B-44393, SEPTEMBER 19, 1944, 24 COMP. GEN. 226

B-44393, SEPTEMBER 19, 1944, 24 COMP. GEN. 226

COMPENSATION - TRANSFERS - INITIAL SALARY RATES - RESTORATION TO FORMER POSITION AND GRADE WHERE AN EMPLOYEE HAS BEEN REDUCED IN POSITION AND GRADE THROUGH NO FAULT OF HIS OWN AND LATER IS RESTORED TO THE SAME POSITION AND GRADE, IT IS WITHIN ADMINISTRATIVE DISCRETION, SUBJECT TO AVAILABLE APPROPRIATIONS, TO FIX THE EMPLOYEE'S SALARY INITIALLY AT A RATE ABOVE THE GRADE MINIMUM TO WHICH HE PREVIOUSLY HAD BEEN ADVANCED IN THAT POSITION THROUGH OPERATION OF THE WITHIN-GRADE PROMOTION PLAN PRESCRIBED BY THE ACT OF AUGUST 1, 1941; HOWEVER, SUCH RULE BEING IN EFFECT A MODIFICATION OF EXISTING RULES AS HERETOFORE UNDERSTOOD AND APPLIED IN THE LIGHT OF RELATED DECISIONS, IT MAY NOT BE GIVEN RETROACTIVE EFFECT TO CASES HERETOFORE FINALLY PROCESSED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 19, 1944:

I HAVE YOUR LETTER OF SEPTEMBER 7, 1944, AS FOLLOWS:

QUESTION HAS ARISEN IN THIS DEPARTMENT AS TO THE SALARY RATE WHICH MAY BE PAID TO AN EMPLOYEE WHEN, SUBSEQUENT TO A REDUCTION IN GRADE NECESSITATED BY A REDUCTION IN FORCE, HE IS REASSIGNED TO HIS FORMER HIGHER POSITION.

THE PROBLEM IS PERHAPS BEST ILLUSTRATED BY THE USE OF A HYPOTHETICAL CASE SUCH AS THE OLLOWING:

BECAUSE OF THE NECESSITY FOR A REDUCTION IN FORCE IN ONE SEGMENT OF OUR ORGANIZATION WE FIND THAT WE MUST REMOVE TWO EMPLOYEES IN P-3 FROM THEIR PRESENT POSITIONS. WE ESTABLISHED A SEPARATION REGISTER AND FIND THAT THE TWO P-3 EMPLOYEES LOWEST ON THE REGISTER, ONE OF WHOM HAS AN EFFICIENCY RATING OF "GOOD" AND THE OTHER "VERY GOOD" ARE AT PRESENT BOTH PAID AT $3,400 PER ANNUM. WE SEPARATE THE EMPLOYEE HAVING AN EFFICIENCY RATING OF "GOOD.' WE OFFER THE EMPLOYEE HAVING AN EFFICIENCY RATING OF "VERY GOOD" A POSITION IN THE GRADE P-2 AT $3,200 BECAUSE WE HAVE A VACANCY THERE AND BECAUSE WE WANT TO RETAIN HIS SERVICES.

NINE MONTHS LATER OUR PROGRAM EXPANDS SO THAT WE AGAIN NEED THE SERVICES OF THESE TWO EMPLOYEES IN GRADE P-3. BECAUSE OF YOUR RULING IN 20 COMP. GEN. 318, THE MAN WHO HAS BEEN SEPARATED MAY BE REEMPLOYED AT HIS FORMER RATE IN P-3, $3,400 PER ANNUM. HOWEVER, THERE IS NO CLEAR STATEMENT IN ANY DECISION OF YOUR OFFICE AS TO THE SALARY RATE WHICH MAY BE PAID TO THE MAN WHO IS AT PRESENT IN P-2 WHEN HE IS REASSIGNED TO HIS FORMER POSITION IN GRADE P-3. WE FEEL THAT WE SHOULD BE ABLE TO REASSIGN THE EMPLOYEE TO P-3 AT $3,400. WE RECOGNIZE THE REASSIGNMENT IS IN FACT A PROMOTION FROM P-2 TO P-3 AND THAT PROMOTIONS ARE NORMALLY MADE TO THE MINIMUM OF THE HIGHER GRADE UNLESS THE EMPLOYEE IS ALREADY RECEIVING A RATE HIGHER THAN THAT MINIMUM. WE HAVE CONSIDERED 22 COMP. GEN. 489 IN THIS CONNECTION, BUT THAT DECISION DOES NOT APPEAR PRECISELY APPLICABLE, FIRST, BECAUSE THE EMPLOYEE IN OUR CASE IS ALREADY RECEIVING THE MINIMUM OF THE HIGHER GRADE, AND, SECOND, BECAUSE THE EMPLOYEE IN OUR CASE HAS IN THE PAST SERVED IN THE HIGHER GRADE SUCCESSFULLY LONG ENOUGH TO HAVE RECEIVED TWO WITHIN- GRADE INCREASES IN THE HIGHER GRADE UNDER THE MEAD-RAMSPECK ACT.

WE FEEL THAT THE MAN WHOSE EFFICIENCY RATING WAS "VERY GOOD," WHOM WE DEMOTED TO P-2, $3,200, IN ORDER TO RETAIN HIS SERVICES, SHOULD ALSO RECEIVE $3,400 UPON REASSIGNMENT TO HIS FORMER P-3 POSITION. IF WE MUST LIMIT THIS BETTER EMPLOYEE TO THE MINIMUM OF P-3, $3,200, UPON REASSIGNMENT TO P-3, WE WILL BE FORCED TO DO HIM A REAL INJUSTICE. EFFECT, WE WILL BE FORCED TO PENALIZE HIM FOR HIS HIGH EFFICIENCY.

YOUR OPINION ON THE FOLLOWING QUESTION IS REQUESTED:

MAY AN EMPLOYEE WHO THROUGH NO FAULT OF HIS OWN HAS BEEN DEMOTED FROM P- 3, $3,400, TO P-3, $3,200, BE REASSIGNED TO P-3 AT HIS FORMER SALARY RATE IN P-3, $3,400 PER ANNUM?

IF YOUR ANSWER TO THAT QUESTION IS IN THE AFFIRMATIVE, WE WOULD APPRECIATE YOUR DECISION ON THIS FURTHER QUESTION:

IF WE HAD REASSIGNED THIS SAME EMPLOYEE FROM P-2 TO P-3, HIS FORMER GRADE, SEVERAL MONTHS AGO BUT HAD REASSIGNED HIM TO P-3 AT $3,200 PER ANNUM BECAUSE HIS PROPER SALARY RATE HAD NOT AT THAT TIME BEEN CLARIFIED, MAY WE AT THIS TIME ADJUST HIS RATE OF PAY TO $3,400, THE RATE HE FORMERLY RECEIVED IN P-3, WITHOUT CONTRAVENING THE MEAD RAMSPECK ACT, OR MAY WE ADJUST HIS SALARY TO $3,400 RETROACTIVELY TO THE DATE OF HIS REASSIGNMENT TO GRADE P-3?

SINCE THIS PROBLEM IS FACING THE DEPARTMENT AT THE PRESENT TIME, WE WILL APPRECIATE DEEPLY YOUR EARLY CONSIDERATION OF AND REPLY TO THESE QUESTIONS.

WHILE THIS OFFICE IS NOT REQUIRED TO ANSWER HYPOTHETICAL QUESTIONS, IT IS UNDERSTOOD IN THIS INSTANCE THAT THE "HYPOTHETICAL CASE" PRESENTED IS INTENDED TO BE ILLUSTRATIVE OF ACTUAL CASES NOW PENDING BEFORE THE DEPARTMENT OF AGRICULTURE INVOLVING THE PROBLEM PRESENTED AND YOUR QUESTIONS WILL BE CONSIDERED AND ANSWERED ACCORDINGLY.

IN DECISION OF SEPTEMBER 18, 1943, 23 COMP. GEN. 201, IT WAS STATED AT PAGE 203, AS FOLLOWS:

TRANSFERS, PROMOTIONS, AND DEMOTIONS ARE NOT REGARDED AS NEW APPOINTMENTS SUCH AS ARE REQUIRED TO BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE. 20 COMP. GEN. 626; 22 ID. 925. THE GENERAL RULE FOR DETERMINING THE SALARY RATE INITIALLY APPLICABLE WHEN AN EMPLOYEE IS TRANSFERRED, PROMOTED, OR DEMOTED BETWEEN CLASSIFICATION ACT POSITIONS IS THAT THE EMPLOYEE IS TRANSFERRED, PROMOTED, OR DEMOTED,(A) WITHOUT LOSS OF SALARY RATE PAID THE EMPLOYEE IN HIS FORMER POSITION, INCLUDING ANY PERIODIC OR MERITORIOUS SALARY ADVANCEMENT, PROVIDING HIS FORMER SALARY RATE, ALSO, IS A STANDARD RATE IN THE NEW GRADE, OR (B) WITH AS LITTLE LOSS OF SALARY AS IS NECESSARY TO PAY A RATE PRESCRIBED FOR THE GRADE TO WHICH TRANSFERRED, PROMOTED, OR REDUCED. SEE 20 COMP. GEN. 579; 21 ID. 791, 796; 22 ID. 489, AND THE DECISIONS THEREIN CITED.

IN THE DECISION OF NOVEMBER 23, 1942, 22 COMP. GEN. 489, TO WHICH YOU REFER, THE FOLLOWING RULE WAS STATED (QUOTING FROM THE SYLLABUS):

THE WITHIN-GRADE SALARY ADVANCEMENT PLAN PRESCRIBED BY THE ACT OF AUGUST 1, 1941, IS INCONSISTENT WITH, AND WOULD NOT PERMIT, THE FIXING OF ANY SALARY RATE IN THE GRADE TO WHICH AN EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED, IN EXCESS OF THE RATE PAID IN THE GRADE FROM WHICH TRANSFERRED, PROMOTED, OR REDUCED, THE EFFECT OF WHICH IS TO GRANT THE EMPLOYEE AN ADDITIONAL WITHIN-GRADE SALARY ADVANCEMENT AND, THEREFORE,AN EMPLOYEE PROMOTED TO A HIGHER GRADE, THE MINIMUM SALARY RATE OF WHICH EXCEEDS THE RATE PAID IN THE FORMER GRADE, MAY NOT INITIALLY BE PAID ABOVE THE MINIMUM RATE OF THE NEW GRADE. 21 COMP. GEN. 791, AMPLIFIED. THE PURPOSE OF THIS LATTER RULE WAS TO NEGATIVE THE GRANTING OF ADDITIONAL WITHIN-GRADE SALARY ADVANCEMENTS NOT AUTHORIZED BY THE PROPER APPLICATION OF THE PRINCIPLES OF THE ACT OF AUGUST 1, 1941, 55 STAT. 613, AS IMPLEMENTED BY THE PRESIDENT'S REGULATIONS ISSUED THEREUNDER, EXECUTIVE ORDER NO. 8882 OF SEPTEMBER 3, 1941. IN NEITHER OF THE TWO DECISIONS, SUPRA, NOR IN ANY OTHER DECISION TO WHICH MY ATTENTION HAS BEEN CALLED, HAS CONSIDERATION BEEN GIVEN PARTICULARLY TO THE CASE OF AN EMPLOYEE REDUCED IN POSITION AND GRADE THROUGH NO FAULT OF HIS OWN AND LATER RESTORED TO THE SAME POSITION AND GRADE, BUT SAID RULES, SO FAR AS THEY RELATE TO PROMOTIONS, WERE STATED MORE PARTICULARLY WITH RELATION TO REGULAR PROMOTIONS TO A GRADE NOT PREVIOUSLY HELD BY THE EMPLOYEE. WHILE, AS YOU SUGGEST, THE RESTORATION OF THE EMPLOYEE IN THE ILLUSTRATIVE CASE PRESENTED, IS A PROMOTION IN A SENSE, YET, HAVING IN MIND THAT IT WAS THE PURPOSE AND INTENT OF THE WITHIN-GRADE PROMOTION PLAN TO GRANT SALARY ADVANCEMENTS BASED UPON EFFICIENCY, SERVICE, AND CONDUCT IN A PARTICULAR POSITION, THERE IS MUCH MERIT IN YOUR SUGGESTION THAT THE SALARY RATE ONCE ATTAINED IN A PARTICULAR POSITION THROUGH THE OPERATION OF THE PLAN PRESCRIBED BY LAW, MAY BE PAID TO THE SAME EMPLOYEE IN THE EVENT HE BE RESTORED TO THAT POSITION AFTER A PERIOD OF SERVICE IN A LOWER GRADE REQUIRED THROUGH NO FAULT OF HIS OWN, PARTICULARLY WHEN EXISTING RULES PERMIT ONE TO BE REINSTATED--- AFTER A SEPARATION FROM THE SERVICE THROUGH NO FAULT OF HIS BECAUSE OF REDUCTION OF FORCE--- TO HIS FORMER POSITION AT THE SALARY RATE OBTAINING UPON HIS SEPARATION. THIS OFFICE HAS RULED THAT THE RIGHT TO A WITHIN-GRADE PROMOTION IS VESTED IN AN EMPLOYEE ONLY SO LONG AS HE REMAINS IN THE SAME POSITION. 21 COMP. GEN. 791. HOWEVER, SUBJECT TO AVAILABLE APPROPRIATIONS, IT IS BELIEVED TO BE WITHIN ADMINISTRATIVE DISCRETION, AND TO BE IN LINE WITH THE RULE FOR FIXING INITIAL SALARY RATES UPON REINSTATEMENT OF AN EMPLOYEE FROM OUTSIDE THE FEDERAL SERVICE, TO WHICH YOU REFER, TO RESTORE AN EMPLOYEE TO THE SAME SALARY RATE PREVIOUSLY HELD IN THE SAME POSITION AND GRADE TO WHICH THE EMPLOYEE HAD ADVANCED BY OPERATION OF THE WITHIN-GRADE PROMOTION PLAN WITHOUT REQUIRING HIM AGAIN TO ATTAIN SUCH SALARY RATE THROUGH PERIODIC ADVANCEMENTS IN EACH STEP OF THE GRADE. SUCH RULE WOULD NOT CONFLICT WITH ANY EXISTING LAW OR REGULATION AND WOULD SEEM TO CARRY OUT THE SPIRIT AND INTENT OF THE WITHIN -GRADE PROMOTION PLAN PRESCRIBED BY LAW.

ACCORDINGLY, THE FIRST QUESTION PRESENTED IS ANSWERED IN THE AFFIRMATIVE.

HOWEVER, AS THE RULE STATED HEREIN IS, IN EFFECT, A MODIFICATION OF EXISTING RULES AS HERETOFORE UNDERSTOOD AND APPLIED IN THE LIGHT OF RELATED DECISIONS OF THIS OFFICE, THE RULE HERE ANNOUNCED MAY NOT BE GIVEN RETROACTIVE EFFECT TO CASES HERETOFORE FINALLY PROCESSED. HENCE, THE SECOND QUESTION PRESENTED MUST BE AND IS ANSWERED IN THE NEGATIVE.