B-107909, FEBRUARY 29, 1952, 31 COMP. GEN. 436

B-107909, FEBRUARY 29, 1952, 31 COMP. GEN. 436

COMPENSATION - LONGEVITY-STEP INCREASES - POSITION REALLOCATIONS - SAVED SALARY RATES AN EMPLOYEE WHOSE POSITION WAS REALLOCATED DOWNWARD BUT WHOSE SALARY RATE SAVED PURSUANT TO PARAGRAPH 25.103 (E) OF CIVIL SERVICE REGULATIONS IS ABOVE THE MAXIMUM SCHEDULED RATE FOR THE LOWER GRADE, IS ENTITLED TO A LONGEVITY STEP INCREASE UPON COMPLETION OF THREE YEARS CONTINUOUS SATISFACTORY SERVICE AT THE SAVED RATE, AND COMPLETION OF THE AGGREGATE PERIOD OF TEN YEARS OF SERVICE AS REQUIRED UNDER THE CLASSIFICATION ACT OF 1949. THE RATE OF COMPENSATION, ABOVE THE MAXIMUM SCHEDULED RATE OF A GRADE, SAVED TO AN EMPLOYEE PURSUANT TO PARAGRAPH 25.103 (E) OF CIVIL SERVICE REGULATIONS UPON THE DOWNWARD REALLOCATION OF A POSITION, MAY BE DEEMED A RATE ABOVE THE MAXIMUM RATE OF THE GRADE PAYABLE IN ACCORDANCE WITH THE TERM "PROVISION OF LAW" AS USED IN PARAGRAPH 25.52 (D) OF THE SAID REGULATIONS WHICH PRESCRIBE LONGEVITY PERIOD REQUIREMENTS FOR SERVICE AT SUCH A RATE.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS AFFAIRS, FEBRUARY 29, 1952:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 4, 1952, REQUESTING DECISION WITH RESPECT TO THE RIGHT OF A CERTAIN EMPLOYEE TO LONGEVITY INCREASE THREE YEARS AFTER THE EFFECTIVE DATE OF THE REALLOCATION OF THE EMPLOYEE'S POSITION. IT IS STATED THAT THE POSITION HELD BY THE EMPLOYEE WAS REALLOCATED FROM GRADE GS-6, WHEREIN SHE WAS RECEIVING $4,170 PER ANNUM (THE FOURTH STEP), TO GS-5, WHICH RATE OF COMPENSATION WAS SAVED TO HER PURSUANT TO CIVIL SERVICE REGULATION, PARAGRAPH 25.103 (E), Z1 OF THE FEDERAL PERSONNEL MANUAL--- WHICH REGULATION BECAME EFFECTIVE AUGUST 18, 1951, 16 F.R. 8229--- NOTWITHSTANDING THAT THE SAVED SALARY WAS IN EXCESS OF THE MAXIMUM SCHEDULED SALARY RATE FOR GS 5 WHICH MAXIMUM RATE IF $4,160 PER ANNUM. THIS OFFICE HAS BEEN INFORMALLY ADVISED THAT THE REALLOCATION WAS BY ADMINISTRATIVE ACTION OF NOVEMBER 19, 1951, MADE EFFECTIVE DECEMBER 23, 1951.

YOUR DOUBT IN THE MATTER APPEARS TO ARISE FROM THE PROVISION IN THE CIVIL SERVICE REGULATION, PARAGRAPH 25.52 (D) Z1 316.01 OF THE FEDERAL PERSONNEL MANUAL WHICH READS IN PERTINENT PART AS FOLLOWS:

LONGEVITY PERIOD IS THREE YEARS OF THE AGREGATE PERIOD, OF CONTINUOUS SERVICE * * * OR (3) AT A RATE IN EXCESS OF SUCH MAXIMUM SCHEDULED RATE IN ACCORDANCE WITH SECTION 604 (B) (11) OR SECTION 1105 (B) OF THE CLASSIFICATION ACT OF 1949, OR ANY OTHER PROVISION OF LAW. ( ITALICS SUPPLIED.) AS THE SAVED SALARY RESULTED FROM OPERATION OF THE CIVIL SERVICE REGULATION PARAGRAPH 25.103 (E), QUOTED BELOW, THE QUESTION ARISES WHETHER SUCH SAVED SALARY WAS BY "ANY OTHER PROVISION OF LAW" AS THOSE WORDS ARE USED IN THE ABOVE-QUOTED CIVIL SERVICE REGULATION 25.52 (D). IS FOR NOTING HERE THAT THE WORDS "ANY OTHER PROVISION OF LAW," APPEARING IN THE REGULATION, SUPRA, ALSO APPEAR IN SECTION 703C OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 969, RELATING TO LONGEVITY STEP INCREASES.

THE CIVIL SERVICE REGULATION, PARAGRAPH 25.103 (E), WAS ISSUED PURSUANT TO THE AUTHORITY OF SECTION 802 (A) (7) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 969; THUS IT HAS THE FORCE AND EFFECT OF A STATUTE. 31 COMP. GEN. 6; 22 ID. 895. SAID PARAGRAPH 25.103 (E), PUBLISHED AUGUST 18, 1951, VOL. 16 F.R. PAGE 8229, PROVIDES AS FOLLOWS:

EFFECTIVE UPON PUBLICATION IN THE FEDERAL REGISTER, A NEW PARAGRAPH (E) IS ADDED TO SECTION 25.103 AS FOLLOWS:

SECTION 25.103 GENERAL PROVISIONS. * * *

(E) EMPLOYEES WHO ON THE EFFECTIVE DATE OF TITLE VI OF THE CLASSIFICATION ACT OF 1949 OCCUPIED POSITIONS (1) WHICH IMMEDIATELY PRIOR TO SUCH DATE WERE SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED, (2) WHICH WERE INITIALLY ALLOCATED TO ANY OF THE GRADES OF THE CLASSIFICATION ACT OF 1949 IN THE MANNER PRESCRIBED THEREIN, AND (3) WHICH THEREAFTER ARE REDUCED BELOW SUCH GRADE, MAY CONTINUE TO RECEIVE THE SAME RATES OF BASIC COMPENSATION WHICH THEY RECEIVED ON THE EFFECTIVE DATE OF THE ACTION TAKEN TO REDUCE THE GRADE OF SUCH POSITION, SO LONG AS THEY REMAIN IN THE SAME POSITIONS WHICH THEY OCCUPIED ON THE EFFECTIVE DATE OF TITLE VI.

ACCORDINGLY, THE SAVED SALARY RATE IN THIS CASE PROPERLY MAY BE DEEMED A RATE ABOVE THE MAXIMUM SCHEDULED RATE OF THE GRADE PAYABLE IN ACCORDANCE WITH A "PROVISION OF LAW; " HENCE, UPON COMPLETION OF THREE YEARS CONTINUOUS SATISFACTORY SERVICE AT THAT RATE, AND UPON THE COMPLETION OF TEN YEARS OF SERVICE IN THE POSITION THEN OCCUPIED OR IN POSITIONS OF EQUIVALENT OR HIGHER CLASS OR GRADE--- SEE SECTION 703 (B) (6) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 969--- THIS EMPLOYEE WOULD BE ENTITLED TO BE ADVANCED TO THE FIRST LONGEVITY STEP IN GS-5, IF AT THAT TIME THERE HAS BEEN NO SUBSTANTIAL CHANGE IN THE APPLICABLE LAW AND CIVIL SERVICE REGULATIONS. IN THIS CONNECTION IT IS PERTINENT TO CALL TO ATTENTION THE EXISTING REGULATION, SEC. 25.54 OF THE FEDERAL PERSONNEL MANUAL, PROVIDING AS FOLLOWS:

SEC. 25.54. MISCELLANEOUS PROVISIONS. (A) ANY OFFICER OR EMPLOYEE RECEIVING A RATE OF BASIC COMPENSATION IN EXCESS OF THE MAXIMUM SCHEDULED RATE FOR HIS GRADE IN ACCORDANCE WITH THE SAVING CLAUSE IN SECTION 604 (B) (11), OR SECTION 1105 (B), OF THE CLASSIFICATION ACT OF 1949, OR ANY OTHER PROVISION OF LAW, SHALL BE GRANTED LONGEVITY STEP-INCREASES ONLY WHEN THEY WOULD HAVE BEEN GRANTED UNDER THESE REGULATIONS AND SECTION 703 (C) OF THE CLASSIFICATION ACT OF 1949, IF HIS SALARY HAD BEEN AT THE MAXIMUM SCHEDULED RATE OF THE GRADE AT THE TIME SUCH SAVING CLAUSE FIRST APPLIED TO HIS RATE OF BASIC COMPENSATION.