LETTER TO HONORABLE LYNDON B. JOHNSON FROM CHAIRMAN

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80-01370R000400040010-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 16
• Document Creation Date: December 14, 2016
• Document Release Date: February 7, 2003
• Sequence Number: 10
• Publication Date: July 15, 1961
• Content Type: LETTER

Approved For Re ase 2003/04/29 : CIA-RDP80-01370R.400040010-3
UNITED STATES CIVIL SERVICE COMMISSION
WASHINGTON 25, D. C.
Honorable Lyndon B. Johnson
President of the Senate
L_
Dear Mr. t*
IN REPLY PLEASE REFER TO
7/45-A
STATIN
We are ademitting for the consideration of Congress proposed
legislation to eats:bad% one general and equitable principle to be
followed by all Federal agencies in restoring to their emPlaYeee
psy and otter b nefits of employment which are lost by reason of an
unjustified or unwarranted personne). action sub *tautly corrected
by appropriate authority. There are enclos di (1) a draft bill;
(2) a section analysis of the proposed bill; and (3) a statement of
purpose and justification.
The proposed bin presents one c rehensive and imifora
authority for bade pay entitl t and computation to replace the
three current authorities, because th se authorities are neither
comprehensive nor uniform in theirspOlications Specifically the
bill is intended to su ede the pay provisions of Public Law
80-623 end public L 433. In addition this bill provides a more
specific legislative foundation for the Civil Service Commiestaals
authority in this area now exercised under section 19 of the Veterans
Preference Act.
In brief, the proposed bill enables appropriate authority follow-
ing an administrative determination or timely appeal to pay an employee
who has had his compensation terminated or reduced because of an un.
justified or unmarranted personnel action the difference between what
he earned and what he should have earned for the period. No entitle-
ment is created, however, vithout a finding by appropriate authority
that the action was indeed unjustified or unwarranted and a determine.
tion by such authority to take corrective action.
As amplified in the attached statement of purpose and justification,
the proposed bill extends back per protection to certain employees ami
situations not covered by present authorities. Significantly the proposed
bill does not extend to any employee any rights of tenure, reviews or
appeal to which he is not otherwise entitled. It does require, however,
Approved For Release 2003/04/29 : CIA-RDP80-01370R000400040010-3
Approved For Ripe 2003/04/29 : CIA-RDP80-01370Re00040010-3
that there an employe? has a richt to god% corrective action through
administrative proceedings, and is auccesoful in doing so, he will
for.poy, employment benefit, and other purposes be deemed to have
rendered service at his proper grade during the period. Moreover the
propose' would otrengthen the powers of agencies in moking equitable
poy and benefit adjustments following the correction of unjustified or
unwarranted personnel cations which they decide to correct on their
own initiative.
Timely processing of'appeale 'should minimize individual retroactive
powents. The oases which would be covered Shoed continue to be largely
them which are alread3/ covered by one or the other of the present
authorities covering bac% pay. While it innot anticipated that the
additional coats involved woad be great, however, the principle which
this bill woad establish La an important one. For this mason it is
hoped that the Congress trill be able to act favorably on this legislation
during this session.
The Bureau of the Budget adviees that from the standpoint of the
AdMinistrationts progrme there woad be no objection to the submission
of this report.
By direction of the Commissiont
Simon:ay yours,
Chairman
Enclosure #768
For Release 2003/04/29 : CIA-RDP80-01370R000400040010-3
Approved For Relive 2003/04/29 : CIA-RDP80-01370R00400040010-3
A DILL
To provide for the payment of compensation and restoration of
employment benefits to certain Federal officers and employees
improperly deprived thereof, and for other purposes.
1221Lalmtmilz the Senal12,22............_?estatialvesofth2
United Motes of America in Conerees ceeambled, that this Act may be
cited as the 'Mack Pay Act of 2.961".
SEC, 2. For the purpose of this Act the term nagencyn means
(1) the executive departments; (2) the independent establishments in
the executive branch, including corporations vdialy owned or controlled
by the United States; (3) the Administrative Office of the United States
Courts; (4) tho Library of Congress; (5) the General Aceountim Office;
(6) the Goverment Printing Office) (7) the Office of the Architect of
the Capitol; (8) the Botanic Garden; and (9) the governaent of the
District of Columbia.
Egi_2412) An officer or employee of an agency who, an the basis
of an administrative determination or a timely appeals is found by
appropriate authority under applicable laws Or regulations to have been
subject to an unjustified or unwarranted peroonnel action which has with-
drawn or reduced any part of his salary, wages, or other compeneation shall
be entitled upon correction of the action to be paid for the period that
the action wao in effect in an amount commensurate with the amount he would
noraally have earned had he not been subject to the actions less any amounts
earned by him through other aaploymont during such period. (b) For all
other puzpocco9 including the accuaulation of leave not in almoss of the
intretnam, proscribed by law or regulations he shall be deemed to have rendered
scrviROpildiaCkailliteiggiPiel03/04/29 : CIA-RDP80-01370R000400040010-3
Approved For Relive 2003/04/29 : CIA-RDP80-01370R00600040010-3
The United States Civil Service Coraraission may prescribe
regulations to carry out the provisions of this Act.
oatit Section 6 (b) of the Act of August 24, 19120 Ch. 3890 37
Stat. 555, as emended, (5 U.5.0. 652 (W0 and the last 71 words of the
third proviso of section 1 of the Act of August 26, 1950s Ch. 603, 64
Stat. 746, are repealed.
SM. 6, This Act applies to personnel actions effected on or after
the date of its enactment. The, provisions of law repealed under section
5 of this Act continue in force with regard to actions taken prior to
the .effective date of.thie Act.
Approved For Release 2003/04/29 : CIA-RDP80-01370R000400040010-3
Approved For eire 2003/04/29 : CIA-RDP80-01370R040100040010-3
SECTIOI ANALYSIS
Most of the situations which could give rise to the retroactive
payment of ccmpensation or employment benefits under the provisions
of this draft bill are already covered by the back pay provisions of
Public Law 623, 80th Congress, Public Law 733, 81st Congress, the .
powers of the Civil Service Commission under the Veterans' Preference
Act, and a nuMber of decisions of the Comptroller General interpreting
these authorities. The back pay provisions of this draft bill, however,
would be more uniform and in some cases More equitable than those now
available. In addition, the coverage of the draft bill is designed to
encompass all employees of the executive branch and certain other agencies.
Significantly, the draft bill neither requires any agency to review any
kind of personnel action, nor defines or restricts the nature of corrective
actions themselves. Moreover, the draft bill does not modify the procedural
requirements of any formal system of appeals. All the draft bill requires
is that where a right of appeal has been specifically granted by law or
regulation, or where management on its own initiative has discovered a
personnel action Which in all equity ahead be reviewed, any corrective
action as a consequence extended to a Federal officer or employee with
respect to adjustment of compensation or employment benefits must be
retroactive in its effect, complete in its remedies, and consistent in
its application.
Section 1 of this draft bill authorizes the use of a short or
popular title in citing this legislation.
Section 2 of the draft bill defines "agency" in sufficiently broad
terms to all parts of the executive branch, the govQrnment of
the District of Columbia, and those other establishments of the Federal
Government which look to the executive branch for personnel management
leadership.
Section 3(g) of the draft bill covers all officers and employees
of the agencies encompassed by the definition set out in section 2.
This would include all persons in both the competitive and excepted
civil service.
Section 3 (al of the draft bill in referring to "administrative
determination" nouns a decision made by appropriate authority on its own
initiative as opposed to a decision which it has been required to make
in order to dispose of a formal appeal. The purpose of this provision
is to grant agencies the right at their awn option to correct any real
injustices in the back pay area which they identify themselves, especially
where no avenue of appeal may be open to the individual involved.
Approved For Release 2003/04/29 : CIA-RDP80-01370R000400040010-3
Approved For ReOse 2003/04/29 : CIA-RDP80-01370R0000040010-3
0- -
.9(..1t1,;py,L,.110), of tho draft bill in referring to "timely appottin
mane (1) a request properly rIvde to an agency or to tho Civil Service
Comission soeizing reconoideration of an official poroonnol action
which has affected an coiployoo adversely (2) initiated by an employe?
or his rorresentative (3) unclor an appeal system or procedure ostablishod
by law or regulation (4) which request has been accepted by the authority
administering the particular appeals sy.stem or procedure involved. .This
provision of itself creates no new eonoepts of tirnolinosS. On this point
it relies entirely on the practices established in such other laws and
r000llations dealing with employee appeals as may now 0.11,St or later come
into being. The purposo of this provision is to prevent employees front
pressing stalo claims for back pay where they then.solves have slept on
their rights.
flocOox0 _SA), of the draft bill in using the phrase, "unjustified
or unwarranted personnel action", follows the language of Public Law
623, 80th Congress, the primary back pay authority at the time this
proposal was drafted. koll personnel actions in the administration of
tho Fedora]. personnel oysteno aro taken under some authority. Each such
personnel action should be intended to be a prop= exorcise of the powers
established by tho particular law or regulation under which the action
is taken. Ilevortholoos, occasionally errors aro made in the exorcise of
those powers. Personnel actions which are found to reflect such errors
may be defective on equitable or procedural grounds or both. The ruling
interpretation of tho phrase, "unjustified or unwarranted" with reference
to adverse actions in tho curront adoinistration of Public Law 623, 80th
Congress, encompasses both equitable and procedural considerations
lowing the decisions of the Court of Claims in ,-7',.1.ijalco:rov. U. S., 117
C.C1. 30, and Garcia V. U. S., 123 C.C1. 722, and of the Comptroller Gen
era], in 34 C.G. 568.
fhportk.111,1 of the draft bill in referring to "appropriate author-
ity" moans that agency, office, or official empoworod wider applicable
law or regulation to correct or direct the correction of the unjustified
or unwarranted action. In some cases this could be tho Civil Service Com-
mission as .ostablishod, for exomplo? in the Veterans' I-reference Act. In
many instances, such authority would be found at some lovel of agency
management as defined in applicable regulations and delegations of au-
thority thereunder.
Section_Lcs.), uses the phras , "applicable laws or regulations," to
refer to the laws and regulations which provide the basis for operations
ulyl.er the Federal personnel systemsa The draft bill looh to these laws
and rocUlations which now or may later cone into affect:
(1) to provide avenues .and procedures for the reconsider-
ation of unjustified or unuarranted personnel actions.
Approved For Release 2003/04/29 : CIA-RDP80-01370R000400040010-3
Approved For Relaie 2003/04/29 : CIA-RDP80-01370R00430040010-3
(2) to provide the legal basis for taking proper
peroonnel actiono end for corrocting unjusti.
fled or unwarronbcd (Mon.
(3) to establish the locuo of the authority to
corroot improper actions?
The phrase, "under applicable lons and regulations", has been
placed as indicated, n tho draE't bill :in order to incur? its referonoo
to the word "found" end the phrace "appropriate authority". It pre?
cedes the phrase, "unjustified or unwarranted personnel action", in
order to avoid the loolcal inconeloteney which uold be suggested by
reference to "an unjustified or tliWarrantod. poreonnol action under
appropriate laws or regulationo". As indicated previously, llowovor,
ell proper personnel actions reflect an exorcise of authority under an
appropriate law or regulation.
Sod:4217 (a). of the draft b.l1 does not ommerato the spocifio
typos or personnel actiono. covered because it is not the cause of the
notion, nor boil it is 103044 which is impertont here. Mat lo cigar
-
leant is the propriety of the action end thethor or not the employee
affected had hie compencation reduced as a consoquence. Unjustified or ?
unwarranted separations, (including retirements), Satipenvionup and
demotions ItIll constitute moot of the situations involved.
of the draft hal in the same spirit does not
enumerate
to OoCific types of connective action which would conotitute
appropriate correction of the vcrious typos of unjuotified or unwarranted
personnel aotions tfoich ray arise,. The general teroi "correction" in the
text of the ebraft bill has boon used doliberate3.y to assure that the
proper alaniotrative actions villa-toyer it night he consistenb with
opplicable laws or regulations, be token before a back pay entitlement
is created.
coctl:pn 3 (a) of the draft bill establichos an entitlement to book
pay in oror eituatronlore a personnel action which hes torolinatcd or
decreased the compensation of a Federal officer or cmployoo issubooquently
found unjustified or unwarranted and corrected by appropriate extthority.
For clerity the four eocentialo for an entitlement to back pay under this
Act are sot out belaut
1. An official personnel action must have been taken
which reduced or eaminishod cam part of an
individuolts usuol solar, wages, or other compensa-
tion fro:a Vedarol erploymeaL.. In other words, in
offset, sxrothir3 roust have boon taken away.
Approved For Release 2003/04/29 : CIA-RDP80-01370R000400040010-3
Approved For R se 2003/04/29 : CIA-RDP80-01370R.00040010-3
2. The personnel action in question must have been made
the subject of review by appropriate authority either
because of a timely appeal or because appropriate
authority on its own initiative decided to review
that action. In other words, the specific action
which precipitated the employee's loss must have been
re-examined.
3. The personnel action in question must have been found
by appropriate authority to be unjustified or unwarranted.
4. A corrective action consistent with applicable laws or
regulations must have been authorized by appropriate
authority as a consequence of its decision.
Section 3 (a) of the draft bill, therefore, establishes for pay
purposes the principle that an employee should be made whole following
the correction of an unjustified or unwarranted personnel action which
reduced his compensation in some way. As would be defined in detail in
the regulations, the adjustment in compensation would cover everything
to which the employee normally would have been entitled. The regulations
necessarily would require that the adjustment in compensation recognize
any obvious things in the normal course of events which would have
affected the amount of compensation. With respect to reducing that amount,
these would include situations, such as: death before final adjudication
of an appeal, separation or furlough as a result of reduction in force,
transfer to another agency, and imprisonment for crime. With respect to
increasing the amount of compensation, the draft bill assures credit for
increments such as periodic within-grade increases and general pay raises
to which the employee would have been entitled had he not been subject to
the unjustified or unwarranted action. Public Law 623, 80th Congress, and
Public Law 733, 81st Congress, unfortunately prevent crediting these in-
crements in computing the amount of back pay. On the other hand, both
Public Law 623, 80th Congress, and Public Law 733, 81st Congress, are cur-
rently interpreted as including in a back pay computation the premium pay
which an employee normally would have earned. To preserve this inter-
pretation the phrase "would normally have earned," which appears in
Public Law 733, 81st Congress, and which was discussed by the Comptroller
General in 34 Comp. Gen. 3829 has been repeated in the draft bill.
Section 3(al of the draft bill, following the historical precedents
in this area, provides that the amount of back pay to which an employee
would be entitled would be reduced by whatever amount he earned through
"other employment" during the period the action was in effect. The term
"other employment" is taken from Public Law 623, 80th Congress, in order to
assure a continuity of interpretation on this point. Both the Court of
Claims and the Comptroller General view "other employment" as encompassing
only that employment engaged in to take the place of the employment the
Approved For Release 2003/04/29 : CIA-RDP80-01370R000400040010-3
Approved For Relive 2003/04/29 : CIA-RDP80-01370R0110040010-3
Olt OZA
employee had prior to tho action inet him. This interpretation as
diceuesed by tho Court in Jackson v. U.S., 121 C.C1. 105, and by the
Conptroller General in 32 Conp, Gen, W. Therefore, If on enployeo
had boon eeparakd from his position, this (mount would bo the difference
between that his governmcnt incono should have been and that ho actually
earned in on employment obtnined to tyke the place of his governnent job.
If ho had been denoted, the anount to which he would be entitled tead
be the difference between that his income should have boon in the proper
grado and that it actually was at tho lover credos
Section 3 NI or the draft bill in ueing the sentence, ItFor all
other puin="5751cluding tho accunuletion of leave not in excess of the
narimum prescribed by law or regulation, he shell bo deemed to have
rendered service during the periodu, provides feriae) complete restoration
of seniority, service credit toward retirement, life insurance, health
ineurance, and all other benefits of employment which mey have boon
affected by the action. This is consistent with the current administration
of these matte= following a court or Civil Service Conniosion restoration
order. In addition, leave aocumulotion, excluded specifically from the
back pey provisions of Public Law 623, 80th Congress, 'would be authorised
unifonaly by this draft bill following the precedent of the more recent
Public Law 733, Ola Congress. The usual ceilings on leave aconeulation
would be observed, as prescribed by the lcw or regulation covering the
particular leave system to which the enployee is subject.
Section h of the draft bill authorises the Civil Service Cannission
to maEo suM renulations an maybe necessary to carry out the provisions
of this proposal much as the Comni.esion renulates in certain other pay
areas. Day to day application of these regulations to individual cases
would be the responsibility of the anenclec concerned. The General
Accountinn Office would receive specific questions in individual cases
as it does other matters involving claims and dauands against the Govern-
ment of the United States.
Sectionl of the draft bill repeals the back pay provisions of Public
Law 6-2-3?,Gau Congress and Public Law 733, Olot Congreos.
Section 6 of the draft bill provides that the measure hall be
offecTIWTEM-respect to personnel actions taken on or after the date
of its enactnent. It is not adninietratively feasible to make this
proposal retroactive without limitation. However, there is no more reacon
for ndrinn it retroactive to one dote than to another. For these reasons
the provisions of the draft bill would be applicable to cases arising
because of unjustified or unwarranted actions taken on or after its date
of enactment. Prior cases 'would be settled under current authorities.
Approved For Release 2003/04/29 : CIA-RDP80-01370R000400040010-3
Approved For Relive 2003/04/29 : CIA-RDP80-01370R0100040010-3
Statcnent or Pnrpope end. Jestification
of
. A Draft Dill to provide for the memoir!: of compensation
and restoration of employment benefits to certain Federal
officers and employees improperly deprived thereof.
E.1.1=21
To assure that all classes of Federal officers and employees can
be troated equitably and uniformly with respect to compensation and cm.
ployment benefits as a consequenoe of actions taken to correct unjustified
or unwarranted personnel actions.
Justification
This legislative proposal consolidates what is generally referred to
as "back pay" authority into one logical, equitable, and comprehensive
statelent of entitlement with respect to conpensation and employment
benefits. It is more than a codification of current back pay authoritieS
because those authorities, While adequate in many respects, nay not be
applied uniformly to all similar situations and do not afford coepletely
consistent remedies. The proposal is not entirely new, however, because
it has largely selected the best elements fran these familiar authorities,
welded them into one principle, and proposed the vse of that principle in
every instance where a question of back pay can be raised. Briefly this
principle holds that an employee is entitled to be made whole whenever an
erroneous personnel action which hae torainated or redueed his compensation
is corrected by appropriate authority. Significantly this proposal is not
concerned with the substance of appeal rights, the structure of the appeals
process, or the precise nature of corrective actions.
This proposal could justify itself with principles of fair play or
philosophical concepts of equity and justice. Fortunately for purposes
of brevity, this is not necessary. It is also unnecessary to recount how
the concept of back pay has been widely accepted in industry. The simple
fact is that the trend in law, regulation, and interpretation demonstrates
clearly that the Congress, the Courts, the agencies, and the Conptroller
General have been thinking along these lines for a long time with particular
emphasis on the past 15 years.
BaCkeround of Current Authorities
In 1947 it was pointed out in Congress, according to the
legislative history, that a "glaring loophole in the present lawn
existed if an eeployee in the competitive service who successfully
availed himself of a right of appeal could not always be reimbursed
for the compensation he lost while his appeal was pending. In 1.948,
Approved For Release 2003/04/29 : CIA-RDP80-01370R000400040010-3
Approved For Relive 2003/04/29 : CIA-RDP80-01370R0100040010-3
after consulting the Civil Service Comdseion end others, Congress
responded to this need by enacting Public Law 623, 80th Congress, as
an amendment to the Lloyd-LeFollette Act.
Public Law 623, 80th Congress, authorizes back pay in non-security
cases involving improper separations and suspensions of nonveterane with
civil service status in the competitive service and all veterans who
have completed their trial or probationary period. The amount of pay is
computed at the rate the employee was receiving at the time of the im-
proper action and covers the entire period the action was in effect.
Leave accumalation covering the sane period, however, was excluded from
the other remedies to which an employee was entitled under the Act.
In 1950, with the passage of Public Law 733, 81st Coneress, Congress
acted again in the back pay area, this time protecting executive branch
employees suspended or terminated in erroneous security actions. The
amount of back pay is computed as under Public Lau 623, 80th Congress;
however, agency heads are authorized to determine whether the employee
will be paid for all or part of the period of erroneous suspension or
removal. Interestingly, agency practice under this law has been to
authorize payment for the entire period almost without exception. More
complete as to benefits, Public Law 733, 81st Congress, has been inter-
preted to permit leave accumulation covering the period of the erroneous
action.
The third major source of back pay authority is the Veterans'
Preference Act of 19441) as amended. This Act has been interpreted as
authorizing back pay in cases involving improper demotions of veterans
who have. completed a trial or probationary period and in cases arising
as a result of erroneous reduction in force actions whether or not the
employees concerned are veterans.
In recent years the trend of Comptroller General's decisions inter-
preting these authorities has been toward greater flexibility. This
trend notwithstanding, however, it is apparent that these authorities,
an now stated, provide an inadequate basis for a full solution to the
back pay problem. If the problem is to be corrected, new legislation
must be the answer.
The Ueed for Change
Most back pay situations in the Federal service are already covered
in some way by current authorities. This factor itself tends to demon-
strate that the principle of back pay as a pert of corrective action is
well established. It suggests further that the reason the back pay
picture is not complete today is more a matter of oversight than inten-
tional arraneement. It is apparent that whenever Congress has faced the
problen of back pey, it has never intended its action to discriminate
against any employee who could build an equitable claim. Circumstances,
unfortunately, have led to a piecemeal approach to the back pay problem.
Approved For Release 2003/04/29 : CIA-RDP80-01370R000400040010-3
Approved For Relive 2003/04/29 : CIA-RDP80-01370R0?0040010-3
-3
As a consequence, veterans are now afforded broader back pay
benefits than nonveterans and at any given moment there are still
many veterans and nonveterans alike who could not be awarded back
pay at all except in the correction of erroneous reduction in
force actions. This number would include all employees serving
probationary or trial periods, many nonveterans who are employed
by their Government outside the competitive civil service, and
all nonveterans in the competitive service in actions of demotion
for cause.
Private relief legislation in individual cases cannot answer
the problem, because it tends to discriminate against the person
who does not seek special consideration beyond the remedies avail-
able to all. In the interests of both uniformity and equity,
therefore, there is a strong case for improving the present back
pay authorities. The case is particularly strong when it is
recognized that the step toward a better back pay authority is a
small one in terms of costs and administrative adjustments. No
great number of cases should add appreciably to current costs and
the handling of all back pay cases would be little different from
current procedures.
Impact of the Current Proposal
There are four features to this legislative proposal which
should be kept in mind in order to understand what it is designed
to accomplish and, just as important, what it is not designed to
do:
1. The Comprehensive Nature of this Authority. The
proposal assures that back pay protection would be
available to a Federal employee whenever an unjusti-
fied or unwarranted personnel action which diminished
his pay is corrected in his favor. The proposal does
not attempt, however, to specify the precise nature
of corrective actions. It requires only that the
unjustified or unwarranted action be corrected before
an entitlement is created. It is inherent in the use
of the term "correction" that the administrative
action referred to must be one which is consistent
with applicable laws and regulations. The protection
does not hinge on the operation of any particular
systems of appeals, but would be available as a con-
sequence of the operation of any system of appeals.
In addition, where no avenue of appeal is available,
an agency itself may award back pay to an employee merely
by acknowledging that its action affecting the employee
adversely was unjustified or unwarranted and correcting
it.
Approved For Release 2003/04/29 : CIA-RDP80-01370R000400040010-3
Approved For Relir 2003/04/29 : CIA-RDP80-01370R00e0040010-3
- 4 -
The Toot of Dirriniohed Many things may happen to
tra?ag&Trontoge oZ tho employoe on the job Which may have
a real or potontial afoot on his finano s ei-o a hopod-for
promotion or job classification upgrading may be denied or
delayed, a transfer to a new location may be more event:five
than anticipated, a free aficia parlang space may bo loots
eta. Thiazzosal does not deal. with situations of thi
sort. e purtroTroreire"'firGpo= oVi-WlYerh an
agency to make an employee wholo from a pay end benefita
point of view following its docioion to correct an unjustified
or untrarranted personnel action against him.
To accomplish its purpose tide proposal uses the **test of
dininishod income which must be applied in every potential
back pay situation before an entitionent is eotablished under
thia authoritY? Tho unjuctitted or unwarranted personnel
action, in effect, met have taken ava7 some part of the normal
salary, *rages, or other compensation of tho %vivo? affected.
In other lor4o, if no part of tho Aploytels salary, %goo, or
Other componsation an 0.0overnment employee was actually
dimi,dshoci, by the improper action, thorn eon be no claim to
bank pay when that action is corrected.
ThePel, ft_91-1 il,otion. In order to preserve hie
t pays Cho4W.t.,0 =dor this proposal would be
re to ticorcise tho rights of appeal open to him in a
7 manner. For examples an criployoo whose position was
downgradod madU-,-to his right to amend back pay =lose he
made a timely and suc000sful effort, to appeal the dndlng
action. Should that erviLoyea be promoted sometime later in a
routine reallocation of his position, out% reallocation would
have no back pay imlicatiorks.
4. The Aderntx_osaoSArienty pormitting an ageney
thOiim Tileivy on its oir7tozoination in corroctin3
an unjustified or unwarranted personnel action, this authority
introducos two nee' elemontS or flexibility which strengthen
the corrective powers a tranagemerrt. Firots Om an agency
discovers it has inadvertently token an unjustified or un.
warranted actions it would be tree to correct the action
imedintoly on its oen initiative with an Elpproprixte pay
a uotnent. This avoids the loss of time and rosourceS involved
in an alspeal over matter which the agency may teal in advance
should bet settled in the elployoets favor. Bocond, when an
acency dosiros to eactond back pay adjuotmente uniforply to all
persons in tho orno cirounstonces vthen an appeal is won by ony
one of the parsons involved, it would be free to do so on its
atm initiative.
Approved For Release 2003/04/29 : CIA-RDP80-01370R000400040010-3
Approved For Re!, 2003/04/29 : CIA-RDP80-01370R00e0040010-3
In a recent case, for example, a group of veterans in
tango board jobs successfully appealed to the Civil
Service Commission their devotions as a result of job
classification downgrading,s and were awarded back pay. ?
A nonVoteran worker in the same group, who had no right
to appeal to the Commission, benefited by the subsequent
reinstatement to grade but was denied the back pay adm
justmont his associates received, because the agency had
no authority to pay him. This proposed authority would
have permitted the agency,. had it desired, to authorize
the EMTIO ldxid of adjustmen.t to all of ths employees
involved.
Cost estimate
0.111.11,./m114?1011.11.4.111..*?41.1
- It to very difficult to assess ths cost involved in this pro. '
posed bill, This is not bocause these coats yould constitute a
major espenditmre. Instead it is becauSe tladdedu cost ie the in-
formation needed ;dale readily available information unfortunately
reveals little about current cost, Today Eff, encs gmerally absorb
the costs of compensating employees entitled to back pay, Under
the proposed bill, no change in this is envisioned.
Potentially some agencies ray havs a sornswhat larger amber of
cases involving back pay entitlement then they have at present.
On the other hand with such elearscut and comprelionsive entitlement
estataished, agencies tould have ?ark added incentive to conduct their
appeal and review activities in a timely and e.xpeditious manner in
order to minimize the cost of such entitlements, Iforeover, the
draft bill would tend to limit the sine of retroactive pasments
because employees who neglect to nse their appeal rights, if any,
in a timely =nor would lose their right to demand back pay.
In the benefits area it would be virtually impossible to
"coat" the accumulation of leave covering periods of improper sop-
&ration or suspension as authorized by the draft bill. Taken at
different times, leave has afferent values. In addition, while
terminal lump.sura annual lea-ve payments can represent a cash
espense, sick leave should have no actual 'sass unless the employe
is ill. It would seas res.sonablo? to assume, therefore, that this
legislative proposal would create no new costs or inconveniences
in the leave area more burdensome than those agencies are adjusting
to now,
Those benefits to which employees are entitled on a contributory
basis, such as roUrement Life insurance, and health insurances
tiould not con3titate added costs under the draft bill. The employee
would continue to be required to make up his back contributions,
along with his taxes, for any period during which they were not
withhold. This requirement stems from the fact that Ithere an eind.
61R-FtdiAblefffili-ii(iiptif3
having 'renderedso service he a assumes a responsibility or
Approved For Rely 2003/04/29 : CIA-RDP80-01370R000460040010-3
e 6 *
the obligatione which that oervice would have impend.
It in about ao difficult to estimate the number of new back pgy
entitlementreehich would arise under this proposal .as it is to assess
the value of these entitlements. The eito of the new croups covered
in sone instences is very lexem. Conversely, however, thcepotential
number of back pgy caves lik4v to arioe frau these croups, experience
tolls up, is eurprisinay smell. For exemple, the now proposel would
protect career nonveterane in cams of devotion for cause. On oppeel,
the Cm-mission revices the procedural edequav of ouch actions in the
competitive service. Although there are about 14000,000 nonveterano
in the competitive =vice, there was not one appollent in these cir*
cumetencee between July 1, 1959, and Juno 300 1960, tho would have been
entitled to back pey because of Commiesion action. We do not know how
now ouch cases were handled at agency levels under circumstances which
woad have involved beck pay un dee this proposal. We would have to
assume though that tho nuMber lyns foitly smell because the Commission
so rarely receives appeals of this hind.
Nonveteren enOloyees in excepted positions for the first time
would be entitled to beck pay if they lost compensation as a consequence
of unjustified or unwarranted suspensions, separations or demotions for
cause. At present, them evployees? and there are about 100,000 of
than, have no appeal to the Civil Service Commiseion in such actions,
and agenclee haw considerable flerability in aotions affecting their
tenure. Under this proposal, therefore, there would be only as meny
not; back pay entitlement eaves involving these employees as procedures
under aeency control would generate.
This proposal meld also cover, for the first time, enPloyees
serving probationary? or trial periods. At any one tlxies there are
probably between 100,000 end 175,000 such persons throughout the service.
The proposal requires, however, that there can be no entitlement to back
pay trithout a finding that the adverse action involved was unjustified
or unwarranted. Cceipared to persons who have completed their trial
periods the appeal rights of probationary employees are very United.
"blurt/13,y this woad tend to keep down the nuraber of entitlement cases.
Under cootion 20301(0(2) of the -Corzassionts rtegulationss the
Comics:Ion considers appeals of terainatiene based on conditions arising
prior to the appointment of probationers in the competitive service. In
less than 100 cases last .year wore Connission deteroinations such that an
employee woad have been entitled to back pay? A probationary or trial
period employee who is teminated.for reasons occurring after employment
generally does not have a right to appeal to the Commission.
Approved For Release 2003/04/29 : CIA-RDP80-01370R000400040010-3
Approved For Relive 2003/04/29 : CIA-RDP80-01370R0.0040010-3
Zn conolusiono the Commission io unable to estimate the costs of
this proposcl procisely without on expensive tuid detailed sturky goin3
into the etTeriont.le of each rodoral acency0 With the facts ibich cro
available, howoiKlr, it sue.= safe to estimate that less than 41400,000
per year COSt woad be involved Covernment.mide and
that riot of thea costs would be of the type which azenoies customarily
abcorb in the normal course a operations,' Vie proposed lecislation
will not involve additional arpenditures for personnel services to
act-lb-Lister
it provisions.)
Approved For Release 2003/04/29 : CIA-RDP80-01370R000400040010-3