TITLE: B-305835.2, United States Capitol Police--Overtime Pay and Compensatory Leave for Members and Civilian Employees, August 29, 2005
BNUMBER: B-305835.2
DATE: August 29, 2005
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B-305835.2, United States Capitol Police--Overtime Pay and Compensatory Leave for Members and Civilian Employees, August 29, 2005

   B-305835.2

   August 29, 2005

   William H. Pickle

   Chairman

   Wilson Livingood

   Member

   Alan M. Hantman

   Member

   United States Capitol Police Board

   Subject: United States Capitol Police--Overtime Pay and Compensatory Leave
   for Members and Civilian Employees

   On July 7, 2005, you requested our opinion on the authority of the United
   States Capitol Police (USCP) to provide overtime pay and compensatory and
   annual leave to its members and civilian employees. On July 19, 2005, we
   issued an opinion regarding overtime pay and compensatory leave for the
   three USCP employees whose salaries are fixed by statute: the Chief of
   Police, the Assistant Chief, and the Chief Administrative Officer.[1] This
   opinion addresses these same issues for the remaining USCP members and
   civilian employees.[2] This opinion also addresses the application of
   Section 1007 of the Legislative Branch Appropriations Act, 2006,[3] which
   waives the repayment of unauthorized overtime compensation for certain
   USCP officers.

   As we explain below, USCP civilian employees covered by the Fair Labor
   Standards Act (FLSA) are eligible for overtime pay, but may not receive
   aggregate compensation (base salary plus overtime pay) in excess of
   $156,848 annually (under 2005 USCP pay schedules). USCP civilian employees
   who are FLSA-exempt may not receive overtime pay, but may receive
   compensatory leave, upon a determination of special circumstances by the
   Chief of Police. Compensatory leave for both civilian and uniformed
   employees is not subject to annual aggregate compensation limits, but
   under USCP regulations, is subject to an annual carryover maximum of 240
   hours. Since 2001, the USCP Chief has invoked his authority under the USCP
   Leave Regulations to waive this maximum because of continuing emergency
   circumstances.

   Members of the Capitol Police below the rank of lieutenant are covered by
   the FLSA and are eligible for overtime pay (up to an annual aggregate
   compensation limit of $156,848 under 2005 USCP pay schedules) or
   compensatory leave. Lieutenants and above are FLSA-exempt and are eligible
   for overtime pay (up to an annual aggregate compensation limit of $131,400
   under 2005 pay schedules) or compensatory leave, provided their basic rate
   of pay does not exceed $131,400.

   Section 1007 waives the repayment of unauthorized overtime pay that was
   earned and compensatory leave that was earned and used by USCP officers at
   the rank of lieutenant and above prior to June 15, 2005. Section 1007
   explicitly excludes the Chief, Assistant Chief, and Chief Administrative
   Officer from this waiver.

   Analysis

   Civilian Employees Covered by FLSA

   The Congressional Accountability Act and USCP regulations control overtime
   compensation for USCP civilian employees. The Congressional Accountability
   Act, enacted in 1995, made certain provisions of the FLSA applicable to
   covered employees in the legislative branch, including the Capitol Police.
   Pub. L. No. 104-1, sect. 203 (Jan. 23, 1995) (2 U.S.C. sect. 1313). The
   FLSA requires that certain employees receive additional compensation for
   hours worked beyond a 40-hour work week. 29 U.S.C. sect. 207. Generally,
   the Congressional Accountability Act requires that employees covered by
   the FLSA receive overtime pay, not compensatory leave, for additional
   hours worked. 2 U.S.C. sect. 1313(a)(3). These requirements apply to most
   employees who are not "employed in a bona fide executive, administrative,
   or professional capacity." 29 U.S.C. sect. 213(a)(1).

   In 1997, Congress directed the USCP Board to issue regulations to
   establish a unified pay and leave system for USCP civilian employees and
   USCP members. 2 U.S.C. sect. 1923. By statute, these regulations have the
   force and effect of law once approved by the Committee on House
   Administration of the House of Representatives and the Committee on Rules
   and Administration of the Senate. Id. The USCP Board issued such
   regulations, including provisions authorizing overtime pay and
   compensatory leave, and the committees approved the regulations in 1998.
   Capitol Police Board Regulations Prescribing a Unified Leave System for
   Members and Civilian Employees of the USCP (USCP Leave Regulations) (May
   21, 1998).

   Section IV of these regulations deals with compensatory leave for civilian
   employees of the USCP and distinguishes between employees who are covered
   by, and those who are exempt from, the FLSA. Id. sect. IV(B)-(C). As
   required by the Congressional Accountability Act, employees who are
   covered by the FLSA generally must receive overtime pay, not compensatory
   leave, for additional hours worked.[4] 2 U.S.C. sections 1313(a)(1), (3);
   USCP Leave Regulations, sect. IV(C).

   Civilian employees who receive overtime pay are subject to the USCP's
   annual aggregate compensation cap, which is set in the annual pay schedule
   approved by the USCP's oversight committees.[5] See Capitol Police Board
   Resolution For Unified Schedules of Rates of Basic Pay for Members and
   Civilian Employees of the USCP (USCP Pay Regulations), sect. b(3) (Jan.
   15, 1998). For 2005, the maximum amount of compensation for civilian
   employees is $156,848. Schedule of Rates of Basic Pay for Civilian
   Employees of the USCP (Jan. 9, 2005). This limit is applied on an annual
   basis, rather than on a pay period basis.[6] USCP Pay Regulations, sect.
   d.

   Civilian Employees Exempt from FLSA

   Under the USCP Leave Regulations, FLSA-exempt civilian employees, which
   include executive, administrative, and professional employees, may not
   receive overtime pay, but may receive compensatory leave "for special
   circumstances as determined by the Chief of Police or his/her
   designee."[7] USCP Leave Regulations, sect. IV(B).

   In the course of this opinion, the question arose whether the USCP annual
   aggregate compensation limits apply to compensatory leave. While the USCP
   regulations do not specifically answer this question, the limitation on
   aggregate compensation is located in the pay regulations that deal
   strictly with rates of pay and other cash payments, rather than the leave
   regulations which authorize compensatory leave. Unlike annual leave, USCP
   employees are not entitled to a lump sum payment for accumulated
   compensatory time upon separation. USCP Leave Regulations, sect. XVI.
   Although not completely free of doubt, we would read the annual pay
   limitation as applicable only to overtime pay, not compensatory leave.[8]
   Thus, FLSA-exempt civilian employees may earn compensatory leave, subject
   only to the maximum annual carryover balance of 240 hours.[9] USCP Leave
   Regulations, sections III(B), IV(d). To avoid any future doubt on this
   matter, we recommend that the USCP Board fully consider whether
   compensatory leave should be subject to annual aggregate pay limitations
   and amend its regulations accordingly.

   USCP Members

   USCP officers and members are eligible for overtime pay or compensatory
   leave under certain circumstances, but their eligibility and the limit on
   their overtime compensation is dependent on their rank and salary.

   The Congressional Accountability Act and USCP Pay and Leave Regulations
   govern overtime compensation for members below the rank of lieutenant. The
   Congressional Accountability Act authorizes law enforcement personnel to
   elect compensatory time in lieu of overtime compensation. 2 U.S.C. sect.
   1313(c)(4). The USCP Leave Regulations reflect this provision and state
   that "members who have been determined to be non-exempt under the FLSA, as
   applied by the Congressional Accountability Act, are eligible to elect to
   receive hours of compensatory time off in lieu of overtime compensation
   for additional duty." USCP Leave Regulations, sect. IV(A).

   The USCP reported to us that they have determined that members below the
   rank of lieutenant are subject to the FLSA and thus are non-exempt
   employees. Therefore, all USCP members below the rank of lieutenant may
   elect to receive either overtime pay or compensatory leave. Those members
   who elect overtime pay are subject to the USCP annual pay limitation of
   $156,848. Schedule of Rates of Basic Pay for Members of the USCP (Jan. 9,
   2005). This pay limitation is applied on an annual basis. 2 U.S.C. sect.
   1932; USCP Pay Regulations, sect. d.

    

   USCP Officers

   The USCP considers officers at the rank of lieutenant and higher exempt
   from the FLSA, and section 1009 of the Consolidated Appropriations
   Resolution of 2003 governs their overtime compensation. Pub. L. No. 108-7,
   div. H, tit. I, sect. 1009 (Feb. 20, 2003) (Consolidated Appropriations
   Resolution). Section 1009, which applies only to officers at the rank of
   lieutenant and higher, authorizes the USCP Chief to provide for the
   compensation of overtime work with either overtime pay or compensatory
   leave. Id. However, such compensation must be provided "in the same manner
   and subject to the same terms and conditions which are applicable to the
   compensation of overtime work of officers and members of the United States
   Secret Service Uniformed Division and the United States Park Police who
   serve at the rank of lieutenant and higher" in accordance with section
   5-1304 of the District of Columbia Code. Id.

   Under the terms and conditions of District of Columbia law, officers may
   elect to receive either overtime pay or compensatory leave. However, the
   statute provides that no overtime pay nor compensatory leave is authorized
   for any officer whose rate of basic compensation,[10] combined with any
   applicable locality-based comparability payment, equals or exceeds the
   lesser of 150 percent of the minimum rate payable for grade GS-15 of the
   General Schedule for the relevant locality ($155,920, in 2005), or the
   rate of pay for level V of the Executive Schedule ($131,400, in 2005).
   D.C. Code Ann. sect. 5-1304(h)(3)(A) (2005). Thus, for 2005, no officer at
   the rank of lieutenant and above whose salary exceeds $131,400 may receive
   overtime pay or compensatory leave.

   In addition, for USCP officers whose rate of basic pay is below this
   amount, "premium pay may be paid only to the extent that such payment
   would not cause such officer or member's aggregate rate of compensation to
   exceed" the lesser of 150 percent of the minimum rate payable for grade
   GS-15 of the General Schedule or the rate of pay for level V of the
   Executive Schedule, which in 2005, is $131,400. D.C. Code Ann. sect.
   5-1304(h)(3)(B) (2005). In several provisions, the District of Columbia
   statute distinguishes between "premium pay" and "compensatory time off."
   See, e.g., D.C. Code Ann. sections 5-1304(f)(1)(B), (h)(1), (h)(3)(A)
   (2005). For example, officers who are denied the use of "compensatory time
   off" may apply for "premium pay" instead. D.C. Code Ann. sect.
   5-1304(f)(1)(B). Because the statute distinguishes between "premium pay"
   and "compensatory time off," and the cap for officers earning less than
   $131,400 refers only to "premium pay," in our opinion, this cap applies
   only to those officers who elect overtime pay, not compensatory leave.

   While the District of Columbia statute applies the premium pay cap on a
   pay period basis, a separate provision that was enacted in the same
   statute as section 1009 directs that limits on premium pay for USCP
   officers and members are to be applied on an annual basis. Consolidated
   Appropriations Resolution, sect. 1012 (2 U.S.C. sect. 1932). Thus, in
   2005, officers at the rank of lieutenant and higher may receive overtime
   pay, but only to the extent that their basic rate of pay, plus any
   overtime pay received, does not exceed $131,400 on an annual basis. Such
   officers may also elect compensatory time.[11]

   Waiver of Erroneous Payments of Overtime Compensation

   The Legislative Branch Appropriations Act, 2006, waives the collection of
   overtime compensation to certain USCP officers erroneously paid in
   violation of the restrictions of section 1009 of the Consolidated
   Appropriations Resolution. Pub. L. No. 109-55, sect. 1007 (Aug. 2, 2005).
   Section 1007 states that "any individual to whom overtime compensation was
   paid under section 1009 [of the Consolidated Appropriations Resolution],
   in violation of the restrictions applicable to the payment of such
   compensation under section 1009(b) of such Act[,] shall not be required to
   repay the compensation, but only to the extent the compensation was paid
   for services provided prior to June 15, 2005."[12] Id.

   The USCP General Counsel asserted that this provision waives the
   collection of unauthorized payments of overtime pay, as well as
   unauthorized compensatory leave used prior to June 15, 2005. Memorandum
   from John T. Caulfield, General Counsel, USCP, to Tony Gamboa, General
   Counsel, GAO (Aug. 2, 2005). The USCP General Counsel, however, stated
   that section 1007 would not waive unauthorized compensatory leave that was
   earned, but not used. Id. He emphasized that the intention of section 1007
   was to ensure that USCP officers did not have to repay funds that were
   erroneously paid because of "flawed management controls." H. Rpt. 109-189,
   at 33 (July 26, 2005). We agree.

   Section 1007 uses the term "overtime compensation," which is the same term
   used in section 1009 of the Consolidated Appropriations Resolution. As
   noted above, section 1009 authorized the payment of overtime compensation
   in the same manner as compensation is paid to members of the Secret
   Service Uniformed Division and the United States Park Police under
   District of Columbia law. The referenced District of Columbia statute
   authorizes the payment of either premium pay or compensatory time off.
   D.C. Code Ann. sections 5-1304(d)(1)-(2) (2005). Therefore, we would read
   "overtime compensation" as used in section 1007 to include both overtime
   pay and compensatory leave.

   Section 1007 also states that officers shall not be required to "repay"
   any unauthorized compensation. Pub. L. No. 109-55, sect. 1007 (Aug. 2,
   2005). Likewise the conference report accompanying the legislation
   emphasizes that the provision "waives the repayment of certain overtime
   compensation paid incorrectly." H. Rpt. 109-189, at 33 (July 26, 2005)
   (emphasis added). Generally, leave is understood to be "paid" when it is
   used, rather than when it is earned.[13] Therefore, we agree with the USCP
   General Counsel that section 1007 waives the collection of unauthorized
   overtime pay that was earned and paid or any compensatory leave that was
   earned and used prior to June 15, 2005. This provision would apply to
   officers whose base salary exceeds the statutory cap referenced in
   District of Columbia law and who collected either overtime pay or
   compensatory leave, and to officers whose base salary is under the
   statutory cap, but who collected overtime pay such that their annual
   aggregate compensation exceeded the cap.

   Conclusion

   Civilian employees and members of the USCP may be eligible for either
   compensatory leave or overtime pay, depending on their FLSA coverage,
   salary, and rank. Civilian employees covered by the FLSA are generally
   entitled to overtime pay, up to a certain amount as determined by USCP pay
   schedules. FLSA-exempt civilian employees may receive compensatory time
   only upon a determination of special circumstances by the Chief.

   Members of the USCP at a rank below lieutenant are entitled to elect
   either overtime pay (up to $156,848, in annual aggregate compensation in
   2005, as determined by USCP pay schedules) or compensatory leave. USCP
   officers at a rank of lieutenant and above are entitled to overtime pay or
   compensatory leave, provided their base salary does not exceed $131,400
   (in 2005, as determined by section 1009 of the Consolidated Appropriations
   Resolution). In addition, officers who elect to receive overtime pay are
   subject to this same cap on annual aggregate compensation.

   Section 1007 of the Legislative Branch Appropriations Act, 2006, waives
   the repayment of unauthorized overtime pay paid to, or compensatory leave
   used by, USCP officers whose base salary exceeds the cap applied by
   section 1009 ($131,400, in 2005), except for those officers whose annual
   rate of pay is set by statute (the Chief, Assistant Chief, and Chief
   Administrative Officer). Section 1007 also waives collection of overtime
   pay paid to other officers in excess of the aggregate compensation limit
   applied by section 1009.

   This opinion, and our July 19, 2005, opinion, provide guidance to the USCP
   regarding implementation of overtime regulations and statutes. Given the
   recent focus on USCP's implementation of its overtime statutes and
   regulations, we think now would be an appropriate time for the USCP to
   consult with its oversight committees to address concerns over its
   overtime compensation system and to consider how to clarify and update the
   USCP pay and leave authorities. In light of the multiple, and sometime
   conflicting, statutes and regulations that apply to the pay and leave of
   USCP employees, the USCP Board should consider whether to develop, in
   consultation with its oversight committees, a legislative package that
   includes complete, comprehensive, and integrated pay and leave
   authorities.

   /signed/

   Anthony H. Gamboa

   General Counsel

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

   [1]B-305835, July 19, 2005. In the first opinion, we concluded that the
   USCP Chief and Assistant Chief were ineligible for compensatory leave or
   overtime pay because their annual rates of pay exceed the statutory cap on
   eligibility for overtime. The Chief Administrative Officer is not eligible
   for overtime pay, but could be eligible for compensatory leave under
   special circumstances as determined by the Chief.

   [2]To gather information for this opinion, we met with the USCP Chief
   Administrative Officer and the Director of Human Resources and had
   separate discussions with the USCP General Counsel, who provided us with
   his written views on section 1007 of the Legislative Branch Appropriations
   Act, 2006.

   [3]Pub. L. No. 109-55, sect. 1007 (Aug. 2, 2005).

   [4]FLSA-covered employees may receive compensatory time for additional
   duty that is not eligible for FLSA overtime payment. USCP Leave
   Regulations, sect. IV(C).

   [5]Although the USCP pay schedules refer to this cap as "a maximum annual
   payable rate," the pay regulations refer to this amount as "an annual pay
   limitation." USCP Pay Regulations sect. d. Thus, the maximum annual
   payable rate is a cap on base salary, plus any overtime pay and other cash
   payments.

   [6]Applying the cap on an annual basis, rather than on a pay period basis,
   allows more flexibility in dealing with unforeseeable events or
   emergencies.

   [7]On July 22, 2005, the USCP Board forwarded proposed amendments to the
   USCP leave regulations to its oversight committees for their review and
   approval. Under these amendments, FLSA-exempt civilian employees may earn
   compensatory leave for "any special event or special assignment" provided
   their basic salary is less than the lesser of 150 percent of the minimum
   rate payable for grade GS-15 of the General Schedule for the relevant
   locality ($155,920, in 2005), or the rate of pay for level V of the
   Executive Schedule ($131,400, in 2005). However, employees may not exceed
   a balance of 80 hours of compensatory leave at any time, nor may their
   aggregate compensation (presumably using the dollar value of compensatory
   leave) exceed the lesser of the 150 percent of GS-15 or Executive Schedule
   Level V.

   [8]In contrast, under Title 5, as interpreted by the Office of Personnel
   Management (OPM), executive branch employees are subject to a pay period
   cap on both overtime pay and compensatory leave. 5 U.S.C. sect. 5547. In
   2005, employees in the Washington, D.C., region may not receive more than
   $135,136 in base salary and overtime pay or compensatory leave. This cap
   is calculated as the greater of the maximum rate of basic pay for GS-15
   for the relevant locality ($135,136, in 2005 for the Washington, D.C.,
   locality) or level V of the Executive Schedule ($131,400, in 2005). Id.
   OPM includes "the dollar value of earned hours of compensatory time off"
   within the definition of premium pay for purposes of this cap. 5 C.F.R.
   sect. 550.105.

   [9]Since 2001, the USCP Chief has invoked his authority to waive the
   maximum carryover for both uniformed and civilian employees because of
   continuing emergency circumstances. USCP Leave Regulations, sections
   III(B)(2), IV(D).

   [10] The District of Columbia statute defines rate of basic compensation
   as the rate of compensation fixed by law for the position exclusive of any
   deductions or additional compensation of any kind. D.C. Code Ann. sect.
   5-1304(a)(7). For the USCP, we would read this as the rate of pay for an
   officer that is derived from the Schedule of Rates of Basic Pay for
   Members of the USCP. Thus, it would not include specialty or proficiency
   pay, awards, bonuses, student loan repayments, or other similar
   compensation.

   [11]Under the amendments to the USCP Leave Regulations proposed by the
   USCP Board on July 22, 2005, two additional restrictions were added to
   officers' collection of compensatory leave: officers may not exceed a
   balance of 80 hours of compensatory leave at any time, nor may their
   aggregate compensation (presumably using the dollar value of compensatory
   leave) exceed the lesser of the 150 percent of GS-15 or Executive Schedule
   Level V.

   [12]Section 1007(b) states that this provision does "not apply with
   respect to any officer or employee of the [USCP] whose annual rate of pay
   is specified in statute." Pub. L. No. 109-55 (Aug. 2, 2005). Therefore,
   the USCP cannot waive unauthorized payments of overtime compensation to
   the Chief, Assistant Chief, or Chief Administrative Officer. Section 1007
   only waives repayment of overtime compensation paid under section 1009 of
   the Consolidated Appropriations Resolution, which applies to uniformed
   officers at the rank of lieutenant and above. Therefore, the section 1007
   waiver does not apply to USCP civilian employees.

   [13]  See, e.g., USCP Leave Regulations, sect. XVI(A) (separating
   employees are "paid" for their accumulated annual leave).