B-165345, OCTOBER 30, 1968, 48 COMP. GEN. 258

B-165345: Oct 30, 1968

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OR SEPARATING HER WAS ERRONEOUS. A CORRECTION ACTION IS REQUIRED TO PROMOTE HER NOT LATER THAN THE BEGINNING OF THE SECOND PAY PERIOD FOLLOWING RECEIPT OF NOTICE OF APPROVAL BY THE CIVIL SERVICE COMMISSION OF THE WAIVER OF THE QUALIFICATIONS OF THE INCUMBENT OF THE RECLASSIFIED POSITION. 1968: THIS IS IN REPLY TO A LETTER FROM YOUR OFFICE DATED SEPTEMBER 25. THE LETTER SETS OUT THE DEPARTMENT'S VIEW THAT THERE IS NO AUTHORITY TO PROMOTE MRS. ON THE GROUND THAT THE ADDITIONAL ADMINISTRATIVE STEPS NECESSARY TO EFFECT PROMOTION WERE WITHHELD BY DIRECTION OF THE APPOINTING AUTHORITY CITING OUR DECISION OF AUGUST 22. RUSHING WAS SERVING AS A BUDGET ANALYST. THE RECLASSIFICATION OF HER POSITION FROM GRADE GS-9 TO GRADE GS-11 WAS APPROVED.

B-165345, OCTOBER 30, 1968, 48 COMP. GEN. 258

OFFICERS AND EMPLOYEES - PROMOTIONS - RECLASSIFIED POSITIONS - INCUMBENT'S STATUS THE CIVIL SERVICE COMMISSION HAVING WAIVED THE EXPERIENCE AND TRAINING REQUIREMENT OF THE INCUMBENT OF A POSITION RECLASSIFIED FROM GRADE GS-9 TO GRADE GS-11, THE ADMINISTRATIVE DETERMINATION TO REQUIRE THE EMPLOYEE TO SERVE 1 YEAR IN THE RECLASSIFIED POSITION TO OBTAIN THE REQUIRED EXPERIENCE PRIOR TO ADVANCEMENT TO THE GS-11 LEVEL RATHER THAN PLACING THE INCUMBENT IN THE RECLASSIFIED POSITION, ANOTHER POSITION, OR SEPARATING HER WAS ERRONEOUS, AND THE INCUMBENT HAVING BEEN CONTINUED IN THE RECLASSIFIED POSITION, A CORRECTION ACTION IS REQUIRED TO PROMOTE HER NOT LATER THAN THE BEGINNING OF THE SECOND PAY PERIOD FOLLOWING RECEIPT OF NOTICE OF APPROVAL BY THE CIVIL SERVICE COMMISSION OF THE WAIVER OF THE QUALIFICATIONS OF THE INCUMBENT OF THE RECLASSIFIED POSITION.

TO THE SECRETARY OF THE NAVY, OCTOBER 30, 1968:

THIS IS IN REPLY TO A LETTER FROM YOUR OFFICE DATED SEPTEMBER 25, 1968, CONCERNING THE CLAIM FOR BACK PAY OF MRS. ETHEL P. RUSHING, AN EMPLOYEE OF THE DEPARTMENT OF THE NAVY AT THE HEADQUARTERS, ELEVENTH NAVAL DISTRICT, SAN DIEGO, CALIFORNIA.

THE LETTER SETS OUT THE DEPARTMENT'S VIEW THAT THERE IS NO AUTHORITY TO PROMOTE MRS. RUSHING RETROACTIVELY TO JULY 16, 1967, ON THE GROUND THAT THE ADDITIONAL ADMINISTRATIVE STEPS NECESSARY TO EFFECT PROMOTION WERE WITHHELD BY DIRECTION OF THE APPOINTING AUTHORITY CITING OUR DECISION OF AUGUST 22, 1968, B-164815.

THE RECORD INDICATES THAT IN JUNE 1967 MRS. RUSHING WAS SERVING AS A BUDGET ANALYST, GS-9, IN THE BUDGET BRANCH, COMPTROLLER DIVISION, ADMINISTRATION DEPARTMENT AT THE HEADQUARTERS AND ON JUNE 28, 1967, THE RECLASSIFICATION OF HER POSITION FROM GRADE GS-9 TO GRADE GS-11 WAS APPROVED.

HOWEVER, IT WAS ADMINISTRATIVELY DETERMINED THAT MRS. RUSHING DID NOT MEET THE QUALIFICATIONS REQUIRED FOR A GS-11 POSITION AND ON JUNE 29, 1967, A REQUEST FOR A WAIVER OF QUALIFICATIONS WAS SUBMITTED TO THE CIVIL SERVICE COMMISSION'S SAN FRANCISCO REGIONAL OFFICE WHICH WAIVER WAS APPROVED BY THE OFFICE ON JULY 11, 1967.

ON JULY 12, 1967, THE APPOINTING AUTHORITY NOTED ON THE SF 52 APPROVAL OF MRS. RUSHING'S EMPLOYMENT QUALIFICATIONS REFERENCING THE SF 59 CONTAINING THE CIVIL SERVICE COMMISSION'S APPROVAL. IT WAS ALSO NOTED ON THE SF 52 THAT THE FORMER POSITION DESCRIPTION NO. 9249 WAS CANCELED.

THE ONLY STEP IN THE PROMOTION CHAIN LEFT INCOMPLETE AT THIS POINT WAS THE PREPARATION AND COMPLETION BY THE CONSOLIDATED INDUSTRIAL RELATIONS OFFICE (CIRO) OF A SF 50. WE HAVE BEEN ADVISED THAT THIS WAS ORDINARILY A ROUTINE ADMINISTRATIVE ACT. HOWEVER, BEFORE SUCH A STEP WAS TAKEN THE COMMANDANT, ELEVENTH NAVAL DISTRICT, APPARENTLY INFORMALLY AS THERE ARE NO PAPERS TO THIS EFFECT IN THE RECORD, DECIDED TO DELAY THE PROMOTION UNTIL MRS. RUSHING HAD SERVED IN THE POSITION FOR A YEAR.

IN OCTOBER 1967 FOLLOWING A REFUSAL BY THE HEADQUARTERS TO PROMOTE HER TO GRADE GS-11 MRS. RUSHING APPEALED TO THE CIVIL SERVICE COMMISSION'S SAN FRANCISCO REGIONAL OFFICE. HER SUPERVISOR INDICATED AT THIS TIME THAT SHE WAS PERFORMING THE DUTIES OF THE GS-11 POSITION IN AN OUTSTANDING MANNER. CORRESPONDENCE FROM THE HEADQUARTERS TO THE REGIONAL OFFICE IN CONNECTION WITH THE APPEAR STATED THAT THE RECLASSIFICATION OF THE POSITION IN QUESTION FROM GS-9 TO GS-11 HAD NOT BEEN COMPLETED.

IN A DECISION ON THE APPEAL DATED MARCH 27, 1968, THE REGIONAL OFFICE STATED: JOB INFORMATION AND EVALUATION

THE APPELLANT IS FUNCTIONING AS THE HEAD BUDGET BRANCH. COMPTROLLER DIVISION, ADMINISTRATION DEPARTMENT, HQ ND. WE FIND NO REASON TO DISAGREE WITH THE JUNE 28, 1967 EVALUATION OF THIS POSITION AS DOCUMENTED BY PD NO. 1839 BY THE 11TH ND CLASSIFIER, A COPY OF WHICH HAS PREVIOUSLY BEEN FURNISHED TO THE APPELLANT. ALTHOUGH THIS CLASSIFICATION DECISION WAS NEVER PLACED IN EFFECT, THERE IS NO EVIDENCE THAT THE APPELLANT WAS EVER RELIEVED OF ANY DUTIES AND RESPONSIBILITIES NOR INSTRUCTED NOT TO PERFORM ANY OF THE DUTIES AND RESPONSIBILITIES OF PD NO. 1839.

DECISION

ACCORDINGLY, IT IS OUR DECISION THAT THE APPELLANT'S POSITION IS PROPERLY CLASSIFIED AS BUDGET ANALYST GS-560-11.

FOLLOWING THIS APPEAL MRS. RUSHING WAS PROMOTED TO THE GS-11 POSITION ON APRIL 7, 1968. IN JUNE 1968 MRS. RUSHING PROTESTED THE DELAY IN PROMOTING HER TO GRADE GS-11 UPON RECLASSIFICATION OF THE POSITION IN JUNE 1967. THE DIRECTOR, EMPLOYEE MANAGEMENT RELATIONS DIVISION, OFFICE OF CIVILIAN MANPOWER MANAGEMENT, DEPARTMENT OF THE NAVY, IN COMMENTING ON JULY 12, 1968, UPON HER CONTENTION THAT THERE WAS A FAILURE TO COMPLY WITH NCPI 510.7-2B (1) (B) STATED:

* * * THE REGULATION YOU CITE PROVIDES THAT WHEN CLASSIFICATION ACTION HAS BEEN TAKEN ON AN OCCUPIED POSITION, PERSONNEL ACTION TO PUT THE PERSON DOING THE WORK INTO THE NEWLY CLASSIFIED POSITION, TO PUT HIM INTO SOME OTHER POSITION, OR TO SEPARATE HIM, MUST BE TAKEN BY THE ACTIVITY NOT LATER THAN THE BEGINNING OF THE SECOND PAY PERIOD FOLLOWING THE DATE OF CLASSIFICATION ACTION, EXCEPT AS PROVIDED IN NCPI 510.7-3. THIS LATTER SECTION REFERS TO PERMISSIBLE DELAYS. ONE OF THOSE PERMISSIBLE DELAYS IS DELAY TO PERMIT THE INDIVIDUAL TO BECOME QUALIFIED, SINCE A PERSONNEL ACTION TO PUT A PERSON IN A POSITION CANNOT BE COMPLETED UNTIL AND UNLESS HE QUALIFIES FOR THAT POSITION AS IT IS CLASSIFIED.

THE RECORD SHOWS THAT A WAIVER OF EXPERIENCE AND TRAINING REQUIREMENT HAD BEEN REQUESTED FROM AND APPROVED BY THE CIVIL SERVICE COMMISSION. HOWEVER, IT WAS DETERMINED THAT YOU SHOULD SERVE ONE YEAR IN THE BUDGET ANALYST WORK TO OBTAIN THE REQUIRED EXPERIENCE PRIOR TO ADVANCEMENT TO THE GS-11 LEVEL AND THE WAIVER WAS NOT USED. THIS WAS A PROPER EXERCISE OF MANAGEMENT PREROGATIVE.

ON AUGUST 1, 1968, THE SAN FRANCISCO REGIONAL OFFICE (FOLLOWING CONSULTATION WITH CIVIL SERVICE COMMISSION'S CENTRAL OFFICE) IN EXAMINING NCPI 510.7-2B (1) (B) IN LIGHT OF THE COMMISSION'S REGULATION 511.701 STATED:

WE AGREE THAT THE EVIDENCE OF RECORD SHOWS THAT YOUR POSITION WAS OFFICIALLY CLASSIFIED AS BUDGET ANALYST GS-560-11 ON JUNE 28, 1967. ACCORDANCE WITH THE REGULATIONS CITED AND 30 COMP. GEN. 156 AND 37 COMP. GEN. 492, THIS ACTION OBLIGATED YOUR ACTIVITY EITHER TO PROMOTE YOU OR TO REMOVE YOU FROM THE POSITION. SINCE THEY DID NOT DO THE LATTER, FAILURE TO PROCESS YOUR PROMOTION IN TIMELY FASHION WAS AN ADMINISTRATIVE ERROR. CORRECTION BY YOUR AGENCY OF THIS ADMINISTRATIVE ERROR WILL ENTITLE YOU TO BACK PAY SINCE THE EFFECTIVE DATE OF YOUR PROMOTION WOULD BE BASED ON THE DATE YOUR POSITION WAS RECLASSIFIED,THAT IS JUNE 28, 1967, IN ACCORDANCE WITH THE REGULATIONS CITED.

AN EXAMINATION OF THE FOREGOING FACTS LEADS TO THE CONCLUSION THAT THE POSITION DESCRIPTION NO. 9249, GRADE GS-9, WAS CANCELED AS OF JUNE 28, 1967, AND THE NEW POSITION DESCRIPTION NO. 1839 AND NEW JOB CLASSIFICATION AS A GRADE GS-11 WERE APPROVED BY PROPER AUTHORITIES AND BECAME EFFECTIVE THAT DATE. WHILE THE DISTRICT HEADQUARTERS ASSERTED THAT THE RECLASSIFICATION HAD NOT BEEN COMPLETED MRS. RUSHING WAS ACTUALLY THE INCUMBENT OF A POSITION THE DESCRIPTION AND CLASSIFICATION OF WHICH HAD BEEN CHANGED FROM GRADE GS-9 TO GRADE GS 11. HER SUPERVISOR, THE DISTRICT COMPTROLLER, ASSERTED SHE WAS PERFORMING THE DUTIES OF THE GS-11 POSITION AND THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT IN ITS LETTER TO HER OF JULY 12, 1968, IN EFFECT ADMITTED THAT THE CHANGE IN CLASSIFICATION HAD TAKEN PLACE. MOREOVER, SF 59 DATED JUNE 29, 1967, ASKING FOR A WAIVER OF QUALIFICATIONS STATED THAT THE POSITION'S CLASSIFICATION HAD BEEN CHANGED TO THE GS 11 LEVEL AND THE EXECUTED NAVEXOS-4543 INDICATED THE GS-9 POSITION HAD BEEN REPLACED BY THE GS-11 POSITION. UNDER THE CIRCUMSTANCES IT CLEARLY APPEARS THAT THE GS-9 POSITION WAS REPLACED BY THE GS-11 POSITION AND THAT MRS. RUSHING AT ALL TIMES FOLLOWING THE RECLASSIFICATION ACTION WAS THE INCUMBENT OF THE GS-11 POSITION IN QUESTION. THE CIVIL SERVICE COMMISSION IN ITS LETTER OF AUGUST 1, 1968, TO MRS. RUSHING LIKEWISE TAKES THE VIEW THAT CHANGE OF CLASSIFICATION OF THE POSITION IN QUESTION TO GS-11 WAS COMPLETED ON JUNE 28, 1967.

WITH RESPECT TO EFFECTING PERSONNEL ACTIONS FOLLOWING A CHANGE IN CLASSIFICATION NCPI 510.7 PROVIDES IN PART AS FOLLOWS: 7-2. EFFECTIVE DATES.

B. OCCUPIED POSITIONS.

WHEN CLASSIFICATION ACTION HAS BEEN TAKEN ON AN OCCUPIED POSITION, PERSONNEL ACTION TO PUT THE PERSON DOING THE WORK INTO THE NEWLY CLASSIFIED POSITION, TO PUT HIM INTO SOME OTHER POSITION, OR TO SEPARATE HIM, MUST BE TAKEN WITHIN THE LIMITS STATED BELOW, EVEN THOUGH AN APPEAL HAS BEEN OR IS ABOUT TO BE FILED.

(1) NAVY CLASSIFICATION ACTIONS.

* * * * * * * 7 3. PERMISSIBLE DELAY.

THE FOLLOWING ARE EXCEPTIONS TO THE TIME LIMITS STATED ABOVE.

A. WHERE CSC PRIOR APPROVAL OF A PROPOSED PROMOTION OR REASSIGNMENT IS REQUIRED. (SEE NCPI 340.3-6.)

IN THIS CASE THE EMPLOYEE MAY BE DETAILED UNDER NCPI 340 TO THE NEWLY- CLASSIFIED POSITION UNTIL THE COMMISSION APPROVES OR DISAPPROVES THE PROPOSED PROMOTION OR REASSIGNMENT. THE REQUEST FOR GSC APPROVAL MUST BE SUBMITTED TO THE COMMISSION NOT LATER THAN THE BEGINNING OF THE SECOND PAY PERIOD FOLLOWING THE DATE OF CLASSIFICATION ACTION.

* * * * * * * 7-4. CORRECTION OF FAILURE TO PUT CLASSIFICATION ACTIONS INTO EFFECT.

A. WHEN IT IS DISCOVERED THAT CLASSIFICATION ACTION ON AN OCCUPIED POSITION WAS NOT PUT INTO EFFECT WITHIN THE REQUIRED TIME LIMITS, THE HEAD OF THE COMMAND SHALL INITIATE ACTION TO CORRECT THE ERROR. IF THE EMPLOYEE HAS BEEN OVERPAID, THE ACTIVITY SHALL TAKE STEPS TO RECOVER THE OVERPAYMENT UNLESS THE SALARY RETENTION PROVISIONS OF NCPI 552.4 OBTAIN. IF THE EMPLOYEE HAS BEEN UNDERPAID, THE ACTIVITY SHALL MAKE A SUPPLEMENTAL PAYMENT TO HIM.'

WE UNDERSTAND THAT THE WAIVER BY THE CIVIL SERVICE COMMISSION OF MRS. RUSHING'S FAILURE TO MEET THE QUALIFICATION REQUIREMENTS FOR THE POSITION WAS A CONDITION PRECEDENT TO HER PROMOTION THERETO AND TO HER ENTITLEMENT TO THE PAY THEREOF. HOWEVER, THAT CONDITION WAS SATISFIED ON JULY 11, 1967. THE RECORD DOES NOT INDICATE WHETHER MRS. RUSHING ACTUALLY WAS DETAILED TO THE GS-11 POSITION PENDING THE COMMISSION'S APPROVAL OF HER QUALIFICATIONS BUT EVEN IF SHE HAD BEEN SO DETAILED UNDER THE REGULATION THE DETAIL WOULD HAVE CONTINUED ONLY UNTIL THE CIVIL SERVICE COMMISSION'S APPROVAL WAS RECEIVED. WE NOTE ALSO THAT THE REGULATIONS DO NOT SPECIFY THE TIME LIMIT WITHIN WHICH AN EMPLOYEE PERFORMING THE DUTIES OF A RECLASSIFIED POSITION MUST BE PROMOTED TO SUCH POSITION FOLLOWING WAIVER BY THE CIVIL SERVICE COMMISSION OF THE POSITION QUALIFICATION REQUIREMENTS. IT IS REASONABLE, HOWEVER, AND WITHIN THE SPIRIT OF THE REGULATION TO APPLY THE SAME TIME LIMITATIONS SPECIFIED IN NCPI 510.7-2B, QUOTED ABOVE, THAT IS, NOT LATER THAN THE BEGINNING OF THE SECOND PAY PERIOD FOLLOWING RECEIPT OF NOTICE OF APPROVAL BY THE CIVIL SERVICE COMMISSION OF THE WAIVER OF QUALIFICATIONS. ACCORDINGLY, CORRECTIVE ACTION SHOULD BE TAKEN IN ACCORDANCE WITH THE FOREGOING.

WE HAVE NOT OVERLOOKED OUR DECISION B-164815, AUGUST 22, 1968, CITED IN THE LETTER OF SEPTEMBER 25, 1968. HOWEVER, THAT DECISION IS NOT FOR APPLICATION HERE SINCE IN THAT CASE THE NEW POSITION HAD NOT BEEN ESTABLISHED AND CONSEQUENTLY THE EMPLOYEE WAS NEVER APPOINTED TO IT. ..END