B-152641, NOV. 15, 1963

B-152641, NOV. 15, 1963

TO MR. R. W. BRANNON, AGRICULTURAL MARKETING SERVICE, DEPARTMENT OF AGRICULTURE:

ON OCTOBER 7, 1963, YOU REQUESTED OUR DECISION WHETHER MRS. ANNA B. JARVIS, AN EMPLOYEE OF THE AGRICULTURAL MARKETING SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, SHOULD BE REQUIRED TO REFUND A PART OF THE COMPENSATION PAID HER FROM THE DATE OF HER APPOINTMENT AUGUST 20, 1962, TO MAY 19, 1963, DURING WHICH PERIOD SHE WAS RECEIVING COMPENSATION AT THE MAXIMUM SCHEDULED STEP OF GRADE GS-4 RATHER THAN AT THE MINIMUM STEP OF THAT GRADE.

SECTION 801 OF THE CLASSIFICATION ACT OF 1949, APPROVED OCTOBER 28, 1949, CH. 782, 63 STAT. 969, 5 U.S.C. 1131, REQUIRES THAT ALL NEW APPOINTMENTS BE MADE AT THE MINIMUM PAY RATE OF THE APPROPRIATE GRADE. SECTION 802 OF THAT ACT AUTHORIZES THE EXCEPTION MADE BY CIVIL SERVICE REGULATION 25.103 (B) TO THE EFFECT THAT A NEW APPOINTEE MAY BE PAID MORE THAN THE MINIMUM RATE OF THE GRADE TO WHICH APPOINTED IF HE HAS PREVIOUSLY EARNED A HIGHER RATE OF PAY IN FEDERAL EMPLOYMENT. CIVIL SERVICE REGULATION 25.102 (F) DEFINES "HIGHEST PREVIOUS RATE" AS FOLLOWS:

"* * * THE HIGHEST RATE OF BASIC COMPENSATION PREVIOUSLY PAID TO A FEDERAL CIVILIAN EMPLOYEE OCCUPYING A POSITION IN ANY BRANCH OF THE FEDERAL GOVERNMENT (EXECUTIVE, LEGISLATIVE, OR JUDICIAL), OR IN THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, OR IN A MIXED OWNERSHIP CORPORATION, IRRESPECTIVE OF WHETHER OR NOT SUCH POSITION WAS SUBJECT TO THE PAY SCHEDULES OF THE CLASSIFICATION ACT * * * "

THE QUESTION IS WHETHER MRS. JARVIS' EMPLOYMENT WITH THE INTER AMERICAN DEVELOPMENT COMMISSION BETWEEN 1942 AND 1945 AT A RATE OF PAY EQUAL TO THAT OF A CAF-6 MAY BE CONSIDERED FEDERAL CIVILIAN EMPLOYMENT UNDER THE "HIGHEST PREVIOUS RATE" RULE.

THE INTER-AMERICAN DEVELOPMENT COMMISSION WAS CREATED ON JANUARY 15, 1940 BY RESOLUTION OF THE INTER-AMERICAN FINANCIAL AND ECONOMIC ADVISORY COMMITTEE, AN INTERNATIONAL ORGANIZATION, AND WAS APPARENTLY FINANCED FROM FUNDS OF THAT ORGANIZATION. SEE DEPARTMENT OF STATE PAMPHLETS, ,INTERNATIONAL ORGANIZATIONS IN WHICH THE UNITED STATES PARTICIPATES 1949" PAGE 318; D,"PARTICIPATION OF THE UNITED STATES GOVERNMENT IN INTERNATIONAL CONFERENCE JULY 1, 1941 - JUNE 30, 1945," PAGE 211; ALSO "UNITED STATES GOVERNMENT MANUAL" FALL 1942, PAGE 70. WE FIND NO APPROPRIATION MADE FOR THE INTER-AMERICAN DEVELOPMENT COMMISSION DURING THE YEARS IN QUESTION ALTHOUGH APPROPRIATIONS WERE MADE FOR CONTRIBUTION TO THE SUPPORT OF THE INTER-AMERICAN FINANCIAL AND ECONOMIC ADVISORY COMMITTEE. SEE THE FIRST SUPPLEMENTAL NATIONAL DEFENSE APPROPRIATION ACT, 1944, APPROVED DECEMBER 23, 1943, CH. 380, 57 STAT. 611, 629; DEPARTMENT OF STATE APPROPRIATION ACT, 1946, APPROVED MAY 21, 1945, CH. 129, 59 STAT. 169, 176. THERE APPEARS TO BE NO QUESTION, THEREFORE, THAT THE INTER- AMERICAN DEVELOPMENT COMMISSION WAS AN INTERNATIONAL ORGANIZATION AND NOT AN AGENCY OF THE FEDERAL GOVERNMENT.

A RATE OF COMPENSATION EARNED BY A FORMER EMPLOYEE OF AN INTERNATIONAL ORGANIZATION MAY NOT BE USED FOR THE PURPOSE OF DETERMINING THE INITIAL SALARY WHEN THAT INDIVIDUAL IS APPOINTED TO A FEDERAL POSITION. 28 COMP. GEN. 433.

WE ARE WITHOUT AUTHORITY TO WAIVE THE INDEBTEDNESS WHICH RESULTED FROM THE EXCESS SALARY ALLOWED MRS. JARVIS UPON APPOINTMENT AND HAVE NO JURISDICTION TO EXCUSE HER FROM THE OBLIGATION TO REPAY THE AMOUNT ERRONEOUSLY PAID. SEE 28 COMP. GEN. 433 AT 434. THEREFORE, THE INVOICE EVIDENCING MRS. JARVIS' INDEBTEDNESS WHICH YOU ENCLOSED IS RETURNED AND SHOULD BE PRESENTED FOR COLLECTION IF OTHERWISE CORRECT.