B-61072, OCTOBER 24, 1946, 26 COMP. GEN. 267

B-61072, OCTOBER 24, 1946, 26 COMP. GEN. 267

COMPENSATION - INITIAL SALARY RATE - TRANSFER BETWEEN UNCLASSIFIED AND CLASSIFIED POSITIONS IN THE CASE OF AN EMPLOYEE WHO WAS TRANSFERRED WITHIN THE SAME AGENCY ON JULY 1, 1946, FROM AN UNCLASSIFIED POSITION TO A CLASSIFIED POSITION IN A GRADE EQUIVALENT TO THAT FORMERLY HELD, ACTION NOW MAY BE TAKEN TO FIX THE EMPLOYEE'S INITIAL SALARY RATE--- RETROACTIVE TO THE DATE OF TRANSFER--- AT SUCH STEP ABOVE THE MINIMUM OF THE CLASSIFIED GRADE AS WILL GIVE HER THE BENEFIT OF AN ADMINISTRATIVE SALARY INCREASE, COMPARABLE TO THE INCREASE PRESCRIBED BY THE FEDERAL EMPLOYEES PAY ACT OF 1946, EFFECTIVE JULY 1, 1946, FOR EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT, THAT SHE WOULD HAVE RECEIVED HAD SHE REMAINED IN THE UNCLASSIFIED POSITION ON AND AFTER JULY 1, 1946. WHERE, IN THE CASE OF AN EMPLOYEE SERVING IN AN UNCLASSIFIED POSITION, ADMINISTRATIVE ACTION WAS NOT TAKEN TO GRANT A SALARY INCREASE ON JULY 1, 1946, COMPARABLE TO THAT PRESCRIBED BY THE FEDERAL EMPLOYEES PAY ACT OF 1946, EFFECTIVE JULY 1, 1946, FOR EMPLOYEES SUBJECT TO THE CLASSIFICATION ACT, THE INITIAL SALARY RATE OF THE EMPLOYEE, UPON TRANSFER WITHIN THE SAME AGENCY TO A CLASSIFIED POSITION IN A GRADE EQUIVALENT TO THAT OF THE FORMER POSITION, MAY NOT EXCEED THE RATE ACTUALLY RECEIVED ON JULY 1, 1946, AND IF THERE BE NO IDENTICAL RATE IN THE CLASSIFIED GRADE, THE NEXT LOWER RATE MUST BE PAID.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF STATE, OCTOBER 24, 1946:

I HAVE YOUR LETTER OF OCTOBER 1, 1946, AS FOLLOWS:

YOUR OPINION IS RESPECTFULLY REQUESTED WITH REGARD TO SALARY WHICH MAY BE PAID TO CERTAIN EMPLOYEES WHO, PRIOR TO JULY 1, 1946, OCCUPIED POSITIONS NOT SUBJECT TO THE CLASSIFICATION ACT. THE DEPARTMENT TOOK ADMINISTRATIVE ACTION TO INCREASE, EFFECTIVE JULY 1, 1946, THE SALARIES OF POSITIONS IN THE DEPARTMENT (EXCLUSIVE OF THE FOREIGN SERVICE) NOT SUBJECT TO THE FEDERAL EMPLOYEES PAY ACT OF 1946, SO THAT EMPLOYEES OCCUPYING THOSE POSITIONS WOULD RECEIVE A COMPARABLE INCREASE.

EMPLOYEE A IN JUNE 1946 WAS SERVING IN A POSITION NOT SUBJECT TO THE CLASSIFICATION ACT (SALARY PAID FROM THE APPROPRIATION ENTITLED INTERNATIONAL CONFERENCES--- EMERGENCY) AT A SALARY OF $3,090, EQUIVALENT AT THAT TIME TO THE SECOND STEP OF A CAF-7 GRADE. ON JULY 1, 1946, SHE WAS TRANSFERRED TO A POSITION SUBJECT TO THE CLASSIFICATION ACT, WHICH POSITION HAD BEEN ALLOCATED TO A CAF-7 GRADE. ACCORDING TO PREVIOUS DECISIONS REGARDING TRANSFER FROM POSITIONS NOT SUBJECT TO THE CLASSIFICATION ACT TO THOSE SUBJECT THERETO, THE PROPER SALARY PAYABLE WOULD BE NOT TO EXCEED THE RATE PAID IN THE UNCLASSIFIED POSITION EXCEPT WHERE NECESSARY TO PAY THE MINIMUM OF THE GRADE TO WHICH TRANSFERRED.

EMPLOYEE A, HAD SHE REMAINED IN THE UNCLASSIFIED POSITION WOULD HAVE RECEIVED AN INCREASE, BY ADMINISTRATIVE ACTION, TO $3,522.60 ON JULY 1, 1946. SINCE THE TRANSFER TO THE CLASSIFIED POSITION TOOK PLACE ON JULY 1, 1946 SHE DID NOT RECEIVE THE BENEFIT OF AN ADMINISTRATIVE ADJUSTMENT OF PAY. CONSEQUENTLY, ON JULY 1, 1946, UPON HER TRANSFER TO A POSITION SUBJECT TO THE CLASSIFICATION ACT AT GRADE CAF-7, SHE WAS GIVEN THE MINIMUM OF THE GRADE, $3,397.20.

QUESTION 1. TAKING INTO CONSIDERATION 25 COMPTROLLER GENERAL 230, WHICH APPEARS TO COVER A SITUATION WHERE A CLASSIFICATION GRADE WAS ESTABLISHED (ALTHOUGH NOT CLASSIFICATION ACT GRADES), IS THIS DECISION APPLICABLE TO CASES WHERE FORMER POSITIONS WERE NOT GRADED, BUT SALARIES WERE FIXED IN ACCORDANCE WITH CLASSIFICATION ACT SALARY SCALES? IT IS CLEAR THAT A PERSON WHO OCCUPIED A CLASSIFICATION ACT POSITION BEFORE THE PAY ACT OF 1945 OR 1946 MAY BE REINSTATED IN A CLASSIFICATION ACT POSITION AT THE COMPARABLE STEP IN A GRADE WHICH HE OCCUPIED WHEN HE LAST LEFT THE FEDERAL SERVICE. SINCE EMPLOYEE A WOULD HAVE RECEIVED THE BENEFIT OF THE 14 PERCENT PAY INCREASE BY ADMINISTRATIVE ACTION HAD SHE NOT TRANSFERRED TO THE CLASSIFIED POSITION, IT SEEMS INEQUITABLE THAT SHE NOT BE ALLOWED TO RECEIVE THE SAME BENEFIT IN THE CLASSIFIED POSITION, THAT IS, THE SECOND STEP OF THE CAF-7 GRADE, $3,522.60.

QUESTION 2. IF QUESTION 1 IS ANSWERED IN THE AFFIRMATIVE, IS THERE ANY AUTHORITY FOR ALLOWING A COMPARABLE INCREASE TO AN EMPLOYEE WHO HAD BEEN OCCUPYING AN UNCLASSIFIED POSITION PRIOR TO JULY 1, 1946 AND WHO DID NOT RECEIVE A 14 PERCENT INCREASE ADMINISTRATIVELY, TO BE ALLOWED TO RECEIVE AFTER JULY 1, 1946 UPON TRANSFER OR REINSTATEMENT TO A POSITION SUBJECT TO THE CLASSIFICATION ACT, A SALARY WHICH WOULD BE COMPARED WITH THE UNCLASSIFIED POSITION SALARY PLUS THE 14 PERCENT INCREASE? AN EXAMPLE IS AS FOLLOWS: EMPLOYEE B WAS SERVING IN THE FOREIGN SERVICE IN JUNE 1946 IN AN UNCLASSIFIED POSITION AT A SALARY OF $2,870, EQUIVALENT TO THE SIXTH STEP OF A CAF-5 GRADE. ON AUGUST 1, 1946, SHE TRANSFERRED TO THE DEPARTMENTAL SERVICE TO A POSITION SUBJECT TO THE CLASSIFICATION ACT ALLOCATED AT CAF-5. IS THERE ANY AUTHORITY FOR FIXING HER SALARY AT THE SIXTH STEP OF CAF-5, $3,271.80, OR IS THE PROPER SALARY PAYABLE $2,770.20, THE NEXT LOWER RATE?

IN 25 COMP. GEN. 230, THE DECISION TO WHICH YOU REFER, IT WAS STATED AT PAGE 231:

REINSTATEMENTS ARE NOT NEW APPOINTMENTS WITHIN THE MEANING OF RULE 6 OF SECTION 6 OF THE CLASSIFICATION ACT, 42 STAT. 1490. 3 COMP. GEN. 1001, 1004; 20 ID. 626. THAT IS TRUE EVEN THOUGH THE PRIOR EMPLOYMENT WAS NOT SUBJECT TO THE CLASSIFICATION ACT. 22 COMP. GEN. 925. CONSEQUENTLY, THE INITIAL SALARY RATE OF A REINSTATED EMPLOYEE NEED NOT, AS A MATTER OF LAW, BE THE MINIMUM SALARY RATE OF THE GRADE TO WHICH AN EMPLOYEE IS REINSTATED. THE RULE IN EFFECT PRIOR TO JULY 1, 1945, WAS THAT EMPLOYEES MAY BE REINSTATED WITHIN ADMINISTRATIVE DISCRETION AT AN INITIAL SALARY RATE NOT IN EXCESS OF THAT WHICH WAS RECEIVED WHEN LAST SEPARATED FROM THE SERVICE EXCEPT WHERE AN INCREASE OVER THAT RATE IS NECESSARY TO PAY THE MINIMUM SALARY RATE OF THE GRADE TO WHICH REINSTATED. 16 COMP. GEN. 598; 20 ID. 318.

SECTION 405 (A) OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 300, INCREASES THE BASIC SALARY RATES PRESCRIBED BY THE CLASSIFICATION ACT. PROVISION APPEARS IN THE STATUTE EITHER AUTHORIZING OR PRECLUDING THE GRANTING OF THE BENEFITS OF THE INCREASED RATES TO REINSTATED EMPLOYEES AT THE DISCRETION OF AN ADMINISTRATIVE OFFICE. HOWEVER, THE THEORY OF THE LONG-STANDING REINSTATEMENT RULE--- TO MAINTAIN EMPLOYEES IN THE SAME RELATIVE STATUS WITH OTHER EMPLOYEES AS TO SALARY THAT THEY LAST HELD IN THE FEDERAL SERVICE--- JUSTIFIES THE GRANTING OF THE INCREASED RATES TO REINSTATED EMPLOYEES.

THEREFORE, THE BASIC SALARY RATE ACTUALLY RECEIVED AT THE TERMINATION OF AN EMPLOYEE'S LAST PERIOD OF FEDERAL SERVICE PRIOR TO JULY 1, 1945, REGARDLESS OF THE LAW OR ADMINISTRATIVE REGULATION HAVING THE FORCE AND EFFECT OF LAW UNDER WHICH SUCH BASIC SALARY RATE WAS PAID, PROPERLY MAY BE INCREASED BY THE FORMULA PRESCRIBED BY SECTION 405 (A) OF THE NEW PAY STATUTE TO DETERMINE THE MAXIMUM BASIC SALARY RATE WHICH MAY BE PAID INITIALLY TO AN EMPLOYEE REINSTATED ON OR AFTER JULY 1, 1945, IN A POSITION SUBJECT TO THE CLASSIFICATION ACT.

IN 24 COMP. GEN. 341, IT WAS HELD, QUOTING FROM THE SYLLABUS:

WHERE THERE EXISTS NO ADMINISTRATIVE REGULATION, PRACTICE, OR POLICY TO DENY, UPON TRANSFER OF EMPLOYEES TO OTHER POSITIONS EITHER IN THE SAME OR DIFFERENT AGENCY, THE WITHIN-GRADE SALARY ADVANCEMENTS PREVIOUSLY ATTAINED UNDER THE ACT OF AUGUST 1, 1941, AND ADMINISTRATIVE ERROR IN TRANSFERRING AN EMPLOYEE AT A SALARY RATE WHICH DID NOT SAVE SUCH ADVANCEMENTS TO HIM MAY BE CORRECTED RETROACTIVELY EFFECTIVE FROM THE DATE OF THE TRANSFER SO AS TO SAVE THE LAWFUL SALARY RATE RECEIVED PRIOR TO THE TRANSFER, PROVIDED THERE WAS NO PURPOSE TO REDUCE THE EMPLOYEE FOR ANY OTHER REASON. COMP. GEN. 791, AMPLIFIED.

IN VIEW OF YOUR DEFINITE ASSERTION THAT THE EMPLOYEE IN QUESTION ONE WOULD HAVE BEEN GIVEN AN INCREASE TO $3,522.60 HAD SHE REMAINED IN THE UNCLASSIFIED POSITION ON AND AFTER JULY 1, 1946, IN ACCORDANCE WITH AN ESTABLISHED PRACTICE WITH RESPECT TO UNCLASSIFIED POSITIONS, THE FAILURE TO GIVE HER THE COMPARABLE RATE OF COMPENSATION WHEN TRANSFERRING HER TO A CLASSIFIED POSITION NOW MAY BE CORRECTED, AND SHE NOW MAY BE GIVEN THAT RATE OF COMPENSATION IN THE CLASSIFIED GRADE CAF 7, EFFECTIVE FROM JULY 1, 1946.

WITH RESPECT TO QUESTION 2, HOWEVER, THE EMPLOYEE IN THAT CASE WAS NOT GIVEN ANY INCREASE IN COMPENSATION JULY 1, 1946, BUT CONTINUED TO RECEIVE THE SAME RATE OF COMPENSATION AFTER THAT DATE AND UNTIL HER TRANSFER TO THE CLASSIFIED POSITION AUGUST 1, 1946. ACCORDINGLY, THE ONLY RATE OF COMPENSATION FOR CONSIDERATION IN ESTABLISHING THE PROPER RATE PAYABLE IN THE CLASSIFIED POSITION IS THE RATE SHE ACTUALLY WAS IN RECEIPT OF ON JULY 31, 1946, OR $2,870, WHICH, UNDER THE GENERAL RULE WITH RESPECT TO COMPENSATION INITIALLY PAID UPON TRANSFERS, THERE BEING NO IDENTICAL RATE IN THE CLASSIFIED GRADE, WOULD ENTITLE HER TO THE NEXT LOWER RATE OF COMPENSATION, OR $2,770.20.