B-134909, APRIL 30, 1958, 37 COMP. GEN. 718

B-134909, APRIL 30, 1958, 37 COMP. GEN. 718

CIVILIAN PERSONNEL - DOWNGRADING - SAVED COMPENSATION - 2-YEAR TIME LIMITATION - DETAILS - OFFICIAL POSITION EVIDENCE THE CONDITION IN THE SALARY RETENTION BENEFIT ACT OF JUNE 18, 1956, 5 U.S.C. 1107, THAT THE POSITION WHICH IS DOWNGRADED BY RECLASSIFICATION BE HELD BY THE EMPLOYEE FOR A PERIOD OF 2 YEARS, REQUIRES THAT EMPLOYEE ACTUALLY HOLD THE OFFICIAL POSITION FOR 2 YEARS, AND, ALTHOUGH A PERIOD OF DETAIL PRECEDING FORMAL REASSIGNMENT TO THE POSITION WHICH IS SUBSEQUENTLY DOWNGRADED MAY NOT BE INCLUDED IN THE 2 YEAR PERIOD, A PERIOD OF DETAIL TO ANOTHER POSITION WITHIN THE 2-YEAR PERIOD AND WITHOUT A CHANGE IN THE EMPLOYEE'S OFFICIAL POSITION MAY BE INCLUDED FOR ELIGIBILITY FOR THE SALARY RETENTION BENEFITS, PROVIDED THAT THE DUTIES AND RESPONSIBILITIES OF THE OFFICIAL POSITION HAVE NOT CHANGED. ALTHOUGH GENERALLY AN EMPLOYEE MAY NOT ACQUIRE AN OFFICIAL POSITION WITHIN THE PURVIEW OF THE SALARY RETENTION BENEFIT ACT OF JUNE 18, 1956, 5 U.S.C. 1107, OTHER THAN BY PROPER ASSIGNMENT OR APPOINTMENT SUPPORT BY ADEQUATE EVIDENCE, THERE MAY BE CASES SUCH AS THE OCCUPANCY OF A POSITION OVER A LONG PERIOD OF YEARS WHICH MIGHT WARRANT A CONCLUSION THAT THE POSITION IS AN OFFICIAL POSITION IN THE ABSENCE OF EVIDENCE, AND, THEREFORE, NO GENERAL RULE CAN BE ENLISTED AND EACH CASE IS FOR CONSIDERATION ON THE FACTS.

TO THE CHAIRMAN, UNITED STATES CIVIL SERVICE COMMISSION, APRIL 30, 1958:

YOUR LETTER OF JANUARY 15, 1958, ADVISES THAT A QUESTION HAS BEEN RAISED WITHIN THE COMMISSION, INCIDENT TO ITS FUNCTION OF ASSISTING AGENCIES IN SALARY RETENTION PROBLEMS, AS TO HOW A "DETAIL" PRIOR TO THE RECLASSIFICATION OF A POSITION MAY AFFECT ENTITLEMENT TO SALARY RETENTION UNDER THE ACT OF JUNE 18, 1956, 70 STAT. 291, 5 U.S.C. 1107 ( PUBLIC LAW 594, 84TH CONGRESS). IN THAT REGARD YOU SUBMIT FOR DECISION THE THREE FOLLOWING QUESTIONS WHICH ARE ANSWERED IN THE SEQUENCE PRESENTED:

1. WHEN, UPON DOWNGRADING OF AN EMPLOYEE'S POSITION, IT IS FOUND THAT HE HAD ACTUALLY BEEN PERFORMING THE SAME DUTIES WITHOUT MATERIAL CHANGE FOR 2 YEARS, BUT THAT DURING A PART OF THAT TIME IMMEDIATELY PRECEDING FORMAL REASSIGNMENT TO THE POSITION HE HAD BEEN "DETAILED" TO IT FROM ANOTHER POSITION, SHOULD HE BE REGARDED FOR SALARY RETENTION PURPOSES AS HAVING HELD THE DOWNGRADED POSITION FOR 2 YEARS?

2. WHEN, UPON DOWNGRADING OF AN EMPLOYEE'S POSITION, IT IS FOUND THAT THE DUTIES AND RESPONSIBILITIES OF THE POSITION HAVE NOT CHANGED MATERIALLY DURING THE PRECEDING 2 YEARS, AND THE EMPLOYEE HAS HELD THE POSITION ON PAPER FOR AT LEAST 2 YEARS, BUT WAS DETAILED TO A DIFFERENT POSITION FOR A PART OF THAT PERIOD, SHOULD HE BE REGARDED FOR SALARY RETENTION PURPOSES AS HAVING HELD THE DOWNGRADED POSITION FOR 2 YEARS?

3. IF THE FACT OF A "DETAIL" IN ANY CASE DEPRIVES AN EMPLOYEE OF A SALARY RETENTION BENEFIT TO WHICH HE WOULD OTHERWISE BE ENTITLED, ARE WE CORRECT IN CONFINING THE TERM "DETAIL" TO THOSE ACTIONS WHICH HAVE BEEN PROPERLY DOCUMENTED AS DETAILS AND IN WHICH THE REQUIREMENTS OF THE FEDERAL PERSONNEL MANUAL, CHAPTER X-1-38, HAVE BEEN FOLLOWED? (WE HAVE IN MIND HERE CERTAIN HYPOTHETICAL SITUATIONS WHICH HAVE BEEN CITED TO US, IN WHICH (A) AN EMPLOYEE HAS EITHER BEEN PROPERLY DETAILED TO BEGIN WITH AND HAS CONTINUED TO PERFORM THE DUTIES TO WHICH ORIGINALLY DETAILED FOR YEARS AFTER THE EXPIRATION OF THE FORMAL DETAIL, AND EVENTUALLY IS SIMULTANEOUSLY REASSIGNED AND DOWNGRADED ON THE BASIS OF THE DUTIES HE IS CURRENTLY PERFORMING; OR HAS BEEN ASSIGNED INFORMALLY TO A DIFFERENT POSITION OR EVEN DIFFERENT ORGANIZATIONAL UNIT WITHOUT ANY PAPER ACTION AND EVENTUALLY IS SIMULTANEOUSLY REASSIGNED AND DOWNGRADED ON THE BASIS OF THE DUTIES HE IS CURRENTLY PERFORMING; OR (B) AN EMPLOYEE IS DOWNGRADED ON THE BASIS OF DUTIES HE HAS BEEN PERFORMING FOR YEARS, EXCEPT THAT FOR A FEW DAYS OR WEEKS OR MONTHS IN THE MIDDLE OF THE 2-YEAR PERIOD PRECEDING DOWNGRADING HE TEMPORARILY PERFORMED SOME DIFFERENT DUTIES.)

PUBLIC LAW 594 REQUIRES AS A CONDITION TO SALARY RETENTION THAT THE POSITION WHICH IS DOWNGRADED BY RECLASSIFICATION BE HELD BY THE EMPLOYEE FOR A PERIOD OF 2 YEARS BEFORE (A) THE RECLASSIFICATION OR (B) THE DATE OF ENACTMENT OF THE ACT. THE EXPLANATORY MATERIAL UNDER THE HEADING "1RETENTION REGISTERS," FEDERAL PERSONNEL MANUAL R-3-16, STATES:

THE POSITION IN WHICH AN EMPLOYEE IS CARRIED ON THE ROLLS AND PAID IS HIS OFFICIAL POSITION. IT IS NOT ALWAYS THE POSITION IN WHICH HE IS ACTUALLY WORKING; FOR EXAMPLE, THE POSITION TO WHICH AN EMPLOYEE IS DETAILED IS NOT HIS OFFICIAL POSITION. THEREFORE, AN EMPLOYEE WHO IS DETAILED TO A COMPETITIVE LEVEL IS NOT INCLUDED ON THE RETENTION REGISTER FOR THAT LEVEL.

ON PAGE X-1-38, FEDERAL PERSONNEL MANUAL, THE FOLLOWING EXPLANATION APPEARS:

TO "DETAIL" IS TO TEMPORARILY ASSIGN AN EMPLOYEE FROM HIS REGULAR POSITION TO ANOTHER POSITION WITHIN THE AGENCY, WITHOUT CHANGE IN HIS CIVIL SERVICE OR PAY STATUS. AT THE END OF THE DETAIL THE EMPLOYEE RETURNS TO HIS REGULAR DUTIES.

IT WOULD SEEM, IN THE LIGHT OF THE FOREGOING PROVISIONS OF THE MANUAL AS WELL AS OF THE STATUTE ITSELF, THAT THE TERM "POSITION" AS USED IN PUBLIC LAW 594, REFERS TO THE DUTIES AND RESPONSIBILITIES OF THE "OFFICIAL POSITION.' THUS, WHEN THE REQUIRED 2-YEAR PERIOD IS COMPRISED OF A PERIOD OF "DETAIL" TACKED TO A PERIOD OF "ASSIGNMENT," IT HARDLY CAN BE SAID THAT THE EMPLOYEE HAS HELD THE POSITION DOWNGRADED BY RECLASSIFICATION FOR TWO YEARS, NOTWITHSTANDING THAT THE DUTIES AND RESPONSIBILITIES WERE UNCHANGED WITHIN THE 2-YEAR PERIOD. QUESTION 1 MUST, THEREFORE, BE ANSWERED IN THE NEGATIVE.

WE UNDERSTAND QUESTION 2 AS APPLYING TO THE DETAIL OF AN EMPLOYEE TO ANOTHER POSITION WITHIN THE REQUIRED 2-YEAR PERIOD. SINCE THE EMPLOYEE'S OFFICIAL POSITION, OR THE POSITION HELD BY HIM, IS UNCHANGED BY THE DETAIL, WE CONCLUDE, REGARDLESS OF THE FACT THAT UNDER THE DETAIL HE MAY HAVE TEMPORARILY HAD THE DUTIES AND RESPONSIBILITIES OF ANOTHER POSITION, THAT SUCH AN EMPLOYEE HAS HELD HIS POSITION FOR THE REQUISITE PERIOD, ASSUMING, OF COURSE, THAT THE DUTIES AND RESPONSIBILITIES OF HIS OFFICIAL POSITION HAVE NOT BEEN CHANGED. QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE.

QUESTION 3 APPEARS TO BE PREDICATED UPON AN ASSUMPTION THAT A "DETAIL" IN ANY CASE DEPRIVES AN EMPLOYEE OF SALARY RETENTION BENEFITS. SINCE SUCH AN ASSUMPTION IS NOT IN CONSONANCE WITH OUR ANSWER TO QUESTION 2, WE CANNOT ANSWER SPECIFICALLY QUESTION 3. GENERALLY, WE MAY SAY AN EMPLOYEE MAY NOT ACQUIRE AN OFFICIAL POSITION WITHIN THE PURVIEW OF PUBLIC LAW 594 OTHER THAN BY PROPER ASSIGNMENT OR APPOINTMENT THERETO. HOWEVER, IF THE RECORDS ADEQUATELY EVIDENCE THE ASSIGNMENT OR APPOINTMENT IT WOULD NOT SEEM THAT "FORMAL" EVIDENCE OF THE PERSONNEL ACTION WOULD BE ESSENTIAL TO ESTABLISH THAT HE HELD THE POSITION. AGAIN, THE OCCUPANCY OF A POSITION OVER A LONG PERIOD OF YEARS MIGHT IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, WARRANT A CONCLUSION THAT SUCH POSITION IS THE OFFICIAL POSITION OF THE EMPLOYEE. IT IS APPARENT THAT NO GENERAL RULE CAN BE LAID DOWN FOR THE TREATMENT OF SUCH CASES AND EACH WOULD BE FOR INDIVIDUAL CONSIDERATION ON THE FACTS. QUESTION 3 IS ANSWERED ACCORDINGLY.

OUR DECISION OF NOVEMBER 1, 1956, B-104080, TO WHICH YOUR LETTER REFERS, WAS CONCERNED PRIMARILY WITH THE NATURE OF THE EVIDENCE REQUIRED TO ESTABLISH THAT AN EMPLOYEE HAD PERFORMED THE SAME DUTIES AND RESPONSIBILITIES OVER THE 2-YEAR PERIOD REQUIRED, AS A CONDITION TO SALARY RETENTION AND WOULD SEEM TO HAVE NO APPLICATION TO THE QUESTION OF DETAILS.