B-206674.OM, MAR 25, 1982

B-206674.OM: Mar 25, 1982

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DIGEST: WAIVER OF OVERPAYMENTS IS GRANTED WHERE THE AGENCY IMPROPERLY FIXED EMPLOYEE'S STEP RATE UPON PROMOTION. IT APPEARED THAT THE EMPLOYEE WAS NOT FAMILIAR WITH THE PAY REGULATIONS AND WAS NOT FURNISHED WITH PAY OR PERSONNEL RECORDS WHICH. WOULD HAVE LED TO THE DISCOVERY OF THE ERROR. 5 U.S.C. 5584. AFMD - CLAIMS GROUP (ROOM 5858): ATTACHED IS A LETTER DATED MARCH 9. FOR THE REASONS STATED BELOW WE HAVE DETERMINED THAT WAIVER OF MS. UNDER THE APPLICABLE CIVIL SERVICE REGULATIONS THE PROMOTION SHOULD HAVE BEEN TO GRADE GS-11. IT WAS THEN DETERMINED THAT THE ERROR HAD CAUSED HER TO BE OVERPAID IN THE TOTAL AMOUNT OF $1. MARTIN ESSENTIALLY INDICATES THAT SHE HAS NEVER WORKED IN A GOVERNMENT PAYROLL OR PERSONNEL OFFICE AND WAS UNFAMILIAR WITH THE CIVIL SERVICE REGULATIONS "WHICH PERTAIN TO SETTING PAY FOR PROMOTIONS.".

B-206674.OM, MAR 25, 1982

SUBJECT: BARBARA I. MARTIN - APPLICATION FOR WAIVER B-206674-O.M. DIGEST: WAIVER OF OVERPAYMENTS IS GRANTED WHERE THE AGENCY IMPROPERLY FIXED EMPLOYEE'S STEP RATE UPON PROMOTION, AND IT APPEARED THAT THE EMPLOYEE WAS NOT FAMILIAR WITH THE PAY REGULATIONS AND WAS NOT FURNISHED WITH PAY OR PERSONNEL RECORDS WHICH, IF EXAMINED, WOULD HAVE LED TO THE DISCOVERY OF THE ERROR. 5 U.S.C. 5584.

ASSOCIATE DIRECTOR, AFMD - CLAIMS GROUP (ROOM 5858):

ATTACHED IS A LETTER DATED MARCH 9, 1982, FROM THE PRINCIPAL DEPUTY ASSISTANT SECRETARY (POLICY, BUDGET AND ADMINISTRATION), UNITED STATES DEPARTMENT OF THE INTERIOR, FORWARDING THE APPLICATION OF BARBARA I. MARTIN FOR A WAIVER OF THE GOVERNMENT'S CLAIM AGAINST HER FOR THE COLLECTION OF $1,094.80 IN OVERPAYMENTS OF PAY AND ALLOWANCES SHE RECEIVED BETWEEN JULY 1981 AND JANUARY 1982. FOR THE REASONS STATED BELOW WE HAVE DETERMINED THAT WAIVER OF MS. MARTIN'S DEBT WOULD BE APPROPRIATE.

ON JULY 26, 1981, THE DEPARTMENT OF THE INTERIOR PROMOTED MS. MARTIN FROM GRADE GS-9, STEP 7, TO GRADE GS-11. THROUGH ADMINISTRATIVE ERROR THE DEPARTMENT IMPROPERLY FIXED HER STEP RATE UPON PROMOTION AT STEP 6 OF GRADE GS-11. UNDER THE APPLICABLE CIVIL SERVICE REGULATIONS THE PROMOTION SHOULD HAVE BEEN TO GRADE GS-11, STEP 3. THE DEPARTMENT'S PERSONNEL OFFICE EVENTUALLY DISCOVERED THE ERROR IN JANUARY 1982, AND IT WAS THEN DETERMINED THAT THE ERROR HAD CAUSED HER TO BE OVERPAID IN THE TOTAL AMOUNT OF $1,094.80 BETWEEN JULY 1981 AND JANUARY 1982.

IN HER APPLICATION FOR WAIVER, MS. MARTIN ESSENTIALLY INDICATES THAT SHE HAS NEVER WORKED IN A GOVERNMENT PAYROLL OR PERSONNEL OFFICE AND WAS UNFAMILIAR WITH THE CIVIL SERVICE REGULATIONS "WHICH PERTAIN TO SETTING PAY FOR PROMOTIONS." SHE INDICATES THAT SHE DID NOT KNOW OR SUSPECT SHE WAS BEING OVERPAID UNTIL THE DEPARTMENT'S PERSONNEL OFFICE DISCOVERED THE ERROR IN JANUARY 1982, AND SHE EXPRESSES THE BELIEF THAT ANY COLLECTION ACTION AGAINST HER FOR THE RECOVERY OF THE OVERPAYMENTS WOULD THEREFORE BE UNFAIR. IN FORWARDING THE MATTER TO US, THE DEPARTMENT OF THE INTERIOR CORROBORATES HER STATEMENTS CONCERNING HER LACK OF EXPERTISE IN PAY AND PERSONNEL MATTERS AND SUGGESTS THAT SHE SHOULD BE GRANTED A WAIVER IN ACCORDANCE WITH THE REASONING CONTAINED IN MATTER OF WHITE, B-186562, MARCH 11, 1977.

UNDER THE AUTHORITY OF SECTION 5584, TITLE 5, U.S.C. WE ARE AUTHORIZED TO WAIVE OVERPAYMENTS OF PAY AND ALLOWANCES RECEIVED BY AN EMPLOYEE IF COLLECTION ACTION "WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES." HOWEVER, THAT AUTHORITY MAY NOT BE EXERCISED IF THERE IS AN INDICATION OF FAULT ON THE PART OF THE EMPLOYEE IN THE MATTER. "FAULT" IS CONSIDERED TO EXIST IF IT IS DETERMINED THAT THE EMPLOYEE KNEW OR SHOULD HAVE KNOWN THAT AN ERROR EXISTED BUT FAILED TO TAKE CORRECTIVE ACTION. 4 C.F.R. 91.5.

WHEN AN EMPLOYEE HAS BEEN ASSIGNED TO THE WRONG STEP WITHIN A GRADE UPON A PROMOTION OR THE ASSUMPTION OF A NEW POSITION, WE HAVE USUALLY WAIVED ANY RESULTING OVERPAYMENTS. THE REASON FOR THIS IS THAT MOST EMPLOYEES CANNOT REASONABLY BE EXPECTED TO KNOW THE FINER POINTS OF THE CIVIL SERVICE REGULATIONS GOVERNING THOSE PERSONNEL ACTIONS, AND THEY ARE GENERALLY NOT FURNISHED WITH ANY PAY OR PERSONNEL RECORDS WHICH, ON THEIR FACE, ARE ERRONEOUS OR SHOW ASSIGNMENT TO THE WRONG STEP WITHIN A GRADE. HENCE, IN THAT SITUATION, WE HAVE ORDINARILY GRANTED WAIVERS ON THE BASIS OF A CONCLUSION THAT THE EMPLOYEE COULD NOT REASONABLY HAVE BEEN EXPECTED TO KNOW OR SUSPECT HE WAS BEING OVERPAID AND WAS THEREFORE WITHOUT FAULT. SEE MATTER OF KING, B-198760, APRIL 27, 1981; MATTER OF ZERR, B-184182, JULY 22, 1976; AND B-198569-O.M., NOVEMBER 28, 1980. ON THE OTHER HAND, FAVORABLE CONSIDERATION FOR WAIVER WILL NOT BE GIVEN TO AN EMPLOYEE ASSIGNED TO THE WRONG STEP WITHIN A GRADE UPON A PROMOTION OR THE ASSUMPTION OF A NEW POSITION IF EVIDENCE EXISTS INDICATING THAT THE EMPLOYEE ACTUALLY KNEW OF THE ERROR, OR WAS FURNISHED WITH PAY AND PERSONNEL RECORDS WHICH ON THEIR FACE SHOWED THE EXISTENCE OF THE ERROR. SEE MATTER OF LANSDOWN, B-201815, MARCH 25, 1981; AND MATTER OF BOURGOIS, B-198562, AUGUST 28, 1980. THE DECISION CITED BY THE DEPARTMENT OF THE INTERIOR, MATTER OF WHITE, DID NOT INVOLVE AN OVERPAYMENT RESULTING FROM AN ASSIGNMENT TO THE WRONG STEP WITHIN A GRADE, BUT IT DOES STATE THAT EMPLOYEES WHO ARE NOT PERSONNEL SPECIALISTS CANNOT BE EXPECTED TO BE THOROUGHLY FAMILIAR WITH PAYMENT REGULATIONS OR PRACTICES.

IN THE PRESENT CASE, EVERY INDICATION IS THAT MS. MARTIN WAS NOT AN EXPERT IN PAY AND PERSONNEL MATTERS, AND THAT SHE WAS FURNISHED WITH RECORDS UPON HER PROMOTION SHOWING HER NEW RATE OF PAY TO BE THAT PRESCRIBED FOR GRADE GS-11, STEP 6. OUR VIEW IS THAT IN THOSE CIRCUMSTANCES SHE COULD REASONABLY ASSUME SHE HAD BEEN ASSIGNED TO THE CORRECT GRADE AND STEP AND HAD NO REASON TO KNOW OR SUSPECT SHE WAS BEING OVERPAID. OUR CONCLUSION IS THAT SHE WAS WITHOUT FAULT IN ACCEPTING THE OVERPAYMENTS, AND WE THEREFORE AUTHORIZE A GRANT OF WAIVER IN HER CASE.

WE ASK THAT YOUR FINAL ACTION IN NOTIFYING THE DEPARTMENT OF THE INTERIOR OF THE DISPOSITION OF THIS MATTER BE EXPEDITED, AND THAT WE BE FURNISHED WITH A COPY OF YOUR LETTER TO THE DEPARTMENT.