B-168823, FEB. 17, 1970

B-168823, FEB. 17, 1970

CIVIL PAY--OVERPAYMENTS OF COMPENSATION--WAIVER DECISION TO POSTMASTER SUSTAINING DISALLOWANCE OF CLAIM FOR WAIVER OF ERRONEOUS OVERPAYMENT OF PAY RESULTING FROM A PREMATURE WITHIN-GRADE STEP INCREASE IN COMPENSATION UNDER PUBLIC LAW 90-616, 5 U.S.C. 5584. POSTMASTER WHO IS CHARGED WITH KNOWLEDGE OF POSTAL LAWS AND REGULATIONS AND WHO DID NOT REQUEST ACTION TO CORRECT ERRONEOUS OVERPAYMENTS OF PAY DUE TO PREMATURE RECEIPT OF WITHIN-GRADE STEP INCREASE MAY NOT BE CONSIDERED WITHOUT FAULT TO OBTAIN WAIVER UNDER PUBLIC LAW 90-616.

TO MR. RICHARD L. SCHWEIZER:

THIS IS IN RESPONSE TO YOUR LETTER OF NOVEMBER 10, 1969, APPEALING THE DENIAL BY OFFICE LETTER OF OCTOBER 16, 1969, OF YOUR APPLICATION FOR WAIVER OF AN ERRONEOUS OVERPAYMENT OF PAY IN THE GROSS AMOUNT OF $581.11 CAUSED BY A PREMATURE WITHIN-GRADE STEP INCREASE WHICH YOU RECEIVED DURING THE PERIOD JULY 4, 1964, THROUGH APRIL 9, 1966. WE HAVE REVIEWED THE MATTER CAREFULLY IN THE LIGHT OF YOUR EXPLANATION OF YOUR FAILURE TO RECOGNIZE THAT THE PAYMENTS WERE ERRONEOUS.

IN YOUR LETTER YOU STATE THAT YOU DID NOT KNOW OF THE ERROR UNTIL IT WAS CALLED TO YOUR ATTENTION BY A LETTER FROM THE DIRECTOR OF THE REGIONAL PERSONNEL DIVISION OF THE POST OFFICE DEPARTMENT OF APRIL 13, 1966. YOU FURTHER STATE THAT YOU WERE CAUSED TO BELIEVE THE INCREASE IN SALARY WAS AUTHORIZED BY THE PROVISIONS OF PUBLIC LAW 88-426, SINCE THAT STATUTE APPEARS AS A CITATION OF AUTHORITY ON A SALARY CHANGE NOTICE EFFECTIVE JULY 4, 1964, WHICH STATED YOUR SALARY AT LEVEL 12, STEP 8, RATHER THAN LEVEL 12, STEP 7, THE LATTER BEING THE STEP RATE IN WHICH YOU WERE PREVIOUSLY CORRECTLY PLACED. ALSO, YOU SAY YOU HAD NO WAY OF DETERMINING THE ACCURACY OF THE SALARY YOU RECEIVED BECAUSE YOUR PERSONNEL RECORD IS MAINTAINED AT THE REGIONAL OFFICE. WITH REFERENCE TO YOUR STATEMENT THAT YOU BELIEVED THE PROVISIONS OF PUBLIC LAW 88-426 AUTHORIZED THE INCREASE RECEIVED IN JULY 1964, IT IS NOTED THAT THE FIRST INDICATION OF ERROR OCCURRED PRIOR TO ENACTMENT OF PUBLIC LAW 88-426, WHICH WAS APPROVED AUGUST 12, 1964. A MEMORANDUM OF AUGUST 10, 1964, FROM THE CHIEF, EMPLOYMENT AND PLACEMENT BRANCH OF THE REGIONAL OFFICE OF THE POST OFFICE DEPARTMENT TO THE REGIONAL POSTAL DATA CENTER REPORTED THAT YOU HAD ADVISED THE MANAGER, COMPENSATION, PERSONNEL OPERATIONS BRANCH ON THE OCCASION OF A VISIT TO THE WINTER PARK POST OFFICE THAT YOU HAD RECEIVED PAY FOR A STEP INCREASE BUT HAD NOT RECEIVED A SALARY CHANGE NOTICE.

THE REGULATIONS IMPLEMENTING PUBLIC LAW 90-616, AUTHORIZING WAIVER OF OVERPAYMENT OF PAY UNDER CERTAIN CIRCUMSTANCES ARE FOUND AT 4 CFR 201 ET SEQ. SUBSECTION 201.5 (B) OF THOSE REGULATIONS PROVIDES FOR WAIVER WHENEVER:

"(B) COLLECTION ACTION UNDER THE CLAIM WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES. GENERALLY THESE CRITERIA WILL BE MET BY A FINDING THAT THE ERRONEOUS PAYMENT OF PAY OCCURRED THROUGH ADMINISTRATIVE ERROR AND THAT THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT OR LACK OF GOOD FAITH ON THE PART OF THE EMPLOYEE OR ANY OTHER PERSON HAVING AN INTEREST IN OBTAINING A WAIVER OF THE CLAIM. ANY SIGNIFICANT UNEXPLAINED INCREASE IN AN EMPLOYEE'S PAY WHICH WOULD REQUIRE A REASONABLE MAN TO MAKE INQUIRY CONCERNING THE CORRECTNESS OF HIS PAY ORDINARILY WOULD PRECLUDE A WAIVER WHEN THE EMPLOYEE FAILS TO BRING THE MATTER TO THE ATTENTION OF APPROPRIATE OFFICIALS. WAIVER OF OVERPAYMENTS OF PAY UNDER THIS STANDARD NECESSARILY MUST DEPEND UPON THE FACTS EXISTING IN THE PARTICULAR CASE. THE FACTS UPON WHICH A WAIVER IS BASED SHOULD BE RECORDED IN DETAIL AND MADE A PART OF THE WRITTEN RECORD IN ACCORDANCE WITH THE PROVISIONS OF SEC. 202.6."

THE FILE SHOWS THAT YOU WERE PLACED AT LEVEL 12, STEP 7, BY A SALARY CHANGE NOTICE EFFECTIVE OCTOBER 13, 1962, SUBSEQUENT TO ENACTMENT OF PUBLIC LAW 87-793. THAT LAW REVISED EXISTING PROVISIONS GOVERNING WAITING TIME FOR IN-GRADE STEP INCREASES TO CHANGE THAT TIME TO A PERIOD OF 156 WEEKS FOR POSTAL EMPLOYEES IN LEVEL 7 AND ABOVE FOR INCREASES TO STEPS 8 AND ABOVE. IN ADDITION TO THE NOTICE FURNISHED BY THE FORM YOU RECEIVED POSTAL BULLETIN 20331 OF OCTOBER 15, 1962, WHICH WE UNDERSTAND YOU RECEIVED, CONTAINED A FULL REPORT OF CHANGES IN POSTAL PAY LAWS ENACTED BY PUBLIC LAW 87-793, INCLUDING THE INFORMATION CONCERNING CHANGES IN WAITING PERIODS FOR STEP INCREASES TO WHICH REFERENCE IS MADE ABOVE.

SUBSEQUENT TO THE SALARY CHANGE NOTICE YOU RECEIVED IN OCTOBER 1962, ANOTHER NOTICE, EFFECTIVE JANUARY 4, 1964, WAS ISSUED TO PLACE INTO EFFECT SCHEDULE II OF PUBLIC LAW 87-793. THAT NOTICE AGAIN SHOWED YOUR STATUS IN LEVEL 12, STEP 7, WITH 64 WEEKS ELAPSED OF THE 156-WEEK WAITING PERIOD REQUIRED FOR A STEP INCREASE SCHEDULED FOR OCTOBER 1965. NOTHING APPEARS TO SUGGEST YOU MIGHT HAVE HAD REASON TO BELIEVE A STEP INCREASE WAS DUE AT ANY TIME PRIOR TO 156 WEEKS FROM OCTOBER 13, 1962.

BY PERSONNEL ACTION FORM PROCESSED BY THE REGIONAL PERSONNEL OFFICE, DECEMBER 14, 1964, YOU WERE REASSIGNED EFFECTIVE JANUARY 2, 1965, FROM THE POSITION OF POSTMASTER NO. SP2-68, LEVEL 12, STEP 7, TO POSTMASTER POSITION NO. KP-33 AT LEVEL 12, STEP 7. WE HAVE NOTED THE SUBSEQUENT EXCHANGE OF MEMORANDA BETWEEN YOU AND THE POSTAL DATA CENTER RESULTING IN A SPECIFIC STATEMENT BY THE DATA CENTER THAT THE PERSONNEL ACTION (FORM 50) SHOULD BE CORRECTED TO CONFORM WITH THE ERRONEOUS SALARY CHANGE NOTICE OF JULY 4, 1964. IN RESPONSE YOU REPLIED BY MEMORANDUM OF JANUARY 22, 1965, THAT "POD FORMS 50 ARE PROCESSED AT THE REGIONAL LEVEL."

WHILE IT IS UNDERSTANDABLE THAT THE STATEMENT OF THE POSTAL DATA CENTER MIGHT HAVE GIVEN YOU SOME REASON TO BELIEVE THE STEP FOR WHICH YOU WERE RECEIVING SALARY WAS CORRECT, THE DISCREPANCY BETWEEN THAT STATEMENT AND THE INFORMATION ON THE PERSONNEL ACTION FORM SHOULD, WE BELIEVE, HAVE LED A REASONABLE MAN, ESPECIALLY AN EMPLOYEE HOLDING A POSITION OF THE LEVEL OF RESPONSIBILITY YOU HELD, TO INQUIRE FURTHER INTO THE MATTER. THE MERE STATEMENT THAT "POD FORMS 50 ARE PROCESSED AT THE REGIONAL LEVEL" WOULD NOT APPEAR TO BE AN ADEQUATE RESPONSE UNDER THE CIRCUMSTANCES.

AGAIN, WHEN YOU RECEIVED THE SECOND ERRONEOUS SALARY CHANGE, TO LEVEL 12, STEP 9, ON OCTOBER 9, 1965, KNOWING THAT 156 WEEKS HAD NOT ELAPSED SINCE THE ERRONEOUS INCREASE EFFECTIVE JULY 4, 1964, IT IS BELIEVED YOU HAD SUFFICIENT NOTICE AND KNOWLEDGE OF THE LAW AND REGULATIONS GOVERNING WITHIN-GRADE STEP INCREASE ELIGIBILITY TO CAUSE YOU TO QUESTION THAT INCREASE.

THE ERRONEOUS PAYMENTS WERE EVENTUALLY CORRECTED AS A RESULT OF A MEMORANDUM OF FEBRUARY 1, 1966, FROM THE DIRECTOR OF THE REGIONAL PERSONNEL DIVISION TO THE DIRECTOR, POSTAL DATA CENTER AGAIN CALLING ATTENTION TO THE OVERPAYMENTS IN EFFECT SINCE JULY 1964. NOTHING APPEARS TO INDICATE THAT YOU ACTED AT ANY TIME TO CORRECT THE ERRONEOUS PAYMENTS EXCEPT FOR THE INITIAL AND APPARENTLY INFORMAL REPORT YOU MADE TO THE MANAGER, COMPENSATION, PERSONNEL OPERATIONS BRANCH, THAT PRIOR TO AUGUST 10, 1964, YOU HAD RECEIVED A STEP INCREASE BUT NO SALARY CHANGE NOTICE.

IN VIEW OF THE NATURE OF YOUR POSITION AS A POSTMASTER HAVING ADMINISTRATIVE RESPONSIBILITIES FOR A LARGE POST OFFICE, WE BELIEVE YOU WERE CHARGED WITH KNOWLEDGE OF POSTAL LAWS AND REGULATIONS, INCLUDING THOSE GOVERNING POSTAL PAY ADMINISTRATION AND SHOULD HAVE RECOGNIZED THE ERROR IN YOUR OWN RATE OF PAY. ON SEVERAL OCCASIONS YOU HAD NOTICE OF THE DISCREPANCY BETWEEN THE STEP OF YOUR RATE OF SALARY AS ESTABLISHED IN ACCORDANCE WITH PUBLIC LAW 87-793 AND THE RATE AT WHICH YOU WERE PAID.

UNDER THE CIRCUMSTANCES, WE FIND YOU WERE NOT WITHOUT FAULT IN FAILING TO ACT AS NECESSARY TO OBTAIN CORRECTION OF THE OVERPAYMENT. WAIVER OF OVERPAYMENT IN YOUR CASE WOULD NOT ACCORD WITH THE INTENT OF PUBLIC LAW 90 -616. THEREFORE, THE ACTION OF OUR CLAIMS DIVISION OF OCTOBER 16, 1969, IS AFFIRMED.