B-186229, JUNE 8, 1977
Highlights
HE IS DE FACTO EMPLOYEE. HE MAY BE PAID FOR SERVICES RENDERED SINCE THEY WERE PERFORMED IN GOOD FAITH UNDER COLOR OF AUTHORITY. WILL NO LONGER BE FOLLOWED. CONNOLLY - COMPENSATION FOR WORK PERFORMED AFTER EXPIRATION OF APPOINTMENT: THIS ACTION IS IN RESPONSE TO A REQUEST DATED MARCH 23. CONNOLLY WAS HIRED AS A FORESTRY AID BY THE FOREST SERVICE. CONNOLLY'S APPOINTMENT WAS CHANGED TO 220 DAYS ON AUGUST 3. CONNOLLY WAS NOT TERMINATED AT THE END OF HIS 220-DAY APPOINTMENT ON OCTOBER 2. THE ERROR WAS NOT DISCOVERED UNTIL OCTOBER 20. IMMEDIATE ACTION WAS TAKEN TO TERMINATE MR. BEFORE HE WAS TERMINATED ON OCTOBER 20. CONNOLLY FOR THE ADDITIONAL PERIOD SINCE HE WORKED THIS TIME IN GOOD FAIT AND THE FAILURE TO TERMINATE HIM AT THE EXPIRATION OF 220 DAYS WAS DUE TO ADMINISTRATIVE ERROR AND WAS NOT THE FAULT OF THE EMPLOYEE.
B-186229, JUNE 8, 1977
TEMPORARY EMPLOYEE OF DEPARTMENT OF AGRICULTURE WORKED 15 DAYS BEYOND HIS APPOINTMENT LIMITATION BEFORE EMPLOYING AGENCY DISCOVERED THE INFRACTION AND TERMINATED HIM. HE IS DE FACTO EMPLOYEE, AND HE MAY BE PAID FOR SERVICES RENDERED SINCE THEY WERE PERFORMED IN GOOD FAITH UNDER COLOR OF AUTHORITY. B-149065, JUNE 26, 1962, WILL NO LONGER BE FOLLOWED.
TIMOTHY P. CONNOLLY - COMPENSATION FOR WORK PERFORMED AFTER EXPIRATION OF APPOINTMENT:
THIS ACTION IS IN RESPONSE TO A REQUEST DATED MARCH 23, 1976, REFERENCE FI-3 OCH, FROM ORRIS C. HUET, AN AUTHORIZED CERTIFYING OFFICER OF THE DEPARTMENT OF AGRICULTURE, FOR AN ADVANCE DECISION AS TO WHETHER A CLAIM SUBMITTED BY MR. TIMOTHY P. CONNOLLY FOR COMPENSATION FOR WORK PERFORMED AFTER EXPIRATION OF HIS APPOINTMENT MAY BE CERTIFIED FOR PAYMENT.
MR. CONNOLLY WAS HIRED AS A FORESTRY AID BY THE FOREST SERVICE, DEPARTMENT OF AGRICULTURE, TONTO NATIONAL FOREST, MESA RANGER DISTRICT, ON DECEMBER 16, 1974, UNDER A 180-DAY APPOINTMENT NOT TO EXCEED DECEMBER 15, 1975. BECAUSE OF AN EXTENDED FIRE SEASON IN THE TONTO NATIONAL FOREST, MR. CONNOLLY'S APPOINTMENT WAS CHANGED TO 220 DAYS ON AUGUST 3, 1975, IN ACCORDANCE WITH THE DEPARTMENT OF AGRICULTURE PERSONNEL MANUAL, PARAGRAPH 213.3113. DUE TO ADMINISTRATIVE OVERSIGHT ON THE PART OF THE FOREST SERVICE, MR. CONNOLLY WAS NOT TERMINATED AT THE END OF HIS 220-DAY APPOINTMENT ON OCTOBER 2, 1975. THE ERROR WAS NOT DISCOVERED UNTIL OCTOBER 20, 1975. THEN, WHILE PROCESSING THE TIME AND ATTENDANCE REPORTS FOR THE PAY PERIOD COVERING SEPTEMBER 28 THROUGH OCTOBER 11, 1975, THE NATIONAL FINANCE CENTER DISCOVERED THAT MR. CONNOLLY HAD WORKED BEYOND HIS APPOINTMENT LIMITATION. IMMEDIATE ACTION WAS TAKEN TO TERMINATE MR. CONNOLLY RETROACTIVE TO OCTOBER 2, 1975. HOWEVER, BEFORE HE WAS TERMINATED ON OCTOBER 20, 1975, MR. CONNOLLY HAD WORKED AN ADDITIONAL 15 DAYS FOR A TOTAL OF 129 HOURS AND ONE HOLIDAY FOR WHICH HE HAS NOT BEEN COMPENSATED AND FOR W ICH HE NOW MAKES HIS CLAIM.
THE RECORD INDICATES THAT THE MESA DISTRICT RANGER, THE TONTO NATIONAL FOREST SUPERVISOR, AND THE DEPUTY REGIONAL FORESTER, ADMINISTRATION, RECOMMEND COMPENSATING MR. CONNOLLY FOR THE ADDITIONAL PERIOD SINCE HE WORKED THIS TIME IN GOOD FAIT AND THE FAILURE TO TERMINATE HIM AT THE EXPIRATION OF 220 DAYS WAS DUE TO ADMINISTRATIVE ERROR AND WAS NOT THE FAULT OF THE EMPLOYEE.
WE NOTE THAT FORM AD-350 DATED DECEMBER 16, 1974, AND FORM AD-350 DATED AUGUST 3, 1975, WHICH WE PRESUME WERE FURNISHED MR. CONNOLLY, INDICATE THE LENGTH OF HIS APPOINTMENT AND THE NUMBER OF DAYS REMAINING UNDER HIS APPOINTMENT UNDER THE CAPTIONS "APPOINTMENT LIMITATIONS, BALANCE" (ITEMS 29 AND 30 ON EACH FORM, RESPECTIVELY). HOWEVER, WHILE BALANCES OF 180 DAYS AND 48 DAYS WERE LISTED, NEITHER FORM SPECIFICALLY STATES THAT HIS APPOINTMENT SHALL EXPIRE ON OCTOBER 2, 1975. THE RECORD ALSO INDICATES THAT THE ADMINISTRATIVE OFFICE FAILED TO LIST MR. CONNOLLY ON ITS PERIODIC NOTICE OF EMPLOYEES APPROACHING EXPIRATION OF APPOINTMENT LIMITATIONS.
WHERE AN EMPLOYEE RECEIVES AN OVERPAYMENT OF PAY OR ALLOWANCE THROUGH ADMINISTRATIVE ERROR AND THERE IS NO FAULT ON THE PART OF THE EMPLOYEE, OUR OFFICE MAY CONSIDER THE CIRCUMSTANCES OF SUCH OVERPAYMENT AND, IF APPROPRIATE, WAIVE COLLECTION OF THE OVERPAYMENT UNDER THE PROVISIONS OF 5 U.S.C. 5584 (SUPP. V. 1976)). IN THIS CASE, HOWEVER, MR. CONNOLLY HAS NOT RECEIVED ANY COMPENSATION FOR THE WORK PERIOD IN QUESTION.
IN B-149065, JUNE 26, 1962, WE HELD THAT AN EMPLOYEE WHO RENDERED ADDITIONAL SERVICE BEYOND HIS 130-DAY LIMITATION AND PRESCRIBED COMPENSATION LIMIT WAS CONSIDERED AS HAVING SERVED IN A DE FACTO STATUS. WE THEN APPLIED THE LONG STANDING RULE THAT A DE FACTO EMPLOYEE COULD RETAIN PAY RECEIVED BUT COULD NOT BE PAID ANY UNPAID COMPENSATION. HOWEVER, WE DO NOT VIEW THIS FACT AS REQUIRING THE DENIAL OF MR. CONNOLLY'S CLAIM. IN THIS CONNECTION WE HELD IN JAMES W. JENSEN, B-183850, MARCH 18, 1976, THAT, DESPITE THE LACK OF A VALID APPOINTMENT, A PERIOD OF SERVICE RENDERED TO THE GOVERNMENT IN GOOD FAITH AND UNDER THE COLOR OF AUTHORITY WAS COMPENSABLE. THEREFORE, WE HEREBY HOLD THAT THE PRINCIPLE IN JENSEN IS EQUALLY APPLICABLE TO CASES WHERE LIMITED APPOINTMENTS ARE NOT TERMINATED ON TIME BECAUSE OF ADMINISTRATIVE ERROR AND THERE IS NO FAULT ON THE PART OF THE EMPLOYEE. B-149065, JUNE 26, 1962, WILL NO LONGER BE FOLLOWED. SEE 52 COMP.GEN. 700 (1973), 55 ID. 109 (1975).
IN THE INSTANT CASE THERE IS NO EVIDENCE THAT MR. CONNOLLY HAD CONSTRUCTIVE OR ACTUAL NOTICE THAT HIS APPOINTMENT WAS TO EXPIRE ON OCTOBER 2, 1975. IN VIEW OF THIS AND SINCE THE ADMINISTRATIVE OFFICE FAILED TO NOTIFY HIM OF THE IMPENDING EXPIRATION OF HIS APPOINTMENT, WE HOLD THAT THERE WAS NO FAULT ON THE PART OF MR. CONNOLLY THAT WOULD PRECLUDE PAYMENT OF HIS CLAIM.
PERSONS WHO SERVE IN GOOD FAITH AS DE FACTO OFFICERS OR EMPLOYEES MAY BE PAID COMPENSATION EQUAL TO THE REASONABLE VALUE OF SERVICES RENDERED DURING SUCH PERIOD OF SERVICE. 52 COMP.GEN. 700, SUPRA, 55 ID. 109, SUPRA; B-188424, MARCH 22, 1977.
ACCORDINGLY, MR. CONNOLLY'S CLAIM FOR COMPENSATION FOR THE REASONABLE VALUE OF SERVICE RENDERED AFTER THE EXPIRATION OF HIS APPOINTMENT MAY BE CERTIFIED FOR PAYMENT.