B-208822-OM, DEC 6, 1982

B-208822-OM, DEC 6, 1982

SUBJECT: DELEGATION OF AUTHORITY FOR TRAINING AGREEMENTS B-208822-O.M.

DIRECTOR, OOHD - A. F. FRANKLIN:

REFERENCE IS MADE TO YOUR MEMORANDUM DATED AUGUST 27, 1982, IN WHICH YOU SUBMITTED FOR OUR REVIEW AND OPINION A DELEGATION OF AUTHORITY AGREEMENT BETWEEN GAO AND THE OFFICE OF PERSONNEL MANAGEMENT (OPM). UNDER THE AGREEMENT, GAO IS DELEGATED AUTHORITY TO DEVELOP AND IMPLEMENT PLANS UNDER WHICH INTENSIVE TRAINING IS USED AS A SUBSTITUTE FOR NORMAL QUALIFICATION STANDARDS REQUIREMENTS, INCLUDING TIME-IN GRADE REQUIREMENTS. THUS, GAO EMPLOYEES ARE COMPETITIVELY ASSIGNED TO OTHER OCCUPATIONAL FIELDS WITHOUT MEETING MINIMAL OPM QUALIFICATION REQUIREMENTS THROUGH THE UTILIZATION OF TRAINING AGREEMENTS.

THE GAO PERSONNEL ACT OF 1980, PUBLIC LAW 96-191, 94 STAT. 27, CODIFIED AT 31 U.S.C. SEC. 52-1 ET SEQ. (SUPP. IV 1980), WAS ENACTED ON FEBRUARY 15, 1980. THE AGREEMENT SUBMITTED WAS EXECUTED DURING THE INTERIM PERIOD BETWEEN ENACTMENT OF PUBLIC LAW 96-191 AND THE EFFECTIVE DATE (OCTOBER 1, 1980) OF THE PERSONNEL SYSTEM ESTABLISHED BY THE COMPTROLLER GENERAL UNDER AUTHORITY OF THE ACT. THE DELEGATION OF AUTHORITY FROM OPM TO GAO FOR GAO TO IMPLEMENT ITS OWN TRAINING AGREEMENTS CONTINUED UNTIL OCTOBER 1, 1980.

YOU THEREFORE ASK THE FOLLOWING QUESTIONS:

1. DO WE NEED THE DELEGATION OF AUTHORITY UNDER OUR PRESENT LEGISLATION?

2. IF THERE IS NO NEED TO RENEW, IS OUR AUTHORITY EXPLICIT ENOUGH TO GIVE US THE EQUIVALENT FLEXIBILITY OR DO WE NEED TO PROVIDE ADDITIONAL CLARIFICATION FOR THE IMPLEMENTATION OF THAT AUTHORITY?

FOR THE REASONS STATED BELOW, AND BASED UPON OUR REVIEW OF THE PERTINENT PROVISIONS OF THE ACT AND OPM REGULATIONS AND GUIDELINES, GAO NEED NOT RENEW THE DELEGATION OF AUTHORITY FOR TRAINING AGREEMENTS WITH THE OPM. FURTHER, WE ARE OF THE OPINION THAT THE AUTHORITY GIVEN THE COMPTROLLER GENERAL TO ESTABLISH A PERSONNEL SYSTEM FOR THE GAO IS SUFFICIENTLY EXPLICIT SO AS TO GIVE THE COMPTROLLER GENERAL THE EQUIVALENT FLEXIBILITY NOW CONTAINED IN THE DELEGATION OF AUTHORITY AGREEMENT BETWEEN GAO AND OPM.

THE COMPTROLLER GENERAL IS AUTHORIZED TO APPOINT, PAY, ASSIGN, AND DIRECT SUCH PERSONNEL AS HE DETERMINES NECESSARY TO DISCHARGE THE DUTIES AND FUNCTIONS OF THE GAO. 31 U.S.C. SEC. 52-1. THE COMPTROLLER GENERAL IS ALSO EMPOWERED TO ESTABLISH, BY REGULATION, A PERSONNEL MANAGEMENT SYSTEM FOR THE GAO. 31 U.S.C. SEC. 52-2(A). THE PERSONNEL SYSTEM SHALL, AMONG OTHER THINGS, ASSURE THAT ALL EMPLOYEES OF THE GAO ARE APPOINTED, PROMOTED, AND ASSIGNED SOLELY ON THE BASIS OF MERIT AND FITNESS, WITHOUT REGARD TO THE PROVISIONS OF TITLE 5, U.S.C. GOVERNING APPOINTMENTS AND OTHER PERSONNEL ACTIONS IN THE COMPETITIVE SERVICE. 5 U.S.C. SEC. 52-2(B)(1)(D). THE FOREGOING STATUTORY PROVISIONS CLEARLY SHOW THAT THE COMPTROLLER GENERAL IS AUTHORIZED TO ESTABLISH AN INDEPENDENT AND SELF- CONTAINED PERSONNEL MANAGEMENT SYSTEM FOR THE GAO, EFFECTIVE OCTOBER 1, 1980, AND TO ASSIGN GAO EMPLOYEES, WITHOUT REGARD TO THE PROVISIONS OF TITLE 5, U.S.C., RELATING TO APPOINTMENTS AND OTHER PERSONNEL ACTIONS IN THE COMPETITIVE SERVICE SUCH AS RANK IN POSITION, THE RULE OF THREE IN HIRING, TIME IN GRADE, APPOINTMENTS, CLASSIFICATION AND GRADING OF POSITIONS, COMPENSATION, AND ADVERSE ACTIONS AND APPEALS. SEE H.R.REP. NO. 494, 96TH CONG., 1ST SESS. (1979); S.REP. NO. 540, 96TH CONG., 1ST SESS. (1979).

THE LEGISLATIVE HISTORY CONTAINED IN THE PREVIOUSLY CITED REPORTS STATES THAT THE PERSONNEL MANAGEMENT SYSTEM ESTABLISHED BY THE COMPTROLLER GENERAL IS TO BE SELF-CONTAINED AND NOT SUBJECT TO REGULATION OR OVERSIGHT BY THE OPM. IN THIS REGARD, UPON PASSAGE OF THE GAO PERSONNEL ACT OF 1980, SECTION 46A OF TITLE 31, U.S.C., WAS REPEALED. PUBLIC LAW 96-191, SECTION 8(F), 94 STAT. 33. SECTION 46A WAS REPLACED BY 31 U.S.C. SEC. 52-1, SUPRA. IN VIEW OF THE REPEAL OF 31 U.S.C. SEC. 46A AND THE ENACTMENT OF 31 U.S.C. SEC. 52-1, GAO IS NO LONGER REQUIRED TO FOLLOW OPM REGULATIONS RELATING TO PERSONNEL MANAGEMENT. THIS INDEPENDENCE WAS THE STATED PRINCIPAL OBJECTIVE OF PUBLIC LAW 96-191. ALSO, AS TO MATTERS NOT SPECIFICALLY LIMITED BY THE STATUTE, THE COMPTROLLER GENERAL "IS NOT BOUND TO THE WAY THE CIVIL SERVICE OPERATES NOW." H.R.REP. NO. 494, SUPRA.

WITH SPECIFIC REFERENCE TO THE SUBJECT AGREEMENT, INCLUDED IN THE AUTHORITY GRANTED TO THE COMPTROLLER GENERAL BY PUBLIC LAW 96-191 TO ESTABLISH AN INDEPENDENT PERSONNEL SYSTEM FOR THE GAO IS THE POWER TO DETERMINE QUALIFICATION STANDARDS, INCLUDING TIME-IN-GRADE REQUIREMENTS, FOR GAO POSITIONS. SEE C.G. ORDER 2338.1, CHAPTER 2, QUALIFICATION REQUIREMENTS, OCTOBER 1, 1980. THE DELEGATION OF AUTHORITY UNDER CONSIDERATION WAS MADE UNDER CHAPTER 271, FEDERAL PERSONNEL MANUAL, DEVELOPING POLICIES, PROCEDURES, PROGRAMS AND STANDARDS, UNDER WHICH OPM HAS THE PRIMARY RESPONSIBILITY FOR THE DEVELOPMENT OF MOST OF THE PERSONNEL POLICIES AND PROGRAMS FOR THE FEDERAL SERVICE. SUBCHAPTER 7, ENTITLED TRAINING AGREEMENTS, PROVIDES THAT PRIOR APPROVAL OF THE OPM MUST BE OBTAINED THROUGH THE VEHICLE OF A TRAINING AGREEMENT ONLY WHEN TRAINING IS TO BE USED AS A SUBSTITUTE FOR NORMAL QUALIFICATION STANDARDS REQUIREMENTS OR AS A BASIS FOR PROMOTION, OR BOTH.

ALTHOUGH GAO, AS AN INDEPENDENT ESTABLISHMENT (5 U.S.C. SEC. 104), IS SUBJECT TO THE PROVISIONS OF THE GOVERNMENT EMPLOYEES TRAINING ACT, CHAPTER 41, TITLE 5, U.S.C. (SUPP. IV 1980), THE QUALIFICATION STANDARDS REQUIREMENTS FOR GAO POSITIONS, AND MODIFICATION AND EXCEPTIONS THERETO, ARE DETERMINED BY THE PERSONNEL OFFICE OF GAO, NOT BY OPM. THUS, IT IS WITHIN THE AUTHORITY OF THE COMPTROLLER GENERAL TO DETERMINE WHETHER INTENSIVE TRAINING WILL BE USED AS A SUBSTITUTE FOR QUALIFICATION STANDARDS REQUIREMENTS OR AS A BASIS FOR PROMOTION. 5 U.S.C. SEC. 52-2(B)(1)(D), SUPRA. WE THEREFORE CONCLUDE THAT GAO NEED NOT RENEW THE DELEGATION OF AUTHORITY FOR TRAINING AGREEMENTS WITH OPM.

WITH RESPECT TO THE EXPLICITNESS OF OUR AUTHORITY, THE PREVIOUSLY CITED STATUTORY PROVISIONS AND LEGISLATIVE HISTORY, IN OUR OPINION, CLEARLY GIVE THE COMPTROLLER GENERAL THE EQUIVALENT FLEXIBILITY, NOW CONTAINED IN THE DELEGATION OF AUTHORITY AGREEMENT BETWEEN GAO AND OPM, TO DEVELOP AND IMPLEMENT PLANS UNDER WHICH INTENSIVE TRAINING IS USED AS A SUBSTITUTE FOR NORMAL QUALIFICATION STANDARDS REQUIREMENTS, INCLUDING TIME-IN-GRADE REQUIREMENTS.