B-155395, FEB. 17, 1965

B-155395, FEB. 17, 1965

TO MR. O. OWEN PARISH ET AL.:

WE REFER TO YOUR LETTER OF OCTOBER 9, 1964, WITH ENCLOSURE, CONCERNING THE STEP IN GRADE REDUCTIONS SUFFERED BY YOU AS A CONSEQUENCE OF INSTRUCTIONS ISSUED BY THE UNITED STATES CIVIL SERVICE COMMISSION, BUREAU OF PROGRAMS AND STANDARDS, IN ITS LETTER OF OCTOBER 27, 1964, TO THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION.

WE UNDERSTAND THAT AS A CONSEQUENCE OF PROMOTIONS RECEIVED BY YOU DURING THE PERIOD FROM THE EFFECTIVE DATE OF PUB.L. 88-426, APPROVED AUGUST 14, 1964, 78 STAT. 400, TO THE DATE OF ITS ENACTMENT, YOUR STEPS IN GRADE WERE DETERMINED BY THE APPLICATION OF THE RULE PROVIDED IN SECTION 102/B) (6) OF THAT STATUTE. SECTION 102/B), HOWEVER, EXPRESSLY EXCEPTED FROM THE APPLICATION OF THE RULES IN THAT SECTION EMPLOYEES WHO WERE APPOINTED AT SPECIAL RATES UNDER SECTION 504 OF THE FEDERAL SALARY REFORM ACT OF 1962, 76 STAT. 842. IN LIEU OF THE STATUTORY RULES CONTAINED IN SECTION 102 (B), PUB.L. 88-426 PROVIDES IN SECTION 123, AS AN AMENDMENT TO SECTION 504, AS OLLOWS:

"/D) THE RATE OF BASIC COMPENSATION, ESTABLISHED UNDER THIS SECTION, AND RECEIVED BY ANY OFFICER OR EMPLOYEE IMMEDIATELY PRIOR TO THE EFFECTIVE DATE OF A STATUTORY INCREASE IN THE COMPENSATION SCHEDULES OF THE SALARY SYSTEMS SPECIFIED IN SUBSECTION (A) SHALL BE INITIALLY ADJUSTED ON THE EFFECTIVE DATE OF SUCH NEW COMPENSATION SCHEDULES IN ACCORDANCE WITH CONVERSION RULES AND REGULATIONS PRESCRIBED BY THE PRESIDENT OR BY SUCH AGENCY OR AGENCIES AS HE MAY DESIGNATE.'

THE CIVIL SERVICE COMMISSION WAS THE AGENCY DESIGNATED TO ACT FOR THE PRESIDENT REGARDING THE ISSUANCE OF CONVERSION RULES AND REGULATIONS.

OUR LETTER OF NOVEMBER 4, 1964, TO THE CHAIRMAN OF THE COMMISSION, OF WHICH WE INFORMED YOU BY OUR LETTER OF DECEMBER 22, 1964, INQUIRED WHETHER THE BUREAU OF PROGRAMS AND STANDARDS' LETTER OF OCTOBER 27, 1964, WAS TO BE UNDERSTOOD AS A DECISION BY THE COMMISSION NOT TO EXTEND THE BENEFITS OF SECTION 102/B) (6) TO EMPLOYEES RECEIVING SPECIAL RATES UNDER SECTION 504.

BY LETTER OF FEBRUARY 8, 1965, THE CHAIRMAN OF THE COMMISSION INFORMED OUR OFFICE AS FOLLOWS:

"MORE SPECIFICALLY, YOU ARE CONCERNED WITH WHETHER THERE WAS A DECISION NOT TO PROVIDE INITIAL ADJUSTMENT PROVISIONS FOR EMPLOYEES RECEIVING SECTION 504 RATES SIMILAR TO THAT PROVIDED FOR OTHER CLASSIFICATION ACT EMPLOYEES BY SECTION 102 (B) (6) OF THE FEDERAL EMPLOYEES SALARY ACT OF 1964 (PUBLIC LAW 88-426), WHICH PROVIDED IN EFFECT THAT FOR EMPLOYEES PROMOTED BETWEEN THE EFFECTIVE DATE AND ENACTMENT DATE TO A RATE ABOVE THE INITIAL RATE, IT WOULD NOT BE NECESSARY TO RECOMPUTE THEIR SALARY RATES ON THE BASIS OF THE HIGHER RATES PROVIDED BY THAT ACT.

"WE RECOGNIZED THAT IN THE ABSENCE OF SOME REGULATION BY THE COMMISSION AGENCIES WOULD HAVE TO RECOMPUTE THE SALARIES FOR EMPLOYEES RECEIVING SECTION 504 RATES WHO WERE PROMOTED DURING THE INTERIM PERIOD BETWEEN THE EFFECTIVE DATE FOR THE NEW 504 RATES AND THE DATE OF PUBLICATION IN THE FEDERAL REGISTER ON AUGUST 15, 1964. AFTER CONSIDERING THIS MATTER, THE COMMISSION'S STAFF DECIDED NOT TO RECOMMEND A REGULATION WHICH WOULD NOT REQUIRE RECOMPUTATION. WHILE IT WAS RECOGNIZED THAT SOME EMPLOYEES WOULD HAVE THEIR RATES EITHER RAISED OR LOWERED UPON RECOMPUTATION, IT WAS FELT THAT THERE WAS NO SUBSTANTIAL REASON FOR PROVIDING OTHERWISE.

"THE COMMISSION HAS REVIEWED THIS STAFF DECISION AND HAS AFFIRMED IT. THEREFORE, THE ANSWER IN THE COMMISSION'S LETTER OF OCTOBER 27, 1964, IS TO BE REGARDED AS FINALLY DISPOSITIVE OF THIS QUESTION.'

IN VIEW OF THE DECISION BY THE COMMISSION AND THE ABSENCE OF ANY STATUTORY PROVISION OTHERWISE, YOUR LAWFUL RATES OF COMPENSATION PROPERLY WERE TO BE DETERMINED UNDER THE RULE CONTAINED IN OUR DECISION 31 COMP. GEN. 166 WHICH, QUOTING FROM THE SYLLABUS, IS AS FOLLOWS:

"THE INCREASED COMPENSATION AMENDMENT TO THE CLASSIFICATION ACT OF 1949 REQUIRES THE ADJUSTMENT OF AN EMPLOYEE'S COMPENSATION FOR THE PERIOD BETWEEN ITS EFFECTIVE DATE AND ENACTMENT DATE TO REFLECT THE PAY STATUS HE WOULD HAVE ATTAINED HAD THE AMENDED PAY SCHEDULES BEEN OPERATIVE AND APPLIED CURRENTLY DURING THAT PERIOD, SO THAT THE PROMOTION OF AN EMPLOYEE DURING SAID PERIOD TO A HIGHER STEP INCREASE UNDER THE OLD SALARY SCALE THAN REQUIRED UNDER THE NEW SALARY SCALE MUST BE AMENDED RETROACTIVELY IN ACCORDANCE WITH THE NEW SALARY SCALE AND THE NECESSARY ADJUSTMENTS MADE IN THE EMPLOYEE'S SALARY.'

SINCE YOUR ADJUSTED RATES ARE UNDERSTOOD TO HAVE BEEN DETERMINED IN ACCORDANCE WITH THE ABOVE-QUOTED DECISION AND SINCE THE CIVIL SERVICE COMMISSION HAS DECIDED NOT TO MODIFY THE RULE OF DECISION BY REGULATION, WE ARE WITHOUT AUTHORITY TO GRANT A READJUSTMENT OF YOUR SALARY RATES TO THEIR FORMER LEVELS.