B-140299, SEP. 2, 1959

B-140299, SEP. 2, 1959

TO MR. FRANK A. BOMBAY, INTERNAL REVENUE SERVICE:

YOUR LETTER OF JUNE 25, 1959, REQUESTS THAT WE REVIEW OUR OFFICE LETTER OF JUNE 17, 1959, REGARDING YOUR REPORTED INDEBTEDNESS TO THE GOVERNMENT FOR THE OVERPAYMENT OF COMPENSATION WHILE AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE.

YOU WERE PROMOTED FROM VALUATION ENGINEER (INDUSTRIAL PLANTS) GRADE GS- 897-12 (F) AT $9,530 PER ANNUM TO VALUATION ENGINEER (GENERAL) GRADE GS- 897-13 (F) AT $11,090 PER ANNUM, EFFECTIVE JUNE 29, 1958. THE PERSONNEL ACTION PROMOTING YOU TO THE TOP STEP OF GRADE GS-13 WAS MADE UNDER DEPARTMENTAL CIRCULAR 793, SUPPLEMENT NO. 33 OF THE CIVIL SERVICE COMMISSION ESTABLISHING ABOVE-MINIMUM RATES UNDER SECTION 803 (A) OF THE CLASSIFICATION ACT, 1949, AS AMENDED, 5 U.S.C. 1133 FOR CERTAIN PROFESSIONAL ENGINEERS AND SCIENTISTS. PRIOR TO THE EFFECTIVE DATE OF YOUR PROMOTION, SUPPLEMENT NO. 45, DATED JUNE 20, 1958, WAS ISSUED AS THE RESULT OF THE ENACTMENT OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT, 1958, 5 U.S.C. 1113, ESTABLISHING NEW ABOVE-THE-MINIMUM HIRING RATES UNDER SECTION 803. THE NEW MINIMUM RATE ESTABLISHED APPLYING TO YOUR OCCUPATIONAL CATEGORY WAS THE SECOND STEP IN GRADE GS 13, AT $10,130. CORRECTION OF THE ORIGINAL PERSONNEL ACTION WAS MADE TO CONFORM WITH THE NEW ESTABLISHED RATES ON FEBRUARY 3, 1959, ADJUSTING YOUR SALARY RATE FROM $11,090 TO $10,130 IN COMPLIANCE WITH SUPPLEMENT NO. 45 AND AS A RESULT OF THE ERROR IN THE ORIGINAL PERSONNEL ACTION YOU WERE OVERPAID FOR THE PERIOD FROM JUNE 29, 1958, THROUGH FEBRUARY 3, 1959, IN THE NET AMOUNT OF $492.30.

YOU SAY THAT SUPPLEMENT NO. 45 IS NOT APPLICABLE UPON YOUR PROMOTION BECAUSE IT PROVIDES THAT THE CONVERSION RATES IN THE ATTACHED TABLES DO NOT APPLY TO EMPLOYEES WHO WERE ON THE ROLLS BUT APPLIES ONLY FOR ADJUSTING ABOVE-MINIMUM HIRING RATES FOR RECRUITMENT PURPOSES. YOU ALSO SAY THAT CIVIL SERVICE REGULATION 25.104 (H) PROHIBITS THE SALARY REDUCTION OF AN EMPLOYEE WHOSE RATE WAS ABOVE THE MINIMUM HIRING RATE WHEN SUCH MINIMUM RATE IS DISCONTINUED OR REDUCED AND AS YOU WERE ON THE ROLLS AT THE TIME OF YOUR PROMOTION YOU BELIEVE YOU ARE ENTITLED TO THE MAXIMUM WAGE RATE OF GRADE GS-13 AS AUTHORIZED BY SUPPLEMENT NO. 33 OF DEPARTMENTAL CIRCULAR 793 AT THE ADJUSTED RATE UNDER THE FEDERAL EMPLOYEES SALARY INCREASE ACT.

SECTION 2 (B), SUBSECTIONS (6) AND (7) OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT, 72 STAT. 205, PROVIDES THAT EMPLOYEES ON THE ROLLS WHOSE ABOVE-MINIMUM SALARY RATE WAS ESTABLISHED UNDER AUTHORITY OF SECTION 803 OF THE CLASSIFICATION ACT BE ADJUSTED RETROACTIVELY FOR THE PERIOD OF TIME SERVED IN THE POSITION CONCERNED ON OR AFTER THE EFFECTIVE DATE OF THE ACT TO THE DATE OF ITS ENACTMENT, JUNE 20, 1958, ON THE BASIS OF THE INCREASED RATES ESTABLISHED BY THE ACT. SPECIFICALLY, YOUR SALARY RATE OF $8,645 AT THE TOP STEP OF GRADE GS 12 WAS ADJUSTED RETROACTIVELY FOR THIS PERIOD UNDER THE PROVISIONS OF THE ACT TO THE NEW INCREASED RATE OF $9,530. SINCE YOU WERE PROMOTED TO GS-13 AFTER THE DATE OF ENACTMENT, AND THUS BECAME ENTITLED TO RECEIVE BASIC COMPENSATION AT A HIGHER RATE THAN $9,530, THE PROVISIONS OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT, ABOVE, NO LONGER WERE APPLICABLE TO YOU. MOREOVER, AS INDICATED ABOVE, THE ABOVE-MINIMUM RATES ESTABLISHED BY SUPPLEMENT NO. 45, PURSUANT TO 5 U.S.C. 1133 (B), WHICH PROVIDES THAT SUCH ACTIONS OR REVISIONS BY THE COMMISSION SHALL HAVE THE FORCE AND EFFECT OF LAW, WERE IN EFFECT AT THE TIME OF YOUR PROMOTION. UNDER SECTION 25.104 (A) OF THE CIVIL SERVICE REGULATIONS YOUR SALARY, UPON PROMOTION, WAS TO BE SET AT NOT LESS THAN THE SPECIAL MINIMUM RATE. ALSO, CIVIL SERVICE REGULATION 25.104 (H) HAS NO APPLICATION SINCE THE SALARY RATE ALLOWABLE TO YOU IN YOUR NEW POSITION WAS REQUIRED BECAUSE OF THE SALARY RATE AUTHORIZED IN PROMOTION CASES UNDER 5 U.S.C. 1132 (B). SUPPLEMENT NO. 45 BY ITS TERMS INVOKED SECTION 2 (B) OF THE FEDERAL EMPLOYEES PAY ACT OF 1958 TO YOUR GS-12 POSITION, AND SECTION 25.105 (H) OF THE CIVIL SERVICE REGULATIONS WAS COMPLIED WITH. SECTION 25.105 (H) DOES NOT PURPORT TO INCREASE THE RATE OF COMPENSATION OTHERWISE ALLOWABLE AT THE TIME OF A PROMOTION. THEREFORE, UPON THE EFFECTIVE DATE OF YOUR PROMOTION YOU WERE ENTITLED ONLY TO THE ABOVE- MINIMUM RATE PRESCRIBED IN SUPPLEMENT NO. 45 FOR YOUR OCCUPATIONAL CATEGORY (SEE SECTION 25.104 (A), CIVIL SERVICE REGULATIONS) WHICH WAS THE SECOND STEP OF GRADE GS-13 AT $10,130 PER ANNUM.

YOU FURTHER SAY THAT YOU HAD BEEN PERFORMING THE DUTIES OF GRADE GS 13 AND HAD BEEN RECOMMENDED FOR A PROMOTION FOR MORE THAN A YEAR PRIOR TO THE EFFECTIVE DATE OF YOUR PROMOTION AND THEREFORE SHOULD BE CONSIDERED AS BEING ON THE ROLLS IN THAT POSITION PRIOR TO JUNE 20, 1958. THE RULE IS WELL ESTABLISHED THAT THE PERFORMANCE OF DUTIES OF A CLASSIFICATION HIGHER THAN THAT TO WHICH THE EMPLOYEE IS OFFICIALLY ASSIGNED DOES NOT, IN ITSELF, EFFECT A CHANGE IN CLASSIFICATION OR THAT MERE NOMINATIONS OR RECOMMENDATIONS BY SUPERVISORY OR PERSONNEL OFFICERS WHO ARE NOT VESTED WITH THE FINAL APPOINTING AUTHORITY DO NOT CONSTITUTE PROPER AUTHORITY FOR THE PAYMENT OF COMPENSATION. IT UNIFORMALLY HAS BEEN RULED THAT THE EFFECTIVE DATE OF A SALARY CHANGE RESULTING FROM ADMINISTRATIVE ACTION IS THE DATE THE ACTION IS TAKEN BY THE ADMINISTRATIVE OFFICER VESTED WITH THE PROPER AUTHORITY, OR A SUBSEQUENT DATE SPECIFICALLY FIXED BY HIM. SEE IN THIS CONNECTION 35 COMP. GEN. 153; 30 ID. 156; 27 ID. 63; 21 ID. 95.

THEREFORE, UPON REVIEW, THE DETERMINATION IS OUR LETTER OF JUNE 17, 1959, AGREEING WITH THE ADMINISTRATIVE ACTION ADJUSTING YOUR SALARY, IS SUSTAINED.