B-87225, JULY 12, 1949, 29 COMP. GEN. 13

B-87225, JULY 12, 1949, 29 COMP. GEN. 13

COMPENSATION - WITHIN-GRADE SALARY ADVANCEMENTS - ELIGIBILITY UNDER APPOINTMENTS TO EXCEPTED POSITIONS APPOINTMENTS MADE TO EXCEPTED POSITIONS FOR PERIODS IN EXCESS OF ONE YEAR UNDER SCHEDULE A, SECTION 6.104 (A) (4) OF CIVIL SERVICE RULES AND REGULATIONS, NOT CONTAINING ANY DESIGNATION DESCRIBING THE POSITIONS OR THE APPOINTMENTS AS TEMPORARY, MAY BE CONSIDERED AS BEING PERMANENT WITHIN THE PURVIEW OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND THE CIVIL SERVICE REGULATIONS DEFINING THE TERM "PERMANENT POSITIONS" FOR PERIODIC WITHIN-GRADE ADVANCEMENT PURPOSES, SO THAT SUCH EMPLOYEES MAY BE GRANTED WITHIN-GRADE SALARY ADVANCEMENTS IN ACCORDANCE WITH SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF DEFENSE, JULY 12, 1949:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1949, REQUESTING DECISION WHETHER THIS OFFICE WOULD RAISE ANY OBJECTION TO WITHIN-GRADE SALARY ADVANCES TO SPECIAL ADVISERS TO THE SECRETARY OF DEFENSE, APPOINTED AS SUCH FOR A PERIOD TO END DECEMBER 31, 1952, AND TO MANAGERS OR SECRETARIES OF COMMITTEES APPOINTED FOR NOT TO EXCEED TWO YEARS, SUCH APPOINTMENTS HAVING BEEN MADE UNDER SCHEDULE A, SECTION 6.104 (A) (4) OF THE CIVIL SERVICE RULES AND REGULATIONS.

IN B-84497, MAY 2, 1949, 28 COMP. GEN. 628, REFERRED TO IN YOUR SUBMISSION, IT WAS HELD THAT ALL EMPLOYEES APPOINTED TO EXCEPTED POSITIONS DESIGNATED BY THE APPOINTING AUTHORITY AS "TEMPORARY" WOULD NOT BE ENTITLED TO WITHIN-GRADE ADVANCES AS THEY WERE HOLDING TEMPORARY AND NON- PERMANENT POSITIONS. THAT DECISION WAS BASED UPON SECTION 25,221 OF THE CIVIL SERVICE RULES AND REGULATIONS, WHICH PROVIDES:

* * * "PERMANENT POSITIONS" MEANS POSITIONS OTHER THAN THOSE DESIGNATED AS TEMPORARY BY LAW, OTHER THAN THOSE ESTABLISHED FOR DEFINITE PERIODS OF ONE YEAR OR LESS, AND OTHER THAN THOSE TO WHICH TEMPORARY APPOINTMENTS ARE MADE UNDER CIVIL SERVICE RULE II AND THE COMMISSION'S REGULATIONS THEREUNDER (SEC. 2.114 OF THIS CHAPTER). EXCEPTED POSITIONS FILLED BY APPOINTMENTS DESIGNATED BY THE APPOINTING AUTHORITY AS TEMPORARY (ALL VARIATIONS OF TEMPORARY, INCLUDING THOSE STATED ABOVE, EXCEPTING ONLY WAR SERVICE INDEFINITE) ARE NOT PERMANENT POSITIONS FOR THE PURPOSE OF THIS SUBPART. POSITIONS TO WHICH APPOINTMENTS WERE MADE UNDER THE WAR SERVICE REGULATIONS FOR THE DURATION OF THE WAR AND SIX MONTHS THEREAFTER ARE PERMANENT POSITIONS WITHIN THE SCOPE OF THIS DEFINITION. POSITIONS IN WHICH EMPLOYEES ARE SERVING DEFINITE PROBATIONARY OR TRIAL PERIODS UNDER CIVIL-SERVICE RULES, OR OTHER REGULATIONS ISSUED BY THE COMMISSION, SHALL NOT, FOR THAT REASON ALONE, BE REGARDED AS BEING OTHER THAN PERMANENT POSITIONS. POSITIONS FILLED BY TEMPORARY APPOINTMENT UNDER THE TEMPORARY CIVIL SERVICE REGULATIONS ARE TEMPORARY FOR THE PURPOSE OF THIS SUBPART. (ITALICS SUPPLIED.)

AS THE EXCEPTED APPOINTMENTS, REFERRED TO BY YOU, DO NOT CONTAIN ANY DESIGNATION DESCRIBING THE POSITIONS OR THE APPOINTMENTS AS TEMPORARY AND ARE IN EXCESS OF ONE YEAR, THE APPOINTMENTS MAY BE CONSIDERED AS BEING PERMANENT WITHIN THE PURVIEW OF THE CLASSIFICATION ACT OF 1923, AS AMENDED, AND THE CIVIL SERVICE REGULATIONS ABOVE. ACCORDINGLY, THIS OFFICE WILL OFFER NO OBJECTION TO GRANTING SUCH EMPLOYEES WITHIN-GRADE SALARY ADVANCES IN ACCORDANCE WITH THE CLASSIFICATION ACT, AS AMENDED BY SECTION 402 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, 59 STAT. 299.