B-151438, JUNE 17, 1963, 42 COMP. GEN. 697

B-151438, JUNE 17, 1963, 42 COMP. GEN. 697

COMPENSATION - WAGE BOARD EMPLOYEES - DOWNGRADING - SAVED COMPENSATION WAGE BOARD EMPLOYEES WHO, AFTER A DOWNGRADING ACTION AND A TRANSFER OF THEIR WORK FROM THE PUBLIC HEALTH SERVICE TO THE BUREAU OF INDIAN AFFAIRS, RECEIVED SAVED SALARY BENEFITS DUE TO AN ERRONEOUS INTERPRETATION OF THE ADMINISTRATIVE REGULATIONS CONCERNING SALARY RETENTION MAY NOT BE REGARDED AS IN A DE FACTO STATUS DURING THE PERIOD THEY RECEIVED THE OVERPAYMENTS IN THE ABSENCE OF A SAVED SALARY STATUTE OF GENERAL APPLICATION TO WAGE BOARD EMPLOYEES SIMILAR TO SECTION 507 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1107, APPLICABLE TO CLASSIFIED EMPLOYEES, AND, THEREFORE, WAIVER OF RECOVERY OF THE OVERPAYMENTS MAY NOT BE AUTHORIZED.

TO THE SECRETARY OF THE INTERIOR, JUNE 17, 1963:

ON MAY 1, 1963, THE ASSISTANT SECRETARY OF THE INTERIOR REQUESTED OUR OPINION WHETHER 28 COMP. GEN. 514 COULD BE APPLIED TO THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED SO AS TO MAKE IT UNNECESSARY TO COLLECT THE AMOUNTS OVERPAID TO CERTAIN WAGE BOARD EMPLOYEES AT THE MT. EDGECUMBE SCHOOL, MT. EDGECUMBE, ALASKA, WHICH OVERPAYMENTS RESULTING FROM AN ADMINISTRATIVE ERROR IN THE INTERPRETATION OF ADMINISTRATIVE REGULATIONS CONCERNING SALARY SAVING.

THE PART OF THE LETTER OF MAY 1, 1963, SETTING OUT THE FACTS AND CIRCUMSTANCES INVOLVED READS AS FOLLOWS:

1. ON APRIL 2, 1962, WHEN IT WAS CONTEMPLATED THAT THE FEEDING ACTIVITIES AT THE MT. EDGECUMBE SCHOOL WOULD BE TRANSFERRED FROM THE PUBLIC HEALTH SERVICE TO THE BUREAU OF INDIAN AFFAIRS, THE OFFICE AT JUNEAU, ALASKA, REQUESTED INFORMATION AS TO WHETHER THE RATES OF PAY OF THE EMPLOYEES WHO WERE TO BE TRANSFERRED THEREUNDER COULD BE SAVED. THE ADMINISTRATIVE OFFICE, BY LETTER OF APRIL 12, 1962, FURNISHED ADVICE THAT THE BUREAU OF INDIAN AFFAIRS MANUAL HAD ESTABLISHED A POLICY OF SAVING THE BASE HOURLY RATE OF PAY OF AN INCUMBENT EMPLOYEE UNLESS HIS EXISTING RATE EXCEEDED THE DETERMINED PREVAILING RATE TO AN EXTENT WHICH WOULD ADVERSELY AFFECT THE WAGE STRUCTURE FOR OTHER CRAFTS ON THE PROJECT OR OTHERWISE CREATE LABOR DIFFICULTIES; AND THAT IN VIEW OF THE FACT THAT THE FUNCTION WAS BEING TRANSFERRED TO THE BUREAU, INCLUDING THE EMPLOYEES INVOLVED, IT WAS BELIEVED TO BE EQUITABLE THAT RATES OF PAY BE SAVED AND THAT SUCH SAVED RATES WERE AUTHORIZED BY THE BUREAU POLICY.

2. CONSEQUENTLY, ON MAY 27, 1962, WHEN THE TRANSFER OF THE ACTIVITIES WAS EFFECTED, SEVERAL WAGE BOARD EMPLOYEES WERE TRANSFERRED AT THEIR SAME RATE OF PAY AND IN THE SAME POSITIONS AS THEY THEN HELD WITH THE PUBLIC HEALTH SERVICE. HOWEVER, AS THE CULINARY DEPARTMENT WAS BEING REORGANIZED, THESE EMPLOYEES WERE GIVEN RIF NOTICES ON MAY 28, 1962. ON JULY 1, 1962, THROUGH RIF PROCEDURES, EIGHT OF THESE EMPLOYEES' POSITIONS WERE CHANGED TO LOWER GRADES (DIFFERENT JOB CLASSIFICATIONS HAVING A LOWER RATE OF PAY) BUT RETAINED THE BASE HOURLY RATES WHICH HAD BEEN SAVED TO THEM UPON TRANSFER FROM THE PUBLIC HEALTH SERVICE.

3. BY JUNEAU OFFICE LETTER OF DECEMBER 6, 1962, IT WAS BROUGHT TO THE ATTENTION OF THE ADMINISTRATIVE OFFICE THAT THE EMPLOYEES WHO WERE PLACED IN LOWER PAYING JOB CLASSIFICATIONS DUE TO RIF NOTICES WERE BEING PAID AT SAVED RATES. BY TELETYPE OF JANUARY 11, 1963, AND LETTER OF JANUARY 29, 1963, THE JUNEAU OFFICE WAS ADVISED THAT NO AUTHORITY EXISTED FOR THE SAVING OF THE EMPLOYEES' RATES UNDER SUCH CIRCUMSTANCES AND THAT THERE WAS A POSSIBILITY THAT COLLECTION OF THE OVERPAYMENTS MIGHT HAVE TO BE MADE. BY LETTER OF FEBRUARY 14, 1963, THE JUNEAU OFFICE SUBMITTED DATA REGARDING THE OVERPAYMENTS AND STATED THAT PERSONNEL ACTIONS WERE TAKEN, EFFECTIVE JANUARY 6, 1963, ADJUSTING THE RATES OF THE EMPLOYEES TO CONFORM WITH SCHEDULED RATES OF PAY FOR THE POSITIONS OCCUPIED. AT THE SAME TIME, THAT OFFICE ADVISED THAT THE ADMINISTRATIVE ERROR WAS NOT DUE TO CARELESSNESS BUT TO A MISINTERPRETATION OF POLICY, IN THAT THE POLICY WAS NOT INTERPRETED AS APPLYING ONLY TO EMPLOYEES WHO REMAINED IN THE SAME JOBS OCCUPIED AT TIME OF TRANSFER FROM PUBLIC HEALTH SERVICE.

THE CASES CONSIDERED IN 28 COMP. GEN. 514, WERE PRIOR TO THE ENACTMENT OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1071, ET SEQ., AND FACTUALLY WERE ANALOGOUS TO THOSE LATER COVERED BY SECTION 502 (A) OF THAT ACT, 5 U.S.C. 1171 (A), PERTAINING TO POSITION CLASSIFICATION. THE ADMINISTRATIVE DETERMINATIONS CONCERNING THE QUALIFICATIONS OF THE EMPLOYEES, CONSIDERED IN 28 COMP. GEN. 514, NECESSARILY WERE THE BASIS FOR PAYMENT OF COMPENSATION UNTIL CHANGED BY CONTROLLING ACTION OF THE CIVIL SERVICE COMMISSION.

THE CASES REFERRED TO IN YOUR LETTER MUST BE DIFFERENTIATED IN THAT THEY PERTAIN SOLELY TO THE QUESTION OF WHETHER RATES OF COMPENSATION MAY LAWFULLY BE SAVED TO WAGE BOARD EMPLOYEES WHEN THEY ARE REDUCED TO LOWER GRADE WAGE BOARD POSITIONS.

WE ARE AWARE OF NO STATUTE OF GENERAL APPLICATION TO WAGE BOARD EMPLOYEES SIMILAR TO SECTION 507 OF THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1107, AS AMENDED BY SECTION 605 OF THE CLASSIFICATION ACT AMENDMENTS OF 1962, PUBLIC LAW 87-793, APPROVED OCTOBER 11, 1962, 76 STAT. 848, WHICH PROVIDES SALARY RETENTION TO CLASSIFICATION ACT EMPLOYEES REDUCED IN GRADE. IT IS TRUE THAT SEVERAL BILLS HAVE BEEN INTRODUCED TO PROVIDE COMPENSATION RETENTION TO WAGE BOARD EMPLOYEES REDUCED TO LOWER GRADE POSITIONS--- SEE H.R. 3293, 87TH CONGRESS; H.R. 6300, H.R. 6313 AND H.R. 821, 86TH CONGRESS, AND EARLIER VERSIONS--- BUT NONE HAVE BEEN ENACTED INTO LAW.

WE ARE NOT EMPOWERED UNDER EXISTING LAW TO WAIVE RECOVERY OF OVERPAYMENTS, AND SINCE THE CONGRESS HAS FAILED TO PROVIDE WAGE RETENTION BENEFITS TO WAGE BOARD EMPLOYEES, WE CANNOT AUTHORIZE THE WAIVER OF RECOVERY IN THESE CASES.

AS POINTED OUT ABOVE, THE CASES HERE ARE NOT ANALOGOUS IN LAW TO THOSE CONSIDERED IN 28 COMP. GEN. 514 AND, THEREFORE, DO NOT FALL WITHIN THE PRINCIPLE APPLIED IN THAT DECISION.