B-130016, JAN. 28, 1957

B-130016, JAN. 28, 1957

TO SECRETARY OF THE AIR FORCE:

ON DECEMBER 4, 1956, THE ASSISTANT SECRETARY OF THE AIR FORCE TRANSMITTED HERE FOR OUR CONSIDERATION A COPY OF A LETTER FROM THE HONORABLE FRANK W. BOYKIN, HOUSE OF REPRESENTATIVES, AND COPIES OF OTHER CORRESPONDENCE, REGARDING IMPROPER SALARY RATES GRANTED CIVIL EMPLOYEES OF THE MOBILE AIR MATERIEL AREA UPON CONVERSION OF THEIR POSITIONS FROM WAGE BOARD RATES TO CLASSIFICATION ACT GRADES.

THE ASSISTANT SECRETARY'S LETTER RELATES THAT UNDER A POLICY IN EFFECT IN THAT AREA FOR A NUMBER OF YEARS, IT HAS BEEN THE PRACTICE WHEN CONVERTING EMPLOYEES WITH THEIR POSITIONS FROM THE WAGE BOARD SYSTEM TO GENERAL SCHEDULE GRADES UNDER THE CLASSIFICATION ACT OF 1949, TO PLACE THEM IN A GRADE STEP WHICH WOULD GRANT THEM AN EQUIVALENT INCREASE IN COMPENSATION. IT IS SAID THAT THIS POLICY WAS ADOPTED TO PROVIDE THESE EMPLOYEES THE SAME PAY BENEFITS UPON PROMOTION AS THOSE PROVIDED BY SECTION 25.104 (A) OF THE FEDERAL EMPLOYEES PAY REGULATIONS ISSUED BY THE CIVIL SERVICE COMMISSION UNDER AUTHORITY OF SECTION 802 (A) OF THE CLASSIFICATION ACT OF 1949.

THE LETTER OF THE ASSISTANT SECRETARY FURTHER STATES THAT THE OVERPAYMENTS RESULTED FROM AN HONEST MISTAKE ON THE PART OF THE AIR FORCE ADMINISTRATIVE PERSONNEL IN AUDITING THE STATUTE AND REGULATIONS AND THAT THE EMPLOYEES RECEIVED SUCH PAYMENTS IN GOOD FAITH. ALSO, IT POINTS OUT THAT COLLECTION OF THE OVERPAYMENT, RANGING IN AMOUNTS FROM $14 TO $892, WOULD ADVERSELY AFFECT THE MORALE OF THE 56 EMPLOYEES CONCERNED.

IN LIGHT OF THE FOREGOING THE FOLLOWING QUESTIONS WERE PRESENTED BY THE LETTER:

"/1) MUST CORRECTIVE ACTION NOW BE TAKEN TO ESTABLISH THE PAY OF THESE EMPLOYEES AT A RATE NOT IN EXCESS OF THE RATE AUTHORIZED BY THE FEDERAL EMPLOYEES PAY REGULATIONS?

"/2) IF SO, MUST THE CORRECTIVE ACTION BE RETROACTIVE TO THE DATE OF THE PROMOTION FROM THE WAGE BOARD TO THE CLASSIFICATION ACT POSITION?

"/3) IF SO, MUST ACTION BE TAKEN TO COLLECT THE OVERPAYMENT MADE AS A RESULT OF THIS ERROR?

IN AN AUDIT OPERATION THE FIRST EXCEPTION WAS TAKEN TO THE ILLEGAL PROCEDURE ON JULY 11, 1955, BY OUR DAYTON REGIONAL OFFICE IN THE CASE OF GERALD E. HARDMAN WHICH RESULTED IN THE RECOVERY OF $92.28. LATER, IT WAS DISCLOSED BY AUDIT IN OTHER REGIONAL OFFICES THAT MR. HARDMAN'S CLAIM WAS NOT AN ISOLATED CASE AND AS A CONSEQUENCE THE SITUATION WAS BROUGHT TO THE DEPARTMENT'S ATTENTION BY OUR LETTER OF APRIL 17, 1956, TO DIRECTOR OF CIVILIAN PERSONNEL. HOWEVER, THE PRACTICE APPARENTLY CONTINUED UNTIL AS LATE AS NOVEMBER 1956.

REGARDING THE LAW AND REGULATION CONTROLLING, WE ARE IN CONCURRENCE THAT PAY INCREASES OF THE NATURE HERE CONSIDERED ARE NOT AUTHORIZED BY SECTION 25.104 (A) OF THE FEDERAL EMPLOYEES PAY REGULATIONS. RATHER, THEY ARE GOVERNED BY THE CLEAR PROVISIONS OF SECTION 25.103 (D) WHICH WERE ISSUED BY THE COMMISSION UNDER EXPRESS AUTHORITY GRANTED THAT AGENCY BY SECTION 802 (A) OF THE CLASSIFICATION ACT OF 1949, TO REGULATE IN REGARD TO THE BASIC COMPENSATION TO BE RECEIVED BY ANY OFFICER OR EMPLOYEE WHEN HE IS TRANSFERRED FROM A POSITION TO WHICH THE CLASSIFICATION ACT DOES NOT APPLY.

SINCE SUCH REGULATIONS HAVE THE FORCE AND EFFECT OF POSITIVE LAW, WE DO NOT HAVE THE AUTHORITY TO WAIVE OVERPAYMENTS MADE IN CONTRAVENTION THEREOF AND, ACCORDINGLY, THE THREE QUESTIONS QUOTED ABOVE MUST BE ANSWERED IN THE AFFIRMATIVE.

WE RECOGNIZE, HOWEVER, THE HARDSHIPS THAT WILL RESULT TO THE EMPLOYEES CONCERNED AND SHOULD YOU DESIRE TO SEEK RELIEF LEGISLATION FOR THEM IN THIS SESSION OF THE CONGRESS AND WILL SO INFORM OUR OFFICE, WE WILL SUSPEND OUR REQUEST THAT COLLECTION BE EFFECTED UNTIL THE ADJOURNMENT OF THE CURRENT SESSION. IN THE INTERIM WE FEEL THAT THE ILLEGAL RATES SHOULD BE ADJUSTED IMMEDIATELY TO CONFORM WITH THE AUTHORIZED RATES OF COMPENSATION BEING RECEIVED BY OTHER EMPLOYEES OCCUPYING IDENTICAL POSITIONS.

WILL YOU PLEASE INFORM US OF THE COURSE OF ACTION WHICH YOU DECIDE TO FOLLOW.