Office of the General Counsel

S9700261

Dear Mr. [xxx]:

We have reviewed the administrative report provided by your office regarding Ms. [xxx]'s claim for service credit for her previous employment with a non-appropriated fund instrumentality (NAFI). Based on the guidance in this letter, we believe Ms. [xxx]'s claim may be settled satisfactorily by your office without a formal opinion from this office. If, after further consideration by your office, Ms. [xxx] still desires to assert a claim, she may resubmit her claim.

On June 20, 1981, your agency selected Ms. [xxx] for an appointment effective June 29, which was a Monday. (All dates are in 1981.) At the time of her selection, Ms. [xxx] was employed by a NAFI, and she intended to resign her NAFI position on Friday, June 26. The agency asked Ms. [xxx] to report on Monday, June 22, however, to complete processing a number of documents, including taking and signing her oath of office, affidavit as to striking against the government, and affidavit as to purchase and sale of office. We have learned informally that this "in-processing" takes place at the agency and requires from two to fours hours to complete. After completing this process, an agency employee later advised Ms. [xxx] that she could not sign the documents just described until she resigned from her NAFI position. Accordingly, Ms. [xxx] resigned her position effective Wednesday, June 24. Subsequently, Ms. [xxx] reported for regular duty the following Monday, June 29, and an agency employee physically altered her appointment affidavits to change the dates from June 22 to June 29.

As a result, Ms. [xxx] had a four-day break-in-service, rather than the two-day break she had planed. Accordingly, your office determined that she did not meet the requirements in subsequent legislation authorizing Federal service credit for NAFI employment, because that legislation is limited to persons who transfer from a NAFI position to an appropriated fund position with less than a three day break-in-service. 5 U.S.C. 3502(a)(C)(ii).

Subsequently, Ms. [xxx] wrote to one of her U.S. Senators and to President Clinton, both of whom referred her letters to the Office of Personnel Management (OPM). Within OPM, her letters were referred to our Human Resource Systems Service (HRSS) for reply. At the time, the only question presented by Ms. [xxx] was whether OPM could waive the three-day requirement. In its May 2, 1997 response to Ms. [xxx], HRSS correctly advised her that OPM could not do so.

At the same time that HRSS was reviewing Ms. [xxx]'s letters, Ms. [xxx] submitted a claim for service credit to the U.S. General Accounting Office (GAO), which referred the letter to OPM's Office of the General Counsel pursuant to legislation transferring the GAO's claims settlement authority to the Executive Branch. See 31 U.S.C. 3702. In response to Ms. [xxx]'s February 20 letter, this office requested a full administrative report from your office, to which you replied by letter, with enclosures, dated June 10, 1997. That report includes information that was not available to HRSS at the time it wrote to Ms. [xxx], including copies of the altered appointment affidavits. As noted above, after reviewing the additional material provided by your office and consulting with our HRSS colleagues, we believe you may resolve Ms. [xxx]'s claim to her satisfaction based on the guidance below. We regret any confusion that may have occurred.

First, we do not believe it is appropriate to alter the date of a document in any circumstance. As discussed below, there are other ways to make the type of correction sought here. Second, for future reference, your personnel misstated the law regarding dual appointments. Federal law does not prohibit an employee from having more than one appointment, even with different agencies. However, 5 U.S.C. 5533 prohibits an employee from receiving basic pay for more than one position for more than an aggregate of 40 hours in one week. As such, section 5533 is a limitation on pay, not on appointments. Thus, Ms. [xxx] could have served in both positions concurrently during the week of June 22-26, assuming she was not paid for more than an aggregate of 40 hours in one week.

Moreover, even where a dual appointment violates section 5533, the remedy is not to post-date the second appointment. The GAO has held in such circumstances that a rebuttable presumption exists that the employee intended to give up the first position. Fort Benjamin Harrison, B-208336, April 22, 1983. When such an employee receives pay for two positions, the agency may determine that one or the other of the two payments is an erroneous payment subject to collection, which also may be waived under 5 U.S.C. 5584. Id. This is not a specific issue here, since Ms. [xxx] did not receive pay from two positions for the same period of time.

The critical issue in Ms. [xxx]'s case is the date of her appointment. The general rule is that an appointment is effective after an employee as accepted an appointment and actually entered on duty. Rodgers D. O'Neill, B-205972, May 25, 1982. An employee may accept an appointment by verbal affirmation, taking the oath of office, assumption of the duties of the position, or by some other overt act. Id.

The recommended practice--and it still is recommended--is to have employees take the oath on the day that they assume the duties of their positions. In this case, there is no dispute that Ms. [xxx] took the oath of office on June 22 with the expectation that she would assume her duties on June 29. However, at the processing session on June 22, Ms. [xxx] reported to her duty station and spent several hours completing paperwork at the direction of agency personnel. Although a different result might follow if Ms. [xxx] simply dropped off forms that had been mailed to her, in the circumstances presented here, we believe that Ms. [xxx] entered on duty on June 22 and that she should be paid for the time she spent processing her paperwork on that date.

To remedy the immediate situation of Ms. [xxx]'s case, your office may issue an SF-50 correcting Ms. [xxx]'s appointment date to show that it was effective on June 22, 1997. The legal authority for this correction is the Back Pay Act, 5 U.S.C. 5596, since the effect of the agency's mistake was to deprive Ms. [xxx] of salary to which she was entitled. Her record should show that, for the remainder of the week of June 22-26, she was on approved leave-without-pay status.

As a result of this change, the records should show that Ms. [xxx] had overlapping appointments from June 22-24 and that her transfer from the NAFI position to the appropriated-fund position occurred without a break in service, thus entitling her to service credit for her tenure as a NAFI employee. Since she did not work a total of 40 hours that week, the dual compensation statute is not a factor.

Very Truly Yours,

Paul Britner

Senior Attorney