B-191977, AUGUST 17, 1979, 58 COMP.GEN. 734

B-191977: Aug 17, 1979

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OFFICERS AND EMPLOYEES - DE FACTO - COMPENSATION - ACCRUED CLAIMANT WAS HIRED FROM A CERTIFICATE OF ELIGIBLES AND GIVEN A TEMPORARY APPOINTMENT. HE WAS REMOVED AND NOT PAID HIS ACCRUED PAY OR LUMP-SUM ANNUAL LEAVE. SINCE THERE WAS NO ABSOLUTE STATUTORY BAR TO APPOINTMENT AND NO FRAUD OR MISREPRESENTATION BY CLAIMANT. HE IS ENTITLED TO UNPAID COMPENSATION AND LUMP-SUM LEAVE PAYMENT. PRIOR INCONSISTENT CASES WILL NO LONGER BE FOLLOWED. VALDEZ WAS REMOVED FROM HIS TEMPORARY POSITION AS A COMMISSARY STOCK HANDLER. AFTER HIS APPOINTMENT WAS DETERMINED TO BE IMPROPER. HIS FINAL SALARY PAYMENT WAS WITHHELD AND HE WAS NOT PAID FOR HIS UNUSED ANNUAL LEAVE. CAME IN FOR THE INTERVIEW AND WAS SELECTED FOR THE JOB.

B-191977, AUGUST 17, 1979, 58 COMP.GEN. 734

OFFICERS AND EMPLOYEES - DE FACTO - COMPENSATION - ACCRUED CLAIMANT WAS HIRED FROM A CERTIFICATE OF ELIGIBLES AND GIVEN A TEMPORARY APPOINTMENT. LATER, AGENCY DISCOVERED HE HAD BEEN ERRONEOUSLY APPOINTED DUE TO A MISTAKE OF IDENTITY. HE WAS REMOVED AND NOT PAID HIS ACCRUED PAY OR LUMP-SUM ANNUAL LEAVE. SINCE THERE WAS NO ABSOLUTE STATUTORY BAR TO APPOINTMENT AND NO FRAUD OR MISREPRESENTATION BY CLAIMANT, HE IS ENTITLED TO UNPAID COMPENSATION AND LUMP-SUM LEAVE PAYMENT. PRIOR INCONSISTENT CASES WILL NO LONGER BE FOLLOWED.

IN THE MATTER OF VICTOR M. VALDEZ, JR., AUGUST 17, 1979:

MR. VICTOR M. VALDEZ, JR., HAS APPEALED OUR CLAIMS DIVISION'S DENIAL OF HIS CLAIM FOR PAYMENT OF 1 WEEK'S SALARY AND 57 HOURS OF ACCRUED ANNUAL LEAVE. MR. VALDEZ WAS REMOVED FROM HIS TEMPORARY POSITION AS A COMMISSARY STOCK HANDLER, WG-4, AT MCCLELLAN AIR FORCE BASE, CALIFORNIA, ON APRIL 19, 1974, AFTER HIS APPOINTMENT WAS DETERMINED TO BE IMPROPER. AS A RESULT OF THAT DETERMINATION, HIS FINAL SALARY PAYMENT WAS WITHHELD AND HE WAS NOT PAID FOR HIS UNUSED ANNUAL LEAVE.

THE HIRING AND REMOVAL OF THE CLAIMANT, VICTOR M. VALDEZ, JR., INVOLVED A SET OF UNUSUAL CIRCUMSTANCES. IN APRIL 1973, THE AREA OFFICE OF THE U.S. CIVIL SERVICE COMMISSION SENT A CERTIFICATE OF ELIGIBLES TO THE HEADQUARTERS, SACRAMENTO AIR LOGISTICS CENTER, FOR USE IN CONSIDERING CANDIDATES FOR COMMISSARY STOCK HANDLERS, WG-4, AT MCCLELLAN AIR FORCE BASE. THE CERTIFICATE INCLUDED A VICTOR M. VALDEZ OF 4324 CABRILLO WAY, SACRAMENTO. THE MCCLELLAN EMPLOYMENT OFFICE SENT A LETTER TO MR. VALDEZ AT THAT ADDRESS REQUESTING AN EMPLOYMENT INTERVIEW. ON APRIL 20, 1973, VICTOR M. VALDEZ, JR., CAME IN FOR THE INTERVIEW AND WAS SELECTED FOR THE JOB. HE WAS GIVEN A 1 YEAR TEMPORARY APPOINTMENT EFFECTIVE APRIL 24, 1973.

ALMOST 1 YEAR LATER, ON APRIL 17, 1974, THE CIVIL SERVICE COMMISSION ADVISED MCCLELLAN AIR FORCE BASE THAT THE CANDIDATE IT HAD CERTIFIED WAS THE CLAIMANT'S FATHER, VICTOR M. VALDEZ, SENIOR, BASED ON HIS MILITARY SERVICE AND ASSOCIATED VETERAN'S PREFERENCE RIGHTS. MCCLELLAN OFFICIALS PROMPTLY NOTIFIED MR. VALDEZ, JR., OF THE ERROR AND TERMINATED HIS APPOINTMENT EFFECTIVE APRIL 19, 1974. SINCE THE APPOINTMENT HAD BEEN IMPROPER, THE BASE OFFICIALS CONSIDERED MR. VALDEZ, JR. TO BE IN A "DE FACTO" STATUS AND THEREFORE ENTITLED, UNDER OUR DECISIONS, TO RETAIN SALARY ALREADY RECEIVED BUT NOT TO BE PAID ACCRUED PAY OR LUMP-SUM LEAVE.

WE HAVE EXTENDED OUR DECISIONS TO PERMIT DE FACTO EMPLOYEES SERVING IN GOOD FAITH WITH NO FAULT ON THIER PART TO BE PAID COMPENSATION EQUAL TO THE REASONABLE VALUE OF THEIR SERVICES DURING THE DE FACTO PERIOD. SEE 52 COMP.GEN. 700(1973) AND 55 ID. 109(1975). . VALDEZ'S CLAIM FOR UNPAID COMPENSATION BECAUSE IT FOUND THAT HE WAS AT LEAST PARTIALLY AT FAULT IN FAILING TO QUESTION THE PROPRIETY OF HIS APPOINTMENT SINCE HIS FATHER AND HE SHARED THE SAME NAME AND THE LETTER REQUESTING A PREEMPLOYMENT INTERVIEW DID NOT SPECIFY WHETHER IT WAS INTENDED FOR FATHER OR SON. SHALL DISCUSS THIS POINT FURTHER BELOW.

ALTHOUGH WE HAVE PERMITTED DE FACTO EMPLOYEES WHO SERVE IN GOOD FAITH TO BE PAID UNPAID COMPENSATION, WE HAVE, AT THE SAME TIME, ADHERED TO THE RULE THAT THERE IS NO RIGHT TO ANNUAL LEAVE FOR DE FACTO SERVICE. JAMES C. HOWARD III, 57 COMP.GEN. 406(B-189741, APRIL 4, 1978), WE STATED:

WE HAVE RECENTLY EXTENDED THE DE FACTO RULE TO PERMIT PAYMENT FOR THE REASONABLE VALUE OF SERVICES RENDERED BY PERSONS WHO SERVED IN GOOD FAITH. 52 COMP.GEN. 700(1973); 55 ID. 109(1975); MATTER OF WILLIAM A. KEEL, JR., AND RICHARD HERNANDEZ, B-188424, MARCH 22, 1977. HOWEVER, BECAUSE HE IS NOT AN EMPLOYEE WITHIN THE MEANING OF 5 U.S.C. 2105, A DE FACTO EMPLOYEE DOES NOT ACCRUE ANY ANNUAL LEAVE DURING THE DE FACTO PERIOD SO AS TO BE ENTITLED TO A LUMP-SUM PAYMENT. SEE 31 COMP.GEN. 262(1952).

SEE JAMES K. SAUFLEY, 57 COMP.GEN. 565(B-189000, JUNE 16, 1978).

IN OUR CASES, WE HAVE APPLIED DE FACTO STATUS TO AN INDIVIDUAL IF THERE IS NO APPOINTMENT OR IF AN APPOINTMENT IS VOID. ON THE OTHER HAND, IF THERE IS AN APPOINTMENT AND THE PERIOD OF SERVICE IN QUESTION IS DETERMINED TO BE "VOIDABLE" ONLY AND NOT "VOID AB INITIO," WE HAVE SAID THAT DE FACTO STATUS DOES NOT ATTACH AND THE EMPLOYEE IS ENTITLED TO ALL BENEFITS OF THE POSITION UP TO THE DATE OF SEPARATION, INCLUDING LUMP-SUM PAYMENT FOR ANNUAL LEAVE. 37 COMP.GEN. 483(1958); CHERROLD W. SEABROOK, 58 COMP.GEN. 197(B-188693, JANUARY 5, 1979).

DURING THE PAST YEAR, WE HAVE REVIEWED OUR PRIOR DECISIONS IN THIS AREA WITH A VIEW TOWARD ADOPTING A RULE THAT IS EASIER TO APPLY. THERE ARE SEVERAL REASONS FOR THIS REVIEW. THE "VOID" VERSUS "VOIDABLE" DISTINCTION, HOWEVER, CLEAR IN THEORY, HAS ALWAYS BEEN DIFFICULT TO APPLY IN PRACTICE AND HAS LED TO CONFUSION AND UNCERTAINTY. ALSO, WHERE A PERSON HAS BEEN APPOINTED AND HAS SERVED IN GOOD FAITH FOR A PERIOD OF TIME, IT APPEARS INCONSISTENT TO ALLOW HIM TO RECEIVE HIS UNPAID COMPENSATION FOR THE SERVICES, BUT NOT TO RECEIVE LUMP-SUM PAYMENT FOR UNUSED ANNUAL LEAVE.

BECAUSE OF THESE CONSIDERATION, WE HAVE DECIDED TO CHANGE OUR RULE. CONSEQUENTLY, IN THOSE CASES WHERE A PERSON HAS BEEN APPOINTED TO A POSITION BY AN AGENCY AND THE APPOINTMENT IS SUBSEQUENTLY FOUND TO HAVE BEEN IMPROPER OR ERRONEOUS, THE NEW RULE IS THAT THE EMPLOYEE IS ENTITLED TO RECEIVE UNPAID COMPENSATION AND TO CREDIT FOR GOOD FAITH SERVICE FOR PURPOSES OF ACCRUAL OF ANNUAL LEAVE AND TO LUMP-SUM PAYMENT FOR UNUSED LEAVE UPON SEPARATION, UNLESS--

(1) THE APPOINTMENT WAS MADE IN VIOLATION OF AN ABSOLUTE STATUTORY PROHIBITION, OR

(2) THE EMPLOYEE WAS GUILTY OF FRAUD IN REGARD TO THE APPOINTMENT OR DELIBERATELY MISREPRESENTED OR FALSIFIED A MATERIAL MATTER.

OUR EARLIER DECISIONS IN CONFLICT WITH THIS RULE WILL NO LONGER BE FOLLOWED. THE NEW RULE DOES NOT APPLY TO PERSONS WHO HAVE NEVER BEEN APPOINTED OR WHO SERVE AFTER THEIR APPOINTMENTS HAVE EXPIRED. THOSE PERSONS DO NOT SATISFY THE DEFINITION OF "EMPLOYEE" IN 5 U.S.C. 2105 AS " * * * AN INDIVIDUAL WHO IS-- APPOINTED IN THE CIVIL SERVICE BY * * * (A DESIGNATED OFFICIAL) * * * ."

WE MUST NOW APPLY THIS NEW RULE TO THE CLAIMANT IN THE PENDING CASE. THERE WAS NO STATUTORY PROHIBITION TO HIS APPOINTMENT AND UNDER THE NEW RULE WE DO NOT NEED TO DETERMINE IF HIS APPOINTMENT WAS VOID OR VOIDABLE. HENCE, THE REMAINING QUESTION IS WHETHER HE ENGAGED IN FRAUD OR MISREPRESENTATION OF A MATERIAL MATTER.

AFTER THE CLAIMANT'S TEMPORARY APPOINTMENT WAS TERMINATED, THE AIR FORCE REFERRED THE MATTER TO THE CIVIL SERVICE COMMISSION TO DETERMINE IF ANY FRAUD HAD BEEN INVOLVED. A CIVIL SERVICE INVESTIGATOR CONTACTED MR, VALDEZ, JR., AND OBTAINED AN AFFIDAVIT. MR. VALDEZ, JR., HAS FURNISHED US WITH A COPY OF THE AFFIDAVIT HE GAVE TO THE INVESTIGATOR.

IN SUMMARY, THE AFFIDAVIT STATES THE FOLLOWING. THE CLAIMANT RESIDED IN APRIL 1973 AT HIS PARENT'S HOME AT 4324 CABRILLO WAY. HE HAD BEEN OUT OF WORK AND HAD MANY APPLICATIONS ON FILE, INCLUDING ONE WITH THE CIVIL SERVICE COMMISSION FOR A WORKER TRAINEE POSITION. WHEN THE LETTER ARRIVED FROM MCCLELLAN AIR FORCE BASE ADDRESSED TO VICTOR M. VALDEZ, HE OPENED IT BECAUSE MUCH OF HIS MAIL WAS ADDRESSED THAT WAY. HE ASSUMED IT WAS FOR HIM BUT HE WAITED UNTIL HIS FATHER RETURNED FROM A TRIP AND DISCUSSED IT WITH HIS FATHER. MR. VALDEZ, SR., SAID THAT THE LETTER MUST BE FOR THE CLAIMANT BECAUSE HE, MR. VALDEZ, SR., HAD NOT INDICATED HE WAS AVAILABLE FOR TEMPORARY WORK AND ALSO HE WAS MORE INTERESTED IN MORE TECHNICAL ASSIGNMENTS.

ACCORDING TO THE AFFIDAVIT, MR. VALDEZ, JR., THEREUPON FILLED OUT THE APPLICATION IN HIS OWN NAME SPECIFYING "JR.," AND ALSO INDICATED HE WAS NOT A VETERAN, AND INCLUDED HIS DRAFT BOARD NUMBER. HE WENT IN FOR THE INTERVIEW, TOLD THE HIRING CLERK HE WAS NOT A VETERAN, ACCEPTED THE JOB OFFER, AND WENT TO WORK AT THE COMMISSARY AS A STOCK HANDLER. HE HAD ALMOST COMPLETED THE ONE YEAR TEMPORARY APPOINTMENT WHEN HE FIRST LEARNED HE HAD BEEN IMPROPERLY HIRED. HE STATES THAT HE HAD APPLIED FOR THE JOB HONESTLY AND WAS SHOCKED TO LEARN OF THE ERROR.

THE AIR FORCE HAS NOT DISPUTED MR. VALDEZ, JR.'S STATEMENTS NOR DO WE HAVE ANY INDICATION OF FRAUD OR MISREPRESENTATION ON HIS PART FROM THE CIVIL SERVICE COMMISSION. IN FACT, THE AIR FORCE REPORTS THAT FOLLOWING HIS TERMINATION ON APRIL 19, 1974, MR. VALDEZ, JR., WAS GIVEN ANOTHER TEMPORARY APPOINTMENT EFFECTIVE MAY 7, 1974, AS AN AIRCRAFT ELECTRICIAN HELPER, WG-5. ON THE BASIS OF ALL THE FACTS PRESENTED, WE BELIEVE THAT THE CLAIMANT ACTED HONESTLY AND IN GOOD FAITH AND WAS NOT RESPONSIBLE FOR THE MISTAKE REGARDING HIS IDENTITY. WE FIND NO FRAUD OR MISREPRESENTATION ON THE PART OF MR. VALDEZ, JR.

ACCORDINGLY, SINCE THE ERRONEOUS APPOINTMENT OF VICTOR M. VALDEZ, JR., DID NOT INVOLVE ANY STATUTORY PROHIBITION OR ANY FRAUD OR MISREPRESENTATION ON HIS PART, HE IS ENTITLED TO RECEIVE HIS FINAL WEEK'S UNPAID COMPENSATION AND A LUMP-SUM PAYMENT FOR 57 HOURS OF ANNUAL LEAVE. SETTLEMENT WILL BE MADE IN DUE COURSE.