TITLE:  Government Printing Office--Recruitment & Relocation Payments and Retention Allowances, B-301837, April 28, 2004
BNUMBER:  B-301837
DATE:  April 28, 2004
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   Decision

   Matter of:   Government Printing Office--Recruitment & Relocation Payments
and Retention Allowances

   File:            B-301837

   Date:           April 28, 2004

   DIGEST

   In view of the broad authority under the Kiess Act, 44 U.S.C. S 305, to
set the pay of Government Printing Office (GPO) employees, GPO may use
appropriated funds to pay recruitment and relocation bonuses and retention
allowances.  Because of the close relationship between GPO and the Joint
Committee on Printing (JCP), we suggest that GPO consult with JCP on its
decision to make such payments.

   DECISION

   The General Counsel of the Government Printing Office (GPO) has requested
an advance decision under 31 U.S.C. S 3529 on whether GPO may use
appropriated funds to provide recruitment and relocation payments and
retention allowances to GPO employees hired under the Kiess Act, 44 U.S.C.
S 305.[1]  As we explain below, GPO's broad authority to set wage and
salary rates under the Kiess Act permits the Public Printer to make
recruitment and relocation payments and retention allowances.  Because of
the close relationship between GPO and the Joint Committee on Printing
(JCP), we suggest that GPO consult with JCP on its decision to make such
payments.

   BACKGROUND

   GPO's authority to employ and pay employees is found at 44 U.S.C. S 305
(the Kiess Act).  That statute states, in part: 

   "The Public Printer may employ journeymen, apprentices, laborers, and
other persons necessary for the work of the Government Printing Office at
rates of wages and salaries, including compensation for night and overtime
work, he considers for the interest of the Government and just to the
persons employed, except as otherwise provided by this section."

   The salaries of GPO employees are paid from two appropriations.  Most GPO
employees are paid from the GPO Revolving Fund.  44 U.S.C. S 309.  See
Budget of United States Government, Fiscal Year 2005 Appendix at 44
(Government Printing Office, Intragovernmental Funds, Government Printing
Office Revolving Fund).  A small number of GPO employees are paid from
annual appropriations for salaries and expenses for the Office of the
Superintendent of Documents.  Id. at 43.  See Legislative Branch
Appropriations Act, 2004, Pub. L. No. 108-83, Tit. I, 117 Stat. 1007, 1032
(2003).

   The GPO General Counsel believes that the Kiess Act, when coupled with the
Public Printer's mandate "to take charge and manage the Government
Printing Office,"[2] allows the Public Printer to use these appropriated
funds to provide recruitment and relocation bonuses and retention
allowances to GPO employees.[3]  Letter from Anthony J. Zagami, General
Counsel, Government Printing Office, to Anthony H. Gamboa, General
Counsel, General Accounting Office, Sept. 26, 2003.

   ANALYSIS

   The Congress has authorized the Office of Personnel Management (OPM) to
permit the heads of executive branch and certain other agencies to make
recruitment, relocation, and retention payments to federal employees.  5
U.S.C. SS 5753 (recruitment and relocation bonuses), 5754 (retention
allowances).[4]  However, sections 5753 and 5754 only authorize such
payments for employees and positions that are subject to subchapter III of
Chapter 53 of Title 5.  5 U.S.C. SS 5753(c)(2) and 5754(c)(2).  Subchapter
III of Chapter 53, in turn, applies only to employees and positions to
which Chapter 51 of Title 5 applies.  5 U.S.C. S 5331(b).  Employees of
GPO whose pay is fixed under 44 U.S.C. S 305 (the Kiess Act) are excluded
from coverage under Chapter 51,[5] and are therefore excluded from
coverage under Subchapter III.[6]   Since GPO employees who are governed
by the Kiess Act are not covered by Chapter 51 or subchapter III of
Chapter 53, they are ineligible to receive recruitment, relocation, or
retention payments under sections 5753 and 5754.[7]   We note Judge
Miller's observation that "the overall statutory scheme addressing the
compensation of GPO employees belies a paradigm of clarity . .A .A ."
Abramson v. United States, 40 Fed. Cl. 204, 214 (1998) (holding that 5
U.S.C. S 5544(a), which governed the rate of overtime pay, applied to
certain GPO employees paid on an annual basis).  OPM's authority,
therefore, to permit heads of agencies to make these payments does not
extend to the Public Printer.[8]

   Most agency heads operate under strict pay statutes and regulations and
have little or no authority to set compensation; consequently, they
require specific authority to offer recruitment, relocation, and retention
payments to federal employees.  See 5 U.S.C. Chapters 51, 53, and 55; 5
C.F.R. Parts 511, 530, 531, 532, 534, and 536.  See also  H.R. Conf. Rep.
No. 101-906, S IV, Pay Flexibilities, at 89 (1990) (explaining the
inclusion of special authorities to pay recruitment and relocation bonuses
and travel and transportation expenses for new job candidates and new
hires in H.R. 5241, which became Pub. L. 101-509 (1990)).  See further
Treasury, Postal Serv., and Gen. Gov't Appropriations for Fiscal Year
1991, Hearings Before the House Subcomm. on the Treas., Postal Serv. and
Gen. Gov't Appropriations, Part 4, Office of Personnel Management, 101st
Cong. 653-4, (1990) (statement by Office of Personnel Management Director
Constance Berry) ("We propose to authorize the payment of bonuses to
recruit and retain or relocate workers with critical skills.")[9]

   Because GPO's Kiess Act employees are not covered by the authorities
available to most federal agencies to provide recruitment and relocation
payments and retention allowances, the question arises whether GPO may use
appropriated funds to make such payments to its employees.  Unlike most
agency heads, the Public Printer has pay authorities specific to GPO --
the Kiess Act.  To determine whether the Public Printer possesses
independent authority to make these payments, we look to that Act.  The
language of 44 U.S.C. S 305 is broad and general; it grants the Public
Printer wide discretion to fix compensation rates for GPO employees.  The
Public Printer may employ persons necessary for the work of GPO "at rates
of wages and salaries, including compensation for night and overtime work
. . . he considers for the interest of the Government and just to the
persons employed . . ." 44 U.S.C. S 305 (emphasis added). [10]  We have on
previous occasions recognized the broad authority vested in the Public
Printer under the Kiess Act.  See, e.g. B-191619, May 9, 1978.  See also
36 Comp. Gen. 163 (1956) (broad provisions of the Kiess Act place no
limitation on the Public Printer's authority to fix workweeks of less than
40 hours and pay overtime for work in excess of that workweek).[11]

   Prior to passage of the Kiess Act, the Congress annually set the pay for
various positions at GPO.  See, e.g. Pub. L. No. 67-431, 42 Stat. 1264,
1277-78 (1923) (fiscal year 1924 legislative branch appropriations setting
salaries for various clerks, secretaries, delivery men, messenger boys and
other positions).  The Kiess Act was enacted, in part, to delegate such
pay-setting authority to the Public Printer.

   "It would be a difficult task for Congress to fix by law from time to time
such wages as would be just to the score or more of trades and the
numerous groups of each trade employed in the Government Printing Office. 
Therefore it was decided [by the Joint Committee on Printing] that the
wages of all the work forces in the Government Printing Office be
determined by the Public Printer. . . . To secure an adequate number of
efficient workmen at all times it is necessary for the Government as it is
for the private employer to be able to meet changing conditions with
corresponding readjustments to wage scales. . . . Accordingly, the Public
Printer . . . should have the authority to readjust wages for the
Government Printing Office from time to time, the same as can now be done
for every other industrial plant . . ." 65 Cong. Rec. 10,552 (1924)
(Statement of Rep. Kiess).

   The flexibility that Representative Kiess sought for the Public Printer is
found in the language of the legislation that was enacted:  to employ
persons at wages and salaries "he considers for the interest of the
government and just to the persons employed."  44 U.S.C. S 305.  The
Congress constrained the Public Printer's exercise of discretion not by
reference to pay statutes and regulations applicable to other federal
employees but "except as otherwise provided by this section."  Id.

   We believe that payment of recruitment and relocation bonuses and
retention allowances can be reasonably viewed as incidental to wages and
salaries.[12] Recruitment and relocation payments and retention allowances
are commonly viewed today as important tools in recruiting, maintaining,
and managing an effective, dynamic workforce.[13]  See, e.g. Hearings on
Treasury, Postal Serv., and Gen. Gov't Appropriations for Fiscal Year
1991, 101st Cong. 653-4 ("We also are interested in building an additional
flexibility in order to help the government recruit and retain the best .
. .")  Indeed, the flexibility to offer recruitment and relocation bonuses
and retention allowances today seems to be the same sort of flexibility
that Representative Kiess sought for the Public Printer in 1924:  "to
secure an adequate number of efficient workmen at all times, it is
necessary for the government as it is for the private employer to be able
to meet changing conditions . . ." 65 Cong. Rec. 10,552 (1924). 
Exercising his discretion to offer wages and salaries that he "considers
for the interest of the Government and just to the persons employed," the
Public Printer, for example, might reasonably consider it in the
government's interest and just to the employee, or prospective employee,
to provide a recruitment or relocation bonus or retention allowance for a
hard to fill GPO position. 

   While the Kiess Act, broadly read, permits the Public Printer to use
appropriated funds to make recruitment, relocation, and retention
payments, we suggest that the Public Printer consult with the Joint
Committee on Printing (JCP) on its decision to make such payments.  JCP
has a close relationship with GPO, a legislative branch agency.  See,
e.g., 44 U.S.C. S 103 (JCP power to remedy neglect, delay, duplication,
waste); S 502 (JCP approval of contract work); S 505 (JCP regulation of
sale of duplicate plates); S 509 (JCP fixing standards for paper); S 512
(JCP approval of paper contracts); S 1914 (JCP approval of measures taken
by the Printer to implement the depository library program).  See also
Lewis v. Sawyer, No. 85-1414, slip. op. (D.D.C. July 2, 1982), aff'd 698
F.2d 1261 (D.C. Cir. 1983) (Public Printer lacked authority to furlough
workers because JCP passed resolution forbidding GPO furloughs);
B-252215, March 24, 1993.

   CONCLUSION

   The Kiess Act, 44 U.S.C. S 305, provides the Public Printer with broad
authority to set wage and salary rates of GPO employees covered by that
Act.  Recruitment and relocation payments and retention allowances are
necessary to recruiting and managing an effective, dynamic workforce. 
Therefore, the Public Printer, acting under his broad Kiess Act authority,
may make such payments and allowances available to GPO employees.  Because
of the close relationship between GPO and the Joint Committee on Printing,
we suggest that the Public Printer consult with JCP on its decision to pay
recruitment and relocation payments and retention allowances.  We would
also note that it would be advisable for the Public Printer to set
criteria under which such bonuses or allowances are given in particular
circumstances.

   /signed/

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] To the extent that GPO may have employees whose compensation is not
fixed under the Kiess Act, this decision may not apply.

   [2] 44 U.S.C. S 301.

   [3] For purposes of this decision, and as defined in Title 5 of the United
States Code, "recruitment and relocation bonus" is a lump-sum payment
offered to a prospective employee by an agency that has determined that in
the absence of such a bonus, the agency would encounter difficulty in
filling the position.  The bonus is contingent upon the employee entering
into an agreement with the agency to complete some period of employment. 
See, e.g., 5 U.S.C. S 5753.  Similarly, a "retention allowance" is a
lump-sum payment to a highly qualified employee by an agency that has
determined that the employee would be likely to leave in the absence of
the allowance.  See, e.g.,

   5 U.S.C. S 5754.

   [4] OPM has delegated to agency heads the authority to provide recruitment
and relocation payments and retention allowances to applicable employees. 
See 5 C.F.R. SS 575.102 (delegation of authority, recruitment bonuses);
575.202 (delegation of authority, relocation bonuses); 575.302 (delegation
of authority, retention allowances).

   [5] 5 U.S.C. S 5102(c)(9).

   [6] Curiously, but not relevant to the matter before us, sections 5753 and
5754 both state that the term "agency" has the meaning given by 5 U.S.C. S
5102, which explicitly includes GPO.  5 U.S.C. S 5102(a)(1)(D).

   [7] This conclusion is consistent with earlier decisions interpreting
Title 5 of the U.S. Code as applied to GPO employees.  See B-196053, Feb.
29, 1980, holding that the highest previous rate rule established in 5
U.S.C. S 5334(a) did not apply to a Kiess Act employee.  That decision, as
here, turned on whether the employee was covered by Subchapter III of
Chapter 53.  As here, we explained that because Kiess Act employees are
not covered by Chapter 51, they are excluded from Subchapter III coverage.

   [8] Through this same analysis, OPM regulations authorizing agency heads
to provide recruitment and relocation payments and retention allowances do
not cover GPO employees hired under the Kiess Act.  See 5 C.F.R. SS
575.102(a), 575.202(a) and 575.302(a).

   [9] Cf. Fed. Pers. Manual, Ch. 332-A-1, Recruitment Methods (Office of
Pers. Mgmt.

   July 13, 1981) (superceded); Ch. 530-7, Special Salary Rates for
Recruitment and Retention (July 31, 1986) (superceded); Ch. 572-3, Travel
Expenses for Preemployment Interviews (July 14, 1989) (superceded). 
Although superceded, OPM's Federal Personnel Manual (FPM) offered
comprehensive guidance to federal agencies on recruitment, relocation, and
retention.  No discussion of bonuses or allowances for such purposes
appears in the relevant sections of the FPM, further supporting the
conclusion that most executive branch agencies did not have authority to
make such payments prior to the enactment of 5 U.S.C. SS 5753 and 5754.

   [10] Compare, e.g. the more limited authority of 5 U.S.C. S 3101, granting
executive agencies, military departments and the government of the
District of Columbia general authority to "employ such number of employees
of the various classes recognized by chapter 51 of this title as Congress
may appropriate for from year to year," and Chapters 51 (Classification),
53 (Pay Rates and Systems), and 55 (Pay Administration) of Title 5
generally with 44 U.S.C. S 305. 

   [11] Cf. 41 Op. Att'y Gen. 282 (1956).  In view of Congress' intent to
permit the Public Printer to compete with private industry for the
services of persons skilled in printing trades, the Attorney General
concluded that the Kiess Act conferred very broad employment authority on
the Public Printer, subject to congressional supervision through the Joint
Committee on Printing, and that the Act should not be narrowly construed.

   [12] In some instances, we have defined the terms "wages" and "salaries"
as having narrower definitions than the term "compensation." See, e.g.,
B-205284, Nov. 16, 1981 ("salary" as used in the Tennessee Valley
Authority Act means employee's basic compensation or annual rate of
compensation, not including overtime compensation, occasional bonuses,
retirement fund contributions, and miscellaneous fringe benefits). We
note, however, that the three terms are used synonymously throughout 44
U.S.C. S 305.  See, also 41 Op. Att'y Gen. 282 (1956) (establishment of
regular hours of work and workweek generally recognized as part of wage
negotiations and Public Printer required to conduct such negotiations);
Pub. L. No. 67-431, 42 Stat. 1264, 1278 (1923) (appropriating funds to
Public Printer for "salaries, compensation, or wages of all necessary
employees").

   [13] Cf. 68 Comp. Gen. 127 (1988) (finding outplacement assistance a
necessary expense to enhance attractiveness of employment in public
service and to recruit dynamic, talented workforce).