B-124064, AUG. 17, 1955

B-124064, AUG. 17, 1955

TO MR. C. A. WHARTON, DIRECTOR, DISTRICT UNEMPLOYMENT COMPENSATION BOARD:

REFERENCE IS MADE TO YOUR LETTER OF MAY 20, 1955, REQUESTING OUR DECISION CONCERNING THE PROPER ACTION TO BE TAKEN REGARDING THE PAY OF JAMES M. PORTRAY, JR., AND ROBERT E. HENRETTY, WHO WERE APPOINTED TO CLAIMS EXAMINER POSITIONS AT GRADE GS-6, IN THE DISTRICT UNEMPLOYMENT COMPENSATION BOARD, BY TRANSFER FROM GS-5 EXAMINER POSITIONS OF THE VETERANS ADMINISTRATION--- THE APPOINTMENTS TO THE HIGHER GRADES BEING QUESTIONABLE UNDER THE SO-CALLED "WHITTEN RIDER.'

YOU SAY THAT THE BOARD HAS CLAIMS EXAMINER POSITIONS AT GS-4 AND GS 6, BUT NONE IN THE INTERVENING GRADE GS-5; HENCE, THE PRACTICE WITHIN THE BOARD HAS BEEN TO PROMOTE ITS CLAIMS EXAMINERS FROM GS-4 TO GS-6. AT THE TIME THESE APPOINTMENTS BY TRANSFER FROM THE VETERANS ADMINISTRATION WERE MADE YOU SAY THE BOARD WAS PRESSED FOR TIME TO RECRUIT AND TRAIN PERSONNEL TO ADMINISTER CERTAIN PROVISIONS OF LAW EFFECTIVE JANUARY 1, 1955. THEREFORE, YOU OBTAINED THE ASSISTANCE OF THE CIVIL SERVICE COMMISSION IN THE RECRUITMENT OF ADDITIONAL CLAIMS EXAMINERS AND THE BOARD WAS AUTHORIZED TO HIRE PERSONNEL FROM SOURCES OUTSIDE THE ESTABLISHED CIVIL SERVICE REGISTER. IN EFFECTING THE TRANSFER OF THESE EMPLOYEES YOU SAY THE PRINCIPLES APPLICABLE IN PROMOTING EMPLOYEES WITHIN YOUR AGENCY WERE APPLIED. IN YOUR LETTER YOU REFER TO SECTION 2.502/F) OF THE FEDERAL PERSONNEL MANUAL. THAT PROVISION WAS PUBLISHED DECEMBER 16, 1954, 19 F.R. 8604, 8612, 5 C.F.R. 2.502; HENCE, YOUR REFERENCE PROBABLY RELATES TO THE SIMILAR REGULATION IN EFFECT AT THE TIME OF THESE TRANSFERS, NAMELY, SECTION 8.109, 17 F.R. 5539 (JUNE 20, 1952).

IT APPEARS THAT THE TWO EMPLOYEES WERE APPOINTED BY TRANSFER PURSUANT TO AUTHORITY DELEGATED UNDER CIVIL SERVICE REGULATION 8.108 (A) (3). ALTHOUGH EACH TRANSFERRED EMPLOYEE HAD AT THE TIME SERVED LESS THAN SIX MONTHS IN HIS GS-5 POSITION AT THE VETERANS ADMINISTRATION, EACH HAD SERVED MORE THAN FOUR YEARS AT A GS-4 GRADE, IN A POSITION THAT GAVE THE SAME QUALIFYING EXPERIENCE AS IS REQUIRED OF AN EMPLOYEE OF YOUR AGENCY FOR PROMOTION TO THE POSITION OF CLAIMS EXAMINER GS-6. IN THAT RESPECT, SECTION 1310 (C) OF THE ACT OF NOVEMBER 1, 1951, 65 STAT. 758, AS AMENDED, PROVIDES THAT NO PERSON SHALL BE PROMOTED OR TRANSFERRED TO A HIGHER GRADE SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, UNLESS THE EMPLOYEE HAD SERVED AT LEAST ONE YEAR IN THE NEXT LOWER GRADE. THEREUNDER, THE CIVIL SERVICE COMMISSION IS AUTHORIZED TO PROVIDE BY REGULATIONS FOR PROMOTIONS OF TWO GRADES IN ONE YEAR OF AN EMPLOYEE OF THE AGENCY CONCERNED WHEN THERE IS NO POSITION IN THE NORMAL LINE OF PROMOTION IN THE GRADE IMMEDIATELY BELOW THAT OF THE POSITION TO BE FILLED. THE REGULATIONS ISSUED THEREUNDER, 5 C.F.R. 8.109 AMPLIFY THE STATUTE'S RESTRICTIONS UPON SUCH PROMOTIONS. SUBPARAGRAPHS (B), (D), AND (F) OF THE REGULATION ARE FOR CONSIDERATION IN THIS MATTER. THEIR REQUIREMENT IS THAT APPROVAL OF THE COMMISSION BE OBTAINED BEFORE SUCH A TWO-GRADE PROMOTION IS GIVEN AN EMPLOYEE. SUBPARAGRAPH 8.109 (J) OF THE REGULATION, AS IN THE ACT, PROVIDES "IN ORDER TO AVOID UNDUE HARDSHIP OR INEQUITY, THE COMMISSION MAY WHEN REQUESTED BY THE HEAD OF THE AGENCY INVOLVED AUTHORIZE PROMOTIONS IN INDIVIDUAL CASES OF MERITORIOUS NATURE WITHOUT REGARD TO THE RESTRICTIONS OF THIS SECTION.'

AT THE TIME, YOU SAY, THE VETERANS ADMINISTRATION WAS REDUCING ITS FORCE IN A DIVISION WHERE THESE EMPLOYEES' EXPERIENCE QUALIFIED THEM FOR THE CLAIMS EXAMINER GS-6 POSITIONS IN YOUR AGENCY. SEVERAL OF SUCH EXAMINERS WERE SELECTED FOR TRANSFER TO YOUR AGENCY--- APPARENTLY ONLY THE TWO HERE INVOLVED HAVING HAD LESS THAN ONE YEAR'S SERVICE AT GS-5. HOWEVER, HAD THE RESTRICTION WITH REGARD TO TWO-GRADE PROMOTIONS BEEN MORE CLEARLY UNDERSTOOD, PRIOR APPROVAL FOR THE REQUIRED WAIVER OF THE RESTRICTION WOULD HAVE BEEN REQUESTED FROM THE COMMISSION. YOU SAY THESE TWO EXAMINERS ARE UNUSUALLY WELL QUALIFIED FOR THEIR POSITIONS AND IT DOES NOT APPEAR FROM YOUR LETTER THAT THE CIVIL SERVICE COMMISSION EXPRESSED ANY OTHER OBJECTION TO THE PROMOTIONS IN QUESTION IN ITS POST AUDIT OF THE PERSONNEL ACTIONS. HOWEVER, IT APPEARS THE COMMISSION INVITED YOUR ATTENTION TO OUR DECISION OF OCTOBER 2, 1953, B-116957, 33 COMP. GEN. 140, HOLDING THAT THE APPROVAL OF AN APPOINTMENT COULD NOT BE MADE RETROACTIVE UNDER SECTION 1310 (C) (4) OF THE CITED ACT FOR THE PAYMENT OF THE INCREASED COMPENSATION FOR ANY PERIOD PRIOR TO THE TIME OF THE COMMISSION'S APPROVAL ACTION.

THE APPOINTMENTS TO THE GS-6 POSITIONS IN THESE CASES ADMITTEDLY WERE MADE AS A CONSEQUENCE OF A MISCONSTRUCTION OF THE ABOVE-CITED SECTION OF THE LAW, BUT COULD HAVE BEEN PROPER HAD PRIOR AUTHORIZATION BEEN PROCURED UNDER SUBPARAGRAPH 8.109 (J) OF THE REGULATIONS. HOWEVER, IN VIEW OF THE CIRCUMSTANCES OF THESE CASES OF THE FACT THAT YOUR AGENCY'S ACTION WAS TAKEN IN GOOD FAITH WITH NO INTENT TO EVADE THE RESTRICTIONS OF LAW AND REGULATIONS, OUR OFFICE IS NOT REQUIRED TO INSIST UPON A REFUND OF THE COMPENSATION PAID MESSRS. PORTRAY AND HENRETTY AT THE GS-6 POSITIONS, IF THEY WERE OTHERWISE ENTITLED TO THE SALARY OF SUCH POSITIONS.