B-158129, FEB. 2, 1966

B-158129: Feb 2, 1966

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CONCERNING OUR DETERMINATION THAT YOU ARE NOT ENTITLED TO A RETROACTIVE INCREASE IN COMPENSATION AS AN EMPLOYEE OF THE FEDERAL HOUSING ADMINISTRATION. SINCE THE FACTS INVOLVED ARE FULLY SET FORTH IN OUR LETTER OF DECEMBER 16. A COPY OF WHICH WAS APPARENTLY FURNISHED YOU. WE WILL NOT REPEAT THEM HERE EXCEPT AS PERTINENT TO OUR PRESENT DISCUSSION OF YOUR RECENT LETTER. 565.00 WE OVERLOOKED THE FACT THAT SHE WAS AT ONE TIME A GS-5 ACCOUNTING CLERK 7905 (GS-501-5) AND WAS RECEIVING $4. WAS AN ADMINISTRATIVE ERROR.'. THE ERROR WHICH WAS MADE IN YOUR CASE WAS THE FAILURE OF THE RESPONSIBLE OFFICIAL (THE OFFICE DIRECTOR) TO CONSIDER THE FACT THAT YOU COULD HAVE BEEN GIVEN A HIGHER RATE OF COMPENSATION UPON PROMOTION ON THE BASIS OF THE HIGHEST PREVIOUS RATE RULE.

B-158129, FEB. 2, 1966

TO MRS. LYNNE R. MORTELL:

WE REFER TO YOUR LETTER OF JANUARY 12, 1966, CONCERNING OUR DETERMINATION THAT YOU ARE NOT ENTITLED TO A RETROACTIVE INCREASE IN COMPENSATION AS AN EMPLOYEE OF THE FEDERAL HOUSING ADMINISTRATION, SAN DIEGO, CALIFORNIA OFFICE, AS A RESULT OF THE FAILURE OF THAT OFFICE TO ALLOW YOU THE BENEFIT OF A HIGHER PREVIOUS RATE OF COMPENSATION IN SETTING YOUR RATE OF COMPENSATION UPON PROMOTION FROM GRADE GS-3 TO GRADE GS-4 ON FEBRUARY 4, 1962.

SINCE THE FACTS INVOLVED ARE FULLY SET FORTH IN OUR LETTER OF DECEMBER 16, 1965, B-158129, TO CONGRESSMAN BOB WILSON, A COPY OF WHICH WAS APPARENTLY FURNISHED YOU, WE WILL NOT REPEAT THEM HERE EXCEPT AS PERTINENT TO OUR PRESENT DISCUSSION OF YOUR RECENT LETTER.

THE DIRECTOR OF THE SAN DIEGO OFFICE IN HER MEMORANDUM OF FEBRUARY 27, 1962, TO THE ZONE OPERATIONS COMMISSIONER WITH REGARD TO THE DETERMINATION OF YOUR RATE OF COMPENSATION SAID:

"MRS. MORTELL, THE EMPLOYEE, HAS BROUGHT IT TO OUR ATTENTION THAT IN MAKING OUR RECOMMENDATION OF $4,565.00 WE OVERLOOKED THE FACT THAT SHE WAS AT ONE TIME A GS-5 ACCOUNTING CLERK 7905 (GS-501-5) AND WAS RECEIVING $4,210 PER ANNUM (STEP 5) WHEN SHE RESIGNED HER POSITION ON 12/57.'

IN HER LETTER OF MARCH 28, 1962, THE DIRECTOR FURTHER SAID:

"* * * IF WE HAD, THROUGH STENOGRAPHIC ERROR, STIPULATED $14565.00 PER ANNUM, I AM CERTAIN THAT FORWARDING OF SUCH STENOGRAPHIC ERROR WOULD BE CONSIDERED AN ADMINISTRATIVE ERROR AND THAT MRS. MORTELL WOULD NOT RECEIVE THAT STIPULATED SALARY. IN THE SAME VEIN, I FEEL THAT OUR OVERLOOKING OF MRS. MORTELL'S FORMER RATING AS A GS-5 STEP "D," AND NOT STIPULATING A SALARY OF $4670.00, WAS AN ADMINISTRATIVE ERROR.'

THUS, THE ERROR WHICH WAS MADE IN YOUR CASE WAS THE FAILURE OF THE RESPONSIBLE OFFICIAL (THE OFFICE DIRECTOR) TO CONSIDER THE FACT THAT YOU COULD HAVE BEEN GIVEN A HIGHER RATE OF COMPENSATION UPON PROMOTION ON THE BASIS OF THE HIGHEST PREVIOUS RATE RULE. WE DO NOT QUESTION THE FACT THAT THE OFFICE DIRECTOR CONSIDERS THAT SHE MADE AN ERROR IN NOT AUTHORIZING THE HIGHER RATE OF COMPENSATION, HOWEVER, SUCH AN ERROR IS NOT THE TYPE OF ERROR WHICH WILL PERMIT THE RETROACTIVE ADJUSTMENT OF YOUR SALARY RATE. OUR POSITION IN THAT REGARD IS STATED IN THE DECISION OF DECEMBER 20, 1963, B-152963 (COPY ENCLOSED), AS FOLLOWS:

"WE HAVE PERMITTED RETROACTIVE ADJUSTMENTS IN SALARY RATES TO BE MADE IN CERTAIN CASES WHEN BONA FIDE ERRORS HAVE OCCURRED IN FAILURES TO CARRY OUT WRITTEN ADMINISTRATIVE POLICY OF A NONDISCRETIONARY NATURE OR IN COMPLYING WITH ADMINISTRATIVE REGULATIONS HAVING MANDATORY EFFECT. 31 COMP. GEN. 15; 34 ID. 380; 39 ID. 550. ALSO, WE HAVE RECOGNIZED THAT A RETROACTIVE ADJUSTMENT IS PERMISSIBLE WHERE THE APPOINTMENT PAPERS CONTAIN A NOTATION THAT THE RATE OF PAY IS SUBJECT TO UPWARD ADJUSTMENT UPON RECEIPT OF VERIFICATION OF PRIOR SERVICE AT A HIGHER SALARY RATE.

"THE ADMINISTRATIVE ERROR ALLEGED IN THIS CASE IS THAT A HIGHER SALARY RATE WOULD HAVE BEEN AUTHORIZED HAD THE APPOINTING OFFICER BEEN AWARE OF MR. MEYER'S PRIOR EMPLOYMENT AT A HIGHER GRADE. THE RATE SET, HOWEVER, WAS A LEGAL RATE, THERE BEING NO MANDATORY POLICY OR REQUIREMENT THAT A HIGHER RATE BE GIVEN EVEN IF THE APPOINTING OFFICER HAD BEEN AWARE OF THE CIRCUMSTANCES. FURTHERMORE, IT WAS THE RATE WHICH THE APPOINTING OFFICER INTENDED TO SET AT THE TIME THE PROMOTION AND TRANSFER WAS EFFECTED. THEREFORE, WE DO NOT BELIEVE THAT AN EXCEPTION TO THE RULE AGAINST ALLOWING RETROACTIVE INCREASES IN COMPENSATION IS JUSTIFIED IN THIS CASE.'

WE NOTE THAT A PURELY MECHANICAL OR CLERICAL ERROR--- SUCH AS A TYPING ERROR--- WOULD ALSO FURNISH THE BASIS FOR A RETROACTIVE ADJUSTMENT.

UNDER THE RELATED CIRCUMSTANCES WE MUST ADHERE TO OUR PRIOR OPINION IN YOUR CASE.