B-172964, JUL 27, 1971

B-172964, JUL 27, 1971

CIVILIAN EMPLOYEE - LIABILITY FOR OVERPAYMENT OF OVERTIME DECISION WAIVING CLAIM OF GOVERNMENT UNDER PROVISIONS OF 5 U.S.C. 5584 AGAINST KEITH B. JOHNSON, AN EMPLOYEE OF THE SEC, FOR $517.68, INCIDENT TO OVERPAYMENTS OF OVERTIME COMPENSATION, BASED ON EMPLOYEE'S LACK OF FAULT AND AWARENESS IN THE MATTER.

TO MR. CASEY:

IN A RECENT SITE AUDIT OF THE SECURITIES AND EXCHANGE COMMISSION (SEC) OUR AUDIT DIVISION QUESTIONED SALARY PAYMENTS MADE TO MR. KEITH B. JOHNSON AT HIS BASIC HOURLY RATE FOR WORK IN EXCESS OF 8 HOURS IN A DAY.

MR. JOHNSON WAS APPOINTED BY SEC AS AN ECONOMIST, UNGRADED, FOR INTERMITTENT SERVICE AT THE PER ANNUM RATE OF $20,439 UNDER THE AUTHORITY CONTAINED IN THE ACT OF JULY 29, 1968, 82 STAT. 453. HE WAS PAID FOR WORK IN EXCESS OF 8 HOURS IN A DAY AT THE BASIC RATE FOR HIS POSITION, ALTHOUGH THIS RATE EXCEEDED THE OVERTIME HOURLY RATE FOR THE MINIMUM RATE FOR GRADE GS-10 AUTHORIZED BY 5 U.S.C. 5542. IN INFORMAL INQUIRY NUMBER 1C004, WE QUESTIONED SALARY PAYMENTS TO MR. JOHNSON TOTALING $517.68 REPRESENTING THE DIFFERENCE BETWEEN HIS BASIC HOURLY RATE AND THE GRADE GS-10 OVERTIME RATE FOR PAYMENTS FOR 164-1/2 HOURS WORKED IN EXCESS OF 8 HOURS IN A DAY DURING THE PERIODS JANUARY 29 THROUGH JUNE 15, 1969, AND SEPTEMBER 20 THROUGH DECEMBER 31, 1970, WHILE EMPLOYED AS AN INTERMITTENT EMPLOYEE.

ON MARCH 10, 1971, MR. FRANK J. DONATY, THE SEC COMPTROLLER, REPLIED TO OUR INFORMAL INQUIRY BUT WE DO NOT CONCUR WITH THE EXPLANATION FURNISHED TO THE EFFECT THAT GRANTING OF OVERTIME PAY IN EXCESS OF THE MINIMUM RATE FOR GRADE GS-10 WAS PROPER. PUBLIC LAW 90-438, 82 STAT. 453, 15 U.S.C. 78S, AMENDING SECTION 19 OF THE SECURITY EXCHANGE ACT OF 1934, PROVIDES IN PART IN SUBSECTION (2) AS FOLLOWS:

" *** THE COMMISSION IS AUTHORIZED TO APPOINT, WITHOUT REGARD TO THE PROVISIONS OF TITLE 5, U.S.C. GOVERNING APPOINTMENTS IN THE COMPETITIVE SERVICE, AND TO PAY, WITHOUT REGARD TO THE PROVISIONS OF CHAPTER 51 AND SUBCHAPTER III OF CHAPTER 53 OF SUCH TITLE RELATING TO CLASSIFICATION AND GENERAL SCHEDULE PAY RATES, SUCH PERSONNEL AS THE COMMISSION DEEMS ADVISABLE TO CARRY OUT THE STUDY AND INVESTIGATION AUTHORIZED BY THIS SUBSECTION, BUT NO SUCH RATE SHALL EXCEED THE PER ANNUM RATE IN EFFECT FOR A GS-18."

OUR VIEW IS THAT THE EMPLOYEES APPOINTED UNDER THE PROVISIONS OF PUBLIC LAW 90-438 WERE SUBJECT TO THE PREMIUM PAY PROVISIONS OF 5 U.S.C. 5541- 5549. ALSO, WE NOTE THAT THE REGULATIONS OF YOUR AGENCY PROVIDED THAT OVERTIME PAYMENT POLICIES APPLICABLE TO REGULAR EMPLOYEES OF SEC WOULD BE APPLICABLE TO EMPLOYEES OF THE "SPECIAL STUDY STAFF" SUCH AS MR. JOHNSON.

THUS, IT CLEARLY APPEARS THAT THE PAYMENTS MADE TO MR. JOHNSON IN EXCESS OF 8 HOURS PER DAY AT RATES IN EXCESS OF THE RATE FOR THE MINIMUM GRADE OF GS-10 WERE ERRONEOUS. HOWEVER, SINCE MR. JOHNSON DOES NOT APPEAR TO HAVE BEEN IN ANY WAY AT FAULT IN THE MATTER OR OTHERWISE AWARE THAT HE WAS RECEIVING EXCESS COMPENSATION PAYMENTS, THE COLLECTION OF THE AMOUNT OF SUCH ERRONEOUS PAYMENTS IS HEREBY WAIVED UNDER THE PROVISIONS OF 5 U.S.C. 5584. IN VIEW THEREOF, THE INFORMAL INQUIRY IS BEING WITHDRAWN.

ANY SIMILAR ERRONEOUS PAYMENTS TO OTHER SPECIAL STUDY EMPLOYEES WOULD LIKEWISE BE FOR CONSIDERATION FOR WAIVER. IN THAT CONNECTION SEE 4 CFR 91.1 ET SEQ. ..END :