B-103265, JUNE 1, 1951, 30 COMP. GEN. 492

B-103265, JUNE 1, 1951, 30 COMP. GEN. 492

COMPENSATION - INITIAL SALARY RATE UPON PROMOTION - WAIVER OF ADMINISTRATIVE REGULATION FIXING LOWER RATE THE INITIAL SALARY RATE OF AN EMPLOYEE WHICH WAS FIXED UPON HIS PROMOTION AT A RATE COMPARABLE WITH HIS HIGHEST PREVIOUS SALARY IN ACCORDANCE WITH CURRENT CIVIL-SERVICE REGULATIONS, BUT AT A RATE HIGHER THAN AUTHORIZED UNDER EXISTING ADMINISTRATIVE REGULATIONS, IS NOT REQUIRED TO BE ADJUSTED TO A LOWER RAGE, IN VIEW OF THE ESTABLISHED RULE THAT ADMINISTRATIVE REGULATIONS MAY BE WAIVED BY ADMINISTRATIVE ACTION.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, JUNE 1, 1951:

REFERENCE IS MADE TO YOUR LETTER OF MAY 4, 1951, REQUESTING DECISION UPON FIVE QUESTIONS, QUOTED BELOW, BASED UPON THE CASE HISTORY OF A VETERANS PREFERENCE EMPLOYEE, SHOWING SALARY CHANGES AS FOLLOWS:

4-16-46 APPOINTED P-4, $4300.00 PER ANNUM (1ST STEP-RATE)

7-1-46 SALARY ADJUSTMENT ( P.L. 390, 79TH CONGRESS) P-4,

$4902.00 P.A.

10-19-47 PERIODIC PAY INCREASE, P-4, $5152.80 P.A. (2ND STEP-RATE)

7-11-48 SALARY ADJUSTMENT ( P.L. 900, 80TH CONGRESS) P-4

$5482.80 P.A.

5-1-49 PERIODIC PAY INCREASE, P-4, $5733.50 P.A. (3RD STEP-RATE)

5-29-49 TRANSFER AND CHANGE TO LOWER GRADE, P-3, $5232.00 P. A.

10-30-49 SALARY ADJUSTMENT ( P.L. 429, 81ST CONGRESS) P-3,

$5350.00 P.A.

3-18-51 PROMOTION, GS-11, $5800.00 P.A. (3RD STEP-RATE).

YOU ACKNOWLEDGE THAT THE SALARY RATE OF $5,800 WAS AUTHORIZED BY CIVIL SERVICE REGULATIONS, SECTIONS 25.103 AND 25.104, CHAPTER Z1, FEDERAL PERSONNEL MANUAL, BUT STATE THAT UNDER THE REGULATIONS OF THE VETERANS ADMINISTRATION THE SALARY UPON REALLOCATION SHOULD HAVE BEEN FIXED "AT THE LOWEST RATE OF THE HIGHER GRADE WHICH EXCEEDS HIS EXISTING RATE OF COMPENSATION BY NOT LESS THAN THE EQUIVALENT OF ONE STEP INCREASE OF THE LOWER GRADE POSITION.'

BASED UPON THE FOREGOING YOU PRESENT FOR DECISION THE FOLLOWING QUESTIONS:

(1) DOES THE VA HAVE AUTHORITY TO REQUIRE THAT THE EMPLOYEE'S SALARY BE ADJUSTED TO $5600.00 PER ANNUM IN VIEW OF THE FACT THAT ESTABLISHMENT OF THE SALARY RATE AT $5800.00 WAS NOT IN VIOLATION OF THE CURRENT CIVIL SERVICE REGULATIONS OR ANY KNOWN PROVISIONS OF LAW?

(2) IF THE ANSWER TO QUESTION (1) IS IN THE AFFIRMATIVE AND A DECISION IS REACHED TO REQUIRE CORRECTIVE ACTION, IS IT MANDATORY THAT THE SALARY OF THE EMPLOYEE BE ADJUSTED TO $5600.00 RETROACTIVELY EFFECTIVE TO THE DATE HE WAS REPROMOTED?

(3) IF THE ANSWER TO QUESTION (2) IS IN THE AFFIRMATIVE, ARE WE CORRECT IN ASSUMING THAT BECAUSE THE EMPLOYEE CONCERNED IS A PREFERENCE ELIGIBLE WHO HAS COMPLETED A PROBATIONARY PERIOD AND IS THEREFORE SUBJECT TO THE PROVISIONS OF SECTION 14 OF THE VETERANS PREFERENCE ACT, AS AMENDED, HIS SALARY MAY NOT BE ADJUSTED RETROACTIVELY UNTIL HE HAS BEEN GIVEN AT LEAST 30 FULL CALENDAR DAYS ADVANCE WRITTEN NOTICE?

(4) IF THE ANSWER TO QUESTION (2) IS IN THE NEGATIVE, MAY THE VA REQUIRE THAT THE EMPLOYEE'S SALARY BE ADJUSTED TO $5600.00, RETROACTIVELY EFFECTIVE TO THE DATE HE WAS REPROMOTED?

(5) IF THE ANSWER TO QUESTION (2) IS IN THE NEGATIVE, ARE WE CORRECT IN ASSUMING THAT THE AGENCY MAY DELAY THE EFFECTIVE DATE OF THE SALARY ADJUSTMENT UNTIL THE 30 DAYS SPECIFIED IN THE ADVANCE NOTICE GIVEN TO THE EMPLOYEE HAVE EXPIRED?

AS THE SALARY RATE OF $5,800, ASSIGNED TO THE EMPLOYEE ON THE DATE OF HIS PROMOTION ON MARCH 18, 1951, WAS COMPARABLE WITH THE HIGHEST SALARY RATE ($5,733.60) PREVIOUSLY RECEIVED BY HIM--- SEE 26 COMP. GEN. 368; ID. 530-- - THE ADMINISTRATIVE ACTION IN FIXING HIS SALARY AT $5,800 WAS NOT ILLEGAL --- IT BEING A WELL SETTLED RULE THAT AN ADMINISTRATIVE REGULATION MAY BE WAIVED BY ADMINISTRATIVE ACTION. SEE, IN THAT CONNECTION, 21 COMP. DEC. 482; 1 COMP. GEN. 13; 4 ID. 767. ALSO, SEE DECISION OF APRIL 5, 1949, B- 74921, TO YOU; AND COMPARE 23 COMP. GEN. 941. ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE, RENDERING UNNECESSARY ANY ANSWERS TO THE REMAINING QUESTIONS 2 TO 5.