B-197163.OM, L/M, MAR 26, 1980

B-197163.OM, L/M, MAR 26, 1980

PRECIS-UNAVAILABLE

COMPTROLLER GENERAL:

WE ARE FORWARDING THE CLAIM OF MR. JOSEPH F. ORCHON FOR RETROACTIVE TEMPORARY PROMOTION BASED ON AN OVERLONG DETAIL TO A HIGHER GRADED POSITION.

MR. ORCHON'S AGENCY HAS STATED THAT HE WAS DETAILED FROM HIS GS-12 SUPERVISORY EQUIPMENT SPECIALIST POSITION, PD NO. 35096, TO A GS-13 SUPERVISORY PRODUCTION CONTROLLER POSITION, PD NO. 30414, ON NOVEMBER 18, 1974. THE DETAIL WAS INTERRUPTED ON JANUARY 4, 1975 BY HIS TEMPORARY PROMOTION TO THAT POSITION. ALTHOUGH THE TEMPORARY PROMOTION ENDED ON MAY 4, 1975, HE CONTINUED TO PERFORM THE DUTIES OF THAT POSITION ON DETAIL. AN SF 59 INDICATES THAT CIVIL SERVICE COMMISSION APPROVAL TO EXTEND THE DETAIL WAS REQUESTED ON OCTOBER 16, 1975, AND WAS GRANTED ON NOVEMBER 17, 1975. THE DETAIL WAS ENDED BY HIS PROMOTION TO THE POSITION EFFECTIVE JUNE 6, 1976. IN SETTLEMENT OF HIS CLAIM, THE PHILADELPHIA NAVAL SHIPYARD TREATED THE PORTIONS OF THE DETAIL BEFORE AND AFTER HIS TEMPORARY PROMOTION AS SEPARATE DETAILS REQUIRING SEPARATE 120-DAY WAITING PERIODS. IN VIEW OF THE FINDINGS IN THE MATTER OF RUTH M. HINES, B-192436-O.M., APRIL 25, 1979, IT APPEARS THAT THE TWO PERIODS OF DETAIL SHOULD HAVE BEEN AGGREGATED FOR THE PURPOSE OF DETERMINING WHEN THE 121ST (OR 241ST) DAY OF THE DETAIL WAS. THE SHIPYARD GRANTED MR. ORCHON A RETROACTIVE TEMPORARY PROMOTION COVERING THE PERIOD JANUARY 7 THROUGH JUNE 5, 1976, STATING THAT THE 240 DAYS OF DETAIL TIME FROM MAY 4, 1975 TO JANUARY 7, 1976 WAS PERMISSIBLE SINCE CSC HAD APPROVED AN EXTENSION OF UP TO 120 DAYS. QUESTION WHETHER OR NOT THIS WAS APPROPRIATE BECAUSE PARAGRAPH S8-4F, CHAPTER 300 OF THE FEDERAL PERSONNEL MANUAL, REQUIRES THE PRIOR APPROVAL OF CSC FOR THE EXTENSION OF DETAILS BEYOND 120 DAYS. IN THIS INSTANCE THE REQUEST FOR APPROVAL OF THE EXTENSION WAS NOT MADE UNTIL AFTER THE 121ST DAY OF THE DETAIL.

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

INDORSEMENT

ASSOCIATE DIRECTOR, FGMSD - CLAIMS GROUP (ROOM 5858)

RETURNED. YOU ARE CORRECT IN YOUR CONTENTION THAT THE FACTS IN THIS CASE ARE ANALOGOUS TO THE DISPOSITION MADE IN THE RUTH M. HINES CASE, B-192436-O.M., APRIL 25, 1979.

IN THE HINES CASE WE CONSIDERED THE ISSUE OF WHETHER A TEMPORARY PROMOTION TERMINATES AN EMPLOYEE'S INITIAL DETAIL SO THAT THE PERIODS BEFORE AND AFTER THE TEMPORARY PROMOTION ARE TO BE REGARDED AS SEPARATE DETAILS, OR WHETHER THE ENTIRE PERIOD DURING WHICH THE EMPLOYEE PERFORMED THE DUTIES OF THE HIGHER-GRADED POSITION IS TO BE REGARDED AS A SINGLE CONTINUING DETAIL. WE RECOGNIZED THAT AN EMPLOYEE ACTUALLY HOLDS THE HIGHER-GRADED POSITION WHILE TEMPORARILY PROMOTED AND IS THEREFORE NOT DETAILED DURING THAT PERIOD. SEE DONALD L. BRESSLER, B-193427, APRIL 10, 1979, 58 COMP.GEN. 401. HOWEVER, AN AGENCY MAY NOT CIRCUMVENT THE REGULATIONS BY TEMPORARILY PROMOTING AN EMPLOYEE BEFORE HE HAS BEEN DETAILED 120 DAYS AND THEN TERMINATING THE TEMPORARY PROMOTION BEFORE HE HAS DISCONTINUED PERFORMANCE OF THE DUTIES OF THAT SAME HIGHER-GRADED POSITION. HINES, SUPRA.

THE RECORD IS CLEAR THAT MR. ORCHON WAS EITHER DETAILED OR TEMPORARILY PROMOTED TO THE SAME HIGHER-GRADED POSITION FROM NOVEMBER 18, 1974, UNTIL HIS PERMANENT PROMOTION ON JUNE 6, 1976. HE WAS DETAILED FROM NOVEMBER 18, 1974, THROUGH JANUARY 4, 1975. HE RECEIVED A TEMPORARY PROMOTION ON JANUARY 5, THROUGH MAY 3, 1975. HE WAS THEN DETAILED UNTIL THE DATE OF HIS SECOND TEMPORARY PROMOTION ON JANUARY 7, 1976. THEREFORE, THE PERIOD BEFORE AND AFTER MR. ORCHON'S FIRST TEMPORARY PROMOTION SHOULD BE CONSIDERED IN THE AGGREGATE FOR THE PURPOSES OF DETERMINING THE 121ST DAY OF THE DETAIL.

AS TO YOUR QUESTION CONCERNING PRIOR APPROVAL OF A DETAIL EXTENSION BY THE CIVIL SERVICE COMMISSION, WE POINT OUT THAT FEDERAL PERSONNEL MANUAL BULLETIN 300-40, MAY 25, 1977, PARAGRAPH 11, SEEMS TO BE CLEAR ON THIS ISSUE SINCE IT STATES:

"11. FOR A DETAIL EXPECTED TO LAST BEYOND 30 DAYS, THE AGENCY OFFICIALS CONCERNED ARE RESPONSIBLE FOR INITIATING A FORMAL REQUEST FOR PERSONNEL ACTION FOR PRIOR INTERNAL APPROVAL AND REFERRAL TO THE PERSONNEL OFFICE. IF IT SHOULD APPEAR NECESSARY TO CONTINUE A DETAIL BEYOND 120 DAYS, AN AGENCY MUST REQUEST THE COMMISSION'S PRIOR APPROVAL TO EXTEND THE DETAIL FOR UP TO A MAXIMUM OF 120 ADDITIONAL DAYS. (ONLY ONE EXTENSION MAY BE PERMITTED.) SUCH A NEED SHOULD BE ANTICIPATED WELL IN ADVANCE OF THE 120TH DAY TO GIVE THE COMMISSION A REASONABLE TIME TO CONSIDER THE REQUEST BEFORE THE DETAIL WOULD OTHERWISE END."

THUS, IT IS CLEAR THAT PRIOR APPROVAL OF THE COMMISSION WAS REQUIRED AND THAT THE REQUEST FOR AN EXTENSION AFTER 120 DAYS AND THE SUBSEQUENT APPROVAL BY THE COMMISSION DO NOT AFFECT THE EMPLOYEE'S RIGHT TO BACK PAY.

MR. ORCHON WOULD, THEREFORE, BE ENTITLED TO BACK PAY ON THE BASIS OF OUR TURNER-CALDWELL DECISIONS, 55 COMP.GEN. 539 (1975) AND 56 ID. 427 (1977), FROM THE 121ST DAY OF HIS DETAIL, AS DISCUSSED ABOVE, UNTIL THE DATE OF HIS SECOND TEMPORARY PROMOTION, JANUARY 7, 1976.