LETTERTO (Sanitized) FROM DIRECTOR OF PERSONNEL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP62-00631R000300020022-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 11
• Document Creation Date: December 16, 2016
• Document Release Date: February 15, 2005
• Sequence Number: 22
• Content Type: LETTER

/ rl/
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As we iaadicatt*ei in our IS )larch letter, we have made a careful
r of ii March is which you make claim for additional
a. Lace the problem is essentially legal in nature, we
red it to the Agency's lawyers, and after their research they
reported to as as follows:
There is a considerable body of law on the problem you
raise. Apparently, this establishes the principle that an
employee of the Federal Government is entitled only to the
salary of the position to which he is appointed regardless of
the duties actually performs . The appointment is conclusively
established by the personnel action not by the slot or Table of
Organisation position In which the employee may be placed.
The personnel records show that your appointment to a grade
05-16 position continesd in effect until your resignation on 4 March 193-9.
We are bound by the record, therefore, and can consider only the Jay
a erized for a grade GS-16.
As you know, in admL aietrative matters of this sort com aoa: to
Government generally, we are in no different position from other Gravel,
meat agencies and have no authority to make exceptions to the genii . ^i
rule. Cone*%%* atly, we are unable to consider making any aa4ditioaal
payments in your case. Should you feel that you cannot take our position
as final sad Waal to go to the Getaecral Accounting a "fice to pursue your
clam, we would be glad to make our records available to GAO for its
consideration. I regret to say, howsvor, that the Agency's positio : is
that your claim must be denied.
UGC:LRH:jeb Very truly yours,
Orig & Icc-Addressee
Icc-ComptroDer
lcc-Director of Personnel
Icc-Subject's Personnel file w/backq8uGordon M. Stewart
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cc-General Counsel r,,i
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This is to ec 1ee cur receipt of your letter of
U Yoxch 1959 In which you mew claim for sdditica m1 salary
PWMM a. This me;tter in r study we sha11 advise you
s s decision has been mom.
Yary truly yours,
GCw4m M. Steuart
Director of Ferst aei
Distribution:
Orig. - Addressee
1
1
i
1 - D/Pers Reader/Chrono
OD/Pers (17 Mar 59)
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 E FI 1
UNCLASSIFIED CONFIDENTIAL SECRET
CENTRAL INTELLIGENCE AGENCY
OFFICIAL ROUTING SLIP
TO
NAME AND ADDRESS
INITIALS
DATE
1
Director of Personnel
2
3
4
5
6
ACTION
DIRECT REPLY
PREPARE REPLY
APPROVAL
DISPATCH
RECOMMENDATION
COMMENT
F1 LE
RETURN
CONCURRENCE
INFORMATION
SIGNATURE
Remarks :
Gordon: An earlier note in the file
indicates that the General Accounting
Office says they would have to turn
the claim down. However, our
latest information is that there is
at least a possibility that if submitted
to them they could approve the claim.
LR Hou ston
FOLD HERE TO RETURN TO SENDER
FROM: NAME, ADDRESS AND PHONE NO.
DATE
General Counsel 221 East
4/17/59
FIED q
Replaces Form 30-4
I AR 55 237 which may be used.
(40)
~} U.S. GOVERNMENT PRINTING OFFICE : 1955--0-342531
 1 T
UNCLASSIFIED
CONFIDENTIAL SECRET
CENTRAL INTELLIGENCE AGENCY
OFFICIAL ROUTING SLIP
TO
NAME AND ADDRESS
INITIALS
DATE
1
25 East
2
3
4
5
6
ACTION
DIRECT REPLY
PREPARE REPLY
APPROVAL
DISPATCH
RECOMMENDATION
COMMENT
FILE
RETURN
CONCURRENCE
INFORMATION
SIGNATURE
Remarks :
FOLD HERE TO RETURN TO SENDER
FROM: NAME, ADDRESS AND PHONE NO.
DATE
Pers 1 r
UNCLASSIFIED CONFIDENTIAL
SECRET
FORM N0. Replaces Form 30-4 k-)
I APR 55 237 which may be used. U. S. GOVERNMENT PRINTING OFFICE: 1955-Cf 342531
 CHEC A TT M
UN LASS Clyi~TF
CENTRAL INTELLIGENCE AGENCY
OFFICIAL ROUTING SLIP
TO
NAME AND ADDRESS
INITIALS
DATE
1
General Counsel 221 East
2
3
4
5
6
ACTION
DIRECT REPLY
PREPARE REPLY
APPROVAL
DISPATCH
RECOMMENDATION
COMMENT
FILE
RETURN
CONCURRENCE
INFORMATION
SIGNATURE
Remarks :
FOLD HERE TO RETURN TO SENDER
FROM: NAME, ADDRESS AND PHONE NO.
DATE
d
PPF
AVP
C A N
FORM NO. 237 Replaces Form 30-4
I APR 55 which may be used.
(40)
U.S. GOVERNMENT PRINTING OFFICE: 1955-0-342531
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3i May :l 059
REFERENCE: Memorandum for the Record, dated 10 April 1959, same
subject
1. On 11 May, at this Office, a former employee, 25X1
discussed the rejection of his claim for the difference between a GS-16's
salary, which he received from December 1951 to the date of his resig-
nation, and a GS-17's and GS-18's salary to which he believes he is
successively entitled for the period from November 1953 to the date of
his resignation last March. presented his arguments in which
he cited authorities which he believed supported his claim. His case
has been restudied in the light of his arguments. The conclusion, however.
remains the same, and it is recommended that should be 25X1
notified that no adequate basis has been established upon which to allow
his claim.
2. said that he was pressing his claim within the Agency
rather than going to GAO at this time even though the claim, as first
submitted to this Agency, was denied. He felt that if he presented his
claim with all of the surrounding: facts to GAO it might cause an inctuirv
to be made by GAO into Agency personnel policies and practices. Further-
more, he continued, this could start an inquiry by congressional "Civil
Service Committees seeking an accounting by Mr. Dulles of his stewardship
of CIA's personnel."
3. He requested a further review of his case, looking toward a
determination by the Agency in his favor. If his claim should again be
denied, he requested a stipulation of the facts and questions in his case~
for presentation to.GAO so that, according to opportunities
for criticism of the Agency would be minimal.
2~tj1
4. Several contentions were emphasized byl during his visit: 25X1
(1) the duties performed by him were not those of the position to which he
was appointed; (2) he was not detailed to the position the duties of which
he had performed; (3) the duties he performed were covered by GS-17 and
GS-18 positions which had been set up prior to his performance of those
duties; (4) the "Personnel Journal" to which he does not have access may
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show that he was actually appointed to the GS-17 and GS-1i positions; (5)
If not, he was constructively appointed to those positions; (6) opinions of
the Comptroller General show that positions established and appointment to
those positions are two separate acts, both of which appear in and are
applicable to his case; and (7) regulations governing appointment to a
position must be followed by the Agency according to the Service case.
5. Because the Agency's personnel records probably would govern in
a determination of an employee's pay status, a chronological list of
Personnel Actions pertaining to is presented as follows:
1. Personnel Action Request - Excepted Appointment, Intelligence
Officer (Chief, Standards and Techniques Staff, OPC, GS-15), approved
7 September 1950.
2. Entrance on Duty Record, 13 September 1950.
3. Personnel Action Request - Promotion, To Admin. Officer -
Logistics (Deputy Chief, Admin. and Logistics Staff) OPC, GS-16,
approved 21 December 1951.
i+. Request for Personnel Action - Reassignment, To 10 (Chief)
GS-16-132, DDP/PPC Program Coordination Group, approved 15 January 1953.
`i. Request for Personnel Action - Reassignment, To 10 (Deputy
Chief) GS-132-16, Planning and Program Coordination Staff, Office of
the Chief, approved 22 November 1953-
6. Request for Personnel Action - Reassignment, To Ops. Officer
(gen.) GS-0136.06-16, Planning and Program Coordination Staff, Office
of the Chief, no date of approval.
'(. Request for Personnel Action - Reassignment, To Ops. Officer
(gen.) (Assistant Chief) GS-0136.06-16, DDP/PPC Staff, approved 12
September 1954.
8. Request for Personnel Action - Reassignment, To Ops. Officer
(gen.) (Staff Chief) GS-0136.06, GS-16, no date of approval.
6. During our discussion, cited three Comptroller General
opinions, a Court of Claims case and a statute which are listed below
together with our comments on their relevancy.
a. 3O Comp. Gen. (29 August 1950)
'Phis opinion involved a blue collar employee who through an error
on a personnel form was paid at a rate below that to which he was
entitled. The Comptroller General found that the employee could be
paid to correct the error. I epends on the following part
of the opinion: The general rule is that where an incumbent of a
position performs the duties thereof and is otherwise qualified to
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hold such a position he is entitled to the salary established for the
position, and when, through administrative error, he is not paid the
lawful salary attaching thereto, a future payment of an amount to
correct the error retroactively is not to be regarded as a retroactive
promotion such as ordinarily is prohibited by law." In
case, as can be seen from the record of personnel actions, there was
no administrative error and the salary claimed could only be obtained
if the Director in fact made an appointment to the GS-17 and GS-18
grades.
b. 24 Comp. Gen. 518 (12 January 1945)
cited this opinion as authority for the proposition
that there is a distinction between the classification of a position
and the appointment to it. It is pointed out in this opinion that an
employee who does not meet certain qualifications (minimum time in
grade) then the salary may not be paid at the rate allocated to the
position. This case involved an employee whose position was reallocated
to a higher grade but he did not meet the minimum time-in-grade
requirement. I argues, on the basis of this opinion, that
there was a position already allocated and he was assigned the duties
of that position permanently, he was not assigned on temporary detail.
Therefore, it is his contention that he was constructively appointed
to those positions; and he was permanently assigned the duties of first
the GS-17 and then the GS-18 positions. His argument flies in the face
of the general rule established by Comptroller General opinions and
Court of Claims decisions that "a federal employee is entitled only
to the compensation of the position to which he is properly appointed,
regardless of the duties and responsibilities assigned to him"
(B-117680, dated 4 January 1954). (Price v United States, 80 F. Sun-.
and cases cited therein.)
c. 33 Comp. Gen. 96 (28 August 1953)
Quoting from 32 Comp. Gen. 381: the assignment of an
employee to occupy and perform the duties of a position classified
in one grade while his salary is fixed in that of a position classifier
in a lower grade, appears to be contrary to the provision of the
Classification Act of 1949 . . . which contemplates that employees
shall receive the salary provided for the grade in which the position
they occupy and perform the duties of has been classified."
33 Comp. Gen. 96 goes on to say that the above statement "relates only
to situations where an officer otherwise is properly placed in a
position by the appointing authorities pursuant to law." In his case,
I not "properly placed" in a GS-17 or GS-18 position by
the appointing authority which appears to be the Director
paragraph 5a(5).)
.. 135 C. Cls. 890 (1956)
Gorman L. Schaible, et al v. United States
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in a suit for salary it was decided that a group of customs
inspectors were entitled to extra compensation for extra duty performer;..
I lapparently depends on one paragraph in the case, page ti:
"The clear weight of authority and the better reasoning favor the view
that full statutory compensation of public employees is mandatory, on
grounds of public policy. Any suggestion of barter and trade in public
employment is thereby eliminated. In order to make certain of this
result, protection is afforded against the pardonable, and even
commendable zeal of administrative officials in the application of
statutory standards through regulations, if as a matter of law their
sights were set too low. For these reasons, doctrines of waiver and
estoppel have no application in situations such as here are under
consideration." This case, of course, is completely distinguishable
on its facts from one in which compensation is sought for a position
which an emlioyee occupies but for which he is not paid a designated
salary. Even out of context, however, it is distinguishable from
case because in his situation there was a valid
appointment to a GS-lb position and he was fully compensated for that
position even when reassigned. Furthermore, there was no barter and
trade and no question of application of statutory standards through
regulations.
e. 5 U.S.C. 38 - Details of officers, employees, or clerks within
department
"Each head of a department may, from time to time, alter the
distribution among the various bureaus and offices of his department,
of the clerks and other employees allowed by law, except such clerks
or employees as may be required by law to be exclusively engaged upon
some specific work, as he may find it necessary and proper to do, but
all details hereunder shall be made by written order of the head of
the department, and in no case be for a period of time exceeding
one hundred and twenty days. Details so made may, on expiration,
be renewed from time to time by written order of the head of the
department, in each particular case, for periods of not exceeding
one hundred and twenty days." By this statute, Congress contemplated
"the head of a department" altering the distribution of employees
among the offices and bureaus of a department. Furthermore, this
Agency has, under section 8a of the CIA Act of 1949, broad authority
in personnel matters which suggests that the above statute is
inapplicable to Agency positions. Chapter X-1, section 9, of the
Federal Personnel Manual appears to implement the above statute.
Under "Coverage" the following appears: "This sectim applies to
details within an agency of employees who are appointed under the
Civil Service Act or who are serving in positions subject to the
Classification Act of 1949." Since this Agency's positions are out-
side the Civil Service Act and Classification Act of 1949, the provisions
on details included in the Federal Personnel Manual would not auoly
to this Agency and consequently it is argued that the statute above
also does not apply. In any event, it is difficult to equate this
statute with claim for back pay.
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7. According to information furnished by the Wage and Salary llivis.on,
Office of Personnel, the practice of this Agency has been, for all grades,
to assign personnel to positions with a grade higher than that held by
the employee assigned when deemed desirable by the supervisor. While
there is some question as to whether applies to super- STATINTL
grades, it contains the only regulatory statement on the Agency policy in
this regard. Paragraph 2f of the regulation contains the following statement:
"Normally, individuals will occupy positions which correspond
in grade to their grade after promotion. However, they may occupy
positions higher in grade than their grade after promotion, when
necessary; or they may be promoted under competitive evaluation
procedures and occupy a position lower in grade than their grade
after promotion when it is necessary in the best interests of the
Agency that they be retained in or assigned to such a position in a
personal rank assignment status."
8. An unpublished opinion of the Comptroller General, B-1378k9, dated
29 January 1959, suggests the argument that there is some responsibility
in an employee to point out that his position is not properly allocated or
classified. That part of the opinion which is pertinent reads:
"There is nothing in the record to show that either you or your
supervisor protested the position allocation or expressed any
opinion that such position was improperly classified during the
period for which additional compensation is claimed. Moreover,
It is reported that your job description sheet was reviewed in
1954, at which time it was concluded that no change was justified."
9. was assigned to positions which had allocated to them
grades GS-17 and GS-16. He was proposed for promotion but it was not
acted upon. The Agency was aware of his situation but chose not to promote
him. In these circumstances and in the light of Comptroller General opinions
and decisions of the Court of Claims, the following rule would apply: "One
who holds office is entitled to nom re than the salary of the office to
which he was appointed, whether or not he performs the duties of an office
of higher grade." (George L. Coleman v.United States, 100 C. Cls. 41 and
cases there cited.) Accordingly, it is recommended that be
informed that this Office has reviewed his claim and has found no adequate
basis for a determination in his favor. Of course, the way is still open
for him to pursue his claim with the General Accounting Office and perhaps
the Court of Claims.
OGC:MCM:jem
Subject
Signer
Chrono
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