B-184611, OCT 2, 1975

B-184611, OCT 2, 1975

UNSUCCESSFUL APPLICANT FOR TREE PLANTER POSITION WITH FOREST SERVICE REPORTED FOR APPOINTMENT REPRESENTING HIMSELF TO BE A SUCCESSFUL APPLICANT WHO HAD SECURED OTHER EMPLOYMENT. IMPOSTOR WORKED FOR 64 HOURS BEFORE DECEPTION WAS DISCOVERED AND FILED CLAIM FOR COMPENSATION. IMPOSTOR WAS AT MOST A DE FACTO EMPLOYEE AND, THEREFORE, NOT ENTITLED TO UNPAID COMPENSATION. BECAUSE MISREPRESENTATION WAS INVOLVED, CLAIMANT WOULD NOT COME WITHIN EXCEPTION IN 52 COMP. GEN. 700 (1973), AND B-181934, JULY 23, 1975, 55 COMP. GEN. , THAT PERMITS PAYMENT OF COMPENSATION TO DE FACTO EMPLOYEES AFTER TERMINATION. B 171390, DECEMBER 1, 1970, DISTINGUISHED. B-178264, JUNE 18, 1973, AND B-90642, MAY 4, 1950, NO LONGER TO BE FOLLOWED.

JOHN EHRET - COMPENSATION FOR SERVICES RENDERED AS IMPOSTER:

THIS MATTER INVOLVES A REQUEST DATED JULY 25, 1975, FROM ORRIS C. HUET, AN AUTHORIZED CERTIFYING OFFICER OF THE NATIONAL FINANCE CENTER, UNITED STATES DEPARTMENT OF AGRICULTURE (USDA), NEW ORLEANS, LOUISIANA, FOR AN ADVANCE DECISION AS TO WHETHER A CLAIM SUBMITTED BY JOHN EHRET FOR 64 HOURS OF COMPENSATION MAY BE CERTIFIED FOR PAYMENT. THE FACTS REPORTED BY THE CERTIFYING OFFICER ARE SUMMARIZED BELOW.

ON APRIL 21, 1975, THE CUBA RANGER DISTRICT OF THE SANTA FE NATIONAL FOREST, FOREST SERVICE, USDA, SENT OUT A VACANCY NOTICE TO FILL 13 GS-2 TREE PLANTER POSITIONS. TWENTY-THREE APPLICATIONS WERE RECEIVED, INCLUDING ONE FROM MR. JOHN EHRET AND ONE FROM MR. JOHN PHELPS. MR. PHELPS WAS GIVEN A RATING OF 90 AND WAS SELECTED WHILE MR. EHRET WAS GIVEN A RATING OF 80 AND WAS NOT SELECTED.

ON MAY 19, 1975, MR. EHRET REPORTED TO WORK GIVING HIS NAME AS MR. JOHN PHELPS AND SIGNING A PERSONNEL FORM AS JOHN PHELPS. HE WORKED FROM MAY 19, 1975, THROUGH MAY 23, 1975, A TOTAL OF 40 HOURS, FOR WHICH A TREASURY CHECK WAS ISSUED IN THE AMOUNT OF $108.46. HE ALSO WORKED FROM MAY 26, 1975, THROUGH MAY 28, 1975, FOR A TOTAL OF 24 HOURS. ON MAY 29, 1975, A COMPARISON OF THE SIGNATURES ON MR. PHELPS' ORIGINAL EMPLOYMENT APPLICATION AND THE PERSONNEL FORM THAT MR. EHRET HAD SIGNED USING MR. PHELPS' NAME REVEALED THAT MR. EHRET WAS NOT MR. PHELPS. MR. EHRET WAS IMMEDIATELY TERMINATED AND THE PAYROLL CHECK THAT HAD BEEN ISSUED TO HIM WAS INTERCEPTED AND CANCELLED.

MR. EHRET HAS SUBMITTED A SIGNED STATEMENT ADMITTING THAT HE WORKED UNDER THE NAME OF JOHN PHELPS AND STATING THAT MR. PHELPS COULD NOT WORK BECAUSE HE WAS ALREADY EMPLOYED ELSEWHERE AND HAD AUTHORIZED MR. EHRET TO USE HIS NAME BECAUSE MR. EHRET DESPERATELY NEEDED WORK.

THE CERTIFYING OFFICER STATES THAT MR. EHRET'S WORK WAS SATISFACTORY AND THAT IT IS POSSIBLE THAT HE WOULD HAVE BEEN HIRED FOR THE POSITION HAD MR. PHELPS DECLINED IT.

THE CERTIFYING OFFICER ALSO STATES THAT MR. EHRET'S SITUATION APPEARS TO DIFFER FROM THE FACTUAL SITUATION IN 15 COMP. GEN. 587 (1936) WHICH HELD THAT EMPLOYMENT OBTAINED BY FRAUDULENT MISREPRESENTATION CONFERS NO ENFORCEABLE RIGHT TO UNPAID COMPENSATION. IN THAT CASE THE AGENCY WAS HIRING ONLY FORMER EMPLOYEES WHO HAD BEEN TERMINATED IN A REDUCTION IN- FORCE ACTION, AND THE CLAIMANT HAD MISREPRESENTED HIS STATUS AS A FORMER EMPLOYEE. THERE WE SAID:

"IT APPEARS THAT BUT FOR THE FRAUDULENT MISREPRESENTATION AND DECEIT PRACTICED BY THE EMPLOYEE REFERRED TO IN YOUR LETTER, HE COULD NOT HAVE OBTAINED THE EMPLOYMENT, AND THAT, UPON DISCOVERY OF THE FRAUDULENT NATURE OF THE ENTRY INTO SERVICE, THE EMPLOYEE WAS IMMEDIATELY DISCHARGED. UNDER SUCH CIRCUMSTANCES, THE CONTRACT OF EMPLOYMENT CANNOT BE MADE THE BASIS OF A LEGAL CLAIM FOR SERVICES RENDERED THEREUNDER. AT MOST, HE COULD BE REGARDED AS ONLY A DE FACTO EMPLOYEE AND AS SUCH ENTITLED TO RETAIN SUCH PAYMENTS AS MAY HAVE BEEN MADE TO HIM, BUT HAVING NO ENFORCEABLE RIGHT TO COMPENSATION THAT HAD NOT BEEN PAID."

THE CERTIFYING OFFICER CONTENDS THAT MR. EHRET, UNLIKE THE CLAIMANT IN THE ABOVE-DESCRIBED CASE, MIGHT HAVE BEEN EMPLOYED WITHOUT THE MISREPRESENTATION.

WE DISAGREE WITH THE ATTEMPT TO DISTINGUISH AWAY 15 COMP. GEN. 587, SUPRA. THE PRINCIPLE OF THAT DECISION IS APPLICABLE TO THE PRESENT CASE AND REQUIRES A RULING THAT THE CLAIM MAY NOT BE PAID.

IN 38 COMP. GEN. 175 (1958), WE DISTINGUISHED BETWEEN MISREPRESENTATIONS MADE BY APPLICANTS ON THE BASIS OF WHETHER THE APPOINTMENT COULD HAVE BEEN MADE "BUT FOR" THE MISREPRESENTATION. WHERE THE APPOINTMENT, VIEWED IN RETROSPECT, WOULD NOT HAVE BEEN INFLUENCED BY KNOWLEDGE OF THE TRUE FACTS, SUCH AN APPOINTMENT IS NOT VOID AB INITIO BUT RATHER IS VOIDABLE AT THE DISCRETION OF THE REVIEWING AUTHORITY. FOR EXAMPLE, THE MISREPRESENTATION OF SUCH FACTS AS MARITAL STATUS, LEGITIMACY OR NUMBER OF CHILDREN OF AN APPLICANT MIGHT HAVE HAD NO INFLUENCE ON THE APPOINTMENT. THUS, SUCH APPOINTMENT WOULD BE MERELY VOIDABLE. HOWEVER, THE MISREPRESENTATION OF SUCH CRUCIAL FACTS AS THE APPLICANT'S IDENTITY OR HIS QUALIFICATIONS ESSENTIAL FOR THE POSITION WOULD HAVE AN INFLUENCE ON THE APPOINTMENT AND WOULD RENDER THE APPOINTMENT VOID AB INITIO. IN THE LATTER CASE, THE EMPLOYEE MAY BE REGARDED AS A DE FACTO EMPLOYEE AND, IN THE ABSENCE OF A STATUTORY PROHIBITION, MAY RETAIN ANY PAY ALREADY RECEIVED BY HIM, BUT HE HAS NO ENFORCEABLE RIGHT TO COMPENSATION THAT HAS NOT BEEN PAID TO HIM.

IN CERTAIN SITUATIONS WE HAVE ALLOWED COMPENSATION TO BE PAID AFTER TERMINATION TO A DE FACTO EMPLOYEE. 52 COMP. GEN. 700 (1973), AND B 181934, JULY 23, 1975, 55 COMP. GEN. . HOWEVER, IN THOSE CASES THE EMPLOYEES SERVED IN GOOD FAITH AND WITHOUT FRAUD, WHICH IS NOT THE CASE IN REGARD TO MR. EHRET.

WE NOTE THAT THE FACTS HERE ARE SIMILAR TO THOSE IN B-171390, DECEMBER 1, 1970, WHERE THE SISTER OF AN APPOINTEE TO A SUMMER AIDE POSITION PERFORMED WORK WHILE THE APPOINTEE WAS ILL. WE STATED THAT WE WOULD NOT OBJECT TO PAYMENT TO THE TWO SISTERS FOR THE HOURS ACTUALLY WORKED. HOWEVER, IN THAT CASE THE AGENCY REPORTED THAT THERE WAS NO INTENTION OF FRAUD OR VIOLATION OF LAW OR REGULATION, WHEREAS IN THE PRESENT CASE THE CLAIMANT HAS ADMITTED DELIBERATE MISREPRESENTATION IN ORDER TO OBTAIN THE POSITION.

WE ALSO PERMITTED PAYMENT OF UNPAID COMPENSATION IN B-178264, JUNE 18, 1973, TO AN EMPLOYEE WHO HAD SECURED APPOINTMENT UNDER AN ASSUMED NAME. SUBSEQUENTLY, IT TURNED OUT THAT THE EMPLOYEE WAS A MILITARY MEMBER WHO WAS ABSENT WITHOUT LEAVE AND WHO HAD TURNED HIMSELF IN TO MILITARY AUTHORITIES. THE PAYMENT OF UNPAID COMPENSATION WAS ALLOWED ON THE BASIS OF THE HOLDING IN B-90642, MAY 4, 1950, WHICH IN TURN WAS BASED ON THE PREMISE THAT THE MISREPRESENTATION WAS FOR THE PURPOSE OF AVOIDING APPREHENSION BY MILITARY AUTHORITIES AND DID NOT IN ANY WAY AFFECT THE PROCUREMENT OF THE CIVILIAN POSITION INVOLVED. OUR RECENT DECISIONS CONCERNING DE FACTO EMPLOYEES ARE BASED ON STATUTES INVOLVING EQUITABLE PRINCIPLES, SUCH AS 5 U.S.C. SEC. 5584 WHICH SPECIFICALLY PROVIDES THAT RELIEF IS NOT TO BE GRANTED WHEN THERE IS AN INDICATION OF FRAUD OR MISREPRESENTATION ON THE PART OF THE PERSON CONCERNED. IN VIEW OF THE ABOVE, WE WILL NO LONGER FOLLOW B-178264, JUNE 18, 1973, AND B-90642, MAY 4, 1950.

IN THE PRESENT CASE, MR. EHRET HAS ADMITTED THAT HE INTENTIONALLY MISREPRESENTED HIMSELF AS ANOTHER PERSON IN ORDER TO OBTAIN HIS APPOINTMENT. ACCORDINGLY, MR. EHRET'S CLAIM FOR 64 HOURS OF COMPENSATION MAY NOT BE CERTIFIED FOR PAYMENT.