B-121852, MARCH 7, 1955, 34 COMP. GEN. 425

B-121852, MARCH 7, 1955, 34 COMP. GEN. 425

COMPENSATION - RATES - POSITION REALLOCATION AN EMPLOYEE WHOSE POSITION HAD BEEN DOWNGRADED WITHOUT MATERIAL CHANGE IN DUTIES AFTER IT HAD BEEN BROUGHT UNDER THE CLASSIFICATION ACT OF 1949 IS ENTITLED UNDER SECTION 25.104 (C) (5) OF THE FEDERAL PERSONNEL MANUAL PROMULGATED PURSUANT TO SECTION 1105 (B) OF SAID ACT TO HAVE HER PAY PRESERVED TO THE SAME EXTENT AS IF HER POSITION HAD BEEN CORRECTLY CLASSIFIED UPON CONVERSION, AND IS ENTITLED TO RECEIVE THE INCREASE AUTHORIZED BY SECTION 1 (B) (2) (A) OF THE ACT OF OCTOBER 24, 1951.

ASSISTANT COMPTROLLER GENERAL WEITZEL TO LESTER H. THOMPSON, FEDERAL HOUSING ADMINISTRATION, MARCH 7, 1955:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 20, 1954, YOUR REFERENCE AC- S, TRANSMITTING A VOUCHER IN FAVOR OF MRS. FRANCES C. LYON, FOR $15, REPRESENTING THE DIFFERENCE BETWEEN THE SALARY RATES OF $3,655 PER ANNUM AND $3,785 PER ANNUM FOR THE PERIOD FROM AUGUST 29 THROUGH OCTOBER 9, 1954. YOU ASK WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, THE VOUCHER MAY BE CERTIFIED FOR PAYMENT.

ON APRIL 30, 1950, THE EMPLOYEE'S POSITION, WHICH SHE HAD HELD SINCE NOVEMBER 3, 1946, WAS PLACED UNDER THE CLASSIFICATION ACT OF 1949, 63 STAT. 954. THE GRADE ADMINISTRATIVELY ALLOCATED TO THE POSITION WAS GS 5, AND THE INITIAL SALARY RATE WAS FIXED AT $3,475 PER ANNUM, THE FOURTH STEP OF THE GRADE. THAT SALARY RATE WAS THE ONE MRS. LYON HAD ATTAINED IN HER POSITION PRIOR TO ITS BECOMING SUBJECT TO THE CLASSIFICATION ACT. THE $3,475 RATE WAS SUBSEQUENTLY INCREASED TO $3,785 BY THE ACT OF OCTOBER 24, 1951, PUBLIC LAW 201, 63 STAT. 612. EFFECTIVE AUGUST 29, 1954, AT WHICH TIME SHE THEN HAD ATTAINED THE SALARY RATE OF $4,160 PER ANNUM THROUGH WITHIN-GRADE SALARY ADVANCEMENTS, HER POSITION WAS CHANGED TO GRADE GS-4 AS A RESULT OF POST AUDIT ACTION BY THE CIVIL SERVICE COMMISSION. BASED UPON THAT ACTION THE SALARY RATE WAS FIXED IN THE PERSONNEL ACTION AT $3,785 PER ANNUM, BUT BECAUSE OF THE DOUBT ABOUT THE CORRECTNESS OF THE $3,785 RATE WHICH THE PERSONNEL ACTION HAD SPECIFIED, THE EMPLOYEE WAS PAID ONLY AT THE RATE OF $3,655 PER ANNUM, THE TOP SCHEDULED RATE OF GRADE GS-4. THERE IS NOTHING IN THE RECORD TO DISCLOSE THAT THE DOWNGRADING OF THE POSITION RESULTED FROM ANY MATERIAL CHANGE IN DUTIES AND RESPONSIBILITIES BUT AN INFORMAL INQUIRY REGARDING THAT POINT ELICITS THE INFORMATION THAT NO SUCH CHANGE IN DUTIES AND RESPONSIBILITIES WAS INVOLVED.

THE SALARY-SAVING PROVISIONS OF SECTION 604 (B) (1) OF THE CLASSIFICATION ACT OF 1949, 63 STAT. 966, AND OF SECTION 25.103 (E) OF THE FEDERAL EMPLOYEES PAY REGULATIONS, APPLY ONLY TO EMPLOYEES WHOSE POSITIONS WERE PREVIOUSLY SUBJECT TO THE CLASSIFICATION ACT OF 1923, AS AMENDED. AS THE POSITION HERE INVOLVED WAS NOT UNDER THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, PRIOR TO THE EFFECTIVE DATE OF TITLE VI OF THE CLASSIFICATION ACT OF 1949, THE SAVING PROVISION OF SECTION 25.103 (E) OF THE FEDERAL PERSONNEL MANUAL, ZI-318, REFERRED TO BY YOU, HAS NO APPLICATION. HOWEVER, THERE ARE FOR CONSIDERATION HERE SECTIONS 25.103 (D) AND 25.104 (C) (5) OF THE FEDERAL PERSONNEL MANUAL, PAGES ZI-318 AND 319. THOSE SECTIONS PROVIDE, RESPECTIVELY, AS FOLLOWS:

(D) WHERE AN EMPLOYEE OCCUPIES A POSITION NOT SUBJECT TO THE CLASSIFICATION ACT, AND THE EMPLOYEE TOGETHER WITH HIS POSITION IS INITIALLY BROUGHT UNDER THE CLASSIFICATION ACT OF 1949 PURSUANT TO THE REORGANIZATION ACT OF 1949 OR OTHER LEGISLATION, AN EXECUTIVE ORDER OF THE PRESIDENT, OR DECISION OF THE CIVIL SERVICE COMMISSION UNDER SECTION 203 OF THE CLASSIFICATION ACT OF 1949, THE PROVISIONS OF SECTION 25.104 (C) (1) TO (5), INCLUSIVE, SHALL APPLY IN DETERMINING THE EMPLOYEE'S INITIAL RATE OF BASIC COMPENSATION. THIS PROVISION SHALL APPLY ONLY SO LONG AS THE EMPLOYEE CONTINUES TO OCCUPY THE SAME POSITION.

(5) AFTER SALARY RATES HAVE BEEN INITIALLY ESTABLISHED, AN EMPLOYEE MAY SUBSEQUENTLY RECEIVE AN INCREASE IN COMPENSATION BY REASON OF THE OPERATION OF TITLES V AND VII, SECTION 802 (B) OF TITLE VIII, OR TITLE X. AN EMPLOYEE WHOSE SALARY WAS INITIALLY ESTABLISHED UNDER THE FOREGOING PROVISIONS IN A POSITION WHICH IS LATER CHANGED TO A LOWER GRADE WITHOUT MATERIAL CHANGE OF DUTIES AND RESPONSIBILITIES, SHALL BE PAID AT THE RATE HE RECEIVED IMMEDIATELY PRIOR TO THE DATE HIS POSITION BECAME SUBJECT TO THE ACT, OR AT A HIGHER RATE AUTHORIZED BY THE PROVISIONS OF SECTION 25.103.

THE SECOND SENTENCE OF SECTION 25.104 (C) (5) JUST QUOTED PROTECTS AN EMPLOYEE AGAINST HIS BEING DEPRIVED OF THE SALARY-SAVING BENEFITS OF SECTION 1105 (B) OF THE CLASSIFICATION ACT, 63 STAT. 972, BY AN ERRONEOUS CLASSIFICATION OF HIS POSITION IN A GRADE HIGHER THAN THAT WARRANTED BY ITS DUTIES. IT IS BASED UPON THE PRINCIPLE THAT IF AN EMPLOYEE'S POSITION IS DOWNGRADED, WITHOUT MATERIAL CHANGE OF DUTIES SINCE IT WAS BROUGHT UNDER THE CLASSIFICATION ACT, THE EMPLOYEE IS ENTITLED TO HAVE HIS PAY PRESERVED TO THE SAME EXTENT AS IF HIS POSITION HAD BEEN CLASSIFIED CORRECTLY.

UNDER THE PROVISIONS OF SECTION 25.104 (C) (5) THE RATE TO WHICH MRS. LYON NOW IS ENTITLED IS THE RATE THAT WOULD HAVE BEEN HER SAVED RATE IF HER POSITION HAD BEEN PLACED IN GRADE GS-4 AT THE TIME IT INITIALLY WAS BROUGHT UNDER THE CLASSIFICATION ACT IN APRIL 1950. INITIALLY, HER RATE OF $3,475 WOULD HAVE BEEN PRESERVED BY THE PROVISIONS OF SECTION 1105 (B) OF THE CLASSIFICATION ACT, THE SECTION UNDER WHICH SECTION 25.104 (C) (5) WAS PROMULGATED. SECTION 1 (B) (2) OF PUBLIC LAW 201, APPROVED OCTOBER 24, 1951, 65 STAT. 612, SPECIFICALLY INCREASED PAY RATES OF EMPLOYEES WHO WERE IN POSITIONS SUBJECT TO THE CLASSIFICATION ACT BUT WHO WERE PAID AT SALARY RATES OTHER THAN THE SCHEDULED AND LONGEVITY RATES PROVIDED BY THE ACT. THOSE PROVISIONS INCREASED, AMONG OTHERS, RATES BEING PAID EMPLOYEES UNDER THE SALARY-SAVING PROVISIONS OF SECTION 1105 (B) OF THE CLASSIFICATION ACT. PARAGRAPH (A) OF THAT SECTION SPECIFICALLY PROVIDES AS FOLLOWS:

(A) IF HIS RATE IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF THIS ACT WAS LESS THAN THE MAXIMUM LONGEVITY RATE OF THE GRADE, HE SHALL BE PAID AT THE SCHEDULED OR LONGEVITY RATE WHICH HE WOULD RECEIVE UNDER PARAGRAPH (1) HAD HE BEEN RECEIVING BASIC COMPENSATION IMMEDIATELY PRIOR TO SUCH EFFECTIVE DATE AT THE SCHEDULED OR LONGEVITY RATE NEXT HIGHER THAN HIS RATE OF BASIC COMPENSATION IMMEDIATELY PRIOR TO SUCH EFFECTIVE DATE.

PARAGRAPH (A) JUST QUOTED WOULD HAVE CHANGED THE RATE OF $3,475 TO $3,815 BY FIRST CONVERTING IT TO THE PREVIOUS LONGEVITY RATE OF GRADE GS-4 NEXT HIGHER THAN $3,475, NAMELY, $3,515, THE SECOND LONGEVITY RATE OF THE GRADE. THEN THAT RATE WOULD BE INCREASED TO $3,815, THE SECOND LONGEVITY RATE OF GRADE GS-4 UNDER THE NEW CLASSIFICATION SCHEDULES PROVIDED BY PUBLIC LAW 201. ACCORDINGLY, MRS. LYON SHOULD BE PAID AT THE RATE OF $3,815 PER ANNUM FROM AUGUST 29, 1954, THE DATE HER POSITION WAS REDUCED TO GRADE GS-4.

THE PAYROLL VOUCHER, WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT BASED UPON THE STATED SALARY RATE OF $3,785 PER ANNUM, BUT IT MAY BE PROCESSED FOR PAYMENT UPON THE SALARY RATE OF $3,815 PER ANNUM IN ACCORDANCE WITH THE CONCLUSION HEREINABOVE REACHED.