B-155536, NOV. 24, 1964
Highlights
BARRY WAS AN EMPLOYEE OF THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS. WAS EMPLOYED BY THE INTER-AMERICAN DEVELOPMENT COMMISSION FROM APRIL 7. AT THE TIME OF HER RESIGNATION FROM THE LATTER EMPLOYMENT HER SALARY WAS $2980 PER ANNUM. MIGHT NOT BE CONSIDERED FEDERAL EMPLOYMENT FOR THE PURPOSE OF APPLYING THE "HIGHEST PREVIOUS RATE" RULE BUT ON THE BASIS OF THE EVIDENCE SUBMITTED WE FOUND THAT THE EMPLOYEE THERE CONCERNED WAS ACTUALLY A FEDERAL EMPLOYEE ON LOAN FROM THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS WHILE SERVING WITH THE COMMISSION. BARRY IS FAMILIAR WITH THE DECISION AND FEELS THAT IT IS APPLICABLE TO HER SITUATION AND IF SO THAT HER EMPLOYMENT WITH THE COMMISSION SHOULD BE CONSIDERED IN APPLYING THE "HIGHEST PREVIOUS RATE" RULE.
B-155536, NOV. 24, 1964
TO HONORABLE HAROLD F. LINDER, PRESIDENT AND CHAIRMAN, EXPORT-IMPORT BANK OF WASHINGTON:
YOUR LETTER OF OCTOBER 30, 1964, AND ENCLOSURES, REQUESTS OUR DECISION CONCERNING THE COMPUTATION OF SERVICE CREDIT AND SALARY RATES IN THE CASE OF MRS. DIANA E. BARRY, AN EMPLOYEE OF THE EXPORT-IMPORT BANK.
IT APPEARS THAT ON AND PRIOR TO APRIL 6, 1943, MRS. BARRY WAS AN EMPLOYEE OF THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS. ON THAT DATE SHE RESIGNED FROM HER POSITION IN GRADE CAF-5, $2,000 PER ANNUM, AND WAS EMPLOYED BY THE INTER-AMERICAN DEVELOPMENT COMMISSION FROM APRIL 7, 1943, THROUGH FEBRUARY 15, 1946. AT THE TIME OF HER RESIGNATION FROM THE LATTER EMPLOYMENT HER SALARY WAS $2980 PER ANNUM, BUT APPARENTLY THE RECORDS CONTAIN NO REFERENCE TO HER GRADE LEVEL WHILE SO EMPLOYED.
YOU REFER TO OUR DECISION OF JANUARY 9, 1964, B-152441, IN WHICH WE AFFIRMED THE VIEWS EXPRESSED IN AN EARLIER DECISION THAT EMPLOYMENT WITH THE INTER-AMERICAN DEVELOPMENT COMMISSION, AN INTERNATIONAL ORGANIZATION, MIGHT NOT BE CONSIDERED FEDERAL EMPLOYMENT FOR THE PURPOSE OF APPLYING THE "HIGHEST PREVIOUS RATE" RULE BUT ON THE BASIS OF THE EVIDENCE SUBMITTED WE FOUND THAT THE EMPLOYEE THERE CONCERNED WAS ACTUALLY A FEDERAL EMPLOYEE ON LOAN FROM THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS WHILE SERVING WITH THE COMMISSION. YOU SAY MRS. BARRY IS FAMILIAR WITH THE DECISION AND FEELS THAT IT IS APPLICABLE TO HER SITUATION AND IF SO THAT HER EMPLOYMENT WITH THE COMMISSION SHOULD BE CONSIDERED IN APPLYING THE "HIGHEST PREVIOUS RATE" RULE. ACCORDINGLY YOU REQUEST OUR RULING ON THE FOLLOWING POINTS:
"1. DOES MRS. BARRY'S SERVICE AT THE INTER-AMERICAN DEVELOPMENT COMMISSION FROM APRIL 7, 1943, TO FEBRUARY 15, 1946, CONSTITUTE FEDERAL EMPLOYMENT FOR PURPOSES OF COMPUTING HER SERVICE COMPUTATION DATE AND FOR USE IN CONNECTION WITH COMPUTING HER ELIGIBILITY FOR CIVIL SERVICE RETIREMENT?
"2. WHETHER OR NOT QUESTION (1) IS ANSWERED IN THE AFFIRMATIVE, CAN HER FINAL SALARY OF $2,980 PER ANNUM AT THE INTER-AMERICAN DEVELOPMENT COMMISSION BE USED IN APPLYING THE "HIGHEST PREVIOUS RATE" RULE?
"3. IF QUESTION (2) ABOVE IS ANSWERED IN THE AFFIRMATIVE, AND NOTHING THAT UNDER THE PAY ACT OF 1945 $2,980 COULD HAVE BEEN THE LAST STEP IN GRADE 5, THE FOURTH STEP IN GRADE 6, OR THE FIRST STEP IN GRADE 7, AND IN THE ABSENCE OF ANYTHING IN THE RECORDS WHICH INDICATES GRADE LEVEL AT THE IADC, CAN THE SALARY OF $2,980 BE EQUATED WITH THE FIRST STEP IN GRADE 7 IN APPLYING THE "HIGHEST PREVIOUS RATE" RULE IN THIS CASE?
"4. SINCE THE SALARY CURRENTLY BEING PAID MRS. BARRY WAS ADMINISTRATIVELY FIXED AT THE FOURTH STEP OF GS-5 UPON HER PROMOTION FROM GS-4 (BASED ON HER PREVIOUS EMPLOYMENT IN THE OFFICE OF INTERNATIONAL AFFAIRS AS A GS-6) AND SINCE WE COULD HAVE ADMINISTRATIVELY PLACED HER IN THE FIFTH STEP OF GS-5, SHOULD YOUR ANSWER TO THE ABOVE QUESTIONS BE IN THE AFFIRMATIVE, WOULD WE HAVE THE AUTHORITY TO READJUST HER SALARY TO A HIGHER STEP IN THE GS-5 IN VIEW OF THE PROVISIONS OF FPM SUPPLEMENT 990-2, S2-7C?
WHILE IT IS UNDERSTOOD THAT SEVERAL EMPLOYEES WERE ASSIGNED BY THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS AND BY OTHER AGENCIES TO WORK FOR THE COMMISSION, IT DOES NOT APPEAR THAT MRS. BARRY WAS ONE OF THEM. ON THE CONTRARY, YOU SAY HER OFFICIAL PERSONNEL FOLDER CONTAINS AN ,ADVICE OF PERSONNEL ACTION" FROM THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS WHICH SHOWS THAT SHE RESIGNED FROM HER POSITION WITH THAT AGENCY EFFECTIVE APRIL 6, 1943, THE DAY PRIOR TO HER ENTRY ON DUTY WITH THE COMMISSION. THEREFORE, HER SERVICE WITH THE COMMISSION DID NOT CONSTITUTE FEDERAL EMPLOYMENT FOR THE PURPOSE OF COMPUTING SALARY INCREASES, ETC., AND PART 1 OF YOUR FIRST QUESTION IS ANSWERED ACCORDINGLY. AS TO PART 2, THE MATTER OF CREDITABLE SERVICE FOR RETIREMENT PURPOSES IS FOR CONSIDERATION BY THE CIVIL SERVICE COMMISSION.
REFERRING TO YOUR SECOND QUESTION, THE CIVIL SERVICE COMMISSION HAS DEFINED THE HIGHEST PREVIOUS RATE AS:
"* * * THE HIGHEST RATE OF BASIC COMPENSATION PREVIOUSLY PAID TO AN INDIVIDUAL WHILE EMPLOYED IN A POSITION IN A BRANCH OF THE FEDERAL GOVERNMENT (EXECUTIVE, LEGISLATIVE, OR JUDICIAL), A MIXED OWNERSHIP CORPORATION, OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA, IRRESPECTIVE OF WHETHER OR NOT THE POSITION WAS SUBJECT TO THE PAY SCHEDULES OF THE CLASSIFICATION ACT.' SEE FEDERAL PERSONNEL MANUAL SUPPLEMENT 990-2, PAGE 531-5.
SINCE MRS. BARRY HAD RESIGNED HER POSITION WITH THE OFFICE OF THE COORDINATOR OF INTER-AMERICAN AFFAIRS, IT MUST BE HELD THAT SHE WAS NO LONGER IN THE FEDERAL SERVICE BUT WAS AN EMPLOYEE OF THE INTER AMERICAN DEVELOPMENT COMMISSION, AN INTERNATIONAL ORGANIZATION, DURING THE PERIOD INVOLVED. THEREFORE, YOUR SECOND QUESTION IS ANSWERED IN THE NEGATIVE MAKING IT UNNECESSARY TO CONSIDER QUESTIONS 3 AND 4. SEE 28 COMP. GEN. 433.