Request for Advance Decision Concerning Legality of Compensating PHS Officer

An advance decision was requested concerning the legality of compensating an active duty commissioned Public Health Service (PHS) officer for work he performed as a federal civilian medical consultant for the Social Security Administration (SSA). The officer primarily performed the consulting services outside his normal duty hours; however, the records indicated that he periodically received dual compensation for work performed during the same duty hours at both agencies. Furthermore, GAO found that the officer failed to seek or receive PHS approval for engaging in the consulting services, and his employment records with SSA were incorrect. GAO has held that PHS officers' performance of services for other government agencies is incompatible with their performance of PHS duties; therefore, additional payment is not authorized. Furthermore, since PHS and SSA are components of the same government agency, the officer could have been detailed to SSA on a part-time basis at no extra cost to the government. Therefore, the SSA compensation payments to the officer were erroneous payments for which the officer is liable to make restitution. The debt should be collected by refund or administrative setoff and deposited into the general fund of the Treasury as a miscellaneous receipt. GAO found that no portion of the government's claim was barred by statutory limitations. Furthermore, since the work was performed without proper authorization, the officer failed to act in good faith in the matter. Therefore, payment could not be granted under the principle of de facto employment, and the officer had no basis for quantum meruit pay because of an invalid contract. Accordingly, the government's claim against the officer for the erroneous compensation may not be waived.