B-149140, SEP. 5, 1962

B-149140: Sep 5, 1962

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IT APPEARS FROM THE ASSISTANT SECRETARY'S LETTER THAT IT WAS NECESSARY AS A RESULT OF A CLASSIFICATION AUDIT TO DEMOTE ABOUT 30 JANITORIAL TYPE WAGE BOARD EMPLOYEES. THE SAVED RATES WERE CONTINUED FOR 4 PAY PERIODS BEYOND FEBRUARY 21. WHEN ADJUSTMENT TO THE LOWER RATES FOR THE APPROPRIATE CLASSIFICATIONS SHOULD HAVE BEEN MADE. THE ASSISTANT SECRETARY SAYS THAT IT WOULD BE A HARDSHIP FOR THIS GROUP OF LOW-PAID EMPLOYEES TO MAKE REFUND IN A SITUATION WHERE THERE WAS NO FAULT ON THEIR PART AND. IT IS DESIRED TO WAIVE THE 2-YEAR LIMITATION CONTAINED IN THE ADMINISTRATIVE REGULATIONS AS TO THE AMOUNTS ALREADY PAID. WHILE THERE IS PRESENTED BY THE ASSISTANT SECRETARY'S LETTER THE BROADER QUESTION OF WHETHER AN ADMINISTRATIVE REGULATION MAY BE RETROACTIVELY WAIVED.

B-149140, SEP. 5, 1962

TO THE SECRETARY OF AGRICULTURE:

ON JUNE 11, 1962, THE ADMINISTRATIVE ASSISTANT SECRETARY REQUESTED OUR DECISION CONCERNING THE ,WAIVER" OF THE PROVISIONS OF YOUR DEPARTMENT'S REGULATIONS CONFERRING A 2-YEAR "SAVED PAY" RIGHT UPON WAGE BOARD EMPLOYEES UNDER CERTAIN CIRCUMSTANCES.

IT APPEARS FROM THE ASSISTANT SECRETARY'S LETTER THAT IT WAS NECESSARY AS A RESULT OF A CLASSIFICATION AUDIT TO DEMOTE ABOUT 30 JANITORIAL TYPE WAGE BOARD EMPLOYEES, EFFECTIVE FEBRUARY 21, 1960. YOUR REGULATIONS (8 AR 217E) ISSUED AS A RESULT OF OUR DECISION OF MAY 3, 1955, 34 COMP. GEN. 563, PROVIDE FOR SAVING THE FORMER RATE OF PAY FOR A PERIOD OF 2 YEARS UNDER SPECIFIED CONDITIONS. THROUGH ADMINISTRATIVE ERROR, THE SAVED RATES WERE CONTINUED FOR 4 PAY PERIODS BEYOND FEBRUARY 21, 1962, WHEN ADJUSTMENT TO THE LOWER RATES FOR THE APPROPRIATE CLASSIFICATIONS SHOULD HAVE BEEN MADE, RESULTING IN OVERPAYMENTS OF APPROXIMATELY $40 PER EMPLOYEE.

THE ASSISTANT SECRETARY SAYS THAT IT WOULD BE A HARDSHIP FOR THIS GROUP OF LOW-PAID EMPLOYEES TO MAKE REFUND IN A SITUATION WHERE THERE WAS NO FAULT ON THEIR PART AND, THEREFORE, IT IS DESIRED TO WAIVE THE 2-YEAR LIMITATION CONTAINED IN THE ADMINISTRATIVE REGULATIONS AS TO THE AMOUNTS ALREADY PAID.

WHILE THERE IS PRESENTED BY THE ASSISTANT SECRETARY'S LETTER THE BROADER QUESTION OF WHETHER AN ADMINISTRATIVE REGULATION MAY BE RETROACTIVELY WAIVED, WE ARE OF THE VIEW THAT THE PRECISE ISSUE HERE IS WHETHER RECOVERY OF WHAT NOW ARE ILLEGAL PAYMENTS MAY BE WAIVED.

DOUBTLESS YOU ARE AWARE THAT UNDER EXISTING LAW NEITHER THE DEPARTMENT NOR OUR OFFICE HAS AUTHORITY TO WAIVE OVERPAYMENTS OF THE NATURE HERE CONCERNED. HOWEVER, WE DIRECT YOUR ATTENTION TO H.R. 4131, 87TH CONGRESS, WHICH HAS PASSED THE HOUSE OF REPRESENTATIVES AND WHICH, WE UNDERSTAND, IS NOW BEING CONSIDERED BY THE JUDICIARY COMMITTEE OF THE SENATE. THAT BILL, IF ENACTED INTO LAW AS IT PASSED THE HOUSE, WOULD BE RETROSPECTIVE IN COVERAGE AND MIGHT AUTHORIZE WAIVER OF THE INDEBTEDNESSES TO WHICH THE ASSISTANT SECRETARY'S LETTER REFERS.

THEREFORE, WE WILL NOT INTERPOSE AN OBJECTION TO WITHHOLDING COLLECTION PROCEEDINGS PENDING THE TERMINATION OF THIS SESSION OF THE CONGRESS, PROVIDED THAT IF H.R. 4131 OR A SIMILAR BILL IS NOT ENACTED INTO LAW DURING THIS SESSION, PROMPT STEPS THEN WILL BE TAKEN TO EFFECT RECOVERY OF THE OVERPAYMENT BY INSTALLMENTS OR OTHERWISE.