[Payment for Services Performed Before and After Appointment]

A former consultant to the U.S. Holocaust Memorial Council appealed a Claims Group determination which denied his request for waiver of overpayments made to him in connection with his temporary employment. The consultant had been appointed to a temporary 1-month position. On the basis of his attendance records, he was paid for 240 hours of service. However, a requested correction of these records showed that he was overpaid for 178.5 hours, all but 53 hours of which had been repaid or recovered. The Claims Group had denied waiver of the remaining overpayment which represented hours worked prior to or after the employment period. GAO found that the case was a claim for payment for a period of de facto employment rather than a request for waiver. An individual who performs the duties of a Federal office or position with apparent right and under color of an appointment is to be regarded as a de facto employee and may retain salary already received. GAO has recognized that the lack of an appointment is no obstacle to de facto status and payment where services are rendered in good faith and under color of authority. However, GAO found that it did not appear that the consultant served during the periods in question under the color of authority, since the dates of his appointment were clear. An invitation to appear at a meeting, prior to his date of appointment, did not supersede the appointment agreement. In addition, the consultant should have inquired as to whether his appointment was being renewed before working beyond the date of his appointment. Because the consultant had no assurance from the Council that he would be compensated for services performed before or after the period of his appointment, his expectation of compensation for those services was not reasonable. Accordingly, the consultant was not found to be a de facto employee and his claim was denied.