B-196017.OM, L/M, FEB 20, 1980

B-196017.OM, L/M, FEB 20, 1980

PRECIS-UNAVAILABLE:

COMPTROLLER GENERAL:

WE ARE FORWARDING THE FILE RELATIVE TO THE CLAIM OF MR. JOHN SZABO FOR RETROACTIVE TEMPORARY PROMOTION WITH BACK PAY BASED ON AN OVERLONG DETAIL TO A HIGHER GRADED POSITION.

MR. SZABO WAS DETAILED FROM HIS GS-301-13 POSITION AS CONGRESSIONAL LIAISON OFFICER TO AN FR-301-1 POSITION AS ACTING ASSISTANT DIRECTOR CONGRESSIONAL AFFAIRS, EFFECTIVE FEBRUARY 8, 1977, BY MEMORANDUM FROM THE ACTING DIRECTOR. SINCE MR. SZABO'S APPOINTED POSITION WAS IN THE COMPETITIVE SERVICE AND UNDER THE GENERAL SCHEDULE, IT APPEARS TO BE COVERED BY THE DETAIL REGULATIONS FOUND IN CHAPTER 300 OF THE FEDERAL PERSONNEL MANUAL. HOWEVER, IT IS UNCLEAR WHETHER OR NOT THE DETAIL POSITION SATISFIES THE REQUIREMENTS OF 56 COMP.GEN. 427 SO AS TO ENTITLE HIM TO THE PRESCRIBED REMEDY. WE QUESTION THE VALIDITY OF THE ANALOGY BETWEEN A DETAIL TO A FOREIGN SERVICE RESERVE POSITION AND ONE TO A MILITARY POSITION WHICH ACTION MADE IN DISALLOWING MR. SZABO'S CLAIM. ADDITIONALLY, AN FR-1 POSITION APPEARS TO BE EQUIVALENT TO A SUPERGRADE POSITION, ALTHOUGH ONLY THE APPROVAL OF THE AGENCY'S DIRECTOR IS REQUIRED FOR PROMOTION TO SUCH A POSITION.

DUE TO THE DOUBT INVOLVED, THE MATTER IS FORWARDED FOR YOUR CONSIDERATION.

INDORSEMENT

DIRECTOR, CLAIMS DIVISION

RETURNED. THE FACTS AS PRESENTED INDICATE THAT MR. JOHN SZABO, AN EMPLOYEE OF ACTION AGENCY, WAS DETAILED FROM A POSITION IN THE COMPETITIVE SERVICE, GS-301-13 STEP 02, TO SERVE AS ACTING ASSISTANT DIRECTOR FOR CONGRESSIONAL AFFAIRS, FOREIGN SERVICE RESERVE (FR) 301-01 STEP 02, A POSITION IN THE EXCEPTED SERVICE ESTABLISHED UNDER THE PEACE CORPS ACT, 22 U.S.C. SEC. 2501 ET SEQ. (1976). THIS DETAIL RAN FROM FEBRUARY 8, 1977, TO JULY 1, 1977.

OUR OFFICE HAS HELD THAT WHERE AN EMPLOYEE IS DETAILED TO A HIGHER GRADE POSITION FOR MORE THAN 120 DAYS, WITHOUT APPROVAL FROM THE CIVIL SERVICE COMMISSION, THEN THE EMPLOYEE IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION WITH BACK PAY FOR THE PERIOD BEGINNING WITH THE 121ST DAY OF THE DETAIL UNTIL THE DETAIL IS TERMINATED. TURNER CALDWELL, 55 COMP.GEN. 539 (1975), AFFIRMED AT 56 ID. 427 (1977). FOLLOWING GUIDANCE ISSUED BY THE CIVIL SERVICE COMMISSION CONTAINED IN CSC BULLETIN NO. 300-40, DATED MAY 25, 1977, WE HAVE HELD THAT OUR TURNER-CALDWELL DECISIONS APPLY ONLY TO DETAILS WITHIN THE COMPETITIVE SERVICE OR TO POSITIONS IN THE EXCEPTED SERVICE WHICH ARE UNDER THE GENERAL SCHEDULE. ISRAEL WARSHAW, B-194484, SEPTEMBER 21, 1979. IN OTHER WORDS, THE DETAIL MUST BE BETWEEN TWO COMPETITIVE SERVICE POSITIONS, BETWEEN TWO EXCEPTED SERVICE POSITIONS WITHIN THE GENERAL SCHEDULE, OR FROM A COMPETITIVE SERVICE POSITION TO AN EXCEPTED SERVICE GENERAL SCHEDULE POSITION. SEE: LEONARD J. MCENNIS, JR., 56 COMP.GEN. 982 (1977).

IN THE PRESENT SITUATION SINCE MR. SZABO WAS DETAILED FROM A COMPETITIVE SERVICE POSITION TO AN EXCEPTED SERVICE POSITION NOT WITHIN THE GENERAL SCHEDULE THE DETAIL WOULD NOT COME WITHIN THE SCOPE OF OUR TURNER-CALDWELL DECISIONS. SEE:WARSHAW, SUPRA. FURTHERMORE, WE NOTE THAT THIS DETAIL APPARENTLY DID NOT COMPLY WITH CIVIL SERVICE COMMISSION REGULATIONS WHICH PROHIBIT AN AGENCY FROM APPOINTING OR CONVERTING AN EMPLOYEE FROM THE COMPETITIVE SERVICE TO THE EXCEPTED SERVICE UNTIL THE EMPLOYEE HAS BEEN INFORMED OF THE NATURE OF THE ACTION AND HE HAS SUBMITTED A WRITTEN STATEMENT TO THE EFFECT THAT HE IS LEAVING THE COMPETITIVE SERVICE VOLUNTARILY TO ACCEPT AN APPOINTMENT IN THE EXCEPTED SERVICE. SEE: FEDERAL PERSONNEL MANUAL, CHAPTER 302, SUBCHAPTER 2-10. THERE IS NO EVIDENCE THAT THIS REGULATION WAS FOLLOWED WHEN MR. SZABO WAS DETAILED FROM HIS COMPETITIVE SERVICE POSITION.

IN TURNER-CALDWELL, 56 COMP.GEN. 427, 431 (1977), WE MADE IT CLEAR THAT THE EMPLOYEE MUST FIRST SATISFY THE STATUTORY AND REGULATORY REQUIREMENTS FOR A RETROACTIVE TEMPORARY PROMOTION OR THERE WILL BE NO REMEDY FOR AN IMPROPERLY EXTENDED DETAIL. SEE ALSO: MERLE H. MORROW, 58 COMP.GEN. 88 (1978) AND WILLIAM RANKIN, JR., 56 COMP.GEN. 432 (1977). SINCE MR. SZABO'S DETAIL FROM HIS COMPETITIVE SERVICE POSITION DID NOT COMPLY WITH THE REGULATIONS GOVERNING APPOINTMENT TO THE EXCEPTED SERVICE FROM THE COMPETITIVE SERVICE, HE IS NOT ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION AND ACCOMPANYING BACK PAY FOR HIS OVERLONG DETAIL.