B-132303, JUL. 16, 1957

B-132303: Jul 16, 1957

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WAS REFERRED TO OUR OFFICE FOR CONSIDERATION. YOU ARE ENTITLED TO COMPENSATION FOR THE PERIOD OF YOUR SUSPENSION FROM EMPLOYMENT AT THE NORFOLK NAVAL SHIPYARD. 1955 YOU WERE APPOINTED TO THE POSITION OF WELDER. WHICH ARRESTS YOU WILLFULLY CONCEALED STATING THAT "I WAS AFRAID THAT IF I TOLD THE TRUTH ABOUT MY PAST RECORD. THE AGENCY WAS DIRECTED TO REMOVE YOU FROM THE SERVICE UNLESS THE ACTION SHOULD BE APPEALED. IN WHICH CASE YOU WERE TO BE SUSPENDED UNTIL THE APPEAL WAS DECIDED OR THE AGENCY COULD. THE ACTUAL RESULT WAS THAT YOU WERE SUSPENDED EFFECTIVE FEBRUARY 11. WOULD HAVE BEEN UNAFFECTED. IT WAS DECIDED TO EXERCISE LENITY BY RESCINDING THE PREVIOUS DECISION AND FINDING YOU SUITABLE FOR CONTINUATION IN YOUR POSITION.

B-132303, JUL. 16, 1957

TO MR. GEORGE W. DURMAN:

YOUR LETTER OF MARCH 22, 1957, TO THE HONORABLE PORTER HARDY, JR., WAS REFERRED TO OUR OFFICE FOR CONSIDERATION. THE LETTER RAISES THE QUESTION WHETHER, UNDER THE FACTS AND CIRCUMSTANCES HEREINAFTER RELATED, YOU ARE ENTITLED TO COMPENSATION FOR THE PERIOD OF YOUR SUSPENSION FROM EMPLOYMENT AT THE NORFOLK NAVAL SHIPYARD.

THE RECORD SHOWS THAT YOU FILED AN APPLICATION FOR EMPLOYMENT DATED MARCH 29, 1954, AND THAT ON JUNE 20, 1955 YOU WERE APPOINTED TO THE POSITION OF WELDER, SUBJECT TO INVESTIGATION BY THE CIVIL SERVICE COMMISSION. THE INVESTIGATION CONDUCTED BY THE THIRD UNITED STATES CIVIL SERVICE COMMISSION DISCLOSED THAT YOU HAD BEEN ARRESTED ON SEVERAL OCCASIONS, WHICH ARRESTS YOU WILLFULLY CONCEALED STATING THAT "I WAS AFRAID THAT IF I TOLD THE TRUTH ABOUT MY PAST RECORD, I WOULD NOT GET THE JOB.' AS A RESULT OF SUCH INVESTIGATION THE REGIONAL DIRECTOR IN A LETTER DATED JANUARY 25, 1957, ADVISED THE COMMANDING OFFICER, NORFOLK NAVAL SHIPYARD, THAT YOU DID NOT MEET THE SUITABILITY STANDARDS FOR FEDERAL EMPLOYEES. THE AGENCY WAS DIRECTED TO REMOVE YOU FROM THE SERVICE UNLESS THE ACTION SHOULD BE APPEALED, IN WHICH CASE YOU WERE TO BE SUSPENDED UNTIL THE APPEAL WAS DECIDED OR THE AGENCY COULD, IF DESIRED, RETAIN YOU IN AN ACTIVE DUTY STATUS DURING THE APPEAL. THE ACTUAL RESULT WAS THAT YOU WERE SUSPENDED EFFECTIVE FEBRUARY 11, 1957. A FURTHER INVESTIGATION AFTER THE APPEAL SHOWS THAT THE REGIONAL DIRECTOR IN HIS LETTER OF MARCH 13, 1957, FOUND THAT PROBABLY HAD YOU ADMITTED YOUR ARREST RECORD ON THE APPLICATION, YOUR APPOINTMENT OF JUNE 20, 1955, AS A WELDER, WOULD HAVE BEEN UNAFFECTED. WHILE THE REGIONAL DIRECTOR POINTED OUT THAT YOUR ACTS OF ADMITTED FALSE STATEMENTS COULD NOT BE CONDONED IN ANY WAY, IN VIEW OF THE VERY FAVORABLE MATERIAL REGARDING YOUR RECENT CONDUCT AND WORK PERFORMANCE DEVELOPED IN THE SUPPLEMENTARY INVESTIGATION, IT WAS DECIDED TO EXERCISE LENITY BY RESCINDING THE PREVIOUS DECISION AND FINDING YOU SUITABLE FOR CONTINUATION IN YOUR POSITION. BASED THEREON YOU WERE RESTORED TO DUTY EFFECTIVE MARCH 18, 1957.

PARAGRAPH (A) SECTION 2.107, TITLE 5, CODE OF FEDERAL REGULATIONS, 1957 SUPPLEMENT, STATES THAT MOST TYPES OF APPOINTMENTS ARE SUBJECT TO INVESTIGATION BY THE COMMISSION TO ESTABLISH THE APPOINTEE'S QUALIFICATIONS AND SUITABILITY FOR EMPLOYMENT IN THE COMPETITIVE SERVICE. PARAGRAPH (B) STATES THAT WITH THE EXCEPTION OF CASES UNDER SECTION 2.106 (A) (4), TITLE 5, CODE OF FEDERAL REGULATIONS, INVOLVING INTENTIONAL FALSE STATEMENTS, OR DECEPTION OR FRAUD IN EXAMINATION OR APPOINTMENT, THE CONDITION "SUBJECT TO INVESTIGATION" SHALL EXPIRE AUTOMATICALLY AT THE END OF EIGHTEEN (18) MONTHS AFTER THE EFFECTIVE DATE OF THE APPOINTMENT. PARAGRAPH (C) PERMITS THE COMMISSION EIGHTEEN (18) MONTHS, AFTER THE EFFECTIVE DATE OF AN APPOINTMENT SUBJECT TO INVESTIGATION UNDER PARAGRAPH (A), TO INSTRUCT THE AGENCY TO REMOVE THE EMPLOYEE IF INVESTIGATION DISCLOSES THAT HE IS DISQUALIFIED FOR ANY OF THE REASONS LISTED IN SECTION 2.106 OF THE REGULATIONS. THEREAFTER, THE COMMISSION MAY REQUIRE REMOVAL ONLY ON THE BASIS OF INTENTIONAL FALSE STATEMENTS OR DECEPTION OR FRAUD IN EXAMINATION OR APPOINTMENT. ALSO UNDER PARAGRAPH (E) OF THE SAME REGULATION, IT IS STATED THAT PARTS 9 AND 22 OF THE REGULATIONS SHALL NOT APPLY WHEN AN AGENCY REMOVES AN EMPLOYEE UNDER THE INSTRUCTIONS OF THE COMMISSION. PARTS 9 AND 22 OF THE REGULATIONS DEAL WITH SEPARATIONS, SUSPENSIONS AND DEMOTIONS AND APPEALS OF PREFERENCE ELIGIBLES UNDER THE PROVISIONS OF THE VETERANS PREFERENCE ACT OF 1944, RESPECTIVELY.

WE NOTE THAT THE ACTION TO REMOVE OR SUSPEND YOU WAS NOT TAKEN UNTIL AFTER THE REGIONAL DIRECTOR'S LETTER OF JANUARY 25, 1957, WHICH WAS IN EXCESS OF THE 18 MONTHS SPECIFIED IN THE COMMISSION'S REGULATIONS FOR THE CONDUCT OF THE INVESTIGATION. HOWEVER, YOUR CASE COMES WITHIN THE PROVISIONS OF SECTION 2.106 (A) (4), INTENTIONAL FALSE STATEMENTS, TO WHICH THE 18 MONTH INVESTIGATION PERIOD DOES NOT APPLY. SEE PARAGRAPH (B) ABOVE. THE AGENCY'S ACTION OF SUSPENDING YOU WAS FULLY JUSTIFIED BASED UPON THE ORIGINAL FINDING OF THE CIVIL SERVICE COMMISSION. THE COMMISSION IN ITS LATER FINDING SPECIFICALLY POINTED OUT THAT WHAT YOU HAD DONE WAS NOT CONDONED BUT THAT IN VIEW OF YOUR RECENT CONDUCT AND WORK PERFORMANCE IT WAS DECIDED TO EXERCISE LENITY BY FINDING THAT YOU WERE THEN SUITABLE FOR CONTINUATION IN YOUR POSITION OF WELDER. NOTHING IN THE LATER INVESTIGATION AND FINDING OF THE CIVIL SERVICE COMMISSION DENOTES THAT YOUR SUSPENSION WAS ERRONEOUS OR THAT THE PREVIOUS DETERMINATION WAS IN ERROR.

THE "BACK PAY" PROVISIONS OF THE ACT OF JUNE 10, 1948, 62 STAT. 354 ARE RESTRICTED TO SITUATIONS INVOLVING ERRONEOUS (UNJUSTIFIED OR UNWARRANTED) REMOVAL OR SUSPENSION WITHOUT PAY. THEY DO NOT PROVIDE FOR A SITUATION SUCH AS HERE INVOLVED. NOTHING IN THE FINDINGS OF THE COMMISSION CONSTITUTE A DETERMINATION THAT YOUR SUSPENSION WAS IMPROPER, THUS ENTITLING YOU TO THE BACK PAY BENEFITS OF THE ACT.

IN VIEW OF THE FOREGOING COMMENTS, WE CONCLUDE THAT YOU ARE NOT ENTITLED TO COMPENSATION FOR THE PERIOD OF YOUR SUSPENSION, FEBRUARY 11 TO MARCH 17, 1957.