B-135057, MAR. 6, 1958

B-135057, MAR. 6, 1958

TO MRS. MAE H. BEACH, AUTHORIZED CERTIFYING OFFICER, HEADQUARTERS UNITED STATES AIR FORCE:

ON JANUARY 28, 1958, YOU REQUESTED OUR DECISION ON WHETHER COLLECTION OF AN OVERPAYMENT OF SALARY TO MRS. GRACE C. REAM, AN EMPLOYEE AT YOUR HEADQUARTERS, MAY BE WAIVED IN LINE WITH OUR DECISION IN 28 COMP. GEN. 514 ON THE BASIS THAT NO MISREPRESENTATION OR FRAUD WAS INVOLVED.

THE RECORD SHOWS THAT MRS. REAM WAS EMPLOYED IN A CLASSIFIED POSITION IN YOUR DEPARTMENT ON OCTOBER 22, 1956, AFTER HAVING SERVED FROM JUNE 1, 1955, TO SEPTEMBER 30, 1956, AS A SECRETARY TO A SENATOR AND, PRIOR TO THAT, AS A CLASSIFIED EMPLOYEE IN ANOTHER AGENCY. HER SALARY WAS INITIALLY ESTABLISHED IN THE DEPARTMENT AT $3,670 PER ANNUM, THE MINIMUM RATE OF GRADE GS-5. ON MARCH 21, 1957, HOWEVER, USING HER SALARY OF $4,398 PER ANNUM IN THE LEGISLATIVE POSITION AS THE ,HIGHEST PREVIOUS RATE," HER SALARY WAS ADJUSTED RETROACTIVELY TO $4,345 PER ANNUM, THE FIFTH STEP IN GRADE GS-5. SINCE THIS ACTION WAS CONTRARY TO SECTIONS 25.102 (J) AND 25.103 (1) OF THE CIVIL SERVICE REGULATIONS, MRS. REAM'S PAY WAS LATER READJUSTED TO THE PROPER RATE, EFFECTIVE JANUARY 12, 1958. AN OVERPAYMENT TOTALING $651.96 REMAINS OUTSTANDING AND YOU REQUESTED THAT SHE BE PERMITTED TO RETAIN THIS AMOUNT ON THE GROUNDS THAT, AS IN THE CASES CONSIDERED IN 28 COMP. GEN. 514, SHE WAS OVERPAID THROUGH NO FAULT OF HER OWN AND SHE SHOULD BE CONSIDERED AS HAVING BEEN A DE FACTO EMPLOYEE AT THE HIGHER RATE OF PAY.

THE DECISION IN 28 COMP. GEN. 514 RELATED TO EMPLOYEES WHO WERE APPOINTED, PROMOTED OR REINSTATED UNDER AUTHORITY DELEGATED BY THE CIVIL SERVICE COMMISSION TO THE VARIOUS AGENCIES OF THE GOVERNMENT AND WHOSE APPOINTMENTS, UPON POST AUDIT BY THE COMMISSION, WERE FOUND TO BE ERRONEOUS IN THAT THE EMPLOYEE'S QUALIFICATIONS FAILED IN SOME RESPECTS TO MEET THE QUALIFICATION STANDARDS PRESCRIBED BY CIVIL SERVICE REGULATIONS. WE HELD IN THAT DECISIONS THAT WHERE APPOINTMENTS WERE MADE IN GOOD FAITH, BOTH ON THE PART OF THE EMPLOYEE AND THE ADMINISTRATIVE OFFICE, THE EMPLOYEE INVOLVED COULD BE CONSIDERED AS HAVING SERVED IN A DE FACTO STATUS AND AS BEING ENTITLED TO RETAIN COMPENSATION RECEIVED PRIOR TO THE TIME THE ERROR WAS BROUGHT TO THE ATTENTION OF ADMINISTRATIVE OFFICIALS. SUCH CASES, HOWEVER, ARE CLEARLY DISTINGUISHABLE FROM A CASE SUCH AS THIS WHERE THE SALARY AT A HIGHER RATE IS PAID TO AN EMPLOYEE CONTRARY TO SPECIFIC PROVISIONS OF STATUTORY REGULATIONS HAVING THE SAME FORCE AND EFFECT AS LAW (SEE 29 COMP. GEN. 75; 36 ID. 230).

IN THIS CIRCUMSTANCE OUR OFFICE HAS NO AUTHORITY TO WAIVE COLLECTION OF THE AMOUNT OF OVERPAYMENT WHICH CONSTITUTES A VALID DEBT AGAINST THE EMPLOYEE.