B-68807, OCTOBER 28, 1947, 27 COMP. GEN. 257

B-68807, OCTOBER 28, 1947, 27 COMP. GEN. 257

CLASSIFICATION - REALLOCATION - EFFECTIVE DATE POSTPONEMENT IN THE ABSENCE OF A REGULATION OR STATUTE TO THE EFFECT THAT EMPLOYEES WITHOUT VETERAN'S PREFERENCE ARE ENTITLED TO A 30-DAY ADVANCE NOTICE IN CASE OF REDUCTION IN RANK BECAUSE OF REALLOCATIONS OF THEIR POSITIONS DOWNWARD--- AS DISTINGUISHED FROM DEMOTIONS DUE TO REDUCTION IN FORCE--- THERE IS NO AUTHORITY TO FURNISH 30-DAY ADVANCE NOTICES OF DOWNWARD REALLOCATIONS TO NON-PREFERENCE EMPLOYEES, SO AS TO CONTINUE TO PAY SUCH EMPLOYEES AT THEIR FORMER RATES OF COMPENSATION SUBSEQUENT TO THE BEGINNING OF THE PAY PERIOD CURRENT WHEN THE APPROVAL OF THE REALLOCATION BY THE CIVIL SERVICE COMMISSION WAS RECEIVED IN THE ADMINISTRATIVE OFFICE.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE ARMY, OCTOBER 28, 1947:

THERE HAS BEEN CONSIDERED YOUR LETTER OF AUGUST 14, 1947, AS FOLLOWS:

YOUR ADVICE IS RESPECTFULLY REQUESTED REGARDING THE PROPRIETY OF A POLICY FOLLOWED BY THE WAR DEPARTMENT FOR A CONSIDERATION PERIOD OF TIME INVOLVING THE GRANTING OF ADVANCE NOTICE TO THE EMPLOYEE CONCERNED IN THE EVENT OF ANY ADVERSE PERSONNEL ACTION. ON 22 MARCH 1946 A POLICY STATEMENT WAS ISSUED IN THE FORM OF WAR DEPARTMENT CIVILIAN PERSONNEL CIRCULAR NO. 34 WHICH PROVIDED THAT A 30 DAY ADVANCE NOTICE WOULD BE FURNISHED ALL EMPLOYEES, VETERAN OR NON VETERAN, IN THE EVENT OF "CHANGE TO LOWER GRADE," COPY ATTACHED.

INFORMAL EXCEPTION HAS BEEN TAKEN TO PAYMENTS MADE TO FOUR EMPLOYEES OF THE OFFICE OF THE CHIEF OF ENGINEERS IN THE DEPARTMENTAL SERVICE FOR THE PERIOD COVERED BY THEIR 30 DAY ADVANCE NOTICE. THE EXCEPTION IS BASED ON A DECISION OF THE COMPTROLLER GENERAL DATED 27 NOVEMBER 1928, (8 COMP. GEN. 275) WHICH HOLDS THAT THE ACCOUNTING RULE (ESTABLISHED BY 4 COMP. GEN. 280, 8 SEPTEMBER 1924) OF EFFECTING CHANGE IN GRADE ON THE FIRST DAY OF THE PAY PERIOD IN WHICH NOTICE OF CHANGE IN ALLOCATION OF THE POSITION IS RECEIVED FROM THE CIVIL SERVICE COMMISSION, IS APPLICABLE TO CHANGES FROM A HIGHER TO A LOWER GRADE, AS WELL AS FROM A LOWER TO A HIGHER GRADE. THE CASES IN QUESTION ARE ALL DOWNWARD "REALLOCATIONS.'

THE DEPARTMENT'S PRACTICE OF FURNISHING ADVANCE NOTICE IN CASE OF ALL CHANGES TO LOWER GRADE APPEARS LEGALLY SOUND IN VIEW OF THE ACT OF 12 AUGUST 1912 (5 U.S.C. 1940 ED. 652) WHICH REQUIRES THAT ADVANCE NOTICE OF "REDUCTION IN RANK" BE FURNISHED ANY EMPLOYEE IN THE CLASSIFIED SERVICE. SINCE THE ACT DOES NOT SPECIFY THE AMOUNT OF ADVANCE NOTICE TO BE GIVEN, AND IN THE ABSENCE OF AN INTERPRETATION OF THE ACT BY COMPETENT AUTHORITY TO THE CONTRARY, THE DEPARTMENT HAS CONSIDERED THAT IT HAS THE ADMINISTRATIVE AUTHORITY TO FIX A REASONABLE PERIOD OF ADVANCE NOTICE TO BE GIVEN TO EMPLOYEES OF THE WAR DEPARTMENT. IT IS RECOGNIZED OF COURSE, THAT THE VETERANS PREFERENCE ACT OF 1944 MAKES A 30 DAY NOTICE MANDATORY IN THE CASE OF ANY EMPLOYEE WITH VETERANS PREFERENCE. ANY CHANGE TO LOWER GRADE ACCOMPLISHED AS A PART OF A REDUCTION IN FORCE WOULD ALSO REQUIRE A 30 DAY ADVANCE NOTICE IN ACCORDANCE WITH THE RETENTION PREFERENCE REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION. IN VIEW OF THESE FIXED REQUIREMENTS IT APPEARED MOST EQUITABLE AND ADMINISTRATIVELY DESIRABLE TO ESTABLISH THE POLICY OF 30 DAYS ADVANCE NOTICE FOR ALL CHANGES TO LOWER GRADE FOR ALL WAR DEPARTMENT EMPLOYEES.

YOUR OPINION AS TO THE CORRECTNESS OF THE DEPARTMENT'S INTERPRETATION OF THE ACT OF 12 AUGUST 1912 AS INDICATED IN THE ATTACHED CIRCULAR WOULD BE VERY MUCH APPRECIATED. ALSO ADVICE IS REQUESTED AS TO WHETHER, IN THE LIGHT OF THE FOREGOING PRESENTATION, YOU WILL BE REQUIRED TO CONTINUE TO TAKE EXCEPTION TO THE GRANTING OF 30 DAY ADVANCE NOTICE IN THE CASE OF NONVETERAN EMPLOYEES WHOSE POSITIONS ARE REALLOCATED DOWNWARD.

THE INFORMAL EXCEPTIONS REFERRED TO IN YOUR LETTER PRESUMABLY RELATE TO POSITIONS OCCUPIED BY MARY E. EVERSON, JOHN H. STURGEON, ELLA E. WHITE, AND LAURA E. KIMBALL. INFORMATION OBTAINED FROM YOUR DEPARTMENT REVEALS THAT NOTICES OF APPROVAL BY THE CIVIL SERVICE COMMISSION OF DOWNWARD REALLOCATIONS OF THE PROVISIONS OF THE FIRST THREE EMPLOYEES WERE RECEIVED IN THE ADMINISTRATIVE OFFICE ON FEBRUARY 11, 1947, WHEREAS THE EMPLOYEES CONTINUED TO BE PAID AT THE HIGHER RATES OF COMPENSATION FROM FEBRUARY 9, 1947, THE BEGINNING OF THE PAY PERIOD CURRENT WHEN SUCH NOTICES WERE RECEIVED, TO APRIL 5, 1947. THE NOTICE OF APPROVAL OF THE REALLOCATION WITH RESPECT TO THE POSITION OF THE OTHER EMPLOYEE, LAURA E. KIMBALL, WAS RECEIVED ON JANUARY 30, 1947, AND SHE CONTINUED TO BE PAID COMPENSATION AT HER OLD SALARY RATE FROM JANUARY 26, 1947, THE BEGINNING OF THE PAY PERIOD CURRENT WHEN THAT NOTICE WAS RECEIVED, UNTIL APRIL 5, 1947.

THE ACT OF AUGUST 24, 1912 (NOT AUGUST 12, 1912, AS SHOWN IN YOUR LETTER), 37 STAT. 555, 5 U.S.C. 652, PRIMARILY IS CONCERNED WITH THE REMOVAL OF PERSONNEL FROM THE SERVICE FOR CAUSE AND THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE NEVER CONSIDERED THAT ACT AS APPLICABLE TO REALLOCATIONS OF POSITIONS UNDER THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, AS AMENDED.

THE RULE THAT THE REALLOCATION OF A POSITION IN THE DEPARTMENTAL SERVICE IS EFFECTIVE FROM THE BEGINNING OF THE PAY PERIOD CURRENT WHEN NOTICE OF THE APPROVAL OF THE REALLOCATION BY THE CIVIL SERVICE COMMISSION IS RECEIVED IN THE ADMINISTRATIVE OFFICE IS ONE OF LONG STANDING. IN THAT CONNECTION IT WAS STATED IN 10 COMP. GEN. 538, THAT IN THE ABSENCE OF ANY LAW TO THE CONTRARY, SAID RULE MAY BE CONSIDERED AS PERMANENTLY ESTABLISHED.

WHILE THE CIVIL SERVICE COMMISSION HAS ISSUED REGULATIONS UNDER SECTION 14 OF THE VETERANS' PREFERENCE ACT OF 1944, 58 STAT. 390, TO THE EFFECT THAT PREFERENCE ELIGIBLES THEREUNDER ARE ENTITLED TO A 30 DAY ADVANCE NOTICE IN CASE OF REDUCTION IN RANK BECAUSE OF REALLOCATIONS OF THEIR POSITIONS, I AM NOT AWARE OF ANY SIMILAR REGULATION OR STATUTE WITH RESPECT TO EMPLOYEES WITHOUT VETERAN'S PREFERENCE WHOSE POSITIONS ARE REALLOCATED DOWNWARD--- AS DISTINGUISHED FROM DEMOTIONS DUE TO A REDUCTION -IN-FORCE PROGRAM. HENCE, THERE APPEARS NO LEGAL REQUIREMENT FOR FURNISHING A 30-DAY ADVANCE NOTICE TO THAT CLASS OF EMPLOYEES WHERE SUCH NOTICE WILL NOT EXPIRE PRIOR TO THE BEGINNING OF THE PAY PERIOD CURRENT WHEN THE APPROVAL OF THE REALLOCATION BY THE CIVIL SERVICE COMMISSION IS RECEIVED IN THE ADMINISTRATIVE OFFICE.

IN THE LIGHT OF THE FOREGOING, THERE APPEARS REQUIRED THE CONCLUSION THAT THE AUDIT ACTION IN TAKING EXCEPTION TO THE PAYMENTS, PREVIOUSLY REFERRED TO, IS CORRECT, AND THAT EXCEPTIONS WILL CONTINUE TO BE TAKEN IN SIMILAR CASES.