B-234180, Oct 25, 1989

B-234180, Oct 25, 1989

CIVILIAN PERSONNEL - Compensation - Employment status - De facto employment DIGEST: The summary letter decision addresses well established rules which have been discussed in previous Comptroller General decisions. To locate substantive decisions addressing this issue, refer to decisions indexed under the above listed index entry.

Robert A. McGuire:

In this decision we hold that an employee, who was erroneously appointed to a position in the competitive service based on previous federal employment which did not give him competitive status, may be considered a de facto employee during the period of his erroneous appointment.

The employee, Mr. Robert A. McGuire, was appointed to a career conditional position on September 25, 1983. This appointment was erroneous because his previous federal employment, which consisted of a series of excepted and temporary appointments, did not afford him competitive status. The error was discovered 2 years later, and Mr. McGuire's name was placed on a certificate of eligibles by the Office of Personnel Management (OPM). He was given a career-conditional appointment on January 5, 1986.

With regard to the period of his improper appointment, we have held that where an individual has been appointed to a position and the appointment is subsequently found to have been improper or erroneous, that person is entitled to retain compensation already paid, to receive unpaid compensation for the period of erroneous service, and to receive service credit for leave accrual purposes. The only exceptions to this rule are where the appointment was made in violation of an absolute statutory prohibition or where the employee was guilty of fraud in regard to the appointment or deliberately misrepresented or falsified a material matter. Victor M. Valdez, 58 Comp.Gen. 734 (1979). See also Thomas C. Collins, 61 Comp.Gen. 127 (1981).

Mr. McGuire's appointment was not in violation of an absolute statutory bar, and there is no evidence that he was guilty of fraud or that he deliberately misrepresented or falsified a material matter in order to receive his appointment. See Arnett and Barron, B-220720, Sept. 8, 1986. Furthermore, it appears that he served in good faith with no knowledge of the impropriety of his appointment. Therefore, Mr. McGuire is entitled to retain all compensation he received during the period of his erroneous appointment, to receive service credit for leave accrual purposes, and to have any annual leave earned during that period carried over after his appointment on January 5, 1986.

The agency also asked for our guidance concerning Mr. McGuire's entitlement to service credit for retirement and time-in-grade purposes. Questions concerning service credit for retirement or other purposes should be directed to OPM. See Urban Kinnunen, B-207856, Sept. 13, 1982.