B-125215, SEP. 16, 1955

B-125215: Sep 16, 1955

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THUS BE PERMITTED UNDER THE DE FACTO RULE TO RETAIN THE COMPENSATION RECEIVED BY HIM PRIOR TO THE TIME THE ERROR WAS DISCOVERED AND CORRECTED. THE FACTS AND CIRCUMSTANCES ARE RECITED IN THE DEPUTY ADMINISTRATOR'S LETTER AS FOLLOWS: "DR. IN ACCORDANCE WITH PROCEDURE PRESCRIBED BY ADMINISTRATIVE REGULATIONS THE APPLICATION WAS REFERRED TO THE FIELD PROFESSIONAL STANDARDS BOARD FOR REVIEW AND RATING OF QUALIFICATIONS. THE ACTION OF THE FIELD PROFESSIONAL STANDARDS BOARD IS SET FORTH ON AN ENCLOSED FORM DESCRIBED AS VA FORM 10-2543. WAS INDICATED SINCE PERTINENT ADMINISTRATIVE REGULATIONS PROVIDED THAT THE RATE OF PAY FOR A PART TIME PHYSICIAN. THE ADMINISTRATIVE REGULATIONS ALSO PROVIDE THAT THE MANAGER OF THE VETERANS ADMINISTRATION INSTALLATION MAY ONLY SELECT THOSE PHYSICIANS FOR APPOINTMENT WHOSE QUALIFICATIONS HAVE BEEN APPROVED AND WHO HAVE BEEN RECOMMENDED FOR APPOINTMENT BY THE FIELD PROFESSIONAL STANDARDS BOARD.

B-125215, SEP. 16, 1955

TO HONORABLE N. V. HIGLEY, ADMINISTRATOR, VETERANS ADMINISTRATION:

IN LETTER OF AUGUST 16, 1955, THE DEPUTY ADMINISTRATOR REQUESTS OUR DECISION WHETHER, UNDER THE FACTS AND CIRCUMSTANCES RELATED BELOW, DOCTOR KARL A. LIEFERT MAY BE REGARDED AS HAVING SERVED IN DE FACTO STATUS DURING THE PERIOD NOVEMBER 1, 1951, TO FEBRUARY 26, 1955, UNDER AN ERRONEOUS PERSONNEL ACTION, AND THUS BE PERMITTED UNDER THE DE FACTO RULE TO RETAIN THE COMPENSATION RECEIVED BY HIM PRIOR TO THE TIME THE ERROR WAS DISCOVERED AND CORRECTED.

THE FACTS AND CIRCUMSTANCES ARE RECITED IN THE DEPUTY ADMINISTRATOR'S LETTER AS FOLLOWS:

"DR. KARL A. LIEFERT APPLIED FOR APPOINTMENT TO A POSITION OF A PART-TIME PHYSICIAN IN THE DEPARTMENT OF MEDICINE AND SURGERY AT THE VETERANS ADMINISTRATION CENTER, WOOD, WISCONSIN. IN ACCORDANCE WITH PROCEDURE PRESCRIBED BY ADMINISTRATIVE REGULATIONS THE APPLICATION WAS REFERRED TO THE FIELD PROFESSIONAL STANDARDS BOARD FOR REVIEW AND RATING OF QUALIFICATIONS. THE ACTION OF THE FIELD PROFESSIONAL STANDARDS BOARD IS SET FORTH ON AN ENCLOSED FORM DESCRIBED AS VA FORM 10-2543, BOARD ACTION. THE DOCUMENT STATES THAT THE BOARD FOUND THE APPLICANT QUALIFIED FOR THE POSITION OF PHYSICIAN, NONSPECIALIST, INTERMEDIATE GRADE, AND RECOMMENDED APPOINTMENT TO A PART-TIME POSITION OF THAT GRADE AND THE THEN MINIMUM SALARY RATE OF $7,600 PER ANNUM, THE SALARY FOR A FULL-TIME POSITION OF PHYSICIAN, NON SPECIALIST, INTERMEDIATE GRADE, WAS INDICATED SINCE PERTINENT ADMINISTRATIVE REGULATIONS PROVIDED THAT THE RATE OF PAY FOR A PART TIME PHYSICIAN, NONSPECIALIST, WOULD BE BASED ON THE MINIMUM SALARY OF THE FULL-TIME POSITION OF THE GRADE TO WHICH APPOINTED AND THE AMOUNT TO BE ACTUALLY PAID DETERMINED FROM THE NUMBER OF HOURS WORKED EACH WEEK, USING THE STANDARD VA WORKWEEK OF 40 HOURS AS THE BASIS FOR THE COMPUTATION OF THE PROPORTIONATE AMOUNT OF SALARY. THE ADMINISTRATIVE REGULATIONS ALSO PROVIDE THAT THE MANAGER OF THE VETERANS ADMINISTRATION INSTALLATION MAY ONLY SELECT THOSE PHYSICIANS FOR APPOINTMENT WHOSE QUALIFICATIONS HAVE BEEN APPROVED AND WHO HAVE BEEN RECOMMENDED FOR APPOINTMENT BY THE FIELD PROFESSIONAL STANDARDS BOARD. ON THE BASIS OF SUCH BOARD RECOMMENDATION A STANDARD FORM 50, NOTIFICATION OF PERSONNEL ACTION, WAS PREPARED UNDER DATE OF NOVEMBER 1, 1951, AND APPOINTED DR. KARL A. LIEFERT AS A PART-TIME PHYSICIAN, INTERMEDIATE GRADE, EFFECTIVE NOVEMBER 1, 1951. THE SF 50 WAS SIGNED BY NORVALL O. WINNIK, ACTING PERSONNEL OFFICER, SERVING AS DESIGNATE OF THE MANAGER. IN THE PREPARATION OF THE SF 50 AN ERROR WAS COMMITTED IN THAT THE GRADE AND SALARY WAS STATED AS "INTERMEDIATE GRADE $10,200 P.A. ($5,100 P.A. NTE 1040 HOURS P.A.)" INSTEAD OF THE SALARY RATE OF $8,360 PER ANNUM ($4,180 PER ANNUM NTE 1040 HOURS PER ANNUM). THE RATE OF $8,360 PER ANNUM WAS THE NEW MINIMUM FULL-TIME RATE FOR INTERMEDIATE GRADE, NON-SPECIALIST, AFTER GIVING EFFECT TO THE SALARY INCREASE AUTHORIZED BY PUBLIC LAW 201, 82ND CONGRESS APPROVED OCTOBER 24, 1951, EFFECTIVE JULY 8, 1951. THE ERROR WAS DISCOVERED DURING MARCH 1955 AND A CORRECTING SF 50, NOTIFICATION OF PERSONNEL ACTION, WAS ISSUED UNDER DATE OF MARCH 7, 1955. THE OVERPAYMENT RESULTING FROM THE ERROR IS DETAILED ON THE SCHEDULE ENCLOSED, AMOUNTS TO $3,531.63, AND COVERS THE PERIOD OF NOVEMBER 1, 1951 THROUGH FEBRUARY 26, 1955.'

THE GRANTING OF MEDICAL OR SURGICAL SPECIALIST RATINGS TO DOCTORS APPOINTED IN ACCORDANCE WITH THE ACT OF JANUARY 3, 1946, 59 STAT. 675, IS GOVERNED BY THE PROVISIONS OF SECTION 8 OF THAT ACT, 59 STAT. 677, READING AS FOLLOWS:

"SEC. 8. (A) WITHIN THE RESTRICTIONS HEREIN IMPOSED, THE CHIEF MEDICAL DIRECTOR MAY RATE ANY DOCTOR APPOINTED UNDER SUBSECTION (A) OF SECTION 4 OF THIS ACT AS A MEDICAL OR SURGICAL SPECIALIST: PROVIDED, THAT NO PERSON SHALL AT ANY ONE TIME HOLD MORE THAN ONE SUCH RATING.

"/B) NO PERSON MAY BE RATED AS A MEDICAL OR SURGICAL SPECIALIST UNLESS HE IS CERTIFIED AS A SPECIALIST BY AN AMERICAN SPECIALTY BOARD, RECOGNIZED BY THE ADMINISTRATOR WHERE SUCH BOARDS EXIST; OR IF NO SUCH BOARDS EXIST, HE HAS BEEN EXAMINED AND FOUND QUALIFIED BY A BOARD APPOINTED BY THE CHIEF MEDICAL DIRECTOR FROM SPECIALISTS OF THE DEPARTMENT OF MEDICINE AND SURGERY HOLDING RATINGS IN THE SPECIALTY TO WHICH THE CANDIDATE ASPIRES: PROVIDED, THAT, WHENEVER THERE ARE INSUFFICIENT SPECIALISTS, RATED IN THE PROPER SPECIALTY, WHO ARE READILY AVAILABLE TO CONSTITUTE SUCH A BOARD, THE CHIEF MEDICAL DIRECTOR MAY SUBSTITUTE CONSULTANTS WITH COMPARABLE QUALIFICATIONS EMPLOYED UNDER SECTION 14 OF THIS ACT.

"/C) ANY PERSON, RATED AS A MEDICAL OR SURGICAL SPECIALIST UNDER THE PROVISIONS OF THIS SECTION SHALL RETAIN SUCH RATING UNTIL IT SHALL BE WITHDRAWN BY THE CHIEF MEDICAL DIRECTOR: PROVIDED, THAT THE CHIEF MEDICAL DIRECTOR SHALL NOT WITHDRAW ANY SUCH RATING UNTIL IT SHALL HAVE BEEN DETERMINED BY A BOARD OF SPECIALISTS THAT THE PERSON HOLDING SUCH RATING IS NO LONGER QUALIFIED IN HIS SPECIALTY.

"/D) ANY PERSON, RATED AS A MEDICAL OR SURGICAL SPECIALIST UNDER THE PROVISIONS OF THIS SECTION, SHALL RECEIVE, IN ADDITION TO HIS BASIC PAY, AN ALLOWANCE EQUAL TO 25 PERCENT OF SUCH PAY: PROVIDED, THAT IN NO EVENT SHALL THE PAY PLUS THE ALLOWANCE AUTHORIZED BY THIS SUBSCRIPTION EXCEED $11,000 PER ANNUM.'

IT IS OUR VIEW, AFTER A STUDY OF THE APPLICABLE STATUTORY PROVISIONS, THE REGULATIONS OF YOUR ADMINISTRATION (VETERANS ADMINISTRATION REGULATIONS, M5-3) AND AN INFORMAL DISCUSSION WITH REPRESENTATIVES OF YOUR OFFICE, THAT THE FACT AN INDIVIDUAL QUALIFIES FOR A SPECIALIST RATING HAS NO BEARING UPON HIS ELIGIBILITY FOR APPOINTMENT. THERE IS NO DIFFERENCE BETWEEN THE GRADE OR POSITION OF A SPECIALIST AND THAT OF A NON-SPECIALIST. ALL PHYSICIANS QUALIFYING FOR SPECIALIST RATINGS ARE ENTITLED TO AN ALLOWANCE EQUAL TO 25 PERCENT OF BASIC PAY ALTHOUGH THEIR BASIC PAY ITSELF AND THEIR DUTIES AND RESPONSIBILITIES ARE NO DIFFERENT FROM THOSE OF NON-SPECIALIST PHYSICIANS ASSIGNED TO THE SAME GRADES. IT IS CLEAR THEREFORE THAT THE RIGHT TO A SPECIALIST ALLOWANCE IS DEPENDENT, NOT UPON THE POSITION HELD BY AN INDIVIDUAL, BUT SOLELY UPON HIS INDIVIDUAL PROFESSIONAL QUALIFICATIONS.

IN THE INSTANT CASE DR. LIEFERT DID NOT MEET THE STATUTORY QUALIFICATIONS FOR A SPECIALIST. YET THROUGH ADMINISTRATIVE ERROR HIS APPOINTMENT WAS PROCESSED AS A SPECIALIST AND HE WAS ERRONEOUSLY PAID THE 25 PERCENT SPECIALIST ALLOWANCE FROM NOVEMBER 1, 1951, THROUGH FEBRUARY 26, 1955. THIS DOES NOT GIVE RISE TO A DE FACTO STATUS, THAT IS, ONE WHERE THE OFFICER RENDERED SERVICES IN A POSITION FOR WHICH HE WAS NOT QUALIFIED, BUT RATHER, INVOLVES MERELY AN ERROR IN FIXING HIS RATE OF COMPENSATION FOR THE PARTICULAR POSITION. MR. LIEFERT AT ALL TIMES OCCUPIED A DE JURE OFFICE OR POSITION AND HAS RECEIVED THE COMPENSATION PERTAINING THERETO. HE ALSO WAS PAID A SPECIALIST ALLOWANCE, NOT AS PART OF THE COMPENSATION OF HIS POSITION BUT RATHER UPON THE BASIS OF SPECIAL QUALIFICATIONS OVER AND ABOVE THOSE PRESCRIBED FOR HIS POSITION. ACTUALLY, HE DID NOT POSSESS SUCH SPECIAL QUALIFICATIONS AND THEREFORE THE SPECIALIST ALLOWANCE PAYMENTS WERE IN CONTRAVENTION OF THE LAW. WE KNOW OF NO BASIS UPON WHICH THE RECOVERY OF SUCH ILLEGAL PAYMENTS MAY BE WAIVED. ACCORDINGLY, IN ACCORDANCE WITH THE HOLDING IN 31 COMP. GEN. 75, 31 ID. 177, AND 33 ID. 448, APPROPRIATE ACTION SHOULD BE TAKEN TO EFFECT RECOVERY OF THE AMOUNT OF DR. LIEFERT'S INDEBTEDNESS RESULTING FROM THE EXCESS COMPENSATION PAID HIM OVER THE INVOLVED PERIOD.