TITLE: B-307681, Scope of Waiver Authority (2 U.S.C. ï¿½130c), May 2, 2006
BNUMBER: B-307681
DATE: May 2, 2006
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B-307681, Scope of Waiver Authority (2 U.S.C. ï¿½130c), May 2, 2006

   B-307681

   May 2, 2006

   The Honorable Emily J. Reynolds

   Secretary of the Senate

   Subject: Scope of Waiver Authority (2 U.S.C. sect.130c)

   Dear Ms. Reynolds:

   This responds to your April 10, 2006, request for our opinion regarding
   your authority under 2 U.S.C. sect. 130c to waive a claim for the amount
   of erroneous salary payments made to a former United States Capitol Police
   (USCP) employee in violation of the antinepotism statute, 5 U.S.C. sect.
   3110. Section 3110 prohibits a public official from employing a relative
   in an agency in which he exercises jurisdiction or control and prohibits
   payment to an individual so employed. Section 130c authorizes you to waive
   claims for erroneous payments of any pay or allowances to any officer or
   employee whose pay is disbursed by the Secretary of the Senate, as well as
   officers or employees whose pay is disbursed by the Chief of the Capitol
   Police.

   Specifically, you ask (1) whether your authority under section 130c
   permits you to waive claims for erroneous payments of nonsalary
   compensation, and (2) whether you or USCP officials may authorize payment
   of unpaid compensation under section 130c or any other statute or
   principle of federal law.

   For the reasons provided below, we conclude that section 130c permits you
   to waive claims for erroneous payments of nonsalary compensation to the
   same extent that you may waive claims for salary payments. However,
   neither you nor the USCP may authorize payments of any unpaid
   compensation.

   BACKGROUND

   The antinepotism statute provides that

   "A public official may not appoint, employ, promote, advance, or advocate
   for appointment, employment, promotion, or advancement, in or to a
   civilian position in the agency in which he is serving or over which he
   exercises jurisdiction or control any individual who is a relative of the
   public official."

   5 U.S.C. sect. 3110(b). Such individual employed in violation of the
   antinepotism statute "is not entitled to pay, and money may not be paid
   from the Treasury as pay to an individual so appointed, employed,
   promoted, or advanced." 5 U.S.C. sect. 3110(c). USCP is an agency for
   purposes of the antinepotism statute. 5 U.S.C. sect. 3110(a)(1)(B).
   Consequently, the prohibitions of the statute apply to USCP.

   From October 10, 2003, until March 4, 2006, USCP employed a relative of a
   USCP official exercising jurisdiction and control over USCP. Capitol
   Police Board Letter,[1] Mar. 31, 2006 (Board Letter), at 1. USCP paid the
   individual wages through February 18, 2006. Id. at 2. We understand that
   USCP also made contributions to the individual's Thrift Savings Plan and
   Federal Employee Retirement System accounts and Federal Employees Group
   Life Insurance premiums. USCP made no salary payments or contributions for
   the individual's service from February 19 through March 4, 2006. Id.

   In March 2006, the Capitol Police Board determined that the individual's
   appointment violated the antinepotism statute. Board Letter at 1. He
   therefore was not entitled to pay for his service to USCP, and all such
   payments received for his employment were erroneous payments. See
   B-204266, Apr. 22, 1982. In response to a request for a decision to
   clarify whether the Chief has authority under 2 U.S.C. sect. 130c to waive
   erroneous payments such as these, we concluded that waiver authority
   resided in the Speaker of the House and the Secretary of the Senate.
   B-307529, Mar. 28, 2006.

   Subsequently, the Capitol Police Board requested that you consider waiving
   the erroneous payments for full salary and benefits from October 10, 2003,
   through March 4, 2006. Board Letter. The Board asserted that the
   individual performed satisfactory services as a police officer for the
   government during the entire time of his employment. Id. at 2. The Board
   concluded that it would be inequitable to require the individual to repay
   any benefits received for his employment or for him not to receive pay for
   services performed from February 19, 2006, through March 4, 2006. Id. The
   Board asked that you waive all salary and nonsalary compensation that the
   individual received and that you authorize payment for the period in which
   the individual worked but did not receive compensation.

   DISCUSSION

   Waiver of Nonsalary Compensation

   Section 130c permits the Secretary of the Senate to waive an erroneous
   payment of "pay or allowances." As pertinent here, with the italicized
   text substituted in accordance with 2 U.S.C. sect. 1907(a)(1),[2] section
   130c(a) provides:

   "A claim of the United States against a person arising out of an erroneous
   payment of any pay or allowances  . . . to an officer or employee whose
   pay is disbursed by the Chief of the Capitol Police [the Secretary of the
   Senate], the collection of which would be against equity and good
   conscience and not in the best interests of the United States, may be
   waived in whole or in part by the Secretary of the Senate."

   2 U.S.C. sect. 130c(a). At issue here is whether the phrase "pay or
   allowances" includes nonsalary compensation. For the reasons explained
   below, we conclude that it does.

   Section 130c is analogous to other waiver authority that Congress enacted
   in 1968 addressing erroneous payments for pay or allowances for most
   federal agencies, 5 U.S.C. sect. 5584.[3] Reference to section 5584 is
   particularly useful because Congress enacted section 130c in 1974 to
   extend to the Secretary of the Senate the same waiver authority that it
   had granted for most other agencies in section 5584. H.R. Rep. No.
   93-1095, at 2 (1974) ("[section 130c] would extend . . . substantially the
   same authority as that granted in 1968").

   In reaching our conclusion that pay includes nonsalary compensation, we
   find relevant that the term "pay" as used in section 5584 has long been
   understood to encompass nonsalary compensation. In the legislative history
   of section 5584, the Senate Post Office and Civil Service Committee
   explained the meaning of pay as follows:

   "The term `pay' as used in this section is intended to have its broadest
   meaning, as is intended generally when the word is used in title 5, United
   States Code. As explained in Senate Report No. 1380, 89^th Congress,
   accompanying H.R. 10104, which enacted title 5 as positive law, the word
   `pay' included all terms heretofore in use representing salary, wages,
   pay, compensation, emoluments, and remuneration for services."

   S. Rep. No. 90-1607 (1968), reprinted in 1968 U.S.C.C.A.N. 4398, 4401
   (emphasis added).

   GAO exercised the section 5584 waiver authority until 1996.[4] In our
   decisions and regulations, we consistently took the view that the term pay
   in section 5584 includes nonsalary compensation. In our regulations, we
   defined pay as follows:

   "Pay means salary, wages, pay, compensation, emoluments, and remuneration
   for services. It includes but is not limited to overtime pay; night,
   standby, irregular and hazardous duty differential; pay for Sunday and
   holiday work; payment for accumulated and accrued leave; and severance
   pay."

   4 C.F.R. sect.91.2(g)(1) (1996), removed by 65 Fed. Reg. 33737, 33738 (May
   25, 2000).

   Consequently, in B-272467, Dec. 13, 1996, we granted waivers to
   Export-Import Bank employees who received erroneous payments in the form
   of retention allowances and recruitment bonuses. In B-249410.3, Aug. 28,
   1995, we granted waivers to Federal Law Enforcement Training Center
   employees for debts arising from erroneous excess crediting and use of
   annual leave. In B-198903, Aug. 6, 1981, we advised the Alaska Railroad
   that it could forego collection from employees of amounts of agency
   contributions to employee health and life insurance premiums that exceeded
   a statutory ceiling, in part because "all of the overpayments would be
   eligible for . . . waiver consideration under . . . section 5584."

   Clearly, for purposes of section 5584, we have long understood pay to
   include not just salary but also nonsalary compensation made as
   remuneration for employment. Contributions to an employee's health and
   life insurance premiums, retention allowances, recruitment bonuses, and
   accrual of annual leave are all forms of remuneration made in addition to
   salary.[5]

   Section 130c uses the same language as that used in section 5584. For the
   same reasons we concluded that section 5584 would permit waiver of
   nonsalary compensation, we conclude that section 130c also permits waiver
   of nonsalary compensation. Such a reading is entirely consistent with the
   language of section 130c. As the express language of section 130c shows,
   Congress wanted to provide relief for persons who, acting in good faith
   and through no fault of their own, received government payments contrary
   to law, but under circumstances in which it would be unfair and against
   equity and good conscience, to make them refund the payments. To the
   persons to whom Congress intended to provide relief, the hardships and
   inequities the statute was designed to remedy are the same whether the
   erroneous payment in question is salary or nonsalary compensation. We
   conclude that 2 U.S.C. sect. 130c authorizes the waiver of erroneous
   payments of nonsalary compensation, assuming the provision's waiver
   requirements are otherwise met.

   Payment for unpaid compensation

   The next question is whether you or USCP officials may authorize payments
   of unpaid compensation. While we have not addressed the availability of
   section 130c to authorize payment of unpaid compensation, we have
   addressed whether section 5584 allows payment of unpaid compensation, and
   we concluded that it does not.

   In a situation very similar to the case at hand, the Farmers Home
   Administration asked us to waive erroneous payments already made in
   violation of the antinepotism statute and asked whether there was
   authority to pay unpaid compensation. B-204266, Apr. 22, 1982. Applying
   the section 5584 waiver authority, we waived the erroneous payments of
   salary, but could not authorize the agency to pay unpaid compensation. The
   antinepotism statute states that an individual employed in violation of
   the statute "is not entitled to pay, and money may not be paid from the
   Treasury as pay" to such an individual. 5 U.S.C. sect. 3110(c). We said
   that "in view of the clear language of [the antinepotism statute]
   prohibiting the receipt of pay from Government funds by an individual
   `appointed' in violation of its provisions, such individual is not
   entitled to . . . salary yet unpaid." B-204266, Apr. 22, 1982. See also
   B-186453, May 2, 1977.

   The antinepotism statute imposes an absolute bar on payment to individuals
   employed in violation of the statute. "Money may not be paid from the
   Treasury as pay" to such an individual. 5 U.S.C. sect. 3110. Congress has
   appropriated no money for this purpose. Without an appropriation for this
   purpose, no money can be drawn from the Treasury to make the payments.
   U.S. Const. art. I, sect. 9, cl. 7 (Appropriations Clause). Accord, Office
   of Personnel Management v. Richmond, 496 U.S. 414, 424 (1990) (since
   payments of money from the Treasury are limited to those authorized by
   statute, the Navy may not make a payment of disability annuity contrary to
   a statutory prohibition).

   As discussed above, section 130c uses language identical to the language
   of section 5584 and was enacted to provide the same authority. For the
   same reasons we concluded that section 5584 does not allow for payment of
   unpaid compensation, we conclude that section 130c does not allow for
   payment of unpaid compensation. Indeed, we are aware of no statute or
   principle of law that would authorize either the Secretary of the Senate
   or USCP to make a payment for employment obtained in violation of the
   antinepotism statute.

   In some situations, after weighing the equities, we permitted agencies to
   pay unpaid compensation when we concluded that a de facto employment
   relationship existed. See, e.g., 58 Comp. Gen. 734 (1979). "A de facto
   officer or employee is one who holds a public office or position with
   apparent right, but without actual entitlement because of some defect in
   his qualifications or in the action placing him in the office or
   position." 64 Comp. Gen. 395, 404 (1985). Thus, for example, we concluded
   that the Air Force could pay unpaid compensation to an individual whom the
   Air Force had erroneously hired due to a mistake in identity. 58 Comp.
   Gen. 734. After the Air Force realized the error in hiring, it terminated
   the individual's employment and withheld his final salary payment and a
   lump sum payment for his unused annual leave. We said that "de facto
   employees serving in good faith with no fault on their part" may be paid
   "compensation equal to the reasonable value of their services during the
   de facto period." Id. at 734-35.

   In this case, however, the antinepotism statute's absolute prohibition on
   payment bars the use of equitable theories to make payment of any unpaid
   compensation. Officers and employees of the federal government may not
   disregard statutory provisions and, based on their consideration of
   equities, make prohibited or unauthorized payments. Accord, Richmond, 496
   U.S. at 426 (because "[c]ourts of equity can no more disregard statutory
   and constitutional requirements and provisions than can courts of law"
   (citation omitted), "judicial use of the equitable doctrine of estoppel
   cannot grant respondent a money remedy that Congress has not authorized").
   We recognized this in our de facto employment cases. The de facto
   employee, we said, is entitled to be paid unpaid compensation "unless the
   appointment was made in violation of an absolute statutory
   prohibition."[6] 58 Comp. Gen. at 735-36. In the 1979 Air Force case of
   mistaken identity, there was no statutory prohibition to the appointment.
   Id. at 736. In this case, there is. 

   We recognize the apparent inconsistency of waiving, on equitable grounds,
   erroneous payments already made yet, notwithstanding the equities of a
   situation, declining to pay unpaid compensation. The seeming inconsistency
   is based in statute, however. There is a fundamental difference between
   exercising statutory authority to waive an erroneous payment and making a
   payment from the Treasury in violation of a statute prohibiting such
   payment. The statutory waiver authority covers "erroneous payments." In
   granting waiver authority, Congress has provided the Secretary of the
   Senate the discretion to weigh equities and waive erroneous payments
   already made. Congress, however, has not provided the Secretary of the
   Senate or USCP any discretion to waive the prohibition on payment itself.
   For this reason, neither the Secretary nor USCP, before payment is made,
   may decide to pay an individual on the basis of equities.

   In these circumstances, it is for Congress to decide whether to provide
   equitable relief. In this regard, Congress may make funds available
   through private relief legislation when Congress determines that "the
   equities and circumstances of a case create a moral obligation on the part
   of the Government to extend relief to an individual." Richmond, 496 U.S.
   at 431 (citations omitted).

   CONCLUSION

   Section 130c authorizes the Secretary of the Senate to waive claims for
   nonsalary compensation to the same extent that the Secretary may waive
   claims for salary compensation. The phrase "pay or allowance" encompasses
   payments made to, or on behalf of, an employee as remuneration for
   employment.

   The antinepotism statute imposes an absolute prohibition on payment.
   Neither the Secretary of the Senate nor USCP has the discretion to waive
   that prohibition and to pay, on legal or equitable grounds, unpaid
   compensation to an individual hired in violation of the statute. In this
   regard, only Congress through private relief legislation has the
   constitutional prerogative to extend relief.

   Sincerely yours,

   Anthony H. Gamboa

   General Counsel

   Digest

   1. The Secretary of the Senate has the authority to waive claims for
   nonsalary compensation to the same extent that she may waive claims for
   salary payments. The phrase "pay or allowances," as used in her waiver
   authority, includes all forms of remuneration made to an employee in
   addition to salary.

   2. Neither the Secretary nor the U.S. Capitol Police may pay unpaid
   compensation to an individual employed in violation of the antinepotism
   statute, 5 U.S.C. sect. 3110. The statute imposes an absolute prohibition
   on payment. It says that an individual employed in violation of the
   statute "is not entitled to pay, and money may not be paid from the
   Treasury" to pay such an individual. In these circumstances, only Congress
   through private relief legislation may authorize payment of unpaid
   compensation.

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

   [1] Letter from Wilson Livingood, Chairman, Capitol Police Board, William
   H. Pickle and Alan M. Hantman, Members, Capitol Police Board, to Emily J.
   Reynolds, Secretary of the Senate, Mar. 31, 2006.

   [2] See B-307529, Mar. 28, 2006 (considering section 1907's transfer of
   disbursing authority to the Chief of Police, section 130c, as it applies
   to USCP, is deemed to be read with the substitute text).

   [3] By its terms, section 5584 does not apply to USCP. B-307529, Mar. 28,
   2006.

   [4] The General Accounting Office Act of 1996 transferred the Comptroller
   General's section 5584 waiver authority to the Director of the Office of
   Management and Budget, or the Director's delegatee. Pub. L. No. 104-316,
   sections 101(a)(3), 101(e), and 103(d), 110 Stat. 3826-28 (Oct. 19, 1996).

   [5] Cf. B-204266, Apr. 22, 1982. When asked to waive salary payments and
   travel reimbursements made in violation of the antinepotism statute, we
   concluded that the travel reimbursements did not constitute pay so were
   not subject to the statute's prohibition on pay. We said that "the word
   `pay' is defined as being remuneration or compensation for service
   rendered." Id. Reimbursement for expenses incurred on behalf of the
   government while in official travel status is not remuneration.

   [6] We also applied a second criterion: "[unless] the employee was guilty
   of fraud in regard to the appointment or deliberately misrepresented or
   falsified a material matter." Id. at 736.