THE APPOINTMENT SHOULD HAVE BEEN MADE AT THE THEN MINIMUM SALARY RATE FOR GRADE CAF-3, $2,168.28 PER ANNUM. ACCORDINGLY, AN ADMINISTRATIVE EXCEPTION WAS RAISED TOTALING $78.12, REPRESENTING THE DIFFERENCE BETWEEN THE SALARY PAYMENTS, MADE AT THE RATE OF $2,394 PER ANNUM AND $2,168.28 PER ANNUM FOR THE PERIOD FEBRUARY 2, 1948, THROUGH JUNE 6, 1948--- THE DATE WHEN THE EMPLOYEE WAS PROMOTED TO A HIGHER GRADE.

IT APPEARS THAT THE EMPLOYEE NOW IS ON APPROVED LEAVE WITHOUT PAY AND HAS TO HER CREDIT WITH THE SECURITIES AND EXCHANGE COMMISSION AS UNPAID SALARY AN AMOUNT INSUFFICIENT TO COVER THE TOTAL AMOUNT OF THE EXCEPTION. UPON NOTICE THAT THE UNPAID SALARY SHOULD BE APPLIED AGAINST THE ALLEGED INDEBTEDNESS AND THE ADDITIONAL AMOUNT REMITTED BY HER, THE EMPLOYEE, IN SUPPORT OF HER OBJECTION TO SUCH ACTION, POINTS OUT THAT SHE WAS INFORMED SHE WOULD BE PAID THE SALARY WHICH SHE ACTUALLY RECEIVED; THAT SHE WOULD NOT HAVE ACCEPTED EMPLOYMENT WITH THE SECURITIES AND EXCHANGE COMMISSION AT THE MINIMUM SALARY FOR GRADE CAF 3; AND THAT TO COLLECT AN OVERPAYMENT WHICH OCCURRED THROUGH NO FAULT OF HERS SEEMS UNFAIR AND UNJUST, AND WOULD RESULT IN SEVERE HARDSHIP.

IN VIEW OF THE ABOVE FACTS YOU REQUEST TO BE ADVISED (A) WHETHER THE ADMINISTRATIVE EXCEPTION IS PROPER IN VIEW OF THE EMPLOYEE'S STATEMENT THAT SHE DID NOT AGREE TO ACCEPT THE POSITION AT THE MINIMUM SALARY OF GRADE CAF-3, AND (B), IF SO, WHETHER IT IS PERMISSIBLE TO APPLY AGAINST THE INDEBTEDNESS THE UNPAID SALARY DUE THE EMPLOYEE BY THE COMMISSION.

IT MAY BE STATED, GENERALLY, THAT, IRRESPECTIVE OF AN EMPLOYEE'S REASON FOR ACCEPTING A POSITION WHICH HAS BEEN CLASSIFIED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, THE EMPLOYEE MAY BE PAID ONLY AT A SALARY RATE AUTHORIZED BY LAW TO BE PAID FOR THAT POSITION AND, IF AN EMPLOYEE HAS BEEN PAID IN EXCESS RATE, THIS OFFICE HAS NO ALTERNATIVE BUT TO APPLY THE LAW AND DISALLOW CREDIT FOR EXCESS PAYMENTS, NOTWITHSTANDING ANY HARDSHIP THAT MAY RESULT FROM THE ERRONEOUS ADMINISTRATIVE ACTION. COMP. GEN. 272; 18 ID. 223. RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1490, AS AMENDED, PROVIDES, IN EFFECT, THAT THE ONLY SALARY RATE PROPERLY PAYABLE TO PERSONS RECEIVING NEW APPOINTMENTS TO POSITIONS WHICH HAVE BEEN CLASSIFIED IN ACCORDANCE WITH THE CLASSIFICATION ACT OF 1923, AS AMENDED, IS THE MINIMUM SALARY RATE PROVIDED FOR THE GRADE IN WHICH THE POSITION HAS BEEN CLASSIFIED. HENCE, UNLESS THE PRESENT CASE CAN BE CONSIDERED AS COMING WITHIN THE PURVIEW OF THE RULE STATED IN 26 COMP. GEN. 368, SUPRA, THE APPOINTMENT TO THE POSITION WITH YOUR COMMISSION MUST BE REGARDED AS A NEW APPOINTMENT, AND THE INITIAL SALARY RATE PAYABLE WAS THE MINIMUM RATE PRESCRIBED FOR THE GRADE.

THE UNITED NATIONS RELIEF AND REHABILITATION ADMINISTRATION HAS BEEN RECOGNIZED IN MANY DECISIONS OF THIS OFFICE AS BEING AN INTERNATIONAL AGENCY, RATHER THAN A FEDERAL AGENCY. SEE 23 COMP. GEN. 564; ID. 744; 25 ID. 38; 26 ID. 15. HENCE, NOT BEING A FEDERAL AGENCY, ANY SALARY RECEIVED IN THAT ADMINISTRATION PROPERLY MAY NOT BE CONSIDERED IN DETERMINING THE SALARY INITIALLY PAYABLE TO THE EMPLOYEE HERE INVOLVED UPON HER APPOINTMENT TO A POSITION IN YOUR COMMISSION. ACCORDINGLY, UNDER THE FACTS STATED, THE ADMINISTRATIVE EXCEPTION WAS PROPER.

WITH REFERENCE TO YOUR QUESTION AS TO WHETHER IT IS PERMISSIBLE TO APPLY AGAINST THE INDEBTEDNESS THE UNPAID SALARY DUE THE EMPLOYEE BY THE COMMISSION, YOUR ATTENTION IS INVITED TO THE PROCEDURE PRESCRIBED IN 16 COMP. GEN. 547 FOR FOLLOWING IN THIS TYPE OF CASE. IN ACCORDANCE WITH THAT PROCEDURE, THE CLAIM FOR UNPAID SALARY, TOGETHER WITH A COMPLETE ADMINISTRATIVE REPORT AND A REFERENCE TO THIS DECISION, SHOULD BE TRANSMITTED TO THE CLAIMS DIVISION, GENERAL ACCOUNTING OFFICE, FOR ADJUSTMENT AND SETTLEMENT.