B-60699, NOVEMBER 8, 1946, 26 COMP. GEN. 318

B-60699, NOVEMBER 8, 1946, 26 COMP. GEN. 318

APPOINTMENTS - PROBATIONAL - EXCEPTED EMPLOYEES - EFFECT OF CIVIL SERVICE COMMISSION APPROVAL UNDER EXECUTIVE ORDER NO. 9259 THE CIVIL SERVICE COMMISSION'S ACTION IN APPROVING THE PROBATIONAL APPOINTMENT OF AN EXCEPTED EMPLOYEE AT A HIGHER SALARY THAN THAT (MINIMUM OF THE GRADE) AT WHICH ADMINISTRATIVELY APPOINTED--- WHICH ACTION WAS TAKEN UNDER THE AUTHORITY OF EXECUTIVE ORDER NO. 9259 TO APPROVE, RETROACTIVELY, THE PROBATIONAL APPOINTMENT OF EMPLOYEES SERVING IN EXCEPTED POSITIONS WHEN REACHED FOR APPOINTMENT FROM A COMPETITIVE LIST AT A LOWER SALARY RATE, APPROVAL NOT PREVIOUSLY HAVING BEEN OBTAINED BECAUSE REDUCTION TO SUCH LOWER SALARY WAS NOT MADE--- MUST BE VIEWED AS MERELY A VALIDATION OR CONSUMMATION OF THE APPOINTMENT AS MADE, AND NOT AS OPERATING TO INCREASE THE SALARY RETROACTIVE TO THE DATE OF APPOINTMENT.

COMPTROLLER GENERAL WARREN TO A. J. MCCOLLUM, DEPARTMENT OF AGRICULTURE, NOVEMBER 8, 1946:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 26, 1946, YOUR REFERENCE 1- AJM, AS FOLLOWS:

THE ATTACHED STANDARD FORM 1047, IN FAVOR OF WILLIAM T. REAGAN, HAS BEEN PRESENTED TO ME FOR CERTIFICATION AS AN AUTHORIZED CERTIFYING OFFICER.

MR. REAGAN SERVED IN AN EXCEPTED CAPACITY DURING THE PERIOD APRIL 8, 1937, TO THE CLOSE OF BUSINESS FEBRUARY 23, 1942, AT WHICH TIME HE WAS RECEIVING A SALARY OF $3400.00 PER ANNUM AS AN ASSOCIATE CARTOGRAPHIC ENGINEER, P-3. ON FEBRUARY 23, 1942, HE WAS SEPARATED WITHOUT PREJUDICE FROM THE POSITION HE HELD AND ON FEBRUARY 24, 1942, HE RECEIVED A PROBATIONARY APPOINTMENT TO THE SAME POSITION AT A SALARY RATE OF $3200.00 PER ANNUM, THE ENTRANCE RATE FOR THE GRADE, ON THE BASIS OF CIVIL SERVICE CERTIFICATE NO. M-36712, DATED JANUARY 15, 1942. THROUGH ADMINISTRATIVE ERROR HE CONTINUED TO RECEIVE SALARY PAYMENT AT THE RATE OF $3400.00 PER ANNUM FROM THE DATE OF HIS PROBATIONARY APPOINTMENT TO THE EFFECTIVE DATE OF HIS MILITARY FURLOUGH ON AUGUST 31, 1942, RESULTING IN AN OVERPAYMENT OF $99.25.

MR. REAGAN WAS REQUESTED TO SUBMIT HIS CHECK IN THE AMOUNT OF $99.25 AND CHECK IN THE AMOUNT OF $100.00 WAS RECEIVED AND DEPOSITED TO THE CREDIT OF SUSPENSE ACCOUNT 12F5875.210, SPECIAL DEPOSITS, SUSPENSE, DEPARTMENT OF AGRICULTURE ( COLLECTION A.A.A.), PENDING DETERMINATION OF THE PROPER APPROPRIATION TO BE CREDITED.

IN REPLY TO A SUBMISSION BY THE SECRETARY OF AGRICULTURE ON A COMPARABLE CASE THE ACTING COMPTROLLER GENERAL IN DECISION B-55928, DATED APRIL 22, 1946, STATES IN PART AS FOLLOWS: "* * * IT MAY BE CONCLUDED THAT EACH OF THE EMPLOYEES MENTIONED IN YOUR LETTER, UNLESS OTHER ACTION WAS SPECIFICALLY AUTHORIZED BY THE CIVIL SERVICE COMMISSION UPON ACQUIRING A CLASSIFIED CIVIL SERVICE STATUS SHOULD HAVE BEEN APPOINTED AT THE MINIMUM SALARY RATE OF THE GRADE TO WHICH HIS POSITION HAD BEEN ALLOCATED.' (ITALICS SUPPLIED.)

ON AUGUST 3, 1944, THE CIVIL SERVICE COMMISSION APPROVED THE PROBATIONARY APPOINTMENT OF MR. REAGAN AT A SALARY RATE OF $3,400.00 PER ANNUM EFFECTIVE FEBRUARY 24, 1942 AND MR. REAGAN, IN THE ATTACHED LETTER DATED FEBRUARY 14, 1944, HAS REQUESTED REFUND OF THE $100.00 BY REASON OF THE PROVISIONS OF EXECUTIVE ORDER NO. 9259, DATED OCTOBER 26, 1942.

WOULD THE APPROVAL OF THE CIVIL SERVICE COMMISSION, DATED AUGUST 3, 1944, AND RETROACTIVE TO FEBRUARY 24, 1942, PERMIT ME TO CERTIFY FOR PAYMENT THE ATTACHED CLAIM FOR REFUND ALTHOUGH SUCH REFUND WOULD IN EFFECT GRANT MR. REAGAN A RETROACTIVE PAY INCREASE WHICH WOULD APPEAR TO BE IN OPPOSITION TO NUMEROUS DECISIONS OF THE COMPTROLLER GENERAL?

IT INFORMALLY HAS BEEN ASCERTAINED FROM THE CIVIL SERVICE COMMISSION THAT SAID COMMISSION'S ACTION ON AUGUST 3, 1944, WITH RESPECT TO MR. REAGAN'S APPOINTMENT TO BE EFFECTIVE RETROACTIVELY TO FEBRUARY 24, 1942, WAS TAKEN UNDER THE PROVISIONS OF EXECUTIVE ORDER 9259, DATED OCTOBER 26, 1942, AS FOLLOWS:

IN ANY CASE IN WHICH, ON OR AFTER JULY 1, 1941, AND PRIOR TO MARCH 16, 1942, UNDER THE CIVIL SERVICE ACT AND RULES, A PERMANENT EMPLOYEE SERVING UNDER A DULY AUTHORIZED APPOINTMENT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT WITHOUT A CLASSIFIED (COMPETITIVE) CIVIL-SERVICE STATUS, BECAME ELIGIBLE THROUGH APPROPRIATE OPEN COMPETITIVE CIVIL SERVICE EXAMINATION FOR PROBATIONAL APPOINTMENT TO A POSITION SUBJECT TO THE SALARY- ADVANCEMENT PROVISIONS OF THE ACT OF AUGUST 1, 1941, C. 346, 55 STAT. 613, OR EXECUTIVE ORDER NO. 8842 OF AUGUST 1, 1941, AT A SALARY LOWER THAN THAT WHICH HE WAS RECEIVING, BUT APPROVAL OF SUCH PROBATIONAL APPOINTMENT BY THE CIVIL SERVICE COMMISSION WAS NOT OBTAINED BECAUSE REDUCTION TO SUCH LOWER SALARY WAS NOT MADE, THE CIVIL SERVICE COMMISSION IS AUTHORIZED, UPON RECOMMENDATION OF THE EMPLOYING AGENCY, (A) TO APPROVE SUCH PROBATIONAL APPOINTMENT (IF MADE BY THE EMPLOYING AGENCY PRIOR TO MARCH 16, 1942), OR (B) TO CONFER A CLASSIFIED (COMPETITIVE) CIVIL-SERVICE STATUS ON SUCH EXCEPTED EMPLOYEE, RETROACTIVELY, NOTWITHSTANDING, IN EITHER CASE, THAT HIS SALARY WAS NOT REDUCED, EXCEPT TO THE EXTENT NECESSARY TO COMPLY WITH THE ESTABLISHED MAXIMUM PAY RATE FOR THE POSITION IN WHICH SUCH STATUS IS TO BE ACQUIRED.

ONE OF THE CONDITIONS OF THAT ORDER IS THAT AN EMPLOYEE BECAME ELIGIBLE FOR APPOINTMENT AT A SALARY LOWER THAN THAT WHICH HE WAS RECEIVING, BUT APPROVAL OF SUCH PROBATIONARY APPOINTMENT BY THE CIVIL SERVICE COMMISSION WAS NOT OBTAINED BECAUSE REDUCTION TO SUCH LOWER SALARY WAS NOT MADE.

IN THE INSTANT CASE, THE EMPLOYEE WAS APPOINTED PROBATIONALLY TO A POSITION UNDER THE CIVIL SERVICE LAWS AT THE MINIMUM OF THE GRADE, $3,200 PER ANNUM, WHICH IS LOWER THAN THE SALARY HE WAS RECEIVING; AND ALTHOUGH INADVERTENTLY PAID AT THE RATE OF $3,400 PER ANNUM FOR A PERIOD OF APPROXIMATELY SIX MONTHS THEREAFTER, THAT DOES NOT ALTER THE FACT THAT HIS SALARY WAS REDUCED TO THE MINIMUM OF THE GRADE AT TIME OF APPOINTMENT.

THE EXECUTIVE ORDER, SUPRA, AUTHORIZED THE CIVIL SERVICE COMMISSION TO APPROVE RETROACTIVELY THE ACTION THE ADMINISTRATIVE OFFICE HAD TAKEN IN THE FIRST INSTANCE AS A RESULT OF THE EMPLOYEE'S ACQUIRED ELIGIBILITY FOR A PROBATIONAL APPOINTMENT. HOWEVER, I FIND NOTHING TO INDICATE AN INTENTION THAT SAID EXECUTIVE ORDER WOULD OPERATE TO INCREASE AN EMPLOYEE'S SALARY OVER AND ABOVE THE RATE AT WHICH ACTUALLY APPOINTED BY THE ADMINISTRATIVE OFFICE CONCERNED.

THE APPOINTMENT HERE INVOLVED CONFORMED TO THE REGULATIONS OF THE CIVIL SERVICE COMMISSION SET FORTH IN DEPARTMENTAL CIRCULAR NO. 190 ISSUED JUNE 14, 1939, REQUIRING EMPLOYEES TO BE APPOINTED AT THE MINIMUM OF THE GRADE AS ONE OF THE CONDITIONS OF OBTAINING A CLASSIFIED CIVIL SERVICE STATUS, AND DOUBTLESS SUCH APPOINTMENT WOULD HAVE BEEN APPROVED AT THE TIME IT WAS MADE BUT FOR THE FAILURE OF THE ADMINISTRATIVE OFFICE TO TAKE PROPER ACTION TO THAT END. THE EXECUTIVE ORDER NO. 9259, SUPRA, PERMITTED SUCH APPROVAL WHEN THEREAFTER GIVEN TO HAVE EFFECT RETROACTIVELY.

ACCORDINGLY, IT IS CONCLUDED THAT THE EFFECT OF THE ACTION OF THE CIVIL SERVICE COMMISSION UNDER THE EXECUTIVE ORDER, IN THIS INSTANCE, WAS MERELY A VALIDATION OR CONSUMMATION OF THE APPOINTMENT AS ORIGINALLY MADE BY THE DEPARTMENT AND DID NOT OPERATE TO INCREASE THE EMPLOYEE'S SALARY FROM $3,200 TO $3,400, RETROACTIVE TO FEBRUARY 24, 1942. 16 COMP. GEN. 451, 979; 18 ID. 907; 20 ID. 267.

THE VOUCHER ( STANDARD FORM NO. 1047), WHICH IS RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT.