A-25192, NOVEMBER 9, 1929, 9 COMP. GEN. 193

A-25192, NOVEMBER 9, 1929, 9 COMP. GEN. 193

CLASSIFICATION OF CIVILIAN EMPLOYEES - REALLOCATION OF A POSITION TO A LOWER GRADE UPON REALLOCATION OF A POSITION BY THE PERSONNEL CLASSIFICATION BOARD FROM A HIGHER TO A LOWER GRADE, THE SALARY OF THE EMPLOYEE WHOSE POSITION IS THUS REALLOCATED NEED BE REDUCED ONLY WHEN AND TO THE EXTENT NECESSARY TO BRING IT WITHIN A RATE PROVIDED FOR THE GRADE TO WHICH REALLOCATED. COMP. GEN. 275 MODIFIED.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 9, 1929:

C. G. DUGANNE, AN EMPLOYEE UNDER THE FEDERAL TRADE COMMISSION, HAS FILED CLAIM FOR AN AMOUNT OF COMPENSATION ALLEGED TO HAVE BEEN LOST BY REASON OF THE RULE STATED IN DECISION OF THIS OFFICE DATED NOVEMBER 27, 1928, 8 COMP. GEN. 275, EXACT AMOUNT NOT STATED, COVERING PERIOD JUNE 1, 1927, TO OCTOBER 31, 1928.

THE RECORD DISCLOSES THAT PRIOR TO JUNE 1, 1927, THE POSITION HELD BY MR. DUGANNE HAD BEEN ALLOCATED IN GRADE CAF-12; THAT HE WAS RECEIVING ON JUNE 1, 1927, THE MINIMUM SALARY RATE OF $5,200 PER ANNUM, BEING THE MINIMUM SALARY RATE OF GRADE CAF-12; THAT ON JUNE 29, 1927, THE ADMINISTRATIVE OFFICE RECEIVED A NOTIFICATION FROM THE PERSONNEL CLASSIFICATION BOARD REALLOCATING THE POSITION FROM GRADE CAF-12 TO CAF-11, SUCH ACTION HAVING BEEN TAKEN ON THE MOTION OF THE BOARD; THAT ON JULY 6, 1927, THE ADMINISTRATIVE OFFICE FIXED THE SALARY OF THE EMPLOYEE AT $4,600 PER ANNUM IN THE LOWER GRADE, RETROACTIVELY EFFECTIVE FROM JUNE 1, 1927; THAT AS HE HAD BEEN PAID AT THE RATE OF $5,200 PER ANNUM FOR THE MONTH OF JUNE, 1927, A CHARGE WAS RAISED AGAINST HIM FOR THE DIFFERENCE BETWEEN $4,600 AND $5,200 PER ANNUM COVERING THE MONTH OF JUNE, 1927; AND THAT HE WAS PAID AT THE RATE OF $4,600 PER ANNUM FROM JULY 1, 1927, TO JUNE 30, 1928.

THE DECISION OF NOVEMBER 27, 1928, SUPRA, HELD (1) THAT IN THE PARTICULAR CASE OF MR. DUGANNE THE ACTION OF THE PERSONNEL CLASSIFICATION BOARD ON ITS OWN MOTION IN ALLOCATING THE POSITION DOWNWARD WOULD NOT BE DISTURBED, FOR THE REASON THAT THE ADMINISTRATIVE OFFICE HAD ACQUIESCED IN AND APPROVED THE ACTION OF THE BOARD; AND (2) THAT UPON THE ALLOCATION OF THE POSITION DOWNWARD THE INITIAL SALARY RATE, EFFECTIVE JUNE 1, 1927, WAS THE MINIMUM SALARY RATE OF THE LOWER GRADE, $3,800 PER ANNUM, AND THAT THE ACTION OF THE ADMINISTRATIVE OFFICE IN FIXING THE SALARY RATE IN THE LOWER GRADE AT $4,600 PER ANNUM COULD NOT BE MADE EFFECTIVE FROM JUNE 1, 1927, BUT COULD BE REGARDED AS AN ADMINISTRATIVE INCREASE OR PROMOTION EFFECTIVE FROM THE DATE THEREOF, JULY 6, 1927. ON THIS BASIS IT WAS CONCLUDED THAT "THE EMPLOYEE HAS BEEN OVERPAID FOR THE PERIOD JUNE 1 TO JULY 5, 1927, INCLUSIVE, IN AN AMOUNT REPRESENTING THE DIFFERENCE BETWEEN THE SALARY RATE OF $3,800 AND $4,600 PER ANNUM.' PURSUANT TO SAID DECISION, THE EMPLOYEE WAS REQUIRED TO REFUND A TOTAL AMOUNT OF $123.32. SEE COLLECTION VOUCHERS NOS. 481 FOR $112.60 AND 482 FOR $10.72, BOTH DATED DECEMBER 4, 1928, WHICH AMOUNTS WERE INCLUDED IN DEPOSIT NO. 7, DATED OCTOBER 15, 1929, IN THE SUM OF $217.68.

NOTHING HAS BEEN SUBMITTED TO REQUIRE OR AUTHORIZE ANY MODIFICATION IN THE DECISION RELATIVE TO THE EFFECTIVENESS OF THE REALLOCATING THE POSITION DOWNWARD, BUT IN CONNECTION WITH THE CLAIM HERE PRESENTED, THERE IS FOR FURTHER CONSIDERATION THE HOLDING THAT UPON SUCH REALLOCATION DOWNWARD OF THE POSITION THE INITIAL SALARY RATE MUST BE THE MINIMUM SALARY RATE OF THE LOWER GRADE IN WHICH THE POSITION IS REALLOCATED. LAW, EXPRESSLY GOVERNING THE MATTER.

SINCE THE REALLOCATION OF A POSITION IS NOT GENERALLY THE RESULT OF ANY INEFFICIENCY OR FAULT ON THE PART OF THE PARTICULAR EMPLOYEE, BUT IS ON THE ASSUMPTION THAT AN ERROR WAS MADE ORIGINALLY BY THE PERSONNEL CLASSIFICATION BOARD IN THE ALLOCATION OF THE POSITION, THERE WOULD NOT NECESSARILY BE FOR APPLICATION TO REALLOCATIONS DOWNWARD THE RULE APPLICABLE TO REDUCTIONS IN SALARY WHICH USUALLY ARE GIVEN ONLY FOR FAULT OR INEFFICIENCY OF THE EMPLOYEE, OR LACK OF APPROPRIATIONS.

FURTHERMORE, THE ATTITUDE OR LEGISLATIVE POLICY OF THE CONGRESS APPEARS TO HAVE BEEN TO SAVE EMPLOYEES FROM UNNECESSARY LOSS OF SALARY UPON CHANGE IN SALARY STATUS BEYOND THE CONTROL AND WITHOUT FAULT OF THE EMPLOYEES. THIS ATTITUDE IS REFLECTED IN THE AVERAGE PROVISION (EXCEPTIONS) APPEARING IN THE ANNUAL APPROPRIATION ACTS; IN THE ORIGINAL CLASSIFICATION ACT OF 1923 (SECS. 6, 7, AND 10); AND IN THE AMENDATORY ACT OF MAY 28, 1928 (SECOND PROVISO TO SEC. 1).

AFTER GIVING FURTHER CONSIDERATION TO THIS MATTER, THERE WOULD APPEAR TO BE SUFFICIENT JUSTIFICATION AND AUTHORITY FOR APPLYING, IN FIXING THE INITIAL SALARY RATE UNDER A REALLOCATION DOWNWARD, THE SAME GENERAL PRINCIPLE ON WHICH WAS BASED THE RULE ANNOUNCED IN DECISION OF DECEMBER 23, 1926, 6 COMP. GEN. 413, FOR FIXING THE INITIAL SALARY RATE UNDER A REALLOCATION UPWARD, IN WHICH DECISION IT WAS HELD THAT UPON REALLOCATION FROM A LOWER TO A HIGHER GRADE THERE NEED BE NO LOSS OF SALARY. EXTENDING OR APPLYING THE SAME PRINCIPLE TO REALLOCATIONS DOWNWARD, IT MAY BE HELD THAT IN SUCH CASES THE SALARY OF THE EMPLOYEE WHOSE POSITION IS THUS REALLOCATED NEED BE REDUCED ONLY WHEN AND TO THE EXTENT NECESSARY TO BRING IT WITHIN A RATE PROVIDED FOR THE GRADE TO WHICH REALLOCATED.

UNDER THIS RULE, IF THE SAME HAD THEN BEEN IN FORCE, THE CLAIMANT IN THE PRESENT CASE COULD HAVE BEEN PAID FROM JUNE 1 AT $5000 PER ANNUM, THE MAXIMUM SALARY RATE OF GRADE CAF-11, HAD NOT A LOWER RATE, TO WIT, $4,600 PER ANNUM, BEEN FIXED BY THE ADMINISTRATIVE OFFICE. AS THE RATE THUS FIXED BY THE ADMINISTRATIVE OFFICE ON JULY 6, 1927, IS AN AUTHORIZED RATE WITHIN THE GRADE TO WHICH THE POSITION HAD BEEN REALLOCATED, PAYMENT AT THAT RATE FROM THE EFFECTIVE DATE OF THE REALLOCATION, JUNE 1, 1927, MAY BE REGARDED AS LEGAL AND PROPER. THEREFORE, CLAIMANT IS NOW ENTITLED TO HAVE REPAID TO HIM THE AMOUNT HE WAS REQUIRED TO REFUND AFTER AND AS A RESULT OF THE RULE ANNOUNCED IN THE DECISION OF NOVEMBER 27, 1928, WHICH IS HEREBY MODIFIED AS ABOVE INDICATED.