B-158370, FEB. 7, 1966, 45 COMP. GEN. 482

B-158370: Feb 7, 1966

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OFFICERS AND EMPLOYEES - DE FACTO - LAWFUL POSITION EMPLOYEES WHO ARE APPOINTED OR PROMOTED TO POSITIONS WHICH HAVE NOT BEEN AUTHORIZED OR ESTABLISHED AND THEREFORE DO NOT EXIST MAY NOT BE REGARDED AS IN A DE FACTO STATUS WHICH ARISES BY REASON OF ERRONEOUS APPOINTMENTS TO EXISTING POSITIONS AND. 1966: THIS IS IN REPLY TO YOUR LETTER OF JANUARY 18. YOUR LETTER IS QUOTED IN PART AS FOLLOWS: ON JULY 31. IT WAS DISCOVERED THAT THE POSITION OF ASSISTANT TO THE POSTMASTER HAD NOT BEEN AUTHORIZED AND THAT THE ESTABLISHED CRITERIA FOR ESTABLISHING SUCH A POSITION HAD NOT BEEN MET. THE PROMOTION WAS CANCELLED ON SEPTEMBER 8. TAYLOR WAS REQUESTED TO REFUND $391.69. THE DIFFERENCE BETWEEN THE AMOUNT PAID HIM AT LEVEL 5 AND THE AMOUNT HE SHOULD HAVE BEEN PAID AT LEVEL 4.

B-158370, FEB. 7, 1966, 45 COMP. GEN. 482

OFFICERS AND EMPLOYEES - DE FACTO - LAWFUL POSITION EMPLOYEES WHO ARE APPOINTED OR PROMOTED TO POSITIONS WHICH HAVE NOT BEEN AUTHORIZED OR ESTABLISHED AND THEREFORE DO NOT EXIST MAY NOT BE REGARDED AS IN A DE FACTO STATUS WHICH ARISES BY REASON OF ERRONEOUS APPOINTMENTS TO EXISTING POSITIONS AND, THEREFORE, SUCH EMPLOYEES MAY NOT RETAIN THE COMPENSATION RECEIVED PRIOR TO DISCOVERY THAT AN APPOINTMENT TO A NONEXISTING POSITION HAD BEEN MADE.

TO THE POSTMASTER GENERAL, FEBRUARY 7, 1966:

THIS IS IN REPLY TO YOUR LETTER OF JANUARY 18, 1966, REQUESTING A DECISION AS TO THE LIABILITY OF MR. WALTER W. TAYLOR AND OTHER EMPLOYEES FOR REFUND OF COMPENSATION ARISING OUT OF ERRONEOUS PERSONNEL ACTIONS.

YOUR LETTER IS QUOTED IN PART AS FOLLOWS:

ON JULY 31, 1964, THE POSTMASTER PREPARED A POD FORM 50, PROMOTING MR. TAYLOR FROM LEVEL 4 CLERK TO LEVEL 5 ASSISTANT TO THE POSTMASTER, EFFECTIVE AUGUST 15, 1964. DURING THE ANNUAL REVIEW OF POSITIONS, IT WAS DISCOVERED THAT THE POSITION OF ASSISTANT TO THE POSTMASTER HAD NOT BEEN AUTHORIZED AND THAT THE ESTABLISHED CRITERIA FOR ESTABLISHING SUCH A POSITION HAD NOT BEEN MET. THE PROMOTION WAS CANCELLED ON SEPTEMBER 8, 1965, AND MR. TAYLOR WAS REQUESTED TO REFUND $391.69, THE DIFFERENCE BETWEEN THE AMOUNT PAID HIM AT LEVEL 5 AND THE AMOUNT HE SHOULD HAVE BEEN PAID AT LEVEL 4.

MR. TAYLOR BELIEVES THAT HE SHOULD NOT BE REQUIRED TO REFUND THE AMOUNT PAID HIM AT LEVEL 5, SINCE HE PERFORMED THE DUTIES REQUIRED OF HIM AND HE HAD NO KNOWLEDGE THAT THE POSTMASTER HAD NOT FOLLOWED THE PROPER PROCEDURE IN PROCESSING HIS PROMOTION.

OUR ATTENTION HAS BEEN CALLED TO YOUR DECISIONS B-82805, DATED MARCH 14, 1949, AND B-88861, DATED SEPTEMBER 21, 1949, WHEREIN IT WAS HELD THAT WHERE ADMINISTRATIVE PERSONNEL ACTIONS ARE FOUND AFTER A SUBSTANTIAL PERIOD OF TIME TO BE ERRONEOUS UPON POST AUDIT BUT NOT DUE TO BAD FAITH OR FRAUD, EITHER ON THE PART OF THE EMPLOYEE OR THE ADMINISTRATIVE OFFICIALS, THE EMPLOYEE PROPERLY MAY BE CONSIDERED AS SERVING IN A DE FACTO STATUS UNDER THE UNAUTHORIZED PERSONNEL ACTION AND MAY BE PERMITTED TO RETAIN COMPENSATION RECEIVED PRIOR TO THE TIME THE ERROR WAS BROUGHT TO THE ATTENTION OF THE ADMINISTRATIVE OFFICIALS. UNDER THE CIRCUMSTANCES, IN THIS CASE WOULD MR. TAYLOR BE REQUIRED TO REFUND THE AMOUNT PAID HIM AT LEVEL 5?

IN THE INSTANT CASE THE EMPLOYEE WAS APPOINTED TO A POSITION THAT HAD NOT BEEN AUTHORIZED AND THE REQUISITE CRITERIA FOR WHICH HAD NOT BEEN ESTABLISHED. THE POSITION, THEREFORE, DID NOT EXIST AND HIS APPOINTMENT TO IT WAS WITHOUT LEGAL EFFECT. WHILE AN EMPLOYEE UNDER A COLOR OF AUTHORITY MAY OCCUPY AN EXISTING LEGAL POSITION AND THUS ACHIEVE A DE FACTO STATUS THERE CAN BE NO DE FACTO STATUS IF THE POSITION WHICH HE PURPORTEDLY OCCUPIES DOES NOT LEGALLY EXIST.

IN A CASE INVOLVING THE ILLEGAL APPOINTMENT OF A NAVY MAIL CLERK SERVING IN THE MARINE DETACHMENT IN PEKING, CHINA, THIS OFFICE DETERMINED THAT:

THE STATUS OF CLAIMANT WAS NOT THAT OF A DE FACTO MAIL CLERK FOR THE REASON THAT THERE CAN BE NO OFFICER--- EITHER DE JURE OR DE FACTO-- IF THERE BE NO OFFICE TO FILL, THE INDISPENSABLE BASIS FOR A DE FACTO OFFICER BEING A DE JURE OFFICE. 23 COMP. DEC., 320; NORTON V. SHELBY CO., 118 S., 425; AND MCCLAUGHRY V. DEMING, 186 U.S., 49, 64.

SEE 3 COMP. GEN. 647.

IN OUR DECISION DATED MARCH 14, 1949, 28 COMP. GEN. 514, CITED IN YOUR LETTER, IT WAS DETERMINED THAT UPON POST AUDIT BY THE CIVIL SERVICE COMMISSION OF ERRONEOUS BUT BONA FIDE APPOINTMENTS TO EXISTING POSITIONS NO REPAYMENT OF COMPENSATION WOULD BE REQUIRED. IN THE INSTANT CASE MR. TAYLOR WAS NOT APPOINTED TO AN EXISTING POSITION.

THE DECISION SET FORTH IN B-88861, DATED SEPTEMBER 21, 1949, TO WHICH YOU REFER, INVOLVES THE QUESTION OF LIABILITY FOR OVERPAYMENT OF COMPENSATION ON THE PART OF THE SUPERINTENDENT OF MAILS AT WALNUT CREEK, CALIFORNIA. IN THAT CASE THE POSITION HAD BEEN AUTHORIZED BY THE DEPARTMENT BUT THE POSTMASTER AT WALNUT CREEK FAILED TO SUBMIT THE APPOINTMENT PAPERS TO THE DEPARTMENT FOR PRIOR APPROVAL. AS IN THE DECISION OF MARCH 14, 1949, NO REFUND OF COMPENSATION WAS REQUIRED SINCE THE APPOINTMENT WAS TO AN EXISTING POSITION. THIS IS THE FACTOR THAT DISTINGUISHES IT FROM THE INSTANT CASE.

ON THE BASIS OF THE FOREGOING IT CAN ONLY BE CONCLUDED THAT MR. TAYLOR IS LIABLE FOR THE OVERPAYMENT TO HIM RESULTING FROM THE ERRONEOUS APPOINTMENT TO LEVEL 5 ASSISTANT. SEE 29 COMP. GEN. 75.