TITLE:  Subject: United States Capitol Police--Overtime Pay and Compensatory Leave for Employees Whose Salaries Are Fixed By Statute, B-305835, July 19, 2005
BNUMBER:  B-305835
DATE:  July 19, 2005
**********************************************************************
   B-305835

   July 19, 2005

   William H. Pickle

   Chairman

   Wilson Livingood

   Member

   Alan M. Hantman

   Member

   United States Capitol Police Board

   Washington, DC 20510

   Subject: United States Capitol Police--Overtime Pay and Compensatory Leave
for Employees Whose Salaries Are Fixed By Statute

   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.  You expressed
particular concern with the application of section 1009 of Public Law
108-7 to members of the USCP at the rank of lieutenant and above.  Because
of these concerns and concerns independently brought to our attention by
the Committee on Appropriations of the House of Representatives, we
expedited development of our opinion.  Accordingly, this letter responds
in part to your request by addressing the USCP's authority to provide
overtime pay and compensatory leave to its three officials whose salaries
are set by statute:  the Chief of Police, the Assistant Chief of Police,
and the Chief Administrative Officer.[1]

   In preparing this opinion, we met with the USCP Chief, Assistant Chief,
and Chief Administrative Officer and had separate discussions with the
USCP General Counsel to gather information and to obtain their views on
this issue. [2] The USCP General Counsel is also counsel to the USCP
Board, and asked the Board to request this opinion.  The Chief, Assistant
Chief, and the Chief Administrative Officer had been earning compensatory
leave, but not overtime pay, until June 15, 2005, when the USCP Board
issued a directive that precluded them from earning compensatory time.[3]

   USCP Chief Terrance Gainer advised us that he maintained the overtime pay
and compensatory leave policies that were in effect when he was sworn in
as Chief in June 2002, which allowed all employees to collect overtime pay
and/or compensatory leave routinely, as a result of clocking in and
clocking out their daily hours.  However, he stated that he expressed his
concerns to some members of the USCP Board about the appropriateness of
this system for salaried employees, as well as concerns regarding the high
compensatory leave balances of certain USCP employees.[4]  These large
balances were primarily the result of the unusual emergency circumstances
that occurred in the last several years, including the September 11
attacks and the anthrax and ricin incidents.  He noted that in response to
the USCP Board directive, he ordered his own compensatory leave balance
and that of the Chief Administrative Officer eliminated.  With regard to
the Assistant Chief, he eliminated the compensatory leave earned while he
was Assistant Chief, but not the leave earned while he was serving in
other USCP positions.     

   As we explain below, neither the USCP Chief nor the Assistant Chief is
eligible for overtime compensation or compensatory time, since their
annual rates of pay exceed the statutory cap on eligibility for overtime. 
The USCP Chief Administrative Officer is not eligible for overtime pay,
but could be eligible for compensatory leave upon a determination of
special circumstances by the Chief or his designee.

   The Chief of Police and the Assistant Chief

   As noted above, the salaries of the Chief and the Assistant Chief, who are
both officers of the Capitol Police, are set by statute.  The annual rate
of pay of the Chief is equal to $1,000 less than the lower of the annual
rate of pay of the Sergeant-at-Arms of the House of Representatives or the
Sergeant-at-Arms and Doorkeeper of the Senate.  2 U.S.C. Section 1902. 
The annual rate of pay of the Assistant Chief is $1,000 less than the
annual rate of pay of the Chief.  Consolidated Appropriations Resolution,
2003, Pub. L. No. 108-7, div. H, tit. I, Section 1013(b) (Feb. 20, 2003)
(Consolidated Appropriations Resolution).  The current salaries of the
Chief and Assistant Chief are $159,600 and $158,600, respectively. 

   Officers of the Capitol Police at the rank of lieutenant and higher are
eligible for overtime pay or compensatory leave under certain
circumstances.  Under a provision first enacted in 1971, officers of the
Capitol Police, defined as all personnel of the rank of lieutenant and
higher, including inspector, were eligible for overtime pay for additional
hours worked "only upon a determination of the Capitol Police Board" with
respect to the additional hours of duty of such officers.  2 U.S.C.
Sections 1924, 1925.  In 1997, the procedures for approving overtime pay
for USCP officers were modified when Congress directed the USCP Board to
issue regulations to establish a unified pay and leave system for USCP
civilian employees and USCP members.  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.  2 U.S.C. Section 1923.  The USCP Board
issued such regulations, including provisions authorizing compensatory
leave, and the committees approved the regulations in 1998.  These
regulations placed the approval authority for compensatory leave for USCP
officers with the Chief.[5]  Capitol Police Board Regulations Prescribing
a Unified Leave System for Members and Civilian Employees of the USCP
(USCP Leave Regulations), Section IV(B) (May 21, 1998).      

   In 2003, Congress revised the process for providing additional
compensation to officers at the rank of lieutenant and higher. 
Consolidated Appropriations Resolution, div. H, tit. I, Section 1009. 
Section 1009 of the Consolidated Appropriations Resolution did two
things.  First, it authorized the Chief of Police to provide for overtime
pay and compensatory leave for additional hours worked by officers.  Id. 
Second, it directed the Chief to provide such compensation "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 the law
of the District of Columbia.  Id. 

   The District statute referenced in section 1009 dates back to 1950 and,
inter alia, allows for overtime pay or compensatory leave for additional
hours worked.  D.C. Code Ann. Section 5-1304 (2005).  However, the statute
provides that no overtime pay nor compensatory leave is authorized for any
officer whose rate of basic pay, 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, or the rate of pay for level V of the
Executive Schedule.  D.C. Code Ann. Section 5-1304(h)(3)(A) (2005).

   In 2005, 150 percent of the minimum rate payable for grade GS-15
($103,947) in the metropolitan Washington area is $155,920.  Salary Table
2005-DCB, at http://www.opm.gov/oca/05tables/html/dcb.asp.  In 2005, level
V of the Executive Schedule is $131,400.  2005 Pay Tables for Executive
and Senior Level Employees, at
http://www.opm.gov/oca/05tables/indexSES.asp.  Therefore, according to the
"terms and conditions" of District law, incorporated by reference in
section 1009, no officers of the Capitol Police may be given overtime pay
or compensatory leave if their basic rate of pay exceeds $131,400.[6] 
D.C. Code Ann. Section 5-1304(h)(3)(A) (2005).

   Because the rates of basic pay of the Chief and the Assistant Chief exceed
$131,400, neither official is eligible to collect overtime pay or
compensatory leave, and the USCP must eliminate compensatory leave earned
subsequent to the passage of section 1009.[7]  Chief Gainer reported that
he complied with the USCP Board's directive to eliminate his own
compensatory leave balance and the compensatory leave earned by the
Assistant Chief while he was serving in that position.  In addition, the
USCP should recover any unauthorized compensatory leave taken by the Chief
and Assistant Chief, by making appropriate adjustments to their annual and
sick leave balances.[8]

   The Chief Administrative Officer

   The salary of the USCP Chief Administrative Officer, a civilian employee
responsible for the budgeting, financial management, information
technology, and human resources of the USCP, also is set by statute at a
rate of $1,000 less than the annual rate of pay of the Chief of Police.  2
U.S.C. Section 1903.  The current salary of this position is $158,600.

   The Congressional Accountability Act and USCP regulations control overtime
compensation for civilian employees.  The Congressional Accountability
Act, enacted in 1995, made certain provisions of the Fair Labor Standards
Act (FLSA) applicable to covered employees in the legislative branch
including the Capitol Police, and authorized the Office of Compliance to
issue implementing regulations.  Pub. L. No. 104-1, Section 203 (Jan. 23,
1995) (codified at 2 U.S.C. Section 1313).  The FLSA requires that certain
employees receive additional compensation for hours worked beyond a
40-hour work week.  29 U.S.C. Section 207.  However, under the FLSA,
individuals "employed in a bona fide executive, administrative, or
professional capacity" are exempt from the requirement and therefore are
not "covered employees."  29 U.S.C. Section 213. 

   The USCP unified pay and leave regulations authorized by Congress in 1997
and approved by USCP's oversight committees in 1998 also regulate
compensatory leave.   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.  USCP Leave Regulations, Section IV(B)-(C).  Employees who are
covered by the FLSA generally must receive overtime pay, not compensatory
leave, for additional hours worked.[9]  Id.  However, employees who are
exempt from the FLSA may not receive overtime pay, but may receive
compensatory leave "for special circumstances as determined by the Chief
of Police or his/her designee."  Id.        

   The regulations issued by the Office of Compliance make evident that the
USCP Chief Administrative Officer is an exempt employee under the FLSA. 
The Chief Administrative Officer meets every definitional requirement for
an individual employed in an "administrative" capacity.  He is an employee
"whose primary duty consists of office or nonmanual work directly related
to management policies or general operations of his employer;" he
"customarily and regularly exercises discretion and independent judgment;"
he "regularly and directly assists the head of an employing office;" he
"does not devote more than 20 percent" of his time to other duties; and he
"is compensated for his services on a salary or fee basis at a rate of not
less than $155 per week."  Office of Compliance Final Regulations, Section
H541.2 (Jan. 22, 1996).  As the senior official responsible for budgeting,
financial management, information technology, and human resources, who is
compensated well in excess of $155 per week, the Chief Administrative
Officer clearly meets the definition of an employee engaged in a bona fide
administrative capacity.  See 2 U.S.C. Section 1903.  Furthermore, the
Chief Administrative Officer also appears to fall under the definitions of
individuals employed in executive and professional capacities.  Office of
Compliance Final Regulations, Sections H541.1, H541.3 (Jan. 22, 1996).   
     

   As a FLSA-exempt employee, the Chief Administrative Officer is entitled to
compensatory leave only "for special circumstances as determined by the
Chief of Police."  USCP Leave Regulations, SectionIV(B).  Therefore,
unless the Chief of Police or his designee makes a determination that
"special circumstances" exist, the Chief Administrative Officer is not
entitled to compensatory leave, nor should he accumulate compensatory
leave as a matter of routine.  Therefore, we recommend that the USCP
review the compensatory leave earned by the Chief Administrative Officer,
and recover any leave that was not earned pursuant to a determination of
special circumstances. 

   Conclusion

   After the passage of section 1009 of the Consolidated Appropriations
Resolution, neither the USCP Chief nor the Assistant Chief is eligible for
overtime pay or compensatory leave, since their annual rates of pay exceed
the statutory cap on eligibility for overtime.  The USCP Chief
Administrative Officer is ineligible for overtime pay, but could be
eligible for compensatory leave upon a determination by the Chief or his
designee that "special circumstances" exist.  The USCP must also recover
any unauthorized compensatory leave taken by these individuals by making
appropriate adjustments to their annual and sick leave balances. 

   /signed/

   Anthony H. Gamboa

   General Counsel

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

   [1] We will issue a second opinion that will address the authority to
provide overtime pay and compensatory leave to the other civilian
employees and members of the USCP.  GAO also is reviewing the USCP
policies and procedures regarding overtime pay and compensatory and annual
leave.     

   [2] Given the time constraints, we did not obtain these views in writing.

   [3] See Letter from the USCP Board to Terrance W. Gainer, Chief of Police,
USCP (June 15, 2005).

   [4] Despite these large balances, on several occasions, Chief Gainer and
his predecessor, Chief James Varey, waived the maximum carryover amounts
because of continued operations under emergency conditions, in accordance
with existing regulations.  Chief Gainer stated that these matters were
discussed with the USCP Board prior to the decision.

   [5] The regulations authorized compensatory leave, but not overtime pay,
for USCP members that are exempt from the Fair Labor Standards Act, which
includes all USCP officers, only upon a determination of special
circumstances by the Chief.      

   [6] In 2004, this cap was $128,200, and in 2003, it was $125,400. 

   [7] To the extent that the Assistant Chief earned compensatory time prior
to the enactment of section 1009, the unified pay and leave regulations
govern such time.  In addition, if the Assistant Chief earned compensatory
time in a prior position for which compensatory time was authorized, those
balances also may be maintained.        

   [8] Since Congress did not include the USCP in the statute that authorizes
agencies to waive overpayments to federal employees, USCP lacks the
authority to waive any compensatory leave that was erroneously taken.  5
U.S.C. Section 5584. 

   [9] 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. Section 1313(a)(3).