B-171891, MAR 23, 1971

B-171891, MAR 23, 1971

REQUEST FOR WAIVER - ERRONEOUS PAYMENTS DECISION DENYING REQUEST FOR WAIVER OF ERRONEOUS PAYMENTS OF PAY SOUGHT PURSUANT TO PUBLIC LAW 90-616 INCIDENT TO AN ADMINISTRATIVE ERROR IN PAYING CLAIMANT $9,960.00 PER ANNUM, PFS LEVEL 9 STEP 10, INSTEAD OF $9,450.00 PER ANNUM, PFS LEVEL 9 STEP 8, RESULTING IN OVERPAYMENTS OF $1,295.91. WAIVER OF OVERPAYMENT OF PAY IS AUTHORIZED IN CERTAIN CIRCUMSTANCES, BUT 4 CFR 91-93 PROVIDES THAT THE EMPLOYEE BE FREE FROM FAULT IN THE MATTER. THIS CAN ONLY BE DETERMINED FROM A CAREFUL ANALYSIS OF ALL PERTINENT FACTS AND WHERE CLAIMANT IS AN ACTING CHIEF OF THE PERSONNEL OFFICE OF A MAJOR ACTIVITY WITH 30 YEARS EXPERIENCE WITH THE POST OFFICE, HIS FAILURE TO DETECT THE ERRONEOUS PAYMENTS OF $20 PER PAY PERIOD AND TO HAVE THEM CORRECTED PRECLUDES WAIVER OF THE OVERPAYMENT.

TO MR. JOSIAH E. CONKLING:

THIS IS IN REPLY TO YOUR LETTER OF DECEMBER 31, 1970, REQUESTING RECONSIDERATION OF THE DENIAL OF YOUR REQUEST FOR WAIVER UNDER 5 U.S.C. 5584, AS ADDED BY PUBLIC LAW 90-616, OF AN ERRONEOUS PAYMENT OF PAY FOR THE PERIOD FROM SEPTEMBER 10, 1966, THROUGH DECEMBER 26, 1969, AS AN EMPLOYEE OF THE POST OFFICE, DES MOINES, IOWA.

THE FACTS SURROUNDING THE OVERPAYMENT AS SET FORTH IN OUR CLAIMS DIVISION LETTER OF OCTOBER 7, 1970, TO MR. MILTON L. HEALY, DIRECTOR, POSTAL DATA CENTER, ARE AS FOLLOWS:

"THE RECORD SHOWS THAT A POD FORM 50, EFFECTIVE JULY 30, 1966, PLACED MR. CONKLING IN PFS LEVEL 9, STEP 10, AT $9,960.00 PER ANNUM, WHICH ACTION WAS BROUGHT ABOUT THROUGH A JUNIOR-SENIOR RELATIONSHIP. UPON RECEIPT OF A REGIONAL MEMORANDUM POINTING OUT THAT THE JUNIOR-SENIOR RELATIONSHIP WAS NOT IN ORDER, MR. CONKLING PREPARED A POD FORM 50 ON AUGUST 18, 1966, WITH EFFECTIVE DATE OF JUNE 30, 1966, CANCELLING THE PRIOR FORM. ON THE SAME DATE, A SECOND POD FORM 50 WAS PREPARED BY MR. CONKLING, AS ACTING CHIEF PERSONNEL OFFICER, ADVANCING HIM FROM PFS LEVEL 9, STEP 7 AT $9,195.00 PER ANNUM TO LEVEL 9, STEP 8, AT $9,450.00 PER ANNUM BY REASON OF A JUNIOR- SENIOR RELATIONSHIP. THROUGH AN ADMINISTRATIVE ERROR HE CONTINUED TO BE ASSIGNED AT THE PFS LEVEL 9, STEP 10, AT $9,960.00 PER ANNUM INSTEAD OF THE PFS LEVEL 9, STEP 8, AT $9,450 PER ANNUM. THE ERRONEOUS PERSONNEL ACTIONS RESULTED IN AN OVERPAYMENT OF PAY FROM SEPTEMBER 10, 1966 THROUGH DECEMBER 26, 1969, IN THE GROSS AMOUNT OF $1,295.91." THAT LETTER DENIED YOUR REQUEST FOR WAIVER ON THE BASIS THAT A PERSON IN YOUR CIRCUMSTANCES, I.E., ACTING CHIEF OF THE PERSONNEL OFFICE WITH SOME 30 YEARS OF EXPERIENCE WITH THE POST OFFICE, WHO HAD HIMSELF PROCESSED THE PERSONNEL ACTIONS INVOLVED, SHOULD HAVE RECOGNIZED THE FACT OF AN UNEXPLAINED INCREASE IN HIS PAY AND INQUIRED AS TO THE CORRECTNESS OF THE AMOUNT. VIEW OF THIS IT COULD NOT BE CONCLUDED THAT YOU WERE WITHOUT FAULT AS IS REQUIRED BY THE STANDARDS FOR WAIVER. YOU STATE THAT THIS DECISION WAS "ARBITRARY AND UNFAIR SINCE THE OVERPAYMENT WAS CAUSED BY A CLERICAL ERROR AND DUE TO NO FAULT ON MY PART."

THE REGULATIONS IMPLEMENTING PUBLIC LAW 90-616 AUTHORIZING THE WAIVER OF OVERPAYMENT OF PAY UNDER CERTAIN CIRCUMSTANCES ARE FOUND AT 4 CFR 91 93. SUBSECTION 91.5(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 *** 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 OVERPAYMENT OF PAY UNDER THIS STANDARD NECESSARILY MUST DEPEND UPON THE FACTS EXISTING IN THE PARTICULAR CASE. *** "

YOU WILL NOTE THAT THIS REGULATION REQUIRES MORE THAN THAT THE EMPLOYEE BE FREE FROM FAULT IN THE CIRCUMSTANCES GIVING RISE TO THE OVERPAYMENT. IT IMPOSES AN OBLIGATION ON THE EMPLOYEE TO BRING TO THE ATTENTION OF APPROPRIATE OFFICIALS ANY SIGNIFICANT UNEXPLAINED INCREASE IN PAY. STATED IN B-165663, JUNE 11, 1969, WITH REGARD TO THE REQUIREMENT THAT THERE BE NO INDICATION OF FAULT ON THE PART OF THE EMPLOYEE, THAT:

"WHETHER AN EMPLOYEE WHO RECEIVES AN ERRONEOUS PAYMENT IS FREE FROM FAULT IN THE MATTER CAN ONLY BE DETERMINED BY A CAREFUL ANALYSIS OF ALL PERTINENT FACTS, NOT ONLY THOSE GIVING RISE TO THE OVERPAYMENT BUT THOSE INDICATING WHETHER THE EMPLOYEE REASONABLY COULD HAVE BEEN EXPECTED TO HAVE BEEN AWARE THAT AN ERROR HAD BEEN MADE. IF IT IS ADMINISTRATIVELY DETERMINED THAT A REASONABLE MAN, UNDER THE CIRCUMSTANCES INVOLVED, WOULD HAVE MADE INQUIRY AS TO THE CORRECTNESS OF THE PAYMENT AND THE EMPLOYEE INVOLVED DID NOT, THEN, IN OUR OPINION, THE EMPLOYEE COULD NOT BE SAID TO BE FREE FROM FAULT IN THE MATTER AND THE CLAIM AGAINST HIM SHOULD NOT BE WAIVED."

WE FEEL THAT UNDER THE PARTICULAR CIRCUMSTANCES HERE INVOLVED YOU SHOULD HAVE RECOGNIZED THE ERROR IN YOUR OWN RATE OF PAY. AS ACTING CHIEF OF THE PERSONNEL OFFICE OF A MAJOR ACTIVITY WHICH EMPLOYS AS MANY PERSONS AS DOES THE DES MOINES, IOWA, POST OFFICE, YOU COULD REASONABLY HAVE BEEN EXPECTED TO BE AWARE OF THE GROSS PAY PER PAY PERIOD EARNED BY AN EMPLOYEE AT LEVEL 9, STEP 8. THIS IS ESPECIALLY SO WHERE THE ERROR AMOUNTED TO NEARLY $20 PER PAY PERIOD. IN ADDITION, THE CIRCUMSTANCES WHICH IMMEDIATELY PRECEDED THE INCREASE TO A STEP 8 OUGHT TO HAVE ESPECIALLY ALERTED YOU TO THE ADVISABILITY OF CHECKING TO ENSURE THAT THE AMOUNT REFLECTED IN YOUR PAY CHECK WAS CORRECT. SINCE YOU YOURSELF PROCESSED THE FORM 50 WHICH RECTIFIED THE PREVIOUS ERRONEOUS ACTION WHICH EARLIER HAD PLACED YOU AT A STEP 10, AND SINCE YOU KNEW THAT SOME TIME WAS INVOLVED IN IMPLEMENTING THE CHANGES, THOSE CIRCUMSTANCES SHOULD HAVE ALERTED YOU TO THE POSSIBILITY OF AN ERROR AND SHOULD HAVE PROMPTED A CHECK TO SEE THAT THE ACTIONS HAD BEEN PROPERLY PROCESSED. IN VIEW OF YOUR POSITION AND ITS ATTENDANT RESPONSIBILITIES, AND IN LIGHT OF THE ACTIONS WHICH PRECEDED THE OVERPAYMENT, WE CONCLUDE THAT YOUR FAILURE TO DETECT THE ERRONEOUS PAYMENTS AND TO HAVE THEM CORRECTED PRECLUDES WAIVER OF THE OVERPAYMENT OF PAY IN ACCORDANCE WITH THE TERMS OF PUBLIC LAW 90-616. THEREFORE, THE ACTION OF OUR CLAIMS DIVISION OF OCTOBER 7, 1970, IS AFFIRMED.