B-195667.OM, FEB 12, 1980

B-195667.OM: Feb 12, 1980

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CLAIMS DIVISION: RETURNED HEREWITH IS CLAIM FILE NO. ELLIS WAS APPOINTED TO THE POSITION OF FIREFIGHTER. IT WAS DISCOVERED THAT HIS APPOINTMENT WAS MADE IN VIOLATION OF THE PROVISIONS OF 5 U.S.C. 3110 AND IMPLEMENTING REGULATIONS. HIS APPOINTMENT WAS CANCELLED EFFECTIVE ITS INCEPTION DATE. IT WAS ADMINISTRATIVELY DETERMINED THAT HE WAS NOT ENTITLED TO ANY OF THE MONIES PAID TO HIM OR ON HIS BEHALF FOR THE PERIOD APRIL 19. (OR) EMPLOYED *** IN VIOLATION OF THIS SECTION IS NOT ENTITLED TO PAY ***.". SINCE AN INDIVIDUAL WHO IS ILLEGALLY EMPLOYED IS PROHIBITED FROM RECEIVING PAY FOR THE POSITION TO WHICH APPOINTED AND SERVING. THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THESE PROVISIONS WHICH STATES OR SUGGESTS THAT THE WORD "PAY" SHOULD BE GIVEN A MEANING BEYOND ITS ORDINARY AND ACCEPTED SENSE.

B-195667.OM, FEB 12, 1980

WAIVER OF ERRONEOUS PAYMENTS OF PAY AND ALLOWANCES TO MR. CHARLES R. ELLIS B-195667-O.M.

DIRECTOR, CLAIMS DIVISION:

RETURNED HEREWITH IS CLAIM FILE NO. Z-2760336 IN THE CASE OF THE INDEBTEDNESS OF MR. CHARLES R. ELLIS, ARISING OUT OF HIS ILLEGAL EMPLOYMENT WITH THE DEPARTMENT OF THE AIR FORCE.

THE FILE SHOWS THAT MR. ELLIS WAS APPOINTED TO THE POSITION OF FIREFIGHTER, GS-3, EFFECTIVE APRIL 19, 1976. IN DECEMBER 1976, IT WAS DISCOVERED THAT HIS APPOINTMENT WAS MADE IN VIOLATION OF THE PROVISIONS OF 5 U.S.C. 3110 AND IMPLEMENTING REGULATIONS. BY ACTION DATED DECEMBER 13, 1976, HIS APPOINTMENT WAS CANCELLED EFFECTIVE ITS INCEPTION DATE. AS A RESULT, IT WAS ADMINISTRATIVELY DETERMINED THAT HE WAS NOT ENTITLED TO ANY OF THE MONIES PAID TO HIM OR ON HIS BEHALF FOR THE PERIOD APRIL 19, 1976, THROUGH DECEMBER 4, 1976. THE INDICATED INDEBTEDNESS TOTALED $8,479.30, INCLUDING $1,923.90, WHICH REPRESENTED THE COST OF HIS ORDERED TEMPORARY DUTY TRAVEL PERFORMED IN JULY-AUGUST 1976.

WE DO NOT BELIEVE THAT MR. ELLIS' INDEBTEDNESS SHOULD BE CONSIDERED AS HAVING EXCEEDED $6,555.40, THE AMOUNT FOR WHICH WAIVER HAS BEEN GRANTED.

SECTION 3110 OF TITLE 5, U.S.C. PROVIDES IN PART:

"(C) AN INDIVIDUAL APPOINTED, (OR) EMPLOYED *** IN VIOLATION OF THIS SECTION IS NOT ENTITLED TO PAY ***."

UNDER THIS LAW, SINCE AN INDIVIDUAL WHO IS ILLEGALLY EMPLOYED IS PROHIBITED FROM RECEIVING PAY FOR THE POSITION TO WHICH APPOINTED AND SERVING, IT STANDS TO REASON THAT SHOULD HE ACTUALLY RECEIVE PAY FOR THAT POSITION, IT MUST BE REPAID. HOWEVER, THERE IS NOTHING IN THE LEGISLATIVE HISTORY OF THESE PROVISIONS WHICH STATES OR SUGGESTS THAT THE WORD "PAY" SHOULD BE GIVEN A MEANING BEYOND ITS ORDINARY AND ACCEPTED SENSE. GENERALLY, THE WORD "PAY" IS DEFINED AS BEING REMUNERATION OR COMPENSATION FOR SERVICES RENDERED. SEE 53 COMP.GEN. 355 (1973), OVERRULED IN PART, 54 ID. 210 (1974), REGARDING THE USE OF THE WORD PAY IN LEGISLATION RELATING TO CIVIL SERVICE EMPLOYMENT.

IN THE PRESENT CASE, MR. ELLIS WAS ORDERED TO PERFORM TDY TRAVEL TO A SPECIFIC LOCATION FOR TRAINING AND RETURN. THE COSTS INCURRED INCIDENT TO THAT TRAINING AND THE PAYMENT THEREFOR BY THE AGENCY, EITHER DIRECTLY OR IN REIMBURSEMENT TO HIM, WERE NOT IN PAYMENT FOR SERVICES BUT REIMBURSEMENT FOR EXPENSES INCURRED. THUS, IT IS OUR VIEW THAT THOSE EXPENSES DO NOT COME WITHIN THE PURVIEW OF THE STATUTORY PROHIBITION AND HE WOULD NOT BE REQUIRED TO REIMBURSE THE GOVERNMENT FOR THESE COSTS.

BOTH THE DEPARTMENT OF THE AIR FORCE AND MR. ELLIS SHOULD BE SO ADVISED.