B-126442, APR. 5, 1956

B-126442: Apr 5, 1956

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WHO WAS APPOINTED BY TRANSFER FROM A GRADE GS-5 POSITION. FOR WHICH THE CIVIL SERVICE COMMISSION WAS UNABLE TO SUPPLY ELIGIBLES. JOHNSON WAS TRANSFERRED AND PROMOTED TO THE GRADE GS-7 POSITION REFERRED TO ABOVE BECAUSE THERE WAS NO POSITION ALLOCATED ADMINISTRATIVELY TO GRADE GS-6 EVEN THOUGH SUCH POSITIONS WERE IN SERIES CODE ALLOCABLE AT ONE-GRADE INTERVALS AS CONTRASTED TO CERTAIN POSITIONS UNDER THE CLASSIFICATION ACT WHICH ARE ALLOCABLE AT ONLY TWO-GRADE INTERVALS. IT WAS ADMINISTRATIVELY FELT THAT SINCE YOU HAD POSITIONS ONLY IN THIS LINE OF WORK ALLOCATED ADMINISTRATIVELY IN GRADES GS-5 AND 7 THE ACTION OF TRANSFERRING AND PROMOTING MR. JOHNSON FOLLOWED YOUR NORMAL LINE OF PROMOTION AND WAS PROPER.

B-126442, APR. 5, 1956

TO THE SECRETARY OF AGRICULTURE:

ON DECEMBER 23, 1955, YOUR ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION ON THE PROPER ACTION TO BE TAKEN IN THE CASE OF MR. CLARENCE W. JOHNSON, JR., WHO WAS APPOINTED BY TRANSFER FROM A GRADE GS-5 POSITION, NAVAL ORDNANCE LABORATORY, WHITE OAKS, MARYLAND, TO A GRADE GS-7 POSITION WITH YOUR DEPARTMENT DECEMBER 5, 1954.

THE RECORD SHOWS THAT MR. JOHNSON HAD SERVED IN HIS GRADE GS-5 POSITION, ILLUSTRATOR (TECHNICAL) AT THE NAVAL ORDNANCE LABORATORY, FOR MORE THAN ONE YEAR. YOUR DEPARTMENT HAD OPENINGS IN YOUR EXHIBITS SERVICE, OFFICE OF INFORMATION, FOR GRADE GS-7 POSITIONS, EXHIBITS SPECIALIST, FOR WHICH THE CIVIL SERVICE COMMISSION WAS UNABLE TO SUPPLY ELIGIBLES. THE COMMISSION THEREFORE AUTHORIZED YOUR DEPARTMENT TO FILL THE VACANCY. AS A RESULT, MR. JOHNSON WAS TRANSFERRED AND PROMOTED TO THE GRADE GS-7 POSITION REFERRED TO ABOVE BECAUSE THERE WAS NO POSITION ALLOCATED ADMINISTRATIVELY TO GRADE GS-6 EVEN THOUGH SUCH POSITIONS WERE IN SERIES CODE ALLOCABLE AT ONE-GRADE INTERVALS AS CONTRASTED TO CERTAIN POSITIONS UNDER THE CLASSIFICATION ACT WHICH ARE ALLOCABLE AT ONLY TWO-GRADE INTERVALS. THUS, IT WAS ADMINISTRATIVELY FELT THAT SINCE YOU HAD POSITIONS ONLY IN THIS LINE OF WORK ALLOCATED ADMINISTRATIVELY IN GRADES GS-5 AND 7 THE ACTION OF TRANSFERRING AND PROMOTING MR. JOHNSON FOLLOWED YOUR NORMAL LINE OF PROMOTION AND WAS PROPER. HOWEVER, INSPECTORS OF THE CIVIL SERVICE COMMISSION DURING AN INSPECTION OF PERSONNEL ACTIONS IN NOVEMBER 1955 POINTED OUT THAT THE REGULATION PERMITTING TWO-GRADE PROMOTIONS APPLIES ONLY IN THE EVENT THE EMPLOYEE IS SERVING IN THE AGENCY AT THE TIME OF THE PROMOTION. WE ARE INFORMALLY ADVISED THAT A PERSONNEL ACTION WAS TAKEN PLACING THE EMPLOYEE IN GS-5 EFFECTIVE DECEMBER 21, 1955, AND SHORTLY THEREAFTER WAS PROMOTED TO GS-7.

IN VIEW OF THE ADMINISTRATIVE ACTION AND THE INFORMATION FURNISHED BY THE REPRESENTATIVES OF THE CIVIL SERVICE COMMISSION, WE FELT IT PROPER TO TAKE THE MATTER UP WITH THE CIVIL SERVICE COMMISSION SINCE THAT AGENCY HAS THE RESPONSIBILITY FOR THE ADMINISTRATION OF THE SO CALLED ,WHITTEN AMENDMENT," SECTION 1310 (C) OF THE ACT OF NOVEMBER 1, 1951, 65 STAT. 758, AND THE ISSUANCE OF REGULATIONS TO CARRY OUT THE PROVISIONS THEREOF.

THE COMMISSION REPORTS, IN PERTINENT PART, AS FOLLOWS:

"IN MAKING THIS TRANSFER, IN WHICH A TWO-GRADE PROMOTION WAS INVOLVED, THE DEPARTMENT OF AGRICULTURE APPLIED REGULATION 8.109 (F) (NOW REGULATION 2.502 (F) ). AT THE TIME OF MR. JOHNSON'S TRANSFER REGULATION 8.109 (F) READ:

"/F) NORMAL LINE OF PROMOTION. AN EMPLOYEE OF THE AGENCY WHO HAS 1 YEAR OF SERVICE TWO GRADES LOWER THAN THE POSITION BEING FILLED MAY, WITH THE PRIOR APPROVAL OF THE COMMISSION, BE PROMOTED WITHOUT REGARD TO THE RESTRICTIONS OF PARAGRAPHS (C) AND (D) OF THIS SECTION IF THERE IS NO POSITION IN THE NORMAL LINE OF PROMOTION AT THE NEXT LOWER GRADE.'

"ON NOVEMBER 26, 1952, AGENCIES WERE AUTHORIZED TO MAKE PROMOTIONS UNDER THIS REGULATION WHICH MET THE CRITERIA SET OUT IN DEPARTMENTAL CIRCULAR NO. 671 WITHOUT PRIOR APPROVAL OF THE COMMISSION. THE COMMISSION'S INSPECTORS POINTED OUT THAT THE REGULATION PERMITTING TWO GRADE PROMOTIONS, IF THERE IS NO POSITION IN THE NORMAL LINE OF PROMOTION AT THE NEXT LOWER GRADE, APPLIES ONLY IN THE EVENT THAT THE EMPLOYEE IS SERVING IN THE AGENCY AT THE TIME OF PROMOTION.

"WE APPRECIATE THAT LIMITING THE "NORMAL LINE OF PROMOTION" EXCEPTION TO AN EMPLOYEE SERVING IN THE AGENCY AT THE TIME OF PROMOTION PLACES A PREMIUM ON SERVICE WITHIN AN AGENCY AND A PENALTY UPON SERVICE IN ANOTHER AGENCY WHERE A TRANSFER AND PROMOTION ARE INVOLVED. HOWEVER THE LANGUAGE OF SECTION 1310 (C) IS RATHER SPECIFIC IN PROVIDING THAT THE COMMISSION MAY PROVIDE PROMOTIONS OF TWO GRADES IN ONE YEAR "OF AN EMPLOYEE OF THE AGENCY CONCERNED.' AT THE TIME THE RIGID SERVICE FOR ONE YEAR IN THE NEXT LOWER GRADE RESTRICTION WAS PASSED, IT WAS GENERALLY RECOGNIZED THAT CONGRESS MIGHT NOT BE WILLING TO MAKE ANY EXCEPTIONS TO THIS REQUIREMENT. MEMBERS OF THE STAFF BELIEVED THAT IT WAS HIGHLY DESIRABLE TO HAVE SOME FLEXIBILITY TO TAKE CARE OF UNUSUAL CASES. THE FOLLOWING EXCEPTION HAD BEEN PROPOSED:

"PERSONS WHO ARE EMINENTLY QUALIFIED AND THE BEST AVAILABLE FOR THE POSITIONS CONCERNED. THIS WOULD PERMIT APPROVAL ON AN INDIVIDUAL CASE BASIS OF PROMOTIONS WHICH HAVE OUTSTANDING MERIT.'

"HOWEVER, OFFICIALS OF THE COMMISSION DID NOT BELIEVE THAT CONGRESS WOULD BE WILLING TO ACCEPT THIS. IN LIEU OF THIS PROPOSAL THE "NORMAL LINE OF PROMOTION" EXCEPTION WAS RECOMMENDED. IT WAS INTENTIONALLY MADE APPLICABLE ONLY WITHIN AN AGENCY AND NOT ACROSS AGENCY LINES. IT WAS INTENDED TO BE APPLIED TO POSITIONS WHICH WOULD NORMALLY FURNISH ELIGIBLES FOR PROMOTION BECAUSE OF THEIR EXPERIENCE IN THE LOWER-GRADE POSITION AND IN THE AGENCY.'

BASED UPON THE EXPLANATION THUS FURNISHED BY THE CIVIL SERVICE COMMISSION WE CONCLUDE THAT THE ADMINISTRATIVE ACTION EFFECTING THE TRANSFER AND PROMOTION WAS CONTRARY TO THE INTENT AND PURPOSE OF CIVIL SERVICE REGULATION 8.109 (F) QUOTED ABOVE WHICH WAS IN FORCE AND EFFECT AT THAT TIME. HOWEVER, SINCE THE ACTION WAS TAKEN IN GOOD FAITH AND NOT FOR THE PURPOSE OF EVADING THE REGULATION, AND SINCE THE EMPLOYEE WAS OFFICIALLY CHANGED TO A GRADE GS-5 POSITION IN YOUR DEPARTMENT EFFECTIVE DECEMBER 21, 1955, AFTER THE MATTER WAS CALLED TO ATTENTION, OUR OFFICE WILL NOT INSIST UPON A REFUND OF THE COMPENSATION FOR THE PERIOD DECEMBER 5, 1954, TO DECEMBER 20, 1955.