B-116957, OCTOBER 2, 1953, 33 COMP. GEN. 140

B-116957: Oct 2, 1953

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1953: REFERENCE IS MADE TO THE EXECUTIVE DIRECTOR'S LETTER OF SEPTEMBER 8. IT IS STATED THAT THE COMMISSION NEVER HAS HAD ANY QUESTION AS TO ITS AUTHORITY GENERALLY TO GRANT RETROACTIVE APPROVAL IN THE CASE OF PROMOTIONS MADE UNDER AUTHORITY OF THE CIVIL SERVICE ACT AND REGULATIONS SO FAR AS QUALIFICATIONS ARE CONCERNED. THAT THE AGENCIES ARE ADVISED THAT FOR PAY PURPOSES SUCH PROMOTIONS ARE SUBJECT TO ANY APPLICABLE DECISIONS OF THE COMPTROLLER GENERAL. IT NEVER HAS SANCTIONED RETROACTIVE PROMOTIONS SO FAR AS THE PAYMENT OF SALARY IS CONCERNED. ANY SUCH APPROVAL OF A PRIOR PROMOTION ERRONEOUSLY MADE BY AN EXECUTIVE AGENCY WOULD NOT BE CONSIDERED EFFECTIVE SO FAR AS THE PAYMENT OF COMPENSATION IS CONCERNED PRIOR TO THE DATE OF SUCH ACTION BY THE CIVIL SERVICE COMMISSION.

B-116957, OCTOBER 2, 1953, 33 COMP. GEN. 140

COMPENSATION - RETROACTIVE PROMOTIONS - EXCEPTIONS TO "WRITTEN RIDER" - EFFECTIVE DATE FOR SALARY PURPOSES ACTION BY THE CIVIL SERVICE COMMISSION PURPORTING TO AUTHORIZE OR APPROVE RETROACTIVE PROMOTIONS CONTRARY TO THE TIME-IN-GRADE PROMOTION RESTRICTIONS OF SECTION 1310 OF THE ACT OF NOVEMBER 1, 1951, AS AMENDED, ( WHITTEN RIDER), UNDER AUTHORITY OF THE HARDSHIP PROVISO IN SAID SECTION, WHICH AUTHORIZES THE COMMISSION TO GRANT EXCEPTIONS TO TIME-IN-GRADE PROVISIONS IN MERITORIOUS CASES, MAY NOT BE ACCEPTED BY THE GENERAL ACCOUNTING OFFICE AS AUTHORIZING THE PAYMENT OF INCREASED COMPENSATION FOR ANY PERIOD PRIOR TO THE DATE OF THE ACTION BY THE CIVIL SERVICE COMMISSION.

COMPTROLLER GENERAL WARREN TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, OCTOBER 2, 1953:

REFERENCE IS MADE TO THE EXECUTIVE DIRECTOR'S LETTER OF SEPTEMBER 8, 1953, REQUESTING DECISION WHETHER THE COMMISSION MAY APPROVE RETROACTIVELY PROMOTIONS MADE IN CONTRAVENTION OF SECTION 1302 OF THE ACT OF JUNE 5, 1952, PUBLIC LAW 375, 66 STAT. 122, UNDER AUTHORITY OF THE FOLLOWING PROVISO THEREIN:

PROVIDED FURTHER, THAT, NOTWITHSTANDING THE PROVISIONS HEREOF, AND IN ORDER TO AVOID UNDUE HARDSHIP OR INEQUITY, THE CIVIL SERVICE COMMISSION, WHEN REQUESTED BY THE HEAD OF THE AGENCY INVOLVED, MAY AUTHORIZE PROMOTIONS IN INDIVIDUAL CASES OF A MERITORIOUS NATURE. ( ITALICS SUPPLIED.)

IT IS STATED THAT THE COMMISSION NEVER HAS HAD ANY QUESTION AS TO ITS AUTHORITY GENERALLY TO GRANT RETROACTIVE APPROVAL IN THE CASE OF PROMOTIONS MADE UNDER AUTHORITY OF THE CIVIL SERVICE ACT AND REGULATIONS SO FAR AS QUALIFICATIONS ARE CONCERNED, BUT THAT THE AGENCIES ARE ADVISED THAT FOR PAY PURPOSES SUCH PROMOTIONS ARE SUBJECT TO ANY APPLICABLE DECISIONS OF THE COMPTROLLER GENERAL.

THE WORD,"AUTHORIZE" SUCH AS THAT USED IN THE ABOVE QUOTE, HAS BEEN DEFINED BY THIS OFFICE AS CONTEMPLATING PROSPECTIVE ACTION ONLY AS DISTINGUISHED FROM THE WORD,"APPROVE," WHICH CONTEMPLATES APPROVAL OF AN ACTION ALREADY TAKEN. 22 COMP. GEN. 895. WHILE THIS OFFICE GENERALLY DOES NOT QUESTION ACTION TAKEN BY THE CIVIL SERVICE COMMISSION SO FAR AS IT AFFECTS THE STATUS OF THE INDIVIDUAL UNDER THE CIVIL SERVICE ACT AND REGULATIONS, IT NEVER HAS SANCTIONED RETROACTIVE PROMOTIONS SO FAR AS THE PAYMENT OF SALARY IS CONCERNED. SEE B-106137, MAY 21, 1953, 32 COMP. GEN. 527.

ACCORDINGLY, ANY ACTION ON THE PART OF THE CIVIL SERVICE COMMISSION UNDER AUTHORITY OF THE PROVISO ABOVE QUOTED PURPORTING TO AUTHORIZE RETROACTIVE PROMOTIONS CONTRARY TO THE WHITTEN RIDER UPON THE BASIS OF THE MERITORIOUS NATURE OF THE PROMOTION, MAY NOT BE ACCEPTED BY THIS OFFICE AS AUTHORIZING THE PAYMENT OF THE INCREASED COMPENSATION FOR ANY PERIOD PRIOR TO THE DATE OF ACTION BY THE CIVIL SERVICE COMMISSION. FURTHER, AS THE WHITTEN RIDER DOES NOT AUTHORIZE PROMOTIONS BY EXECUTIVE AGENCIES FOR MERITORIOUS REASONS SUBJECT TO APPROVAL BY THE CIVIL SERVICE COMMISSION, ANY SUCH APPROVAL OF A PRIOR PROMOTION ERRONEOUSLY MADE BY AN EXECUTIVE AGENCY WOULD NOT BE CONSIDERED EFFECTIVE SO FAR AS THE PAYMENT OF COMPENSATION IS CONCERNED PRIOR TO THE DATE OF SUCH ACTION BY THE CIVIL SERVICE COMMISSION.