In re Thompson

Decision Date02 August 1994
Docket NumberB-256828
PartiesMatter of: Scott C. Thompson - Waiver - Nondeduction of Health Insurance Premiums
CourtComptroller General of the United States
DIGEST

Waiver of an employee's debt is denied whare the employee was aware that he was being overpaid when he, received salary payments over a, 7-year period from which the agency failed to deduct premiums for his health insurance coverage. Although the employee states that he promptly notified the agency's personnel office, of the errors several times during the first 10 months, he apparently pursued the matter no further, allowing the over payment to continue for another 6 years. When an employee is aware. of receiving overpayments the employee cannot reasonably expect to retain them, but should set them aside for refund while he pursues the matter with the agency to have the error corrected.

DECISION

Mr Scott C. Thompson, an employee of the National Labor Relations Board (NLRB), has appealed our Claims Group's settlement[1]which denied his request for waiver of a debt resulting from the NLRB's failure to deduct from his salary his health insurance premiums. For the reasons discussed below we sustain the Claims Group's denial.

BACKGROUND

When Mr. Thompson transferred from the Department of Labor to the NLRB effective January 13, 1985, he transferred his coverage under a health benefit plan. The Department of Labor had been deducting the premiums from his salary each pay period for this coverage, as required under the plan, but upon his transfer, the NLRB failed to continue to deduct premiums from his salary for this coverage. Mr. Thompson states that in examining his pay stubs shortly after his transfer, he noticed that his annual leave was incorrectly recorded and that no deductions were being made for his health insurance premiums. He states that by June 1985 he had discussed these matters with NLRB personnel office representatives several times and was assured that the problems would soon be corrected. When they were not corrected, he states that he had several more discussions with NLRB personnel, and in November 1985 the NLRB began deducting the premiums. He indicates that although he had been told by an NLRB official that double deductions would be made to cover current premiums and the ones that had not been deducted, only single deductions were being made. He indicates he brought this to the agency official's attention and was told not to worry, that the double deductions would begin. However, only single deductions, with one exception, were effected from November 1985 through June 1986.

The NLRB inexplicably ceased making the premium deductions at the end of June 1986. Mr. Thompson states that he then called an official in the agency's personnel office and told her and she said she would check into it. However, no further deductions were taken from his pay for health insurance for the next 6 years, until the NLRB discovered the error in June 1992. Although Mr. Thompson's efforts in 1985 apparently led to the agency's initiating deductions in November 1985, after the deductions ceased in June 1986, with the exception of the call he states he made at that time, he apparently made no further efforts over the next 6 years to have the matter corrected. It is clear that during this entire time he continued to receive the benefits of coverage under the plan, using his insurance on many occasions without paying the premiums he knew were required of him for such coverage.

In August 1992, the NLRB notified Mr. Thompson in writing that he was in debt in the amount of $4, 783.20[2]due to the NLRB's failure over the years to properly collect the health insurance premiums from him. In November 1992 Mr Thompson submitted a detailed statement concerning the matter and requested waiver of the debt. On February 4, 1993, the NLRB transmitted Mr. Thompson's request for waiver to our Claims Group with a report recommending that waiver be granted. The report stated that they had reviewed the circumstances, including the fact that Mr. Thompson had notified the agency in 1985 and 1986 of the deduction errors, although they were unable to contact some of the employees he stated he spoke to because they are no longer with the agency, and others who are still with the agency have only vague memories of the matter. However, the agency states it found no evidence of fraud, misrepresentation, fault, or lack of good faith on Mr. Thompson's part. In July 1993 our Claims Group denied waiver because even though the employee initially informed the agency of payroll errors, since he was aware of receiving erroneous overpayments, he should be prepared to make provisions for repayment.

Mr. Thompson disagrees with our Claims Group and seeks reconsideration.

OPINION

The waiver statute, 5 U.S.C. Sec. 5584 (1988), allows us to waive an employee's debt if its collection would be against equity and good conscience and not in the best interests of the United States, and provided there exists no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee.

The standards implementing the waiver statute at 4 C.F.R. Sec. 91.5(b) state:

"Generally, waiver is precluded when an employee... receives a significant unexplained increase in pay or allowances, or otherwise knows, or reasonably should know, that an erroneous payment has occurred, and fails to make inquiries or bring the matter to the attention of the appropriate officials."

Mr. Thompson argues that all the criteria are met in his case, stating that he did not engage in, nor does anyone allege, any fraud, fault or misrepresentation on his part and that he acted at all times in good faith. He notes that over a 10-month period in 1985-1986 he "hounded" the agency over the matter, and thus he satisfied the requirement to notify the agency of the error.

From the record before us, it...

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