B-165307, NOV. 4, 1968

B-165307, NOV. 4, 1968

TO MR. ATTORNEY GENERAL:

ON SEPTEMBER 19, 1968, YOUR ASSISTANT ATTORNEY GENERAL FOR ADMINISTRATION REQUESTED OUR DECISION WHETHER THE PROMOTIONS OF MISS MADELYN V RUSH AND SEVERAL OTHER EMPLOYEES OF THE DEPARTMENT OF MADELYN V. RUSH AND SEVERAL OTHER EMPLOYEES OF THE DEPARTMENT OF JUSTICE MAY BE MADE EFFECTIVE RETROACTIVELY TO NOVEMBER 1967.

THE FOLLOWING FACTS WERE PRESENTED BY THE ASSISTANT ATTORNEY GENERAL:

"ON NOVEMBER 14, 1967, THE POSITION OF CLERK-STENOGRAPHER, GS-312-6, IN THE CIVIL DIVISION OF THIS DEPARTMENT, WHICH WAS OCCUPIED BY MISS MADELYN V. RUSH, WAS RECLASSIFIED TO SECRETARY (STENOGRAPHU), GS-318 7. NOVEMBER 28, THE CIVIL DIVISION SUBMITTED A PERSONNEL ACTION TO EFFECT THE PROMOTION OF MISS RUSH TO THE NEWLY CONSTITUTED GS-7 POSITION. THE PERSONNEL ACTION WAS RETURNED TO THE CIVIL DIVISION ON DECEMBER 6, 1967, WITH THE NOTATION THAT THE ACTION COULD NOT BE PROCESSED BECAUSE THERE WERE NO FUNDS AVAILABLE. ON MARCH 1, 1968, WHEN FUNDS BECAME AVAILABLE, THE CIVIL DIVISION RESUBMITTED THEIR RECOMMENDATION FOR MISS RUSH AND SHE WAS SUBSEQUENTLY PROMOTED TO GS-7 ON MARCH 10, 1968.

"IT SHOULD BE NOTED HERE THAT IN ADDITION TO THE RECOMMENDATION FOR THE PROMOTION OF MISS RUSH ON NOVEMBER 28, 1967, THE CIVIL DIVISION ALSO RECOMMENDED THE PROMOTIONS OF ELEVEN OTHER EMPLOYEES, ONE OF WHICH WAS IDENTICAL TO THE CASE OF MISS RUSH IN THAT IT WAS BASED ON A RECLASSIFICATION OF THE INCUMBENT'S POSITION. THE OTHER TEN WERE RECOMMENDATIONS TO PROMOTE EMPLOYEES FROM ONE ESTABLISHED POSITION TO ANOTHER. THESE RECOMMENDATIONS WERE ALSO RETURNED TO THE CIVIL DIVISION ON DECEMBER 6, 1967, WITH THE NOTATION THE ACTIONS COULD NOT BE EFFECTED DUE TO LACK OF FUNDS.'

IN ADDITION TO THE ABOVE WE UNDERSTAND THAT THE RECLASSIFICATION OF MISS RUSH'S POSITION WAS ACCOMPLISHED BY PROPER AUTHORITY PURSUANT TO SECTION 5107 OF TITLE 5, U.S.C. (FORMERLY SECTION 502 (A) OF THE CLASSIFICATION ACT OF 1949) AND THAT THERE WAS NEVER ANY QUESTION ABOUT MISS RUSH BEING QUALIFIED FOR THE HIGHER GRADE POSITION.

WE CONSISTENTLY HAVE HELD THAT WHEN A POSITION IS RECLASSIFIED TO A HIGHER GRADE BY ADMINISTRATIVE ACTION UNDER 5 U.S.C. 5107, THE CHANGE IN SALARY RATE BECOMES EFFECTIVE ON THE DATE THE ACTION IS TAKEN BY THE ADMINISTRATIVE OFFICER VESTED WITH THE AUTHORITY TO FINALLY REALLOCATE THE POSITION OR SUCH LATER DATE AS MIGHT BE ADMINISTRATIVELY FIXED. 30 COMP. GEN 156. IF OTHERWISE QUALIFIED, THE INCUMBENT OF THE RECLASSIFIED POSITION MUST BE PROMOTED WITHIN A REASONABLE TIME AFTER THE DATE OF FINAL POSITION CLASSIFICATION. 37 COMP. GEN. 492.

THE UNAVAILABILITY OF FUNDS WAS NOT SUFFICIENT JUSTIFICATION FOR DENYING TO MISS RUSH THE PROMOTION TO THE RECLASSIFIED POSITION TO WHICH SHE WAS OTHERWISE ENTITLED. 37 COMP. GEN. 492. RATHER, MISS RUSH SHOULD HAVE BEEN PROMOTED TO GRADE GS-7 WITHIN A REASONABLE TIME AFTER THE DATE HER POSITION WAS RECLASSIFIED TO THAT GRADE. IN THAT REGARD, WE UNDERSTAND THAT HAD FUNDS BEEN AVAILABLE MISS RUSH'S PROMOTION TO GRADE GS-7 WOULD HAVE BEEN MADE EFFECTIVE AT THE BEGINNING OF THE FIRST PAY PERIOD FOLLOWING THE DATE ON WHICH THE REQUEST FOR PERSONNEL ACTION WAS SUBMITTED (NOVEMBER 28, 1967).

IN VIEW THEREOF, WE WOULD HAVE NO OBJECTION TO THE RETROACTIVE PROMOTION OF MISS RUSH TO SUCH DATE. SIMILAR ACTION MAY BE TAKEN WITH RESPECT TO THE OTHER EMPLOYEE WHOSE POSITION WAS RECLASSIFIED BUT ONLY IF THE FACTS IN THAT CASE ARE SUBSTANTIALLY THE SAME AS THOSE INVOLVED IN THE CASE OF MISS RUSH.

IN REGARD TO THE OTHER TEN EMPLOYEES WHOSE PROMOTIONS ALSO WERE DELAYED DUE TO THE LACK OF FUNDS, THE ASSISTANT ATTORNEY GENERAL POINTS OUT THAT THOSE CASES DID NOT INVOLVE RECLASSIFICATION ACTIONS BUT WERE RECOMMENDATIONS FOR PROMOTIONS FROM ONE ESTABLISHED GRADE TO ANOTHER. SUCH CASES THERE IS FOR APPLICATION THE WELL-ESTABLISHED GENERAL RULE THAT A CHANGE IN SALARY MAY NOT BE MADE RETROACTIVELY EFFECTIVE IN THE ABSENCE OF A STATUTE SO PROVIDING OR THE OCCURRENCE OF A BONA FIDE ADMINISTRATIVE ERROR. 40 COMP. GEN. 207, 39 ID. 583, 34 ID. 380, 31 ID. 15. SINCE NO ERROR APPEARS TO HAVE BEEN MADE IN THE TEN CASES IN QUESTION, THERE IS NO BASIS TO MAKE SUCH PROMOTIONS RETROACTIVELY EFFECTIVE.