B-133381, JUN. 25, 1970

B-133381: Jun 25, 1970

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SUTTON: REFERENCE IS MADE TO YOUR LETTER OF MAY 27. YOU POINT OUT THAT THE COMMISSION FOLLOWS THE ESTABLISHED PRINCIPLE THAT PROMOTIONS CAN BE EFFECTIVE ONLY FROM THE DATE ADMINISTRATIVE ACTION IS TAKEN BY THE ADMINISTRATIVE OFFICER VESTED WITH PROPER AUTHORITY TO TAKE SUCH ACTION. UNDER PRESENT PROCEDURES THE COMMISSION AS A BODY ACTS AS THE "ADMINISTRATIVE OFFICER" FOR THE PURPOSE OF APPROVING PROMOTIONS AND THERE IS NO DELEGATION OF AUTHORITY FOR APPROVING PROMOTIONS. IT IS THE PRACTICE TO CIRCULATE TO THE MEMBERS OF THE COMMISSION FOR APPROVAL OR DISAPPROVAL A MEMORANDUM CONTAINING THE PROMOTION RECOMMENDATIONS. PROMOTIONS HAVE BEEN MADE EFFECTIVE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE MEETING.

B-133381, JUN. 25, 1970

TO MR. SUTTON:

REFERENCE IS MADE TO YOUR LETTER OF MAY 27, 1970, REQUESTING A RULING AS TO WHETHER OUR OFFICE HAS ANY OBJECTIONS TO THE ADOPTION OF A PROPOSAL BY THE UNITED STATES TARIFF COMMISSION REGARDING THE EFFECTIVE DATES OF PROMOTIONS OF THE COMMISSION'S EMPLOYEES.

YOU POINT OUT THAT THE COMMISSION FOLLOWS THE ESTABLISHED PRINCIPLE THAT PROMOTIONS CAN BE EFFECTIVE ONLY FROM THE DATE ADMINISTRATIVE ACTION IS TAKEN BY THE ADMINISTRATIVE OFFICER VESTED WITH PROPER AUTHORITY TO TAKE SUCH ACTION. UNDER PRESENT PROCEDURES THE COMMISSION AS A BODY ACTS AS THE "ADMINISTRATIVE OFFICER" FOR THE PURPOSE OF APPROVING PROMOTIONS AND THERE IS NO DELEGATION OF AUTHORITY FOR APPROVING PROMOTIONS. IT IS THE PRACTICE TO CIRCULATE TO THE MEMBERS OF THE COMMISSION FOR APPROVAL OR DISAPPROVAL A MEMORANDUM CONTAINING THE PROMOTION RECOMMENDATIONS, AND THEREAFTER TO "RATIFY" THE INFORMAL ACTION AT A MEETING OF THE COMMISSION. PROMOTIONS HAVE BEEN MADE EFFECTIVE AT THE BEGINNING OF THE NEXT PAY PERIOD FOLLOWING THE MEETING. UNDER THE PROPOSAL IN QUESTION PROMOTIONS WOULD BE EFFECTIVE AT THE BEGINNING OF THE PAY PERIOD BEGINNING AFTER THE RECOMMENDATIONS HAVE BEEN "APPROVED" BY THE NECESSARY MAJORITY ON CIRCULATION OF THE MEMORANDUM. THE ACTION WOULD STILL BE RATIFIED IN THE USUAL MANNER; HOWEVER, THE RATIFICATION COULD COME AFTER THE EFFECTIVE DATE OF THE PROMOTIONS.

THE RULE FOR DETERMINING THE EFFECTIVE DATE OF A CHANGE OF SALARY RESULTING FROM ADMINISTRATIVE ACTION IS THE DATE OF APPROVAL THEREOF BY A PROPER ADMINISTRATIVE OFFICIAL, OR SUCH SUBSEQUENT DATE AS MAY BE ADMINISTRATIVELY FIXED. SEE 21 COMP. GEN. 95, 96 (1941); 30 ID. 156 (1950), AND DECISIONS CITED THEREIN. RETROACTIVE SALARY INCREASES MAY BE GRANTED ONLY BY EXPRESS AUTHORITY OF THE CONGRESS AND MAY NOT OTHERWISE BE GRANTED ADMINISTRATIVELY. 31 COMP. GEN. 191 (1951). THE FACT THAT IT IS DIFFICULT FOR A GROUP, SUCH AS A BOARD, TO MEET AT SUFFICIENT INTERVALS TO AUTHORIZE PROMOTIONS IS NOT SUFFICIENT TO OVERCOME THE PROHIBITION AGAINST RETROACTIVE PROMOTIONS. 39 COMP. GEN. 583 (1960). HOWEVER, A GOVERNING AUTHORITY MAY SET FORTH A POLICY WHICH STATES THAT COMPENSATION INCREASES WILL BE EFFECTIVE IN THE FUTURE WHEN CERTAIN CONDITIONS ARE MET. 44 COMP. GEN. 89 (1964).

IN THE INSTANT CASE, THERE WOULD BE NO LEGAL OBJECTION TO HAVING PROMOTIONS BECOME EFFECTIVE AT THE BEGINNING OF THE PAY PERIOD AFTER RECOMMENDATIONS HAVE BEEN APPROVED BY THE NECESSARY NUMBER OF COMMISSION MEMBERS PROVIDED SUCH APPROVAL IS NOT MADE CONTINGENT UPON FORMAL RATIFICATION AT A COMMISSION MEETING. UNDER THE CIRCUMSTANCES, IT WOULD APPEAR APPROPRIATE FOR THE COMMISSION TO FORMALLY ADOPT AND RECORD THE APPROVAL PROCEDURE UNDER WHICH THE EFFECTIVE DATE OF PROMOTIONS WILL BE ESTABLISHED MAKING CLEAR THAT REFERENCE AT COMMISSION MEETINGS TO PROMOTION ACTIONS PREVIOUSLY APPROVED "INFORMALLY" WOULD BE FOR THE SOLE PURPOSE OF MAKING APPROPRIATE ENTRY IN THE MINUTES OF THE COMMISSION.