B-77890, JULY 30, 1948, 28 COMP. GEN. 71

B-77890, JULY 30, 1948, 28 COMP. GEN. 71

INITIAL SALARY RATES UPON TRANSFER, PROMOTION, ETC.; TRANSFERS BETWEEN CLASSIFIED AND UNCLASSIFIED POSITIONS - PERIODIC-ADVANCEMENT WAITING PERIOD COMMENCEMENT THE INITIAL SALARY RATE OF EMPLOYEES IN CLASSIFICATION ACT POSITIONS TO WHICH TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, OR REEMPLOYED MAY BE FIXED AT A RATE WITHIN THE RANGE OF SALARIES IN THE GRADE TO WHICH TRANSFERRED, ETC., UP TO THE HIGHEST RATE ATTAINED IN ANY PRIOR CLASSIFIED OR UNCLASSIFIED POSITION IN AN AGENCY, LEGISLATIVE OR EXECUTIVE, GENERALLY SUBJECT TO THE CLASSIFICATION ACT, REGARDLESS OF THE SOURCE OF THE FUNDS FROM WHICH THE COMPENSATION WAS PAID. 26 COMP. GEN. 530; ID. 601; ID 664, AMPLIFIED. WHERE AN EMPLOYEE WAS TRANSFERRED FROM A POSITION UNDER THE CLASSIFICATION ACT TO AN UNCLASSIFIED POSITION AT A SALARY RATE IN EXCESS OF THE "EQUIVALENT INCREASE IN COMPENSATION" APPLICABLE TO THE CLASSIFIED GRADE, AS DEFINED IN SECTION 25,223 OF THE FEDERAL EMPLOYEES PAY REGULATIONS, UPON THE RETRANSFER OF THE EMPLOYEE TO A CLASSIFIED POSITION, THE 12- OR 18-MONTH WAITING PERIOD PRESCRIBED FOR PERIODIC WITHIN-GRADE ADVANCEMENT PURPOSES BEGAN TO RUN FROM THE DATE THE EMPLOYEE WAS TRANSFERRED TO THE UNCLASSIFIED POSITION.

ACTING COMPTROLLER GENERAL YATES TO THE LIBRARIAN OF CONGRESS, JULY 30, 1948:

I HAVE YOUR LETTER OF JUNE 28, 1948, REQUESTING DECISION UPON THE MATTER THEREIN PRESENTED, AS FOLLOWS:

THERE ARE RESPECTFULLY SUBMITTED FOR DECISION THE FOLLOWING QUESTIONS RELATING TO THE FIXING OF SALARY RATES FOR EMPLOYEES APPOINTED TO POSITIONS IN THE LIBRARY OF CONGRESS:

1. WITH REFERENCE TO THE DECISION APPEARING IN 26 COMP. GEN. 664, IN WHICH IT IS DECIDED THAT THE SALARY RATE PREVIOUSLY RECEIVED BY AN EMPLOYEE SERVING IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT MAY NOT BE CONSIDERED IN FIXING HIS INITIAL RATE UPON EMPLOYMENT OR REEMPLOYMENT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, A DECISION IS DESIRED AS TO WHETHER THIS PRINCIPLE APPLIES IN THE CASE OF AN EMPLOYEE WHO HAS SERVED IN THE EXECUTIVE BRANCH OF THE GOVERNMENT IN A CLASSIFIED POSITION AND IS APPOINTED TO A CLASSIFIED POSITION IN THE LIBRARY OF CONGRESS. IF THE DECISION IS IN THE AFFIRMATIVE IS IT REQUIRED THAT ANY SALARY ADJUSTMENTS BE MADE IN CASES HERETOFORE PROCESSED. A FURTHER DECISION IS DESIRED AS TO WHETHER THE SAME PRINCIPLE APPLIES IN THE CASE OF AN EMPLOYEE WHO HAS PREVIOUS SERVICE IN THE LEGISLATIVE BRANCH OF THE GOVERNMENT IN EITHER A CLASSIFIED OR UNCLASSIFIED POSITION AND IS APPOINTED TO A POSITION IN THE LIBRARY OF CONGRESS.

2. WITH REFERENCE TO THE DECISION APPEARING IN 24 COMP. GEN. 275, IN WHICH IT IS DECIDED THAT WHEN AN EMPLOYEE IS TRANSFERRED FROM A POSITION NOT UNDER THE CLASSIFICATION ACT TO ONE THAT IS SUBJECT THERETO, THE UNCLASSIFIED SALARY RATE MAY BE CONSIDERED IN FIXING THE SALARY RATE IN THE CLASSIFIED POSITION, A DECISION IS DESIRED AS TO WHETHER THIS PRINCIPLE APPLIES IN ANY INSTANCE WHERE THE FUNDS ARE FROM A NON- APPROPRIATED SOURCE, OR WHEN FUNDS ARE APPROPRIATED FOR NON CLASSIFIED POSITIONS. FOR EXAMPLE, THE LIBRARIAN OF CONGRESS IS AUTHORIZED TO ESTABLISH THE RATE OF PAY FOR EMPLOYEES APPOINTED TO POSITIONS PAID FROM GIFT OR TRUST FUNDS, SUCH POSITIONS BEING UNDER THE ADMINISTRATIVE DIRECTION AND SUPERVISION OF THE LIBRARY OF CONGRESS. IN SUCH CASES, MAY THE SALARY RATE OF AN EMPLOYEE APPOINTED TO A POSITION UNDER THE CLASSIFICATION ACT? DOES PREVIOUS GOVERNMENT EMPLOYMENT AFFECT THIS DECISION?

3. IN ANY INSTANCE WHERE AN EMPLOYEE IS TRANSFERRED FROM A POSITION UNDER THE CLASSIFICATION ACT TO AN UNCLASSIFIED POSITION PAID FROM EITHER APPROPRIATED OR NON-APPROPRIATED FUNDS AND THE SALARY RATE ATTACHING THERETO IS IN EXCESS OF AN EQUIVALENT INCREASE, UPON RETURN TO A CLASSIFIED POSITION IS IT REQUIRED THAT A NEW WAITING PERIOD FROM THE DATE OF TRANSFER TO THE UNCLASSIFIED POSITION BE ADHERED TO IN DETERMINING HIS ELIGIBILITY FOR THE PERIODIC SALARY ADVANCEMENT?

YOUR DECISIONS WITH RESPECT TO THESE QUESTIONS WILL BE APPRECIATED.

SECTION 2 OF THE CLASSIFICATION ACT, 42 STAT. 1488, DEFINED DEPARTMENT" AS USED IN THAT ACT, AS FOLLOWS:

SEC. 2. * * *

THE TERM "DEPARTMENT" MEANS AN EXECUTIVE DEPARTMENT OF THE UNITED STATES GOVERNMENT, A GOVERNMENTAL ESTABLISHMENT IN THE EXECUTIVE BRANCH OF THE UNITED STATES GOVERNMENT WHICH IS NOT A PART OF AN EXECUTIVE DEPARTMENT, THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, THE BOTANIC GARDEN, LIBRARY OF CONGRESS, LIBRARY BUILDING AND GROUNDS, GOVERNMENT PRINTING OFFICE, AND THE SMITHSONIAN INSTITUTION.

IT WILL BE OBSERVED THAT THE CLASSIFICATION ACT, WITH THE EXCEPTION OF THE PARTICULAR AGENCIES NAMED IN THE ABOVE DEFINITION, PRIMARILY IS FOR APPLICATION TO THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IT WAS FOR THAT REASON THAT THE DECISION IN 26 COMP. GEN. 601 AND 664 STATED THAT THE RULE, PERMITTING THE PAYMENT UPON REEMPLOYMENT, ETC., IN A CLASSIFIED POSITION AT THE HIGHEST SALARY RATE PREVIOUSLY PAID IN ANY PRIOR GOVERNMENT POSITION, WAS INTENDED PRIMARILY TO RELATE TO PRIOR POSITIONS IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. THERE WAS NO INTENTION, HOWEVER, TO BAR FROM CONSIDERATION THE SALARY RECEIVED BY AN EMPLOYEE IN A PREVIOUS POSITION UNDER THE CLASSIFICATION ACT IRRESPECTIVE OF THE BRANCH OF SERVICE IN WHICH LOCATED. THE GENERAL RULES REGARDING THE INITIAL SALARY RATES WERE CONSOLIDATED AND RESTATED IN 26 COMP. GEN. 530, AS FOLLOWS:

THE INITIAL SALARY RATE OF EMPLOYEES IN CLASSIFICATION ACT POSITION TO WHICH TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, OR REEMPLOYED IN THE SAME OR DIFFERENT AGENCY, INCLUDING CASES OF REALLOCATION OF OCCUPIED POSITIONS FROM CLASSIFICATION ACT GRADES AND FROM GRADES UNDER EXECUTIVE ORDER NO. 6746, MAY, WITHIN ADMINISTRATIVE DISCRETION AND AVAILABLE FUNDS, BE FIXED AT A RATE WITHIN THE RANGE OF SALARIES IN THE GRADE TO WHICH TRANSFERRED, ETC., UP TO THE HIGHEST RATE ATTAINED IN ANY PRIOR POSITION IN THE EXECUTIVE BRANCH OF THE GOVERNMENT (INCLUDING WHOLLY OWNED GOVERNMENT CORPORATIONS), OR, IF SUCH HIGHEST RATE IS NOT IDENTICAL) WITH ANY RATE IN THE GRADE, THE NEXT HIGHER RATE THEREIN MAY BE PAID; HOWEVR, SUCH RULE, AS HEREIN AMPLIFIED, MAY NOT BE APPLIED TO CASES HERETOFORE PROCESSED. 26 COMP. GEN. 368, AMPLIFIED.

THE RULE SO STATED EQUALLY IS FOR APPLICATION WHERE THE PRIOR POSITION WAS IN A CLASSIFIED OR IN AN UNCLASSIFIED POSITION IF IN AN AGENCY GENERALLY SUBJECT TO THE CLASSIFICATION ACT, WHETHER IN THE LEGISLATIVE OR EXECUTIVE BRANCH BUT WOULD NOT PERMIT CREDIT FOR PRIOR SERVICE IN AN UNCLASSIFIED POSITION IN A LEGISLATIVE AGENCY NOT SUBJECT TO THE CLASSIFICATION ACT.

WHAT IS STATED ABOVE WITH RESPECT TO QUESTION 1 EQUALLY IS APPLICABLE TO QUESTION 2--- THE SOURCE OF THE FUNDS FROM WHICH THE COMPENSATION IS PAID HAVING NO MATERIAL BEARING UPON THE MATTER.

QUESTION 3 IS ANSWERED IN THE AFFIRMATIVE--- IT BEING PROVIDED BY SECTION 25.223 OF TE CIVIL SERVICE REGULATIONS THAT AN EQUIVALENT INCREASE IN COMPENSATION MEANS "ANY INCREASE OR INCREASES IN BASIC COMPENSATION WHICH IN TOTAL, AT THE TIME SUCH INCREASE OR INCREASES ARE MADE, ARE EQUAL TO OR GREATER THAN THE SMALLEST COMPENSATION INCREMENT IN THE LOWEST GRADE IN WHICH THE EMPLOYEE HAS SERVED DURING THE TIME PERIOD OF TWELVE OR EIGHTEEN MONTHS, AS THE CASE MAY BE.'