B-198760, APR 27, 1981
Highlights
DIGEST: WAIVER OF OVERPAYMENTS IS GRANTED WHERE THE AGENCY IMPROPERLY FIXED EMPLOYEE'S STEP RATE UPON PROMOTION. THE RELATIVELY SMALL OVERPAYMENTS EACH PAY PERIOD WOULD HAVE BEEN DIFFICULT FOR THE EMPLOYEE TO DISCOVER. SINCE HE WAS LOCATED AT WORK SITES AWAY FROM THE OFFICE WHICH MADE THE ERRORS. THE DIFFICULTY WAS COMPOUNDED BY HIS SECOND PROMOTION AND BY COST OF LIVING INCREASES GRANTED SHORTLY AFTER THE PROMOTIONS. THE EMPLOYEE WAS NOT IN A POSITION TO KNOW PAY REGULATIONS. KING - WAIVER OF OVERPAYMENT: THE ISSUE IN THIS CASE IS WHETHER THERE SHOULD BE WAIVER OF AN OVERPAYMENT RESULTING FROM PROMOTIONS TO INCORRECT WITHIN-GRADE STEPS. WAS OVERPAID A TOTAL OF $1. THE PROPER STEP SHOULD HAVE BEEN STEP 8 IN GRADE GS-7.
B-198760, APR 27, 1981
DIGEST: WAIVER OF OVERPAYMENTS IS GRANTED WHERE THE AGENCY IMPROPERLY FIXED EMPLOYEE'S STEP RATE UPON PROMOTION. THE RELATIVELY SMALL OVERPAYMENTS EACH PAY PERIOD WOULD HAVE BEEN DIFFICULT FOR THE EMPLOYEE TO DISCOVER, SINCE HE WAS LOCATED AT WORK SITES AWAY FROM THE OFFICE WHICH MADE THE ERRORS. THE DIFFICULTY WAS COMPOUNDED BY HIS SECOND PROMOTION AND BY COST OF LIVING INCREASES GRANTED SHORTLY AFTER THE PROMOTIONS. FURTHER, THE EMPLOYEE WAS NOT IN A POSITION TO KNOW PAY REGULATIONS.
RUPERT C. KING - WAIVER OF OVERPAYMENT:
THE ISSUE IN THIS CASE IS WHETHER THERE SHOULD BE WAIVER OF AN OVERPAYMENT RESULTING FROM PROMOTIONS TO INCORRECT WITHIN-GRADE STEPS.
MR. RUPERT C. KING, A CIVILIAN EMPLOYEE OF THE NAVY, WAS OVERPAID A TOTAL OF $1,322.40. AN ADMINISTRATIVE ERROR RESULTED IN HIS PROMOTION ON SEPTEMBER 28, 1975, TO STEP 9 OF GRADE GS-7 FROM STEP 9 OF GRADE GS 6. THE PROPER STEP SHOULD HAVE BEEN STEP 8 IN GRADE GS-7.
THE ERROR WAS COMPOUNDED WHEN HE WAS LATER PROMOTED FROM GS-7, STEP 9, TO GS-8, STEP 9 (SHOULD HAVE BEEN STEP 7), EFFECTIVE NOVEMBER 7, 1976. THE ERRORS WERE NOT DISCOVERED UNTIL NOVEMBER 15, 1977. THE NAVY RECOMMENDED THAT OVERPAYMENT AFTER THAT DATE TOTALLING $35.20 BE DISALLOWED AND THAT THE BALANCE OF $1,287.20 BE WAIVED.
OUR CLAIMS DIVISION ON DECEMBER 18, 1979, Z-2805434, DENIED WAIVER BECAUSE THE EMPLOYEE, BASED ON HIS GRADE LEVEL AND EXPERIENCE, SHOULD HAVE KNOWN THAT THE STEP LEVEL WAS INCORRECT AND SHOULD HAVE PROMPTLY QUESTIONED THE APPROPRIATE OFFICIALS.
MR. KING BELIEVES WAIVER IS PROPER BECAUSE HE HAD LITTLE OR NO TIME TO CHECK FOR ADMINISTRATIVE ERRORS, SINCE AS A CONSTRUCTION REPRESENTATIVE HE MOVED FROM ONE CONSTRUCTION SITE TO ANOTHER IN LOCATIONS AWAY FROM THE OFFICE WHICH MADE THE ERRORS. FURTHER, THE SMALL AMOUNTS OF THE OVERPAYMENTS, THE COST OF LIVING INCREASES THAT OCCURRED IMMEDIATELY AFTER THE PROMOTIONS, AND THE MAILING OF HIS PAY CHECKS DIRECTLY TO HIS BANK MADE THE ERRORS DIFFICULT TO DETECT. THE AGENCY'S ADMINISTRATIVE REPORTS CONCUR WITH MR. KING'S VIEWS.
AN EMPLOYEE'S REQUEST FOR WAIVER OF OVERPAYMENT UNDER 5 U.S.C. SEC. 5584 MUST BE ACCOMPANIED BY CLEAR AND CONVINCING PROOF THAT THE GOVERNMENT'S COLLECTION OF THE DEBT WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTEREST OF THE GOVERNMENT. B-168738, FEBRUARY 24, 1970. HOWEVER, WE HAVE HELD THAT WAIVER IS PROPER IF A RELATIVELY SMALL ERROR EACH PAY PERIOD IS DIFFICULT TO DETECT BECAUSE OF PAY FLUCTUATION, AND IF THE EMPLOYEE IS NOT OTHERWISE ON NOTICE OF THE ERROR BY REASON OF HIS OFFICIAL POSITION AND KNOWLEDGE OF PAY MATTERS. B-172975, OCTOBER 27, 1971; WILLIAM WHITE, B-186562, MARCH 11, 1977.
THE RECORD IN THIS CASE INDICATES THAT THE RELATIVELY SMALL OVERPAYMENTS WOULD HAVE BEEN DIFFICULT FOR MR. KING TO DISCOVER BECAUSE OF THE PAY FLUCTUATIONS AND THE OTHER CIRCUMSTANCES CORROBORATED BY HIS EMPLOYING AGENCY. FURTHER, HE WAS A CONSTRUCTION REPRESENTATIVE AND NOT IN A POSITION TO KNOW THE REGULATIONS CONCERNING COMPENSATION AND CHANGES IN PAY RATES.
ACCORDINGLY, OUR CLAIMS DIVISION'S DENIAL OF WAIVER, DECEMBER 18, 1979, IS REVERSED AND MR. KING'S REQUEST FOR WAIVER OF $1,287.20 IS GRANTED.