B-168922, MAY 5, 1970

B-168922, MAY 5, 1970

DEBT COLLECTIONS--WAIVER--CIVILIAN EMPLOYEES COMPENSATION OVERPAYMENTS- EFFECT OF EMPLOYEE'S FAULT WHERE POSTAL EMPLOYEE REQUESTED DEMOTION FROM LEVEL 5, STEP 8 TO LEVEL 4, STEP 8 TO AVOID WORKING ON WEEKENDS AND DURING EARLY MORNING HOURS AND WAS GIVEN COPY OF POD FORM 50, BUT CONTINUED TO RECEIVE LEVEL 5 SALARY RESULTING IN OVERPAYMENT OF $958.60, REQUEST FOR WAIVER IS DENIED, SINCE EMPLOYEE KNEW OR SHOULD HAVE KNOWN OF OVERPAYMENT AND COULD NOT REASONABLY HAVE EXPECTED TO RETAIN EXCESS BIWEEKLY PAY WITHOUT BEING OBLIGATED TO MAKE REFUND WHEN ERROR WAS DISCOVERED.

TO MR. PHIL DOOLEY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 15, 1969, APPEALING OUR OCTOBER 2, 1969, DENIAL OF A REQUEST FOR WAIVER OF THE GOVERNMENT'S CLAIM AGAINST MR. FLOYD HASTINGS FOR OVERPAYMENT OF PAY IN THE GROSS AMOUNT OF $958.60.

THE EVIDENCE OF RECORD DISCLOSES THAT EFFECTIVE APRIL 14, 1966, MR. HASTINGS WAS DEMOTED, AT HIS OWN REQUEST, FROM SPECIAL POSTAL CLERK, LEVEL 5, STEP 8, AT $6,838 PER ANNUM, TO DISTRIBUTION AND WINDOW CLERK, LEVEL 4, STEP 8, AT THE SALARY RATE OF $6,378 PER ANNUM. HE WAS GIVEN A COPY OF POD FORM 50, NOTIFICATION OF PERSONNEL ACTION, WHICH SHOWED THE REDUCTION IN HIS SALARY RATE. ALTHOUGH A COPY OF THE FORM 50 WAS FORWARDED TO THE POSTAL DATA CENTER, DALLAS, TEXAS, ON APRIL 14, 1966, MR. HASTINGS CONTINUED TO RECEIVE SALARY PAYMENTS AT LEVEL 5, STEP 8, FROM APRIL 14, 1966, THROUGH MARCH 22, 1968. BY LETTERS DATED JANUARY 9 AND MARCH 25, 1968, THE DATA CENTER WAS ADVISED OF THE ERROR IN MR. HASTINGS' PAY BUT IT WAS NOT UNTIL MAY 21, 1968, THAT MR. HASTINGS RECEIVED POD FORM 1303, SALARY CHANGE NOTICE, AND FORM 1903, INVOICE AND STATEMENT, INFORMING HIM THAT HE HAD BEEN OVERPAID A NET SUM OF $685.97 AND THAT HE WAS INDEBTED TO THE GOVERNMENT FOR THIS AMOUNT OF OVERPAYMENT OF PAY.

MR. HASTINGS' INITIAL REQUEST FOR WAIVER OF RECOVERY OF THE OVERPAYMENT WAS DENIED FOR THE FOLLOWING REASON, QUOTING FROM OUR CLAIMS DIVISION LETTER OF OCTOBER 2, 1969:

"THE REPORT OF INVESTIGATION REVEALED THAT WHILE THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, OR FAULT ON THE PART OF THE EMPLOYEE OR ANY OTHER PERSON HAVING AN INTEREST IN OBTAINING A WAIVER OF THE CLAIM, MR. HASTINGS MUST HAVE BEEN AWARE OF THE OVERPAYMENT. HE REQUESTED THAT HE BE TRANSFERRED TO THE LOWER LEVEL POSITION AND WAS FURNISHED A COPY OF THE OFFICIAL DOCUMENT ACCOMPLISHING THE CHANGE TO THE LOWER LEVEL POSITION PAY, YET HE ACCEPTED THE HIGHER LEVEL SALARY WHICH HE HAD FORMERLY RECEIVED IN THE POSITION FROM WHICH HE REQUESTED TO BE TRANSFERRED. HIS FAILURE TO BRING THE MATTER TO THE ATTENTION OF APPROPRIATE OFFICIALS, AS WOULD BE EXPECTED OF ANY REASONABLE PERSON, IS AN INDICATION OF LACK OF GOOD FAITH."

IN THIS CONNECTION, MR. HASTINGS REPORTS THAT HE REQUESTED A DEMOTION IN ORDER TO AVOID WORKING ON SATURDAYS, SUNDAYS, AND DURING EARLY MORNING HOURS. HE STATES, IN EFFECT, THAT SINCE HE NO LONGER RECEIVED 25 PERCENT PREMIUM PAY FOR SUNDAY AND NIGHT DIFFERENTIAL PAY FOR WORKING EARLY MORNING HOURS WHEN HE CHANGED POSITIONS, HE THOUGHT THAT HE WAS RECEIVING THE PROPER PAY AT LEVEL 4, STEP 8, FOR HIS NEW POSITION. AT THE SAME TIME, HOWEVER, MR. HASTINGS STATES IN A LETTER DATED MARCH 24, 1969, THAT ON TWO PREVIOUS OCCASIONS, HE INFORMED HIS POSTMASTER AT KINGMAN, ARIZONA, OF AN ERROR IN HIS SALARY. MOREOVER, IT HARDLY SEEMS REASONABLE THAT MR. HASTINGS WOULD NOT HAVE REALIZED THERE WAS AN ERROR IN HIS BIWEEKLY PAY WHEN IT WAS DEDUCED ONLY SOME $15 RATHER THAN THE APPROXIMATELY $35 REQUIRED.

YOU STATE THAT WE MADE NO MENTION OF THE ADMINISTRATIVE ERROR MADE BY THE POSTAL DATA CENTER. HOWEVER, THE RECITATION OF FACTS PRECEEDING THE QUOTED PORTION OF THE OCTOBER 2 LETTER MAKES CLEAR THAT WE RECOGNIZED THE FAULT AS LYING WITH THE CENTER. INDEED THE QUOTED PARAGRAPH SPECIFICALLY POINTS OUT THAT THERE WAS NO FAULT ON MR. HASTINGS' PART SO FAR AS CONCERNS INITIATION OF THE OVERPAYMENT. DENIAL OF HIS REQUEST FOR WAIVER WAS BASED UPON THE SOLE PROPOSITION THAT UNDER THE CIRCUMSTANCES INVOLVED, MR. HASTINGS KNEW OR SHOULD HAVE KNOWN THAT HE WAS BEING OVERPAID AND REASONABLY COULD NOT HAVE EXPECTED TO RETAIN THE EXCESS PAYMENTS WITHOUT HAVING TO MAKE REFUND.

UPON REVIEW OF THE CIRCUMSTANCES INVOLVED IT REMAINS CLEAR THAT MR. HASTINGS KNEW OR SHOULD HAVE KNOWN HE WAS BEING OVERPAID. WHILE THE PORTION QUOTED FROM THE LETTER OF OCTOBER 2, 1969, IS NOT ACCURATE IN ITS SUGGESTION THAT MR. HASTINGS FAILED TO NOTIFY APPROPRIATE OFFICIALS, IT NEVERTHELESS IS APPARENT THAT HE COULD NOT REASONABLY HAVE EXPECTED TO RETAIN THE EXCESS BIWEEKLY PAY WITHOUT BEING OBLIGATED TO MAKE REFUND THEREOF WHEN THE ERROR WAS FINALLY, IN FACT, DISCOVERED BY THE POSTAL DATA CENTER IN DALLAS.

THE ACTION OF OCTOBER 2, 1969, DENYING MR. HASTINGS' REQUEST FOR WAIVER IS, THEREFORE SUSTAINED.