B-111506, DECEMBER 23, 1953, 33 COMP. GEN. 276

B-111506: Dec 23, 1953

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COMPENSATION - INCREASES - CLASSIFIED POSITION CHANGED TO WAGE BOARD POSITION AND RECHANGED TO CLASSIFIED BONA FIDE ADMINISTRATIVE PERSONNEL ACTIONS CHANGING CLASSIFIED POSITIONS TO WAGE BOARD POSITIONS MAY NOT BE REVERSED ADMINISTRATIVELY ON THE BASIS THE ORIGINAL ACTIONS WERE ERRONEOUS. IN ABSENCE OF A CIVIL SERVICE COMMISSION DETERMINATION THAT THE POSITIONS ARE SUBJECT TO THE CLASSIFICATION ACT OF 1949. THEREFORE EMPLOYEES OCCUPYING SUCH POSITIONS ARE NOT ENTITLED TO THE COMPENSATION RATE AUTHORIZED FOR CLASSIFIED EMPLOYEES FROM THE DATE OF SUCH REVERSAL ACTION BY ADMINISTRATIVE OFFICE. 1953: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 12. WAS ADMINISTRATIVELY REMOVED FROM COVERAGE OF THE CLASSIFICATION ACT OF 1949.

B-111506, DECEMBER 23, 1953, 33 COMP. GEN. 276

COMPENSATION - INCREASES - CLASSIFIED POSITION CHANGED TO WAGE BOARD POSITION AND RECHANGED TO CLASSIFIED BONA FIDE ADMINISTRATIVE PERSONNEL ACTIONS CHANGING CLASSIFIED POSITIONS TO WAGE BOARD POSITIONS MAY NOT BE REVERSED ADMINISTRATIVELY ON THE BASIS THE ORIGINAL ACTIONS WERE ERRONEOUS, IN ABSENCE OF A CIVIL SERVICE COMMISSION DETERMINATION THAT THE POSITIONS ARE SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, AND THEREFORE EMPLOYEES OCCUPYING SUCH POSITIONS ARE NOT ENTITLED TO THE COMPENSATION RATE AUTHORIZED FOR CLASSIFIED EMPLOYEES FROM THE DATE OF SUCH REVERSAL ACTION BY ADMINISTRATIVE OFFICE.

COMPTROLLER GENERAL WARREN TO W. R. FRANCE, DEPARTMENT OF AGRICULTURE, DECEMBER 23, 1953:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 12, 1953, SUBMITTING A VOUCHER IN THE AMOUNT OF $458.14, REPRESENTING THE DIFFERENCE IN SALARY BETWEEN THE RATE RECEIVED ON APRIL 1, 1951, WHEN THE POSITION HERE INVOLVED, NURSERY WORKER II, UNALLOCATED, WAS ADMINISTRATIVELY REMOVED FROM COVERAGE OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954, AND THE RATES PRESCRIBED BY SAID ACT, BASED UPON PERSONNEL ACTIONS TAKEN ADMINISTRATIVELY TO RESTORE SAID POSITION TO COVERAGE THEREOF, FOR THE PERIOD JUNE 23, 1952, TO SEPTEMBER 28, 1953, FOR WHICH AMOUNT THE EMPLOYEE HAS MADE CLAIM.

YOU REQUEST DECISION UPON FOUR QUESTIONS BASED UPON THE PRINCIPLE SET FORTH IN 28 COMP. GEN. 514, WHICH QUESTIONS ARE AS FOLLOWS:

(1) MAY MR. CLINTON BE REFUNDED SALARY PAID TO HIM AND REFUNDED BY HIM AT THE RATE OF $3,032 PER ANNUM FROM JUNE 23, 1952 TO OCTOBER 10, 1952?

(2) MAY MR. CLINTON BE PAID AT THE RATE OF $3,032 FROM OCTOBER 11, 1952, UNTIL NOVEMBER 8, 1952, AND AT THE RATE OF $3,112 FROM NOVEMBER 9, 1952, TO SEPTEMBER 28, 1953, THE DATE OF RECEIPT OF THE COMMISSION'S LETTER EXEMPTING MR. CLINTON'S POSITION FROM THE CLASSIFICATION ACT?

(3) AT WHAT RATE SHOULD MR. CLINTON BE PAID FROM SEPTEMBER 28, 1953, UNTIL THE WAGE BOARD MEETS AND ESTABLISHES A PAY RATE BASED ON THE PREVAILING WAGE RATE?

(4) ON THE BASIS OF YOUR DECISION IN MR. CLINTON'S CASE, MAY SETTLEMENT BE MADE TO THE OTHER EMPLOYEES INVOLVED IN THIS SITUATION WHO HAVE MADE REFUNDS WITHOUT THE FORMALITY OF EACH EMPLOYEE FILING A CLAIM?

THE PRINCIPLE ENUNCIATED IN 28 COMP. GEN. 514, IS AS FOLLOWS:

WHERE ADMINISTRATIVE PERSONNEL ACTIONS, SUCH AS APPOINTMENTS, PROMOTIONS, OR REINSTATEMENTS, ARE FOUND AFTER A SUBSTANTIAL PERIOD OF TIME TO BE ERRONEOUS UPON POST AUDIT BY THE CIVIL SERVICE COMMISSION BUT NOT DUE TO BAD FAITH OR FRAUD EITHER ON THE PART OF THE EMPLOYEE OR THE ADMINISTRATIVE OFFICIALS, THE EMPLOYEE PROPERLY MAY BE CONSIDERED AS SERVING IN A DE FACTO STATUS UNDER THE UNAUTHORIZED PERSONNEL ACTION AND MAY BE PERMITTED TO RETAIN COMPENSATION RECEIVED BY HIM PRIOR TO THE TIME SUCH ERROR IS BROUGHT TO THE ATTENTION OF THE ADMINISTRATIVE OFFICIALS. 28 COMP. GEN. 69, MODIFIED.

THE FACTS AS REPORTED BY YOU ARE AS FOLLOWS:

THE CIVIL SERVICE COMMISSION IN A LETTER DATED AUGUST 13, 1953, TO MR. JAMES L. BUCKLEY, ACTING DIRECTOR OF PERSONNEL, DEPARTMENT OF AGRICULTURE, WASHINGTON 25, D.C. HAS NOW RULED THAT ALL POSITIONS OF THAT GROUP OF EMPLOYEES REFERRED TO IN THE SECOND PARAGRAPH OF YOUR DECISION B-11506 DATED SEPTEMBER 30, 1952 ARE EXEMPT FROM THE PROVISIONS OF THE CLASSIFICATION ACT OF 1949, THEREBY BRINGING THEM WITHIN THE SCOPE OF LOCAL WAGE BOARDS. A COPY OF THIS LETTER IS ATTACHED.

FOLLOWING RECEIPT OF NOTIFICATION OF PERSONNEL ACTION ON JUNE 23, 1952, RESTORING THE POSITION OF NURSERY WORKER II TO THE COVERAGE OF THE CLASSIFICATION ACT OF 1949 AND THE PROVISIONS OF THE ACT OF OCTOBER 24, 1951, MR. CLINTON WAS PAYROLLED AT THE RATE OF $3,032.00 PER ANNUM. PAYROLLS WERE CERTIFIED AT THIS RATE THROUGH OCTOBER 10, 1952, AT WHICH TIME THE PAY RATE WAS CHANGED BACK TO $2,732.00, PENDING A RULING BY THE CIVIL SERVICE COMMISSION THAT THE POSITION WAS COVERED BY THE CLASSIFICATION ACT OF 1949. WHILE NO OFFICIAL ACTION HAS BEEN TAKEN TO RESTORE THIS EMPLOYEE TO HIS FORMER GRADE OF FARM LABORER, UNALLOCATED, $2,732.00 PER ANNUM, THE CERTIFYING OFFICER CONSIDERED HE WAS WITHOUT AUTHORITY TO CONTINUE CERTIFYING MR. CLINTON'S PAY AT THE RATE OF $3,032.00 IN VIEW OF YOUR DECISION B-111506. THE EMPLOYEE WAS NOTIFIED THAT THE PAY INCREASE GRANTED WAS UNAUTHORIZED AND REFUNDED $86.78, THE NET OVERPAYMENT.

THE CLAIM HERE PRESENTED MAY BE CONSIDERED IN TWO PARTS. (1) CLAIM FOR $86.78 REPRESENTING NET PAY GRANTED BUT REFUNDED BY MR. CLINTON AT THE DIFFERENCE BETWEEN THE RATES OF $2,732 PER ANNUM AND $3,032 PER ANNUM. THE PAY INCREASE WAS GRANTED EFFECTIVE JUNE 23, 1952, THE DATE THE ACTION WAS ISSUED BY THE PERSONNEL OFFICER AND DISCONTINUED EFFECTIVE OCTOBER 10, 1952, THE DATE DECISION B-111506 WAS RECEIVED. (2) CLAIM FOR $345.58 NET, REPRESENTING PAY DUE FROM OCTOBER 11, 1952, THE DATE THE EMPLOYEE WAS AGAIN PAID AT THE RATE OF $2,732 TO NOVEMBER 9, 1952, THE EFFECTIVE DATE OF THE LONGEVITY STEP INCREASE, AT THE DIFFERENCE BETWEEN THE RATE OF $2,732 AND $3,032 AND PAY FROM NOVEMBER 9, 1952, TO SEPTEMBER 28, 1953, THE DATE OF RECEIPT OF THE COMMISSION'S LETTER EXEMPTING MR. CLINTON'S POSITION FROM THE CLASSIFICATION ACT, AT THE DIFFERENCE BETWEEN THE RATE OF $2,732 AND $3,112.00.

THE RECORD NOW SHOWS THAT ON AUGUST 13, 1953, THE CIVIL SERVICE COMMISSION, PURSUANT TO THE PROVISIONS OF SECTION 203 OF THE CLASSIFICATION ACT OF 1949, DETERMINED THAT THE POSITION HERE INVOLVED, NAMELY, NURSERY WORKER II, UNALLOCATED, IS EXEMPT FROM THE CLASSIFICATION ACT UNDER SECTION 202 (7) THEREOF.

THE ADMINISTRATIVE ACTION TAKEN IN THIS CASE, ON APRIL 1, 1951, WAS A CORRECT ACTION AND THE CONCLUSION REACHED IN 32 COMP. GEN. 156, WHICH HELD THAT:

BONA FIDE ADMINISTRATIVE PERSONNEL ACTIONS CHANGING CLASSIFIED POSITIONS TO WAGE BOARD POSITIONS MAY NOT BE CHANGED RETROACTIVELY ON THE BASIS THAT SUCH ACTIONS WERE ERRONEOUS IN THE ABSENCE OF A CIVIL SERVICE COMMISSION DETERMINATION THAT THE POSITIONS ARE SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, AND THEREFORE, EMPLOYEES OCCUPYING SUCH POSITIONS ARE NOT ENTITLED TO THE RETROACTIVE AND WITHIN-GRADE COMPENSATION INCREASES AUTHORIZED FOR CLASSIFIED EMPLOYEES BY THE INCREASED COMPENSATION AMENDMENT TO SAID ACT. GOVERNS.

THE PRINCIPLE ENUNCIATED IN 28 COMP. GEN. 514, HAS NO APPLICATION TO THE FACTS AND CIRCUMSTANCES OF THIS CASE.

IN VIEW OF THE FOREGOING, QUESTIONS 1 AND 2 MUST BE ANSWERED IN THE NEGATIVE, MAKING UNNECESSARY ANY ANSWER TO QUESTION 4. IN ANSWER TO QUESTION 3, YOU MAY BE ADVISED THAT THE RATE TO BE PAID UNTIL A PREVAILING RATE IS PROPERLY ESTABLISHED FOR THE POSITION IS $2,732, THE RATE BEING PAID ON APRIL 1, 1951.

ACCORDINGLY, THE VOUCHER WHICH, TOGETHER WITH RELATED PAPERS, IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.

Oct 29, 2020

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Oct 27, 2020

  • Silver Investments, Inc.
    We dismiss the protest as untimely because it was filed more than 10 days after the protester knew, or should have known, the basis for its protest.
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