B-146471, SEP. 2, 1965, 45 COMP. GEN. 99

B-146471: Sep 2, 1965

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THE CONTENTION OF THE EMPLOYEE THAT NO CHANGE OF DUTY WAS INVOLVED AND HIS ACCEPTANCE OF THE PROMOTION MAY BE ASSUMED MAY NOT BE ACCEPTED UNDER THE RULE THAT IN DISPUTES BETWEEN A CLAIMANT AND ADMINISTRATIVE OFFICERS OF THE GOVERNMENT. ACCOUNTING OFFICERS ARE REQUIRED TO ACCEPT THE STATEMENTS OF THE LATTER. THE ISSUE FOR RESOLUTION BY THE EMPLOYING AGENCY IS ONLY SUBJECT TO REVIEW BY THE UNITED STATES CIVIL SERVICE COMMISSION UNDER THE CLASSIFICATION ACT OF 1949. REQUESTS RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL SALARY AS AN EMPLOYEE OF THE PUBLIC HOUSING ADMINISTRATION WHICH WAS DISALLOWED BY OUR OFFICE SETTLEMENT OF JUNE 10. STATING YOU WERE PROMOTED FROM GS-11 TO GS-12 EFFECTIVE JUNE 7.

B-146471, SEP. 2, 1965, 45 COMP. GEN. 99

COMPENSATION - PROMOTIONS - ACCEPTANCE A PROMOTION FROM GS-11, AUDITOR, TO GS-12, TEAM LEADER, RETROACTIVELY CANCELED FROM THE EFFECTIVE DATE OF THE PROMOTION AND PRIOR TO NOTIFICATION OF EITHER ACTION TO THE EMPLOYEE, DOES NOT ENTITLE THE EMPLOYEE TO THE HIGHER GRADE, THE ADMINISTRATIVE AGENCY AND THE EMPLOYEE DISAGREEING THAT THE PROMOTION INVOLVED A SUBSTANTIAL CHANGE OF DUTY AND RESPONSIBILITY, THE CONTENTION OF THE EMPLOYEE THAT NO CHANGE OF DUTY WAS INVOLVED AND HIS ACCEPTANCE OF THE PROMOTION MAY BE ASSUMED MAY NOT BE ACCEPTED UNDER THE RULE THAT IN DISPUTES BETWEEN A CLAIMANT AND ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, ACCOUNTING OFFICERS ARE REQUIRED TO ACCEPT THE STATEMENTS OF THE LATTER, AND THE AGENCY HOLDING THE PROMOTION INVOLVED A SUBSTANTIAL CHANGE IN DUTIES REQUIRING EMPLOYEE'S ACCEPTANCE OF THE PROMOTION, THE ISSUE FOR RESOLUTION BY THE EMPLOYING AGENCY IS ONLY SUBJECT TO REVIEW BY THE UNITED STATES CIVIL SERVICE COMMISSION UNDER THE CLASSIFICATION ACT OF 1949.

TO ROBERT R. MOCK, SEPTEMBER 2, 1965:

YOUR LETTER OF JUNE 16, 1965, REQUESTS RECONSIDERATION OF YOUR CLAIM FOR ADDITIONAL SALARY AS AN EMPLOYEE OF THE PUBLIC HOUSING ADMINISTRATION WHICH WAS DISALLOWED BY OUR OFFICE SETTLEMENT OF JUNE 10, 1965.

THE RECORD SHOWS THAT A NOTIFICATION OF PERSONNEL ACTION, STANDARD FORM 50, SIGNED JUNE 5, 1964, STATING YOU WERE PROMOTED FROM GS-11 TO GS-12 EFFECTIVE JUNE 7, 1964, WAS DELIVERED TO YOUR SUPERVISOR. SUBSEQUENTLY, A NOTIFICATION OF PERSONNEL ACTION, STANDARD FORM 50, SIGNED ON JUNE 23, 1964, AS SHOWN ON THE COPY IN OUR FILE, WAS ISSUED CANCELING THE PROMOTION EFFECTIVE JUNE 7, 1964. AT THIS TIME YOU WERE NOT AT YOUR REGULAR DUTY STATION BUT AWAY FROM IT IN A TRAVEL STATUS. YOU WERE NOT NOTIFIED OF EITHER ACTION, BUT SUBSEQUENTLY LEARNED OF THE ACTIONS AFTER THEY HAD BEEN ACCOMPLISHED. BASED ON THAT FACTUAL SITUATION YOU CLAIM THAT YOU ARE ENTITLED TO SALARY AT THE GRADE GS-12 RATE SINCE JUNE 7, 1964.

THE ISSUE IN THE CASE STEMMING FROM THE ABOVE-STATED FACTUAL SITUATION IS WHETHER THE ADMINISTRATIVE ACTIONS OPERATED TO LAWFULLY PROMOTE YOU TO A GRADE GS-12 POSITION.

IN OUR DECISION 3 COMP. GEN. 559, 561, WE RULED:

ORIGINAL APPOINTMENTS TO POSITIONS IN THE CLASSIFIED CIVIL SERVICE AND PROMOTIONS THEREIN INVOLVING A CHANGE IN DUTIES ARE EFFECTIVE ONLY FROM DATE OF ACCEPTANCE AND ENTRANCE UPON DUTY AFTER NOTICE OF APPOINTMENT. ALSO IN THE SAME DECISION WE RULED:

IN CASE OF PROMOTIONS INVOLVING NO CHANGE IN DUTIES, THE ACCEPTANCE MAY BE ASSUMED AND THE PROMOTION REGARDED AS EFFECTIVE FROM THE DATE THE OFFICER HAVING AUTHORITY TO MAKE THE PROMOTION ACTUALLY SELECTS AND DESIGNATES THE EMPLOYEE FOR SUCH PROMOTION UNLESS THE PROMOTION IS MADE EFFECTIVE FROM SOME SUBSEQUENT DATE. IN NO CASE CAN SUCH PROMOTION BE MADE TO TAKE EFFECT RETROACTIVELY.

THE FACTS OF RECORD SHOW THAT YOU WERE NOT NOTIFIED OF THE PROMOTION; NEITHER DID YOU FORMALLY ACCEPT THE OFFER OR ENTER UPON DUTY IN THE HIGHER GRADE POSITION. CONSEQUENTLY, THE ONLY REMAINING ISSUE IS WHETHER THE CONTEMPLATED PROMOTION WOULD HAVE REQUIRED A CHANGE IN DUTIES.

IN THAT REGARD THE PUBLIC HOUSING ADMINISTRATION INFORMED US AS FOLLOWS:

* * * IN THIS CASE, MR. MOCK'S PROMOTION WOULD HAVE INVOLVED SUBSTANTIAL CHANGE OF DUTY AND RESPONSIBILITY. A GRADE 11 AUDITOR WORKS ONLY AS A MEMBER OF A TEAM UNDER THE DIRECTION OF A TEAM LEADER WHEREAS A GRADE 12 AUDITOR, IN ADDITION TO HAVING A GENERALLY HIGHER DEGREE OF RESPONSIBILITY WITH RESPECT TO ALL HIS FUNCTIONS, SERVES AS A TEAM LEADER. * * *

CONTRARY TO THE ADMINISTRATIVE REPORT, YOU URGE THAT THE DUTIES OF THE GRADE GS-12 POSITION TO WHICH YOUR PROMOTION WAS CONSIDERED ESSENTIALLY WERE THE SAME AS THOSE OF THE GRADE GS-11 POSITION IN WHICH YOU SERVE AND, THEREFORE, YOU CONCLUDE THAT YOUR CASE FALLS WITHIN THE PURVIEW OF THE SECOND OF THE ABOVE-QUOTED RULES OF OUR DECISION.

THE ISSUE OF FACT THUS PRESENTED BY YOUR CASE IS ONE WHICH THE GENERAL ACCOUNTING OFFICE IS WITHOUT JURISDICTION TO RESOLVE, THE QUESTION BEING PRIMARILY FOR CONSIDERATION BY YOUR AGENCY SUBJECT TO REVIEW BY THE UNITED STATES CIVIL SERVICE COMMISSION UNDER THE CLASSIFICATION ACT OF 1949, 5 U.S.C. 1101 ET SEQ. CF. 18 COMP. GEN. 992.

UNDER THE CIRCUMSTANCES WE HAVE NO ALTERNATIVE BUT TO FOLLOW THE LONG- ESTABLISHED RULE THAT IN DISPUTES BETWEEN A CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, ACCOUNTING OFFICERS ARE REQUIRED TO ACCEPT THE STATEMENT OF FACTS FURNISHED BY THE LATTER. COMP. GEN. 325.

THEREFORE, THE CONCLUSION REACHED IN OUR OFFICE SETTLEMENT OF JUNE 10, 1965, DISALLOWING YOUR CLAIM, MUST BE SUSTAINED.