B-181238, NOV 15, 1974
Highlights
ALTHOUGH SUPERVISOR BELIEVED THAT HIS EXECUTION OF SO-CALLED 10-MONTH REPORT DURING EMPLOYEE'S PROBATIONARY PERIOD AND PREPARATION OF FAVORABLE PERFORMANCE RATING WAS ALL THAT WAS NECESSARY TO INITIATE PROMOTION OF THE EMPLOYEE AT THE EARLIEST POSSIBLE TIME. RETROACTIVE PROMOTION MAY NOT BE AUTHORIZED SINCE HE MADE NO POSITIVE RECOMMENDATION FOR PROMOTION AS REQUIRED BY AGENCY POLICY AND THERE WAS NO ADMINISTRATIVE ERROR JUSTIFYING EXCEPTION TO RULE AGAINST RETROACTIVE PROMOTION. ON THE BASIS THAT HER PROMOTION WAS DELAYED BY AN ADMINISTRATIVE ERROR. SWAIN WAS APPOINTED AS A TAX EXAMINER. WAS PROMOTED TO GS-5 ON JULY 9. SWAIN URGES THAT HER PROMOTION SHOULD HAVE BEEN EFFECTED APRIL 16. THAT REPORT IS MADE FOR THE PURPOSE OF DETERMINING PRIOR TO THE END OF AN EMPLOYEE'S PROBATIONARY PERIOD WHETHER THE EMPLOYEE IS TO BE RETAINED AS A PERMANENT EMPLOYEE.
B-181238, NOV 15, 1974
ALTHOUGH SUPERVISOR BELIEVED THAT HIS EXECUTION OF SO-CALLED 10-MONTH REPORT DURING EMPLOYEE'S PROBATIONARY PERIOD AND PREPARATION OF FAVORABLE PERFORMANCE RATING WAS ALL THAT WAS NECESSARY TO INITIATE PROMOTION OF THE EMPLOYEE AT THE EARLIEST POSSIBLE TIME, RETROACTIVE PROMOTION MAY NOT BE AUTHORIZED SINCE HE MADE NO POSITIVE RECOMMENDATION FOR PROMOTION AS REQUIRED BY AGENCY POLICY AND THERE WAS NO ADMINISTRATIVE ERROR JUSTIFYING EXCEPTION TO RULE AGAINST RETROACTIVE PROMOTION.
JACQUE SWAIN - ADMINISTRATIVE ERROR - RETROACTIVE PROMOTION:
THE DEPARTMENT OF THE TREASURY REQUESTED A DECISON AS TO WHETHER MS. JACQUE SWAIN MAY BE PROMOTED RETROACTIVELY AS AN EMPLOYEE OF THE INTERNAL REVENUE SERVICE, DETROIT DISTRICT, ON THE BASIS THAT HER PROMOTION WAS DELAYED BY AN ADMINISTRATIVE ERROR.
THE PERTINENT FACTS AS REPORTED BY THE AGENCY SHOW THAT MS. SWAIN WAS APPOINTED AS A TAX EXAMINER, GS-4, ON APRIL 12, 1971, AND WAS PROMOTED TO GS-5 ON JULY 9, 1972. MS. SWAIN URGES THAT HER PROMOTION SHOULD HAVE BEEN EFFECTED APRIL 16, 1972, SINCE SHE HAD QUALIFIED FOR PROMOTION AT THAT TIME. HER SUPERVISOR STATES THAT HE MADE THE SO CALLED 10-MONTH REPORT DURING HER 1-YEAR PROBATIONARY PERIOD ON FEBRUARY 14, 1972. THAT REPORT IS MADE FOR THE PURPOSE OF DETERMINING PRIOR TO THE END OF AN EMPLOYEE'S PROBATIONARY PERIOD WHETHER THE EMPLOYEE IS TO BE RETAINED AS A PERMANENT EMPLOYEE. HE ALSO PREPARED A PERFORMANCE RATING ON MAY 5, 1972, WHICH INDICATED MS. SWAIN'S PERFORMANCE WAS ABOVE AVERAGE IN SIX CATEGORIES AND AVERAGE IN THE REMAINING SIX CATEGORIES. HE THOUGHT THAT SUCH ACTIONS WERE ALL THAT WAS NECESSARY TO INITIATE HER PROMOTION, EFFECTIVE AT THE EARLIEST POSSIBLE TIME.
THE EFFECTIVE DATE OF A CHANGE IN SALARY RESULTING FROM ADMINISTRATIVE ACTION IS THE DATE ACTION IS TAKEN BY THE ADMINISTRATIVE OFFICER VESTED WITH THE NECESSARY AUTHORITY OR A SUBSEQUENT DATE SPECIFICALLY FIXED BY HIM. 21 COMP. GEN. 95 (1941). RETROACTIVE PROMOTIONS AS SUCH ARE NOT SANCTIONED BY THIS OFFICCE. 33 COMP. GEN. 140 (1953); 39 ID. 583 (1960). WHERE, DUE TO A CLERICAL OR ADMINISTRATIVE ERROR, A PERSONNEL ACTION WAS NOT EFFECTED AS ORIGINALLY INTENDED, THE ERROR MAY BE CORRECTED RETROACTIVELY TO COMPLY WITH THE ORIGINAL INTENT WITHOUT VIOLATING THE RULE PROHIBITING RETROACTIVE PROMOTIONS. IN SUCH CASES IT IS NECESSARY THAT THE OFFICIAL HAVING DELEGATED AUTHORITY TO APPROVE THE PROMOTIONS HAS DONE SO. IF, SUBSEQUENT TO SUCH APPROVAL, FORMAL ACTION TO EFFECT THE PROMOTION IS NOT TAKEN ON A TIMELY BASIS AS INTENDED BY THE APPROVING OFFICER, CONSIDERATION MAY BE GIVEN TO AUTHORIZING A RETROACTIVE EFFECTIVE DATE. B-180046, APRIL 11, 1974.
IN THE INSTANT CASE THE RECORD SHOWS THAT AGENCY INSTRUCTIONS STRESS THAT PROMOTIONS UNDER THE TRAINING AND DEVELOPMENT PROGRAMS ARE NOT MADE AUTOMATICALLY. ON THE CONTRARY, ALL PROMOTIONS UNDER SUCH PROGRAMS MUST BE BASED UPON A POSITIVE DETERMINATION BY APPROPRIATE SUPERVISORY PERSONNEL THAT THE EMPLOYEE HAS ACTUALLY DEMONSTRATED THE CAPACITY TO PERFORM THE HIGHER LEVEL DUTIES OF THE POSITION TO WHICH PROMOTION IS RECOMMENDED. THE AGENCY FORM FOR REPORTING A PROBATIONARY EMPLOYEE'S PROGRESS INDICATES THAT THE SUPERVISOR IS TO STATE WHETHER THE EMPLOYEE IS TO BE CONTINUED TO BE EMPLOYED OR TERMINATED. IT IS POSSIBLE THAT A SUPERVISOR COULD RECOMMEND PROMOTION UNDER THE HEADING "REMARKS." HOWEVER, THE RECORD DOES NOT SHOW THAT THE SUPERVISOR INVOLVED IN THIS CASE DID SO. MOREOVER, THERE IS NOTHING TO SHOW THAT ANYONE AUTHORIZED TO EFFECT A PERSONNEL CHANGE INTENDED TO PROMOTE MS. SWAIN ON APRIL 16, 1972. THE PURPOSE OF THE MAY 5, 1972 RATING IS NOT SPECIFIED. HOWEVER, SINCE IT WAS MADE SHORTLY BEFORE THE COMPLETION OF MS. SWAIN'S SERVICE IN STEP 1 OF HER GRADE, IT COULD BE REGARDED AS PART OF THE DETERMINATION THAT HER SERVICE WAS OF AN ACCEPTABLE LEVEL OF COMPETENCE TO QUALIFY HER FOR A PERIODIC STEP-INCREASE. UNDER SUCH CIRCUMSTANCES THE SUPERVISOR'S ACTION CANNOT BE CONSTRUED AS A RECOMMENDATION FOR PROMOTION.
ON THE RECORD BEFORE US WE FIND NO ADMINISTRATIVE ERROR PERMITTING THE EFFECTIVE DATE OF MS. SWAIN'S PROMOTION TO BE AMENDED TO SHOW AN EARLIER DATE.