B-195572.OM, APR 7, 1980

B-195572.OM: Apr 7, 1980

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PRECIS-UNAVAILABLE COMPTROLLER GENERAL: WE ARE FORWARDING THE FILE RELATIVE TO THE CLAIMS OF MESSRS. THEIR CLAIMS HAVE BEEN THE SUBJECT OF DISALLOWANCES BY THE DEPARTMENT OF THE NAVY BECAUSE OF THAT DEPARTMENT'S INTERNAL INSTRUCTIONS REDELEGATING CLASSIFICATION AUTHORITY AT GRADE LEVELS GS 13. 1975 SECRETARY OF THE NAVY INSTRUCTION (SECNAVINST) 12510.6 WAS ISSUED TO CENTRALIZE CLASSIFICATION AUTHORITY FOR CIVILIAN POSITIONS AT THE GS-15 GRADE LEVEL. THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT WAS DIRECTED TO TAKE FINAL CLASSIFICATION ACTION ON SUCH SUBMISSIONS. THE POSITIONS COVERED INCLUDED ALL GS-13 AND GS-14 POSITIONS WHICH WERE PROPOSED FOR ESTABLISHMENT. WHICH BECAME VACANT AND FOR WHICH RECRUITMENT WAS PROPOSED.

B-195572.OM, APR 7, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE RELATIVE TO THE CLAIMS OF MESSRS. GRANDRATH, DOVE, PEREIRA, MECKLER, TITLE, AND MOORE FOR RETROACTIVE TEMPORARY PROMOTION BASED ON OVERLONG DETAILS TO HIGHER GRADED POSITIONS. THEIR CLAIMS HAVE BEEN THE SUBJECT OF DISALLOWANCES BY THE DEPARTMENT OF THE NAVY BECAUSE OF THAT DEPARTMENT'S INTERNAL INSTRUCTIONS REDELEGATING CLASSIFICATION AUTHORITY AT GRADE LEVELS GS 13, 14, AND 15.

ON JULY 1, 1975 SECRETARY OF THE NAVY INSTRUCTION (SECNAVINST) 12510.6 WAS ISSUED TO CENTRALIZE CLASSIFICATION AUTHORITY FOR CIVILIAN POSITIONS AT THE GS-15 GRADE LEVEL. THAT INSTRUCTION REQUIRED SUBMISSION TO THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT (RENAMED OFFICE OF CIVILIAN PERSONNEL) OF ALL PROPOSED REQUIREMENTS FOR GS-15 LEVEL ALLOCATIONS, ALL REDESCRIPTION OF AND AMENDMENTS TO EXISTING GS 15 LEVEL POSITION DESCRIPTIONS, AND ALL REQUIREMENTS TO FILL VACANT GS 15 LEVEL POSITIONS. THE OFFICE OF CIVILIAN MANPOWER MANAGEMENT WAS DIRECTED TO TAKE FINAL CLASSIFICATION ACTION ON SUCH SUBMISSIONS.

IN OCTOBER 1976 SECNAV MESSAGE R191805Z AND OCP MESSAGE R191805Z ANNOUNCED THE REDELEGATION OF CLASSIFICATION AUTHORITY FOR POSITIONS ALLOCABLE TO THE GS-13 AND GS-14 GRADE LEVELS FROM THE HEADS OF ACTIVITIES TO THE FIELD DIVISIONS OF THE OFFICE OF CIVILIAN PERSONNEL. THE POSITIONS COVERED INCLUDED ALL GS-13 AND GS-14 POSITIONS WHICH WERE PROPOSED FOR ESTABLISHMENT, WHICH BECAME VACANT AND FOR WHICH RECRUITMENT WAS PROPOSED, OR WHICH WERE AMENDED OR REDESCRIBED. THIS REDELEGATION OF AUTHORITY WAS MADE EFFECTIVE NOVEMBER 15, 1976.

ALTHOUGH THE DEPARTMENT OF THE NAVY HAD ISSUED THESE INSTRUCTIONS, IT IS QUESTIONABLE WHETHER OR NOT THE LACK OF RECERTIFICATION CANCELS THE CLASSIFICATION OF A PREVIOUSLY CLASSIFIED POSITION FOR THE PURPOSE OF DENYING ENTITLEMENT TO A RETROACTIVE TEMPORARY PROMOTION UNDER 56 COMP. GEN. 427. MESSRS. GRANDRATH, DOVE, PEREIRA, TITLE, AND MECKLER WERE ALL DETAILED TO GS-13 OR 14 POSITIONS. IN THE CASES OF MESSRS. DOVE, TITLE, AND MECKLER, THE DETAILS BEGAN AFTER THE REDELEGATION OF CLASSIFICATION AUTHORITY WAS MADE EFFECTIVE; AND, THEREFORE, IT MUST BE DETERMINED IF THE RECERTIFICATION OF THE DETAIL POSITIONS GRADE LEVEL WAS NECESSARY UNDER THE NAVY'S INSTRUCTIONS AND, IF SO, WHETHER OR NOT THE LACK OF RECERTIFICATION WOULD MEAN THAT THESE INDIVIDUALS HAD BEEN DETAILED TO UNCLASSIFIED POSITIONS. IT SHOULD BE NOTED THAT THE WESTERN FIELD DIVISION OF THE OFFICE OF CIVILIAN PERSONNEL NOTICE 12510, DATED NOVEMBER 12, 1976, WHICH PROVIDED INSTRUCTIONS CONCERNING THE REDELEGATION OF CLASSIFICATION AUTHORITY, COVERED ONLY THOSE GS-13 OR 14 LEVEL POSITIONS WHICH 1) WERE PROPOSED FOR ESTABLISHMENT, 2) BECAME VACANT AND FOR WHICH RECRUITMENT WAS PROPOSED, OR 3) WERE AMENDED OR REDESCRIBED. IN MR. TITLE'S SITUATION IT APPEARS THAT THE DETAIL POSITION HAD BEEN CLASSIFIED PRIOR TO NOVEMBER 15, 1976, BUT WAS NEVER SENT TO THE OFFICE OF CIVILIAN PERSONNEL, WESTERN FIELD DIVISION, FOR CLASSIFICATION AFTER THAT DATE. HOWEVER, THERE IS NO INDICATION THAT RECRUITMENT WAS PROPOSED FOR THE VACANCY NOR THAT THE POSITION WAS AMENDED OR REDESCRIBED. THEREFORE IT IS QUESTIONABLE WHETHER OR NOT CLASSIFICATION BY OCP WOULD BE REQUIRED. MR. MECKLER'S CLAIM IS SIMILAR, BUT THERE IS INDICATION ON FILE THAT THE DETAIL POSITION WAS COVERED BY A MULTIPOSITION DESCRIPTION. HIS DETAIL TO SUPERVISORY NUCLEAR ENGINEER (CHIEF TEST ENGINEER) GS-840-13, POSITION DESCRIPTION NUMBER 2340-1/5 OVERLAPS MR. PEREIRA'S DETAIL AS CHIEF TEST ENGINEER, POSITION DESCRIPTION NUMBER 2340-1. THE SF 52 DETAILING MR. MECKLER STATES THAT HIS DETAIL POSITION WAS TO BE ESTABLISHED AS AN "IDENTICAL ADDITIONAL" POSITION. THEREFORE THE POSITION APPEARS TO HAVE BEEN CLASSIFIED, BUT QUESTION REMAINS AS TO WHETHER OR NOT THE POSITION CAN BE CONSIDERED ESTABLISHED AS REQUIRED FOR RETROACTIVE PROMOTION UNDER 56 COMP.GEN. 427. THE QUESTION OF WHAT CONSTITUTES AN ESTABLISHED POSITION IS ALSO FOR CONSIDERATION IN THE CLAIMS OF MS. SCOOPMIRE AND MR. TAYLOR (Z-2813485 & Z-2714314) WHICH ARE BEING PREPARED FOR REFERRAL SEPARATELY. MR. DOVE'S CLAIM IS DIFFERENT FROM THOSE OF MR. TITLE AND MR. MECKLER IN THAT HIS DETAIL POSITION WAS THE SUBJECT OF A VACANCY ANNOUNCEMENT WHICH WAS ISSUED DURING THE PERIOD OF THE DETAIL. THEREFORE IT WOULD SEEM THAT THE POSITION TO WHICH MR. DOVE WAS DETAILED WOULD BE COVERED BY THE NAVY'S REQUIREMENT THAT THE POSITION BE RECERTIFIED AND IT WOULD BE NECESSARY TO DETERMINE THE EFFECT OF THE LACK OF SUCH RECERTIFICATION.

MR. PEREIRA WAS DETAILED TO A GS-13 POSITION AND MR. GRANDRATH WAS DETAILED TO A GS-14 POSITION, BOTH WITHIN THE 120 DAY PERIOD IMMEDIATELY PRIOR TO THE NOVEMBER 15, 1976 REDELEGATION OF CLASSIFICATION AUTHORITY. SINCE RETROACTIVE PROMOTIONS FOR THEM WOULD NOT BE EFFECTIVE UNTIL AFTER NOVEMBER 15, 1976, THE DATE ON WHICH RECERTIFICATION BECAME NECESSARY, IT SHOULD BE DETERMINED IF THE PERIOD OF DETAIL PRIOR TO NOVEMBER 15 CAN BE CONSIDERED AS "CONSTRUCTIVELY" FILLING THE DETAIL POSITIONS FOR THE PURPOSE OF DECIDING WHETHER OR NOT THE POSITIONS NEEDED RECERTIFICATION UNDER THE NAVY'S INSTRUCTIONS.

MR. MOORE WAS DETAILED TO A GS-15 POSITION, WITH THE 121ST DAY OF HIS DETAIL ON JUNE 26, 1975. THE NAVY STATES THAT HIS RETROACTIVE PROMOTION MUST END ON JUNE 30, 1975, BECAUSE THE SECRETARY OF THE NAVY INSTRUCTION DATED JULY 1, 1975, REQUIRING RECERTIFICATION OF ALL VACANT GS-15 LEVEL POSITIONS. SINCE MR. MOORE'S RETROACTIVE PROMOTION WOULD BE EFFECTIVE JUNE 26TH, IT IS QUESTIONABLE THAT THE POSITION COULD BE CONSIDERED VACANT ON JULY 1ST.

DUE TO THE DOUBT INVOLVED, THE MATTER IS FORWARDED FOR YOUR CONSIDERATION.

INDORSEMENT

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858)

RETURNED. THE REQUIREMENT FOR RECERTIFICATION BY THE DIRECTORS OF THE APPROPRIATE CIVILIAN MANPOWER MANAGEMENT OFFICES OF VACANT POSITIONS TO BE FILLED AT GS-13, 14, AND 15 IS A PART OF THE PROCEDURE FOR STANDARDIZING THE CLASSIFICATION OF POSITIONS. IT DOES NOT HAVE THE EFFECT OF TERMINATING OR DISESTABLISHING A POSITION PREVIOUSLY ESTABLISHED AND CLASSIFIED IN ACCORDANCE WITH THE FOLLOWING REQUIREMENTS OF CMMI 511.5:

"A. POSITION DESCRIPTION CERTIFICATIONS. TWO BASIC KINDS OF POSITION DESCRIPTION CERTIFICATIONS MUST BE EXECUTED BEFORE A POSITION CAN BE CONSIDERED OFFICIALLY ESTABLISHED AND CLASSIFIED WITHIN THE DEPARTMENT OF THE NAVY.

"(1) AUTHORIZATION OF POSITION. THE POSITION DESCRIPTION MUST BE CERTIFIED (SIGNED) AS TO ITS COMPLETENESS AND ACCURACY AND DATED IN ITEM 21 OF NAVSO 12510/7 BY THE PERSON HAVING AUTHORITY TO ESTABLISH THE POSITION AND TO PRESCRIBE ITS DUTIES AND RESPONSIBILITIES AND MUST ALSO BE SIGNED IN ITEM 20 BY THE POSITION'S IMMEDIATE SUPERVISOR, BEFORE CLASSIFICATION ACTION CAN BE TAKEN BY THE APPROPRIATE CLASSIFICATION OFFICIAL (SEE CMMI 511.4-1B(5) AND REVERSE SIDE OF NAVSO 12510/7).

"(2) CLASSIFICATION OF POSITION. AFTER THE ABOVE CERTIFICATIONS HAVE BEEN EXECUTED, ITEM 3 OF NAVSO 12510/7 MUST BE COMPLETED, SIGNED AND DATED BY THE OFFICIAL AUTHORIZED TO CLASSIFY POSITION (SEE ENTRY INSTRUCTION ON FACE OF NAVSO 12510/7) BEFORE A POSITION CAN BE CONSIDERED CLASSIFIED AND BEFORE PERSONNEL ACTION CAN BE TAKEN TO FILL THE POSITION."

LIKE THE ANNUAL REVIEW OF POSITIONS PREVIOUSLY REQUIRED UNDER THE WHITTEN AMENDMENT (5 U.S.C. SEC. 3101 NOTE (1976)), THE REQUIREMENT IMPOSED BY NAVY INSTRUCTIONS FOR RECERTIFICATION OF VACANT POSITIONS AT GRADES GS-13, 14, AND 15 WAS INTENDED AS A FURTHER CHECK ON THE ACCURACY AND CURRENCY OF POSITIONS AT THOSE GRADES. SEE FPM 312, SUBCHAPTER 4-3, AND CMMI 511.4, SUBCHAPTER 4-4.

THE NAVY ITSELF CONSIDERED THE VACANT POSITIONS AT GRADES GS-13, 14, AND 15 AS CLASSIFIED AND ESTABLISHED POSITIONS. SEE ATTACHED MEMORANDUM DATED MARCH 2, 1977, FROM THE DIRECTOR OF CIVILIAN PERSONNEL TO THE CHIEF OF NAVAL MATERIAL. THAT MEMORANDUM REFERS TO THE DELAY INVOLVED IN FILLING HIGH LEVEL VACANCIES UNDER THE "RECENT SECNAV DIRECTIVES REQUIRING CLASSIFICATION ACTION BEFORE A HIGH LEVEL POSITION IS FILLED" AND OFFERS THE USE OF TEMPORARY PROMOTIONS AS ONE METHOD OF OVERCOMING THE PROBLEMS POSED BY THAT DELAY:

"4. ONE METHOD TO USE TO OVERCOME THE PROBLEMS CITED IN REFERENCES (A) AND (C) WOULD BE THE USE OF TEMPORARY PROMOTIONS. VACANCIES MAY BE FILLED BY TEMPORARY PROMOTION FOR UP TO 1 YEAR AND MAY BE EXTENDED FOR ANOTHER YEAR. OF COURSE, ANY TEMPORARY PROMOTION BEYOND 120 DAYS MUST BE EFFECTED THROUGH THE MERIT PROMOTION PROCESS. THE CHIEF OF NAVAL MATERIAL COULD AUTHORIZE TEMPORARY PROMOTIONS, TO BE TERMINATED BEFORE THE END OF FY 77, TO HIGH GRADE VACANCIES PENDING THE RESTRUCTURING OF ORGANIZATIONS TO REDUCE THE NUMBER OF HIGH GRADE POSITIONS. THE TARGET DATE FOR THE COMPLETION OF THE RESTRUCTURING PROCESS COULD BE SET FOR 30 SEPTEMBER 1977. THIS OFFICE WOULD THEN BE WILLING TO PROPOSE A CHANGE TO THE SECNAV DIRECTIVE ON THE CLASSIFICATION OF HIGH GRADE POSITIONS TO ALLOW THE ONE TIME FILLING OF VACATED POSITIONS ON A TEMPORARY BASIS FOR NOT TO EXCEED 120 DAYS, PENDING CLASSIFICATION ACTION BY OCP (OR ITS FIELD DIVISIONS) AND PENDING ACTION TO FILL THEM THROUGH COMPETITIVE PROCESSES."

IN GENERAL, FOR AN EMPLOYEE TO RECEIVE A TEMPORARY PROMOTION TO A HIGHER GRADE POSITION TO WHICH HE HAS BEEN DETAILED FOR MORE THAN 120 DAYS, STATUTORY AND CIVIL SERVICE COMMISSION (NOW OFFICE OF PERSONNEL MANAGEMENT) REQUIREMENTS WHICH GOVERN PROMOTION ARE TO BE APPLIED. SEE FOR EXAMPLE FINDLAY MCKAY, B-191480, OCTOBER 2, 1978, AND DELMORE E. JOHN, B-192449, SEPTEMBER 12, 1978. HOWEVER, AN EXCEPTION TO THE GENERAL RULE THAT COMPETITIVE SELECTION REQUIREMENTS ARE APPLICABLE TO THE ASSIGNMENT OF AN EMPLOYEE TO A HIGHER GRADE POSITION WHICH WILL EXCEED 120 DAYS IS MADE IN THE CASE OF A CLAIM INVOLVING OUR TURNER CALDWELL DECISIONS, 55 COMP.GEN. 539 (1975) AFFIRMED AT 56 ID. 427 (1977). FPM BULLETIN NO. 300 -40, MAY 25, 1977, AT PARA. 8D SPECIFICALLY PROVIDES THAT CLAIMS FOR RETROACTIVE TEMPORARY PROMOTION UNDER THE TURNER-CALDWELL DECISIONS ARE NOT SUBJECT TO THE COMPETITIVE SELECTION RULES. THE FOLLOWING RATIONALE IS OFFERED:

"*** THERE MAY BE INSTANCES WHERE COMPETITION FOR THE ASSIGNMENT SHOULD HAVE BUT DID NOT OCCUR. BECAUSE OF THE LIMITED APPLICABILITY OF THE DECISION AND BECAUSE OF THE DIFFICULTY OF APPLYING RETROACTIVITY IN THIS TYPE OF CASE, AGENCIES WILL NOT BE REQUIRED TO RECONSTRUCT PAST ACTIONS FOR PURPOSES OF RETROACTIVELY GRANTING PROMOTION UNDER COMPETITIVE PROCEDURES IN CASES ARISING UNDER THAT DECISION."

SEE ALSO LEE R. GODDARD, B-193508, JANUARY 22, 1979.

LIKE THE REQUIREMENT FOR COMPETITION, THE RECERTIFICATION REQUIREMENT IMPOSED BY THE NAVY FOR GS-13, 14, AND 15 POSITIONS IS ONE WHICH ALMOST NEVER WILL BE MET IN THE CASE OF AN IMPROPER DETAIL TO A HIGHER GRADE POSITION. SINCE IT IS AN AGENCY IMPOSED REQUIREMENT WHICH IS UNRELATED TO THE EMPLOYEE'S QUALIFICATIONS FOR PROMOTION, WE BELIEVE IT SHOULD BE TREATED IN THE SAME MANNER AS THE REQUIREMENTS FOR COMPETITIVE SELECTION. SPECIFICALLY, THE FAILURE TO RECERTIFY VACANT POSITIONS AT GS-13, 14, AND 15 SHOULD NOT DEFEAT THE EMPLOYEE'S ENTITLEMENT TO RETROACTIVE TEMPORARY PROMOTION WITH BACK PAY. THIS CONCLUSION IS CONSISTENT WITH THE FACT THAT THE NAVY HAS ESSENTIALLY VIEWED THE RECERTIFICATION REQUIREMENT AS PART OF AN "INTERNAL NAVY FREEZE ON HIGH GRADES (GS-13 - 15)." SEE THE ATTACHED MEMORANDUM OF MARCH 2, 1977. WE HAVE CONSISTENTLY HELD THAT AN AGENCY IMPOSED FREEZE ON PROMOTIONS IS NOT A BAR TO RETROACTIVE TEMPORARY PROMOTION. ANNETTE SMITH, 56 COMP.GEN. 732 (1977).

IN VIEW OF THE ABOVE THE POSITIONS INVOLVED IN THIS CASE REMAINED ESTABLISHED.