B-231926, Aug 23, 1989, 68 Comp.Gen. 629

B-231926: Aug 23, 1989

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Civilian Personnel - Compensation - Overpayments - Error detection - Debt collection - Waiver Waiver of collection of salary overpayments resulting from premature within-grade increase is granted in the case of a foreign national who had been hired overseas with no prior federal experience and had only 2 years of federal service at the time the erroneous action occurred. Federal employees are expected to know the appropriate waiting periods for within-grade increases and to make inquiry about increases which do not conform to those waiting periods. Was hired by USIA on December 27. He was promoted to GS-12. Anderegg was erroneously granted a WGI effective January 5. Which would have been the correct date had he not been promoted.

B-231926, Aug 23, 1989, 68 Comp.Gen. 629

Civilian Personnel - Compensation - Overpayments - Error detection - Debt collection - Waiver Waiver of collection of salary overpayments resulting from premature within-grade increase is granted in the case of a foreign national who had been hired overseas with no prior federal experience and had only 2 years of federal service at the time the erroneous action occurred. As a general rule, federal employees are expected to know the appropriate waiting periods for within-grade increases and to make inquiry about increases which do not conform to those waiting periods. However, in the present case, the employee's limited exposure to the federal personnel system warrants an exception to this general rule.

Richard G. Anderegg-- Waiver of Salary Overpayment-- Premature Within Grade Increase:

Mr. Anderegg, an employee of the United States Information Agency (USIA), appeals a settlement by our Claims Group (Z-2880785, Oct. 14, 1987) which denied his request for waiver under 5 U.S.C. Sec. 5584 of the government's claim against him for $812.52 he received in salary overpayments as a result of an erroneous within-grade increase. For the reasons stated hereafter, we overrule the settlement and grant Mr. Anderegg's request for waiver.

Mr. Anderegg, a Swiss national, was hired by USIA on December 27, 1983, as a GS-11 International Radio Broadcaster for the Voice of America. Effective October 27, 1985, he was promoted to GS-12, step 1, making the correct date for his next within-grade increase (WGI) October 26, 1986. However, Mr. Anderegg was erroneously granted a WGI effective January 5, 1986, which would have been the correct date had he not been promoted. The error was not discovered until March 1987, resulting in salary overpayments to him of $812.52.

The Comptroller General is authorized by 5 U.S.C. Sec. 5584 to waive claims for erroneous salary payments if collection "would be against equity and good conscience and not in the best interest of the United States." These statutory criteria generally will be met by a finding that "there is no indication of fraud, misrepresentation, fault or lack of good faith" on the part of the employee seeking waiver. 4 C.F.R. Para. 91.5(c). Since there is no indication of fraud, misrepresentation or lack of good faith on the part of Mr. Anderegg, the issue of waiver turns on whether he was at "fault" with respect to the erroneous overpayment. consider fault to exist if, in light of all the circumstances, the employee knew or should have known that an error existed but took no action to have it corrected.

Frederick D. Crawford, 62 Comp.Gen. 608 (1983).

The USIA and the Claims Group denied Mr. Anderegg's request for waiver on the basis that, as an employee with several years of government experience, he should have been aware of the appropriate waiting periods for WGIs and should therefore have questioned the premature WGI. In his appeal, Mr. Anderegg counters that he did not know and, based on his limited experience, had no reason to suspect that his WGI was erroneous.

We agree with Mr. Anderegg. It is true that our decisions establish the general rule that federal employees should be aware of the waiting periods between WGIs and should inquire about an increase not in accord with the appropriate waiting period. See, e.g., Daniel J. Rendon, B-231018, Aug. 2, 1989, 68 Comp.Gen. ***; Dominick A. Galante, B-198570, Nov. 19, 1980. On the other hand, as discussed in Galante, these decisions involved employees who had many years of federal service, who held positions requiring specialized knowledge about the federal pay structure, who had prior experience with erroneous WGIs, or who had some specific knowledge or reason to know that a particular WGI was erroneous. Thus, the general rule charging employees with knowledge of WGI waiting periods depends on the circumstances and its applicability must be determined on a case-by- case basis.

We conclude that there are sufficient mitigating factors in Mr. Anderegg's case-- primarily his relatively brief federal service-- to warrant an exception to the general rule holding employees accountable for recognizing erroneous WGIs. Accordingly, we grant his request for waiver.