B-119468, MAY 5, 1954, 33 COMP. GEN. 541

B-119468: May 5, 1954

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COMPENSATION - ERRONEOUS PROMOTIONS - WRITTEN RIDER - REFUND REQUIREMENTS EMPLOYEES WHO WERE GIVEN PROMOTIONS. WHICH SUBSEQUENTLY WERE HELD BY THE CIVIL SERVICE COMMISSION TO BE IN VIOLATION OF THE SERVICE-IN-GRADE REQUIREMENT OF SECTION 1310 (C) OF THE ACT OF NOVEMBER 1. ARE REQUIRED TO REFUND THE EXCESS SALARY RECEIVED DURING THE PERIOD THE ERRONEOUS PROMOTIONS WERE IN EFFECT. NOTWITHSTANDING THE EMPLOYEES WERE WITHOUT FAULT IN THE MATTER. 1954: REFERENCE IS MADE TO LETTER OF JANUARY 4. IT APPEARS THAT THREE EMPLOYEES WERE GIVEN PROMOTIONS WHICH THE CIVIL SERVICE COMMISSION HELD SUBSEQUENTLY TO BE IN VIOLATION OF THE WHITTEN RIDER. WERE ADMINISTRATIVELY AUTHORIZED NOVEMBER 8. IT IS STATED THAT THE REGIONAL OFFICE DID NOT RECEIVE THE NEW WHITTEN RIDER INSTRUCTIONS UNTIL NOVEMBER 6.

B-119468, MAY 5, 1954, 33 COMP. GEN. 541

COMPENSATION - ERRONEOUS PROMOTIONS - WRITTEN RIDER - REFUND REQUIREMENTS EMPLOYEES WHO WERE GIVEN PROMOTIONS, WHICH SUBSEQUENTLY WERE HELD BY THE CIVIL SERVICE COMMISSION TO BE IN VIOLATION OF THE SERVICE-IN-GRADE REQUIREMENT OF SECTION 1310 (C) OF THE ACT OF NOVEMBER 1, 1951 ( WHITTEN RIDER), ARE REQUIRED TO REFUND THE EXCESS SALARY RECEIVED DURING THE PERIOD THE ERRONEOUS PROMOTIONS WERE IN EFFECT, NOTWITHSTANDING THE EMPLOYEES WERE WITHOUT FAULT IN THE MATTER.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE INTERIOR, MAY 5, 1954:

REFERENCE IS MADE TO LETTER OF JANUARY 4, 1954, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, REQUESTING A DECISION AS TO WHETHER THE CERTIFYING OFFICER MAY BE RELIEVED FROM THE NECESSITY OF REQUIRING REFUNDS FROM THREE EMPLOYEES OF THE HELIUM DIVISION, REGION VI, BUREAU OF MINES, AMARILLO, TEXAS, IN THE AMOUNTS OF $923.47, $66.90 AND $466.57, RESPECTIVELY.

IT APPEARS THAT THREE EMPLOYEES WERE GIVEN PROMOTIONS WHICH THE CIVIL SERVICE COMMISSION HELD SUBSEQUENTLY TO BE IN VIOLATION OF THE WHITTEN RIDER, SECTION 1310 (C) OF THE ACT OF NOVEMBER 1, 1951, 65 STAT. 758, REQUIRING SERVICE IN GRADE OF ONE YEAR BEFORE BEING PROMOTED TO THE NEXT HIGHEST GRADE OR IN SOME INSTANCES THE NEXT TWO HIGHER GRADES. THE PROMOTIONS HAD BEEN GIVEN CIVIL SERVICE APPROVAL OCTOBER 29 AND NOVEMBER 1, 1951, AND WERE ADMINISTRATIVELY AUTHORIZED NOVEMBER 8, TO BE EFFECTIVE NOVEMBER 11, 1951. IT IS STATED THAT THE REGIONAL OFFICE DID NOT RECEIVE THE NEW WHITTEN RIDER INSTRUCTIONS UNTIL NOVEMBER 6, 1951, AND THAT THE OBJECTION TO THE PROMOTIONS IN QUESTION WAS NOT BROUGHT TO THE ATTENTION OF YOUR DEPARTMENT UNTIL A CIVIL SERVICE INSPECTION IN MARCH 1953. CORRECTIVE ACTION AS RECOMMENDED BY THE CIVIL SERVICE COMMISSION WAS NOT TAKEN UNTIL SEPTEMBER 27, 1953, DUE TO THE FACT THAT THE BUREAU OF MINES DESIRED TO MAKE SURE THAT ALL LEGAL ASPECTS WERE FULLY CONSIDERED BEFORE FINAL ACTION.

IN THE LETTER OF JANUARY 4, IT IS URGED THAT COLLECTIONS SHOULD NOT BE MADE FROM THE EMPLOYEES ON THE GROUND, IN SUBSTANCE, THAT UNDER THE TERMS OF THE FIRST WHITTEN RIDER THE CIVIL SERVICE COMMISSION COULD AND DID GIVEN ADVANCE APPROVAL TO ALL THREE OF THE PROMOTIONS AND THAT BUREAU OF MINES PROCESSED THE ACTIONS ON THE ASSUMPTION THAT THE CIVIL SERVICE COMMISSION HAD CONSIDERED AND APPROVED THE PROMOTIONS. ALSO, IT IS POINTED OUT THAT THE PROMOTIONS WERE ACCEPTED BY THE EMPLOYEES IN GOOD FAITH; THAT THEY ARE NOT RESPONSIBLE IN ANY WAY FOR THE CORRECTIVE ACTIONS REQUIRED AND THAT TO CALL UPON THEM FOR FINANCIAL REIMBURSEMENT AT THIS LATE DATE WOULD BE UNJUST.

THE FIRST WHITTEN RIDER IN EFFECT PRIOR TO NOVEMBER 1, 1951, 64 STAT. 1066, CONTAINED NO SPECIFIC PROVISION REQUIRING ANY TIME IN GRADE BEFORE PROMOTION TO A HIGHER GRADE. HOWEVER, IN ACCORDANCE WITH THE GENERAL OBJECTIVE OF THAT STATUTE, THE CIVIL SERVICE COMMISSION AMENDED ITS REGULATIONS EFFECTIVE DECEMBER 1, 1950, TO REQUIRE SIX MONTHS' SERVICE IN GRADE BEFORE AN EMPLOYEE COULD BE PROMOTED TO A HIGHER GRADE, BUT PERMITTING PROMOTION OF TWO GRADES AT ONE TIME IF HE WAS BEING ADVANCED FROM ANY GRADE BELOW GS-10. THE REGULATIONS (SECTION 8.109) WERE FURTHER AMENDED EFFECTIVE JULY 10, 1951, TO PROVIDE, IN PERTINENT PART, AS FOLLOWS:

(B) NO PERSON SHALL BE APPOINTED OR PROMOTED TO A POSITION IN ANY GRADE FROM GS-6 TO GS-11 INCLUSIVE (OR EQUIVALENT) WHICH IS MORE THAN TWO GRADES, OR TO A POSITION IN GRADE GS-12, OR HIGHER (OR EQUIVALENT) WHICH IS MORE THAN ONE GRADE ABOVE THE LOWEST GRADE HELD BY HIM IN THE FEDERAL CIVIL SERVICE WITHIN THE PRECEDING SIX MONTHS UNDER INDEFINITE OR PERMANENT APPOINTMENT.

(C) THE COMMISSION BY PRIOR GENERAL OR SPECIFIC APPROVAL MAY PERMIT EXCEPTIONS IN THE INTEREST OF THE SERVICE TO THE RESTRICTIONS IN THIS SECTION.

THE SUBMISSION OF A PROPOSED PROMOTION TO THE CIVIL SERVICE COMMISSION FOR APPROVAL OR EVEN THE APPROVAL BY THAT AGENCY PRIOR TO NOVEMBER 1, 1951, THE EFFECTIVE DATE OF THE SECOND WHITTEN RIDER (SECTION 1310 OF THE ACT OF NOVEMBER 1, 1951), MAY NOT BE REGARDED AS A PROMOTION SO AS TO SATISFY THE MORE RIGID REQUIREMENTS OF THAT STATUTE WHICH SUPERSEDED THE REGULATIONS OF THE CIVIL SERVICE COMMISSION IN EFFECT PRIOR THERETO. SEE DEPARTMENTAL CIRCULAR 671, SUPPLEMENT NO. 2, DATED DECEMBER 14, 1951, ISSUED BY THE COMMISSION. THAT IS TO SAY, THE PROMOTIONS COULD NOT BE CONSUMMATED UNTIL PLACED IN EFFECT BY THE APPOINTING AUTHORITY. IN THE INSTANT CASE BEFORE SUCH ACTION COULD BE TAKEN THE ABOVE STATUTE WAS ENACTED AND BECAME CONTROLLING ON AND AFTER NOVEMBER 1, 1951.

AS THE PROMOTIONS WERE IN CONTRAVENTION OF A RESTRICTION IN A PUBLIC LAW OF WHICH ALL PERSONS ARE PRESUMED TO HAVE KNOWLEDGE, THIS OFFICE IS WITHOUT AUTHORITY TO GRANT RELIEF IN THESE CASES, IRRESPECTIVE OF THE FACT THAT THE EMPLOYEES WERE WITHOUT FAULT IN THE MATTER. SEE 31 COMP. GEN. 305, 564. ACCORDINGLY, THE EMPLOYEES SHOULD BE INSTRUCTED TO MAKE REFUNDS OF THE EXCESS SALARIES RECEIVED DURING THE PERIOD THE ERRONEOUS PROMOTIONS WERE IN EFFECT.

IN VIEW OF THE AMOUNTS INVOLVED THE REFUNDS MAY BE PERMITTED TO BE MADE IN INSTALLMENTS EXTENDING OVER A REASONABLE PERIOD OF TIME.