B-180454, OCT 18, 1974

B-180454, OCT 18, 1974

A SECRETARY EMPLOYED BY THE AMERICAN EMBASSY IN PARIS, FRANCE, REQUESTS RECONSIDERATION OF DENIAL OF WAIVER OF $716 IN OVERPAYMENTS RESULTING FROM AN ERRONEOUS AWARD OF A PERIODIC STEP INCREASE (PSI) IN AUGUST 1965 BEFORE PRESCRIBED WAITING PERIOD WAS COMPLETED. SINCE THE EMPLOYEE WAS SERVING IN A SOMEWHAT UNUSUAL LIMITED INDEFINITE RESIDENT APPOINTMENT, SHE WAS UNCERTAIN AS TO HER ENTITLEMENTS. ALSO HER ATTEMPTS TO ASCERTAIN THE EXTENT OF HER ENTITLEMENTS FROM DEPARTMENT OFFICIALS WERE UNSUCCESSFUL, MOREOVER OVERTIME COMPENSATION AT TIME OF PSI AWARD TENDED TO CONCEAL THE RELATIVELY SMALL ($8.65) GROSS BIWEEKLY INCREASE IN COMPENSATION. IT IS CONCLUDED THAT EMPLOYEE WAS FREE FROM FAULT AND GOVERNMENT'S CLAIM FOR $716 IN OVERPAYMENTS IS WAIVED.

MRS. NORMA E. BISK - WAIVER OF OVERPAYMENTS:

THIS ACTION IS A RECONSIDERATION OF SETTLEMENT OF JUNE 29, 1973, BY THE TRANSPORTATION AND CLAIMS DIVISION OF OUR OFFICE, WHICH DENIED THE REQUEST OF MRS. NORMA E. BISK, AN EMPLOYEE OF THE AMERICAN EMBASSY, PARIS, FRANCE, FOR WAIVER OF A CLAIM BY THE UNITED STATES AGAINST HER IN THE AMOUNT OF $716 ARISING OUT OF ERRONEOUS OVERPAYMENTS MADE TO HER.

THE RECORD SHOWS THAT MRS. BISK, WHILE SERVING UNDER A LIMITED INDEFINITE RESIDENT APPOINTMENT RECEIVED A PROMOTION TO GRADE FSS-6, STEP 6 ON AUGUST 4, 1963, AND 52 WEEKS LATER RECEIVED A PERIODIC STEP INCREASE (PSI) TO FSS -6, STEP 7. SUBSEQUENTLY, ON AUGUST 1, 1965, SHE RECEIVED A FURTHER PSI TO FSS-6, STEP 8, NOTWITHSTANDING THE FACT THAT THE WAITING PERIOD FOR ADVANCEMENT TO THAT STEP REQUIRES A WAITING PERIOD OF 208 WEEKS. THIS ERROR WAS CARRIED THROUGH SUBSEQUENT PAY ACTIONS (STATUTORY INCREASES) UNTIL JUNE 1972. AT THIS TIME, THE EMPLOYEE AS ON PREVIOUS OCCASIONS, INQUIRED OF DEPARTMENT OFFICIALS AS TO HER ENTITLEMENTS TO CERTAIN PERSONNEL BENEFITS INCLUDING ADDITIONAL STEP INCREASES. THIS REQUEST LED TO A REVIEW OF HER RECORDS AND THE DISCOVERY THAT THE PSI SHE WAS AWARDED ON AUGUST 1, 1965, HAD BEEN GIVEN PREMATURELY. CONSEQUENTLY, COLLECTION ACTION WAS INITIATED BY THE DEPARTMENT TO RECOUP THE OVERPAYMENTS AND MRS. BISK REQUESTED THAT THE CLAIM BE WAIVED.

WAIVER OF INDEBTEDNESS CAUSED BY ERRONEOUS PAYMENTS IS GOVERNED BY 5 U.S.C. 5584(B)(1) (1970) WHICH PROVIDES IN PERTINENT PART:

"(B) THE COMPTROLLER GENERAL *** MAY NOT EXERCISE HIS AUTHORITY UNDER THIS SECTION TO WAIVE ANY CLAIM--

"(1) IF, IN HIS OPINION, THERE EXISTS, IN CONNECTION WITH THE CLAIM, AN 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 ***."

IMPLEMENTING REGULATIONS FOR THIS STATUTE ARE PROMULGATED IN 4 CFR PART 91. SECTION 91.5(C) (1974) SETS FORTH THE STANDARDS FOR WAIVER AND PROVIDES:

"(C) 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 OR ALLOWANCES 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 MEMBER OR ANY OTHER PERSON HAVING AN INTEREST IN OBTAINING A WAIVER OF THE CLAIM. ANY SIGNIFICANT UNEXPLAINED INCREASE IN PAY OR ALLOWANCES WHICH WOULD REQUIRE A REASONABLE PERSON TO MAKE INQUIRY CONCERNING THE CORRECTNESS OF HIS PAY OR ALLOWANCES, ORDINARILY WOULD PRECLUDE A WAIVER WHEN THE EMPLOYEE OR MEMBER FAILS TO BRING THE MATTER TO THE ATTENTION OF APPROPRIATE OFFICIALS. WAIVER OF OVERPAYMENTS OF PAY AND ALLOWANCES 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 $92.6 OF THIS SUBCHAPTER."

WE HAVE INTERPRETED THE IMPLEMENTING STANDARDS FOR WAIVER AS SET FORTH IN 4 CFR 91.5 (1974) IN THE FOLLOWING MANNER:

"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."

SEE B-165663, JUNE 11, 1969, AND B-174301, OCTOBER 22, 1971.

THE ISSUE RAISED BY THIS CASE, THEREFORE, IS WHETHER, IN VIEW OF THE CIRCUMSTANCES, MRS. BISK SHOULD REASONABLY HAVE MADE INQUIRY CONCERNING HER PAY AFTER SHE WAS ERRONEOUSLY AWARDED THE PSI EFFECTIVE AUGUST 1, 1965, AND RECEIVED A GROSS INCREASE OF $8.65 IN HER EARNINGS FOR THE SUCCESSIVE PAY PERIODS.

A REVIEW OF THE RECORD INDICATES THAT AT THE TIME MRS. BISK RECEIVED THE ERRONEOUS PSI IN 1965, SHE WAS SERVING IN A FOREIGN SERVICE STAFF (FSS) LIMITED INDEFINITE (RESIDENT) APPOINTMENT. SHE INDICATES THAT HER RESIDENT STATUS MADE HER CONFUSED AND UNCERTAIN AS TO HER ENTITLEMENTS TO PSIS AND OTHER BENEFITS. ALTHOUGH SHE STATES THAT SHE DOES NOT REMEMBER RECEIVING THE PSI IN QUESTION, SHE POINTS OUT THAT SHE WOULD HAVE ACCEPTED ANY OFFICIAL ACTION BY THE PERSONNEL SECTION OF THE DEPARTMENT WITHOUT QUESTION. NEVERTHELESS, ON A NUMBER OF OCCASIONS OVER THE YEARS SHE SOUGHT CLARIFICATION OF HER ENTITLEMENTS FROM FOREIGN SERVICE INSPECTORS DURING THEIR PERIODIC VISITS AT HER STATION. HOWEVER, HER QUESTIONS DID NOT EVOKE ANY ACTION ON THE PART OF INSPECTORS TO INVESTIGATE HER SITUATION UNTIL 1972 WHEN ONE OF THEM INSTIGATED A REVIEW OF HER PERSONNEL RECORDS THAT ULTIMATELY REVEALED THE ERRONEOUS AWARD OF A PSI IN 1965 AND LED TO THIS COLLECTION ACTION. ALSO THE RECORD CONTAINS A STATEMENT THAT MRS. BISK'S PAY FLUCTUATED AS A RESULT OF OVERTIME WORK WHICH COULD PLAUSIBLY EXPLAIN THE REASON SHE WAS NOT AWARE OF THE $8.65 GROSS BIWEEKLY INCREASE OF COMPENSATION.

UNDER THESE CIRCUMSTANCES IT WOULD APPEAR THAT MRS. BISK MIGHT NOT HAVE HAD REASON TO INQUIRE INTO THE CORRECTNESS OF HER PAY AFTER THE ERRONEOUS PSI AWARD IN 1965. EQUALLY IMPORTANT, HER PERIODIC INQUIRIES AS TO HER ENTITLEMENTS DID NOT EVOKE ACTION ON THE PART OF THE DEPARTMENT THAT WOULD HAVE LED TO THE EARLY DISCOVERY AND TERMINATION OF THE OVERPAYMENTS WHEN THEY WERE MUCH SMALLER IN AMOUNT. HENCE IT WOULD SEEM THAT THE GOVERNMENT MUST SHARE A PART OF THE RESPONSIBILITY FOR THE OVERPAYMENTS.

IN VIEW OF THE ABOVE DESCRIBED CIRCUMSTANCES, WE NOW CONCLUDE THAT MRS. BRISK WAS FREE FROM FAULT IN THE MATTER AND THEREFORE UNDER THE AUTHORITY VESTED IN THE OFFICE CONTAINED IN 5 U.S.C. 5584(A)(1) (1970), THE CLAIM OF THE UNITED STATES AGAINST MRS. BISK FOR OVERPAYMENTS IN THE AMOUNT OF $716 IS HEREBY WAIVED.