B-152040, B-158422, APR. 2, 1969

B-152040, B-158422, APR. 2, 1969

TO MR. SECRETARY:

WE REFER TO A LETTER OF FEBRUARY 26, 1969, FROM YOUR ACTING ASSISTANT SECRETARY FOR ADMINISTRATION, REQUESTING OUR DECISION WHETHER ERRONEOUS PAYMENTS OF LIVING QUARTERS ALLOWANCES MADE PURSUANT TO 5 U.S.C. 5923 CONSTITUTE ERRONEOUS PAYMENTS OF PAY SO THAT THE WAIVER OF THE ERRONEOUS PAYMENTS WOULD BE AUTHORIZED UNDER THE PROVISIONS OF PUBLIC LAW 90-616, APPROVED OCTOBER 21, 1968, AND THE IMPLEMENTING STANDARDS FOR WAIVER PUBLISHED IN THE FEDERAL REGISTER ON DECEMBER 31, 1968. SEE VOLUME 33, PAGE 20001 ET SEQ.

AS YOUR ASSISTANT SECRETARY POINTS OUT, PUBLIC LAW 90-616 DOES NOT DEFINE THE TERM "PAY.' HOWEVER, SENATE REPORT NO. 1607, OCTOBER 2, 1968, QUOTED IN PART IN YOUR ASSISTANT SECRETARY'S LETTER, STATES THAT THE TERM "PAY" IS INTENDED TO HAVE ITS BROADEST MEANING AS IS INTENDED GENERALLY WHEN THE WORD IS USED IN TITLE 5 U.S.C.

IT IS SIGNIFICANT THAT PUBLIC LAW 90-616 AMENDS SUBCHAPTER 8, CHAPTER 55 OF TITLE 5 U.S.C. THEREFORE, WE DO NOT FEEL WARRANTED IN ASCRIBING TO THE TERM "PAY," AS USED IN PUBLIC LAW 90-616, ANY DIFFERENT MEANING THAN THAT OTHERWISE ACCORDED SUCH TERM AS USED ELSEWHERE IN TITLE 5. A LIVING QUARTERS ALLOWANCE IS NOT PROVIDED FOR IN THOSE SECTIONS OF TITLE 5 RELATING TO PAY. RATHER THE BENEFITS PROVIDED UNDER 5 U.S.C. 5923 CONSTITUTE ALLOWANCES AS DISTINGUISHED FROM PAY. YOUR ATTENTION ALSO IS INVITED TO H.R. 7363, 91ST CONGRESS WHICH, AMONG OTHER THINGS, WOULD AUTHORIZE THE WAIVER OF THE CLAIMS OF THE GOVERNMENT AGAINST CIVILIAN EMPLOYEES OF THE MILITARY DEPARTMENTS AND THE COAST GUARD WHO HAVE RECEIVED ERRONEOUS PAYMENTS OF PAY OR ALLOWANCES.

THUS, THE BETTER VIEW, IN OUR OPINION, IS THAT ERRONEOUS PAYMENTS OF LIVING QUARTERS ALLOWANCES DO NOT CONSTITUTE ERRONEOUS PAYMENTS OF PAY AND MAY NOT BE WAIVED UNDER THE AUTHORITY OF PUBLIC LAW 90-616 AND THE IMPLEMENTING STANDARDS FOR WAIVER. THE QUESTION PRESENTED IS ANSWERED ACCORDINGLY.