B-106137, MAY 21, 1953, 32 COMP. GEN. 527

B-106137, MAY 21, 1953, 32 COMP. GEN. 527

CLASSIFICATION - POSITION REALLOCATIONS - SALARY CHANGES - SAVED PAY AN EMPLOYEE WHO HAS SERVED CONTINUOUSLY IN THE SAME AGENCY IN THE SAME LINE OF WORK SINCE THE EFFECTIVE DATE OF THE CLASSIFICATION ACT OF 1949, AND WHO IS REASSIGNED ON OR AFTER THAT DATE, BECAUSE OF A REDUCTION IN FORCE OR POSITION REALLOCATION, TO A POSITION IN A LOWER GRADE IN THE SAME LINE OF WORK AS THAT OF A POSITION IN THE SAME AGENCY AND GEOGRAPHIC LOCATION OCCUPIED BY AN EMPLOYEE IN RECEIPT OF SAVED PAY MAY BE PAID, UNDER THE SAVED PAY PROVISIONS OF SECTION 25.103 (F) OF THE FEDERAL EMPLOYEES PAY REGULATIONS, THE RATE RECEIVED BY THE EMPLOYEE OCCUPYING THE POSITION IN THE LOWER GRADE; HOWEVER SALARY ADJUSTMENTS MAY NOT BE MADE EFFECTIVE PRIOR TO THE DATE THE REGULATION WAS FILED FOR PUBLICATION IN THE FEDERAL REGISTER.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, MAY 21, 1953:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23, 1953, REQUESTING DECISION WHETHER THOSE EMPLOYEES WHOSE CASES WERE PASSED UPON BY DECISION OF THIS OFFICE B-106137, 31 COMP. GEN. 202, DECEMBER 5, 1951, ARE ENTITLED TO SALARY RETENTION UNDER THE FOLLOWING PROVISIONS OF PARAGRAPH (F), SECTION 25.103, FEDERAL EMPLOYEES PAY REGULATIONS, CHAPTER Z1-318 OF THE FEDERAL PERSONNEL MANUAL, AS ADDED DECEMBER 16, 1952, AND WHICH PROVIDES AS FOLLOWS:

ANY EMPLOYEE SERVING CONTINUOUSLY IN THE AGENCY AND IN THE SAME LINE OF WORK SINCE THE EFFECTIVE DATE OF TITLE VI OF THE CLASSIFICATION ACT OF 1949 WHO, THROUGH NO FAULT OF HIS OWN, IS REASSIGNED ON OR AFTER THAT DATE TO A POSITION IN A LOWER GRADE IN THE SAME LINE OF WORK WHICH IS IDENTICAL TO A POSITION IN THE SAME AGENCY AND GEOGRAPHIC LOCATION OCCUPIED BY AN EMPLOYEE WHOSE SALARY IS DETERMINED UNDER THE PROVISIONS OF PARAGRAPH (E) OF THIS SECTION MAY BE PAID AT ANY RATE NOT IN EXCESS OF THE RATE HE WAS RECEIVING IN THE GRADE FROM WHICH REASSIGNED AND NOT IN EXCESS OF THE RATE BEING RECEIVED BY THE EMPLOYEE OCCUPYING SUCH IDENTICAL POSITION IN THE LOWER GRADE. THIS PARAGRAPH IS EFFECTIVE AUGUST 18, 1951, FOR EMPLOYEES ON THE ROLLS OF THE AGENCY ON THE DATE OF PUBLICATION OF THIS AMENDMENT IN THE FEDERAL REGISTER.

THE EXAMPLES ARE HERE QUOTED FOR READY REFERENCE:

MR. A OCCUPIED THE POSITION OF REGISTRATION OFFICER, GRADE GS-9, SINCE MAY 1, 1946. ON DECEMBER 1, 1949, HE WAS PROMOTED TO THE POSITION OF REGISTRATION OFFICER ( SUPERVISOR), GRADE GS-10, $5125 PER ANNUM. ON JULY 1, 1951, MR. A WAS AFFECTED BY REDUCTION IN FORCE AND REASSIGNED TO THE POSITION OF REGISTRATION OFFICER, GRADE GS-9, $5350 PER ANNUM. AS A RESULT OF THE DOWNWARD REALLOCATION OF THE POSITION, IT WAS PROPOSED TO REDUCE MR. A TO GRADE GS-7 AS REGISTRATION OFFICER, EFFECTIVE OCTOBER 28, 1951.

ON OCTOBER 1, 1949, MR. B WAS PROMOTED FROM THE POSITION OF REGISTRATION OFFICER, GRADE GS-9, TO THE POSITION OF REGISTRATION SUPERVISOR, GRADE GS- 10, $5232 PER ANNUM. ON FEBRUARY 19, 1950, HE WAS CHANGED TO THE POSITION OF REGISTRATION OFFICER, GRADE GS-9, $5225 PER ANNUM AND HAS OCCUPIED THAT POSITION CONTINUOUSLY SINCE THAT DATE. AS A RESULT OF THE DOWNWARD REALLOCATION OF THE POSITION, IT WAS PROPOSED TO REDUCE MR. B TO GRADE GS- 7 AS REGISTRATION OFFICER, EFFECTIVE OCTOBER 28, 1951.

MR. E OCCUPIED THE POSITION OF REGISTRATION OFFICER, GRADE GS-9, SINCE MAY 25, 1946, AND WAS REASSIGNED ON MARCH 5, 1950, TO THE POSITION OF REGISTRATION OFFICER ( SUPERVISOR, REGISTRATION UNIT), GRADE GS-9, $4975 PER ANNUM. AT THE PRESENT TIME, MR. E IS RECEIVING A SALARY OF $5225 PER ANNUM IN THE GRADE 9 POSITION OF REGISTRATION OFFICER ( SUPERVISOR, REGISTRATION UNIT). HE IS CURRENTLY AFFECTED BY REDUCTION IN FORCE DUE TO THE REORGANIZATION OF THE REGISTRATION AND RESEARCH SECTION WHICH REQUIRES A REDUCTION IN THE NUMBER OF REGISTRATION OFFICER, GRADE GS-7.

THE REFERRED TO DECISION OF DECEMBER 5, 1951, 31 COMP. GEN. 202, HELD THAT THE GS-9 SALARIES IN THE ABOVE EXAMPLES WERE NOT SAVED BY SECTION 25.103 (E) AS THE EMPLOYEES HAD CEASED TO OCCUPY THE SAME POSITIONS HELD BY THEM ON THE DATE OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 954.

IT IS UNDERSTOOD THAT REGULATION 25.103 (F) IS PRIMARILY INTENDED TO BE APPLICABLE TO SITUATIONS WHERE AN EMPLOYEE IS REASSIGNED TO A POSITION IN A LOWER GRADE, THAT IS, WHERE THERE HAS BEEN A DEMOTION TO ANOTHER POSITION FROM A HIGHER POSITION. ACCORDINGLY, IN THE EXAMPLE OF MR. E, AS HIS REDUCTION FROM GS-9 SUPERVISOR TO GS-7 REGISTRATION OFFICER OCCURRED BECAUSE OF A REDUCTION IN FORCE AND CONSTITUTES A REASSIGNMENT TO ANOTHER POSITION, REGULATION 25.103 (F) APPEARS TO BE FOR APPLICATION. WITH REFERENCE TO THE CASES OF MR. A AND MR. B, IT IS UNDERSTOOD THAT THE DOWNWARD REALLOCATION ON OCTOBER 28, 1951, OF THEIR POSITIONS FROM GS-9 TO GS-7 WAS THE DIRECT RESULT OF A CERTIFICATE OF THE CIVIL SERVICE COMMISSION THAT THE POSITIONS INVOLVED PROPERLY SHOULD BE CLASSIFIED IN GRADE 7. ACCORDINGLY, SINCE THE REDUCTION IN GRADE IS THE RESULT OF A SURVEY BY THE COMMISSION OF THE POSITION OF REGISTRATION OFFICER, IT REASONABLY MAY BE SAID TO FALL WITHIN THE LANGUAGE OF REGULATIONS 25.103 (F). THEREFORE, THIS OFFICE WILL NOT OBJECT TO SAVING THE GS-9 SALARY IN THE THREE EXAMPLES CITED PROVIDED, OF COURSE, THE OTHER REQUIREMENTS OF REGULATION 25.103 (F) ARE SATISFIED AND SUBJECT TO THE LIMITATION ON THE EFFECTIVE DATE OF SAID REGULATION AS DISCUSSED HEREINAFTER.

REFERRING TO THE EFFECTIVE DATE OF ANY ADJUSTMENT IN SALARY WHICH MAY BE OCCASIONED BY THE APPLICATION OF SECTION 25.103 (F) IT IS NOTED THAT THE REGULATION EXPRESSLY STATES THAT IT IS TO BE EFFECTIVE AUGUST 18, 1951, FOR EMPLOYEES ON THE ROLLS OF AN AGENCY ON THE DATE OF PUBLICATION OF SUCH AMENDMENT IN THE FEDERAL REGISTER. SECTION 25.103 (F) WAS FILED WITH THE FEDERAL REGISTER ON DECEMBER 16, 1952, AND PUBLISHED THEREIN ON DECEMBER 17, 1952. THEREFORE, TO PERMIT ANY ADJUSTMENT OF SALARY RATES, IN CASES OTHERWISE FALLING WITHIN THE REGULATION, FOR ANY DATE PRIOR TO THE FILING DATE THEREOF WOULD HAVE THE EFFECT OF RETROACTIVELY INCREASING THE SALARIES OF THE EMPLOYEES INVOLVED. IT HAS BEEN HELD BY THIS OFFICE THAT, WHILE STATUTORY REGULATIONS ISSUED BY ADMINISTRATIVE OFFICES MAY BE AMENDED PROSPECTIVELY TO INCREASE OR DECREASE THE RIGHTS GIVEN THEREBY, THEY MAY NOT BE SO AMENDED RETROACTIVELY, EXCEPT TO CORRECT CERTAIN OBVIOUS ERRORS. SEE B-112849, JANUARY 8, 1953, 32 COMP. GEN. 315, AND CASES CITED THEREIN; ALSO, 31 COMP. GEN. 163.

THERE IS NOT INVOLVED IN THIS CASE ANY CORRECTION OF ANY ERROR IN THE PRIOR REGULATION BUT RATHER AN ATTEMPT TO CORRECT AN INEQUITY CREATED BY THE ISSUANCE OF THE PRIOR REGULATION, NAMELY, SECTION 25.103 (E). IN VIEW THEREOF, THE CONCLUSION IS REQUIRED THAT ANY ADJUSTMENTS OF SALARIES FOR EMPLOYEES COMING WITHIN THE PURVIEW OF REGULATION 25.103 (F) PROPERLY MAY NOT BE MADE EFFECTIVE ON ANY DATE PRIOR TO THE DATE THE REGULATION WAS FILED WITH THE FEDERAL REGISTER FOR PUBLICATION, THAT IS, DECEMBER 16, 1952. 44 U.S.C. 307 AND 27 COMP. GEN. 407.

THE FOURTH EMPLOYEE REFERRED TO IN YOUR LETTER--- WHOSE SITUATION APPEARS IDENTICAL TO THAT OF MR. A--- IS NOT ENTITLED TO SALARY RETENTION UNDER THE REGULATION HERE INVOLVED SINCE HE WAS NOT SERVING IN THE SAME LINE OF WORK ON DECEMBER 16, 1952, THE EFFECTIVE DATE OF THE REGULATION.

A COPY OF THIS DECISION IS BEING FURNISHED THE UNITED STATES CIVIL SERVICE COMMISSION.