B-86589, AUGUST 16, 1949, 29 COMP. GEN. 75

B-86589: Aug 16, 1949

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OFFICERS AND EMPLOYEES - DE FACTO - RETENTION OF COMPENSATION PAID A POSTAL SERVICE EMPLOYEE WHO WAS GIVEN AN AUTOMATIC PROMOTION TO THE NEXT HIGHER SALARY GRADE CONTRARY TO THE SPECIFIC STATUTORY PROVISION SETTING FORTH A PRESCRIBED PERIOD OF SERVICE AS A PREREQUISITE FOR ADVANCEMENT TO THE HIGHER GRADE IS NOT TO BE REGARDED AS A DE FACTO EMPLOYEE AND ENTITLED TO RETAIN COMPENSATION RECEIVED PRIOR TO THE TIME THE ERROR WAS BROUGHT TO THE ATTENTION OF THE ADMINISTRATIVE OFFICIALS. 1949: REFERENCE IS MADE TO YOUR LETTER OF MAY 19. YOUR DEPARTMENT IS AUTHORIZED TO TREAT ERRONEOUS PERSONNEL ACTIONS GRANTING AUTOMATIC PROMOTIONS TO HIGHER SALARY GRADES AS CONFERRING UPON THE EMPLOYEES INVOLVED A DE FACTO STATUS IN THE HIGHER GRADE.

B-86589, AUGUST 16, 1949, 29 COMP. GEN. 75

OFFICERS AND EMPLOYEES - DE FACTO - RETENTION OF COMPENSATION PAID A POSTAL SERVICE EMPLOYEE WHO WAS GIVEN AN AUTOMATIC PROMOTION TO THE NEXT HIGHER SALARY GRADE CONTRARY TO THE SPECIFIC STATUTORY PROVISION SETTING FORTH A PRESCRIBED PERIOD OF SERVICE AS A PREREQUISITE FOR ADVANCEMENT TO THE HIGHER GRADE IS NOT TO BE REGARDED AS A DE FACTO EMPLOYEE AND ENTITLED TO RETAIN COMPENSATION RECEIVED PRIOR TO THE TIME THE ERROR WAS BROUGHT TO THE ATTENTION OF THE ADMINISTRATIVE OFFICIALS; INSTEAD SUCH EMPLOYEE SHOULD BE REQUIRED TO REFUND ALL PAYMENTS OF COMPENSATION MADE TO HIM IN EXCESS OF THE RATES SPECIFICALLY PRESCRIBED BY LAW. 28 COMP. GEN. 514, DISTINGUISHED.

COMPTROLLER GENERAL WARREN TO THE POSTMASTER GENERAL, AUGUST 16, 1949:

REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1949, REQUESTING A DECISION WHETHER, UNDER THE RULE APPLIED IN OFFICE DECISION OF MARCH 14, 1949, B- 82805, 28 COMP. GEN. 514, YOUR DEPARTMENT IS AUTHORIZED TO TREAT ERRONEOUS PERSONNEL ACTIONS GRANTING AUTOMATIC PROMOTIONS TO HIGHER SALARY GRADES AS CONFERRING UPON THE EMPLOYEES INVOLVED A DE FACTO STATUS IN THE HIGHER GRADE.

AN EXAMPLE OF THE FACTUAL SITUATIONS GIVING RISE TO THE QUESTION PRESENTED IS SET FORTH IN YOUR LETTER, IN SUBSTANCE, AS FOLLOWS:

ON OCTOBER 1, 1946, A RAILWAY POSTAL CLERK WAS REDUCED FROM GRADE 6 TO GRADE 5 FOR UNSATISFACTORY SERVICE. HIS WORK IMPROVED AND ON JULY 1, 1947, HE WAS RESTORED TO GRADE 6. ON OCTOBER 1, 1947, HE WAS PROMOTED TO GRADE 7, THE NEXT HIGHER AUTOMATIC GRADE. SUBSEQUENTLY, ON SEPTEMBER 28, 1948, IN ACCORDANCE WITH GENERAL ACCOUNTING OFFICE DECISION OF JUNE 23, 1948, B-73658, 27 COMP. GEN. 773, INSTRUCTIONS WERE ISSUED TO CHANGE THE EFFECTIVE DATE OF THE PROMOTION TO GRADE 7 FROM OCTOBER 1, 1947, TO JULY 1, 1948. HOWEVER, IT IS STATED IN YOUR LETTER, SUPRA, THAT THE FIELD OFFICIALS OVERLOOKED MAKING THE CHANGE UNTIL BY FORMAL ACTION DATED APRIL 22, 1949, SUCH CHANGE WAS ORDERED. IN THE MEANTIME, ON OCTOBER 1, 1948, THE EMPLOYEE WAS GIVEN ANOTHER PROMOTION TO GRADE 8 WHICH PROMOTION SUBSEQUENTLY WAS REVOKED BY THE SAID ORDER OF APRIL 22, 1949.

THE SAID DECISION OF MARCH 14, 1949, SUPRA, HAD REFERENCE TO THE CASE OF EMPLOYEES WHO ARE APPOINTED, PROMOTED, OR REINSTATED UNDER AUTHORITY DELEGATED BY THE CIVIL SERVICE COMMISSION TO THE VARIOUS AGENCIES OF THE GOVERNMENT AND WHOSE APPOINTMENTS, ETC., UPON POST AUDIT BY THE COMMISSION, WERE FOUND TO BE ERRONEOUS IN THAT THE EMPLOYEES' QUALIFICATIONS FAILED IN SOME RESPECT TO MEET THE QUALIFICATION STANDARDS PRESCRIBED BY CIVIL SERVICE REGULATIONS. WITH RESPECT TO SUCH CASES, IT WAS HELD THAT WHERE THE APPOINTMENTS WERE MADE IN GOOD FAITH, BOTH ON THE PART OF THE EMPLOYEE AND THE ADMINISTRATIVE OFFICE, THE EMPLOYEE INVOLVED MAY BE CONSIDERED AS HAVING SERVED IN A DE FACTO STATUS AND AS BEING ENTITLED TO RETAIN COMPENSATION RECEIVED PRIOR TO THE TIME THE ERROR WAS BROUGHT TO THE ATTENTION OF THE ADMINISTRATIVE OFFICIALS. HOWEVER, SUCH CASES CLEARLY ARE DISTINGUISHABLE FROM THOSE WHERE THE SALARY OF A HIGHER GRADE IS PAID TO AN EMPLOYEE CONTRARY TO SPECIFIC STATUTORY PROVISION SETTING FORTH A PRESCRIBED PERIOD OF SERVICE AS A PREREQUISITE FOR ADVANCEMENT TO THE HIGHER GRADE, SUCH AS IS THE SITUATION REFERRED TO IN YOUR LETTER. CONSEQUENTLY, THE DE FACTO RULE FOLLOWED IN THE SAID DECISION OF MARCH 14, 1949, IS NOT FOR APPLICATION IN THE CASE ILLUSTRATED IN YOUR LETTER. SEE 18 COMP. GEN. 815.

ACCORDINGLY, THE EMPLOYEE REFERRED TO, HAVING BEEN PAID COMPENSATION IN EXCESS OF THE RATES SPECIFICALLY PRESCRIBED BY LAW, SHOULD BE REQUIRED TO REFUND ALL SUCH EXCESS PAYMENTS MADE TO HIM DURING THE PERIOD OCTOBER 1, 1947, THROUGH JUNE 30, 1948, AND OCTOBER 1, 1948, THROUGH MARCH 31, 1949.