B-174246, JAN 20, 1972

B-174246, JAN 20, 1972

CIVILIAN EMPLOYEE - ERRONEOUS OVERPAYMENT - WAIVER DENIED DECISION DENYING A REQUEST BY MRS. JOSEPHINE J. JOHNSON FOR WAIVER OF A GOVERNMENT CLAIM AGAINST AN ERRONEOUS OVERPAYMENT OF PAY. IT IS PROVIDED BY 5 U.S.C. 5584 THAT CLAIMS FOR ERRONEOUS OVERPAYMENT OF PAY WILL BE WAIVED WHEN THEIR COLLECTION WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES. THE CIRCUMSTANCES OF THE INSTANT CASE INDICATE THAT CLAIMANT WAS PARTLY AT FAULT IN THAT SHE SHOULD HAVE KNOWN OF THE OVERPAYMENT. ACCORDINGLY, THE REQUEST FOR WAIVER MUST BE DENIED.

TO MRS. JOSEPHINE J. JOHNSON:

FURTHER REFERENCE IS MADE TO YOUR REQUEST FOR RECONSIDERATION OF WAIVER ACTION IN CONNECTION WITH THE GOVERNMENT'S CLAIM AGAINST YOU FOR AN ERRONEOUS PAYMENT OF PAY IN THE GROSS AMOUNT OF $866.11.

THE RECORD DISCLOSES THAT EFFECTIVE NOVEMBER 30, 1969, YOU WERE DESIGNATED OFFICER IN CHARGE OF THE PLEASANT GROVE, MISSISSIPPI, POST OFFICE SUCCEEDING YOUR HUSBAND, MR. LON H. JOHNSON, WHO HAD BEEN THE POSTMASTER AND WAS SEPARATED THAT SAME DATE ON MANDATORY RETIREMENT. YOU HAD SERVED AS HIS LEAVE REPLACEMENT FOR THE 9-YEAR PERIOD NEXT PRECEDING YOUR DESIGNATION AS OFFICER IN CHARGE. AT THE TIME IN QUESTION THE PLEASANT GROVE POST OFFICE WAS ASSIGNED WORK REQUIREMENT CATEGORY (WRC) 3 WHICH ENTITLED YOU TO BE PAID AT THE RATE OF WRC 3, STEP 1 ($3,338 PER ANNUM). IT IS FURTHER INDICATED THAT BEFORE HIS RETIREMENT YOUR HUSBAND RECEIVED FORMAL NOTIFICATION ON OR ABOUT NOVEMBER 19, 1969, THAT HIS OFFICE (POSTMASTER, PLEASANT GROVE) WOULD BE REDUCED FROM WRC 3 TO WRC 2, EFFECTIVE JANUARY 10, 1970. SUBSEQUENTLY, BY LETTER DATED JANUARY 5, 1970, YOU WERE ADVISED TO THE SAME EFFECT AS FOLLOWS:

"AS A RESULT OF THE ANNUAL REVIEW OF POSTMASTER POSITIONS, THE POSTMASTER POSITION AT PLEASANT GROVE WILL CHANGE FROM WRC 3 TO WRC 2 EFFECTIVE JANUARY 10, 1970."

ON JANUARY 5, 1970, AN INTERNAL MEMORANDUM WAS DIRECTED FROM THE MEMPHIS REGIONAL OFFICE TO THE POSTAL DATA CENTER IN ST. LOUIS ADVISING THAT A PAY ADJUSTMENT SHOULD BE EFFECTED ON JANUARY 10, 1970, REDUCING THE SALARY OF YOUR POSITION FROM WRC 3 TO WRC 2. DUE TO AN ADMINISTRATIVE OVERSIGHT THIS ADJUSTMENT WAS NOT MADE UNTIL OCTOBER 30, 1970. IN YOUR REQUEST FOR WAIVER (POD FORM 3074) DATED DECEMBER 21, 1970, YOU STATED THAT YOUR UNDERSTANDING UPON ASSUMING THE SUBJECT POSITION WAS "THAT I WOULD BE PAID THE SAME RATE AS THE RETIRED POSTMASTER." YOU ALSO POINTED OUT YOU HAD NEVER RECEIVED "A P.O.D. FORM 332 NOR A P.O.D. FORM 50" WHICH FORMS ARE APPARENTLY THE FORMAL DOCUMENTS THAT WOULD CUSTOMARILY EFFECT THE SUBJECT SALARY CHANGES. IT WOULD THEREFORE SEEM TO BE YOUR OPINION THAT IN THE ABSENCE OF SUCH OFFICIAL DOCUMENTATION YOU COULD NOT BE CONSIDERED TO BE ON NOTICE THAT ANY ERROR HAD OCCURRED IN YOUR RATE OF COMPENSATION.

THE WAIVER STATUTE (5 U.S.C. 5584) GENERALLY PROVIDES THAT CLAIMS ARISING OUT OF AN ERRONEOUS PAYMENT OF PAY MAY BE WAIVED WHEN COLLECTION WOULD BE AGAINST EQUITY AND GOOD CONSCIENCE AND NOT IN THE BEST INTERESTS OF THE UNITED STATES. PURSUANT TO PROPER LEGAL AUTHORITY OUR OFFICE HAS ISSUED REGULATIONS (4 CFR 91.5) PROVIDING THAT THE ABOVE CRITERIA ARE GENERALLY MET WHEN THERE IS A FINDING THAT THE ERRONEOUS PAYMENT OCCURRED THROUGH ADMINISTRATIVE ERROR AND THERE IS NO INDICATION OF FRAUD, MISREPRESENTATION, FAULT, OR LACK OF GOOD FAITH.

WHILE IT IS CLEAR THAT YOU ARE NOT CHARGEABLE WITH ANY FRAUD OR MISREPRESENTATION, WE BELIEVE THAT CONSIDERING ALL OF THE CIRCUMSTANCES YOU ARE PARTIALLY AT FAULT IN THAT YOU SHOULD HAVE KNOWN YOU WERE BEING OVERPAID AFTER JANUARY 10, 1970. YOUR PRIOR INVOLVEMENT WITH POST OFFICE BUSINESS, TOGETHER WITH THE FACT THAT YOUR HUSBAND HAD BEEN POSTMASTER FOR AT LEAST 9 YEARS, WOULD IN OUR OPINION PUT YOU ON NOTICE THAT REDUCTIONS IN WRC STATUS RESULTED IN LOWER RATES OF COMPENSATION. SINCE BOTH YOU AND YOUR HUSBAND RECEIVED NOTICE OF SUCH REDUCTION AND SINCE YOU STATED THAT YOU EXPECTED TO RECEIVE THE SALARY RATE ATTACHED TO THE POSITION OF POSTMASTER, WE CONCLUDE THAT YOU SHOULD HAVE PURSUED THE MATTER OF POSSIBLE OVERPAYMENTS MORE ACTIVELY WITH THE POST OFFICE DEPARTMENT.

OUR ATTENTION HAS BEEN DIRECTED TO A SALARY CHANGE NOTICE YOU APPARENTLY RECEIVED SHORTLY BEFORE APRIL 4, 1970, WHICH ALLEGEDLY SUPPORTS THE INFERENCE THAT THE CORRECTNESS OF YOUR SALARY RATE AT THE WRC 3 LEVEL WAS THEREBY CONFIRMED. THE POSTAL DATA CENTER HAS INFORMED US, HOWEVER, THAT YOUR PAYROLL FOLDER DOES NOT SHOW ANY SUCH SALARY CHANGE NOTICE DURING THE PERIOD FROM NOVEMBER 1969 THROUGH NOVEMBER 1970. MOREOVER, EVEN IF A CHANGE NOTICE HAD BEEN ISSUED, WE FAIL TO SEE HOW IT WOULD HAVE ABROGATED YOUR DUTY TO MAKE INQUIRY CONCERNING THE POSSIBLE OCCURRENCE OF AN ERROR ON OR ABOUT JANUARY 10, 1970.

UPON REVIEW OF THE CIRCUMSTANCES INVOLVED, IT MUST BE CONCLUDED THAT YOU KNEW OR SHOULD HAVE KNOWN THAT YOU WERE BEING OVERPAID AFTER JANUARY 10, 1970. WHILE OFFICIAL DOCUMENTATION WAS EVIDENTLY NOT ACCOMPLISHED AND YOU MAY HAVE RECEIVED OTHER FORMAL NOTICES AS A CONSEQUENCE OF THE ORIGINAL ERROR, IT NEVERTHELESS IS APPARENT THAT YOU COULD NOT REASONABLY BE EXPECTED TO RETAIN THE EXCESS PAY WITHOUT BEING OBLIGATED TO MAKE REFUND WHEN THE ERROR WAS FINALLY, IN FACT, DISCOVERED BY THE POSTAL DATA CENTER IN ST. LOUIS.

THE ACTION OF JULY 26, 1971, DENYING YOUR REQUEST FOR WAIVER IS THEREFORE SUSTAINED.