B-166431, JUN. 6, 1969

B-166431, JUN. 6, 1969

TO MR. BARNEY FARBER:

YOUR LETTER OF MARCH 12, 1969, ASKS, IN EFFECT, WHETHER IT LEGALLY IS PROPER TO APPROVE A RECOMMENDATION BY THE PUBLIC SCHOOLS OF THE DISTRICT OF COLUMBIA DATED NOVEMBER 14, 1968, FOR THE RETROACTIVE CORRECTION TO JULY 1, 1963, OF THE LONGEVITY STEPS OF MRS. COZETTE C. POWELL (NEE CARTER) A TEACHER THEREIN, BASED UPON WHAT IS CONSIDERED TO HAVE BEEN AN ERROR MADE IN THE APPLICATION OF CERTAIN PROVISIONS OF PUBLIC LAW 87-881, APPROVED OCTOBER 24, 1962, 76 STAT. 1229, AMENDING PUBLIC LAW 84-243, ENACTED AUGUST 5, 1955, 69 STAT. 521.

THE RECORD SHOWS THAT MRS. POWELL WAS APPOINTED A TEMPORARY TEACHER ON SEPTEMBER 1, 1948. SUCH TEMPORARY STATUS CONTINUED FOR 30 DAYS UNTIL OCTOBER 1, 1948, WHEN SHE RECEIVED A CHANGE THEREIN TO PROBATIONARY STATUS.

SECTION 101 (6), PUBLIC LAW 87-881, APPROVED OCTOBER 24, 1962, 76 STAT. 1233, AMENDING SECTION 6 OF THE DISTRICT OF COLUMBIA TEACHERS' SALARY ACT OF 1955, PUBLIC LAW 84-243, APPROVED AUGUST 5, 1955 (D.C. CODE, SECTION 31 -1531) READS AS FOLLOWS:

"/6) SECTION 6, SUBSECTION (B), IS AMENDED BY STRIKING THE PERIOD AT THE END THEREOF AND INSERTING THE FOLLOWING: -, EXCEPT THAT EACH EMPLOYEE IN SALARY CLASS 15 SHALL ADVANCE FROM SERVICE STEP 13 TO LONGEVITY STEP X ON JULY 1 FOLLOWING THE COMPLETION OF FIFTEEN YEARS OF CREDITABLE SERVICE; FROM LONGEVITY STEP X TO LONGEVITY STEP Y ON JULY 1 FOLLOWING THE COMPLETION OF EIGHTEEN YEARS OF CREDITABLE SERVICE: PROVIDED, THAT BEGINNING WITH THE STEP INCREASE NORMALLY DUE JULY 1, 1963, THE BOARD OF EDUCATION, ON THE WRITTEN RECOMMENDATION OF THE SUPERINTENDENT OF SCHOOLS, IS AUTHORIZED TO DENY ANY SUCH SALARY ADVANCEMENT FOR THE YEAR IMMEDIATELY FOLLOWING ANY YEAR IN WHICH THE EMPLOYEE FAILS TO RECEIVE A PERFORMANCE RATING OF -SATISFACTORY- FROM HIS SUPERIOR OFFICER.-"

THE RECORD INDICATES THAT AT THE TIME OF HER PROBATIONARY APPOINTMENT NO CREDIT WAS ALLOWED MRS. POWELL FOR PLACEMENT PURPOSES FOR THE TEMPORARY APPOINTMENT SERVICE OF ONE MONTH SINCE SHE DID NOT HAVE A FULL SCHOOL YEAR OF CREDITABLE SERVICE AT THAT TIME. AS A RESULT SHE DID NOT RECEIVE THE FIRST SERVICE STEP INCREASE AUTHORIZED BY THE ACT OF JULY 7, 1947, 61 STAT. 257, UNTIL OCTOBER 1, 1949. CONSISTENT WITH THE ADMINISTRATIVE DENIAL OF CREDIT FOR THE TEMPORARY SERVICE FOR ORIGINAL PLACEMENT PURPOSES THE DISTRICT SCHOOL AUTHORITIES LIKEWISE EXCLUDED THE TEMPORARY SERVICE PERIOD IN COMPUTING CREDITABLE SERVICE FOR LONGEVITY PURPOSES AND THUS DID NOT REGARD MRS. POWELL AS HAVING COMPLETED FIFTEEN YEARS OF CREDITABLE SERVICE FOR LONGEVITY PURPOSES UNTIL JULY 1, 1964. THAT SAME METHOD OF CREDITABLE SERVICE IS UNDERSTOOD TO HAVE BEEN USED BY THE DISTRICT SCHOOL AUTHORITIES IN NUMEROUS CASES OVER A PERIOD OF YEARS.

WE HAVE BEEN UNABLE TO FIND EITHER IN THE STATUTES, AS AMENDED, OR THEIR LEGISLATIVE HISTORY ANY INDICATION OF A MEANING FOR THE TERM "CREDITABLE SERVICE" WHICH WOULD BE FOR APPLICATION HERE SO AS TO NULLIFY THE ADMINISTRATIVE ACTIONS IN THE MANY CASES THAT WOULD BE AFFECTED. NOR ARE WE AWARE OF ANY REGULATION WHICH HAS BEEN VIOLATED. ON THE CONTRARY ON PAGE 135 OF THE HEARINGS BEFORE THE SUBCOMMITTEE ON FISCAL AFFAIRS, COMMITTEE ON THE DISTRICT OF COLUMBIA, UNITED STATES SENATE, ON S. 2415 IN 1966 WE FIND VERIFICATION OF THE PRACTICE OF NOT ALLOWING THE COMBINING OF A PART OF A SCHOOL YEAR IN A TEMPORARY STATUS WITH PART OF A SCHOOL YEAR IN A PROBATIONARY STATUS TO RECEIVE LONGEVITY CREDIT FOR A FULL TEACHING YEAR. ALSO, WE RECOGNIZE THAT UNDER THE TERMS OF SUBSECTION (C) (1) OF SECTION 9 OF THE 1955 TEACHERS' ACT, ABOVE, AS ADDED BY SECTION 202 (6) OF TITLE II, PUBLIC LAW 89-810, APPROVED NOVEMBER 13, 1966, 80 STAT. 1600 (31 D.C. CODE 1534) IT WOULD APPEAR THAT UNDER CIRCUMSTANCES SIMILAR TO MRS. POWELL'S CASE FULL CREDIT NOW WOULD BE ALLOWED FOR THE TEMPORARY SERVICE. HOWEVER, THAT AMENDMENT WAS RETROACTIVE ONLY TO JULY 1, 1966, AND THUS HAS NO APPLICATION TO THE EARLIER ACTION TAKEN IN MRS. POWELL'S CASE.

WITH FULL AWARENESS OF WHAT TO US SEEMS TO BE A HARSH RESULT, WE FIND OURSELVES UNABLE TO CONCLUDE UPON OUR EXAMINATION OF THE MATTER, FIRST PRESENTED TO US MANY YEARS AFTER THE ACTION OCCURRED, THAT A SUFFICIENTLY CLEAR BASIS HAS BEEN SHOWN FOR OUR OFFICE TO UPSET THE CONTEMPORANEOUS AND LONG ESTABLISHED ADMINISTRATIVE PRACTICE OF EXCLUDING A PARTIAL SCHOOL YEAR'S TEMPORARY SERVICE FOR SERVICE CREDIT PURPOSES.

THEREFORE, THE RETROACTIVELY EFFECTIVE PERSONNEL ACTION, COPY OF WHICH YOU SUBMITTED WITH YOUR REQUEST FOR DECISION, MAY NOT BE PROCESSED FOR PAYMENT.