B-174154, APR 3, 1972

B-174154, APR 3, 1972

CIVILIAN EMPLOYEE - ERRONEOUS PAYMENT OF PAY - NEPOTISM - REQUEST FOR WAIVER DECISION DISAFFIRMING PRIOR DENIAL OF A REQUEST OF ALBERT J. PORTELLI FOR WAIVER OF AN ERRONEOUS PAYMENT OF PAY TO CURTIS M. PORTELLI, A FORMER EMPLOYEE OF THE UNITED STATES POST OFFICE, GLENWOOD, ILL. THE PRIOR DENIAL OF THIS REQUEST WAS PREMISED UPON THE PROVISIONS OF 5 U.S.C. 5584, WHICH PRECLUDE WAIVER OF ANY CLAIM WHERE THERE EXISTS AN INDICATION OF FAULT ON THE PART OF THE EMPLOYEE OR ANY OTHER INTERESTED PARTY. HOWEVER, AFTER FURTHER CONSIDERATION, IT HAS BEEN DETERMINED THAT ALBERT PORTELLI'S VIOLATION OF THE STATUTORY PROHIBITION OF PUB. L. 90-206 AGAINST THE EMPLOYMENT OF RELATIVES UNINTENTIONALLY RESULTED FROM HIS REASONABLE RELIANCE UPON THE PRACTICES OF FORMER POSTMASTERS. ACCORDINGLY, NO FAULT MAY BE ATTRIBUTED TO MR. PORTELLI OR HIS SON AND WAIVER OF THE CLAIM MAY BE GRANTED AS ADMINISTRATIVELY RECOMMENDED.

TO MR. ALBERT J. PORTELLI:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 20, 1972, WHICH WILL BE VIEWED AS CONSTITUTING AN APPEAL IN BEHALF OF YOUR SON MR. CURTIS M. PORTELLI, FROM THE ACTION OF OUR CLAIMS DIVISION IN DENYING THE REQUEST FOR WAIVER UNDER THE AUTHORITY OF 5 U.S.C. 5584, AS ADDED BY PUBLIC LAW 90 -616, APPROVED OCTOBER 21, 1968, OF ERRONEOUS PAYMENT OF PAY WHILE AN EMPLOYEE OF THE UNITED STATES POST OFFICE, GLENWOOD, ILLINOIS.

THE RECORD INDICATES THAT YOUR SON WAS APPOINTED AS A TEMPORARY CITY CARRIER SUBSTITUTE, PF-5, STEP 1, $2.95 PER HOUR, BY YOU WHILE YOU WERE ACTING POSTMASTER AT THE ABOVE-NAMED POST OFFICE. THIS APPOINTMENT WAS IN VIOLATION OF THE ANTINEPOTISM PROVISION OF 5 U.S.C. 3110. INCIDENT TO THIS EMPLOYMENT, YOUR SON WAS PAID THE GROSS AMOUNT OF $1,346.66 DURING THE PERIOD NOVEMBER 13, 1968, THROUGH JANUARY 8, 1969. THE RECORD ESTABLISHES THAT YOUR SON WAS UNAWARE OF THE IMPROPRIETY OF THE APPOINTMENT.

THE BASIS FOR THE ORIGINAL DISALLOWANCE OF THE REQUEST FOR WAIVER WAS AN INDICATION IN THE RECORD THAT, ALTHOUGH YOU WERE VERBALLY APPRISED BY MRS. BETTY HUDSON (THE ASSISTANT TO THE POSTMASTER) OF A POTENTIAL IMPROPRIETY CONCERNING THE APPOINTMENT OF YOUR SON, YOU TOOK NO STEPS TO ASCERTAIN IF HER ADMONITIONS WERE WELL FOUNDED. AS A RESULT YOU WERE DEEMED AT FAULT IN THE MATTER. BY VIRTUE OF YOUR PATERNAL RELATIONSHIP TO THE FORMER EMPLOYEE HERE INVOLVED, YOU FURTHER WERE HELD TO BE A PARTY HAVING AN INTEREST IN SEEING HIM OBTAIN WAIVER OF THE CLAIM. THUS, DENIAL OF WAIVER WAS PREMISED UPON 5 U.S.C. 5584 WHICH STATES IN PERTINENT PART THAT:

"(B) THE COMPTROLLER GENERAL OR THE HEAD OF THE EXECUTIVE AGENCY, AS THE CASE MAY BE, MAY NOT EXERCISE HIS AUTHORITY UNDER THIS SECTION TO WAIVE ANY CLAIM -

"(1) IF, IN HIS OPINION, THERE EXISTS, IN CONNECTION WITH THE CLAIM, AN INDICATION OF FRAUD, MISREPRESENTATION, FAULT, OR LACK OF GOOD FAITH ON THE PART OF THE EMPLOYEE OR ANY OTHER PERSON HAVING AN INTEREST IN OBTAINING A WAIVER OF THE CLAIM; OR"

YOU HAVE NOW SUBMITTED FOR THE RECORD A SWORN STATEMENT THAT YOU HIRED YOUR SON WITHOUT ANY KNOWLEDGE OF POTENTIAL IMPROPRIETY. THIS IS SOMEWHAT IN CONFLICT WITH THE INFORMATION FURNISHED BY MRS. HUDSON. HOWEVER, WE NOTE THAT SHE HAS STATED THAT HER ADVICE TO YOU THAT SHE DID NOT THINK THE EMPLOYMENT OF YOUR SON WAS WITHIN THE REGULATIONS WAS NOT BASED ON ANY SPECIFIC REFERENCE TO ANY PROHIBITING LAW OR REGULATION. RATHER, IT WAS INDICATED THAT HER THINKING WAS BASED ON THE PREVIOUS ACTION OF A FORMER POSTMASTER WHO REFUSED TO HIRE HER OWN SON DURING A CHRISTMAS VACATION. APPARENTLY, YOU FELT THAT THE EMPLOYMENT OF RELATIVES BY THE PREVIOUS POSTMASTER AT GLENWOOD AND POSTMASTERS OF OTHER STATIONS WERE MORE RELIABLE PRECEDENTS.

THE STATUTORY PROHIBITION AGAINST THE EMPLOYMENT OF RELATIVES IS CONTAINED IN SUBSECTION 221(A) OF PUBLIC LAW 90-206, APPROVED DECEMBER 16, 1967, 81 STAT. 640. SUCH PROHIBITION BECAME EFFECTIVE ON THE DATE OF THE ENACTMENT OF THE ACT. HOWEVER, SUBSECTION 221(C) SPECIFICALLY PROVIDED THAT SUCH PROHIBITION WOULD NOT APPLY TO INDIVIDUALS APPOINTED PRIOR TO AND SERVING ON THE EFFECTIVE DATE OF THE SECTION. BY REASON THEREOF IT MAY BE CONCLUDED THAT YOUR RELIANCE UPON PAST PRACTICE IN REGARD TO APPOINTMENTS OF RELATIVES WHO WERE STILL SERVING JUSTIFIED YOUR FAILURE TO MAKE FURTHER INQUIRY. MOREOVER, WE HAVE TAKEN INTO CONSIDERATION THE FACT THAT YOU HAD ONLY BEEN IN OFFICE LESS THAN 4 MONTHS WHEN YOUR SON WAS APPOINTED.

THEREFORE, UPON FURTHER CONSIDERATION IT HAS BEEN DETERMINED THAT NO FAULT MAY BE ATTRIBUTED TO YOU OR YOUR SON AND WAIVER OF THE ERRONEOUS PAYMENT OF PAY IS GRANTED AS ADMINISTRATIVELY RECOMMENDED.

A COPY OF THIS DECISION WILL BE FORWARDED TO THE POSTAL DATA CENTER IN ORDER THAT APPROPRIATE ACTION MAY BE TAKEN.