BNUMBER: B-256157
DATE: December 21, 1995
TITLE: United States Secret Service Uniformed
Division-Biweekly and Annual Pay Limitations
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Matter of:United States Secret Service Uniformed Division-Biweekly and
Annual Pay Limitations
File: B-256157
Date: December 21, 1995
DIGEST
1. The compensation payable to members of the Uniformed Division of
the United States Secret Service is subject to two independent
limitations on the biweekly and aggregate annual compensation that
each member is eligible to receive. The first limitation is that
compensation shall not exceed the rate of basic pay for level V of the
Executive Schedule. 4 D.C. Code, 4-406 (1994). This limitation
applies to basic pay, as adjusted, plus longevity pay, but does not
include premium pay.
2. The compensation payable to members of the Uniformed Division of
the United States Secret Service is subject to two independent
limitations on the biweekly and aggregate annual compensation that
each member is eligible to receive. The second limitation is that the
aggregate rate of compensation for any pay period shall not exceed the
minimum scheduled rate of basic compensation of the District of
Columbia Chief of Police and Fire Chief. 4 D.C. Code, 4-1104(h)(2)
(1994). This limitation applies to basic pay, as adjusted, plus
premium pay (overtime pay, compensatory time off, Sunday pay, and
night pay), but does not include longevity pay. The ceiling to be
applied is the unadjusted minimum scheduled basic pay rate of the
Police Chief and Fire Chief in effect when the premium pay was earned.
DECISION
This decision responds to a request for an advisory opinion from the
United States Secret Service, Department of the Treasury.[1] The
questions asked involve the maximum biweekly premium pay and aggregate
annual compensation that may be paid to members of the United States
Secret Service Uniformed Division and the types of compensation that
are subject to the limitations. We conclude that there are two
independent limitations on the compensation which may be paid. Basic
pay, as adjusted, longevity pay, and assignment or position pay are
subject to one limitation, and premium pay plus basic pay, as
adjusted, are subject to the other limitation, as explained below.
BACKGROUND
Although members of the Uniformed Division, United States Secret
Service, are federal employees, their basic compensation system was
established by the District of Columbia Police and Firemen's Salary
Act of 1958,[2] as amended, and is contained in sections 4-402 to
4-420 of title 4, District of Columbia Code (D.C. Code). The 1958 Act
established the basic salary schedule structure for police and
firefighters in the District of Columbia, including the United States
Park Police and the then White House Police, comprising 10 different
classes with 6 service steps, plus 3 longevity steps,[3] in each
class. The Chief of Police and the Fire Chief occupied class 10 of
the salary schedule. In 1970, those salary classes were increased
from 10 to 11. The Chief of Police and the Fire Chief occupied the
newly created Class 11 and the Commanding Officer of the White House
Police (redesignated the "Executive Protective Service" in 1970 for
pay purposes,[4] and further redesignated as the "United States Secret
Service Uniformed Division" in 1980 for pay purposes[5]), occupied
Class 10 of the newly restructured salary schedule.[6]
In the meantime, in 1965 Congress limited premium pay for officers and
members by adding the following provisions to then section 4-904 of
Title 4, D.C. Code.[7] Subsection (h)(1) thereof provided that any
officer or member whose rate of basic compensation equals or exceeds
the minimum scheduled rate of basic pay for service step 1 of the
class designation for the Chief of Police and the Fire Chief for the
District of Columbia, may not be paid premium pay or receive
compensatory time off. Subsection (h)(2) thereof provided that
officers or members, whose rate of basic compensation is less than
that minimum scheduled rate, may receive premium pay "only to the
extent that such payment would not cause his aggregate rate of
compensation to exceed such minimum scheduled rate with respect to any
pay period."
The first major revision of the salary schedule structure for District
of Columbia Police, Fire Department, Park Police, and Executive
Protective Service (Uniformed Division), occurred in 1972 with
enactment of Pub. L. No. 92-410.[8] Among the changes made, section
102 thereof amended section 101 of the 1958 salary act by inserting:
"(b) Compensation may not be paid, by reason of any provision of
this Act, at a rate in excess of the rate of basic pay for level
V of the Executive Schedule contained in subchapter II of chapter
53 of title 5, United States Code."
Another major revision occurred in 1980, whereby annual adjustments to
the pay rates for members of the Uniformed Division were no longer to
be governed by determinations of the Council for the District of
Columbia. Thereafter, all adjustments to scheduled pay for members of
the Uniformed Division are made by the Secretary of the Treasury based
on changes made pursuant to 5 U.S.C. 5305 for the rates of pay under
the General Schedule.[9]
In late 1990, the Secret Service conducted a review of its pay
regulations while preparing to implement the Federal Employees Pay
Comparability Act (FEPCA).[10] It discovered that, even though the
pay for members of the Uniformed Division had been capped in 1972 at
the salary rate for level V of the Executive Schedule, the premium pay
limitation enacted in 1965 had not been changed. The Secret Service
points out that, during the period 1980 to 1990, the minimum scheduled
salary rate for the Chief of Police and the Fire Chief exceeded the
rate of basic pay for level V of the Executive Schedule and that, from
October 1980 to January 1991, the agency used the Executive level V
rate as the biweekly premium pay limitation as well as the annual
aggregate compensation limit for the members of the Uniformed
Division.
In January 1991, the rate of basic pay for level V of the Executive
Schedule was raised to an amount which exceeded the minimum scheduled
salary rate for the Chief of Police and the Fire Chief of the District
of Columbia. As a result, the minimum scheduled pay rate for the
Chief of Police and the Fire Chief of the District of Columbia is
currently being used as the biweekly premium pay ceiling for members
of the Uniformed Division who are eligible to perform compensable
overtime, and the rate of basic pay of level V of the Executive
Schedule is being used as the annual aggregate compensation limit.
Since the biweekly premium pay limit was not changed in the 1980 Act,
the Secret Service believes that the way it used the Executive level V
limitation from 1980 to 1991 was incorrect and that the biweekly
limitation should have been used for premium pay. If so, the error
may have resulted in compensation underpayments to some members of its
Uniformed Division. Because members of the Uniformed Division are
eligible to receive a number of adjustments and additions to their
scheduled rate of basic pay (longevity pay, special salary rates,
locality-based adjustments for law enforcement officers, technician
pay, premium pay for overtime, compensatory time off for overtime,
Sunday pay, and night pay), the Secret Service requests our opinion as
to how the two limitations apply to biweekly premium pay and annual
pay.
OPINION
Based on the foregoing history, it is clear that both of the pay
limitations continue to apply to the compensation of Uniformed
Division members, but they apply to different kinds of additional pay
beyond the members' scheduled rates of basic pay.
Executive Schedule Level V Limitation
The pay limitation in 4 D.C. Code 4-406 (compensation may not be
paid in excess of the rate of basic pay for level V of the Executive
Schedule) applies to compensation paid under any provision of the 1958
Salary Act, as amended. The legislative history of the 1972 amendment
to that Act (adding the pay limit) shows that "compensation" as used
therein means "the amount presented by the schedule plus any
additional amount provided for total service longevity or particular
assignments or positions."[11] Moreover, since members of the
Uniformed Division are federal employees whose basic pay is prescribed
and adjusted based on adjustments to the General Schedule, the
definition of the term "basic pay" used in 5 C.F.R. 550.103(j)
(1995) is applicable. That provision states that "rate of basic pay"
means:
"the rate of pay fixed by law or administrative action for the
position held by an employee, including any applicable interim
geographic adjustment or special pay adjustment for law
enforcement officers under section 302 or 404 of the Federal
Employees Pay Comparability Act of 1990 . . . before any
deductions and exclusive of additional pay of any other kind."
Since premium pay is by definition additional pay, it is not covered
by this limitation on basic pay.
Thus, the pay limitation in section 4-406 of title 4, D.C. Code,
applies to basic pay, as adjusted (scheduled rate of pay for a
member's position or assignment including technician pay, special
salary rates, locality-based special pay adjustments for law
enforcement officers) and longevity pay, but does not include premium
pay. For that reason, we agree with the Secret Service that use of
the Executive V limitation for premium pay from 1980 to 1991 was
incorrect.
Premium Pay Limitation
The biweekly premium pay limitation in 4 D.C. Code 4-1104(h)(1) and
(2) (1994 Replacement Volume) as amended in 1972, was intended to
continue the congressional mandate that the maximum aggregate
compensation that may be paid to law enforcement officers and
firefighters under the D.C. Code on a biweekly basis may not exceed
the minimum scheduled basic pay rate for the Chief of Police and the
Fire Chief.[12]
In that context, the term "rate of basic compensation," is defined in
section 4-1104(a)(7) of title 4, D.C. Code, to mean "the rate of
compensation fixed by law for the position held by an officer or
member exclusive of any deductions or additional compensation of any
kind."[13] Premium pay, in turn, is defined in section 4-1104(a)(8)
as "compensation not considered as salary for the purpose of computing
deductions for life insurance or for computing annuity payments under
4-607 to 4-630"[14] and would include overtime work.[15] Premium pay
is also defined in section 550.103(i) of title 5, Code of Federal
Regulations (1995), to mean:
"additional pay authorized by subchapter V of chapter 55 of title
5, United States Code, and this subpart for overtime, night,
holiday, or Sunday work, and for standby duty, administratively
uncontrollable overtime work, or availability duty."
Therefore, the premium pay limitation stated in section 4-1104(h)(2),
D.C. Code, clearly applies to basic pay, as adjusted (scheduled rate
of pay including technician pay, special salary rates, and
locality-based special pay adjustments for law enforcement officers),
plus premium pay (pay for overtime work, compensatory time off for
overtime work, Sunday pay and night pay). The remaining question is
whether longevity pay is included in the aggregate rate of
compensation which may not exceed the minimum scheduled rate of basic
compensation for the Chief of Police and the Fire Chief of the
District of Columbia on a biweekly basis.
Although longevity pay is specifically mentioned in the Senate and
House reports on the Executive level V limitation, it is not mentioned
in either the statutory language or the legislative history pertaining
to the biweekly premium pay limitation. Moreover, in U.S. Secret
Service Uniformed Division, B-251235, May 28, 1993, we held that
longevity pay authorized for members of the Uniformed Division under
section 4-415 of title 4, D.C. Code is not a part of a member's rate
of basic compensation for the purpose of computing overtime pay,
holiday pay, night work, Sunday work, or Fair Labor Standard Act
overtime.
Thus, longevity pay is not part of basic pay and is not used in
computing overtime pay or other premium pay. Since the focus of this
limitation is to limit premium pay plus basic pay so as not to exceed
the minimum basic pay rate of the D.C. Police or Fire Chief, and in
the absence of any contrary expression of intent, we conclude that
Congress did not intend to include longevity pay in aggregate
compensation for the purpose of the biweekly premium pay limitation in
section 4-1104(h)(2) of title 4, D.C. Code.
Finally, since we have held that the Executive level V rate does not
limit biweekly premium pay, the Secret Service asks whether biweekly
premium pay is limited by the current rate for the Police Chief and
Fire Chief, or by a rate that is adjusted either by the percentage
increases in the Uniformed Division salary chart or by the annual
comparability increases, special salary rates, and special pay
adjustments for law enforcement officers.
Since the Congress in 1972 made it clear that its intent was to limit
premium pay so that aggregate compensation (basic pay plus premium pay
as explained above) would not exceed the basic pay of step 1 at the
salary class applicable to the Chief of Police and the Fire Chief, we
see no basis to factor in any adjustments to that minimum basic pay
rate. Thus, in our opinion, the biweekly aggregate of basic pay plus
premium pay is limited to the unadjusted minimum scheduled rate of
basic compensation for the Chief of Police and the Fire Chief of the
District of Columbia in effect at the time the premium pay was earned.
CONCLUSION
In summary, effective the first day of the first pay period beginning
on or after May 1, 1972,[16] two independent pay limitations have been
applicable to compensation which could be received by officers and
members of the Uniformed Division. For the purposes of both
limitations, the basic pay for members of the Uniformed Division
consists of the scheduled rate of pay for their position or
assignment, including technician pay, special salary rates, and
locality-based special pay adjustments for law enforcement officers,
if applicable. Therefore, for the purpose of the "level V of the
Executive Schedule" limitation, a member of the Uniformed Division who
is qualified for longevity pay, may receive that pay, in addition to
his/her basic pay, as adjusted (not including premium pay), but only
to the extent that longevity pay does not cause that compensation
package to exceed the basic pay of level V of the Executive Schedule.
For the purpose of the biweekly aggregate pay limitation, a member is
entitled to receive premium pay or compensatory time off, but only to
the extent that such premium pay, when added to his basic pay, as
adjusted (not including longevity pay) does not cause the member's
aggregate rate of compensation to exceed the unadjusted minimum
scheduled rate of pay for the Chief of Police and the Fire Chief of
the District of Columbia in effect when the premium pay was earned
with respect to any biweekly pay period.
As the foregoing relates to Uniformed Division members who have been
underpaid because of the error, clearly they should be compensated to
the maximum extent permitted under the provisions of the barring act,
31 U.S.C. 3702(b)(1) (1994), even though there is nothing in the
file to suggest that any of them have filed a claim for such
underpayment. Therefore, for the purpose of the barring act, we will
consider the date of the earliest correspondence from the Secret
Service to this Office concerning the matter (December 23, 1993), as
the date of filing on behalf of all affected Uniformed Division
members. Accordingly, all required adjustments to their pay which do
not antedate December 23, 1987, may be paid, if otherwise correct.
/s/Lowell Dodge
for Robert P. Murphy
General Counsel
1. Mr. David C. Lee, Assistant Director, Office of Administration.
2. Pub. L. No. 85-584, Aug. 1, 1958, 72 Stat. 480.
3. These longevity steps were replaced by salary steps 7, 8, and 9 by
section 103 of Pub. L. No. 92-410, Aug. 29, 1972, 86 Stat. 634.
4. Section 202 of Pub. L. No. 91-297, June 30, 1970, 84 Stat. 354,
358. See also Pub. L. No. 91-217, Mar. 19, 1970, 84 Stat. 74, for
official name change in the United States Code.
5. Pub. L. No. 96-396, Oct. 7, 1980, 94 Stat. 1562. See also Pub. L.
No. 95-179, Nov. 15, 1977, 91 Stat. 1371, for the official name change
in the United States Code.
6. Pub. L. No. 91-297, footnote 4 supra.
7. Pub. L. No. 89-282, Oct. 21, 1965, 79 Stat. 1013, 1015. Currently
section 4-1104 of title 4, D.C. Code (1994 Replacement Volume).
8. Footnote 3, supra.
9. Pub. L. No. 96-396, Oct. 7, 1980, 94 Stat. 1562. See also section
4-416(b)(1) of title 4, D.C. Code.
10. Pub. L. No. 101-509, Nov. 5, 1990, 104 Stat. 1429.
11. H.R. Rep. No. 92-1180, 92d Cong., 2d Sess., at 3 (1972), and S.
Rep. No. 92-994, 92d Cong., 2d Sess., at 7 (1972).
12. H.R. Rep. No. 92-1180, 92d Cong., 2d Sess., at 5 (1972).
13. Section 4-1104(a)(7) of title 4, D.C. Code (1994 Replacement
Volume).
14. Sections 4-1104(a)(8) of title 4, D.C. Code (1994 Replacement
Volume). For purposes of 4-607 to 4-630, "basic salary" is defined
to exclude overtime, holiday, or military pay.
15. Sections 4-1104(c)-(g) of title 4, D.C. Code (1994 Replacement
Volume).
16. Section 118 of Public Law 92-410, Aug. 29, 1972, 86 Stat. 634,
641.