B-105382, NOVEMBER 15, 1951, 31 COMP. GEN. 177

B-105382, NOVEMBER 15, 1951, 31 COMP. GEN. 177

COMPENSATION - RATES - NEW APPOINTEES ALL NEW APPOINTMENTS MADE TO POSITIONS COVERED BY THE CLASSIFICATION ACT ARE REQUIRED TO BE MADE AT THE MINIMUM RATE OF COMPENSATION ESTABLISHED FOR SUCH POSITIONS, AND THEREFORE, AN INDIVIDUAL WHO RECEIVED A NEW APPOINTMENT TO A POSITION UNDER THE ACT AT A RATE OF COMPENSATION IN EXCESS OF THE MINIMUM RATE PRESCRIBED FOR THE POSITION MUST REFUND ALL AMOUNTS RECEIVED IN EXCESS OF SAID MINIMUM RATE.

COMPTROLLER GENERAL WARREN TO BERNICE BROWN, NOVEMBER 15, 1951:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 6, 1951, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT OF JULY 6, 1951, WHEREIN YOU WERE CERTIFIED TO BE INDEBTED TO THE UNITED STATES IN THE SUM OF $112.90, REPRESENTING OVERPAYMENT OF COMPENSATION FOR THE PERIOD JANUARY 13 TO MAY 17, 1947, WHILE EMPLOYED BY THE WAR ASSETS ADMINISTRATION. THE INDEBTEDNESS IN QUESTION AROSE FROM THE FACT THAT UNDER YOUR APPOINTMENT TO A POSITION COVERED BY THE CLASSIFICATION ACT OF 1923, 42 STAT. 1488, AS AMENDED, YOU WERE PAID COMPENSATION AT A RATE IN EXCESS OF THE MINIMUM RATE PRESCRIBED FOR SUCH POSITION. YOU CONTEND THAT YOU ARE ENTITLED TO RETAIN THE ENTIRE AMOUNT OF COMPENSATION RECEIVED BECAUSE YOU WERE PROMISED BY WAR ASSETS ADMINISTRATION OFFICIALS THAT YOU WOULD BE PAID AT THAT RATE AND THAT YOU WOULD NOT HAVE ACCEPTED SUCH EMPLOYMENT HAD THE RATE OF COMPENSATION BEEN LESS THAN THAT WHICH YOU RECEIVED. FURTHER, IT IS CONTENDED THAT TO HAVE COMPENSATED YOU AT A RATE LESS THAN THAT PROMISED WOULD HAVE CONSTITUTED "CLEAR CUT" MISREPRESENTATION ON THE PART OF WAR ASSETS ADMINISTRATION OFFICIALS.

AT THE TIME OF YOUR APPOINTMENT, THE MINIMUM OF THE GRADE--- CAF-4-- TO WHICH YOU WERE APPOINTED WAS $2,394 PER ANNUM. HOWEVER, YOU WERE PAID COMPENSATION AT THE RATE OF $2,694.96 PER ANNUM IN CONTRAVENTION OF SECTION 6 OF THE CLASSIFICATION ACT OF 1923, 42 STAT. 1490, AS AMENDED, WHICH PROVIDED THAT "ALL NEW APPOINTMENTS SHALL BE MADE AT THE MINIMUM RATE OF THE APPROPRIATE GRADE OR CLASS THEREOF.' NO OFFICER OR EMPLOYEE OF THE UNITED STATES IS AUTHORIZED TO DISPENSE WITH THE REQUIREMENTS OF THE SAID STATUTORY PROVISION AND ALL NEW APPOINTMENTS MADE TO POSITIONS COVERED BY THE CLASSIFICATION ACT ARE REQUIRED TO BE MADE AT THE MINIMUM RATE ESTABLISHED FOR SUCH GRADES. IT MAY BE POINTED OUT THAT PARTIES ILLEGALLY RECEIVING MONEYS PAID BY A PUBLIC OFFICER ARE LIABLE TO REFUND THEM ( WISCONSIN CENTRAL RAILROAD COMPANY V. UNITED STATES, 164 U.S. 190, 212; UNITED STATES V. WERTS, 303 U.S. 414) IRRESPECTIVE OF WHETHER SUCH MONEYS WERE PAID AS A RESULT OF MISTAKE OF FACT AND/OR LAW. UNITED STATES V. GUDEWICZ, 45 F.1SUPP. 787. SEE, ALSO, 22 COMP. GEN. 952, AND CASES CITED THEREIN. IN VIEW OF SUCH ESTABLISHED LEGAL PRECEDENT IT IS INCUMBENT UPON THE GENERAL ACCOUNTING OFFICE TO REQUIRE REFUNDS OF ALL PAYMENTS MADE IN EXCESS OF THE RATES SO FIXED BY STATUTE--- SEE 31 U.S.C. 71--- AND, THEREFORE, FAVORABLE CONSIDERATION MAY NOT BE GIVEN TO YOUR REQUEST FOR WAIVING THE RECOVERY OF THE AMOUNT UNLAWFULLY PAID TO YOU.

ACCORDINGLY, THE ACTION TAKEN IN THE SETTLEMENT OF JULY 6, 1951, IS FOUND CORRECT AND SUCH SETTLEMENT HEREBY IS SUSTAINED. IN ORDER TO AVOID COSTS INCIDENT TO COLLECTION OF THE AMOUNT DUE BY MORE FORMAL LEGAL PROCEEDINGS, IT IS TO YOUR ADVANTAGE TO MAKE PROMPT REMITTANCE OF THE AMOUNT IN QUESTION TO THE CLAIMS DIVISION OF THIS OFFICE.