B-149065, JUN. 26, 1962
Highlights
IT APPEARS THAT YOU WERE EMPLOYED ON JUNE 12. THE APPOINTMENT WAS MADE UNDER AUTHORITY OF SCHEDULE A. CIVIL SERVICE REGULATIONS SECTION 6.101 (S) (FEDERAL PERSONNEL MANUAL Z1-240) AND WAS LIMITED TO 130 WORKING DAYS AND $1. YOU HAVE BEEN PAID $1. YOU SAY YOU COMPLIED WITH THE ORDER TO WORK A SEVENTY-HOUR WEEK AND THAT YOU WERE "NOT IN CHARGE OF KEEPING TRACK OF THE HOURS" YOU WORKED AND SHOULD NOT BE PENALIZED FOR THE OVERSIGHT OF YOUR SUPERVISORS AND FINALLY THAT OUR SETTLEMENT JUSTIFIED YOUR RETENTION OF THE $3.10 ALREADY PAID TO YOU IN EXCESS OF THE LIMITATION ON YOUR EARNINGS AND COULD JUSTIFY PAYMENT TO YOU OF THE AMOUNT HERE CLAIMED. THE PERTINENT PART OF THE REGULATION WHICH GOVERNED YOUR APPOINTMENT WAS QUOTED IN OUR SETTLEMENT AND IT NEED NOT BE REPEATED HERE.
B-149065, JUN. 26, 1962
TO MR. ARNOLD GUTMAN:
ON MAY 16, 1962, YOU REQUESTED REVIEW OF OUR SETTLEMENT DATED FEBRUARY 2, 1962, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION INCIDENT TO YOUR SERVICES WITH THE DEPARTMENT OF THE NAVY.
IT APPEARS THAT YOU WERE EMPLOYED ON JUNE 12, 1961, UNDER AN EXCEPTED APPOINTMENT NOT TO EXCEED SEPTEMBER 30, 1961, AS A PHYSICAL SCIENCE TECHNICIAN, GS-5, STEP 1, AT $4,345 PER ANNUM. THE APPOINTMENT WAS MADE UNDER AUTHORITY OF SCHEDULE A, CIVIL SERVICE REGULATIONS SECTION 6.101 (S) (FEDERAL PERSONNEL MANUAL Z1-240) AND WAS LIMITED TO 130 WORKING DAYS AND $1,448.33 IN COMPENSATION, SUCH AMOUNT BEING 33 1/3 PERCENT OF THE ANNUAL SALARY. IT FURTHER APPEARS THAT BY WORKING OVERTIME YOU EXCEEDED THE MAXIMUM EARNINGS PERMITTED BY YOUR APPOINTMENT. YOU HAVE BEEN PAID $1,451.43 OR $3.10 IN EXCESS OF THE LIMITATION SO FIXED AND YOU CLAIM AN ADDITIONAL SUM REPRESENTING OVERTIME AND HOLIDAY PAY.
YOU SAY YOU COMPLIED WITH THE ORDER TO WORK A SEVENTY-HOUR WEEK AND THAT YOU WERE "NOT IN CHARGE OF KEEPING TRACK OF THE HOURS" YOU WORKED AND SHOULD NOT BE PENALIZED FOR THE OVERSIGHT OF YOUR SUPERVISORS AND FINALLY THAT OUR SETTLEMENT JUSTIFIED YOUR RETENTION OF THE $3.10 ALREADY PAID TO YOU IN EXCESS OF THE LIMITATION ON YOUR EARNINGS AND COULD JUSTIFY PAYMENT TO YOU OF THE AMOUNT HERE CLAIMED.
THE PERTINENT PART OF THE REGULATION WHICH GOVERNED YOUR APPOINTMENT WAS QUOTED IN OUR SETTLEMENT AND IT NEED NOT BE REPEATED HERE.
YOURS WAS AN EXCEPTED APPOINTMENT MADE IN STRICT CONFORMITY WITH THE APPLICABLE REGULATIONS. THE LIMITATIONS AS TO TIME AND MAXIMUM EARNINGS WERE CLEARLY DEFINED. APPARENTLY, YOU DO NOT CONTEND THAT YOU WERE UNAWARE OF THEM. OVERTIME WAS NOT PROHIBITED BUT UNDER THE APPOINTMENT YOUR TERM OF EMPLOYMENT WOULD EXPIRE ON SEPTEMBER 30, 1961, OR EARLIER IF YOU REACHED THE MAXIMUM COMPENSATION SPECIFIED BEFORE THAT DATE. YOUR SUPERVISOR COULD NOT BY DIRECT ACTION OR INADVERTENCE DEPART FROM THE REGULATIONS SO AS TO INCREASE OR EXPAND YOUR RIGHTS UNDER THE APPOINTMENT NOR COULD YOU DO SO BY CONTINUING TO RENDER SERVICE IN A POSITION WHICH LEGALLY YOU NO LONGER OCCUPIED. HOWEVER, WHEN SUCH ADDITIONAL SERVICE IS RENDERED WITHOUT BAD FAITH OR FRAUD EITHER ON THE PART OF THE EMPLOYEE OR THE ADMINISTRATIVE OFFICIALS, THE EMPLOYEE IS CONSIDERED AS HAVING SERVED IN A DE FACTO STATUS, AND UNDER A RULE OF LONG STANDING SUCH EMPLOYEE IS PERMITTED TO RETAIN COMPENSATION RECEIVED BY HIM PRIOR TO THE TIME THE ERROR IS DIRECTED TO THE ATTENTION OF THE ADMINISTRATIVE OFFICIALS BUT NO PAYMENT MAY BE MADE TO HIM FOR THE UNPAID SERVICES. 28 COMP. GEN. 514. UNDER THAT RULE YOU WERE PERMITTED TO RETAIN THE EXCESS PAYMENT OF $3.10 MADE TO YOU PRIOR TO THE DISCOVERY OF THE ERROR, BUT PAYMENT OF THE ADDITIONAL AMOUNT NOW CLAIMED WOULD CONSTITUTE A DELIBERATE CONTINUATION OF THE ERROR AND, THEREFORE, WOULD BE ILLEGAL.
UPON REVIEW, THE SETTLEMENT OF FEBRUARY 2, 1962, WHICH DISALLOWED YOUR CLAIM IS SUSTAINED.