TITLE: B-310004, United States Capitol Police--Cost of Living Payments, December 3, 2007
BNUMBER: B-310004
DATE: December 3, 2007
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B-310004, United States Capitol Police--Cost of Living Payments, December 3, 2007

   Decision

   Matter of: United States Capitol Police--Cost of Living Payments

   File: B-310004

   Date:  December 3, 2007

   DIGEST

   The United States Capitol Police (USCP) was authorized to make a lump sum
   payment on April 12, 2007, for a cost of living adjustment effective the
   first pay period of 2007. USCP regulations specifically authorize such
   payments following approval by the House Committee on House Administration
   and the Senate Committee on Rules and Administration. USCP received
   approval from these committees prior to making the payment. The delay in
   implementing the adjustment was due to the fact that the Senate Committee
   withheld its approval pending enactment of funding for the remainder of
   fiscal year 2007. The Senate Committee, however, recognized that the
   adjustment was forthcoming and would be effective as of the first pay
   period of 2007.

   DECISION

   The Inspector General for the United States Capitol Police (USCP) has
   requested a decision regarding USCP's payment of a cost of living
   adjustment (COLA) for its uniformed members and civilian employees
   (eligible employees). Letter from Carl W. Hoecker, Inspector General,
   USCP, to Gary L. Kepplinger, General Counsel, GAO, Subject: Request for
   Comptroller General Decision, Aug. 8, 2007 (Hoecker Letter). Specifically,
   the Inspector General (IG) asks whether USCP properly made a lump sum COLA
   payment to eligible employees on April 12, 2007, effective January 7,
   2007, the first day of the first pay period of 2007. We conclude that the
   payment was authorized.

   BACKGROUND

   The Capitol Police Board (Board) is responsible for establishing and
   maintaining rates and schedules of basic pay for eligible employees.[1] 2
   U.S.C. sect. 1923(a)(1). Pursuant to this duty, the Board maintains the
   Capitol Police Board Resolution for Unified Schedules of Rates of Basic
   Pay for Members and Civilian Employees of the United States Capitol Police
   (Board Resolution). The Board may adjust the Board Resolution as it sees
   fit to reflect changes in the cost of living and to maintain pay
   comparability. 2 U.S.C. sect. 1923(a)(2). Such changes may take effect
   only after approval by the House Committee on House Administration and the
   Senate Committee on Rules and Administration (the committees). 2 U.S.C.
   sect. 1923(a)(3). The Board Resolution provides that, subject to committee
   approval, the Board may adjust basic pay for eligible employees "effective
   at the beginning of the first applicable pay period beginning on or after
   the first day of the month in which an adjustment becomes effective [for
   federal employees under a statutory pay system] under section 5303 of
   title 5, United States Code."[2] Board Resolution, sections (a)3(A),
   (b)3(A).

   On December 21, 2006, President Bush instituted a COLA for, among others,
   federal employees covered under 5 U.S.C. sect. 5303, to be effective on
   the first day of the first pay period in January 2007. Exec. Order No.
   13420, Adjustments of Certain Rates of Pay, 71 Fed. Reg. 77,571 (Dec. 26,
   2006). This order effected a 1.7 percent across-the-board COLA for
   civilian executive branch employees, as well as a locality-based increase
   for the Washington, D.C. area, for a total increase of 2.64 percent for
   employees in the Washington, D.C. area. Id. See also USCP, Memorandum from
   Chief Phillip D. Morse, Sr., to the Capitol Police Board, 2007 Cost of
   Living Increase and Comparability Pay, Dec. 27, 2006.

   On December 27, 2006, the Board submitted to the committees a proposal to
   increase pay for eligible employees by 2.64 percent, consistent with the
   President's order under 5 U.S.C. sect. 5303, in accordance with sections
   (a)3 and (b)3 of the Board Resolution. Letter from Wilson Livingood,
   Chairman, Board, to the Honorable Vernon Ehlers, Chairman, House Committee
   on House Administration, Dec. 27, 2006 (Livingood Letter); Letter from
   William H. Pickle, Sergeant at Arms and Member of the Board, to the
   Honorable Trent Lott, Chairman, Senate Committee on Rules and
   Administration, Dec. 27, 2006 (Lott Letter). The House Committee approved
   the proposal on January 2, 2007. Livingood Letter. At the time the Board
   submitted its proposal, many federal agencies, including USCP, were
   operating under a continuing resolution. According to the IG, the Senate
   Committee held its approval in abeyance pending enactment of funding for
   the remainder of fiscal year 2007. USCP Office of Inspector General,
   Review of United States Capitol Police FY 2007 Cost of Living Adjustment,
   at 4 (Aug. 8, 2007) (IG Report). The Revised Continuing Appropriations
   Resolution, 2007, enacted on February 15, 2007, provided appropriations
   for the remainder of fiscal year 2007. Pub. L. No. 110-5, 121 Stat. 8
   (Feb. 15, 2007). On February 28, 2007, the Senate Committee approved the
   Board's proposal for a COLA, which the Board had officially resubmitted on
   February 23. Letter from Phillip D. Morse, Sr., Chief of Police, USCP, to
   the Honorable Dianne Feinstein, Chairman, Senate Committee on Rules and
   Administration, Feb. 23, 2007 (Feinstein Letter); IG Report, at 5.

   On April 12, 2007, USCP made a COLA payment to eligible employees
   effective January 7, 2007, the first day of the first pay period of 2007.
   Telephone conversation between Carl W. Hoecker, IG, USCP, and Wesley Dunn,
   Senior Staff Attorney, GAO, Aug. 27, 2007. The payment totaled
   $986,428.75. Id.; IG Report, at 5. The IG asks whether this payment was
   proper.[3]

   DISCUSSION

   As a general matter, employees' pay adjustments are prospective. B-252215,
   Mar. 24, 1993; B-170113, July 13, 1970. This rule is based on the premise
   that when an employee has already received compensation fixed by the head
   of an agency for the employee's services, the employee is not entitled to
   an additional amount. B-252215; B-106475, Nov. 15, 1951.

   However, when implementation of an otherwise prospective pay adjustment is
   delayed under statutorily authorized procedures, the pay adjustment may
   cover past pay periods so long as there is recognition of the effective
   date, notwithstanding the delay, and payments do not cover pay periods
   preceding that effective date. For example, on January 8, 1993, the Public
   Printer set a pay adjustment for Government Printing Office (GPO)
   employees effective January 10, 1993. B-252215, Mar. 24, 1993. By statute,
   GPO pay adjustments were subject to approval by the Joint Committee on
   Printing. Id. The Chairman of the Joint Committee stayed approval due to
   concerns about the adjustment's impact on certain GPO employees. Id. In
   the stay, the Chairman recognized that upon approval the adjustment "shall
   become retroactive to January 10, 1993." Id. The Chairman did not approve
   the pay adjustment until February 21, 1993. Id. We concluded that the
   Public Printer could make the adjustment effective as of January 10, 1993,
   the date originally set for the adjustment. Id. We explained that the
   Public Printer had acted to grant the adjustment effective January 10 and
   that, while the Committee had stayed the action, it had recognized that an
   adjustment would be forthcoming and effective as of January 10. Id. See
   also B-190097, Nov. 11, 1977 (pay adjustment properly implemented in
   August effective in June after delay imposed by Joint Committee on
   Printing).

   As discussed above, Congress has charged the Board with responsibility for
   establishing and maintaining the pay system for eligible employees, and
   specified that the Board may make changes to the pay schedules as the
   Board sees fit to reflect changes in the cost of living. 2 U.S.C. sect.
   1923(a). Pursuant to this duty, the Board established and maintains the
   Board Resolution. The Board Resolution provides that when a COLA becomes
   effective for federal employees under a statutory pay system, the Board
   may grant a similar adjustment to eligible USCP employees, subject to
   committee approval. Board Resolution, sections (a)3(A), (b)3(A). An
   approved COLA becomes "effective at the beginning of the first applicable
   pay period beginning on or after the first day of the month in which an
   adjustment becomes effective" for statutory pay system employees. Id.

   Following the President's grant of a COLA to federal employees under 5
   U.S.C. sect. 5303, the Board submitted its proposed COLA to the committees
   via letter on December 27, 2006, as discussed above. The letters
   requested, "Under section (a)3 [of the Board Resolution], Basic Pay
   Adjustments, a net increase in annual pay of 2.64% for sworn personnel.
   This increase will provide for the COLA and comparability at rates
   approved by the President" in his December 21, 2006 Executive Order.
   Livingood Letter; Lott Letter. The letters included an identical request
   under Board Resolution section (b)3, which deals with the pay of civilian
   USCP employees. See Feinstein Letter. In referring to sections (a)3 and
   (b)3, which clearly set out that a COLA would become effective on the
   first day of the first pay period on or after the first day of the month
   in which the adjustment for executive branch employees under the
   President's order became effective, the Board's letter can be read as
   requesting approval for a COLA payment effective on January 7, 2007.

   The House Committee returned the letter to the Board stamped "approved,"
   initialed by the Chairman, and dated January 2, 2007. Livingood Letter.
   According to the IG, the Senate Committee, at that time, held its approval
   in abeyance pending enactment of final funding for fiscal year 2007. IG
   Report, at 4. The Senate Committee implicitly recognized that the
   adjustment would be effective as of January 7, 2007, pursuant to Board
   Resolution sections (a)3 and (b)3 referenced in the Board's letter to the
   Committee.[4] Lott Letter. As we explained in our 1993 decision (discussed
   above), when implementation of a pay adjustment is delayed under
   statutorily authorized procedures, the pay adjustment may cover past pay
   periods so long as there is recognition of the effective date at the time
   of the delay. See B-252215, Mar. 24, 1993. We conclude, therefore, that
   USCP was authorized to make its COLA payments effective January 7,
   2007.[5]

   USCP's General Counsel raised concerns whether USCP had authority to make
   the payments effective January 7, because the Board's letters to the
   committees requesting approval of the COLA payment did not explicitly
   advise that payment would be effective January 7, 2007. GC Memo.
   Consequently, the General Counsel questioned whether the payment could be
   effective earlier than February 28, 2007, the date by which the Board had
   received approval from both committees. Id.  at 3.

   As noted above, the letters themselves indicated that the Board planned to
   make pay adjustments "[u]nder section (a)3" and "[u]nder section (b)3" of
   the Board Resolution. Livingood Letter; Feinstein Letter. These sections
   of the Board Resolution provide that adjustments to USCP pay schedules,
   such as COLAs, become "effective at the beginning of the first applicable
   pay period beginning on or after the first day of the month in which an
   adjustment becomes effective" for statutory pay system employees. Board
   Resolution, sections (a)3(A), (b)3(A). We think that because the letters
   referred to these specific provisions of the Board Resolution, the
   committees were alerted that, with their approval, the Board would make
   the COLA payments effective January 7, 2007.

   CONCLUSION

   USCP was authorized to make COLA payments effective January 7, 2007. The
   Board is authorized by statute to make COLAs. The Board Resolution
   provides that COLAs may be made effective the first day of the first pay
   period following a COLA for statutory pay system employees, subject to
   committee approval. The Board requested and received committee approval
   under these authorities to make COLA payments effective January 7, 2007.
   The delay in implementing the COLA was due to the fact that the Senate
   Committee withheld its approval pending enactment of funding for the
   remainder of fiscal year 2007. In doing so, however, the Committee
   recognized that the adjustment was forthcoming and would be effective
   January 7, 2007.

   Gary L. Kepplinger
   General Counsel

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

   [1] The Board's purpose is to oversee USCP and coordinate USCP's law
   enforcement activities with the Sergeants at Arms of the House and Senate.
   Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, sect.
   1014, 117 Stat. 11, 361 (Feb. 20, 2003). The Board consists of the Chief
   of the Capitol Police, the Architect of the Capitol, the Sergeant at Arms
   of the House, and the Sergeant at Arms and Doorkeeper of the Senate. Id.
   The Chief of the Capitol Police is a nonvoting member. Id.

   [2] Section 5303 provides for yearly COLAs for civilian executive branch
   employees.

   [3] Our practice when rendering decisions is to obtain the views of the
   relevant federal agencies. GAO, Procedures and Practices for Legal
   Decisions and Opinions, GAO-06-1064SP (Washington, D.C.: Sept. 2006),
   available at www.gao.gov/legal.htm. In this regard, the IG provided us a
   legal memorandum detailing the views of USCP's Office of General Counsel.
   USCP, Office of the General Counsel Memorandum for Phillip D. Morse, Sr.,
   Chief of Police, USCP, Subject: Request for Review of 2007 Pay Adjustment
   Retroactivity, May 25, 2007 (GC Memo), submitted with Hoecker Letter.

   [4] Based on interviews with Committee staff, the IG in his August 2007
   report determined that, in fact, the Committee had understood that the
   adjustment would be effective in January. IG Report, at 2, 4.

   [5] On February 28, subsequent to enactment of the Continuing Resolution
   for the remainder of fiscal year 2007, the Chairman of the Senate
   Committee signed "approved" on the February 23 letter from USCP to the
   Committee regarding the COLA. Feinstein Letter. This letter, too, referred
   to sections (a)3 and (b)3 of the Board Resolution. Id. Nothing in the
   Committee's approval suggests that the Committee expected the payments to
   be calculated as of February 28.