B-231019, Jan 26, 1989

B-231019: Jan 26, 1989

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Waiver is denied since the employee had actual notice of the error and called it to the attention of his payroll office. Cloutier was employed by BLM in Nevada as a grade GS-4 Range Technician between June 2 and September 26. The payroll problem was corrected on August 17. Cloutier was overpaid $678.04. It is the position of the Bureau of Land Management that in his previous appointment in Alaska. Cloutier was aware of the erroneous payments of COLA and that he brought the error to the attention of agency officials. Cloutier does not deny that he was aware of a problem with his COLA. He asserts that he was not responsible for the payroll error. Provided there is no indication of fraud.

B-231019, Jan 26, 1989

CIVILIAN PERSONNEL - Compensation - Overpayments - Error detection - Debt collection - Waiver DIGEST: An employee requests waiver of cost-of-living allowance overpayments arising due to payroll error. Waiver is denied since the employee had actual notice of the error and called it to the attention of his payroll office.

Guy Cloutier - Erroneous Payments of Cost-of-Living Allowance:

Mr. Guy Cloutier, a seasonal employee of the Bureau of Land Management (BLM), appeals our Claims Group's denial of his claim for waiver of salary overpayments under the provisions of 5 U.S.C. Sec. 5584 (1982 & Supp. IV 1986). /1/ For the following reasons, we sustain the denial of his claim.

BACKGROUND

Mr. Cloutier was employed by BLM in Nevada as a grade GS-4 Range Technician between June 2 and September 26, 1986. During a previous period of employment with BLM in 1985, Mr. Cloutier had been entitled to a cost of living allowance (COLA) while serving as Forestry Technician in Fairbanks, Alaska. See 5 C.F.R. part 591 (1987). Due to an error in the payroll system, Mr. Cloutier continued to be paid a COLA in his position in Nevada from June 2 to August 16, 1986. The payroll problem was corrected on August 17, 1986, but Mr. Cloutier was overpaid $678.04.

It is the position of the Bureau of Land Management that in his previous appointment in Alaska, the Standard Form 50-B (SF5O-B), Notification of Personnel Action, provided to Mr. Cloutier indicated his entitlement to a COLA and the percentage of the total pay represented by a COLA. The agency calls our attention to the omission of any such provision in the SF5O-B form provided pursuant to Mr. Cloutier's employment in Nevada. addition, the agency points out that Mr. Cloutier was aware of the erroneous payments of COLA and that he brought the error to the attention of agency officials. Mr. Cloutier does not deny that he was aware of a problem with his COLA, but he asserts that he was not responsible for the payroll error.

OPINION

Section 5584 of title 5, United States Code, provides authority for waiver of collection of erroneous payments of pay if collection would be against equity and good conscience and not in the interest of the United States, provided there is no 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. However, fault is considered to exist if, in light of all the circumstances, it is determined that the individual concerned should have known that an error existed but failed to take corrective action. Frederick D. Crawford, 62 Comp.Gen. 608 (1983).

We have held that where an employee is aware of an overpayment, the employee cannot reasonably expect to retain the overpayment. Hawley E. Thomas, B-227322, Sept. 19, 1988. Therefore, we are unable to conclude that collection of the overpayments is against equity or good conscience or contrary to the best interests of the United States as contemplated in 5 U.S.C. Sec. 5584.

Accordingly, we sustain the denial of Mr. Cloutier's request for waiver of his indebtedness.

/1/ Z-2881620, Nov. 6, 1987.