B-30180, NOVEMBER 23, 1942, 22 COMP. GEN. 489

B-30180, NOVEMBER 23, 1942, 22 COMP. GEN. 489

COMPENSATION - TRANSFERS - INITIAL SALARY RATES THE WITHIN-GRADE SALARY ADVANCEMENT PLAN PRESCRIBED BY THE ACT OF AUGUST 1, 1941, IS INCONSISTENT WITH, AND WOULD NOT PERMIT, THE FIXING OF ANY SALARY RATE IN THE GRADE TO WHICH AN EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED, IN EXCESS OF THE RATE PAID IN THE GRADE FROM WHICH TRANSFERRED, PROMOTED, OR REDUCED, THE EFFECT OF WHICH IS TO GRANT THE EMPLOYEE AN ADDITIONAL WITHIN-GRADE SALARY ADVANCEMENT AND, THEREFORE, AN EMPLOYEE PROMOTED TO A HIGHER GRADE, THE MINIMUM SALARY RATE OF WHICH EXCEEDS THE RATE PAID IN THE FORMER GRADE, MAY NOT INITIALLY BE PAID ABOVE THE MINIMUM RATE OF THE NEW GRADE. 21 COMP. GEN. 791, AMPLIFIED.

COMPTROLLER GENERAL WARREN TO THE COMMISSIONER, UNITED STATES SECTION, INTERNATIONAL BOUNDARY COMMISSION, UNITED STATES AND MEXICO, NOVEMBER 23, 1942:

I HAVE YOUR LETTER OF NOVEMBER 5, 1942, AS FOLLOWS:

JAMES B. WHITE HAS BEEN CONTINUOUSLY EMPLOYED BY THIS COMMISSION SINCE FEBRUARY 1, 1936 AS AN ASSOCIATE ENGINEER, GRADE P-3. UP TO OCTOBER 1, 1941 HIS SALARY WAS $3600, AT WHICH TIME HE WAS GIVEN A WITHIN-GRADE SALARY ADVANCEMENT OF $100, BRINGING HIS SALARY TO $3700. IN HIS CAPACITY AS ASSOCIATE ENGINEER HE DISCHARGED VARIOUS DUTIES IN CONNECTION WITH THE RIO GRANDE RECTIFICATION PROJECT, THE RIO GRANDE CANALIZATION PROJECT, AND THE LAND BOUNDARY FENCE PROJECT.

IT IS NOW PROPOSED TO TRANSFER MR. WHITE TO INVESTIGATIONAL WORK BEING CONDUCTED BY THIS SECTION OF THE COMMISSION ON THE LOWER RIO GRANDE, WITH HEADQUARTERS AT LAREDO. THE NEW WORK ENTAILS MORE RESPONSIBILITY AND REQUIRES MORE TRAINING, EXPERIENCE AND ABILITY THAN THE WORK HERETOFORE DONE BY MR. WHITE. CONSEQUENTLY, IT IS PROPOSED TO PROMOTE MR. WHITE TO THE POSITION OF ENGINEER, GRADE P-4, WHICH IS THE POSITION CORRESPONDING TO THE DUTIES TO BE PERFORMED. THE MINIMUM RATE OF THIS GRADE IS $3800 PER ANNUM, WHICH WOULD ONLY REPRESENT AN ADVANCE OVER THE PRESENT SALARY OF $100 PER ANNUM, WHICH FOR VARIOUS ADMINISTRATIVE REASONS, IS BELIEVED TO BE INADEQUATE FOR THE DUTIES TO BE PERFORMED BY MR. WHITE, AND IT IS CONSEQUENTLY DESIRED, IF POSSIBLE, TO FIX MR. WHITE'S SALARY IN THE NEW POSITION AT $4000 PER ANNUM WHICH IS ONE OF THE SALARY RATES PRESCRIBED BY THE CLASSIFICATION ACT FOR THE GRADE TO WHICH THE EMPLOYEE IS TO BE PROMOTED.

WE UNDERSTAND THAT IT IS WITHIN ADMINISTRATIVE DISCRETION TO SAVE AN EMPLOYEE'S PERIODIC OR MERITORIOUS WITHIN-GRADE SALARY ADVANCEMENT ACQUIRED IN ONE GRADE OR POSITION AFTER TRANSFER OR PROMOTION TO ANOTHER GRADE OR POSITION, PROVIDED THE RATE THUS FIXED IS ONE OF THE RATES PRESCRIBED FOR THE GRADE OR POSITION TO WHICH THE TRANSFER OR PROMOTION IS MADE. I REFER TO YOUR DECISION B-23577 OF FEBRUARY 21, 1942 ADDRESSED TO THE FEDERAL SECURITY ADMINISTRATOR. IN MR. WHITE'S CASE, IF HIS WITHIN- GRADE SALARY ADVANCEMENT OF OCTOBER 1, 1941 IS SAVED, HIS COMPENSATION WOULD BE $3900 PER ANNUM, WHICH IS NOT ONE OF THE RATES PRESCRIBED FOR THE GRADE TO WHICH HE IS TO BE PROMOTED. THE QUESTION THEN IS WHETHER IT IS WITHIN ADMINISTRATIVE DISCRETION TO FIX INITIALLY HIS SALARY RATE IN GRADE P-4 AT $4000 PER ANNUM, THIS BEING ONE OF THE RATES PRESCRIBED FOR THIS GRADE AND BEING ONE STEP ABOVE THE MINIMUM RATE FOR THIS GRADE. IT WOULD SEEM THAT AUTHORITY FOR THIS IS CONTAINED IN THE DECISION ABOVE REFERRED TO (B-23577 DATED FEBRUARY 21, 1942), WHEREIN IT IS SAID, ON PAGE 8:

"HOWEVER, WHEN AN EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED FROM ONE POSITION TO ANOTHER SEPARATE AND DISTINCT POSITION WITH DIFFERENT DUTIES AND RESPONSIBILITIES, WHETHER IN THE SAME OR A DIFFERENT GRADE, IT IS WITHIN ADMINISTRATIVE DISCRETION--- AVAILABILITY OF FUNDS TO BE CONSIDERED, OF COURSE--- TO PAY INITIALLY ANY SALARY RATE PRESCRIBED BY THE CLASSIFICATION ACT FOR THE GRADE TO WHICH THE EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED, WITHOUT REGARD TO THE RATE PAID IN THE POSITION OCCUPIED PRIOR TO THE TRANSFER, PROMOTION, OR REDUCTION.' ( ITALICS SUPPLIED.)

THE DOUBT ARISES FROM THE FACT THAT THIS DECISION PASSES SPECIFICALLY ONLY ON THE QUESTION OF SAVING AN EMPLOYEE'S PERIODIC OR MERITORIOUS WITHIN-GRADE SALARY ADVANCEMENT ACQUIRED IN ONE GRADE OR POSITION AFTER TRANSFER, PROMOTION, OR REDUCTION TO ANOTHER GRADE OR POSITION, AND THERE WAS NOT IMMEDIATELY INVOLVED IN THE DECISION THE QUESTION OF FIXING THE INITIAL RATE AT ONE HIGHER THAN THE MINIMUM RATE FOR THE GRADE TO WHICH THE EMPLOYEE IS PROMOTED, WITHOUT REGARD TO THE RATE PAID IN THE POSITION OCCUPIED PRIOR TO THE PROMOTION; FURTHERMORE, WE HAVE BEEN UNABLE TO FIND A DECISION PASSING SPECIFICALLY UPON THIS LATTER QUESTION. THE EARLIER DECISIONS OF THE COMPTROLLER GENERAL CITED IN DECISION B-23577 APPARENTLY GO NO FURTHER THAN TO LAY DOWN THE GENERAL RULE, AS STATED IN THE DECISION, THAT "AN EMPLOYEE MAY BE PAID INITIALLY IN A GRADE OR POSITION TO WHICH TRANSFERRED, PROMOTED, OR REDUCED WITHOUT LOSS OF THE SALARY RATE, INCLUDING ANY PERIODIC OR MERITORIOUS WITHIN-GRADE SALARY ADVANCEMENT, PAID THE EMPLOYEE IN HIS OLD POSITION, OR WITH AS LITTLE LOSS OF SALARY AS IS NECESSARY TO PAY A SALARY RATE PRESCRIBED FOR THE GRADE TO WHICH THE EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED.'

YOUR DECISION IS THEREFORE RESPECTFULLY REQUESTED AS TO WHETHER MR. WHITE'S SALARY RATE MAY BE INITIALLY FIXED AT $4000 PER ANNUM UPON HIS PROMOTION TO THE POSITION OF ENGINEER, GRADE P-4. AS HAVING A POSSIBLE BEARING ON THIS CASE, REFERENCE IS MADE TO THE REGULATIONS ISSUED BY THE ECONOMIC STABILIZATION DIRECTOR ON OCTOBER 27, 1942 WITH REFERENCE TO WAGES AND SALARIES, PUBLISHED IN THE FEDERAL REGISTER FOR OCTOBER 29, 1942, VOL. 7, NO. 213, PAGES 8748-8750. IT IS BELIEVED BY THIS OFFICE THAT THE PROPOSED INCREASE WOULD BE WITHIN THE EXCEPTIONS PROVIDED BY SECTION 4001.6 OF THESE REGULATIONS RELATING TO INCREASES MADE IN ACCORDANCE WITH THE TERMS OF A SALARY RATE SCHEDULE AS A RESULT OF INDIVIDUAL PROMOTIONS OR RECLASSIFICATIONS; HOWEVER, YOUR ADVICE ON THE EFFECT OF THESE REGULATIONS WOULD LIKEWISE BE APPRECIATED.

THAT PART OF THE DECISION OF FEBRUARY 21, 1942, 21 COMP. GEN. 791, 796, QUOTED IN YOUR LETTER, IS THE FIRST SENTENCE OF A PARAGRAPH THEREOF READING AS FOLLOWS:

HOWEVER, WHEN AN EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED FROM ONE POSITION TO ANOTHER SEPARATE AND DISTINCT POSITION WITH DIFFERENT DUTIES AND RESPONSIBILITIES, WHETHER IN THE SAME OR A DIFFERENT GRADE, IT IS WITHIN ADMINISTRATIVE DISCRETION--- AVAILABILITY OF FUNDS TO BE CONSIDERED, OF COURSE--- TO PAY INITIALLY ANY SALARY RATE PRESCRIBED BY THE CLASSIFICATION ACT FOR THE GRADE TO WHICH THE EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED, WITHOUT REGARD TO THE RATE PAID IN THE POSITION OCCUPIED PRIOR TO THE TRANSFER, PROMOTION, OR REDUCTION. THAT IS TO SAY, SECTION 10 OF THE ORIGINAL CLASSIFICATION ACT, ABOVE QUOTED--- WHICH, AS PREVIOUSLY STATED, HAS NOT BEEN AFFECTED IN ANY MANNER BY THE AMENDATORY ACT OF AUGUST 1, 1941--- VESTS A DISCRETION IN THE ADMINISTRATIVE OFFICE BUT DOES NOT REQUIRE ADMINISTRATIVE ACTION TO SAVE AN EMPLOYEE'S PERIODIC OR MERITORIOUS WITHIN-GRADE SALARY ADVANCEMENTS PAID TO HIM PRIOR TO HIS TRANSFER, PROMOTION, OR REDUCTION FROM ONE POSITION TO ANOTHER, WHETHER IN THE SAME OR DIFFERENT GRADE.

THE FIRST SENTENCE OF THE ABOVE-QUOTED PARAGRAPH--- THOUGH TOO BROADLY STATED WHEN STANDING ALONE--- MUST BE READ IN CONNECTION WITH THE REMAINDER OF THE PARAGRAPH, THE INTENT OF THE ENTIRE PARAGRAPH BEING MERELY TO HOLD THAT WHEN AN EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED FROM GRADE TO GRADE, IT IS UNNECESSARY TO REDUCE THE EMPLOYEE TO THE MINIMUM SALARY RATE OF THE NEW GRADE THEREBY CAUSING A REDUCTION IN SALARY IF FUNDS ARE AVAILABLE TO PAY THE RATE PREVIOUSLY RECEIVED IN THE OTHER GRADE. IN OTHER WORDS, THE EFFECT OF THE PARAGRAPH IS THAT THE WITHIN- GRADE SALARY ADVANCEMENT GRANTED IN ONE GRADE MAY BE, BUT IT IS NOT REQUIRED TO BE, SAVED TO THE EMPLOYEE IN ANOTHER GRADE.

IN ANY OFFICE OF THE GOVERNMENT SUBJECT TO THE CLASSIFICATION ACT, THE WITHIN-GRADE-SALARY-ADVANCEMENT PLAN, BASED UPON LENGTH OF SERVICE IN ANY GRADE, EFFICIENCY RATINGS, AND CONDUCT (THE PLAN PRESCRIBED BY THE ACT OF AUGUST 1, 1941, 55 STAT. 613, AS IMPLEMENTED BY THE PRESIDENT'S REGULATIONS ISSUED THEREUNDER, EXECUTIVE ORDER NO. 8882 OF SEPTEMBER 3, 1941--- SEE PARTICULARLY SECTION (2A) ( WOULD BE ENTIRELY INCONSISTENT WITH, AND WOULD NOT PERMIT, THE FIXING OF ANY SALARY RATE IN ANOTHER GRADE TO WHICH AN EMPLOYEE IS TRANSFERRED, PROMOTED, OR REDUCED, IN EXCESS OF THE RATE PAID IN THE GRADE FROM WHICH THE EMPLOYEE HAS BEEN TRANSFERRED, PROMOTED, OR REDUCED, WHICH WOULD GRANT THE EMPLOYEE AN ADDITIONAL WITHIN- GRADE SALARY ADVANCEMENT. COMPARE 21 COMP. GEN. 436, 439.

ACCORDINGLY, IN THE CASE PRESENTED, $3,800 PER ANNUM, THE MINIMUM SALARY RATE OF GRADE P-4--- WHICH IS ABOVE THE RATE BEING RECEIVED IN GRADE P-3-- - IS THE PROPER INITIAL SALARY RATE TO BE FIXED FOR MR. WHITE UPON HIS PROMOTION TO GRADE P-4.

IN VIEW OF THE ABOVE ANSWER TO THE PRIMARY QUESTION PRESENTED, IT BECOMES UNNECESSARY TO GIVE CONSIDERATION HEREIN TO THE REGULATIONS ISSUED BY THE ECONOMIC STABILIZATION DIRECTOR REFERRED TO IN THE CONCLUDING PARAGRAPH OF YOUR LETTER.