B-200851.OM, FEB 9, 1981

B-200851.OM, FEB 9, 1981

SUBJECT: RETROACTIVE TEMPORARY PROMOTION WITH BACK PAY - EDWARD L. TOLES - B-200851-O.M.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

RETURNED, TOGETHER WITH YOUR FILE Z-2824196, FORWARDED AS A CLAIM BY EDWARD L. TOLES FOR A RETROACTIVE TEMPORARY PROMOTION TO GRADE GS-14 WITH BACK PAY ON THE BASIS OF OUR TURNER-CALDWELL DECISIONS, 55 COMP.GEN. 539 (1975), AND 56 ID. 427 (1977).

DURING THE PERIOD OF HIS CLAIM MR. TOLES' OFFICIAL POSITION WAS THAT OF REPORTS PROGRAM MANAGEMENT OFFICER, GS-301J-12. ON FEBRUARY 12, 1978, HE WAS ASSIGNED TO PERFORM THE DUTIES OF REPORTS PROGRAM MANAGEMENT OFFICER, GS-301J-14. IN VIEW OF HIS IMMEDIATE SUPERVISOR'S VERIFICATION, THE RECORD ESTABLISHES THAT MR. TOLES CONTINUOUSLY PERFORMED IN THIS DETAILED POSITION FROM FEBRUARY 12, 1978, UNTIL APRIL 4, 1980, WHEN THE RECORD FURTHER ESTABLISHES THAT THE HIGHER-GRADE POSITION WAS RECLASSIFIED AT THE GS-13 LEVEL. MR. TOLES WAS TEMPORARILY PROMOTED TO GRADE GS-13 IN CONNECTION WITH HIS DETAIL ON FEBRUARY 12, 1978. DESPITE THE TWO APPARENT BREAKS TOTALLING 80 DAYS IN THE TEMPORARY PROMOTION, THE DEPARTMENT HAS ADVISED US BY TELEPHONE THAT HE WAS CONTINUOUSLY PAID AT THE GS-13 LEVEL DURING THE ENTIRE PERIOD. WHILE MR. TOLES CONTINUED TO PERFORM IN THE DETAILED POSITION, HE WAS NOT TEMPORARILY PROMOTED, TO THE GS-14 LEVEL AFTER 1 YEAR AT THE GS-13 LEVEL. HE WAS PERMANENTLY PROMOTED TO GS-13 ON JULY 1, 1979.

YOU ASK HOW MR. TOLES' CLAIM SHOULD BE EVALUATED. FOR THE PURPOSES OF IMPLEMENTING THE REMEDY PROVIDED FOR OVERLONG DETAILS TO HIGHER GRADE JOBS BY OUR TURNER-CALDWELL DECISIONS, WE TREAT AN EMPLOYEE WHO IS DETAILED TO A POSITION MORE THAN ONE GRADE ABOVE HIS PRIOR POSITION IN THE SAME WAY WE WOULD TREAT AN EMPLOYEE WHO HAS BEEN DETAILED UPWARD ONLY ONE GRADE. THEREFORE, AN EMPLOYEE, WHO IS DETAILED TWO OR MORE GRADES ABOVE HIS REGULAR GRADE, IS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION TO THE HIGHEST GRADE TO WHICH HE COULD HAVE BEEN PROMOTED UNDER TIME-IN-GRADE RESTRICTIONS AND OTHER APPLICABLE REQUIREMENTS. FEDERAL PERSONNEL MANUAL SUPPLEMENT, SECTION 300.602(A), PROVIDES THAT AN AGENCY MAY ADVANCE AN EMPLOYEE TO A POSITION AT GS-12 OR ABOVE ONLY AFTER HE HAS SERVED 1 YEAR AT THE NEXT LOWER GRADE. THUS, AS MR. TOLES WAS TEMPORARILY PROMOTED ON FEBRUARY 12, 1978, HE WAS NOT ELIGIBLE FOR FURTHER PROMOTION IN ANY EVENT UNTIL FEBRUARY 12, 1979.

THE CONCOMITANT EFFECT OF THE TIME-IN-GRADE RESTRICTIONS UPON MR. TOLES DETAIL MAY BE DETERMINED IN ACCORDANCE WITH OUR DECISION IN ROBERT RANN, B-191768, OCTOBER 2, 1978. IN THAT CASE A GS-12 DEPARTMENT OF LABOR EMPLOYEE WAS DETAILED TO A GS-14 POSITION BETWEEN JULY 17, 1972, AND JANUARY 31, 1975. TO SATISFY APPLICABLE 1 YEAR QUALIFYING TIME-IN-GRADE REQUIREMENTS FOR PROMOTION TO GS-14, WE DETERMINED THAT THE EMPLOYEE WAS ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION RESTRICTED TO GS-13 FOR 1 YEAR, BEGINNING ON THE 121ST DAY OF THE DETAIL. HAVING THEN SATISFIED THE 1 YEAR SERVICE REQUIREMENTS AT GS-13, THE EMPLOYEE WAS THEN ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION TO GS-14 FOR THE REMAINDER OF THE CONTINUOUS DETAIL. WE ALSO NOTED THAT OUR CONCLUSION IN THE RANN CASE CONFORMED WITH OUR DECISION IN FRIEDMAN, BAKER AND HOLMES, B-189690, FEBRUARY 16, 1978, AS MODIFIED BY MARY LEE GROOVER, B-190174, APRIL 21, 1978, WHICH DECISIONS YOU HAVE CITED IN YOUR TRANSMITTAL LETTER.

HOWEVER, THE CIRCUMSTANCES OF MR. TOLES' DETAIL CREATE A CAVEAT THAT ULTIMATELY CONTROLS THE COMPUTATION OF HIS ENTITLEMENT. IN THE DECISIONS NOTED ABOVE WE CONCLUDED THAT 120 DAYS SPENT ON A DETAIL PRIOR TO A RETROACTIVE TEMPORARY PROMOTION MAY NOT BE CONSIDERED TIME IN-GRADE FOR PURPOSES OF SATISFYING THE APPLICABLE 1 YEAR REQUIREMENTS. THUS IN THE RANN CASE THE CLAIMANT WAS REQUIRED TO FIRST SERVE 120 DAYS ON THE DETAIL, THEREBY COMMENCING THE OVERLONG DETAIL VIOLATIVE OF TURNER-CALDWELL, AND ALSO MAKING THE 1 YEAR TIME-IN-GRADE REQUIREMENT INTO A COMPOSITE PERIOD OF 1 YEAR AND 120 DAYS. IN THE PRESENT CASE MR. TOLES WAS TEMPORARILY PROMOTED TO GS-13 AT THE OUTSET OF HIS DETAIL AND THEN SERVED CONTINUOUSLY IN THAT DETAIL THROUGH THE PERIOD OF THE CLAIM. IN SUCH CIRCUMSTANCES WE HAVE NOTED THAT, UNDER OUR TURNER-CALDWELL RATIONALE, AN EMPLOYEE MUST BE DETAILED TO A HIGHER LEVEL POSITION WITHOUT THE COMPENSATION OF THE HIGHER LEVEL POSITION FOR 120 DAYS BEFORE THE ENTITLEMENT TO A RETROACTIVE TEMPORARY PROMOTION BEGINS ON THE 121ST DAY. THEREFORE, THE PERIOD AN EMPLOYEE SERVED ON A TEMPORARY PROMOTION MAY NOT BE INCLUDED IN COMPUTING THE NUMBER OF DAYS SERVED ON A DETAIL. SEE DONALD L. BRESSLER, 58 COMP. GEN. 401 (1979).

AS NOTED ABOVE, MR. TOLES WAS TEMPORARILY PROMOTED AT THE TIME OF HIS ASSIGNMENT TO THE HIGHER LEVEL POSITION. AS A RESULT, ON FEBRUARY 12, 1979, WHEN HE OTHERWISE SATISFIED THE TIME-IN-GRADE REQUIREMENTS FOR THE PURPOSES OF EXPANDING HIS PROMOTION TO THE GS-14 LEVEL IN ACCORDANCE WITH THE RANN DECISION, HE HAD NOT SERVED IN AN OVERLONG DETAIL IN EXCESS OF 120 DAYS WITHIN THE MEANING OF OUR TURNER-CALDWELL RATIONALE.

ACCORDINGLY, MR. TOLES WOULD BE REQUIRED TO SERVE IN THE HIGHER LEVEL GS- 14 POSITION FOR 120 DAYS AFTER HIS 1 YEAR ANNIVERSARY DATE AS A TEMPORARY GS-13 ON FEBRUARY 12, 1979, BEFORE HE BECAME ENTITLED TO A RETROACTIVE TEMPORARY PROMOTION TO GS-14 UNTIL THE POSITION WAS RECLASSIFIED DOWNWARD.

AN ADDITIONAL CAVEAT ATTACHES TO OUR EVALUATION OF MR. TOLES CLAIM. THE RECENT CASE OF JOYCE R. MORRISON, B-197206, AUGUST 12, 1980, THIS OFFICE CONSIDERED THE EFFECT OF FPM BULLETIN NO. 300-48, ISSUED BY THE OFFICE OF PERSONNEL MANAGEMENT. THE BULLETIN IS DATED MARCH 19, 1979, AND STATES THAT IT IS EFFECTIVE FEBRUARY 15, 1979. THE BULLETIN STATES INTER ALIA THAT AGENCIES ARE DELEGATED THE AUTHORITY TO DETAIL EMPLOYEES TO HIGHER-GRADE POSITIONS FOR 240 DAYS WITHOUT PRIOR OPM APPROVAL FOR THE SECOND 120 DAYS. THUS, FPM BULLETIN 300-48 MUST BE CONSIDERED IN LIGHT OF THE NATURE OF THE REMEDY PROVIDED BY OUR TURNER CALDWELL DECISIONS FOR OVER-LONG DETAILS TO HIGHER-GRADE POSITIONS. THE REMEDY IS A RETROACTIVE TEMPORARY PROMOTION FOR THE DETAILED PERSON BEGINNING ON THE 121ST DAY OF THE DETAIL. IN THE CIRCUMSTANCES OF THE MORRISON CASE, WE CONCLUDED THAT WHERE A CONTINUING DETAIL HAD EXCEEDED 120 DAYS WITHOUT PRIOR CSC OR OPM APPROVAL AND A RIGHT TO BACK PAY UNDER TURNER-CALDWELL HAD VESTED PRIOR TO THE BULLETIN'S EFFECTIVE DATE, THE EMPLOYEE IS ENTITLED TO BACK PAY UP TO THE EFFECTIVE DATE OF THE BULLETIN. THIS IS SO BECAUSE THE KEY TO TURNER- CALDWELL IS THE LACK OF AUTHORITY BY THE AGENCY TO DETAIL BEYOND ESTABLISHED LIMITS. HOWEVER, ENTITLEMENT TO BACK PAY AFTER FEBRUARY 15, 1979, THE EFFECTIVE DATE OF THE BULLETIN MUST BE BASED ON THE NEW BROADER AGENCY AUTHORITY IT ESTABLISHED.

ACCORDINGLY, AFTER FEBRUARY 15, 1979, THE AGENCY HAD THE AUTHORITY TO DETAIL MR. TOLES TO A HIGHER-GRADE POSITION FOR AN ADDITIONAL 237 DAYS (240 DAYS LESS THE 3 DAYS ALREADY SERVED BETWEEN FEBRUARY 12 AND 15, 1979). THEREFORE, MR. TOLES ENTITLEMENT TO A RETROACTIVE TEMPORARY PROMOTION TO GS-14 WOULD COMMENCE ON OR ABOUT OCTOBER 9, 1979, AND CONTINUE THROUGH APRIL 4, 1980, WHEN THE GS-14 POSITION IN QUESTION WAS OFFICIALLY RECLASSIFIED DOWNWARD.

FINALLY, YOU RAISE A QUESTION AS TO THE EFFECT OF A RECENT DETERMINATION OF THE MERIT SYSTEMS PROTECTION BOARD IN THE CASE OF RICHARD KNOWLDEN, AN AIR TRAFFIC CONTROLLER, ON THE CONTINUED VALIDITY OF TIME-IN-GRADE REQUIREMENTS. THE DECISION WAS MADE BY AN PRESIDING OFFICIAL, AND AT THIS TIME THE DECISION IN QUESTION IS NOT FINAL. WE ARE ADVISED BY THE OFFICE OF THE SECRETARY AT THE MERIT SYSTEMS PROTECTION BOARD THAT THE OFFICE OF PERSONNEL MANAGEMENT HAS FILED AN APPEAL FOR REVIEW OF THE CASE BY THE BOARD.

UNTIL THE ISSUE IS FINALLY RESOLVED, WE SEE NO BASIS FOR RETROACTIVELY APPLYING THE LOGIC OF THE INITIAL DECISION TO THE CIRCUMSTANCES OF MR. TOLES' CLAIM. THE OFFICE OF PERSONNEL MANAGEMENT'S PRESENT REGULATIONS IMPOSING TIME-IN-GRADE RESTRICTIONS, 5 C.F.R. SEC. 300.601, ET SEQ. ARE PREDICATED UPON AUTHORITIES SUCH AS 5 U.S.C. SEC. 3302 WHICH AUTHORIZES THE PRESIDENT TO PRESCRIBE RULES GOVERNING THE COMPETITIVE SERVICE. THEREFORE, UNLESS AND UNTIL THERE IS A FINAL DECISION NEGATING THE VALIDITY OF THE SUBJECT TIME-IN-GRADE REGULATIONS, WE CONCLUDE THAT SUCH REQUIREMENTS MUST CONTINUE TO BE APPLIED BY OUR OFFICE ON A CASE BY CASE BASIS.

THE COMPTROLLER GENERAL

WE ARE FORWARDING THE CLAIM OF MR. EDWARD L. TOLES FOR A RETROACTIVE TEMPORARY PROMOTION AND BACK PAY FOR THE PERIOD FEBRUARY 12, 1978 TO MAY 12, 1980, BECAUSE OF AN OVERLONG DETAIL TO A HIGHER GRADE POSITION.

MR. TOLES' OFFICIAL POSITION WAS THAT OF REPORTS PROGRAM MANAGEMENT OFFICER, GS-301J-12. ON FEBRUARY 12, 1978, HE WAS ASSIGNED TO PERFORM THE DUTIES OF REPORTS PROGRAM MANAGEMENT OFFICER, GS-301J-14. MR. TOLES LACKED THE 1-YEAR OF EXPERIENCE AT THE NEXT LOWER GRADE TO QUALIFY FOR THE GS-14. ON JANUARY 31, 1978 THE AGENCY HAD ESTABLISHED AND CLASSIFIED A POSITION AT THE INTERVENING LEVEL APPARENTLY FOR THE SOLE PURPOSE OF PERMITTING MR. TOLES TO BE TEMPORARILY PROMOTED, AND HE WAS TEMPORARILY PROMOTED TO THAT POSITION ON FEBRUARY 12, 1978. ALTHOUGH THE GS-13 POSITION DESCRIPTION APPARENTLY EXCLUDED THE GS-14 GRADE DETERMINING DUTIES, MR. TOLES' SUPERVISOR DURING THE PERIOD, WHO WAS ALSO THE PRIOR GS -14 INCUMBENT OF THE POSITION, HAS STATED THAT MR. TOLES PERFORMED THE SAME DUTIES HE HAS PERFORMED AS A GS-14. IN ADDITION, THE TWO DIFFERENT GRADES AND POSITION DESCRIPTIONS, BOTH FOR THE SAME POSITION, EXISTED CONCURRENTLY UNTIL THE GS-14 POSITION WAS ABOLISHED IN 1980.

B-189690, FEBRUARY 16, 1978 AND B-190174, APRIL 21, 1978, PROVIDE FOR A REMEDY WHERE AN EMPLOYEE WAS DETAILED TO A POSITION WHOSE GRADE WAS ABOVE THAT TO WHICH HE COULD BE PROMOTED. IN MR. TOLES' CASE, THE AGENCY PROVIDED THAT REMEDY (EXCEPT FOR APPROXIMATELY 80 DAYS OF THE ENTIRE PERIOD OF ASSIGNMENT THAT HE WAS NOT TEMPORARILY PROMOTED TO THE GS-13), BUT IT WAS NOT EXPANDED TO GS-14 AFTER ONE YEAR AT GS-13. IS MR. TOLES ENTITLED TO THE GS-13 FOR THE 80 DAYS HE DID NOT GET IT EVEN THOUGH HE WAS PERFORMING THE DUTIES OF THE GS-14? OR MUST HE HAVE SPENT AT LEAST 120 DAYS IN THE HIGHER GRADE WITHOUT ANY REMEDY BEFORE HE CAN BE GIVEN ADDITIONAL ENTITLEMENT IN THE FORM OF AT LEAST THE PARTIAL REMEDY?

EFFECTIVE FEBRUARY 15, 1979, THE OFFICE OF PERSONNEL MANAGEMENT DELEGATED TO AGENCIES THE AUTHORITY TO DETAIL EMPLOYEES TO HIGHER GRADE POSITIONS FOR UP TO 240 DAYS WITHOUT OPM APPROVAL. SINCE THE PERIOD OF SERVICE IN THE HIGHER GRADED POSITION OVERLAPS THE DATE OF DELEGATION OF AUTHORITY, HOW DOES THIS AFFECT THE CLAIM? B-192436-O.M., APRIL 25, 1979 AND B-197163-O.M., MARCH 26, 1980, INDICATE THAT PERIODS OF DETAIL BEFORE AND AFTER ACTUAL TEMPORARY PROMOTION SHOULD BE CONSIDERED IN AGGREGATE FOR PURPOSES OF DETERMINING THE 121ST DAY OF A DETAIL. WOULD THIS BE APPLICABLE HERE, OR DOES THE FACT THAT HIS TEMPORARY PROMOTIONS WERE ONLY TO GS-13 (EVEN THOUGH THAT WAS THE MOST THE AGENCY COULD GIVE HIM FOR A YEAR) RENDER THE PRINCIPLE IN THESE O.MS. IRRELEVANT?

SINCE MSPB RECENTLY RULED OPM'S TIME-IN-GRADE UNLAWFUL (FOLLOWING EXPIRATION OF THE WHITTEN AMENDMENT), WOULD THIS AFFECT THE CLAIM? VIEW OF THE SEVERAL QUESTIONS INVOLVED, THE CLAIM IS SUBMITTED FOR YOUR CONSIDERATION AND INSTRUCTIONS.