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BUTTLE PERSONALLY PROTESTED TO ME AS TO THE SALARY HE WAS OFFERED IN CONNECTION WITH HIS APPOINTMENT AS A HEARING EXAMINER. IT IS MY RECOLLECTION THAT MR. LATER I WAS INFORMED BY MR. BUTTLE'S ENTRANCE SALARY WAS TO BE $12. I TOLD HIM THAT THE MATTER WAS BEYOND MY CONTROL.'. BUTTLE APPARENTLY FEELS THAT THE PRINCIPAL GROUND FOR OUR DECISION OF OCTOBER 31 WAS THE FAILURE OF THE PREVIOUS CORRESPONDENCE TO REVEAL THAT HE HAD QUESTIONED THE SALARY RATE OF $12. THE CONTROLLING FACTS ARE THAT ON AUGUST 17. THE PRESENT RECORD SHOWS THAT A HIGHER RATE OF GRADE GS-15 WAS NOT OFFERED BECAUSE OF BUDGETARY CIRCUMSTANCES. THERE IS NO DISPUTE CONCERNING THE MATERIAL FACTS THAT ONLY A RATE OF $12. 770 WAS OFFERED.

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B-144179, FEB. 3, 1961

TO CHAIRMAN, FEDERAL TRADE COMMISSION:

ON NOVEMBER 28, 1960, YOU REQUESTED THAT WE RECONSIDER OUR DECISION OF OCTOBER 31, 1960, B-144179, CONCERNING THE CASE OF MR. EDGAR A. BUTTLE. WITH YOUR LETTER OF NOVEMBER 28 YOU ENCLOSED A LETTER DATED NOVEMBER 22, 1960, ADDRESSED TO US FROM MR. BUTTLE, AUGMENTING THE FACTS WHICH WE HAD CONSIDERED ON OCTOBER 31. ALSO, YOU SENT US A COPY OF MEMORANDUM DATED NOVEMBER 25, 1960, YOU RECEIVED FROM MR. ROBERT B. SHERWOOD, DIRECTOR OF PERSONNEL, FEDERAL TRADE COMMISSION. THAT MEMORANDUM READS AS FOLLOWS:

"I WISH TO CONFIRM THAT MR. BUTTLE PERSONALLY PROTESTED TO ME AS TO THE SALARY HE WAS OFFERED IN CONNECTION WITH HIS APPOINTMENT AS A HEARING EXAMINER. IT IS MY RECOLLECTION THAT MR. BUTTLE TELEPHONED ME FROM NEW YORK PRIOR TO THE CONSUMMATION OF HIS APPOINTMENT. IN THIS CONVERSATION MR. BUTTLE EXPRESSED HIS DISSATISFACTION OVER THE PROPOSED SALARY BUT INDICATED THAT MR. BABCOCK HAD ASSURED HIM THE SALARY WOULD BE ADJUSTED TO A HIGHER RATE IN THE NEXT FISCAL YEAR. MR. BUTTLE ASKED ME WHETHER THIS COULD BE DONE. I INFORMED HIM THAT THE PAY REGULATIONS AND COMPTROLLER GENERAL'S DECISION WOULD NOT PERMIT SUCH AN ADJUSTMENT. I ALSO SO INFORMED MR. BABCOCK.

"MR. BABCOCK TOLD ME THAT HE WOULD TAKE THE MATTER OF SALARY UP WITH THE CHAIRMAN. I DO NOT KNOW WHETHER HE DID. LATER I WAS INFORMED BY MR. BABCOCK THAT MR. BUTTLE'S ENTRANCE SALARY WAS TO BE $12,770 PER ANNUM.

"MR. BUTTLE HAS ALSO CORRECTLY REPORTED THAT HE AGAIN EXPRESSED HIS DISSATISFACTION TO ME OVER THE SALARY ON THE DAY THAT HE REPORTED FOR DUTY. I TOLD HIM THAT THE MATTER WAS BEYOND MY CONTROL.'

MR. BUTTLE APPARENTLY FEELS THAT THE PRINCIPAL GROUND FOR OUR DECISION OF OCTOBER 31 WAS THE FAILURE OF THE PREVIOUS CORRESPONDENCE TO REVEAL THAT HE HAD QUESTIONED THE SALARY RATE OF $12,770 OFFERED TO HIM IN MR. BABCOCK'S LETTER OF JULY 30, 1959. MR. BUTTLE'S LETTER DESCRIBES IN SOME DETAIL THE REASON HE ACCEPTED SUCH OFFERED RATE, AND THE ACTIONS HE TOOK LEADING UP TO YOUR LETTER OF OCTOBER 5, 1960.

THE CONTROLLING FACTS ARE THAT ON AUGUST 17, 1959, MR. BUTTLE ENTERED ON DUTY UNDER AN APPOINTMENT SPECIFYING THE GS-15 HEARING EXAMINER POSITION AT THE SPECIFIC SALARY OF $12,770. THE PRESENT RECORD SHOWS THAT A HIGHER RATE OF GRADE GS-15 WAS NOT OFFERED BECAUSE OF BUDGETARY CIRCUMSTANCES. WHILE THE EVIDENCE NOW BEFORE US SHOWS THAT MR. BUTTLE EXPRESSED DISSATISFACTION WITH THE RATE OF PAY OFFERED TO HIM, THERE IS NO DISPUTE CONCERNING THE MATERIAL FACTS THAT ONLY A RATE OF $12,770 WAS OFFERED, THAT THE BUDGETARY ASPECT WAS EXPLAINED TO HIM, AND THAT HE ENTERED ON DUTY UNDER THAT APPOINTMENT WITH KNOWLEDGE OF THOSE FACTS.

THE BASIS UPON WHICH AN ADJUSTMENT (RETROACTIVE OR PROSPECTIVE) MIGHT BE ALLOWED IS OUTLINED IN THE FOURTH PARAGRAPH OF OUR DECISION OF OCTOBER 31, AND IN THE SEVERAL PUBLISHED DECISIONS THERE CITED, CONCERNING "WRITTEN ADMINISTRATIVE POLICY" OR ADMINISTRATIVE REGULATIONS WHICH HAVE MANDATORY EFFECT ON PROMOTIONS, TRANSFERS, ETC., IN AN AGENCY'S APPLICATION OF THE "HIGHEST PREVIOUS RATE" RULE.

ON JANUARY 24, 1961, THE DIRECTOR OF PERSONNEL ADVISED US, IN RESPONSE TO OUR REQUEST, THAT AT THE TIME OF MR. BUTTLE'S APPOINTMENT, THE FEDERAL TRADE COMMISSION HAD NO WRITTEN POLICY OR REGULATION CONCERNING THE "HIGHEST PREVIOUS RATE" RULE; THAT EACH CASE WAS CONSIDERED ON ITS OWN MERITS IN THE LIGHT OF ALL RELEVANT FACTORS, SUCH AS THE AVAILABILITY OF FUNDS AND THE NEED FOR MAINTAINING SALARY EQUITY WITHIN ORGANIZATIONAL UNITS; AND THAT THE RECORDS INDICATE THAT THE ADMINISTRATIVE DECISION--- VALID ON ITS FACE, BY MR. BABCOCK'S LETTER OF JULY 30, 1959--- WAS BASED ON BUDGETARY CONSIDERATIONS.

FURTHER, THE LETTER OF JANUARY 24, 1961, ADVISES THAT A REVIEW OF THE PERSONNEL FOLDERS OF THE 15 HEARING EXAMINERS NOW ON THE ROLLS OF THE FEDERAL TRADE COMMISSION SHOWS THAT THERE HAVE BEEN NO INSTANCES WHERE A POSSIBILITY OF ADMINISTRATIVE DISCRETION IN APPLYING THE "HIGHEST PREVIOUS RATE" RULE HAS ARISEN, OTHER THAN IN THE CASE OF MR. BUTTLE.

THEREFORE, AND AS WE ARE UNABLE TO CONCLUDE ON THE BASIS OF THE PRESENT RECORD THAT A BONA FIDE ERROR OCCURRED IN THIS CASE, SUCH AS WOULD WARRANT ANY ADJUSTMENT IN THE INITIAL RATE OF $12,770 PER ANNUM, WE HAVE NO ALTERNATIVE OTHER THAN TO AFFIRM OUR DECISION OF OCTOBER 31, 1960, IN THIS CASE. CF. 27 COMP. GEN. 550.

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