B-181772, NOV 19, 1974

B-181772, NOV 19, 1974

CONDITIONS FOR WAIVER OF A CLAIM BY THE GOVERNMENT FOR OVERPAYMENT OF SALARY ARE NOT MET WITHIN THE INTENT OF SUBSECTION 91.5(C) OF TITLE 4, CODE OF FEDERAL REGULATIONS, WHEN A REINSTATED EMPLOYEE IS ADVISED BY RECEIPT OF STANDARD FORM 50 THAT HER SALARY WILL BE BASED ON PRIOR SERVICES AND EMPLOYEE FAILED TO REPORT PAYMENT OF AN AMOUNT HIGHER THAN THAT RECEIVED UPON RESIGNATION.

ALICE M. PARKER - OVERPAYMENT OF SALARY:

THIS ACTION IS AN APPEAL FROM A SETTLEMENT OF OUR TRANSPORTATION AND CLAIMS DIVISON DATED MARCH 20, 1974, WHICH DENIED WAIVER UNDER AUTHORITY OF SECTION 5584 OF TITLE 5, U.S.C. OF A CLAIM OF THE UNITED STATES AGAINST MRS. ALICE M. PARKER FOR OVERPAYMENT OF SALARY.

THE RECORD SHOWS THAT ON SEPTEMBER 8, 1969, MRS. PARKER WAS REINSTATED AT THE GS-018-07, STEP 8 LEVEL, AFTER HAVING RESIGNED EFFECTIVE JULY 17, 1969, AS A GS-018-07, STEP 5. SINCE SHE WAS ERRONEOUSLY REINSTATED THREE STEPS ABOVE HER ELIGIBLE REINSTATEMENT LEVEL, SHE WAS OVERPAID FOR THE PERIOD FROM THE BEGINNING OF HER REINSTATEMENT THROUGH THE PAY PERIOD PRIOR TO THE DISCOVERY OF THE ERROR ON APRIL 19, 1972, IN THE GROSS AMOUNT OF $1,571.65.

MRS. PARKER STATES THAT SHE WAS NOT AWARE OF BEING ERRONEOUSLY PAID BECAUSE OF A SCHEDULED WAGE INCREASE WHICH WAS INSTITUTED JUST PRIOR OTHER REINSTATEMENT AS WELL AS THE FACT THAT UPON HER RETURN TO DUTY SHE WAS IN AN INTERMITTENT STATUS AND DID NOT WORK 40 HOURS PER WEEK. STANDARD FORM 50 DATED SEPTEMBER 8, 1969, A COPY OF WHICH WAS RECCEIVED BY MRS. PARKER, READ UNDER THE "REMARKS" SECTION: "REINSTATED BASED ON PRIOR SERVICE AT NWC, CHINA LAKE, CALIFORNIA AS A SAFETY ASSISTANT, GS 018-07/08 FROM 01-14 -68 TO 07-17-69."

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 OVERPAYMENT BUT THOSE INDICATING WHETHER THE EMPLOYEE REASONABLY COULD HAVE BEEN EXPECTED TO HAVE BEEN AWARE THAT AN ERROR HAD BEEN MADE. IF UNDER THE CIRCUMSTANCES INVOLVED A REASONABLE MAN 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. THE FACTS IN THIS CASE INDICATE THAT STANDARD FORM 50, DATED SEPTEMBER 8, 1969, CLEARLY SHOWS THE POSITION HELD BY MRS. PARKER AS BEING CLASSIFIED AS GS-7/8, $9,424 PER ANNUM. HOWEVER, SF-50 ALSO CONTAINS REMARKS STATING THAT SHE WAS TO BE REINSTATED BASED ON HER PRIOR SERVICE AT NWC, CHINA LAKE, CALIFORNIA, AS A SAFETY ASSISTANT. IT IS THEREFORE REASONABLE TO ASSUME THAT MRS. PARKER WAS AWARE THAT HER ANNUAL RATE OF PAY WOULD BE THE SAME UPON REINSTATEMENT AS IT APPEARED ON HER LAST EARNING STATEMENT. SUCH AN OBVIOUS DISCREPANCY SHOULD HAVE BEEN BROUGHT TO THE IMMEDIATE ATTENTION OF THE APPROPRIATE OFFICIAL.

THE RECORD FURTHER SHOWS THAT MRS. PARKER STATES SHE WAS NOT AWARE OF BEING ERRONEOUSLY PAID BECAUSE OF A SCHEDULED WAGE INCREASE WHICH WAS INSTITUTED JUST PRIOR TO HER REINSTATEMENT. THE ONLY ADJUSTMENT OF PAY RATE EFFECTING MRS. PARKER'S SALARY AROUND THE TIME OF HER RESIGNATION BECAME EFFECTIVE ON THE FIRST PAY PERIOD BEGINNING ON OR AFTER JULY 1, 1969, WHICH THE AGENCY STATES WAS EFFECTIVE JULY 13, 1969, OR APPROXIMATELY 3 DAYS BEFORE HER RESIGNATION. THEREFORE, ANY ADJUSTMENT MADE PRIOR TO MRS. PARKER'S RESIGNATION DATE OF JULY 17, 1969, SHOULD HAVE APPEARED ON HER LAST EARNING STATEMENT BEFORE RESIGNATION. THIS STATEMENT WOULD SERVE AS SUFFICIENT NOTICE TO MRS. PARKER AS TO THE AMOUNT OF SCHEDULED WAGE INCREASE. THUS, IT IS DIFFICULT TO UNDERSTAND THE BASIS UPON WHICH MRS. PARKER FORMED THE IMPRESSION THAT SHE WAS BEING COMPENSATED AT THE SAME ANNUAL RATE OF PAY WHICH SHE RECEIVED BEFORE REINSTATEMENT.

SECTION 91.5(C) OF TITLE 4, CODE OF FEDERAL REGULATIONS, PROVIDES IN PERTINENT PART, WITH RESPECT TO CONDITIONS FOR WAIVER OF CLAIMS PURSUANT TO 5 U.S.C. 5584, AS FOLLOWS:

"(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. ***"

WHILE THE ABOVE-QUOTED LANGUAGE REFERS TO AN UNEXPLAINED INCREASE IN PAY, WE BELIEVE IT MAY REASONABLY BE APPLIED TO THE RECEIPT OF SALARY UPON BEING REINSTATED AT A RATE IN EXCESS OF THAT ANTICIPATED. THEREFORE, ALTHOUGH NOTHING IN THE RECORD SUGGESTS THE EXISTENCE OF FRAUD, MISREPRESENTATION, OR LACK OF GOOD FAITH ON THE PART OF MRS. PARKER, THE RECORD BEFORE US TENDS TO SHOW THAT SHE WAS NOT ENTIRELY WITHOUT FAULT IN FAILING TO CALL THE ATTENTION OF PROPER AUTHORITIES TO THE DISCREPANCIES IN THE STATEMENTS SHE RECEIVED CONCERNING THE PAY TO WHICH SHE WAS ENTITLED. SEE B-180599, MARCH 11, 1974.

ACCORDINGLY, THE ACTION OF THE TRANSPORTATION AND CLAIMS DIVISION IN DENYING WAIVER IS SUSTAINED.