B-39406, FEBRUARY 2, 1944, 23 COMP. GEN. 560

B-39406, FEBRUARY 2, 1944, 23 COMP. GEN. 560

COMPENSATION - WITHIN-GRADE PROMOTIONS - ADMINISTRATIVE SYSTEM OF EFFICIENCY RATING WHERE THE CURRENT EFFICIENCY RATING OF AN EMPLOYEE WHO WAS OTHERWISE ENTITLED ON APRIL 1, 1943 TO A WITHIN-GRADE SALARY ADVANCEMENT UNDER THE ACT OF AUGUST 1, 1941, AND THE PRESIDENT'S REGULATIONS ISSUED THEREUNDER, WAS NOT ON RECORD UNTIL AFTER MARCH 31, 1943, SUCH EFFICIENCY RATING MAY NOT BE USED AS A BASIS FOR AN AUTOMATIC PROMOTION PRIOR TO JULY 1, 1943. WHERE THE CURRENT EFFICIENCY RATING OF AN EMPLOYEE WAS MADE IN ACCORDANCE WITH AN ADMINISTRATIVE SYSTEM OF EFFICIENCY RATINGS AND NOT "UNDER A SYSTEM OF EFFICIENCY RATINGS PRESCRIBED OR APPROVED BY THE CIVIL SERVICE COMMISSION," AS REQUIRED BY THE PRESIDENT'S REGULATIONS ISSUED PURSUANT TO THE WITHIN-GRADE SALARY-ADVANCEMENT STATUTE OF AUGUST 1, 1941, SUCH EFFICIENCY RATING MAY NOT BE USED AS A BASIS FOR GRANTING THE EMPLOYEE AN AUTOMATIC PROMOTION.

ACTING COMPTROLLER GENERAL YATES TO THE ATTORNEY GENERAL, FEBRUARY 2, 1944:

I HAVE YOUR LETTER OF JANUARY 11, 1944, REF. A3, AS FOLLOWS:

THERE IS ENCLOSED HEREWITH COPY OF A MEMORANDUM WITH SUPPORTING PAPERS FROM THE IMMIGRATION AND NATURALIZATION SERVICE OF THIS DEPARTMENT CALLING ATTENTION TO AN ALLEGED ADMINISTRATIVE ERROR ON ITS PART INVOLVING AUTOMATIC OR WITHIN-GRADE PROMOTIONS PROVIDED BY STATUTE AND WHICH IS SELF -EXPLANATORY.

YOU ARE KINDLY REQUESTED TO ADVISE AS TO WHETHER THE AUTOMATIC PROMOTIONS IN THE CASES INDICATED THEREIN MAY NOW BE AMENDED TO HAVE RETROACTIVE EFFECT ON THE DATES INDICATED, OR ON SUCH OTHER DATES AS MAY BE INDICATED, INSTEAD OF JULY 1, 1943.

KINDLY RETURN THE EFFICIENCY REPORTS WHEN THEY HAVE SERVED YOUR PURPOSE.

THE REFERRED-TO MEMORANDUM IS DATED DECEMBER 16, 1943, AND READS AS FOLLOWS:

LAST SUMMER THERE WAS CALLED TO MR. QUINN'S ATTENTION A SITUATION WHICH RESULTED IN DELAYS IN EFFECTING RAMSPECK PROMOTIONS FOR PATROL INSPECTORS BECAUSE OF SPECIAL PROBATIONARY RATING PROCEDURES DEVELOPED BY THE SERVICE FOR THESE POSITIONS. A NUMBER OF PATROL INSPECTORS WERE, UPON COMPLETION OF EIGHTEEN MONTHS' SATISFACTORY SERVICE, ELIGIBLE FOR AUTOMATIC INCREASES ON OCTOBER 1, 1942, AND THE TWO QUARTERS FOLLOWING. ORDINARILY, THE TEN MONTHS' PROBATIONARY RATING ON STANDARD CIVIL SERVICE EFFICIENCY RATING FORM 51 IS USED AS A BASIS FOR SUCH PROMOTIONS. HOWEVER, FOR THE EMPLOYEES WHOSE NAMES APPEAR ON THE ATTACHED LIST STANDARD FORM 51 WAS NOT USED BUT INSTEAD A SPECIAL PATROL INSPECTOR PROBATIONARY RATING, WHICH HAD BEEN DEVELOPED BY THIS SERVICE, WAS USED. THIS WAS A FORM WHICH HAS BEEN IN USE FOR QUITE SOME TIME AND IT WAS BELIEVED NECESSARY TO USE THE STANDARD FORM 51 ONLY AFTER THE RAMSPECK PROMOTIONS MADE IT MANDATORY.

MOST OF THESE INSPECTORS WERE SUBSEQUENTLY PROMOTED ( JULY 1, 1943) FOLLOWING THE REGULAR RATING CONDUCTED APRIL 1, 1943. HOWEVER, I BELIEVE THAT IT IS UNFAIR TO PENALIZE THESE EMPLOYEES IN AMOUNTS RANGING FROM $25 TO $75 BECAUSE OF ADMINISTRATIVE OMISSIONS, AND SUGGEST THAT RECONSIDERATION BE GIVEN TO EFFECTING RETROACTIVE PROMOTIONS. YOU WILL FIND ATTACHED THREE LISTS OF THE INDIVIDUALS INVOLVED AND BELOW OUR RECOMMENDATIONS FOR THE ADJUSTMENT OF EACH GROUP.

LIST NO. 1 INCLUDES THOSE EMPLOYEES WHO WERE ELIGIBLE FOR PROMOTION ON APRIL 1, 1943. THESE INSPECTORS RECEIVED THEIR REGULAR RATING ON FORM 51 ON MARCH 31, 1943, WHICH RATING IS ORDINARILY USED TO EFFECT PROMOTIONS ON JULY 1, FOLLOWING. SINCE THEY HAD THE REQUISITE AMOUNT OF SERVICE AND THEIR EFFICIENCY WAS SUCH AS TO ENTITLE THEM TO PROMOTION ON APRIL 1, I RECOMMEND THAT THEIR PROMOTIONS BE MADE RETROACTIVE TO THE LATTER DATE.

FOR THE EMPLOYEES INCLUDED IN LIST NO. 2, THIS OFFICE HAS ON FILE INTERIM RATINGS ANTEDATING THE DATE ELIGIBLE FOR PROMOTION. WE SUGGEST THAT THESE INTERIM RATINGS BE USED AS A BASIS FOR PROMOTION AND THAT THEIR INCREASES BE MADE RETROACTIVE TO OCTOBER 1, 1942 AND JANUARY 1, 1943, AS INDICATED ON THE LIST.

LIST NO. 3 INCLUDES THOSE INDIVIDUALS FOR WHOM NO FORM 51 RATING IS AVAILABLE. IN THESE CASES I SUGGEST THAT THE CIVIL SERVICE COMMISSION BE ASKED TO ACCEPT THE BORDER PATROL RATING FORM IN LIEU OF FORM 51, SO THAT EMPLOYEES MAY BE PROMOTED RETROACTIVELY AT THE BEGINNING OF THE QUARTER FOLLOWING THEIR COMPLETION OF EIGHTEEN MONTHS' SERVICE. WE ARE ATTACHING TO THIS LIST THE FORMS ON WHICH THESE INSPECTORS HAVE BEEN RATED TO INDICATE TO THE COMMISSION THAT A COMPREHENSIVE EVALUATION HAD BEEN MADE.

SECTION 7 OF THE CLASSIFICATION ACT OF 1923, AS AMENDED BY SECTION 2 OF THE ACT OF AUGUST 1, 1941, 55 STAT. 613, SUBJECTS THE WITHIN-GRADE SALARY ADVANCEMENTS TO THE CONDITIONS EXPRESSED IN SUBSECTIONS B (2) AND B (3), AMONG OTHERS; AS FOLLOWS:

(2) THAT AN EMPLOYEE WHOSE RATE OF COMPENSATION IS BELOW THE MIDDLE RATE OF THE GRADE SHALL NOT BE ADVANCED UNLESS HIS CURRENT EFFICIENCY IS GOOD OR BETTER THAN GOOD;

(3) THAT AN EMPLOYEE WHOSE RATE OF COMPENSATION IS AT OR ABOVE THE MIDDLE RATE OF THE GRADE SHALL NOT BE ADVANCED UNLESS HIS CURRENT EFFICIENCY IS BETTER THAN GOOD. (ITALICS SUPPLIED).

SECTION 1 (E) OF THE " REGULATIONS GOVERNING WITHIN-GRADE SALARY ADVANCEMENTS" ( EXECUTIVE ORDER NO. 8882, DATED SEPTEMBER 3, 1941) ISSUED BY THE PRESIDENT PURSUANT TO SUBSECTION (G) OF SAID AMENDED STATUTE PROVIDES:

(E) " CURRENT EFFICIENCY" SHALL MEAN THE LATEST EFFICIENCY RATING ON RECORD FOR THE EMPLOYEE, MADE UNDER A SYSTEM OF EFFICIENCY RATINGS PRESCRIBED OR APPROVED BY THE CIVIL SERVICE COMMISSION.

IN DECISION OF MAY 29, 1942, 21 COMP. GEN. 1067, 1070, IT WAS STATED, AFTER QUOTING THE ABOVE REGULATIONS, AS FOLLOWS:

HENCE, AN AUTOMATIC PROMOTION MAY BE MADE AT THE BEGINNING OF A QUARTER ONLY IF THERE BE ON RECORD AN EFFICIENCY RATING OF THE INDIVIDUAL EMPLOYEE, MADE IN ACCORDANCE WITH A SYSTEM OF EFFICIENCY RATINGS PRESCRIBED OR APPROVED BY THE CIVIL SERVICE COMMISSION, ENTITLING THE INDIVIDUAL EMPLOYEE TO A PROMOTION. THE SYSTEM OF EFFICIENCY RATINGS PRESCRIBED OR APPROVED BY THE CIVIL SERVICE COMMISSION--- SEE" EFFICIENCY RATING MANUAL," EFFECTIVE MARCH 31, 1942- - PROVIDES FOR AN ANNUAL EFFICIENCY RATING AS OF MARCH 31 OF EACH YEAR, BUT DOES NOT PROVIDE FOR A SPECIAL RATING RETROACTIVELY EFFECTIVE IN THE CASE OF EMPLOYEES TRANSFERRED FROM A POSITION NOT SUBJECT TO THE EFFICIENCY RATING SYSTEM PRESCRIBED UNDER THE CLASSIFICATION ACT TO A POSITION SUBJECT TO SUCH EFFICIENCY RATING SYSTEM. * * *

HENCE, REFERRING TO LIST 1 MENTIONED IN THE MEMORANDUM, SUPRA, AS THE EFFICIENCY RATINGS ON FORM 51 MADE IN ACCORDANCE WITH THE CIVIL SERVICE REGULATIONS WERE NOT ON RECORD UNTIL AFTER MARCH 31, 1943, THE RATINGS MAY NOT BE USED AS A BASIS FOR AUTOMATIC PROMOTIONS PRIOR TO JULY 1, 1943.

REFERRING TO LIST 2, IT DOES NOT CLEARLY APPEAR THAT THE INTERIM EFFICIENCY RATINGS REFERRED TO WERE MADE IN ACCORDANCE WITH CIVIL SERVICE REGULATIONS OR, IF SO, THAT THEY WERE ON RECORD PRIOR TO JANUARY 1, 1943. HOWEVER, IF THE RATINGS IN FACT WERE MADE IN ACCORDANCE WITH THE CIVIL SERVICE REGULATIONS AND WERE ON RECORD PRIOR TO JANUARY 1, 1943, THE AUTOMATIC PROMOTIONS MAY BE MADE TO THE EMPLOYEES WHOSE NAMES APPEAR IN LIST 2 RETROACTIVELY EFFECTIVE TO JANUARY 1, 1943, BUT IF THE CONTRARY BE TRUE IN EITHER RESPECT, THE RETROACTIVE PROMOTIONS MAY NOT BE MADE.

IT IS UNDERSTOOD FROM BOTH YOUR LETTER AND THE MEMORANDUM, SUPRA, THAT NONE OF THE EFFICIENCY RATINGS ON RECORD FOR THE EMPLOYEES IN LIST 3, PRIOR TO THOSE MADE FOR THE PERIOD WHICH ENDED MARCH 31, 1943--- AVAILABLE AS A BASIS FOR AUTOMATIC PROMOTIONS EFFECTIVE JULY 1, 1943--- WAS "MADE UNDER A SYSTEM OF EFFICIENCY RATINGS PRESCRIBED OR APPROVED BY THE CIVIL SERVICE COMMISSION" (QUOTING FROM THE PRESIDENT'S REGULATIONS, SUPRA). THAT FACT APPEARS TO BE BORNE OUT FROM AN EXAMINATION OF THE SUBMITTED EFFICIENCY RATING FORMS WHICH PROVIDE FOR ONLY A DETERMINATION OR EVALUATION OF THE EMPLOYEES' SERVICES AS "SATISFACTORY" OR "UNSATISFACTORY," RATHER THAN UPON THE BASIS OF "FAIR," ,GOOD," "VERY GOOD," AND "EXCELLENT," AS PROVIDED FOR BY THE EFFICIENCY RATING SYSTEM PRESCRIBED BY THE CIVIL SERVICE COMMISSION. HENCE, UNDER THE PLAIN TERMS OF THE LAW AND REGULATIONS, THERE IS NO ALTERNATIVE BUT TO CONCLUDE THAT THE REFERRED-TO ADMINISTRATIVE SYSTEM OF EFFICIENCY RATINGS MAY NOT BE USED AS A BASIS FOR GRANTING WITHIN GRADE SALARY ADVANCEMENTS FOR EMPLOYEES WHOSE NAMES APPEAR IN LIST 3, RETROACTIVELY EFFECTIVE FOR ANY PERIOD PRIOR TO JULY 1, 1943.