B-144022, OCTOBER 11, 1960, 40 COMP. GEN. 207

B-144022, OCTOBER 11, 1960, 40 COMP. GEN. 207

CIVILIAN PERSONNEL - TRAINING AGREEMENTS - PROMOTIONS - RETROACTIVE EMPLOYEES WHO WERE HIRED WITH THE ORAL UNDERSTANDING THAT PURSUANT TO TRAINING AGREEMENTS THEY WOULD BE PROMOTED AT STATED INTERVALS FOLLOWING THE SUCCESSFUL COMPLETION OF TRAINING COURSES BUT WHO, DUE TO ADMINISTRATIVE DELAY, DID NOT RECEIVE THE PROMOTIONS ON THE DATES SPECIFIED DO NOT HAVE AN ENFORCEABLE CONTRACTUAL RIGHT TO PROMOTIONS ON THE SPECIFIED DATES UNDER THE AGREEMENTS WHICH WERE MORE IN THE NATURE OF AGENCY POLICY RATHER THAN A FIRM COMMITMENT; THEREFORE, THE ACTION OF THE AGENCY IN PROCESSING RETROACTIVE PROMOTIONS FOR THE EMPLOYEES IS IN CONTRAVENTION OF THE LONG-STANDING RULE THAT A PERSONNEL ACTION MAY NOT BE MADE RETROACTIVELY EFFECTIVE TO INCREASE THE RIGHT OF AN EMPLOYEE TO COMPENSATION.

TO D. C. LYNCH, GENERAL SERVICES ADMINISTRATION, OCTOBER 11, 1960:

ON SEPTEMBER 19, 1960, YOU REQUESTED OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER IN FAVOR OF G. W. AITKEN AND R. L. TROTH, EMPLOYEES OF THE PUBLIC BUILDINGS SERVICE, GENERAL SERVICES ADMINISTRATION, FOR ADDITIONAL COMPENSATION FROM JULY 10 TO SEPTEMBER 3, 1960, PART OF WHICH PERIOD INVOLVES RETROACTIVE PROMOTIONS.

MR. AITKEN AND MR. TROTH WERE EMPLOYED IN JUNE 1958 AS GS-5 ENGINEERS UNDER A TRAINING AGREEMENT WHICH PROVIDED THAT EMPLOYEES WITHIN ITS SCOPE, WHO ENTERED THE SERVICE AT GRADE GS-5, WOULD BE PROMOTED TO GRADE GS-7 UPON COMPLETION OF SIX MONTHS' INTENSIVE TRAINING AND THAT 12 MONTHS THEREAFTER THEY WOULD BE PROMOTED TO GRADE GS-9 AND RECEIVE A SECOND SIX MONTHS OF TRAINING, AND THAT UPON SATISFACTORY COMPLETION OF THE SECOND PERIOD OF TRAINING THEY WOULD BE PROMOTED TO GRADE GS-11. EACH OF THE ABOVE PROMOTIONS WAS DEPENDENT UPON THE FINDING OF A PANEL OF EVALUATORS THAT THE EMPLOYEES HAD SATISFACTORILY COMPLETED ALL PREVIOUS TRAINING. SIX MONTHS AFTER APPOINTMENT, THE EMPLOYEES INVOLVED RECEIVED THEIR PROMOTIONS TO GRADE GS-7. ALTHOUGH THEY BEGAN THE SECOND PERIOD OF TRAINING 12 MONTHS LATER ( DECEMBER 1959), THEY WERE NOT PROMOTED TO GRADE GS-9 UNTIL MARCH 20, 1960, BECAUSE OF ADMINISTRATIVE DELAY IN PROCESSING SUCH PROMOTIONS. ON JUNE 29, 1960, THE PANEL OF EVALUATORS CERTIFIED THAT BOTH EMPLOYEES HAD SATISFACTORILY COMPLETED THE SIX MONTHS OF TRAINING IN GS-9. ON AUGUST 8, THE CIVIL SERVICE COMMISSION WAS ASKED TO APPROVE THE RETROACTIVE PROMOTION OF MR. AITKEN AND MR. TROTH EFFECTIVE JULY 10. THE COMMISSION APPROVED OF SUCH PROMOTION ON AUGUST 11, SUBJECT TO THE PROVISO:

RETROACTIVE APPROVAL--- TO JULY 10, 1960, SUBJECT TO APPLICABLE DECISIONS OF THE COMPTROLLER GENERAL.

A NOTIFICATION OF PERSONNEL ACTION IN EACH CASE WAS EXECUTED ON AUGUST 19 STATING ITS EFFECTIVE DATE AS JULY 10. NO REASON IS GIVEN FOR THE DELAY IN EFFECTING THE PROMOTIONS TO GRADE GS-11, BUT WE ASSUME THAT ADMINISTRATIVE DELAY AGAIN WAS INVOLVED. FURTHERMORE, WE DO NOT UNDERSTAND THAT ANY ATTEMPT WAS MADE TO GIVE RETROACTIVE EFFECT TO THE PROMOTIONS TO GRADE GS-9 EFFECTIVE MARCH 20, 1960 (ELIGIBILITY THEREFOR HAVING BEEN COMPLETED IN DECEMBER 1959).

WE NOTE THAT THE TWO INDIVIDUALS WERE EMPLOYED PRIOR TO THE ENACTMENT OF THE GOVERNMENT EMPLOYEES' TRAINING ACT, 72 STAT. 327, 5 U.S.C. 2301; THEREFORE, THE TRAINING AGREEMENT INVOLVED WAS NOT BASED UPON SPECIFIC STATUTORY AUTHORITY. PRIOR TO THE EFFECTIVE DATE OF THE GOVERNMENT EMPLOYEES' TRAINING ACT, CHAPTER A6 OF THE FEDERAL PERSONNEL MANUAL CONTAINED INSTRUCTIONS FOR THE ESTABLISHMENT OF TRAINING AGREEMENTS SO AS TO AUTHORIZE PROMOTIONS OF PARTICIPATING EMPLOY BEFORE THEY HAD COMPLETED ONE YEAR IN GRADE UNDER SECTION (C) (3) OF THE " WHITTEN AMENDMENT," SECTION 1310 (C) (3) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1952, 65 STAT. 758, 5 U.S.C. 43 NOTE. WE HAVE SOME RESERVATION AS TO WHETHER THE TRAINING AGREEMENT UNDER WHICH THE PROMOTIONS TO GRADE GS-11 WERE MADE IN THIS CASE WAS IN ACCORD IN ALL RESPECTS WITH THE SPIRIT AND INTENT OF THE " WHITTEN AMENDMENT," NAMELY, TO RESTRICT THE RAPID PROMOTION OF EMPLOYEES IN THE GOVERNMENT SERVICE. HOWEVER, SINCE WE INFORMALLY HAVE ASCERTAINED FROM THE CIVIL SERVICE COMMISSION THAT TRAINING AGREEMENTS SUCH AS HERE HAVE BEEN SUPERSEDED BY OTHER AGREEMENTS WHICH REQUIRE A LONGER QUALIFYING PERIOD FOR ADVANCEMENT IN GRADE, NO OBJECTION WILL BE INTERPOSED ON THAT BASIS TO OTHERWISE PROPER PROMOTIONS IN ACCORDANCE WITH THE QUALIFICATION PERIODS REFERRED TO HEREIN.

IT SEEMS THAT THE EMPLOYEES INVOLVED WERE HIRED WITH AN ORAL UNDERSTANDING THAT THEY WOULD BE COVERED BY THE TRAINING AGREEMENT DESCRIBED ABOVE. PARAGRAPH 4 OF THAT AGREEMENT PROVIDES IN PART:

IN ORDER TO KEEP FAITH WITH PERSONS COVERED BY THIS TRAINING AGREEMENT, EACH PROMOTION SHALL BE MADE WITHOUT DELAY AND IN ACCORDANCE WITH THE PREDETERMINED SCHEDULE. * * * (ITALICS SUPPLIED.)

THUS, BOTH THE CONDITIONS OF EMPLOYMENT AND THE WORDING OF THE TRAINING AGREEMENT SHOW THAT NO CONTRACTUAL OBLIGATION AROSE BETWEEN THE GOVERNMENT AND THE EMPLOYEES CONCERNED. IN OTHER WORDS, THE MATTER OF PROMOTIONS UNDER SUCH AN AGREEMENT IS MORE IN THE NATURE OF AN AGENCY POLICY RATHER THAN A FIRM COMMITMENT WHICH WOULD ENTITLE THE EMPLOYEES TO PROMOTIONS ON THE DATES SPECIFIED, REGARDLESS OF DELAY IN ADMINISTRATIVE ACTION.

YOU CITE THE CASES SERVICE V. DULLES, 354 U.S. 363; VITARELLI V. SEATON, 359 U.S. 535; AND WATSON V. UNITED STATES, 142 CT.1CL. 749, IN SUPPORT OF THE POSITION THAT THE GOVERNMENT WAS BOUND TO PROMOTE THE EMPLOYEES INVOLVED WHEN THEY BECAME ELIGIBLE UNDER THE TRAINING AGREEMENT. THOSE CASES HOLD THAT AN AGENCY WHICH BRINGS CHARGES AGAINST AN EMPLOYEE TO SEPARATE HIM UNDER VALID DEPARTMENTAL REGULATIONS MUST COMPLY WITH THE REQUIREMENTS OF SUCH REGULATIONS EVEN THOUGH THE APPLICATION OF THOSE REGULATIONS IS DISCRETIONARY. WE DO NOT FEEL THAT THE HOLDINGS IN THOSE CASES REQUIRE THAT THE ADMINISTRATOR OF THE GENERAL SERVICES ADMINISTRATION GIVE PROMOTIONS OR CONFER ON THE EMPLOYEE A RIGHT TO RECEIVE THEM EXACTLY IN ACCORDANCE WITH THE WORDING OF A TRAINING AGREEMENT APPROVED BY THE PERSONNEL DIVISIONS OF HIS AGENCY AND THE CIVIL SERVICE COMMISSION EVEN THOUGH THE ADMINISTRATOR HAS ISSUED AN ORDER WHICH PROVIDES THAT "ACCELERATED DEVELOPMENT UNDER APPROPRIATE TRAINING AGREEMENTS" SHALL BE PART OF A CAREER MANAGEMENT PROGRAM WITHIN THE ADMINISTRATION.

FURTHERMORE, IN THE VITARELLI CASE, SUPRA, AT PAGE 545, THE COURT SAID:

BECAUSE THE PROCEEDINGS ATTENDANT UPON PETITIONER'S DISMISSAL FROM GOVERNMENT SERVICE ON GROUNDS OF NATIONAL SECURITY FELL SUBSTANTIALLY SHORT OF THE REQUIREMENTS OF THE APPLICABLE DEPARTMENTAL REGULATIONS, WE HOLD THAT SUCH DISMISSAL WAS ILLEGAL AND OF NO EFFECT.

CERTAINLY, THERE HAS BEEN SUBSTANTIAL COMPLIANCE WITH THE TRAINING AGREEMENT IN BOTH CASES HERE IN QUESTION.

IT LONG HAS BEEN THE RULE OF OUR OFFICE THAT A PERSONNEL ACTION MAY NOT BE MADE RETROACTIVELY EFFECTIVE SO AS TO INCREASE THE RIGHT OF AN EMPLOYEE TO COMPENSATION. 39 COMP. GEN. 583; 33 ID. 140. THEREFORE, THE PROMOTION ACTIONS APPROVED BY THE CIVIL SERVICE COMMISSION ARE EFFECTIVE ONLY FROM AUGUST 19, 1960, THE DATE PROMOTION ACTION WAS TAKEN.

THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED ONLY IN ACCORDANCE WITH THE FOREGOING HOLDING.