B-171202, MAR 2, 1971

B-171202, MAR 2, 1971

SALARY RATE - REDUCTION IN GRADE DECISION CONCERNING THE PROPER SALARY RATE DUE FLOSSIE M. PREWETT UPON REDUCTION IN GRADE FROM GS-10 TO GS-9 INCIDENT TO A CHANGE OF POSITION AND DUTY STATION FROM SAN FRANCISCO, CALIF., TO ST. LOUIS, MISSOURI. ALTHOUGH THE CIVIL SERVICE COMMISSION DENIED CLAIMANT SALARY RETENTION UNDER 5 U.S.C. 5337, GAO HAS AUTHORITY ON MATTERS OTHER THAN SALARY RETENTION AND AFTER INQUIRING OF HEW OF THE POSSIBILITY OF FIXING CLAIMANT'S SALARY RATE IN GRADE GS-9 AS CLOSE AS POSSIBLE TO SALARY RATE IN GRADE GS-10 UNDER THE HIGHEST PREVIOUS RATE RULE, IT MUST BE REPORTED THAT THE SALARY AUTHORITY IN THIS CASE RESTS WITH THE PAYMENT CENTER AT KANSAS CITY AND THE POLICY SET BY THAT CENTER REQUIRES SERVICE IN THE GS- 10 POSITION FOR A YEAR BEFORE THE HIGHEST PREVIOUS RATE RULE WILL BE APPLIED.

TO MISS FLOSSIE M. PREWETT:

WE REFER FURTHER TO YOUR LETTER OF OCTOBER 5, 1970, WITH RESPECT TO YOUR PROPER SALARY RATE UPON A REDUCTION IN GRADE FROM GS-10 TO GS-9.

WE ADVISED YOU ON NOVEMBER 4 AND DECEMBER 23, 1970, THAT WE HAD REQUESTED THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) TO FURNISH OUR OFFICE A REPORT ON THE FACTS AND CIRCUMSTANCES SURROUNDING YOUR TRANSFER AND DEMOTION. THE REGIONAL DIRECTOR FOR HEW AT KANSAS CITY, MISSOURI, HAS JUST RECENTLY SENT US A REPORT ON YOUR CASE.

THE RECORD NOW BEFORE US INDICATES THAT YOU WERE PROMOTED TO A POSITION OF CLAIMS AUTHORIZER GS-10 ON JULY 14, 1968, IN THE SOCIAL SECURITY PAYMENT CENTER IN SAN FRANCISCO. IT IS REPORTED THAT ON SEPTEMBER 20, 1968, YOU FILED A SOCIAL SECURITY ADMINISTRATION FORM SHOWING YOUR AVAILABILITY FOR ASSIGNMENT AS CLAIMS REPRESENTATIVE, GS 9, $9,917, IN ST. LOUIS, MISSOURI. IT APPEARS THAT ON OCTOBER 28, 1968, YOU SIGNED AN ACCEPTANCE OF A CLAIMS REPRESENTATIVE POSITION AT GS-9, STEP 4, OR $9,308. THEREAFTER, ON NOVEMBER 8, 1968, PERSONNEL ACTIONS WERE PROCESSED CHANGING YOUR POSITION AND LOWERING YOUR GRADE TO GS-9 AT $9,308 A YEAR.

YOUR LETTER OF OCTOBER 5, 1970, INDICATES THAT YOU APPEALED TO THE CIVIL SERVICE COMMISSION WHICH CONSIDERED THE MATTER UNDER THE PROVISIONS OF 5 U.S.C. 5337 WHICH ENTITLED AN EMPLOYEE TO RETAIN HIS SAME SALARY FOR A PERIOD OF 2 YEARS AFTER A REDUCTION IN GRADE UNDER CERTAIN CIRCUMSTANCES. UNDER DATE OF SEPTEMBER 23, 1970, THE CIVIL SERVICE COMMISSION DENIED YOU SALARY RETENTION UNDER SUCH PROVISIONS. AS THE BOARD OF APPEALS AND REVIEW OF THE COMMISSION POINTED OUT IN ITS RULING:

"PAY MATTERS OTHER THAN SALARY RETENTION UNDER 5 U.S.C. 5337 ARE NOT WITHIN THE APPELLATE JURISDICTION OF THE COMMISSION. ON PAY MATTERS OTHER THAN THE SALARY RETENTION ASPECTS OF YOUR DEMOTION, YOU MAY OBTAIN AN AUTHORITATIVE RULING BY FILING A CLAIM WITH THE UNITED STATES GENERAL ACCOUNTING OFFICE, WASHINGTON, D. C. 20548."

AS NOTED IN THE ABOVE QUOTE THE CIVIL SERVICE COMMISSION HAS EXCLUSIVE JURISDICTION CONCERNING SALARY RETENTION UNDER 5 U.S.C. 5337, AND THEREFORE WE, OF COURSE, HAVE NO JURISDICTION TO REVIEW THE COMMISSION'S ACTIONS IN THAT RESPECT.

WE DID, HOWEVER, INQUIRE OF HEW OF THE POSSIBILITY OF FIXING YOUR SALARY RATE IN GRADE GS-9 AS CLOSE AS POSSIBLE TO YOUR SALARY RATE IN GRADE GS-10 UNDER THE HIGHEST PREVIOUS RATE RULE. THAT RULE IS SEPARATE AND APART FROM SALARY RETENTION FOR 2 YEARS UNDER 5 U.S.C. 5337. THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE IN ITS REPORT STATES THAT THE PAYMENT CENTER IN KANSAS CITY HAD SALARY SETTING AUTHORITY IN YOUR CASE, AND THAT EARLY IN JANUARY 1968 IT HAD ESTABLISHED A SALARY SETTING POLICY FOR GS-10 EMPLOYEES WHO APPLY FOR GS-9 POSITIONS IN THE DISTRICT OFFICE TO THE EFFECT THAT UNLESS AN EMPLOYEE HAD BEEN IN THE GS-10 POSITION IN THE PAYMENT CENTER FOR A YEAR, THE SALARY IN THE GS-9 POSITION WOULD BE SET AT THE STEP HELD PRIOR TO PROMOTION TO GS-10; ALSO, THAT THIS POLICY HAS BEEN APPLIED TO ALL PAYMENT CENTER EMPLOYEES.

APPARENTLY EMPLOYEES OF THE SAN FRANCISCO PAYMENT CENTER PRIOR TO OCTOBER 28, 1968, ADVISED YOU IN ERROR THAT YOUR SALARY WOULD BE SET AT A HIGHER RATE. AS SET FORTH ABOVE THE SALARY AUTHORITY IN YOUR CASE WAS THE PAYMENT CENTER AT KANSAS CITY.

WE NOTE IN THE CASE OF MR. SUTTER CITED IN YOUR SUBMISSION THAT THE PERSONNEL ACTION WAS EFFECTIVE ON MARCH 28, 1965, SOME 3 YEARS BEFORE ESTABLISHMENT OF THE SALARY SETTING POLICY MENTIONED ABOVE. THE OTHER EMPLOYEE YOU MENTION, MR. HART, APPARENTLY SERVED IN GRADE GS-10 MORE THAN 1 YEAR.

IN THE CIRCUMSTANCES WE SEE NO BASIS FOR CONCLUDING THAT YOUR SALARY SHOULD HAVE BEEN ESTABLISHED AT A HIGHER RATE ON NOVEMBER 8, 1968.