B-165730, JAN. 17, 1969

B-165730: Jan 17, 1969

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CONCERNING YOUR AUTHORITY TO PROMOTE TWO EMPLOYEES OF THE DEPARTMENT OF THE NAVY RETROACTIVELY FOR PARTS OF THE TEMPORARY PERIODS THEY WERE INFORMALLY ASSIGNED TO PERFORM THE DUTIES OF HIGHER GRADE POSITIONS. THAT POSITION WAS NOT PERMANENTLY FILLED BUT THE . ASSISTANT DIVISION HEAD" WAS INFORMALLY DETAILED OR ASSIGNED TO PERFORM THE DUTIES OF THE . DIVISION HEAD" AND ANOTHER EMPLOYEE WAS INFORMALLY DETAILED OR ASSIGNED TO PERFORM THE DUTIES OF . THE TWO EMPLOYEES WERE NOT FORMALLY DETAILED TO THE POSITIONS THEY WERE FILLING DURING THE TEMPORARY ABSENCE OF THE "DIVISION HEAD" NOR WERE THEY TEMPORARILY PROMOTED TO THOSE POSITIONS. THE RETROACTIVE PROMOTION OF THE EMPLOYEES HAS BEEN ADMINISTRATIVELY APPROVED TO BE EFFECTIVE AT THE EXPIRATION OF 6 MONTHS AFTER THEY WERE INFORMALLY DETAILED OR ASSIGNED TO THE HIGHER GRADE POSITIONS ON THE THEORY THAT HAD REGULATIONS BEEN FOLLOWED THE EMPLOYEES WOULD HAVE BEEN FORMALLY DETAILED TO THE HIGHER GRADE POSITIONS FOR 6 MONTHS AFTER WHICH THEY WOULD HAVE BEEN TEMPORARILY PROMOTED TO THOSE POSITIONS.

B-165730, JAN. 17, 1969

TO MR. SECRETARY:

WE REFER TO THE LETTER FROM YOUR OFFICE DATED NOVEMBER 29, 1968, CONCERNING YOUR AUTHORITY TO PROMOTE TWO EMPLOYEES OF THE DEPARTMENT OF THE NAVY RETROACTIVELY FOR PARTS OF THE TEMPORARY PERIODS THEY WERE INFORMALLY ASSIGNED TO PERFORM THE DUTIES OF HIGHER GRADE POSITIONS.

THE FACTS PRESENTED FOR OUR CONSIDERATION INVOLVE THE ASSIGNMENT OF A "DIVISION HEAD" TO OVERSEAS DUTY FOR A PERIOD OF 18 MONTHS. SINCE THE "DIVISION HEAD" HAD THE RIGHT TO RETURN TO HIS FORMER POSITION AFTER SERVING OVERSEAS, THAT POSITION WAS NOT PERMANENTLY FILLED BUT THE ,ASSISTANT DIVISION HEAD" WAS INFORMALLY DETAILED OR ASSIGNED TO PERFORM THE DUTIES OF THE ,DIVISION HEAD" AND ANOTHER EMPLOYEE WAS INFORMALLY DETAILED OR ASSIGNED TO PERFORM THE DUTIES OF ,ASSISTANT DIVISION HEAD.' CONTRARY TO THE REQUIREMENTS OF CIVIL SERVICE AND NAVY DEPARTMENT REGULATIONS, THE TWO EMPLOYEES WERE NOT FORMALLY DETAILED TO THE POSITIONS THEY WERE FILLING DURING THE TEMPORARY ABSENCE OF THE "DIVISION HEAD" NOR WERE THEY TEMPORARILY PROMOTED TO THOSE POSITIONS.

THE RETROACTIVE PROMOTION OF THE EMPLOYEES HAS BEEN ADMINISTRATIVELY APPROVED TO BE EFFECTIVE AT THE EXPIRATION OF 6 MONTHS AFTER THEY WERE INFORMALLY DETAILED OR ASSIGNED TO THE HIGHER GRADE POSITIONS ON THE THEORY THAT HAD REGULATIONS BEEN FOLLOWED THE EMPLOYEES WOULD HAVE BEEN FORMALLY DETAILED TO THE HIGHER GRADE POSITIONS FOR 6 MONTHS AFTER WHICH THEY WOULD HAVE BEEN TEMPORARILY PROMOTED TO THOSE POSITIONS.

IT HAS LONG BEEN THE RULE OF THIS OFFICE AND OF THE COURTS THAT AN EMPLOYEE OF THE GOVERNMENT IS ENTITLED ONLY TO THE COMPENSATION OF THE POSITION TO WHICH HE HAS BEEN DULY APPOINTED EVEN THOUGH HE MAY BE ASSIGNED TO PERFORM DUTIES OF A HIGHER GRADE POSITION, 41 COMP. GEN. 497; GANSE V UNITED STATES, 180 CT.CL. 183 (1967); PRICE V UNITED STATES, 112 CT.CL. 198 (1948); AND CASES CITED THEREIN. WE FIND NO PROVISION OF LAW WHICH AUTHORIZES THE RETROACTIVE PROMOTION OF AN EMPLOYEE BASED UPON THE FAILURE OF HIS EMPLOYING AGENCY TO PROMOTE HIM TO A POSITION TO WHICH HE MAY BE DETAILED CONTRARY TO ADMINISTRATIVE REGULATIONS. FURTHER, THE STATUTORY AUTHORITY TO DETAIL EMPLOYEES FOR LIMITED PERIODS AS CONTAINED IN 5 U.S.C. 3341 HAS NOT BEEN VIEWED AS AUTHORIZING RETROACTIVE PAY FOR EMPLOYEES WHO HAVE HAD DETAILS EXTENDED BEYOND THE TIME LIMIT IMPOSED THEREBY. WE FIND NO OTHER GENERAL AUTHORITY FOR PAYMENT OF BACK PAY IN THE SITUATION PRESENTED. IN THAT REGARD, WE DO NOT CONSIDER THAT THE BACK PAY PROVISION OF 5 U.S.C. 5596 ARE BROAD ENOUGH TO COVER CASES INVOLVING AGENCY FAILURE TO COMPLY WITH ADMINISTRATIVE REQUIREMENTS WITH REGARD TO THE DETAIL OF EMPLOYEES TO HIGHER LEVEL POSITIONS.

FOR THE REASONS STATED WE DO NOT FIND ANY AUTHORITY UNDER WHICH YOU MAY PROPERLY PAY THE EMPLOYEES CONCERNED ADDITIONAL COMPENSATION ON THE BASIS OF RETROACTIVELY EFFECTIVE PROMOTIONS TO THE POSITIONS TO WHICH THEY WERE INFORMALLY DETAILED.