BNUMBER:  B-260534
DATE:  November 29, 1995
TITLE:  Cynthia S. Browning and Charlie L. Cranford-Expired
Appointments-Status as De Facto
Employees

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Matter of:Cynthia S. Browning and Charlie L. Cranford-Expired 
          Appointments-Status as De Facto Employees

File:     B-260534

Date:     November 29, 1995

DIGEST

A Federal Aviation Administration employee received an invalid 2-year 
appointment and another FAA employee received a valid 2-year 
appointment.  Both employees continued to work after their 
appointments expired.  Subsequently, both employees received valid 
competitive appointments.  During the periods when they were not 
properly appointed, the individuals may be regarded as de facto 
employees and may retain the compensation paid to them.  However, the 
periods following the expiration of their appointments may not be 
considered as creditable service for the purpose of leave accrual.

DECISION

Two employees of the Federal Aviation Administration (FAA), Ms. 
Cynthia S. Browning and Ms. Charlie L. Cranford, received time-limited 
appointments.  For the reasons explained below, the first one was 
valid and the other one was not.  Each of the employees continued to 
work for the agency after their appointments expired.  Subsequently, 
each of them received valid competitive appointments.  The FAA now 
asks whether, during the time between those appointments, the 
employees may be considered de facto employees so that they may retain 
the salary paid to them and receive service credit for leave accrual 
and other purposes. 

We hold that the two individuals were de facto employees during the 
periods when they were not properly appointed and, therefore, that 
they are entitled to retain the compensation paid to them.  However, 
the periods following the expiration of their appointments may not be 
considered as creditable service for leave accrual purposes.

BACKGROUND

Ms. Cynthia S. Browning.  Ms. Browning works in the FAA's Alaskan 
Region as a Human Resource Assistant.  The agency first appointed her 
on December 12, 1989, under the special authority that permits the 
noncompetitive employment of individuals who are at a severe 
disadvantage in obtaining employment because of certain disabilities, 
but who are certified able to function in the position to which they 
will be appointed.  5 C.F.R.  213.3202(k).  Appointments under this 
authority are limited to 2 years.  Id.

Although the authority for Ms. Browning's appointment expired on 
December 11, 1991, Ms. Browning continued to serve in her position.  
The agency states that regional personnel had failed to put a "not to 
exceed" date on her appointment, and, consequently, the agency did not 
discover that her appointment had expired until it did a general 
review of appointments under special authorities.  Subsequently, on 
August 9, 1992, the agency competitively appointed Ms. Browning to a 
permanent position.

Ms. Charlie L. Cranford.  The FAA first appointed Ms. Cranford to a 
position in the Alaskan Region on May 21, 1989.  Although the agency 
intended to appoint Ms. Cranford under the same authority used for Ms. 
Browning's first appointment, the agency erroneously appointed her 
under 5 C.F.R.  213.3102(u), which permits noncompetitive 
appointments for a different category of disabled individuals.  
Appointments under this authority also have a 2-year limit.

Again, the agency failed to act on Ms. Cranford's appointment at the 
end of the 2-year period, and the employee continued to serve in her 
position.  After discovering the error during its general review of 
special appointments, the agency competitively appointed Ms. Cranford 
to a permanent position on June 28, 1992.

The FAA submitted both cases to the Office of Personnel Management 
(OPM), requesting that OPM grant a variation from the regulatory time 
limits so that the employees' service between appointments would be 
creditable.  See 5 C.F.R.  5.1 (1995).  OPM advised the FAA to first 
submit the matter to our Office and stated that, if we could not grant 
full relief, the FAA could resubmit its request for a variation to 
OPM.

OPINION

A de facto employee performs the duties of a position with apparent 
right and under color of appointment and claim of title to such 
position.  J. Kenneth Blackwell, B-257669, Dec. 8, 1994, and cases 
cited therein.  An individual may be considered a de facto employee 
and paid for the reasonable value of his services notwithstanding the 
lack of a valid appointment, provided the individual was acting under 
color of authority and in good faith with the reasonable expectation 
of compensation.  Id.  Applying these rules, we have held that 
individuals who work beyond the expiration of their appointments 
because of administrative error and without fault may be considered de 
facto employees and paid for the reasonable value of their services.  
David J. McCullough, B-198238, June 5, 1980; Timothy P. Connolly, 
B-186229, June 8, 1977.

The determination whether an individual may receive service credit for 
leave purposes depends on whether the individual was serving under an 
appointment.  A de facto employee serving under an appointment that is 
later found to be defective may receive leave credit, unless the 
appointment was made in violation of an absolute statutory bar or the 
employee was guilty of fraud.  McCullough, supra; Victor M. Valdez, 58 
Comp. Gen. 734 (1979).  However, an individual who serves without an 
appointment or after the expiration of an appointment may not receive 
leave credit.  While such individuals may be paid for the reasonable 
value of their services, they are not considered "employees" for leave 
purposes under 5 U.S.C.  6301 (1994).  McCullough and Valdez, supra.

The record shows that both Ms. Browning and Ms. Cranford met the 
requirements for de facto employee status.  Ms. Cranford's initial 
appointment was executed improperly because of an administrative 
error, and the agency states that it was solely at fault in failing to 
take action at the end of the employees' 2-year appointments.  
Further, the record shows that both individuals continued to work in 
good faith until the agency discovered its errors and appointed them 
to permanent positions.  Under these circumstances, both individuals 
may be paid for their services as de facto employees.

Ms. Browning's period of de facto service began upon the expiration of 
her 2-year appointment on December 11, 1991, and extended until she 
was appointed to a permanent position on August 9, 1992.  For this 
period, Ms. Browning may retain the salary payments she received.  
However, as explained above, Ms. Browning was not an "employee" for 
purposes of the leave laws during this period and, therefore, she is 
not entitled to service credit for purposes of leave accrual.

Ms. Cranford had two periods of de facto service.  The first period 
was when she served under the erroneous 2-year appointment from May 
21, 1989, through May 20, 1991.  For this period, Ms. Cranford may 
retain her salary and receive service credit for leave purposes.  Ms. 
Cranford also may be paid as a de facto employee for the period 
between the expiration of her appointment and June 28, 1992, the date 
she was appointed to a permanent position.  However, the time between 
Ms. Cranford's appointments is not creditable service for leave 
purposes.

Accordingly, both employees may retain compensation for the services 
they performed as de facto employees, but they may not be credited 
with leave for the periods between their appointments.[1]

/s/Seymour Efros
for Robert P. Murphy
General Counsel

1. As noted previously, OPM advised FAA that it could renew its 
request for a variation in these circumstances.