B-250044, February 5, 1993

B-250044: Feb 5, 1993

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These overpayments are described on pages 12-18 of our report. You requested that we waive the overpayments if we adhered to our view that they were unauthorized. We believe that the criteria for waiver are satisfied with respect to the erroneous payments identified in our report. These criteria will be met by a finding that the erroneous payment occurred through administrative error and that there is no indication of fraud. Waiver is precluded when an employee . . . receives a significant unexplained increase in pay or allowances. Nor did we find any indication that the recipients knew or reasonably should have known of the errors. Any claims arising from the overpayments to you or your employees described in our report are waived.

B-250044, February 5, 1993

The Honorable Lawrence E. Walsh Independent Counsel 555 Thirteenth Street, N.W. Washington, D.C. 20004

Dear Judge Walsh:

As you know, our recent financial audit of your office identified certain erroneous overpayments of compensation and travel reimbursements. These overpayments are described on pages 12-18 of our report, dated October 9, 1992, B-250044, "FINANCIAL AUDIT: Expenditures by Nine Independent Counsels (GAO/AFMD-93-1)."

In a memorandum to us dated October 5, 1992, you disagreed with our conclusions regarding some of the overpayments in question, but indicated that you would voluntarily follow our recommendations. At the same time, you requested that we waive the overpayments if we adhered to our view that they were unauthorized. You requested this waiver "as to the disbursements made in the past and similar future disbursements for the limited period prior to the completion of our remaining activities."

Section 5584(a) of title 5, United States Code, authorizes the Comptroller General to waive a claim of the United States against a person arising out of an erroneous payment of pay or allowances, including travel expenses, "the collection of which would be against equity and good conscience and not in the best interests of the United States. . . ."

We believe that the criteria for waiver are satisfied with respect to the erroneous payments identified in our report. Our regulations implementing 5 U.S.C. Sec. 5584 provide: "Waiver may be granted only when collection would be against equity and good conscience and not in the best interests of the United States. Generally, these criteria will be met by a finding that the erroneous payment occurred through administrative error and that there is no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee . . . having an interest in obtaining a waiver of the claim. Generally, waiver is precluded when an employee . . . receives a significant unexplained increase in pay or allowances, or otherwise knows, or reasonably should know, that an erroneous payment has occurred, and fails to make inquiries or bring the matter to the attention of the appropriate officials." 4 C.F.R. Sec. 91.5(b) (1992).

During the course of our audit, we found no indication that any of the erroneous payments in question occurred as a result of fraud, misrepresentation, fault or lack of good faith on the part of the recipients. Nor did we find any indication that the recipients knew or reasonably should have known of the errors. Rather, as our report observed at page 18--

"in general the overpayments we identified appear to be attributable not to any fault on the part of the recipients but to an oversight or ambiguities in the law or to erroneous advice provided to independent counsels . . . ."

Accordingly, any claims arising from the overpayments to you or your employees described in our report are waived.

With respect to future payments, we understand that your office has discontinued most of the expenditures which our report identified as being erroneous. The only exception is travel and subsistence expense reimbursement to you and one senior member of your staff, Mr. Craig Gillen, for temporary duty in Washington. We concluded in our report that these expense reimbursements were not authorized. However, our report went on to state in this regard, at page 16:

"We recognize that our conclusions call into question continued reimbursement to the two active independent counsels for expenses covered by 5 U.S.C. Sec. 5703 and continued reimbursement to one of their employees. As noted above, we believe that the lack of authority for such reimbursement to independent counsels, and perhaps also to their full-time employees, results from an oversight in the law. Therefore, we would not object to continuation of these reimbursements in order to allow the Congress an opportunity to address the issue."

As indicated in our report, we have followed this approach in other circumstances involving unauthorized payments which resulted from uncertain congressional intent. See 62 Comp.Gen. 438, 440 (1983); 57 Comp.Gen. 172, 176 (1977). See also 57 Comp.Gen. 575, 577 (1978); 34 Comp.Gen. 401, 404 (1955); B-129650, May 11, 1977, at 9. Of course, this approach applies only to continued reimbursement to independent counsels and their employees for expenses that would be authorized by 5 U.S.C. Sec. 5703. It does not extend to the other categories of unauthorized payments identified in our report.

B-250044

The Honorable Arlin M. Adams Independent Counsel 444 North Capitol Street, N.W. Suite 519 Washington, D.C. 20001

Dear Judge Adams:

As you know, our recent financial audit of your office identified certain erroneous overpayments of travel reimbursements to you incident to duty you performed in Washington, D.C. These overpayments are described on pages 14-15 of our report, dated October 9, 1992, B-250044, "FINANCIAL AUDIT: Expenditures by Nine Independent Counsels (GAO/AFMD-93-1)."

Section 5584(a) of title 5, United States Code, authorizes the Comptroller General to waive a claim of the United States against a person arising out of an erroneous payment of pay or allowances, including travel expenses, "the collection of which would be against equity and good conscience and not in the best interests of the United States. . . ." We believe that the criteria for waiver are satisfied with respect to the erroneous payments identified in our report.

Our regulations implementing 5 U.S.C. Sec. 5584 provide in this regard:

"Waiver may be granted only when collection would be against equity and good conscience and not in the best interests of the United States. Generally, these criteria will be met by a finding that the erroneous payment occurred through administrative error and that there is no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee . . . having an interest in obtaining a waiver of the claim. Generally, waiver is precluded when an employee . . . receives a significant unexplained increase in pay or allowances, or otherwise knows, or reasonably should know, that an erroneous payment has occurred, and fails to make inquiries or bring the matter to the attention of the appropriate officials." 4 C.F.R. Sec. 91.5(b) (1992).

During the course of our audit, we found no indication that the erroneous payments in question occurred as a result of fraud, misrepresentation, fault or lack of good faith. Nor did we find any indication that you knew or reasonably should have known of the errors. Rather, as our report observed at page 18--

"in general the overpayments we identified appear to be attributable not to any fault on the part of the recipients but to an oversight or ambiguities in the law or to erroneous advice provided to independent counsels . . . ."

Accordingly, any claim with respect to the overpayments previously made to you, as described in our report, are waived. Likewise, as indicated in our report, we will not object to continuation of these payments, which we believe resulted from an oversight in the law, while Congress considers the issue. See 62 Comp.Gen. 438, 440 (1983); 57 Comp.Gen. 172, 176 (1977). See also 57 Comp.Gen. 575, 577 (1978); 34 Comp.Gen. 401, 404 (1955); B-129650, May 11, 1977, at 9. We note in this regard that a recently introduced bill to reauthorize the independent counsel law would specifically provide for per diem reimbursement to 5 U.S.C. Sec. 5703, subject to certain limitations. See S. 24, 103d Cong., 1st Sess., Sec. 3(b), printed at 139 Cong. Rec. S424 (daily ed., Jan. 21, 1993).

B-250044

February 5, 1993

Mr. James R. Harper Chamberlain, Hrdlicka, White, Williams & Martin 1400 Harris Tower 233 Peachtree Street, N.E. Atlanta, GA 30303

Dear Mr. Harper:

As you know, our recent financial audit of your expenditures as an independent counsel identified certain erroneous overpayments of travel reimbursements to you incident to duty you performed in Washington, D.C. These overpayments are described on pages 14-15 of our report, dated October 9, 1992, B-250044, "FINANCIAL AUDIT: Expenditures by Nine Independent Counsels (GAO/AFMD-93-1)."

Section 5584(a) of title 5, United States Code, authorizes the Comptroller General to waive a claim of the United States against a person arising out of an erroneous payment of pay or allowances, including travel expenses, "the collection of which would be against equity and good conscience and not in the best interests of the United States. . . ." We believe that the criteria for waiver are satisfied with respect to the erroneous payments identified in our report.

Our regulations implementing 5 U.S.C. Sec. 5584 provide in this regard:

"Waiver may be granted only when collection would be against equity and good conscience and not in the best interests of the United States. Generally, these criteria will be met by a finding that the erroneous payment occurred through administrative error and that there is no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee . . . having an interest in obtaining a waiver of the claim. Generally, waiver is precluded when an employee . . . receives a significant unexplained increase in pay or allowances, or otherwise knows, or reasonably should know, that an erroneous payment has occurred, and fails to make inquiries or bring the matter to the attention of the appropriate officials." 4 C.F.R. Sec. 91.5(b) (1992).

During the course of our audit, we found no indication that the erroneous payments in question occurred as a result of fraud, misrepresentation, fault or lack of good faith. Nor did we find any indication that you knew or reasonably should have known of the errors. Rather, as our report observed at page 18--

"in general the overpayments we identified appear to be attributable not to any fault on the part of the recipients but to an oversight or ambiguities in the law or to erroneous advice provided to independent counsels . . . ."

Accordingly, any claim with respect to the overpayments to you described in our report is waived.

B-250044

February 5, 1993

Mr. James C. McKay Covington & Burling 1201 Pennsylvania Avenue, N.W. Suite 12098 P. O. Box 7566 Washington, D.C. 20004

Dear Mr. McKay:

As you know, our recent financial audit of your expenditures as an independent counsel identified certain erroneous overpayments of compensatory time and annual leave to you and certain of your employees. These overpayments are described on page 13 of our report, dated October 9, 1992, B-250044, "FINANCIAL AUDIT: Expenditures by Nine Independent Counsels (GAO/AFMD-93-1)."

Section 5584(a) of title 5, United States Code, authorizes the Comptroller General to waive a claim of the United States against a person arising out of an erroneous payment of pay or allowances, including travel expenses, "the collection of which would be against equity and good conscience and not in the best interests of the United States. . . ." We believe that the criteria for waiver are satisfied with respect to the erroneous payments identified in our report.

Our regulations implementing 5 U.S.C. Sec. 5584 provide in this regard:

"Waiver may be granted only when collection would be against equity and good conscience and not in the best interests of the United States. Generally, these criteria will be met by a finding that the erroneous payment occurred through administrative error and that there is no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee . . . having an interest in obtaining a waiver of the claim. Generally, waiver is precluded when an employee . . . receives a significant unexplained increase in pay or allowances, or otherwise knows, or reasonably should know, that an erroneous payment has occurred, and fails to make inquiries or bring the matter to the attention of the appropriate officials." 4 C.F.R. Sec. 91.5(b) (1992).

During the course of our audit, we found no indication that the erroneous payments in question occurred as a result of fraud, misrepresentation, fault or lack of good faith. Nor did we find any indication that you or the employees receiving such payments knew or reasonably should have known of the errors. Rather, as our report observed at page 18--

"in general the overpayments we identified appear to be attributable not to any fault on the part of the recipients but to an oversight or ambiguities in the law or to erroneous advice provided to independent counsels . . . ."

Accordingly, any claims with respect to the overpayments made to you and your employees, as described in our report, are waived.

B-250044

February 5, 1993

Mr. Whitney North Seymour, Jr. Room 2102 25 West 43rd Street New York, NY 10036

Dear Mr. Seymour:

As you know, our recent financial audit of your expenditures as an independent counsel identified certain erroneous overpayments of travel reimbursements to you incident to duty you performed in Washington, D.C. These overpayments are described on pages 14-15 of our report, dated October 9, 1992, B-250044, "FINANCIAL AUDIT: Expenditures by Nine Independent Counsels (GAO/AFMD-93-1)."

Section 5584(a) of title 5, United States Code, authorizes the Comptroller General to waive a claim of the United States against a person arising out of an erroneous payment of pay or allowances, including travel expenses, "the collection of which would be against equity and good conscience and not in the best interests of the United States. . . ." We believe that the criteria for waiver are satisfied with respect to the erroneous payments identified in our report.

Our regulations implementing 5 U.S.C. Sec. 5584 provide in this regard:

"Waiver may be granted only when collection would be against equity and good conscience and not in the best interests of the United States. Generally, these criteria will be met by a finding that the erroneous payment occurred through administrative error and that there is no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee . . . having an interest in obtaining a waiver of the claim. Generally, waiver is precluded when an employee . . . receives a significant unexplained increase in pay or allowances, or otherwise knows, or reasonably should know, that an erroneous payment has occurred, and fails to make inquiries or bring the matter to the attention of the appropriate officials." 4 C.F.R. Sec. 91.5(b) (1992).

During the course of our audit, we found no indication that the erroneous payments in question occurred as a result of fraud, misrepresentation, fault or lack of good faith. Nor did we find any indication that you knew or reasonably should have known of the errors. Rather, as our report observed at page 18--

"in general the overpayments we identified appear to be attributable not to any fault on the part of the recipients but to an oversight or ambiguities in the law or to erroneous advice provided to independent counsels . . . ."

Accordingly, any claim with respect to the overpayments made to you, as described in our report, is waived.

DIGEST

Erroneous payments to Independent Counsels and their staff for compensation, travel expenses, compensatory time, and annual leave are waived under 5 U.S.C. Sec. 5584 since there is no indication of fraud, misrepresentation, fault, or lack of good faith with respect to the overpayments. Moreover, the payment of certain travel expenses, which are not currently authorized as result of an oversight in the law, may continue while Congress considers the issue. See 62 Comp.Gen. 438 (1983).