B-80634, NOVEMBER 1, 1948, 28 COMP. GEN. 277

B-80634, NOVEMBER 1, 1948, 28 COMP. GEN. 277

COMPENSATION - RESTORATION TO APPROPRIATE STEP IN GRADE UPON EFFICIENCY RATING APPEAL - EFFECTIVE DATE WHERE AN EMPLOYEE'S SALARY WAS REDUCED TO THE MINIMUM OF HIS GRADE DUE TO AN "UNSATISFACTORY" EFFICIENCY RATING WHICH WAS ADJUSTED TO "FAIR" UPON APPEAL, THE RESTORATION OF THE EMPLOYEE TO THE SALARY RATE WITHIN THE GRADE COMMENSURATE WITH THE "FAIR" EFFICIENCY RATING IS IN THE NATURE OF A CORRECTION OF AN ADMINISTRATIVE ERROR AND DOES NOT CONSTITUTE A RETROACTIVE INCREASE IN COMPENSATION, SO THAT SUCH EMPLOYEE, IN CONSONANCE WITH CHAPTER E1-35 OF THE FEDERAL PERSONNEL MANUAL, IS ENTITLED TO HAVE THE RESTORATION MADE EFFECTIVE RETROACTIVELY TO THE DATE OF REDUCTION. COMP. GEN. 486, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF AGRICULTURE, NOVEMBER 1, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF SEPTEMBER 29, 1948, REQUESTING A DECISION WHETHER ACTION MAY BE TAKEN RETROACTIVELY TO ADJUST AN EMPLOYEE'S SALARY TO THE APPROPRIATE STEP COMMENSURATE WITH AN EFFICIENCY RATING OF " FAIR" (REDUCTION OF ONE STEP WHEN AN EMPLOYEE IS RECEIVING A SALARY RATE ABOVE THE MIDDLE OF HIS GRADE), FOLLOWING AN APPEAL FROM A RATING OF " UNSATISFACTORY" AS OF THE DATE ORIGINAL ACTION WAS TAKEN TO REDUCE THE EMPLOYEE'S SALARY TO THE MINIMUM RATE OF THE GRADE BECAUSE OF THE UNSATISFACTORY EFFICIENCY RATING.

YOUR QUESTION CONCERNS AN EMPLOYEE WHO RECEIVED AN UNSATISFACTORY EFFICIENCY RATING WHILE SERVING AS A CHEMIST IN GRADE P-3, AT A SALARY RATE OF $4,651.20 PER ANNUM (ONE STEP ABOVE THE MIDDLE OF THE GRADE). A RESULT OF SUCH RATING, HE WAS ASSIGNED TO ANOTHER LINE OF WORK IN THE SAME GRADE AND REDUCED TO THE MINIMUM RATE THEREOF EFFECTIVE JULY 1, 1947 ($4,149.60), PURSUANT TO INSTRUCTIONS OF THE CIVIL SERVICE COMMISSION. UPON APPEAL, THE EMPLOYEE'S EFFICIENCY RATING WAS RAISED TO " FAIR" WHICH ONLY REQUIRED A REDUCTION OF THE EMPLOYEE'S SALARY TO THE MIDDLE OF THE GRADE ($4,525.80 PER ANNUM PRIOR TO JULY 1, 1948), THE EMPLOYEE BEING ONE STEP ABOVE THE MIDDLE OF HIS GRADE. THEREFORE, THE QUESTION ARISES AS TO WHETHER THE SALARY RATE OF $4,525.80 PER ANNUM SHOULD PREVAIL FROM JULY 1, 1947, OR MERELY FROM THE DATE THE REVISION OF THE EFFICIENCY RATING WAS MADE.

CHAPTER E1-35 OF THE FEDERAL PERSONAL MANUAL PROVIDES, IN PERTINENT PART, AS FOLLOWS:

UPON RECEIPT OF THE ANNOUNCED DECISION OF THE BOARD OF REVIEW MAKING AN ADJUSTMENT IN THE EFFICIENCY RATING OF AN EMPLOYEE, THE DEPARTMENT SHALL CAUSE THE ADJUSTED EFFICIENCY RATING TO BE SUBSTITUTED IN ITS OFFICIAL RECORDS FOR THE ORIGINAL EFFICIENCY RATING IN EACH PLACE WHERE THE ORIGINAL EFFICIENCY RATING WAS RECORDED, SHALL RECONSIDER ANY AND ALL ADMINISTRATIVE ACTIONS BASED ON THE ORIGINAL EFFICIENCY RATING, AND INSOFAR AS POSSIBLE UNDER THE LAW AND REGULATIONS AND IN THE PUBLIC INTEREST, REDETERMINE AND ADJUST SUCH ADMINISTRATIVE ACTIONS TO CONFORM TO THE ADJUSTED EFFICIENT RATING.

YOU REFER TO THE DECISION IN 23 COMP. GEN. 486, WHICH HELD AS FOLLOWS (QUOTING THE FIRST PARAGRAPH OF THE SYLLABUS):

WHERE, DUE TO A REDUCTION IN FORCE, AN EMPLOYEE WITH AN EFFICIENCY RATING OF "FAIR-7" WAS REDUCED IN GRADE AND SALARY, AND SUBSEQUENTLY RESTORED TO HIS FORMER GRADE AND SALARY BY REASON OF A DECISION OF AN EFFICIENCY RATING APPEALS BOARD CHANGING SUCH RATING TO "GOOD/5," THERE IS NO AUTHORITY UNDER THE CLASSIFICATION ACT OF 1923, AS AMENDED, EXECUTIVE ORDER NO. 9252, OR REGULATIONS OF THE CIVIL SERVICE COMMISSION TO PAY THE EMPLOYEE THE SALARY RATE, RETROACTIVELY EFFECTIVE AS OF THE DATE OF THE REDUCTION, OF THE HIGHER GRADE WHICH HE, IN FACT, DID NOT HOLD DURING THE PERIOD OF SUCH REDUCTION.

AS POINTED OUT IN YOUR LETTER, THAT RULE IS NOT NECESSARILY APPLICABLE TO THE INSTANT CASE SINCE THE EMPLOYEE THERE INVOLVED WAS REDUCED FROM ONE GRADE TO ANOTHER, WHEREAS HERE, THE EMPLOYEE REMAINED IN THE SAME GRADE, ALTHOUGH BEING ASSIGNED TO A DIFFERENT LINE OF WORK AND REDUCED IN SALARY TO THE MINIMUM RATE IN THAT GRADE.

ACCORDINGLY, IN LINE WITH THE TENOR OF CHAPTER E1-35 OF THE FEDERAL PERSONNEL MANUAL, SUPRA, THE RESTORATION OF THE EMPLOYEE TO THE SALARY RATE HE WOULD HAVE RECEIVED (EFFECTIVE JULY 1, 1947) IF THE EFFICIENCY RATING OF " FAIR" HAD BEEN GIVEN IN THE FIRST INSTANCE IS NOT TO BE REGARDED AS CONTRAVENING THE RULE THAT INCREASES IN COMPENSATION MAY NOT BE GRANTED RETROACTIVELY, BUT IS RATHER IN THE NATURE OF A CORRECTION OF AN ADMINISTRATIVE ERROR. 24 COMP. GEN. 341. UPON THAT VIEW, THE EMPLOYEE IS ENTITLED TO BE RESTORED TO THE SALARY OF $4,525.80 PER ANNUM EFFECTIVE THE SAME DATE THAT THE ORIGINAL ACTION WAS TAKEN TO REDUCE HIS SALARY TO $4,149.60 PER ANNUM, NAMELY, JULY 1, 1947. IN OTHER WORDS, YOUR QUESTION (A) ANSWERED IN THE AFFIRMATIVE.