B-193555 L/M, JUN 4, 1980

B-193555 L/M, JUN 4, 1980

PRECIS-UNAVAILABLE

SENATOR HERMAN E. TALMADGE, UNITED STATES SENATE:

WE REFER TO YOUR LETTER OF JANUARY 30, 1980, REFERRING MR. DONALD P. KONRADY'S REQUEST FOR RECONSIDERATION OF COMPTROLLER GENERAL DECISION B-193555, JANUARY 26, 1979. THAT DECISION DENIED HIS CLAIM FOR A RETROACTIVE TEMPORARY PROMOTION WITH ACCOMPANYING BACK PAY. THE DENIAL WAS BASED ON THE GROUND THAT SINCE HE WAS NOT DETAILED TO AN ESTABLISHED POSITION CLASSIFIED AT A HIGHER GRADE HE IS NOT ENTITLED TO RELIEF UNDER OUR TURNER-CALDWELL LINE OF DECISIONS.

MR. KONRADY CONTENDS THAT THIS DECISION CONFLICTS WITH THE COMPTROLLER GENERAL'S DECISION, MATTER OF RECONSIDERATION OF EVERETT TURNER AND DAVID L. CALDWELL, 56 COMP.GEN. 427 (1977) (TURNER CALDWELL). HIS CONTENTION IS BASED ON A STATEMENT IN THAT DECISION WHICH READS AS FOLLOWS:

"WE DO NOT BELIEVE THAT THE STATUTORY PROVISION AND THE PROVISIONS IN THE FPM COVERING DETAILS, WHICH SPECIFICALLY STATE CERTAIN PROCEDURES WHICH ARE TO BE FOLLOWED TO PROTECT EMPLOYEES, SHOULD BE CONSTRUED TO LEAVE THE EMPLOYEE WITHOUT A REMEDY IN THE EVENT THE AGENCY DECIDES TO IGNORE, OR INADVERTENTLY DOES NOT FOLLOW, THE REQUIREMENTS OF THE STATUTE OR THE FPM."

HE ARGUES, IN EFFECT, THAT SINCE THE AIR FORCE DID NOT COMPLY WITH CIVIL SERVICE COMMISSION (NOW OFFICE OF PERSONNEL MANAGEMENT) REGULATIONS HE IS ENTITLED TO THE REMEDY OF A RETROACTIVE PROMOTION WITH BACK PAY. IN HIS VIEW, THE DENIAL OF HIS CLAIM LEAVES HIM WITHOUT A REMEDY CONTRARY TO THE ABOVE EXCERPT FROM THE TURNER-CALDWELL DECISION.

THE ABOVE-QUOTED LANGUAGE WAS NOT INTENDED TO SUGGEST THAT THERE IS A REMEDY FOR EVERY INSTANCE IN WHICH AN EMPLOYEE PERFORMS DUTIES OUTSIDE THE SCOPE OF HIS POSITION DESCRIPTION. THE STATEMENT SHOULD BE READ IN CONJUNCTION WITH THE RULES LAID DOWN IN TURNER-CALDWELL. THAT DECISION AUTHORIZES RETROACTIVE TEMPORARY PROMOTIONS AND BACK PAY FOR THOSE PORTIONS OF DETAILS TO HIGHER GRADE POSITIONS WHICH ARE IN EXCESS OF 120 DAYS, PROVIDED THE REQUIREMENTS FOR PROMOTION HAVE BEEN MET, WHEN THE APPROVAL OF THE CIVIL SERVICE COMMISSION TO EXTEND THE DETAILS BEYOND 120 DAYS HAS NOT BEEN OBTAINED. THE REMEDY OF BACK PAY IS AVAILABLE ONLY INSOFAR AS AN AGENCY HAS DETAILED AN EMPLOYEE TO A HIGHER GRADE POSITION FOR A PERIOD IN EXCESS OF 120 DAYS. SEE J. E. SKOWRONSKI, B-190442, APRIL 13, 1978 (COPY ENCLOSED).

IN THIS CONTEXT A HIGHER GRADE POSITION HAS BEEN DEFINED AS AN ESTABLISHED POSITION, CLASSIFIED UNDER AN OCCUPATIONAL STANDARD TO A GRADE OR PAY LEVEL. SEE CIVIL SERVICE COMMISSION BULLETIN NO. 300-40 DATED MAY 25, 1977, SUBJECT: GAO DECISION AWARDING BACK PAY FOR RETROACTIVE TEMPORARY PROMOTIONS OF EMPLOYEES ON OVERLONG DETAILS TO HIGHER GRADED JOBS (B-183086) (COPY ENCLOSED). THE REASON FOR THIS IS THAT THE REMEDY PROVIDED BY THE TURNER-CALDWELL DECISION IS A RETROACTIVE PROMOTION AND AN EMPLOYEE CANNOT BE PROMOTED (TEMPORARILY OR PERMANENTLY) TO A POSITION WHICH IS NOT CLASSIFIED.

THEREFORE, SINCE THE DUTIES WHICH MR. KONRADY CLAIMS HE PERFORMED WERE NOT THOSE OF AN ESTABLISHED AND CLASSIFIED POSITION UNTIL MAY 1977, THERE IS NO AUTHORITY UNDER TURNER-CALDWELL, TO GRANT HIM A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY.

FURTHERMORE, IN THE COMPTROLLER GENERAL'S DECISION OF JANUARY 26, 1979, WE INDICATED THAT MR. KONRADY'S CLAIM WAS MORE IN THE NATURE OF A CLASSIFICATION APPEAL. IT WAS POINTED OUT THAT COMPLAINTS REGARDING THE CLASSIFICATION OF A POSITION ARE GENERALLY FOR RESOLUTION BY THE EMPLOYEE'S AGENCY AND THE CIVIL SERVICE COMMISSION. IN FACT THE GENERAL ACCOUNTING OFFICE DOES NOT HAVE AUTHORITY TO RESOLVE QUESTIONS RELATING TO THE CLASSIFICATION OF HIS POSITION. SEE HELEN MANSFIELD, B-192765, MAY 9, 1979, AND WILLIAM A. CAMPBELL, B-183103, JUNE 2, 1975, (COPIES ENCLOSED). MOREOVER, THERE IS NO AUTHORITY FOR AWARDING BACK PAY FOR A PERIOD IN WHICH AN EMPLOYEE SERVED IN A POSITION WHICH WAS ERRONEOUSLY CLASSIFIED. UNITED STATES V. TESTAN, 424 U.S. 392 (1976).

WE REGRET THAT MR. KONRADY FINDS THE CONCLUSION WITH RESPECT TO HIS CLAIM UNSATISFACTORY. HOWEVER, HE HAS PRESENTED NO NEW OR ADDITIONAL EVIDENCE UPON WHICH WE MIGHT BASE A REVERSAL OF OUR PREVIOUS DECISION. WE HOPE THAT THE ABOVE CLARIFICATION WILL ASSIST IN ASSURING HIM THAT HIS CLAIM WAS DULY CONSIDERED IN LIGHT OF THE APPLICABLE LAWS AND PRECEDENTS. THE DOCUMENTATION FORWARDED WITH YOUR LETTER IS RETURNED.