B-232546, Oct 17, 1989

B-232546: Oct 17, 1989

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CIVILIAN PERSONNEL - Compensation - Overpayments - Error detection - Debt collection - Waiver DIGEST: A reemployed annuitant at the Department of State was overpaid salary due to administrative error in contravention of section 824 of the Foreign Service Act of 1980. The facts in the record demonstrate that the employee could reasonably be expected to have been aware of the statutory limitation. Waiver is denied since his failure to notify payroll officials of his receipt of salary and annuity payments in excess of the statutory limitation constituted fault on his part. McGovern's salary as a reemployed annuitant was subject to reduction in accordance with section 824 of the Foreign Service Act of 1980.

B-232546, Oct 17, 1989

CIVILIAN PERSONNEL - Compensation - Overpayments - Error detection - Debt collection - Waiver DIGEST: A reemployed annuitant at the Department of State was overpaid salary due to administrative error in contravention of section 824 of the Foreign Service Act of 1980, as amended (22 U.S.C. Sec. 4064), which requires that such an employee's combined salary and annuity not exceed, during any calendar year, the basic annual salary he received at the time of his retirement. The facts in the record demonstrate that the employee could reasonably be expected to have been aware of the statutory limitation. Waiver is denied since his failure to notify payroll officials of his receipt of salary and annuity payments in excess of the statutory limitation constituted fault on his part.

William J. McGovern:

Mr. McGovern, a former reemployed annuitant with the Department of State, appeals our Claims Group's denial of his request under 5 U.S.C. Sec. 5584 (1982) for waiver of $20,311.20 in erroneous salary overpayments he received during the period from January 1980 through September 20, 1983. Mr. McGovern's salary as a reemployed annuitant was subject to reduction in accordance with section 824 of the Foreign Service Act of 1980, as amended, 22 U.S.C. Sec. 4064, which limited his combined salary and annuity in any calendar year to the basic annual salary he received at the time of his retirement. However, through administrative error, this reduction was not made. Mr. McGovern contends that he was not aware of the statutory limitation and that there was confusion in the agency as to how to administer it.

The Claims Group correctly applied our established rule that when an employee knows or reasonably could be expected to know that he is being overpaid, he has a duty to question the accuracy of his pay. The fact that an overpayment is made through administrative error does not relieve the employee of this duty. Further, where an employee has records which, if reviewed, would indicate an erroneous payment and the employee fails to review such documents for accuracy or otherwise fails to take corrective action, he is not without fault and waiver will be denied. Sheldon H. Avenius, Jr., B-226465, Mar. 23, 1988; Robert A. Turner, B-200116, Mar. 23, 1981; Harry E. Polk, Sr., B-188104, June 9, 1977.

The record in this case contains a number of documents indicating that Mr. McGovern was on notice of the section 824 salary/annuity limitation. For example, the limitation in section 824 was noted in the personnel action which appointed Mr. McGovern to his position and the limitation was discussed in 1977 in memoranda between the embassy and consular offices concerned, with the written acknowledgement of Mr. McGovern. Also, the limitation was discussed in a memorandum dated April 6, 1976, from the agency addressed to Foreign Service annuitants reemployed in the federal service, a copy of which was mailed to Mr. McGovern and not returned as undeliverable by the Postal Service.

Therefore, Mr. McGovern actually knew or at the very least should have known of the limitation. Accordingly, the denial of waiver is sustained.