B-75633, JULY 30, 1948, 28 COMP. GEN. 69

B-75633, JULY 30, 1948, 28 COMP. GEN. 69

COMPENSATION ENTITLEMENT AS AFFECTED BY PROMOTION BASED UPON MISREPRESENTATIONS OF EXPERIENCE; BINDING EFFECT OF UNPUBLISHED DECISIONS OF THE COMPTROLLER GENERAL AN EMPLOYEE, WHOSE PROMOTION TO A HIGHER GRADE WAS BASED UPON MISREPRESENTATIONS OF EXPERIENCE MATERIAL TO HIS QUALIFICATIONS FOR PROMOTION TO THE HIGHER GRADE, IS NOT ENTITLED TO RETAIN THAT PORTION OF THE SALARY WHICH IS IN EXCESS OF THE AMOUNT HE WOULD HAVE RECEIVED HAD HE REMAINED IN THE LOWER POSITION FOR WHICH HE WAS PROPERLY QUALIFIED, AND IT IS IMMATERIAL THAT SUCH MISREPRESENTATIONS WERE INNOCENTLY OR DELIBERATELY MADE, OR THAT THE PROMOTION ADMINISTRATIVELY WAS MADE WITH OR WITHOUT THE PRIOR APPROVAL OF THE CIVIL SERVICE COMMISSION, THE QUALIFICATIONS OF THE EMPLOYEE, IN EITHER EVENT, BEING SUBJECT TO REVIEW BY THE COMMISSION. EVERY DECISION RENDERED BY THE GENERAL ACCOUNTING OFFICE, WHETHER OR NOT IT IS INCLUDED IN THE PRINTED VOLUMES OF DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES, IS BINDING UPON ALL DEPARTMENTS AND AGENCIES OF THE GOVERNMENT SO FAR AS THE SUBJECT MATTER OF THE DECISIONS IS PERTINENT TO MATTERS ARISING WITHIN SUCH DEPARTMENTS AND AGENCIES.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE ARMY, JULY 30, 1948:

THERE HAS BEEN CONSIDERED YOUR LETTER OF APRIL 16, 1948, AS FOLLOWS:

A QUESTION CONCERNING PROPRIETY OF SALARY PAYMENTS HAS RECENTLY BEEN BROUGHT TO THE ATTENTION OF MY OFFICE, BASED UPON CIRCUMSTANCES ESSENTIALLY AS FOLLOWS: AN APPLICANT WAS APPOINTED BY INTER-AGENCY TRANSFER TO A POSITION OF ENGINEER, P-3, IN THE FIELD SERVICE OF THE DEPARTMENT. THE EMPLOYEE WAS SUBSEQUENTLY PROMOTED TO GRADES P-4 AND P-5 BY PROPERLY DESIGNATED APPOINTING OFFICIAL OF THE DEPARTMENT. CONNECTION WITH THE LATTER PROMOTION, A POST AUDIT WAS MADE OF THE EMPLOYEE'S QUALIFICATIONS AND IT WAS FOUND THAT HE HAD MISREPRESENTED EXPERIENCE AS A CLERK-TYPIST AND INSPECTOR TO HAVE BEEN EXPERIENCE AS A CHEMICAL ENGINEER. THIS MISREPRESENTATION WAS NOT MATERIAL TO THE EMPLOYEE'S STATUS IN GRADES P-3 AND P-4 SINCE HIS DUTY PERFORMANCE WAS ACCEPTABLE AND HE OTHERWISE MET THE EXPERIENCE AND TRAINING REQUIREMENTS PRESCRIBED BY THE CIVIL SERVICE COMMISSION FOR THOSE HE WAS PROMOTED TO GRADE P-5 ON THE ASSUMPTION THAT THE EXPERIENCE AND TRAINING CLAIMED IN HIS ORIGINAL APPLICATION WAS FACTUALLY ACCURATE. THE EMPLOYEE SERVED SEVERAL MONTHS IN THIS GRADE BEFORE THE MISREPRESENTATION WAS DISCOVERED AND BEFORE REPRESENTATIVES OF THE CIVIL SERVICE COMMISSION DETERMINED THAT, WITHOUT THE EXPERIENCE IMPROPERLY CLAIMED AS A CHEMICAL ENGINEER, THE EMPLOYEE DID NOT MEET THE PRESCRIBED QUALIFICATION REQUIREMENTS FOR THE P-5 POSITION. THE EMPLOYEE WAS SHORTLY THEREAFTER DEMOTED TO A POSITION FOR WHICH HE MET ALL QUALIFICATION REQUIREMENTS.

IN CONNECTION WITH ESTABLISHING THIS EMPLOYEE'S STATUS DURING THE PERIOD OF HIS OFFICIAL ASSIGNMENT TO A P-5 POSITION, THERE HAVE BEEN CONSIDERED VARIOUS DECISIONS OF YOUR OFFICE, INCLUDING 15 CG 587, 16 CG 775, 17 CG 488 AND 22 CG 300. IT IS OUR BELIEF THAT THE PRINCIPLES INVOLVED IN THE CASE AT HAND ARE ANALOGOUS IN ALL IMPORTANT RESPECTS TO THOSE APPLIED TO DE FACTO EMPLOYEES IN THE DECISIONS CITED ABOVE. THIS BELIEF IS ALSO PARTIALLY BASED UPON A CONCEPT THAT CHANGES TO LOWER GRADE ARE LIMITED SEPARATIONS AND THAT THEY ARE NOT ATTENDED BY MORE SEVERE REQUIREMENTS THAN ARE APPLICABLE TO A TRUE SEPARATION.

OUR DOUBT IN THIS MATTER STEMS FROM AN UNPUBLISHED DECISION TO THE ARCHIVIST OF THE UNITED STATES (B-11071) DATED 11 JULY 1940, TO WHICH REFERENCE IS CURRENTLY MADE ON PAGE P 3-6 OF THE FEDERAL PERSONNEL MANUAL. WHILE THE CIRCUMSTANCES CONSIDERED IN THIS UNPUBLISHED DECISION PARALLEL THOSE PRESENTED ABOVE MORE CLOSELY THAN ANY ONE OF THE PUBLISHED DECISIONS, WE ARE NOT CERTAIN OF ITS APPLICATION BECAUSE OF THE DIFFERENT REQUIREMENTS APPLYING TO EACH OF THE PROMOTIONS. IT WAS REQUIRED IN BOTH INSTANCES, OF COURSE, THAT THE EMPLOYEE MEET QUALIFICATION REQUIREMENTS PRESCRIBED BY THE CIVIL SERVICE COMMISSION FOR THE POSITION TO WHICH PROMOTION WAS PROPOSED. IT IS TO BE NOTED, HOWEVER, THAT IN 1940 DETERMINATION OF QUALIFICATIONS WAS MADE THROUGH PRIOR APPROVAL BY THE COMMISSION WHEREAS, IN THE INSTANT CASE, THE APPOINTING OFFICER WAS RESPONSIBLE FOR THE DETERMINATION SUBJECT TO A POST AUDIT BY THE CIVIL SERVICE COMMISSION.

IN VIEW OF THE FOREGOING, WE DESIRE YOUR OPINION ON THE FOLLOWING QUESTION IN ORDER THAT PROPER INSTRUCTIONS MAY BE ISSUED TO OUR APPOINTING OFFICIALS:

1. UNDER CIRCUMSTANCES AS OUTLINED ABOVE, AND WHERE THE APPOINTING OFFICIAL HAS AUTHORITY TO ESTABLISH AND FILL A POSITION WITHOUT THE APPROVAL OF ANY OUTSIDE CONTROL AGENCY.

A. MAY THE EMPLOYEE RETAIN SALARY PAYMENTS ACTUALLY MADE DURING THE PERIOD HE WAS OFFICIALLY ASSIGNED TO A POSITION FOR WHICH HE IS LATER FOUND TO BE NOT QUALIFIED?

B. IN THE EVENT YOUR ANSWER IS AFFIRMATIVE, DOES THE APPOINTING OFFICER HAVE ANY DISCRETION IN DETERMINING WHETHER COLLECTION WILL BE MADE?

2. ASSUMING THE DETERMINATION OF DISQUALIFICATION CONSIDERED ABOVE WAS BASED UPON A DELIBERATE MISREPRESENTATION, WOULD YOUR ANSWERS TO THE PRECEDING QUESTIONS BE THE SAME IF THE DISQUALIFICATION WERE BASED UPON AN INNOCENT MISSTATEMENT OF FACT?

IN REVIEWING THIS PROBLEM, A QUESTION HAS ALSO ARISEN CONCERNING THE INTENDED APPLICATION OF UNPUBLISHED DECISIONS OF YOUR OFFICE. WE SHOULD THEREFORE LIKE TO BE FURTHER ADVISED WHETHER CERTIFYING OFFICERS OF THIS DEPARTMENT ARE RESPONSIBLE FOR PAYMENTS WHICH ARE NOT IN CONSONANCE WITH YOUR UNPUBLISHED DECISIONS TO OTHER AGENCIES OR WHETHER SUCH DECISIONS ARE BINDING ONLY UPON THE OFFICE OR AGENCY TO WHICH ADDRESSED.

IN DECISION OF JULY 11, 1940, B-11071, ADDRESSED TO THE ARCHIVIST OF THE UNITED STATES, REFERRED TO IN YOUR LETTER, IT WAS STATED, IN PART, AS FOLLOWS:

THE CIVIL SERVICE LAWS AND REGULATIONS, HAVING TO DO WITH APPOINTMENTS, AND THE CLASSIFICATION ACT OF 1923, HAVING TO DO WITH SALARY RATES, ARE SEPARATE AND DISTINCT STATUTES WITH DIFFERENT SCOPES AND PURPOSES. COMP. GEN. 578; 18 ID. 223; ID. 796. THE CLASSIFICATION OF A POSITION PURSUANT TO THE CLASSIFICATION ACT OF MARCH 4, 1923, 42 STAT. 1488, IS NOT A CLASSIFICATION OF THE EMPLOYEE WHO MAY BE DOING THE WORK OF THE POSITION THUS CLASSIFIED. ON THE CONTRARY, THE CLASSIFICATION RELATES ONLY TO THE WORK OR POSITION THUS CLASSIFIED. ON THE CONTRARY, THE CLASSIFICATION RELATES ONLY TO THE WORK OR POSITION ITSELF AND DETERMINES THE PROPER COMPENSATION TO BE PAID FOR THAT WORK TO A PERSON QUALIFIED TO HOLD SUCH A POSITION. WHEN THE PRESENT INCUMBENT OF A RECLASSIFIED POSITION HAS THE NECESSARY QUALIFICATIONS FOR THAT POSITION THE COMPENSATION WOULD BE PAYABLE FROM THE BEGINNING OF THE PAY PERIOD CURRENT WHEN THE NOTICE OF THE CLASSIFICATION IS RECEIVED IN THE ADMINISTRATIVE OFFICE, IRRESPECTIVE OF WHEN THE QUALIFICATION OF THE INCUMBENT IS DETERMINED BY THE CIVIL SERVICE COMMISSION, BUT, IN NO CASE, HOWEVER, PRIOR TO THE DATE THE EMPLOYEE ACTUALLY ATTAINED THE NECESSARY QUALIFICATIONS.

HOWEVER, THERE IS NO AUTHORITY TO PAY THE COMPENSATION OF THE RECLASSIFIED OR NEWLY ALLOCATED POSITION TO A PERSON WHO IS NOT QUALIFIED TO HOLD THAT POSITION. IF COMPENSATION ATTACHED TO THE RECLASSIFIED OR NEWLY ALLOCATED POSITION HAS BEEN PAID PRIOR TO DETERMINATION BY THE CIVIL SERVICE COMMISSION OF THE EMPLOYEE'S QUALIFICATION FOR THAT POSITION AND THE EMPLOYEE IS FOUND BY THE COMMISSION TO BE CLASSIFIED POSITION FORMERLY OCCUPIED BY THE INDIVIDUAL AND FOR WHICH HE OR SHE WAS QUALIFIED WOULD BE FOR REFUNDING. * * *

WHILE THAT DECISION WAS DIRECTED TO THE MATTER OF AN EMPLOYEE'S QUALIFICATIONS UPON THE RECLASSIFICATION OF HIS POSITION, THE CONCLUSION REACHED THEREIN EQUALLY IS FOR APPLICATION TO THE APPOINTMENT OR PROMOTION OF AN EMPLOYEE FROM ONE POSITION TO ANOTHER UNDER THE CIVIL SERVICE RULES. LIKEWISE, THE CONCLUSION REACHED IN THAT DECISION IS FOR APPLICATION WHETHER THE APPOINTMENT MAY BE MADE ADMINISTRATIVELY WITH OR WITHOUT PRIOR APPROVAL OF THE CIVIL SERVICE COMMISSION, SINCE, IN EITHER EVENT, THE QUALIFICATIONS OF THE EMPLOYEE- - WHICH ARE MATERIAL FACTORS RESPECTING HIS COMPETENCY TO FILL THE POSITION TO WHICH APPOINTED--- ARE SUBJECT TO REVIEW BY THE CIVIL SERVICE COMMISSION. HENCE, UNDER THE CIRCUMSTANCES SET FORTH IN YOUR LETTER, AND IN LINE WITH THE CONCLUSION REACHED IN THE SAID DECISION OF JULY 11, 1940, THE EMPLOYEE IS REQUIRED TO REFUND THE DIFFERENCE BETWEEN THE SALARY PAID HIM FOR THE POSITION IN CLASSIFICATION ACT GRADE P-5 AND THE SALARY RATE PROPERLY PAYABLE TO HIM FOR HIS P-4 CLASSIFICATION ACT POSITION FOR WHICH IT IS STATED HE IS QUALIFIED. ACCORDINGLY, QUESTION 1.A. IS ANSWERED IN THE NEGATIVE, RENDERING UNNECESSARY ANY ANSWER TO QUESTION 1.B.

WHILE IT IS DIFFICULT TO ASSUME THAT, IN THE CASE REFERRED TO IN YOUR LETTER, THERE WAS AN INNOCENT MISSTATEMENT OF FACT, IT MAY BE PRESUMED THAT SUCH CASES WILL ARISE. BUT HOWEVER THAT MAY BE, IF, AS A MATTER OF FACT, AN EMPLOYEE BE FOUND BY THE CIVIL SERVICE COMMISSION NOT TO BE QUALIFIED FOR THE POSITION TO WHICH APPOINTED ADMINISTRATIVELY AND THE APPROVAL OF SUCH APPOINTMENT IS WITHHELD, THE EMPLOYEE IS NOT ENTITLED TO RETAIN THE SALARY PAID TO HIM FOR SERVICES RENDERED IN SUCH POSITION. QUESTION 2 IS ANSWERED ACCORDINGLY.

WITH RESPECT TO THE QUESTION PRESENTED IN THE CONCLUDING PARAGRAPH OF YOUR LETTER, YOU ARE ADVISED THAT DECISIONS RENDERED BY THE GENERAL ACCOUNTING OFFICE IN THE COURSE OF A FISCAL YEAR ARE TOO NUMEROUS TO PERMIT THE INCLUSION OF ALL OF THEM IN THE PRINTED VOLUMES OF DECISIONS OF THE COMPTROLLER GENERAL OF THE UNITED STATES. THE SELECTION OF CERTAIN DECISIONS FOR INCLUSION IN THE PRINTED VOLUMES IS BASED UPON A CURRENT DETERMINATION OF THEIR IMPORTANCE FROM THE STANDPOINT OF GENERAL APPLICATION AND PRECEDENT. HOWEVER, EVERY DECISION RENDERED BY THIS OFFICE, WHETHER OR NOT IT IS INCLUDED IN THE PRINTED VOLUMES, IS BINDING UPON ALL DEPARTMENTS AND AGENCIES OF THE GOVERNMENT SO FAR AS THE SUBJECT- MATTER OF THE DECISION IS PERTINENT TO MATTERS ARISING WITHIN SUCH DEPARTMENTS AND AGENCIES. IN THAT CONNECTION, IT WILL BE NOTED THAT THE UNPUBLISHED DECISION OF JULY 11, 1940, SUPRA, EXPRESSLY WAS BROUGHT TO THE ATTENTION OF THE FORMER SECRETARY OF WAR IN DECISION OF JANUARY 12, 1945, 24 COMP. GEN. 518, AT PAGE 521.