[Letter]

B-257893 Jun 01, 1995 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Relief is granted to cerfitying officer under 31 U.S.C. The payment was not specifically prohibited by statute and the government received value for the payment. Certifying officer's good faith was demonstrated. That NARA does not have authority to pay an employee's attorney fees for negotiating such a settlement with the agency. A certifying officer who authorizes a payment that is improper. Is responsible for repaying the payment. 31 U.S.C. The certifying officer is jointly and severally liable with the persons or persons who benefited from the payment to repay the United States the amount of the loss incurred as a result of the illegal. Having determined that "the cost of further collection will exceed the amount recoverable thereby". 4 C.F.R. View Decision B-257893 June 1, 1995 Relief is granted to cerfitying officer under 31 U.S.C. Sec. 3528(b)(1)(B) who certified an unauthorized payment, pursuant to agreement for an employee's attorney fees. The payment was not specifically prohibited by statute and the government received value for the payment. Certifying officer's good faith was demonstrated, in part, by reliance on the Office of General Counsel's approval of the settlement agreement. Ms. Trudy Huskamp Peterson Acting Archivist of the United Stated National Archives Washington, D.C. 20408 Dear Ms. Peterson: By letter dated June 30, 1994, you asked that we relieve Mr. David Millane, certifying officer of the National Archives and Records Administration (NARA), of liability for certifying a payment our Office determined to be unauthorized. B-253507, Jan. 11, 1994. For the reason discussed below, we grant relief. Background In December 1992, NARA entered into a settlement agreement with Mr. Lawrence Oberg, its former Inspector General (IG). The agreement stemmed from a proposal by NARA to remove the IG from his position. NARA had concluded that he violated the Inspector General Act of 1978, Pub. L. No. 95-452, 92 Stat. 1101, as amended by Pub. L. No. 100-504, 102 Stat. 2515 (1988). NARA settled this matter through negotiations with Mr. Oberg's attorney. Under the terms of the settlement agreement, Mr. Oberg agreed to accept a one-grade reduction in salary and removal from the IG position, and NARA agreed to pay his attorney fees in the amount of $10,833. On March 2, 1993, Mr. Millane certified the $10,833 payment in attorney fees. We subsequently held, however, that NARA does not have authority to pay an employee's attorney fees for negotiating such a settlement with the agency. B-253507, Jan. 11, 1994. A certifying officer who authorizes a payment that is improper, incorrect, or illegal, is responsible for repaying the payment. 31 U.S.C. Sec. 3528(a)(4). The certifying officer is jointly and severally liable with the persons or persons who benefited from the payment to repay the United States the amount of the loss incurred as a result of the illegal, improper, or incorrect payment. 67 Comp.Gen. 457, 464 (1988); B-239592, Aug. 23, 1991. As required, NARA examined the possibility of collecting this claim from Mr. Oberg. 4 C.F.R. Sec. 102.1(a). NARA decided to terminate collection action, however, having determined that "the cost of further collection will exceed the amount recoverable thereby". 4 C.F.R. Sec. 104.3(c). The certifying officer, nonetheless, remains liable for the unauthorized payment. 67 Comp.Gen. at 464. Analysis This Office is authorized to relieve a certifying officer from liability when we find that (1) the obligation was incurred in good faith; (2) no law specifically prohibited the payment; and (3) the United States received value for the payment. 31 U.S.C. Sec. 3528(b)(1)(B). A finding of the first criterion, good faith, is in large part premised on our finding that the certifying officer did not, nor should reasonably have had, doubt regarding the propriety of the payment. B-250884, Mar. 18, 1993. Whether the certifying officer should have been in doubt requires weighing all surrounding facts and circumstances and cannot be resolved by any "hard and fast rule." 70 Comp.Gen. 723, 726 (1994). In many cases, good faith is found simply by the absence of any evidence to the contrary. Id. Your letter states that the certifying officer, on numerous occasions, had certified payments of attorney fees arising from the administrative settlement of personnel disputes. You cite as an example Equal Employment Opportunity (EEO) actions and actions before the MSPB where attorney fees are specifically authorized by law. See 62 Comp.Gen. 464 (1993); B-231813, Aug. 22, 1989; B-199291, June 19, 1981. You further assert that the material sent to the certifying officer contained nothing which, on its face, should have alerted the officer that there was no legal basis for paying the fees.