B-155487, MAR. 22, 1965

B-155487, MAR. 22, 1965

TO THE HONORABLE SECRETARY OF HEALTH, EDUCATION AND WELFARE:

YOUR LETTER OF MARCH 5, 1965, WHICH INCORPORATES BY REFERENCE AN ATTACHED MEMORANDUM FROM YOUR GENERAL COUNSEL, AND ENCLOSES OTHER RELATED DOCUMENTS, ASKS OUR DECISION WHETHER THE PAY OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE DETAILED FOR OVERSEAS SERVICE WITH THE PEACE CORPS MAY BE INCREASED RETROACTIVELY FOR THE PERIOD OCTOBER 1 TO DECEMBER 31, 1963, AND, IF SO, WHETHER THE ADJUSTMENT FORMULA PROPOSED BY THE GENERAL COUNSEL IN HIS MEMORANDUM MAY BE FOLLOWED.

THE GENERAL RULE IS THAT ADMINISTRATIVE CHANGES IN PAY OR SALARY RATES MAY NOT BE MADE RETROACTIVELY IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORITY. 31 COMP. GEN. 163. THERE IS NO STATUTORY PROVISION GOVERNING THE CASE PRESENTED BY YOUR LETTER AND, THEREFORE, THE QUESTION RAISED BY YOUR LETTER IS WHETHER ALL THAT IS REQUIRED TO OBLIGATE THE GOVERNMENT OR MAKE IT LEGALLY LIABLE TO PAY THE PROPOSED INCREASES, EFFECTIVE OCTOBER 1, 1963, WAS ADMINISTRATIVELY ACCOMPLISHED ON OR BEFORE THAT DATE.

THE ESTABLISHED RULE IN THAT REGARD IS THAT THE EFFECTIVE DATE OF SALARY CHANGES RESULTING SOLELY FROM ADMINISTRATIVE ACTION IS THE DATE THE ACTION IS TAKEN BY THE ADMINISTRATIVE OFFICER VESTED WITH THE PROPER AUTHORITY, OR A SUBSEQUENT DATE SPECIFICALLY FIXED BY HIM. 21 COMP. GEN. 95; B- 106516, AUGUST 20, 1964, 44 COMP. GEN. - .

THE MEMORANDUM OF UNDERSTANDING BETWEEN THE PUBLIC HEALTH SERVICE AND THE PEACE CORPS, A COPY OF WHICH WAS TRANSMITTED WITH YOUR LETTER, CONTEMPLATES ADJUSTMENTS OF THE PAY OF COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE. SPECIFICALLY, SECTION V.F.2.D. OF THE MEMORANDUM READS:

"UNUSUAL SITUATIONS INVOLVING PUBLIC HEALTH SERVICE COMMISSIONED OFFICERS' SALARIES AND CONVERSIONS MAY BE RESOLVED THROUGH MUTUAL ARRANGEMENT. (EXAMPLE: PROMOTIONS, UNANTICIPATED LEGISLATIVE INCREASES, ETC.)"

PUB.L. 88-132, APPROVED OCTOBER 2, 1963, 37 U.S.C. 203, PROVIDED PAY INCREASES FOR COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE, EFFECTIVE OCTOBER 1, 1963, WHICH WE UNDERSTAND WAS AN UNANTICIPATED INCREASE WITHIN THE PURVIEW OF THE ABOVE-QUOTED SECTION. CONSEQUENTLY, NEGOTIATIONS WERE COMMENCED BY THE TWO AGENCIES TO ESTABLISH MUTUALLY SATISFACTORY NEW RATES OF PAY FOR THOSE COMMISSIONED OFFICERS OF THE PUBLIC HEALTH SERVICE WHO WERE DETAILED TO OVERSEAS SERVICE.

THE RESULTING MEMORANDUM OF UNDERSTANDING, DATED DECEMBER 31, 1963, FIXED RATES OF PAY TO TAKE EFFECT JANUARY 1, 1964, AND, APPARENTLY, THE RATES SO ADJUSTED TOOK INTO CONSIDERATION NOT ONLY THE INCREASED PAY AUTHORIZED BY PUB.L. 88-132 BUT ALSO THE RATE INCREASES AUTHORIZED BY TITLE V OF PUB.L. 87-793, 76 STAT. 861. NO PROVISION WAS MADE IN THAT MEMORANDUM FOR MODIFYING THE RATES OF PAY FOR THE PERIOD OCTOBER 1, 1963, TO DECEMBER 31, 1963. WE NOTE THAT LETTER OF DECEMBER 30, 1963, FROM THE PUBLIC HEALTH SERVICE, TRANSMITTING THE ABOVE-MENTIONED MEMORANDUM OF DECEMBER 31, TO THE PEACE CORPS, REFERS TO PAY ADJUSTMENT FOR THE PERIOD OCTOBER THROUGH DECEMBER, 1963, AS FOLLOWS:

"IN THE EVENT OF A FAVORABLE DECISION (BY THE COMPTROLLER GENERAL) WE WILL NEGOTIATE WITH YOU A FURTHER MEMORANDUM OF UNDERSTANDING CONCERNING THE RETROACTIVE INCREASES.'

YOUR GENERAL COUNSEL IN HIS ATTACHED MEMORANDUM EXPLAINS THE CIRCUMSTANCES WHICH LEAD TO THE OMISSION FROM THE SUPPLEMENTAL MEMORANDUM OF UNDERSTANDING OF A PROVISION FOR INCREASES FOR THE THREE MONTH PERIOD, AS FOLLOWS:

"THE AGENCIES DID NOT, IN FACT, IMMEDIATELY COMPUTE THE NEW FOREIGN SERVICE STAFF GRADE WHICH MIGHT BE REQUIRED ON THE BASIS OF THE INCREASE IN THE PHS COMPENSATION PROVIDED FOR BY P.L. 88-132 FOR THE REASON THAT THE COMPUTATIONS WOULD APPLY ONLY FOR THE INTERVENING PERIOD BETWEEN OCTOBER 1, 1963, AND EFFECTIVE DATE OF P.L. 88-132, AND JANUARY 1, 1964, THE EFFECTIVE DATE OF THE NEW HIGHER FOREIGN SERVICE SALARY RATES UNDER P.L. 87-793, AND THESE COMPUTATIONS WOULD HAVE TO BE REDONE AS OF JANUARY 1, 1964 TO REFLECT THE NEW AND HIGHER FOREIGN SERVICE STAFF RATE SCHEDULE. * * *"

A CAREFUL REVIEW OF THE ENTIRE RECORD LEADS US TO THE CONCLUSIONS THAT SECTION V.F.2.D. OF THE BASIC MEMORANDUM OF UNDERSTANDING, QUOTED EARLIER, DOES NOT OF ITSELF CREATE ANY RIGHTS IN THE OFFICERS CONCERNED. IT IS A PERMISSIVE PROVISION, CONTEMPLATING AN AGREEMENT BETWEEN THE PUBLIC HEALTH SERVICE AND THE PEACE CORPS AS TO THE AMOUNT OF INCREASES, IF ANY, WHICH MIGHT BE GRANTED AS A CONSEQUENCE OF THE ENACTMENT OF AN UNANTICIPATED PAY INCREASE STATUTE, OR THE OCCURRENCE OF OTHER UNUSUAL SITUATIONS. THE SUPPLEMENTAL AGREEMENT BY ITS TERMS TOOK EFFECT ONLY AS OF JANUARY 1, 1964. THE RECORD OTHERWISE NOT ONLY FAILS TO DISCLOSE AN OVERT ACT EVIDENCING AN INTENT TO IMPLEMENT SECTION V.F.2.D. OF THE BASIC MEMORANDUM ON OCTOBER 1, 1963, BUT RATHER SUGGESTS A CONTRARY INTENT BECAUSE OF THE IMPENDING FURTHER CHANGES IN RATES WHICH WOULD BE REQUIRED BY TITLE V OF PUB.L. 87-793 ON JANUARY 1, 1964. ALSO, THE RECORD REVEALS THE ABSENCE OF ANY AGREEMENT AS TO THE AMOUNT OF THE INCREASE IN PAY.

THE RULE PERTAINING TO THE RETROACTIVE CORRECTION OF ADMINISTRATIVE ERROR IS NOT FOR APPLICATION HERE BECAUSE THAT RULE CONTEMPLATES THE EXISTENCE OF A CLEAR, UNEQUIVOCAL ADMINISTRATIVE DECISION TO FIX A DIFFERENT PAY RATE--- AN ELEMENT HERE LACKING--- WHICH IS NOT IMPLEMENTED ON THE EFFECTIVE DATE BECAUSE OF OVERSIGHT, INADVERTENCE OR ERROR.

THEREFORE, WE MUST HOLD THAT THE RETROACTIVE ADJUSTMENTS OF PAY REFERRED TO IN YOUR LETTER ARE NOT AUTHORIZED. IN VIEW THEREOF AN ANSWER TO YOUR SECOND QUESTION IS UNNECESSARY.