B-141771, FEBRUARY 11, 1960, 39 COMP. GEN. 583

B-141771, FEBRUARY 11, 1960, 39 COMP. GEN. 583

CANAL ZONE EMPLOYEES - RETROACTIVE UPWARD RECLASSIFICATIONS - EFFECTIVE DATE NOTWITHSTANDING THAT IT MAY BE DIFFICULT FOR THE CANAL ZONE BOARD OF APPEALS TO MEET AT SUFFICIENTLY FREQUENT INTERVALS TO PROVIDE AN APPEALS SERVICE TO CANAL ZONE EMPLOYEES COMPARABLE WITH THAT PRESENTLY PROVIDED CLASSIFICATION ACT EMPLOYEES BY THE CIVIL SERVICE COMMISSION, A PROPOSED REVISION OF AN ADMINISTRATIVE REGULATION WHICH WOULD AUTHORIZE AN UPWARD RECLASSIFICATION TO BE RETROACTIVELY EFFECTIVE FOR CANAL ZONE EMPLOYEES FOLLOWING THE DECISION OF THE BOARD--- IN CASES NOT INVOLVING CORRECTION OF AN ERRONEOUS DOWNGRADING--- WOULD BE IN VIOLATION OF THE RULE AGAINST RETROACTIVE PROMOTIONS AND IS, THEREFORE, NOT APPROVED IN THE ABSENCE OF EXPRESS STATUTORY AUTHORITY.

TO THE SECRETARY OF THE ARMY, FEBRUARY 11, 1960:

ON JANUARY 19, 1960, YOUR ASSISTANT SECRETARY OF THE ARMY ( FM), REQUESTED OUR DECISION CONCERNING THE PROPRIETY OF A PROPOSED CHANGE IN SUBSECTION 209.5 (D) OF THE REGULATIONS GOVERNING EMPLOYMENT AND COMPENSATION IN THE CANAL ZONE--- 24 FR 347. THE PROPOSED REVISION OF SUBSECTION 209.5 (D) IS AS FOLLOWS:

(D) DECISIONS OF THE CANAL ZONE BOARD OF APPEALS. DECISIONS OF THE CANAL ZONE BOARD OF APPEALS SHALL BE MADE BY MAJORITY VOTE OF THE MEMBERS, SHALL BE BINDING UPON ALL EMPLOYING DEPARTMENTS, AND SHALL BE EFFECTIVE NOT LATER THAN THE BEGINNING OF THE FOURTH PAY PERIOD FOLLOWING THE RECEIPT OF THE DECISION IN THE EMPLOYING DEPARTMENT UNLESS A SPECIFIC DATE IS STATED IN THE DECISION IN ACCORDANCE WITH SUBPARAGRAPH (1) OR (2) OF THIS PARAGRAPH.

(1) WHEN THE APPEAL TO THE CANAL ZONE BOARD OF APPEALS IS MADE WITHIN THIRTY (30) CALENDAR DAYS FROM THE DATE OF AN EMPLOYEE'S RECEIPT OF AN ADVERSE DECISION FROM HIS EMPLOYING DEPARTMENT ON A CLASSIFICATION APPEAL PROVIDED BY SECTION 209-4, OF THIS PART, IS FROM AN ACTION LOWERING THE GRADE OR PAY LEVEL OF THE EMPLOYEE'S POSITION, AND THE DECISION OF THE CANAL ZONE BOARD OF APPEALS RAISES THE GRADE OR PAY LEVEL OF THE POSITION, THE EFFECTIVE DATE SHALL BE RETROACTIVE TO THE DATE OF THE ACTION WHICH LOWERED THE GRADE OR PAY LEVEL. HOWEVER, WHEN THE DECISION OF THE CANAL ZONE BOARD OF APPEALS RAISES THE GRADE OR PAY LEVEL OF THE POSITION ABOVE THE GRADE OR PAY LEVEL IN EFFECT IMMEDIATELY PRECEDING THE LOWERING THEREOF, RETROACTIVITY WILL APPLY ONLY TO THE EXTENT OF RESTORATION TO THE GRADE OR PAY LEVEL IN EFFECT IMMEDIATELY PRECEDING THE LOWERING THEREOF. RETROACTIVITY MAY BE BASED ONLY ON DUTIES AND RESPONSIBILITIES EXISTING AT THE TIME OF THE LOWERING OF THE GRADE OR PAY LEVEL AND NOT ON THE BASIS OF DUTIES AND RESPONSIBILITIES LATER ASSIGNED. THE RIGHT TO A RETROACTIVE EFFECTIVE DATE UNDER THIS SUBPARAGRAPH MAY BE PRESERVED IN THE DISCRETION OF THE CANAL ZONE BOARD OF APPEALS UPON A SHOWING BY THE EMPLOYEE THAT REASONS BEYOND HIS CONTROL PREVENTED HIM FROM APPEALING WITHIN THE THIRTY- DAY PERIOD REFERRED TO IN THIS SUBPARAGRAPH AND THAT HE DID APPEAL AS PROMPTLY AS CIRCUMSTANCES PERMITTED.

(2) WHEN THE APPEAL TO THE CANAL ZONE BOARD OF APPEALS IS MADE WITHIN THIRTY (30) CALENDAR DAYS FROM THE DATE OF AN EMPLOYEE'S RECEIPT OF AN ADVERSE DECISION FROM HIS EMPLOYING DEPARTMENT ON A CLASSIFICATION APPEAL PROVIDED BY SECTION 209.4 OF THIS PART, NO ACTION LOWERING THE GRADE OR PAY LEVEL OF THE EMPLOYEE'S POSITION IS INVOLVED, AND THE DECISION OF THE CANAL ZONE BOARD OF APPEALS RAISES THE GRADE OR PAY LEVEL OF THE POSITION, THE EFFECTIVE DATE SHALL BE EITHER THE DATE OF THE DECISION OF THE CANAL ZONE BOARD OF APPEALS OR THE SIXTIETH (60) CALENDAR DAY FOLLOWING THE EMPLOYEE'S RECEIPT OF THE ADVERSE DECISION FROM HIS EMPLOYING DEPARTMENT, WHICHEVER IS EARLIER.

THE LEGAL BASIS UPON WHICH THE PROPOSED REVISION IS PREDICATED IS THE ACT OF JULY 25, 1958, 72 STAT. 405, PUBLIC LAW 85-550, AS IMPLEMENTED BY EXECUTIVE ORDER NO. 10794, DECEMBER 10, 1958.

(B) THE PRESIDENT IS AUTHORIZED, TO THE EXTENT HE DEEMS APPROPRIATE---

(2) TO EXTEND TO ANY EMPLOYEE, WHETHER OR NOT SUCH EMPLOYEE IS A CITIZEN OF THE UNITED STATES, THE SAME RIGHTS AND PRIVILEGES AS ARE PROVIDED BY APPLICABLE LAWS AND REGULATIONS FOR CITIZENS OF THE UNITED STATES EMPLOYED IN THE COMPETITIVE CIVIL SERVICE OF THE GOVERNMENT OF THE UNITED STATES.

SECTION 15 OF THE ACT, 72 STAT. 411, IS AS FOLLOWS:

(A) THE PRESIDENT SHALL COORDINATE THE POLICIES AND ACTIVITIES OF THE RESPECTIVE DEPARTMENTS UNDER THIS ACT.

(B) THE PRESIDENT IS AUTHORIZED TO PROMULGATE SUCH REGULATIONS AS MAY BE NECESSARY AND APPROPRIATE TO CARRY OUT THE PROVISIONS AND ACCOMPLISH THE PURPOSES OF THIS ACT.

(C) THE PRESIDENT IS AUTHORIZED TO DELEGATE ANY AUTHORITY VESTED TO HIM BY THIS ACT AND TO PROVIDE FOR THE REDELEGATION OF ANY SUCH AUTHORITY.

THE PRESIDENT, UNDER SECTION 2 (A) OF EXECUTIVE ORDER NO. 10794, DELEGATED TO THE SECRETARY OF THE ARMY--- WITH POWER TO REDELEGATE--- MUCH OF THE AUTHORITY GRANTED HIM UNDER THE ACT, INCLUDING AUTHORITY:

(2) TO EXTEND TO ANY EMPLOYEE, WHETHER OR NOT SUCH EMPLOYEE IS A CITIZEN OF THE UNITED STATES, THE SAME RIGHTS AND PRIVILEGES AS ARE PROVIDED BY APPLICABLE LAWS AND REGULATIONS FOR CITIZENS OF THE UNITED STATES EMPLOYED IN THE COMPETITIVE CIVIL SERVICE OF THE GOVERNMENT OF THE UNITED STATES.

(3) TO COORDINATE THE POLICIES AND ACTIVITIES OF THE RESPECTIVE DEPARTMENTS UNDER THE ACT.

(4) TO PROMULGATE SUCH REGULATIONS AS MAY BE NECESSARY AND APPROPRIATE TO CARRY OUT THE PROVISIONS AND ACCOMPLISH THE PURPOSES OF THE ACT.

THE OTHER SECTIONS OF THE ACT CITED IN YOUR DEPARTMENT'S LETTER, NAMELY, SECTIONS 5 (C) AND (10), 72 STAT. 407 AND 408, LEND SUPPORT TO THE VIEW EXPRESSED THEREIN THAT THE GENERAL INTENT OF THE LEGISLATION IS TO PROVIDE SUBSTANTIALLY EQUAL EMPLOYMENT AND COMPENSATION BENEFITS TO ALL EMPLOYEES IN THE CANAL ZONE REGARDLESS OF CITIZENSHIP AND THAT, IN GENERAL, THE PERSONNEL SYSTEM IN THE CANAL ZONE SHOULD, SO FAR AS PRACTICABLE, BE COMPARABLE WITH THE FEDERAL PERSONNEL SYSTEM WITHIN THE UNITED STATES. THAT END EXECUTIVE ORDER NO. 10794, IN IMPLEMENTING THE ACT, ESTABLISHES (1) A CANAL ZONE MERIT SYSTEM UNDER WHICH EMPLOYEES IN THE CANAL ZONE WOULD BE GRANTED BENEFITS SIMILAR TO THOSE OF EMPLOYEES IN THE COMPETITIVE CIVIL SERVICE, AND (2) THE CANAL ZONE BOARD OF APPEALS WHICH WOULD HEAR AND DETERMINE APPEALS INVOLVING POSITION CLASSIFICATION MATTERS.

PARAGRAPH (1) OF SUBSECTION 209.5 (D) OF THE PROPOSED REGULATIONS APPEARS SUBSTANTIALLY THE SAME AS THE APPLICABLE POSITION CLASSIFICATION APPEAL REGULATIONS OF THE CIVIL SERVICE COMMISSION, SO FAR AS CONCERNS THE EFFECTIVE DATE OF A CLASSIFICATION ACTION CORRECTING A PREVIOUS ERRONEOUS DOWNGRADING. WE SEE NO LEGAL BASIS FOR OBJECTING TO THAT PARAGRAPH.

ON THE OTHER HAND, WE HAVE SERIOUS DOUBT CONCERNING THE LEGAL PROPRIETY OF PARAGRAPH (2) OF THE PROPOSED NEW SUBSECTION. PARAGRAPH (2) ESTABLISHES THE EFFECTIVE DATE OF AN UPWARD RECLASSIFICATION--- IN A CASE NOT INVOLVING THE CORRECTION OF AN ERRONEOUS DOWNGRADING--- AS ,EITHER THE DATE OF THE DECISION OF THE CANAL ZONE BOARD OF APPEALS ON THE SIXTIETH (60) CALENDAR DAY FOLLOWING THE EMPLOYEE'S RECEIPT OF THE ADVERSE DECISION FROM HIS EMPLOYING DEPARTMENT, WHICHEVER IS EARLIER.' UNDER THAT PROVISION, IF THE SIXTIETH DAY OCCURS PRIOR TO THE DECISION OF THE BOARD OF APPEALS, RETROACTIVE PAYMENT WOULD BE REQUIRED. FURTHERMORE, IF THE DECISION OF THE BOARD OF APPEALS OCCURS PRIOR TO THE EXPIRATION OF THE SIXTIETH CALENDAR DAY BUT SUCH DECISION IS NOT COMMUNICATED TO THE ADMINISTRATIVE OFFICE ON THE DATE THAT IT IS RENDERED, A RETROACTIVE PAYMENT ALSO WOULD BE REQUIRED. WE HAVE HELD-- IN A CASE NOT INVOLVING CORRECTION OF AN ERRONEOUS DOWNGRADING--- THAT WHEN A POSITION CLASSIFICATION IS RAISED THERE IS INVOLVED NOT ONLY A CHANGE IN THE CLASSIFICATION OF THE POSITION BUT A PROMOTION OF THE INCUMBENT OF THE POSITION IF HE OTHERWISE IS QUALIFIED FOR PROMOTION TO THE HIGHER GRADE AND CONTINUES TO OCCUPY THE POSITION. HOWEVER, IN SUCH A CASE THE PROMOTION MAY BE MADE EFFECTIVE ONLY FROM THE DATE OF ADMINISTRATIVE ACTION. SEE 35 COMP. GEN. 153. WHILE PARAGRAPH (1) OF THE PROPOSED NEW SUBSECTION RECOGNIZES AND APPLIES THE PRINCIPLE ENUNCIATED IN 35 COMP. GEN. 153, THIS PARAGRAPH--- PARAGRAPH (2) OF THE PROPOSED NEW SUBSECTION-- - APPEARS TO DISREGARD THAT PRINCIPLE.

WE APPRECIATE THAT IT MAY BE DIFFICULT FOR THE CANAL ZONE BOARD OF APPEALS TO MEET AT SUFFICIENTLY FREQUENT INTERVALS TO PROVIDE AN APPEALS SERVICE TO CANAL ZONE EMPLOYEES COMPARABLE WITH THAT PRESENTLY PROVIDED CLASSIFICATION ACT EMPLOYEES BY THE CIVIL SERVICE COMMISSION, BUT WE DO NOT VIEW SUCH FACT AS SUFFICIENT TO OVERCOME THE PROHIBITION AGAINST RETROACTIVE PROMOTIONS. THEREFORE, IN THE ABSENCE OF AN EXPRESS STATUTORY PROVISION AUTHORIZING THE RETROACTIVE PROMOTION OF CANAL ZONE EMPLOYEES UNDER THE CIRCUMSTANCES DESCRIBED IN PARAGRAPH (2) OF THE PROPOSED REVISION OF SUBSECTION 209.5 (D/--- AND WE KNOW OF NO SUCH STATUTORY AUTHORITY EITHER IN THE ACT OF JULY 25, 1958, OR ELSEWHERE--- WE WOULD NOT BE WARRANTED IN APPROVING THE PROPOSED REVISION EMBODIED IN THAT PARAGRAPH.