B-198983, AUG 13, 1980

B-198983, AUG 13, 1980

DIGEST: GRADE MG-8 EMPLOYEE OF PANAMA CANAL COMMISSION, WHO BETWEEN DECEMBER 19, 1979, AND JANUARY 13, 1980, PERFORMED DUTIES OF HIGHER-GRADE MG-9 POSITION, IS NOT ENTITLED TO RETROACTIVE PROMOTION WITH BACK PAY BASED ON DUTIES PERFORMED SINCE FEDERAL EMPLOYEE IS ENTITLED ONLY TO SALARY OF POSITION TO WHICH HE IS ACTUALLY APPOINTED REGARDLESS OF DUTIES PERFORMED. SUPERVISOR'S INTENT THAT EMPLOYEE BE PROMOTED DOES NOT ITSELF PROVIDE BASIS FOR RETROACTIVE PROMOTION SINCE CLERICAL OR ADMINISTRATIVE ERROR PRIOR TO PROMOTION APPROVAL BY AUTHORIZED OFFICIAL DOES NOT CONSTITUTE SUCH ADMINISTRATIVE ERROR AS WILL SUPPORT AWARD OF RETROACTIVE PROMOTION AND BACK PAY.

ALFRED G. BOWEN - RETROACTIVE PROMOTION:

D. P. MCAULIFFE, ADMINISTRATOR, PANAMA CANAL COMMISSION, HAS REQUESTED AN OPINION ON WHETHER THE PAMAMA CANAL COMMISSION MAY AUTHORIZE THE RETROACTIVE PROMOTION OF MR. ALFRED G. BOWEN, A CRAFTSMAN WHO PERFORMED DUTIES OF A POSITION AT A LEVEL HIGHER THAN HIS REGULAR POSITION DURING THE PERIOD FROM DECEMBER 19, 1979, TO JANUARY 12, 1980. FOR THE REASONS WHICH FOLLOW RETROACTIVE PROMOTION MAY NOT BE PROPERLY AUTHORIZED IN THE CIRCUMSTANCES PRESENTED.

BRIEFLY, THE RECORD SHOWS THAT MR. BOWEN WORKED AS A WATER TREATMENT PLANT OPERATOR, MG-8, WITH THE PANAMA CANAL COMMISSION'S ELECTRICAL DIVISION WHEN HE WAS PERMANENTLY PROMOTED TO HIS PRESENT POSITION AS A BOILER PLANT OPERATOR, MG-9, ON JANUARY 13, 1980. HOWEVER, ON TWO DIFFERENT OCCASIONS PRIOR TO HIS PERMANENT PROMOTION, MR. BOWEN WAS TEMPORARILY PROMOTED TO THE POSITION OF BOILER PLANT OPERATOR. FROM JULY 1 THROUGH SEPTEMBER 30, 1979; AND AGAIN FROM NOVEMBER 18, THROUGH DECEMBER 18, 1979, MR. BOWEN RECEIVED THE ADDITIONAL COMPENSATION IN CONNECTION WITH THESE PERIODS OF TEMPORARY PROMOTION.

THE RECORD FURTHER PROVIDES THAT THE TEMPORARY PROMOTION ON NOVEMBER 18, 1979, WAS MADE TO FILL A VACANCY CREATED BY THE UNEXPECTED RETIREMENT OF THE INCUMBENT. ALTHOUGH MR. BOWEN'S SUPERVISORS IN THE ELECTRICAL DIVISION DESIRED TO EXTEND THE DURATION OF THE TEMPORARY PROMOTION PAST DECEMBER 18, 1979, THEY FAILED (THROUGH ADMINISTRATIVE OVERSIGHT) TO SO ADVISE THE AGENCY'S PERSONNEL OFFICE. ACCORDINGLY, ON THAT DATE, ACTION WAS TAKEN AUTOMATICALLY BY THE PERSONNEL OFFICE TO RETURN MR. BOWEN TO HIS REGULAR POSITION. AS A RESULT, ALTHOUGH MR. BOWEN CONTINUED TO PERFORM THE DUTIES OF THE HIGHER-GRADE POSITION AFTER DECEMBER 18, 1979, HE DID NOT RECEIVE THE COMPENSATION OF THE HIGHER-GRADE POSITION UNTIL HIS PERMANENT PROMOTION ON JANUARY 13, 1980.

IN THESE CIRCUMSTANCES, AND ESPECIALLY IN VIEW OF THE FACTS THAT (I) IT WAS THE INTENTION OF THE EMPLOYEE'S SUPERVISORS THAT HE REMAIN IN THE HIGHER POSITION ON A PERMANENT BASIS AFTER THE INCUMBENT RETIRED IN NOVEMBER 1979, AND (II) MR. BOWEN WAS EXPECTED TO (AND, IN FACT, DID) PERFORM THE DUTIES OF BOILER PLANT OPERATOR THROUGHOUT THE PERIOD IN QUESTION, THE AGENCY DESIRES TO EFFECT A RETROACTIVE PROMOTION IN MR. BOWEN'S CASE FOR THE PERIOD FROM DECEMBER 19, 1979, THROUGH JANUARY 12, 1980.

WE HAVE LONG HELD THAT THE GRANTING OF PROMOTIONS IS A DISCRETIONARY MATTER WITHIN THE PROVINCE OF THE ADMINISTRATION OF THE AGENCY INVOLVED, AND THE EFFECTIVE DATE OF A CHANGE IN SALARY RESULTING FROM A PROMOTION OR OTHER ADMINISTRATIVE ACTION IS THE DATE ACTION IS TAKEN BY THE ADMINISTRATIVE OFFICER VESTED WITH NECESSARY AUTHORITY OR A SUBSEQUENT DATE SPECIFICALLY FIXED BY HIM. CAROLYN WHITLOCK, 58 COMP.GEN. 290 (1979), AND DECISIONS CITED THEREIN. THUS, AS A GENERAL RULE, WE HAVE HELD THAT A PROMOTION ACTION MAY NOT BE MADE RETROACTIVE SO AS TO INCREASE AN EMPLOYEE'S RIGHT TO COMPENSATION. SEE, FOR EXAMPLE, 40 COMP.GEN. 207 (1960). THE EXCEPTIONS TO THIS RULE, AND THE CASES WHERE BACK PAY MAY BE AWARDED FOR FAILURE TO PROMOTE AN EMPLOYEE EARLIER, ARE INSTANCES IN WHICH AN ADMINISTRATIVE OR CLERICAL ERROR (I) PREVENTED A PERSONNEL ACTION FROM BEING EFFECTED AS ORIGINALLY INTENDED (II) RESULTED IN A NONDISCRETIONARY ADMINISTRATIVE REGULATION OR POLICY NOT BEING CARRIED OUT, OR (III) ENTITLED TO THE SALARY OF THE HIGHER GRADE LEVEL UNTIL SUCH TIME AS HE IS PROMOTED TO THAT GRADE. CLEM E. GIFFORD, B-193834, JUNE 13, 1979, AND COURT CASES CITED THEREIN. THIS REASONING CONTROLS MR. BOWEN'S CASE ESPECIALLY SINCE HIS PERFORMANCE IN THE HIGHER-GRADE POSITION WAS NOT OF SUFFICIENT DURATION TO QUALIFY FOR RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR AN OVERLONG DETAIL IN ACCORDANCE WITH OUR DECISIONS IN EVERETT TURNER AND DAVID L. CALDWELL, 56 COMP.GEN. 427 (1977), AFFIRMING 55 COMP.GEN. 539 (1975).

ACCORDINGLY, MR. BOWEN IS NOT ENTITLED TO RETROACTIVE PROMOTION IN THE CIRCUMSTANCES PRESENTED.