Request for Pay Determination and Position Classification

An opinion was requested concerning a pay determination in an agency which had established and filled a new position. The employee elected to fill the position at a higher grade salary, never reported to it, and later the creation of the new position was determined to be improper. Subsequently, the position was abolished, and the employee was returned to his lower grade. The agency asked GAO if the employee was illegally overpaid from the time that he was assigned to the new position, whether he was liable for the return of the difference in salary, and if this was a situation in which a request to waive repayment could be considered. GAO has no authority to settle claims on any other basis than agency or OPM classification. GAO could not conclude that the employee's appointment was legally erroneous; therefore, corrective action could not be retroactively extended to the date of the appointment. Payments made before the corrective action were not erroneous overpayments and are not subject to any claim by the Government. Because the overpayments which the employee received after the corrective action were erroneous overpayments, the responsibility for collection rested with the agency. Since there was no indication of fault on the part of the employee, the overpayments may be waived.