B-193427, APRIL 10, 1979, 58 COMP.GEN. 401

B-193427, APRIL 10, 1979, 58 COMP.GEN. 401

DETAILS - COMPENSATION - HIGHER GRADE DUTIES ASSIGNMENT - EXCESSIVE PERIOD EMPLOYEE, WHO WAS TEMPORARILY PROMOTED TO HIGH GRADE POSITION FOR 120 DAYS, WAS RETURNED TO FORMER GRADE BUT WAS THEN IMMEDIATELY DETAILED TO SAME HIGHER LEVEL POSITION FOR ADDITIONAL 132 DAYS. UNDER TURNER-CALDWELL DECISIONS EMPLOYEE MUST BE DETAILED TO HIGHER LEVEL POSITION WITHOUT COMPENSATION OF HIGHER LEVEL POSITION FOR 120 DAYS BEFORE ENTITLEMENT TO TEMPORARY PROMOTION BEGINS OF 121ST DAY. THEREFORE, THE PERIOD THE EMPLOYEE SERVED ON TEMPORARY PROMOTION MAY NOT BE INCLUDED IN COMPUTATION OF DETAIL.

IN THE MATTER OF DONALD L. BRESSLER - DETAIL TO HIGHER GRADED POSITION, APRIL 10, 1979:

THIS ACTION IS IN RESPONSE TO THE REQUEST FOR AN ADVANCE DECISION FROM FRED L. HAYES, A CERTIFYING OFFICER OF THE NATIONAL PARK SERVICE, ROCKY MOUNTAIN REGIONAL OFFICE, U.S. DEPARTMENT OF THE INTERIOR, REFERENCE W1819 (RMRAF, CONCERNING THE CLAIM OF MR. DONALD L. BRESSLER, AN EMPLOYEE OF THE DENVER SERVICE CENTER, NATIONAL PARK SERVICE, TO A RETROACTIVE TEMPORARY PROMOTION WITH BACK PAY FOR THE PERIOD OF TIME HE SERVED AS ACTING ASSOCIATE MANAGER OF THE DENVER SERVICE CENTER. THE QUESTION PRESENTED FOR DECISION IS WHETHER THE PERIOD OF A TEMPORARY PROMOTION WHICH IMMEDIATELY PRECEDES A DETAIL MAY BE INCLUDED IN COMPUTING THE LENGTH OF THE DETAIL.

THE AGENCY REPORT STATES THAT EFFECTIVE MARCH 28, 1976, MR. BRESSLER WAS GIVEN A TEMPORARY PROMOTION FROM DEPUTY ASSOCIATE MANAGER, GRADE GS 14, TO THE POSITION OF ACTING ASSOCIATE MANAGER, GRADE GS-15, FOR A PERIOD NOT TO EXCEED 120 DAYS. ON JULY 25, 1976, MR. BRESSLER'S TEMPORARY PROMOTION WAS TERMINATED BY A "CHANGE TO LOWER GRADE" PERSONNEL ACTION. HOWEVER, IT APPEARS THAT ON THAT SAME DAY MR. BRESSLER WAS INFORMALLY DETAILED BACK TO THE GRADE GS-15 POSITION AND THAT HE PERFORMED THE DUTIES OF THAT POSITION THROUGH DECEMBER 3, 1976, WHEN HE WAS SELECTED FOR THE POSITION OF ASSOCIATE MANAGER. THE AGENCY QUESTIONS WHETHER MR. BRESSLER MAY BE RETROACTIVELY PROMOTED FOR THE ENTIRE PERIOD OF THE INFORMAL DETAIL FROM JULY 25 THROUGH DECEMBER 3, 1976, A PERIOD OF 132 DAYS.

OUR OFFICE HAS HELD THAT WHERE AN EMPLOYEE IS DETAILED TO A HIGHER GRADED POSITION AND THE AGENCY FAILS TO SEEK CIVIL SERVICE COMMISSION APPROVAL TO EXTEND THE DETAIL FOR A PERIOD BEYOND 120 DAYS, THE AGENCY MUST AWARD THE EMPLOYEE A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY IF HE CONTINUES TO PERFORM THOSE HIGHER GRADE DUTIES. TURNER-CALDWELL, 55 COMP.GEN. 539 (1975), AFFIRMED AT 56 ID. 427 (1977). IN THE PRESENT CASE, THE AGENCY HAS NOT QUESTIONED WHETHER MR. BRESSLER WAS ACTUALLY DETAILED TO A HIGHER GRADED POSITION, AND, IN RESPONSE TO OUR REQUEST, THE AGENCY HAS SUBMITTED ADDITIONAL EVIDENCE WHICH TENDS TO ESTABLISH THAT MR. BRESSLER WAS DETAILED TO THE POSITION OF ASSOCIATE MANAGER DURING THE PERIOD FROM JULY 25 THROUGH DECEMBER 3, 1976.

THE QUESTION PRESENTED BY THE AGENCY IS WHETHER MR. BRESSLER IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION WITH BACK PAY FOR THE ENTIRE PERIOD OF THE DETAIL; THAT IS, WHETHER MR. BRESSLER'S TEMPORARY PROMOTION FOR 120 DAYS SERVES THE SAME PURPOSE AS A 120-DAY DETAIL. AS NOTED ABOVE, OUR TURNER-CALDWELL DECISIONS HOLD THAT AN EMPLOYEE MUST BE TEMPORARILY PROMOTED RETROACTIVE TO THE 121ST DAY OF AN EXTENDED DETAIL WHICH HAS NOT BEEN APPROVED BY THE CIVIL SERVICE COMMISSION. HOWEVER, WE BELIEVE THAT THERE MUST FIRST BE A PERIOD OF 120 DAYS WHERE THE EMPLOYEE HAS BEEN DETAILED AND HAS NOT BEEN COMPENSATED AT THE HIGHER LEVEL. SEE MARVIN R. DUNN, B-192437, SEPTEMBER 20, 1978. SINCE A DETAIL AND A TEMPORARY PROMOTION ARE SEPARATE AND DISTINCT PERSONNEL ACTIONS, WE DO NOT BELIEVE THE PERIOD OF THE TEMPORARY PROMOTION TO A POSITION IN WHICH THE EMPLOYEE IS LATER DETAILED IS INCLUDABLE IN COMPUTING THE LENGTH OF THE DETAIL FOR THE PURPOSES OF OUR TURNER CALDWELL DECISIONS. THEREFORE, WE CONCLUDE THAT MR. BRESSLER'S ENTITLEMENT TO A RETROACTIVE TEMPORARY PROMOTION WOULD BEGIN ON THE 121ST DAY FOLLOWING THE COMMENCEMENT OF THE DETAIL ON JULY 25, 1976.

ACCORDINGLY, MR. BRESSLER'S CLAIM MAY BE ALLOWED ONLY TO THE EXTENT CONSISTENT WITH THE ABOVE DISCUSSION IF OTHERWISE PROPER.