B-83051, FEBRUARY 11, 1949, 28 COMP. GEN. 455

B-83051, FEBRUARY 11, 1949, 28 COMP. GEN. 455

COMPENSATION - INITIAL SALARY RATES - USE OF PRIOR SALARY RATE IN LEGISLATIVE OR JUDICIAL BRANCH UPON APPOINTMENT IN A POSITION UNDER THE CLASSIFICATION ACT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT, THE SALARY RATES ATTAINED BY EMPLOYEES IN POSITIONS IN AGENCIES UNDER THE LEGISLATIVE OR JUDICIAL BRANCH OF THE GOVERNMENT--- NOT OTHERWISE SUBJECT TO THE CLASSIFICATION ACT--- MAY NOT BE USED AS A BASIS FOR FIXING THEIR INITIAL SALARY RATES ABOVE THE MINIMUM OF THE GRADE, UNDER THE RULE IN 26 COMP. GEN. 368, RESPECTING THE FIXING OF INITIAL SALARY RATES OF EMPLOYEES UPON TRANSFER, PROMOTION, REINSTATEMENT, ETC., IN CLASSIFIED POSITIONS ON THE BASIS OF THE HIGHEST RATE ATTAINED IN ANY PRIOR GOVERNMENT POSITION.

COMPTROLLER GENERAL WARREN TO THE FEDERAL WORK ADMINISTRATOR, FEBRUARY 11, 1949:

THERE HAS BEEN CONSIDERED YOUR LETTER OF JANUARY 26, 1949, REQUESTING A DECISION AS TO THE INITIAL SALARY RATE PROPERLY PAYABLE TO AN INDIVIDUAL WHO FORMERLY OCCUPIED THE POSITION OF CHIEF CLERK OF A SENATE COMMITTEE, UPON HIS PROPOSED APPOINTMENT TO A POSITION IN THE FEDERAL WORKS AGENCY.

IT IS STATED IN YOUR LETTER THAT THE INDIVIDUAL CONCERNED, IN HIS CAPACITY AS CHIEF CLERK OF A SENATE COMMITTEE, WAS PAID SALARY AT THE RATE OF $10,330 PER ANNUM AND THAT IT IS PROPOSED TO APPOINT HIM AS SPECIAL ASSISTANT GENERAL COUNSEL, FEDERAL WORKS AGENCY, CLASSIFICATION ACT GRADE P-7, THE MINIMUM AND MAXIMUM SALARIES OF WHICH ARE $8,509.50 AND $9,706.50, RESPECTIVELY. THE QUESTION AS TO THE INITIAL SALARY RATE PROPERLY PAYABLE WITHIN THE SALARY RANGE PRESCRIBED FOR GRADE P-7 APPARENTLY HAS ARISEN BECAUSE OF DOUBT AS TO THE APPLICABILITY TO THE INSTANT CASE OF THE RULE ENUNCIATED IN OFFICE DECISION OF NOVEMBER 7, 1946, 26 COMP. GEN. 368, TO THE EFFECT THAT THE INITIAL SALARY RATE FOR EMPLOYEES IN CLASSIFICATION ACT POSITIONS TO WHICH TRANSFERRED, PROMOTED, DEMOTED, REINSTATED, ETC., MAY BE FIXED AT A RATE WITHIN THE GRADE TO WHICH TRANSFERRED UP TO THE HIGHEST RATE ATTAINED IN ANY PRIOR GOVERNMENT POSITION.

BEFORE DISCUSSING THE APPLICABILITY OF THE ABOVE-MENTIONED RULE TO THE CASE PRESENTED IN YOUR LETTER, IT IS DEEMED PERTINENT TO REFER BRIEFLY TO THE BACKGROUND THEREOF. SECTION 6 OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, 1490, PROVIDES, INTER ALIA, THAT, IN DETERMINING THE COMPENSATION TO BE ESTABLISHED INITIALLY FOR THE SEVERAL EMPLOYEES COMING WITHIN THE PURVIEW OF THAT ACT,"ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.' AT AN EARLY DATE AFTER THE ENACTMENT OF THE SAID CLASSIFICATION ACT IT WAS HELD THAT TRANSFERS, PROMOTIONS, DEMOTIONS, REINSTATEMENTS, ETC., DID NOT CONSTITUTE "NEW APPOINTMENTS" WITHIN THE MEANING OF THAT TERM AS USED IN THE SAID SECTION 6 OF THAT ACT SO AS TO REQUIRE THE PAYMENT OF THE MINIMUM SALARY RATE PRESCRIBED FOR THE GRADE TO WHICH TRANSFERRED, DEMOTED, PROMOTED, REINSTATED, ETC. VARIOUS RULES HAVE BEEN LAID DOWN FOR THE DETERMINATION OF THE INITIAL SALARY RATE PAYABLE UNDER SUCH CIRCUMSTANCES, CULMINATING IN THE RULE SET FORTH IN 26 COMP. GEN. 368, SUPRA.

THE SAID CLASSIFICATION ACT IS APPLICABLE EXCLUSIVELY TO POSITIONS IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT--- AS DISTINGUISHED FROM THE LEGISLATIVE AND JUDICIAL BRANCHES THEREOF--- WITH THE EXCEPTION OF POSITIONS IN CERTAIN OTHER FEDERAL AGENCIES SPECIFICALLY INCLUDED THEREUNDER. HENCE, THE REQUIREMENT IN SECTION 6 OF THAT ACT THAT ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM SALARY RATE OF THE GRADE NECESSARILY APPLIES TO NEW APPOINTMENTS TO POSITIONS IN THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT OR IN THE SPECIFICALLY NAMED AGENCIES NOT IN THE EXECUTIVE BRANCH. CONSEQUENTLY, THE RULE SET OUT IN THE DECISION OF NOVEMBER 7, 1946, SUPRA, CONSTITUTING, AS IT WERE, AN EXCEPTION TO THE INITIAL SALARY RATE REQUIREMENTS OF THE SAID SECTION 6 OF THE CLASSIFICATION ACT, LIKEWISE IS FOR APPLICATION ONLY TO PERSONNEL ACTIONS OF THE CHARACTER DESCRIBED THEREIN WHICH INVOLVE POSITIONS IN THE EXECUTIVE BRANCH OR IN THE OTHER NAMED AGENCIES. ACCORDINGLY, IN THE APPLICATION OF THAT RULE, THERE ARE NOT FOR CONSIDERATION SALARY RATES ATTAINED IN POSITIONS IN AGENCIES UNDER THE LEGISLATIVE OR JUDICIAL BRANCH OF THE FEDERAL GOVERNMENT--- NOT OTHERWISE SUBJECT TO THE CLASSIFICATION ACT. SEE 26 COMP. GEN. 601; ID. 664; 28 ID. 71.

IN THE LIGHT OF THE FOREGOING, YOU ARE ADVISED THAT, UPON APPOINTMENT OF THE INDIVIDUAL REFERRED TO IN YOUR LETTER TO A POSITION UNDER THE CLASSIFICATION ACT IN THE FEDERAL WORKS AGENCY, HIS INITIAL SALARY RATE MUST BE FIXED AT THE MINIMUM SALARY RATE PRESCRIBED FOR THE GRADE TO WHICH THE POSITION IS ALLOCATED.