B-239895, Feb 14, 1991, Office of General Counsel

B-239895: Feb 14, 1991

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Is advised that a former employee of the judicial branch must be considered partially at fault for failing to report an erroneous step increase after she received documents showing that an error had occurred. L. Ralph Mecham Director: This is in response to your letter of May 23. Resulting from erroneous salary payments she received because she was paid at the wrong step of her grade during 1984 to 1987. Welsh's request for waiver was initially reviewed and denied by you on the basis that the statutory standard for waiver had not been satisfied. On reconsideration you now believe that there are a number of factors in her case which may warrant an exception to the general rule that employees are presumed to know the waiting periods for within-grade increases.

B-239895, Feb 14, 1991, Office of General Counsel

CIVILIAN PERSONNEL - Compensation - Overpayments - Error detection - Debt collection - Waiver DIGEST: In an advisory opinion, the Director, Administrative Office of the U.S. Courts, is advised that a former employee of the judicial branch must be considered partially at fault for failing to report an erroneous step increase after she received documents showing that an error had occurred. Moreover, the agency error and delay in processing waiver and collecting the debt would not be a sufficient basis upon which to grant waiver of the debt.

Mr. L. Ralph Mecham

Director:

This is in response to your letter of May 23, 1990, regarding Ms. Sue Welsh's request for waiver of her debt in the amount of $3,040, resulting from erroneous salary payments she received because she was paid at the wrong step of her grade during 1984 to 1987.

Ms. Welsh's request for waiver was initially reviewed and denied by you on the basis that the statutory standard for waiver had not been satisfied. However, on reconsideration you now believe that there are a number of factors in her case which may warrant an exception to the general rule that employees are presumed to know the waiting periods for within-grade increases. Inasmuch as the Comptroller General and the Director of the Administrative Office of the United States Courts have concurrent jurisdiction under 5 U.S.C. Sec. 5584 (1988) to consider waiver requests /1/ you ask that we review the facts in Ms. Welsh's case and advise you whether waiver is statutorily authorized in her circumstances. You intend to grant waiver if our answer is yes.

Ms. Welsh's debt initially arose when she received two step increases on September 17, 1984, a within-grade increase (WGI) and a quality step increase (QSI). She was entitled to the QSI, but the WGI was improper because two years had not elapsed since her receipt of a Step-4 WGI on April 30, 1984. This error was discovered in late 1987 but not before it resulted in overpayments totalling $3,040 over the approximately 3-year period. Ms. Welsh was provided two notifications of basic pay changes clearly identifying the two pay increases and their effective dates, and she was also provided bi-weekly leave and earnings statements. At the time of the error, Ms. Welsh, a librarian, had over 17 years of experience in the federal service.

As you know, absent an indication of fraud, misrepresentation, fault or lack of good faith on the part of an employee receiving an erroneous payment, waiver may be granted if, after considering the totality of the circumstances, collection "would be against equity and good conscience and not in the best interests of the United States." 5 U.S.C. Sec. 5584.

Since waiver relief is equitable, the facts of each case should be considered individually. As you point out, employees generally are expected to be aware of the waiting periods between within-grade increases and to make inquiry about an increase not in accord with those waiting periods. Daniel J. Rendon, 68 Comp.Gen. 573 (1989). However, we have held that 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. Richard G. Anderegg, 68 Comp.Gen. 629 (1989).

At the time the error arose, Ms. Welsh received a quality step increase on the same day she was given the erroneous within-grade increase. You advised that you have no reason to believe that Ms. Welsh had actual personal knowledge of the correct waiting period for WGIs. Although Ms. Welsh had many years of federal service, she worked exclusively as a librarian and research specialist and had no direct or substantial responsibility for personnel matters at any point in her career.

We do not have a full statement from Ms. Welsh as to her understanding of the documentation she received at the time the erroneous WIG was awarded her. Normally, however, we would expect a person with her experience to be aware that she was not entitled to a second WIG less than 5 months after she received the previous WIG and to question the matter notwithstanding her lack of experience in personnel matters. Failure to question a significant unexplained increase in pay imputes fault to the employee which precludes waiver.

We have consistently held that an employee who has received documents that on their face show an error in the computation of his or her pay is considered to be on notice of the error, and the employee will be held at least partially at fault for failing to seek corrective action. See Kenneth E. Sulivan, B-232454, Sept. 1, 1989; Peter D. Bougois, B-198562, Aug. 28, 1980. Therefore, Ms. Welsh must be considered at least partially at fault for failing to detect and report the erroneous statement of her step level shown on the documentation she received.

Another factor you raise in this case is that the agency was guilty of numerous delays and missteps in connection with the collection process and waiver request. You indicate that the error was discovered by the agency in late 1987, and shortly thereafter, in January 1988, Ms. Welsh requested that the overpayment be waived. No action was taken on that request because at that time your office had no waiver authority. In October 1988 your office sent her a letter formally advising her of the debt and stating that amounts would be withheld from her pay until the debt was repaid. No action was taken to collect, however, because in November 1988 your office received statutory waiver authority.

Your consideration of waiver culminated in denial of waiver in December 1989, but the denial was not communicated to Ms. Welsh until after she terminated her employment with the court in February 1990. You indicate that Ms. Welsh was not kept apprised of developments relating to her waiver request and, as a result, was led to believe that waiver would be granted. She heard nothing to the contrary until she had resigned her federal employment.

Generally the agency's delay in processing waiver or collecting the debt would not relieve the employee of the responsibility to repay what he or she clearly knows is a debt. While unfortunate, we have not considered such actions to be a sufficient basis upon which to authorize waiver of a debt which does not otherwise qualify. See John A. DeHoyos, B-219005, June 17, 1986.

We hope this opinion will be helpful to you in reconsidering Ms. Welsh's request for waiver. Enclosed are copies of the decisions cited to assist you. Should you find that you require further assistance from this Office, your staff may contact David F. Engstrom, Assistant General Counsel, telephone number 275-5422.

/1/ Pub.L. 100-702, Sec. 1009(a), Nov. 19, 1988, 102 Stat. 4667, amended 5 U.S.C. Sec. 5584, to provide authority to waive claims against Judicial branch officers and employees. Such authority may be exercised by the Director of the Administrative Office of the United States Courts for claims aggregating not more than $10,000, and by the Comptroller General with no limitation on amount. The authority was made applicable to claims arising before the date of enactment of the amendment which were pending on such date.