B-128803, SEPTEMBER 24, 1956, 36 COMP. GEN. 230

B-128803, SEPTEMBER 24, 1956, 36 COMP. GEN. 230

OFFICERS AND EMPLOYEES - PROMOTIONS IN VIOLATION OF THE WRITTEN RIDER - DE FACTO STATUS AN EMPLOYEE WHO WAS PROMOTED IN VIOLATION OF THE MINIMUM SERVICE REQUIREMENTS OF THE WHITTEN RIDER MAY NOT BE REGARDED AS IN A DE FACTO STATUS SO AS TO RETAIN THE ADDITIONAL SALARY AD, NOTWITHSTANDING THE ABSENCE OF FAULT ON THE PART OF THE EMPLOYEE, HE IS REQUIRED TO REFUND THE EXCESS SALARY RECEIVED.

TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 24, 1956:

BY LETTER OF JULY 31, 1956, THE ACTING SECRETARY REQUESTS OUR DECISION WHETHER MR. JOHN A. NEELEY, AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE, SOIL CONSERVATION SERVICE, MAY BE PERMITTED TO RETAIN AS A DE FACTO EMPLOYEE THE EXCESS SALARY PAID TO HIM WHEN PROMOTED IN VIOLATION OF THE WHITTEN RIDER.

IT APPEARS THAT MR. NEELEY WAS APPOINTED TO THE POSITION OF SOIL SCIENTIST, GS-5, EFFECTIVE FEBRUARY 16, 1953; HE WAS PROMOTED TO SOIL SCIENTIST, GS-7, EFFECTIVE AUGUST 14, 1955, AND WAS TRANSFERRED AND PROMOTED TO THE POSITION OF SOIL CONSERVATIONIST, GS-9, EFFECTIVE NOVEMBER 20, 1955. ON MARCH 21, 1956, ACTION WAS TAKEN TO CANCEL HIS PROMOTION TO GS-9, EFFECTIVE NOVEMBER 20, 1955, WHICH ACTION WAS TAKEN AT THE DIRECTION OF THE CIVIL SERVICE COMMISSION WHO REPORTED THAT THE PROMOTION WAS IN VIOLATION OF SECTION 2.502 (B) OF CIVIL SERVICE REGULATION, 5 CFR ( CUMULATIVE SUPPLEMENT) 2.502 (B). BY ACTION TAKEN MARCH 21, 1956, EFFECTIVE THE SAME DATE, MR. NEELEY WAS SELECTED IN REGULAR ORDER FROM AN APPROPRIATE CERTIFICATE OF ELIGIBLES AND PROMOTED TO THE POSITION OF SOIL SCIENTIST, GS-9. THIS PROMOTION WAS ACCOMPLISHED WITHOUT VIOLATING THE CIVIL SERVICE REGULATION OR THE WHITTEN RIDER WHICH DOES NOT APPLY WHEN THE PERSON IS WITHIN REACH ON A REGISTER FOR COMPETITIVE APPOINTMENT. THE PROMOTION EFFECTIVE MARCH 21, 1956, LEFT THE PERIOD FROM NOVEMBER 20, 1955, TO MARCH 20, 1956, DURING WHICH MR. NEELEY RECEIVED SALARY PAYMENTS AT THE GS-9 RATE OF $5,440 PER ANNUM IN THE GROSS AMOUNT OF $1,820.37. SALARY PAYMENTS FOR THE SAME PERIOD AT THE GS RATE OF $4,525 PER ANNUM WOULD HAVE GROSSED ONLY $1,514.22 OR A DIFFERENCE OF $306.15.

THE WHITTEN RIDER, SECTION 1310 (C) OF THE ACT OF NOVEMBER 1, 1951, 65 STAT. 758, AS AMENDED BY SECTION 1302 OF THE ACT OF JUNE 5, 1952, 66 STAT. 122, 5 U.S.C. 43 NOTE, PROVIDES IN PERTINENT PART AS FOLLOWS:

* * * NO PERSON IN ANY EXECUTIVE DEPARTMENT OR AGENCY WHOSE POSITION IS SUBJECT TO THE CLASSIFICATION ACT OF 1949, AS AMENDED, SHALL BE PROMOTED OR TRANSFERRED TO A HIGHER GRADE SUBJECT TO SUCH ACT WITHOUT HAVING SERVED AT LEAST ONE YEAR IN THE NEXT LOWER GRADE: PROVIDED, THAT THE CIVIL SERVICE COMMISSION FOR POSITIONS IN THE COMPETITIVE SERVICE AND THE HEAD OF THE EMPLOYING AGENCY FOR POSITIONS OUTSIDE THE COMPETITIVE SERVICE MAY BY REGULATION PROVIDE FOR PROMOTIONS OF TWO GRADES IN ONE YEAR (1) TO POSITIONS NOT HIGHER THAN GS-5; (2) TO POSITIONS NOT HIGHER THAN GS-11 WHICH ARE IN A LINE OF WORK PROPERLY CLASSIFIED UNDER THE CLASSIFICATION ACT OF 1949 AT TWO-GRADE INTERVALS; * * * PROVIDED FURTHER, THAT THIS SUBSECTION SHALL NOT APPLY TO ANY CASE INVOLVING AN EMPLOYEE WHO IS WITHIN REACH FOR APPOINTMENT TO A HIGHER GRADE POSITION ON A COMPETITIVE CIVIL SERVICE REGISTER OR IS ELIGIBLE FOR APPOINTMENT, IN ACCORDANCE WITH A REGULAR APPOINTMENT SYSTEM OR PROCEDURE ESTABLISHED PRIOR TO SEPTEMBER 1, 1950, TO A HIGHER GRADE POSITION OUTSIDE THE COMPETITIVE CIVIL SERVICE, OR BEING ADVANCED UP TO A GRADE LEVEL FROM WHICH HE HAD BEEN DEMOTED OR SEPARATED BECAUSE OF REDUCTION IN FORCE, OR BEING ADVANCED TO A GRADE LEVEL NOT EXCEEDING THAT FOR WHICH HE HAD PREVIOUSLY ESTABLISHED ELIGIBILITY AS REQUIRED BY THE TERMS HEREOF: PROVIDED FURTHER, THAT, NOTWITHSTANDING THE PROVISIONS HEREOF, AND IN ORDER TO AVOID UNDUE HARDSHIP OR INEQUITY, THE CIVIL SERVICE COMMISSION, WHEN REQUESTED BY THE HEAD OF THE AGENCY INVOLVED, MAY AUTHORIZE PROMOTIONS IN INDIVIDUAL CASES OF MERITORIOUS NATURE.

IT HAS BEEN HELD BY THIS OFFICE THAT WHERE APPOINTMENT 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 THUS ENTITLED TO RETAIN COMPENSATION RECEIVED PRIOR TO THE TIME THE ERROR WAS BROUGHT TO THE ATTENTION OF THE ADMINISTRATIVE OFFICIALS. SEE 28 COMP. GEN. 514. HOWEVER, SUCH CASES ARE CLEARLY DISTINGUISHABLE FROM THOSE WHERE THE SALARY OF A HIGHER GRADE IS PAID TO AN EMPLOYEE CONTRARY TO A SPECIFIC STATUTORY PROVISION PRESCRIBING A MINIMUM PERIOD OF SERVICE IN GRADE AS A REQUISITE FOR ADVANCEMENT TO A HIGHER GRADE SUCH AS IS THE SITUATION REFERRED TO IN YOUR SUBMISSION. WE HAVE HELD CONSISTENTLY THAT THE DE FACTO RULE MAY NOT BE APPLIED TO NULLIFY THE EFFECT OF A STATUTORY REQUIREMENT. SEE 18 COMP. GEN. 815; 29 ID. 75, AND UNPUBLISHED DECISION OF JANUARY 8, 1953, B-111274. ALSO, WE HAVE HELD THAT DESPITE THE ABSENCE OF FAULT ON THE PART OF AN EMPLOYEE WHO RECEIVES A PROMOTION IN CONTRAVENTION OF THE WHITTEN RIDER, NEVERTHELESS HE MUST MAKE REFUND OF THE COMPENSATION RECEIVED CONTRARY TO ITS PROVISIONS. SEE 33 COMP. GEN. 541; 31 ID. 564.

WE HAVE GIVEN CAREFUL CONSIDERATION TO THE REPRESENTATIONS THAT MR. NEELEY COULD HAVE BEEN APPOINTED TO THE GS-7 GRADE AT AN EARLIER DATE BUT WAS NOT SO PROMOTED DUE TO THE REORGANIZATION OF THE SOIL CONSERVATION SERVICE, AND, ALSO, THAT HAD IT BEEN REALIZED THAT THE PROMOTION TO GS-9 WOULD BE UNAUTHORIZED HE COULD HAVE TAKEN A CIVIL SERVICE EXAMINATION THEREFOR AND PROBABLY HAVE BEEN APPOINTED FROM THE ELIGIBLE REGISTER ON THE DATE OF AND IN LIEU OF THE PROMOTION. HAD SUCH PERSONNEL ACTIONS BEEN TAKEN THERE WOULD HAVE BEEN NO QUESTION OF VIOLATION OF THE WHITTEN RIDER. HOWEVER, THEY WERE NOT TAKEN AND THE PERSONNEL ACTIONS FORMALIZED WERE IN CONTRAVENTION OF THE WHITTEN RIDER. ACCORDINGLY, UNDER THE RULES STATED ABOVE THE EMPLOYEE CANNOT BE CONSIDERED TO HAVE BEEN IN A DE FACTO STATUS WHEN RECEIVING COMPENSATION IN VIOLATION OF THE STATUTORY PROHIBITION. REFUND OF THE EXCESS SALARY SO RECEIVED MUST BE INSISTED UPON.