B-164269, JUN. 24, 1968

B-164269: Jun 24, 1968

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MACY: THIS IS IN REPLY TO YOUR LETTER OF MAY 6. IN WHICH YOU REQUEST ADVICE AS TO WHETHER THE CIVIL SERVICE COMMISSION UNDER THE AUTHORITY CONTAINED IN 5 U.S.C. 4106 (B) MAY WAIVE CERTAIN TIME LIMITATIONS ON TRAINING OF EMPLOYEES RETROACTIVELY WHEN THE CIVIL SERVICE COMMISSION FINDS THAT IT WOULD HAVE APPROVED THE REQUEST IF IT HAD BEEN RECEIVED IN ADVANCE OF THE TRAINING. YOU INDICATE THAT THE PERIOD FROM WHICH THE RETROACTIVE WAIVER WOULD BE NECESSARY IS OCTOBER 3. IN YOUR VIEW THE AGENCY'S ERROR IN FAILING TO FORWARD THE REQUEST TO THE CIVIL SERVICE COMMISSION FOR A WAIVER PRIOR TO THE TRAINING SHOULD NOT PENALIZE THE EMPLOYEE SINCE THE COMMISSION WOULD HAVE APPROVED THE REQUEST IF IT HAD BEEN TIMELY FORWARDED.

B-164269, JUN. 24, 1968

TO MR. MACY:

THIS IS IN REPLY TO YOUR LETTER OF MAY 6, 1968, IN WHICH YOU REQUEST ADVICE AS TO WHETHER THE CIVIL SERVICE COMMISSION UNDER THE AUTHORITY CONTAINED IN 5 U.S.C. 4106 (B) MAY WAIVE CERTAIN TIME LIMITATIONS ON TRAINING OF EMPLOYEES RETROACTIVELY WHEN THE CIVIL SERVICE COMMISSION FINDS THAT IT WOULD HAVE APPROVED THE REQUEST IF IT HAD BEEN RECEIVED IN ADVANCE OF THE TRAINING.

YOU INDICATE THAT THE PERIOD FROM WHICH THE RETROACTIVE WAIVER WOULD BE NECESSARY IS OCTOBER 3, 1966, THROUGH JUNE 17, 1967. IN YOUR VIEW THE AGENCY'S ERROR IN FAILING TO FORWARD THE REQUEST TO THE CIVIL SERVICE COMMISSION FOR A WAIVER PRIOR TO THE TRAINING SHOULD NOT PENALIZE THE EMPLOYEE SINCE THE COMMISSION WOULD HAVE APPROVED THE REQUEST IF IT HAD BEEN TIMELY FORWARDED.

THE DEPARTMENT OF THE NAVY'S REPORT INDICATES THAT THE EMPLOYEE IN QUESTION, MR. JERRY D. WOODS, IS AN ELECTRONICS ENGINEER, GS-9 AT THE NAVAL UNDERSEA WARFARE CENTER AND THE COURSE OF INSTRUCTION WAS TAKEN AT THE UNIVERSITY OF CALIFORNIA.

WITH RESPECT TO TRAINING IN NON-GOVERNMENT FACILITIES 5 U.S.C. 4106 (DERIVED FROM SECTION 12 OF THE ACT OF JULY 7, 1958, PUBLIC LAW 85-507, 72 STAT. 327) PROVIDES: "SEC. 4106. NON-GOVERNMENT FACILITIES; AMOUNT OF TRAINING LIMITED.

"/A) THE TRAINING OF EMPLOYEES BY, IN, AND THROUGH NON-GOVERNMENT FACILITIES UNDER THIS CHAPTER IS SUBJECT TO THE FOLLOWING LIMITATIONS:

"/2) AN EMPLOYEE HAVING LESS THAN 1 YEAR OF CURRENT, CONTINUOUS CIVILIAN SERVICE IS NOT ELIGIBLE FOR TRAINING UNLESS THE HEAD OF HIS AGENCY DETERMINES, UNDER REGULATIONS PRESCRIBED UNDER SECTION 4118 OF THIS TITLE, THAT TRAINING FOR THE EMPLOYEE IS IN THE PUBLIC INTEREST.

"/3) THE TIME SPENT BY AN EMPLOYEE IN TRAINING MAY NOT EXCEED 1 YEAR IN THE FIRST 10-YEAR PERIOD AND IN EACH SUBSEQUENT 10-YEAR PERIOD OF HIS CONTINUOUS OR NONCONTINUOUS CIVILIAN SERVICE IN THE GOVERNMENT. THE CIVIL SERVICE COMMISSION MAY PRESCRIBE OTHER LIMITATIONS, IN ACCORDANCE WITH THE PROVISIONS AND PURPOSES OF THIS CHAPTER, CONCERNING THE TIME WHICH MAY BE SPENT BY AN EMPLOYEE IN TRAINING.

"/B) ON RECOMMENDATION OF THE HEAD OF AN AGENCY, THE COMMISSION MAY WAIVE, WITH RESPECT TO THAT AGENCY OR PART THEREOF OR ONE OR MORE EMPLOYEES THEREIN, ALL OR ANY OF THE LIMITATIONS COVERED BY SUBSECTION (A) OF THIS SECTION, IF THE COMMISSION DETERMINES THAT THE APPLICATION OF ALL OR ANY OF THE LIMITATIONS THERETO IS CONTRARY TO THE PUBLIC INTEREST, THE COMMISSION, IN THE PUBLIC INTEREST, MAY REIMPOSE ALL OR ANY OF THE LIMITATIONS SO WAIVED.'

IN IMPLEMENTING THE FOREGOING STATUTE PERTINENT CIVIL SERVICE COMMISSION REGULATIONS (5 C.F.R.) PROVIDE: "SEC. 410.506 WAIVER OF LIMITATIONS ON TRAINING OF EMPLOYEES THROUGH NON-GOVERNMENT FACILITIES.

"/D) TO THE EXTENT HE CONSIDERS JUSTIFIED, THE HEAD OF EACH DEPARTMENT MAY WAIVE THE LIMITATION IN SECTION 12 (A) (3) OF THE ACT FOR AN EMPLOYEE IN A PROFESSIONAL POSITION IN THE FIELD OF NATURAL OR MATHEMATICAL SCIENCE OR ENGINEERING WHEN ALL OF THE FOLLOWING CONDITIONS ARE MET:

"/1) THE EMPLOYEE IS SERVING UNDER A CAREER OR CAREER-CONDITIONAL APPOINTMENT OR UNDER AN EXCEPTED APPOINTMENT WITHOUT TIME LIMITATION;

"/2) POSTPONEMENT OF THE TRAINING UNTIL THE EMPLOYEE COMPLETES THE CURRENT 10-YEAR PERIOD OF SERVICE PRESCRIBED BY SECTION 12 (A) (3) OF THE ACT WOULD BE DETRIMENTAL TO THE DEVELOPMENT OF SKILLS, ABILITIES, OR KNOWLEDGES NEEDED BY THE EMPLOYEE FOR THE PERFORMANCE OF OFFICIAL DUTIES; AND

"/3) THE TRAINING WOULD NOT CAUSE THE TOTAL OF TRAINING BY, IN, OR THROUGH NON-GOVERNMENT FACILITIES TO EXCEED 2 YEARS IN THE CURRENT 10 YEAR PERIOD OF THE EMPLOYEE'S SERVICE.'

THE REPORT INDICATES THAT THE DEPARTMENT OF THE NAVY WAIVED THE REQUIREMENTS OF SECTION 4106 (A) (3) RELATING TO TRAINING IN EXCESS OF ONE YEAR IN THE 10-YEAR PERIOD OF SERVICE AND IS SEEKING THE COMMISSION'S WAIVER ON TRAINING IN EXCESS OF TWO YEARS IN SUCH PERIOD. THE COMMISSION IS WILLING TO WAIVE THE TIME LIMITATION IF IT CAN BE DONE RETROACTIVELY.

THE GOVERNMENT EMPLOYEES' TRAINING ACT CONFERRED BROAD POWERS ON THE CIVIL SERVICE COMMISSION TO REGULATE AND ADMINISTER THE PROGRAM AND TO WAIVE AND REIMPOSE LIMITATIONS. 5 U.S.C. 4106, 4117 AND 4118. IN VIEW OF THE COMMISSION'S GENERAL AUTHORITY TO ACT IN THE PUBLIC INTEREST IN WAIVING LIMITATIONS, ITS FINDING THAT SUCH PUBLIC INTEREST IS PRESENT IN THIS CASE AND HAVING DECIDED THAT IT WOULD HAVE SO ACTED HAD THE REQUEST FOR A WAIVER BEEN TIMELY, WE CONSIDER THAT THE PROPOSED RETROACTIVE WAIVER IS PROPER. SEE B-159097, AUGUST 26, 1966 (COPY ENCLOSED). YOUR QUESTION IS ANSWERED ACCORDINGLY.