B-200258, FEB 4, 1981

B-200258: Feb 4, 1981

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NO PAYROLL DEDUCTIONS WERE MADE FROM THEN UNTIL 1978 CAUSING AN OVERPAYMENT OF PAY. STANDARD FORM 50 WAS ISSUED SHORTLY AFTER COVERAGE WAS INITIATED INFORMING EMPLOYEE THAT COVERAGE HAD BEGUN. SHE SHOULD HAVE EXPECTED A PAY REDUCTION AND WHEN THAT DID NOT OCCUR. SHE SHOULD HAVE MADE INQUIRY. ALSO SINCE SHE HAD THE OPTIONAL COVERAGE DURING THE PERIOD OF OVERPAYMENT IT IS NOT AGAINST EQUITY AND GOOD CONSCIENCE TO REQUIRE PAYMENT. MIRIAM SAMBUR: THIS ACTION IS IN RESPONSE TO A LETTER DATED MAY 15. THIS DOCUMENT WAS RECEIVED BY HER PERSONNEL SECTION AND DATE STAMPED "MARCH 9. THROUGH ADMINISTRATIVE ERROR NO PAYROLL DEDUCTIONS WERE MADE FOR THE OPTIONAL INSURANCE BEGINNING WITH THE PAY PERIOD ENDING APRIL 18.

B-200258, FEB 4, 1981

DIGEST: EMPLOYEE OF THE FEDERAL GOVERNMENT ELECTED OPTIONAL LIFE INSURANCE IN 1970, BUT DUE TO ERROR, NO PAYROLL DEDUCTIONS WERE MADE FROM THEN UNTIL 1978 CAUSING AN OVERPAYMENT OF PAY. STANDARD FORM 50 WAS ISSUED SHORTLY AFTER COVERAGE WAS INITIATED INFORMING EMPLOYEE THAT COVERAGE HAD BEGUN. SINCE SHE RECEIVED THIS NOTICE, SHE SHOULD HAVE EXPECTED A PAY REDUCTION AND WHEN THAT DID NOT OCCUR, SHE SHOULD HAVE MADE INQUIRY. FAILURE TO DO SO MAKES HER AT LEAST PARTIALLY AT FAULT, THEREBY PRECLUDING WAIVER UNDER 5 U.S.C. 5584. ALSO SINCE SHE HAD THE OPTIONAL COVERAGE DURING THE PERIOD OF OVERPAYMENT IT IS NOT AGAINST EQUITY AND GOOD CONSCIENCE TO REQUIRE PAYMENT.

MIRIAM SAMBUR:

THIS ACTION IS IN RESPONSE TO A LETTER DATED MAY 15, 1980, WITH ENCLOSURES, FROM MR. JAMES N. MCARN, OF LOCAL 3369, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, WRITTEN ON BEHALF OF MRS. MIRIAM SAMBUR, AN EMPLOYEE OF THE SOCIAL SECURITY ADMINISTRATION, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION ACTION OF JANUARY 8, 1980, DENYING WAIVER OF MRS. SAMBUR'S INDEBTEDNESS TO THE UNITED STATES WHICH AROSE AS A RESULT OF HER AGENCY'S FAILURE TO MAKE DEDUCTIONS FROM HER PAY FOR OPTIONAL LIFE INSURANCE COVERAGE UNDER THE FEDERAL EMPLOYEES GROUP LIFE INSURANCE PROGRAM. FOR THE FOLLOWING REASONS HER REQUEST FOR WAIVER MUST BE DENIED.

THE RECORD SHOWS THAT BY STANDARD FORM 176, SIGNED BY MRS. SAMBUR AND DATED MARCH 6, 1970, SHE ELECTED TO INCREASE HER INSURANCE COVERAGE BY TAKING THE OPTIONAL LIFE INSURANCE MADE AVAILABLE TO HER. THIS DOCUMENT WAS RECEIVED BY HER PERSONNEL SECTION AND DATE STAMPED "MARCH 9, 1970." HOWEVER, THROUGH ADMINISTRATIVE ERROR NO PAYROLL DEDUCTIONS WERE MADE FOR THE OPTIONAL INSURANCE BEGINNING WITH THE PAY PERIOD ENDING APRIL 18, 1970, THROUGH THE PAY PERIOD ENDING FEBRUARY 25, 1978. THE AMOUNT OF THE UNDERDEDUCTION FOR THAT PERIOD WAS ESTABLISHED AS $1,826.50.

IN THE REQUEST FOR RECONSIDERATION, IT IS CONTENDED THAT MRS. SAMBUR DID NOT CAUSE THE ERROR. FURTHER, THERE WAS NO SIGNIFICANT UNEXPLAINED CHANGE IN HER PAY DURING THE 8-YEAR PERIOD IN QUESTION TO PUT HER ON NOTICE OF AN ADMINISTRATIVE ERROR TO LEAD HER TO MAKE INQUIRY ABOUT THE MATTER.

THE AUTHORITY FOR WAIVER OF ERRONEOUS PAYMENTS OF PAY AND ALLOWANCES MADE TO EMPLOYEES OF THE FEDERAL GOVERNMENT IS CONTAINED IN 5 U.S.C. 5584 (1970). THAT SECTION PROVIDES THAT WHERE COLLECTION OF SUCH OVERPAYMENTS WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTEREST OF THE UNITED STATES, IT MAY BE WAIVED BY THE COMPTROLLER GENERAL, UNLESS:

"*** IN HIS OPINION, THERE EXISTS, IN CONNECTION WITH THE CLAIM, AN INDICATION OF FRAUD, MISREPRESENTATION, FAULT, OR LACK OF GOOD FAITH ON THE PART OF THE EMPLOYEE OR ANY OTHER PERSON HAVING AN INTEREST IN OBTAINING A WAIVER OF THE CLAIM ***."

WE CONSIDER "FAULT" TO EXIST IF, FROM ALL THE CIRCUMSTANCES, IT IS DETERMINED THAT THE INDIVIDUAL CONCERNED SHOULD HAVE KNOWN THAT AN ERROR EXISTED, BUT FAILED TO TAKE ACTION TO HAVE IT CORRECTED. SEE 4 C.F.R. 91.5 AND 56 COMP.GEN. 943 (1977). THE STANDARD EMPLOYED BY THIS OFFICE IS TO DETERMINE WHETHER A REASONABLE PERSON SHOULD HAVE BEEN AWARE THAT HE WAS RECEIVING PAYMENT IN EXCESS OF HIS PROPER ENTITLEMENT. SEE MATTER OF GEORGE R. BEECHERL, B-192485, NOVEMBER 17, 1978.

MRS. SAMBUR INITIALLY DID NOT HAVE THE OPTIONAL LIFE INSURANCE. THE RECORD SHOWS THAT SHE DECLINED SUCH COVERAGE IN 1968. DURING THE OPEN SEASON OF 1970, SHE MADE A CONSCIOUS CHOICE TO ACQUIRE THE ADDITIONAL OPTIONAL INSURANCE AND EXECUTE A STANDARD FORM 176 FOR THIS PURPOSE. STANDARD FORM 50, DATED APRIL 3, 1970, SHE WAS NOTIFIED OF THE CHANGE IN HER INSURANCE COVERAGE TO BE EFFECTIVE APRIL 5, 1970. CLEARLY SHE DID NOT CAUSE THE ERROR; HOWEVER, IT IS OUR VIEW THAT SHE SHOULD HAVE EXPECTED A REDUCTION IN HER NET PAY THEREAFTER TO REFLECT THE INCREASED INSURANCE COVERAGE COST. SINCE NO DEDUCTIONS WERE MADE, SHE SHOULD HAVE BEEN ON NOTICE OF AN ERROR, AND MADE INQUIRY INTO THE MATTER AT THAT TIME.

EVERY EMPLOYEE HAS A DUTY TO EXAMINE HIS PERSONNEL AND PAY RECORDS WHEN THEY ARE FURNISHED TO DETERMINE THEIR CORRECTNESS. FAILURE OF AN EMPLOYEE TO ASSUME SUCH RESPONSIBILITY PLACES THAT INDIVIDUAL IN THE POSITION OF BEING AT LEAST PARTIALLY AT FAULT IF THE RECORDS ARE INACCURATE AND ARE PERMITTED TO REMAIN SO. SEE MATTER OF BERNARD J. KILLEEN, JR., B-198207, AUGUST 22, 1980.

FURTHERMORE, SINCE SHE WAS COVERED UNDER THE OPTIONAL INSURANCE PROGRAM DURING THE PERIOD IN QUESTION, WE DO NOT BELIEVE IT IS AGAINST EQUITY AND GOOD CONSCIENCE TO REQUIRE PAYMENT FOR THE COVERAGE.

ACCORDINGLY, WE HEREBY SUSTAIN THE DETERMINATION BY OUR CLAIMS DIVISION DENYING MRS. SAMBUR'S REQUEST FOR WAIVER.