B-118425, FEBRUARY 16, 1954, 33 COMP. GEN. 362

B-118425, FEBRUARY 16, 1954, 33 COMP. GEN. 362

COMPENSATION - LONGEVITY INCREASES - WAITING PERIOD REQUIREMENTS - CHANGES IN GRADE OR RATE OF BASIC COMPENSATION THE THREE YEARS OF SERVICE REQUIRED BY SECTION 703 OF THE CLASSIFICATION ACT OF 1949 TO ENTITLE AN EMPLOYEE TO A LONGEVITY STEP INCREASE MUST BE CONTINUOUS SERVICE AT MAXIMUM SCHEDULE RATE OF GRADE OR AT A RATE IN EXCESS THEREOF WITHOUT CHANGE OF GRADE OR RATE OF BASIC COMPENSATION, AND THEREFORE WHERE, BECAUSE OF A CLASSIFICATION AUDIT, OR WHITTEN AMENDMENT SURVEY, A POSITION IS DECREASED IN GRADE, CREDIT ON A LONGEVITY PERIOD IN THE HIGHER GRADE MAY NOT BE CARRIED BY THE EMPLOYEE, UPON ASSIGNMENT TO THE LOWER GRADE, TOWARD A LONGEVITY INCREASE IN THAT GRADE. AN EMPLOYEE WHOSE POSITION IS REALLOCATED TO A HIGHER GRADE WITHOUT CHANGE IN DUTIES MAY INCLUDE, IN DETERMINING CREDITABLE SERVICE IN THE HIGHER GRADE TOWARD THE TEN YEARS OF SERVICE REQUIRED BY SECTION 703 OF THE CLASSIFICATION ACT OF 1949 FOR ENTITLEMENT TO A LONGEVITY STEP INCREASE, THE SERVICE IN THE LOWER GRADE, EVEN THOUGH SUBSEQUENTLY ASSIGNED TO A DIFFERENT POSITION IN THE HIGHER GRADE. AN EMPLOYEE WHOSE POSITION IS REALLOCATED TO A HIGHER GRADE WITHOUT CHANGE IN DUTIES MAY INCLUDE, IN DETERMINING CREDITABLE SERVICE IN THE HIGHER GRADE TOWARD THE TEN YEARS OF SERVICE REQUIRED BY SECTION 703 OF THE CLASSIFICATION ACT OF 1949 FOR ENTITLEMENT TO A LONGEVITY STEP INCREASE, THE SERVICE IN THE LOWER GRADE, EVEN THOUGH SUBSEQUENTLY ASSIGNED TO A DIFFERENT POSITION IN THE HIGHER GRADE. AN EMPLOYEE WHO IS ASSIGNED TO A HIGHER GRADE PRIOR TO THE TIME POSITION PREVIOUSLY OCCUPIED BY HIM IN LOWER GRADE IS REALLOCATED TO SUCH HIGHER GRADE IS ENTITLED TO COUNT THE TIME SPENT IN THE LOWER GRADE TOWARD THE TEN YEARS OF SERVICE REQUIRED BY SECTION 703 OF THE CLASSIFICATION ACT OF 1949 FOR ENTITLEMENT TO A LONGEVITY STEP INCREASE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE TREASURY, FEBRUARY 16, 1954:

REFERENCE IS MADE TO THE ACTING SECRETARY'S LETTER OF JANUARY 18, 1954, REQUESTING DECISION WITH RESPECT TO THE ELIGIBILITY OF CERTAIN EMPLOYEES IN THE BUREAU OF PUBLIC DEBT FOR LONGEVITY INCREASES.

IN ONE SITUATION IT IS STATED THAT AN EMPLOYEE HAD BEEN ASSIGNED TO A POSITION IN GS-8 FOR 10 YEARS, AND HAD BEEN AT THE TOP OF THAT GRADE FOR 2 YEARS AND 9 MONTHS WHEN THE POSITION WAS RECLASSIFIED IN GS-4; AND THAT AS AN ALTERNATIVE TO AN ASSIGNMENT IN GS-4 THE EMPLOYEE WAS ASSIGNED TO A VACANCY IN GS-7 AT THE TOP SALARY AT THAT GRADE. WITH RESPECT TO THAT SITUATION THERE ARE PRESENTED TWO QUESTIONS, AS FOLLOWS:

1. WHERE, BECAUSE OF A CLASSIFICATION AUDIT, OR WHITTEN AMENDMENT SURVEY, A POSITION IS DECREASED IN GRADE, MAY CREDIT ON A LONGEVITY PERIOD IN THE HIGHER GRADE BE CARRIED BY THE EMPLOYEE UPON ASSIGNMENT TO THE LOWER GRADE TOWARD A LONGEVITY INCREASE IN THAT GRADE?

2. IF THE ANSWER TO QUESTION 1 IS IN THE AFFIRMATIVE, WOULD IT ALSO BE CREDITABLE WHEN THE EMPLOYEE IS REDUCED IN GRADE BECAUSE OF REDUCTION IN FORCE, ADMINISTRATIVE DOWNGRADING, OR OTHER REASON THROUGH NO FAULT OF THE EMPLOYEE?

SECTION 703 OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 968, PROVIDES IN PART AS FOLLOWS:

SEC. 703 (A) SUBJECT TO SUBSECTION (B), AND AS A REWARD FOR LONG AND FAITHFUL SERVICE, EACH DEPARTMENT SHALL GRANT AN ADDITIONAL STEP INCREASE (TO BE KNOWN AS A LONGEVITY STEP-INCREASE) BEYOND THE MAXIMUM SCHEDULED RATE OF THE GRADE IN WHICH HIS POSITION IS PLACED, TO EACH OFFICER OR EMPLOYEE FOR EACH THREE YEARS OF CONTINUOUS SERVICE COMPLETED BY HIM AT SUCH MAXIMUM RATE OR AT A RATE IN EXCESS THEREOF AUTHORIZED BY THIS SECTION WITHOUT CHANGE OR RATE OF BASIC COMPENSATION EXCEPT SUCH CHANGE AS MAY BE PRESCRIBED BY ANY PROVISION OF LAW OF GENERAL APPLICATION.

(6) THE OFFICER OR EMPLOYEE SHALL HAVE HAD, IN THE AGGREGATE, NOT LESS THAN TEN YEARS OF SERVICE IN THE POSITION WHICH HE THEN OCCUPIES, OR IN POSITIONS OF EQUIVALENT OR HIGHER CLASS OR GRADE.

THE TWO REQUIREMENTS OF THE STATUTE ABOVE QUOTED ARE CLEAR AND UNAMBIGUOUS AND MAY NOT BE ENLARGED BY CONSTRUCTION. SO FAR AS THE THREE- YEAR REQUIREMENT IS CONCERNED--- THE ONE PRINCIPALLY IN POINT HERE--- THE STATUTE REQUIRES THAT IT BE "OF CONTINUOUS SERVICE * * * AT SUCH MAXIMUM RATE * * * WITHOUT CHANGE OF GRADE OR RATE OF BASIC COMPENSATION * * * .' HERE THERE WERE BOTH A ,CHANGE OF GRADE" AND A CHANGE OF "RATE OF BASIC COMPENSATION.' CLEARLY, THEREFORE, THE RIGHT TO THE FIRST LONGEVITY RATE IN THE REDUCED GRADE WILL NOT MATERIALIZE UNTIL HE SHALL HAVE SERVED THREE YEARS CONTINUOUSLY AT THE MAXIMUM STEP OF THAT LOWER GRADE--- ASSUMING ALL OTHER REQUIREMENTS ARE MET AT THAT TIME. UPON THE BASIS OF THE EXAMPLES STATED IN THE ACTING SECRETARY'S LETTER, THIS OFFICE REALIZES THE SEEMING INEQUITY OF NOT PERMITTING ANY CREDIT ON A LONGEVITY PERIOD IN THE HIGHER GRADE TO BE CARRIED TO THE LOWER GRADE TOWARD A LONGEVITY INCREASE THEREIN, BUT IN LIGHT OF THE CLEAR TERMS OF THE STATUTE THIS OFFICE HAS NO ALTERNATIVE BUT TO DENY SUCH CREDIT. ACCORDINGLY, QUESTION 1 MUST BE AND IS ANSWERED IN THE NEGATIVE, THUS RENDERING UNNECESSARY ANY ANSWER TO QUESTION 2. IT MAY BE STATED FOR YOUR INFORMATION THAT, IN RECOGNITION OF THIS INEQUITY, THE MATTER HAS BEEN CALLED TO THE ATTENTION OF THE APPROPRIATE COMMITTEE OF THE CONGRESS IN A RECENT REPORT BY THIS OFFICE UPON S. 2665.

WITH RESPECT TO ANOTHER SITUATION THERE ARE PRESENTED FACTS AND QUESTIONS, AS FOLLOWS:

SECTION 25.52 (C) OF THE CIVIL SERVICE COMMISSION REGULATIONS DEFINES AGGREGATE PERIOD AS A " TOTAL OF TEN YEARS IN THE PRESENT POSITION, OR IN THE PRESENT GRADE AND EQUIVALENT OR HIGHER GRADES * * * .' THE CIVIL SERVICE COMMISSION HAS INFORMALLY INTERPRETED "PRESENT POSITION" TO MEAN BOTH GRADES OF A POSITION WHICH HAS BEEN RECLASSIFIED UPWARD WITHOUT A CHANGE IN THE DUTIES OF THE POSITION. IN THE BUREAU OF THE PUBLIC DEBT A POSITION CLASSIFIED IN GS-1 WAS REGARDED IN GS-2 WITHOUT CHANGE IN THE DUTIES OF THE POSITION. IN DETERMINING SERVICE CREDITABLE TOWARD THE AGGREGATE PERIOD FOR A LONGEVITY STEP INCREASE MAY SERVICE IN THIS POSITION IN GS-1 AND GS-2 BE CREDITED FOR A LONGEVITY INCREASE IN GS-2 FOR EMPLOYEES ASSIGNED TO THE POSITION AT THE TIME OF REGRADING? IF THE ANSWER IS IN THE AFFIRMATIVE, IF THE EMPLOYEE IS SUBSEQUENTLY REASSIGNED TO ANOTHER POSITION IN GS-2 BEFORE HE BECOMES ELIGIBLE FOR A LONGEVITY STEP INCREASE WOULD SERVICE ON THE POSITION IN BOTH GS-1 AND GS-2 BE CREDITABLE? IF AN EMPLOYEE ASSIGNED TO THE GS-1 POSITION WERE REASSIGNED TO ANOTHER POSITION IN GS-2 PRIOR TO THE TIME THE GS-1 POSITION WAS REGRADED WITHOUT CHANGE IN THE DUTIES TO GS-2 WOULD HE BE ENTITLED TO CREDIT FOR SERVICE IN THE GS-1 POSITION TOWARD A LONGEVITY STEP INCREASE IN GS-2?

SECTION 25.52 PAGE Z1-316, OF THE FEDERAL PERSONNEL MANUAL, CONTAINS A TABLE OF EQUIVALENT OR HIGHER GRADE POSITIONS UNDER THE CLASSIFICATION ACT OF 1949, BUT CONTAINS NO SPECIFIC DEFINITION OF WHAT CONSTITUTES A "POSITION" WITHIN THE MEANING OF THE ABOVE-QUOTED SECTION 703 (B) (6), 63 STAT. 968. YOU STATE THAT THE CIVIL SERVICE COMMISSION HAS INFORMALLY INTERPRETED THAT TERM TO COVER SERVICE IN BOTH GRADES WHEN A POSITION HAS BEEN REALLOCATED UPWARD WITHOUT CHANGE IN DUTIES, AND THIS OFFICE CONCURS IN THAT INTERPRETATION. ACCORDINGLY, THE EMPLOYEE IN GS-1, COVERED BY THE FIRST QUESTION IN THE LATTER GROUP, WHOSE POSITION WAS REALLOCATED TO GS-2 WITHOUT CHANGE IN DUTIES, MAY COUNT THE SERVICE IN BOTH GRADES TOWARD THE 10 YEARS OF SERVICE REQUIRED BY THE ABOVE-QUOTED STATUTE--- AS CONSTITUTING "10 YEARS OF SERVICE * * * IN POSITIONS OF EQUIVALENT * * * CLASS OR GRADE.' LIKEWISE, IN THE SECOND QUESTION OF THE GROUP, THE EMPLOYEE IN GS-2 ASSIGNED TO ANOTHER POSITION IN GS-2 WOULD BE ENTITLED TO COUNT SERVICE ON THE POSITION IN BOTH GS-1 AND GS-2 TOWARD THE 10 YEAR PERIOD. SIMILARLY, IN THE THIRD QUESTION, THE EMPLOYEE IN GS-1 WHO WAS ASSIGNED TO A DIFFERENT POSITION IN GS-2 WOULD BE ENTITLED TO COUNT THE TIME IN GS-1 TOWARD THE 10 YEAR PERIOD.