B-144806, FEB. 20, 1961

B-144806: Feb 20, 1961

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THAT BASED ON A REVIEW OF THE RANKING OF THE POSITION HE WAS NOTIFIED ON OCTOBER 16. MORRIS' POSITION WAS REDUCED TO PFS LEVEL 6. MORRIS WAS INCREASED TO $6. 310 PER ANNUM BECAUSE THROUGH ADMINISTRATIVE ERROR HE WAS GRANTED A STEP INCREASE TO PFS LEVEL 7. THIS INCREASE WOULD HAVE BEEN PROPER IF THE POSITION HAD REMAINED IN LEVEL 7. THE ERROR WAS NOT DISCOVERED UNTIL MR. MORRIS WAS ADVISED INFORMALLY BY THE POSTMASTER OF THE OVERPAYMENT ON SEPTEMBER 16. MORRIS WAS BILLED FOR A NET INDEBTEDNESS OF $616.23 BY INVOICE AND STATEMENT NO. 304. WHICH STATES THAT "HE DESIRES TO PAY $50 EACH OF FIVE PAY PERIODS AND THAT THE BALANCE IS TO BE DEDUCTED FROM HIS TERMINAL LEAVE.'. YOU SUGGEST THAT THE CASE PRESENTED IS SIMILAR TO THAT CONSIDERED BY OUR OFFICE IN B-88861.

B-144806, FEB. 20, 1961

TO AUTHORIZED CERTIFYING OFFICER, BUREAU OF FINANCE, POST OFFICE DEPARTMENT:

YOUR LETTER OF JANUARY 11, 1961, WITH ENCLOSURES, REFERENCE IR:LPA, REQUESTS OUR DECISION WHETHER CERTIFICATION FOR PAYMENT MAY BE MADE ON THE VOUCHER THEREWITH TRANSMITTED PROPOSING PAYMENT OF $1,201.76 TO MRS. KATHERINE G. MORRIS, WIDOW OF EARLE R. MORRIS, FORMER SUPERINTENDENT IN THE POST OFFICE AT FAIRMONT, WEST VIRGINIA, COVERING UNPAID COMPENSATION DUE AT THE TIME OF MR. MORRIS' DEATH.

FROM YOUR LETTER AND INFORMATION INFORMALLY OBTAINED FROM OFFICIALS OF THE POST OFFICE DEPARTMENT IT APPEARS THAT THE POSITION OF CARRIER BRANCH SUPERINTENDENT OCCUPIED BY MR. MORRIS HAD BEEN ERRONEOUSLY RANKED OR CLASSED AS POSTAL FIELD SERVICE (PFS) LEVEL 7, AND THAT BASED ON A REVIEW OF THE RANKING OF THE POSITION HE WAS NOTIFIED ON OCTOBER 16, 1958, THAT HIS POSITION WOULD BE REDUCED FROM PFS LEVEL 7 TO PFS LEVEL 6. APPEALED TO THE DEPARTMENT ON OCTOBER 26, 1958, AND AFTER REVIEW THE REGIONAL PERSONNEL MANAGER, WASHINGTON REGIONAL OFFICE, INSTRUCTED THE POSTMASTER TO PROCEED WITH THE REDUCTION. BY POD FORM 50, DATED NOVEMBER 13, 1958, MR. MORRIS' POSITION WAS REDUCED TO PFS LEVEL 6, STEP 7C, SALARY $5,850 PER ANNUM, EFFECTIVE NOVEMBER 15, 1958, FOR AN EMPLOYEE WITH OVER 25 YEARS' SERVICE.

EFFECTIVE NOVEMBER 29, 1958, THE SALARY OF MR. MORRIS WAS INCREASED TO $6,310 PER ANNUM BECAUSE THROUGH ADMINISTRATIVE ERROR HE WAS GRANTED A STEP INCREASE TO PFS LEVEL 7, STEP 7C. THIS INCREASE WOULD HAVE BEEN PROPER IF THE POSITION HAD REMAINED IN LEVEL 7. THE ERROR WAS NOT DISCOVERED UNTIL MR. MORRIS APPLIED FOR RETIREMENT TO BE EFFECTIVE SEPTEMBER 30, 1960. THE RECORD SHOWS THAT MR. MORRIS WAS ADVISED INFORMALLY BY THE POSTMASTER OF THE OVERPAYMENT ON SEPTEMBER 16, 1960. WITHDREW HIS APPLICATION FOR RETIREMENT, AND APPLIED FOR UNUSED SICK LEAVE TO HIS CREDIT. MR. MORRIS WAS BILLED FOR A NET INDEBTEDNESS OF $616.23 BY INVOICE AND STATEMENT NO. 304, DATED SEPTEMBER 29, 1960, WHICH STATES THAT "HE DESIRES TO PAY $50 EACH OF FIVE PAY PERIODS AND THAT THE BALANCE IS TO BE DEDUCTED FROM HIS TERMINAL LEAVE.' AT THE DATE OF HIS DEATH ON OCTOBER 9, 1960, ONLY ONE DEDUCTION OF $50 HAD BEEN MADE.

YOU SUGGEST THAT THE CASE PRESENTED IS SIMILAR TO THAT CONSIDERED BY OUR OFFICE IN B-88861, DATED SEPTEMBER 21, 1949. THAT DECISION INVOLVED A POSTAL CLERK WHO WAS ERRONEOUSLY ASSIGNED TO AND PERFORMED THE DUTIES OF SUPERINTENDENT OF MAILS, WE HELD THAT BECAUSE THE EMPLOYEE PERFORMED THE DUTIES OF SUPERINTENDENT OF MAILS DURING THE PERIOD INVOLVED HE OCCUPIED THE STATUS OF A DE FACTO EMPLOYEE AND WAS ENTITLED TO RETAIN THE SALARY PAID TO HIM PRIOR TO THE TIME THE ERROR WAS DIRECTED TO THE ATTENTION OF THE ADMINISTRATIVE OFFICIALS.

THE INSTANT CASE, HOWEVER, DOES NOT INVOLVE THE QUESTION OF ASSIGNMENT TO ANOTHER POSITION. RATHER IT INVOLVES ADMINISTRATIVE ERROR IN PAYING AN EMPLOYEE A SALARY IN EXCESS OF THE APPROPRIATE OF THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955, 69 STAT. 89 (39 U.S.C. 3501). THEREFORE, MR. MORRIS CANNOT BE CONSIDERED A DE FACTO EMPLOYEE.

CONCERNING MR. MORRIS' RIGHT TO APPEAL THE ACTION OF THE POST OFFICE DEPARTMENT IN REDUCING HIS POSITION FROM PFS-7 TO PFS-6, SECTIONS 201 AND 202 OF THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955 AUTHORIZED THE POSTMASTER GENERAL TO ASSIGN EACH POSITION TO ITS APPROPRIATE SALARY LEVEL IN THE POSTAL FIELD SERVICE SCHEDULE, SUBJECT TO APPEAL BY EMPLOYEES AT ANY TIME TO THE UNITED STATES CIVIL SERVICE COMMISSION. SEE 39 U.S.C. 3501 AND 3502. THERE IS NOTHING OF RECORD TO SHOW THAT MR. MORRIS EXERCISED HIS RIGHT TO APPEAL TO THE CIVIL SERVICE COMMISSION EITHER AT THE TIME HIS POSITION WAS REDUCED IN GRADE IN 1958 OR WHEN NOTIFIED OF THE OVERPAYMENT IN 1960.

IN THE CIRCUMSTANCE, OUR OFFICE HAS NO AUTHORITY TO WAIVE COLLECTION OF THE AMOUNT OF OVERPAYMENT WHICH CONSTITUTES A VALID DEBT AGAINST THE EMPLOYEE. SEE 38 COMP. GEN. 128. HENCE, THE VOUCHER, RETURNED HEREWITH, MAY NOT BE CERTIFIED FOR PAYMENT IN ITS PRESENT FORM.