B-179323, MAY 16, 1974

B-179323: May 16, 1974

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PROMOTION OF EMPLOYEES OF EEOC TO GS-13 AND ABOVE WERE MADE EFFECTIVE PRIOR TO DATE OF SF 50 BUT AFTER DATE OF APPROVAL BY CHAIRMAN. PROMOTIONS ARE VALID SINCE CHAIRMAN IS OFFICIAL AUTHORIZED TO APPROVE PROMOTIONS AND IT IS A RULE THAT EFFECTIVE DATE OF CHANGE OF SALARY RESULTING FROM ADMINISTRATIVE ACTION IS DATE OF ACTION TAKEN BY ADMINISTRATIVE OFFICER VESTED WITH PROPER AUTHORITY. PROMOTIONS OF EEOC EMPLOYEES TO GS-12 AND BELOW WERE MADE EFFECTIVE PRIOR TO DATE OF SF 50 BUT AFTER DIRECTOR OF MANAGEMENT SIGNED SF 52 WITH SUBSEQUENT ESTABLISHMENT OF EFFECTIVE DATE. THE EFFECTIVE DATES WERE PROPER SINCE DIRECTOR OF MANAGEMENT HAD BEEN DELEGATED AUTHORITY TO FINALLY APPROVE PROMOTIONS TO GS-12 AND BELOW AND IT IS A RULE THAT EFFECTIVE DATE OF CHANGE OF SALARY RESULTING FROM ADMINISTRATIVE ACTION IS DATE OF ACTION TAKEN BY ADMINISTRATIVE OFFICER VESTED WITH PROPER AUTHORITY.

B-179323, MAY 16, 1974

PROMOTION OF EMPLOYEES OF EEOC TO GS-13 AND ABOVE WERE MADE EFFECTIVE PRIOR TO DATE OF SF 50 BUT AFTER DATE OF APPROVAL BY CHAIRMAN, EEOC, ON REQUEST FOR PERSONNEL ACTION, SF 52. PROMOTIONS ARE VALID SINCE CHAIRMAN IS OFFICIAL AUTHORIZED TO APPROVE PROMOTIONS AND IT IS A RULE THAT EFFECTIVE DATE OF CHANGE OF SALARY RESULTING FROM ADMINISTRATIVE ACTION IS DATE OF ACTION TAKEN BY ADMINISTRATIVE OFFICER VESTED WITH PROPER AUTHORITY, OR SUBSEQUENT DATE ADMINISTRATIVELY FIXED. PROMOTIONS OF EEOC EMPLOYEES TO GS-12 AND BELOW WERE MADE EFFECTIVE PRIOR TO DATE OF SF 50 BUT AFTER DIRECTOR OF MANAGEMENT SIGNED SF 52 WITH SUBSEQUENT ESTABLISHMENT OF EFFECTIVE DATE. THE EFFECTIVE DATES WERE PROPER SINCE DIRECTOR OF MANAGEMENT HAD BEEN DELEGATED AUTHORITY TO FINALLY APPROVE PROMOTIONS TO GS-12 AND BELOW AND IT IS A RULE THAT EFFECTIVE DATE OF CHANGE OF SALARY RESULTING FROM ADMINISTRATIVE ACTION IS DATE OF ACTION TAKEN BY ADMINISTRATIVE OFFICER VESTED WITH PROPER AUTHORITY, OR SUBSEQUENT DATE ADMINISTRATIVELY FIXED.

TO EQUAL EMPLOYMENT OPPORTUNITY COMMISSION:

THIS DECISION CONCERNS THE LEGAL AND/OR REGULATORY PROPRIETY OF ALLEGED RETROACTIVE PROMOTIONS MADE TO 26 EMPLOYEES OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) SINCE JUNE 13, 1971, WHICH WAS ONE OF THE SUBJECTS CONTAINED IN A REPORT ISSUED BY THE UNITED STATES CIVIL SERVICE COMMISSION (CSC). THE REPORT CONCLUDED THAT THE AFOREMENTIONED PROMOTION ACTIONS WERE APPROVED SEVERAL DAYS OR WEEKS AFTER THE EFFECTIVE DATES OF THE ACTIONS.

THE EEOC REPORTS THAT UNDER ITS INTERNAL PROCEDURES REQUESTS FOR PERSONNEL ACTIONS, STANDARD FORM 52 (SF 52), ORIGINATE IN FIELD OR HEADQUARTERS OFFICES AND ARE REVIEWED AND ACTED ON IN TURN BY ITS DIVISION OF FINANCIAL MANAGEMENT FOR BUDGET AND POSITION CEILING PURPOSES, BY THE CLASSIFICATION BRANCH, PERSONNEL DIVISION, FOR PURPOSES UNDER THE CLASSIFICATION ACT; BY THE EMPLOYMENT AND EMPLOYEE RELATIONS BRANCH, PERSONNEL DIVISION, FOR DETERMINING THAT EMPLOYEES MEET QUALIFICATIONS, LEGAL AND REGULATORY REQUIREMENTS, AND, IN THE CASE OF ADVERSE OR DISCIPLINARY ACTIONS, THAT ADVERSE NOTICE REQUIREMENTS HAVE BEEN MET BY THE AGENCY. IT WAS FURTHER STATED THAT THE AFOREMENTIONED DETERMINATIONS SATISFY THE PREREQUISITES FOR EFFECTING PROMOTIONS AND OTHER POSITION CHANGES AS SET FORTH BY APPLICABLE PROVISIONS OF THE FEDERAL PERSONNEL MANUAL AND AN EFFECTIVE DATE SET (PRESUMABLY ON SF 52) THEREUNDER IS VALID, SUBJECT TO THE PREROGATIVE OF THE PERSONNEL OFFICER, THE DIRECTOR OF MANAGEMENT, OR THE CHAIRMAN, EEOC, TO DISAPPROVE THE ISSUANCE OF A NOTIFICATION OF PERSONNEL ACTION, STANDARD FORM 50 (SF 50). THE AGENCY FURTHER CONTENDS THAT THE DATE OF AUTHORIZATION OF A NOTIFICATION OF PERSONNEL ACTION IS NOT SYNONYMOUS WITH "APPROVAL DATE." ACCORDINGLY, THE EEOC IN RECORDING PERSONNEL ACTIONS HAS CONSISTENTLY SHOWN UNDER ITEM 35 OF SF 50 THE DATE THE DOCUMENT IS PREPARED WITH EVIDENCE OF APPROVAL OF THE ACTION HAVING BEEN SIGNIFIED ON SF 52 BY APPROPRIATE AUTHORITIES IN TIMELY FASHION. IT WAS POINTED OUT THAT AGENCIES WHICH MANUALLY PREPARE SF 50S FIND IT IMPOSSIBLE TO PHYSICALLY PREPARE THESE DOCUMENTS BEFORE THE EFFECTIVE DATES THEREOF AND THAT SUCH FORMS SIMPLY FORMALLY RECORD THAT PROPER PERSONNEL ACTIONS TOOK PLACE. THE EEOC ALSO REPORTS THAT CSC REQUIRED A REVIEW OF ALL PROMOTION ACTIONS FROM NOVEMBER 1971 TO DECEMBER 1972, AND THAT THERE IS A TOTAL OF 394 EMPLOYEES INVOLVED.

IN RESPONSE TO A REQUEST BY THIS OFFICE FOR CLARIFICATION OF INTERNAL PROCEDURES FOR PROMOTING EMPLOYEES, THE EEOC REPORTED AS FOLLOWS:

"PROCEDURES FOR PROCESSING PROMOTIONS TO GS-12 AND BELOW:

"UPON RECEIPT OF THE SF-52, BUDGET AND CLASSIFICATION CLEARANCES ARE OBTAINED. THE REQUEST FOR PERSONNEL ACTION, SF-52 IS FORWARDED TO THE PLACEMENT UNIT FOR PROCESSING IN ACCORDANCE WITH EEOC MERIT PROMOTION REQUIREMENTS. AFTER A SELECTION HAS BEEN MADE, THE NAME OF THE CANDIDATE IS PLACED ON THE SF-52 AND FORWARDED TO THE DIRECTOR OF MANAGEMENT, WHO APPROVES THE ACTION BY INITIALING AND DATING THE SF-52 UNDER PART II, K, ITEM NO. 6. THE SF-52 IS RETURNED TO THE PERSONNEL OFFICE WHERE THE EFFECTIVE DATE IS ESTABLISHED AS THE FIRST DAY OF THE NEXT PAY PERIOD AFTER THE DIRECTOR OF MANAGEMENT HAS AFFIXED HER INITIALS ON THE SF-52. THE ACTION IS THEN SENT TO THE APPOINTMENTS, RECORDS, AND REPORTS UNIT FOR TYPING AND PROCESSING.

"PROCEDURES FOR PROCESSING PROMOTIONS TO GS-13 AND ABOVE:

"THE STEPS FOR PROCESSING PROMOTIONS TO GS-13 AND ABOVE ARE THE SAME AS ABOVE WITH ONE ADDITIONAL STEP ADDED. I AM THE APPROVAL AUTHORITY FOR PROMOTIONS TO GS-13 AND ABOVE. MY INITIALS AND THE DATE I SIGN THE ACTION ARE RECORDED ON THE SF-52 UNDER PART II, K, ITEM NO. 6 AND RETURNED TO THE PERSONNEL OFFICE WHERE THE EFFECTIVE DATE IS ESTABLISHED AS THE FIRST DAY OF THE NEXT PAY PERIOD. THE ACTION IS THEN TYPED AND PROCESSED BY THE APPOINTMENTS, RECORDS, AND REPORTS UNIT.

"THE DATE TYPED UNDER ITEM NO. 35 ON THE SF-50, NOTIFICATION OF PERSONNEL ACTION, FOR THE ACTIONS CITED IN THE REPORT ON EQUAL EMPLOYMENT OPPORTUNITIES AT THE EEOC WAS NOT THE APPROVAL DATE FOR THE PROMOTION ACTIONS. THIS IS FURTHER EVIDENCED BY THE LARGE NUMBER OF PROMOTION ACTIONS PROCESSED WITH THE EFFECTIVE DATE IN ITEM 13 ON THE SF-50 PRECEDING THE TYPING DATE RECORDED UNDER ITEM NO. 35. THE NUMBER OF SUCH ACTIONS PROCESSED IN THIS MANNER TOTALED 394."

THE RULE FOR DETERMINING THE EFFECTIVE DATE OF SALARY CHANGES RESULTING FROM ADMINISTRATIVE ACTION IS THE DATE OF APPROVAL THEREOF BY AN ADMINISTRATIVE OFFICIAL VESTED WITH PROPER AUTHORITY, OR SUCH SUBSEQUENT DATE AS MAY BE ADMINISTRATIVELY FIXED. 21 COMP. GEN. 95 (1941); 30 ID. 156 (1950), AND DECISIONS CITED THEREIN; FPM SUPPLEMENT 990-2, BOOK 531, SUBCHAPTER S2-5B.

WITH RESPECT TO PROMOTIONS TO GS-13 AND ABOVE WHERE THE CHAIRMAN, EEOC, IS THE APPROVAL AUTHORITY AND HE SIGNS THE SF 52 WHICH IS RETURNED TO THE PERSONNEL OFFICE FOR AN EFFECTIVE DATE TO BE ESTABLISHED (THE FIRST DAY OF THE NEXT PAY PERIOD), SUCH PROMOTIONS MAY BE REGARDED AS EFFECTIVE ON THE EFFECTIVE DATES ESTABLISHED IN THE PERSONNEL OFFICE EVEN THOUGH SF 50 MAY NOT BE PROCESSED UNTIL AFTER SUCH EFFECTIVE DATES. THIS IS PROPER SINCE THE OFFICIAL HAVING AUTHORITY TO APPROVE PROMOTIONS HAS MADE HIS DETERMINATIONS AND THE EFFECTIVE DATES WERE SET THEREAFTER IN ACCORDANCE WITH ESTABLISHED PROCEDURE.

IN REGARD TO PROMOTIONS TO GS-12 AND BELOW WHERE THE NAME OF THE CANDIDATE SELECTED APPEARS ON THE SF 52 AND IS APPROVED BY THE DIRECTOR OF MANAGEMENT, WE HAVE BEEN INFORMALLY ADVISED BY PERSONNEL OFFICIALS OF EEOC THAT SUCH APPROVAL IS FINAL AND CONSTITUTES THE ACTION UPON WHICH SUCH PROMOTIONS ARE BASED. IT WAS STATED THAT ONCE THE SF 52 HAS BEEN APPROVED BY THE DIRECTOR OF MANAGEMENT AND THE PERSONNEL OFFICER, THE TYPING OF THE SF 50 AND ITS ISSUANCE REQUIRES NO FURTHER APPROVAL ALTHOUGH THE PERSONNEL OFFICER SIGNS ALL SF 50S. ACCORDINGLY, BASED UPON THE EVIDENCE OF RECORD, IT DOES NOT APPEAR THAT THE PROMOTIONS UNDER CONSIDERATION WERE RETROACTIVE AND HENCE ARE VALID AS CONSTITUTED.

HOWEVER, TO INSURE ORDERLY ADMINISTRATION AND PERSONNEL PROCEDURES EVERY EFFORT SHOULD BE MADE TO ADHERE TO THE DIRECTIVES OF THE CSC CONCERNING THE TIMELINESS OF ISSUANCE OF SF 50S.