B-172910, JUL 20, 1971

B-172910: Jul 20, 1971

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

POLANCO FOR WAIVER OF ERRONEOUS PAYMENTS OF PAY MADE WHILE HE WAS AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION. SECTION 91.5(B) PROVIDES THAT A WAIVER CAN BE MADE WHEN THE OVERPAYMENT RESULTS FROM ADMINISTRATIVE ERROR AND THERE IS NO FAULT OR BAD FAITH ON THE PART OF THE EMPLOYEE. THAT THE REQUEST WAS ERRONEOUSLY DENIED. POLANCO: THIS IS IN FURTHER REFERENCE TO YOUR REQUEST FOR WAIVER OF ERRONEOUS PAYMENTS OF PAY MADE TO YOU WHILE EMPLOYED BY THE FEDERAL AVIATION ADMINISTRATION. THAT AGENCY DENIED WAIVER OF SUCH PAYMENTS WHICH ACTION WAS SUSTAINED BY OUR CLAIMS DIVISION LETTER OF MARCH 30. UNTIL THE ERROR WAS DISCOVERED ON NOVEMBER 11. ELLIOTT AND MCNULTY OF THE DISCREPANCY AND WERE ASSURED OF THE CORRECTNESS OF THE INCREASE BY MR.

B-172910, JUL 20, 1971

OVER PAY - WAIVER OF REVERSING THE PREVIOUS DENIAL OF A REQUEST BY EVERETT I. POLANCO FOR WAIVER OF ERRONEOUS PAYMENTS OF PAY MADE WHILE HE WAS AN EMPLOYEE OF THE FEDERAL AVIATION ADMINISTRATION. SUBCHAPTER G, TITLE 4, CFR, SECTION 91.5(B) PROVIDES THAT A WAIVER CAN BE MADE WHEN THE OVERPAYMENT RESULTS FROM ADMINISTRATIVE ERROR AND THERE IS NO FAULT OR BAD FAITH ON THE PART OF THE EMPLOYEE. THE RECORD HERE INDICATED THAT SECTION 91.5(B) WOULD CONTROL, AND THAT THE REQUEST WAS ERRONEOUSLY DENIED.

TO MR. EVERETT I. POLANCO:

THIS IS IN FURTHER REFERENCE TO YOUR REQUEST FOR WAIVER OF ERRONEOUS PAYMENTS OF PAY MADE TO YOU WHILE EMPLOYED BY THE FEDERAL AVIATION ADMINISTRATION. THAT AGENCY DENIED WAIVER OF SUCH PAYMENTS WHICH ACTION WAS SUSTAINED BY OUR CLAIMS DIVISION LETTER OF MARCH 30, 1970.

THE RECORD SHOWS THAT, IN APRIL OF 1960, YOU ACCEPTED A POSITION WITH THE FEDERAL AVIATION ADMINISTRATION, ALBUQUERQUE, NEW MEXICO, AS A CIVIL ENGINEER, GRADE GS-5, AT A SALARY OF $4,940 PER ANNUM. AS THE RESULT OF A CLERICAL ERROR, ON OR ABOUT JUNE 17, 1960, YOU RECEIVED AND ACKNOWLEDGED AN SF-50, AND ON JULY 8, 1960, YOU RECEIVED AND ACKNOWLEDGED A "PAYROLL CHANGE SLIP," EACH OF WHICH INDICATED YOUR GRADE AS GS-7 WITH A SALARY OF $5,880 PER ANNUM. CONSEQUENTLY, FOR THE PERIOD FROM JUNE 20, 1960, UNTIL THE ERROR WAS DISCOVERED ON NOVEMBER 11, 1903, YOU RECEIVED AN OVERPAYMENT OF PAY IN THE AMOUNT OF $406.80.

YOU STATE IN YOUR LETTER OF FEBRUARY 10, 1970, ADDRESSED TO OUR CLAIMS DIVISION THAT UPON RECEIPT OF THE SF-50 AND THE "PAYROLL CHANGE SLIP" YOU NOTIFIED MESSRS, ELLIOTT AND MCNULTY OF THE DISCREPANCY AND WERE ASSURED OF THE CORRECTNESS OF THE INCREASE BY MR. ELLIOTT'S ADVICE THAT THE GS-7 RATING WAS PROBABLY ATTRIBUTABLE TO A GENERAL UPGRADING OF ENGINEERS ENTERING THE FAA IN POSITIONS SIMILAR TO YOURS. WE NOTE IN THIS CONNECTION YOUR MEMORANDUM OF NOVEMBER 29, 1960, TO THE CHIEF, PERSONNEL AND TRAINING DIVISION WRITTEN SHORTLY AFTER YOU WERE NOTIFIED OF THE CLERICAL ERROR. YOU STATED IN THAT MEMORANDUM:

" *** ON JULY 8, 1960 WHEN I RECEIVED MY FIRST PAYCHECK, I ALSO RECEIVED A PAYROLL DATA SLIP SHOWING MY GRADE AS GS-7, $5,880 PER ANNUM. THIS WAS BROUGHT TO THE ATTENTION OF THE CATDO AND DEPUTY CATDO.

"AROUND THE SECOND WEEK OF JULY, DEPUTY CHIEF, AIRWAYS TECHNICAL DISTRICT OFFICE - 4, MARTIN ELLIOTT, SHOWED ME A PIECE OF WASHINGTON CORRESPONDENCE DESIGNATING THE STARTING POSITION OF JR. CIVIL ENGINEERS OR JR. ENGINEERS AS GS-7. MR. ELLIOTT TOLD ME THAT THIS PROBABLY EXPLAINED THE GS-7 WAGES I RECEIVED ON MY FIRST PAYCHECK. I DO NOT REMEMBER THE FORM OF THE WASHINGTON CORRESPONDENCE. WHETHER IT WAS A PERSONNEL BULLETIN OR ANNOUNCEMENT I CAN NOT SAY. HOWEVER, BOTH MR. ELLIOTT AND THE JR. ELECTRONIC ENGINEER WHO CAME TO WORK AT THE DISTRICT OFFICE ABOUT THAT TIME REMEMBER THE PIECE OF LITERATURE. THE ELECTRONIC ENGINEER WAS THOUGHT TO HAVE BEEN AFFECTED BY THIS BULLETIN BECAUSE HE TOO ACCEPTED A GS-5 POSITION BUT WAS PAID AS A GS-7 ON HIS FIRST PAYCHECK. *** "

THE ABOVE STATEMENT IS CORROBORATED BY A MEMORANDUM DATED DECEMBER 8, 1960, FROM MR. JACK I. IRWIN, WHO IT APPEARS ALSO RECEIVED OVERPAYMENTS OF PAY AS THE RESULT OF A SIMILAR CLERICAL ERROR. IN THAT MEMORANDUM, MR. IRWIN STATES THAT HE WAS OF THE BELIEF THAT THE GS-7 RATING WAS CORRECT SINCE A LETTER DATED JULY OF 1960 WHICH INDICATED A GENERAL UPGRADING FOR ENGINEER APPOINTEES HAD BEEN BROUGHT TO HIS ATTENTION BY MR. ELLIOTT.

SUBCHAPTER G OF TITLE 4 OF THE CODE OF FEDERAL REGULATIONS SETS FORTH THE STANDARDS FOR WAIVER UNDER PUBLIC LAW 90-616 FOR WAIVER OF CLAIMS FOR ERRONEOUS PAYMENTS OF PAY. IT PROVIDES AT SECTION 91.5 AS FOLLOWS:

"SEC 91.5 CONDITIONS FOR WAIVER OF CLAIMS.

"CLAIMS OF THE UNITED STATES ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY MAY BE WAIVED IN WHOLE OR IN PART IN ACCORDANCE WITH THE PROVISIONS OF SEC 91.4 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. *** "

WE NOTE THAT THE FEDERAL AVIATION ADMINISTRATION'S LETTER OF FEBRUARY 5, 1970, PREDICATED DENIAL OF YOUR ORIGINAL REQUEST FOR WAIVER ON THE FACT THAT MR. ELLIOTT DID NOT RECALL THE FACTS AS THEY ARE RELATED IN THE TWO MEMORANDA PREVIOUSLY REFERRED TO. HE RECALLED INSTEAD HAVING TOLD YOU THAT THE WASHINGTON CORRESPONDENCE TO WHICH YOU MAKE REFERENCE COULD NOT HAVE BEEN THE BASIS FOR THE GS-7 RATING INASMUCH AS IT PROVIDED FOR THE INCREASE ONLY FOR THOSE APPOINTEES WHO HAD MAINTAINED A "B" AVERAGE AND FURTHER THAT THE MATTER WAS NOT DISCUSSED UNTIL AFTER THE ERROR HAD BEEN DISCOVERED. APPARENTLY MR. ELLIOTT WAS CONTACTED IN REGARD TO THE MATTER SOME TEN YEARS AFTER THE OCCURRENCE OF THE ERROR. WE BELIEVE IT WAS UNREASONABLE FOR THE FEDERAL AVIATION ADMINISTRATION TO GIVE MORE WEIGHT TO MR. ELLIOTT'S RECOLLECTION TEN YEARS AFTER THE FACT THAN TO THE TWO MEMORANDA WRITTEN CONTEMPORANEOUSLY WITH THE EVENTS IN QUESTION.

WE THEREFORE CANNOT SAY THAT ANY FAULT COULD BE IMPUTED TO YOU IN THE MATTER. ACCORDINGLY, WE HEREBY WAIVE THE CLAIM OF THE UNITED STATES AGAINST YOU FOR THE ERRONEOUS PAYMENTS IN QUESTION. THE FEDERAL AVIATION ADMINISTRATION IS BEING REQUESTED TO REFUND THE AMOUNTS WITHHELD FROM YOUR PAY AS A RESULT OF THE INDEBTEDNESS.