B-139888, JUL. 9, 1959

B-139888: Jul 9, 1959

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BANKS WAS SEPARATED FROM THE SERVICE MAY 29. YOUR DOUBT IN THE MATTER ARISES WHETHER THE UNITED STATES IS LEGALLY OBLIGATED TO PAY FOR THE EXCESS SERVICES RENDERED BY MR. BANKS WHICH YOU SAY WERE SATISFACTORILY PERFORMED IN GOOD FAITH. THE GOVERNMENT RECEIVED BENEFIT FOR SUCH SERVICES IN AN AREA WHERE THERE WAS A CRITICAL SHORTAGE OF QUALIFIED PERSONNEL. WERE NOT RENDERED PURSUANT TO AN ADMINISTRATIVE EXTENSION OF THE APPOINTMENT BEYOND 130 WORKING DAYS IN A SERVICE YEAR. NOR IS THERE ANY EVIDENCE THAT MR. BANKS' EXCESS SERVICES WERE REQUESTED BY AN OFFICER AUTHORIZED TO CONTRACT FOR YOUR AGENCY OR ITS PREDECESSOR. WHICH TOGETHER WITH RELATED PAPERS IS RETURNED.

B-139888, JUL. 9, 1959

TO MRS. DOROTHY V. HUFF:

YOUR LETTER OF JUNE 8, 1959, WITH ENCLOSURES, REQUESTS OUR DECISION CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT A TRANSMITTED PAYROLL VOUCHER FOR $95.93 IN FAVOR OF MR. GARY F. BANKS FOR SERVICES PERFORMED IN EXCESS OF THE LIMITATION IN THE EMPLOYMENT AGREEMENT OF 130 DAYS OF SERVICE OR $1,270 IN A SERVICE YEAR.

THE RECORD SHOWS THAT THROUGH AN ADMINISTRATIVE OVERSIGHT THIS EMPLOYEE PERFORMED SERVICES IN EXCESS OF THE MAXIMUM HOURS OR AGGREGATE EARNINGS GRANTED IN AN EXCEPTED APPOINTMENT WITH THE CIVIL AERONAUTICS ADMINISTRATION, A PREDECESSOR AGENCY OF THE FEDERAL AVIATION AGENCY, AND RECEIVED AN AGGREGATE OF $1,819.88 THROUGH THE PAY PERIOD ENDED MAY 2, 1959. HE ALSO PERFORMED ADDITIONAL SERVICES OF 53 HOURS DURING THE PERIOD FROM MAY 5 TO MAY 28, 1959, FOR WHICH PAYMENT OF $95.93 HAS NOT BEEN MADE. MR. BANKS WAS SEPARATED FROM THE SERVICE MAY 29, 1959. YOUR DOUBT IN THE MATTER ARISES WHETHER THE UNITED STATES IS LEGALLY OBLIGATED TO PAY FOR THE EXCESS SERVICES RENDERED BY MR. BANKS WHICH YOU SAY WERE SATISFACTORILY PERFORMED IN GOOD FAITH, AND THE GOVERNMENT RECEIVED BENEFIT FOR SUCH SERVICES IN AN AREA WHERE THERE WAS A CRITICAL SHORTAGE OF QUALIFIED PERSONNEL.

THE RECORD SHOWS THAT THE EXCESS SERVICES PERFORMED RESULTED FROM AND ADMINISTRATIVE OVERSIGHT BY OMITTING PROPER CONTROLS ON THE PAYROLL RECORD, AND WERE NOT RENDERED PURSUANT TO AN ADMINISTRATIVE EXTENSION OF THE APPOINTMENT BEYOND 130 WORKING DAYS IN A SERVICE YEAR, NOR IS THERE ANY EVIDENCE THAT MR. BANKS' EXCESS SERVICES WERE REQUESTED BY AN OFFICER AUTHORIZED TO CONTRACT FOR YOUR AGENCY OR ITS PREDECESSOR.

THEREFORE, ON THE PRESENT RECORD MR. BANKS MUST BE CONSIDERED A DE FACTO EMPLOYEE AFTER THE EXPIRATION OF HIS 130-DAY APPOINTMENT, AND FOLLOWING THE ESTABLISHED RULE, HE WOULD BE ENTITLED TO RETAIN THE SALARY ALREADY RECEIVED BUT WOULD NOT BE ENTITLED TO BE PAID ANY AMOUNT IN ADDITION THERETO. SEE 28 COMP. GEN. 514.

THE VOUCHER, WHICH TOGETHER WITH RELATED PAPERS IS RETURNED, MAY NOT BE CERTIFIED FOR PAYMENT.