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B-157936, SEP 16, 1974, 54 COMP GEN 210

B-157936 Sep 16, 1974
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STATES - EMPLOYEES - DETAIL TO FEDERAL GOVERNMENT - "PAY" REIMBURSEMENT WHEN A STATE OR LOCAL GOVERNMENT EMPLOYEE IS DETAILED TO AN EXECUTIVE AGENCY OF THE FEDERAL GOVERNMENT UNDER THE INTERGOVERNMENTAL PERSONNEL ACT. THAT IS. A NUMBER OF SIMILAR REQUESTS FOR RECONSIDERATION HAVE ALSO BEEN RECEIVED. 53 COMP. RATHER IT WAS HELD THAT THE TERM AS USED IN PERSONNEL STATUTES IN GENERAL REFERS TO WAGES. POINTS OUT THAT THE DECISION WAS BASED ON THE PREMISE THAT NO AUTHORITY WAS INCLUDED IN THE LAW WHICH WOULD AUTHORIZE SUCH REIMBURSEMENTS. THUS IT WAS CONCLUDED THAT THERE IS A DISTINCTION BETWEEN FEDERAL REIMBURSEMENT AS TO STATE AND LOCAL GOVERNMENT EMPLOYEES "APPOINTED" AND EMPLOYEES "DETAILED" TO FEDERAL POSITIONS.

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B-157936, SEP 16, 1974, 54 COMP GEN 210

STATES - EMPLOYEES - DETAIL TO FEDERAL GOVERNMENT - "PAY" REIMBURSEMENT WHEN A STATE OR LOCAL GOVERNMENT EMPLOYEE IS DETAILED TO AN EXECUTIVE AGENCY OF THE FEDERAL GOVERNMENT UNDER THE INTERGOVERNMENTAL PERSONNEL ACT, THE REIMBURSEMENT UNDER 5 U.S.C. 3374(C) FOR THE "PAY" OF THE EMPLOYEE MAY INCLUDE FRINGE BENEFITS, SUCH AS RETIREMENT, LIFE AND HEALTH INSURANCE, BUT NOT COSTS FOR NEGOTIATING THE ASSIGNMENT AGREEMENT REQUIRED UNDER 5 CFR 334.105 NOR FOR PREPARING THE PAYROLL RECORDS AND ASSIGNMENT REPORT PRESCRIBED UNDER 5 CFR 334.106. THE WORD "PAY" AS USED IN THE ACT HAS REFERENCE, ACCORDING TO THE LEGISLATIVE HISTORY, TO THE SALARY OF A STATE OR LOCAL DETAILEE WHICH TERM AS USED IN 3374(C), UPON RECONSIDERATION, DOES NEED TO BE LIMITED TO THE MEANING USED IN FEDERAL PERSONNEL STATUTES, THAT IS, THAT THE TERM REFERS ONLY TO WAGES, SALARY, OVERTIME AND HOLIDAY PAY, PERIODIC WITHIN GRADE ADVANCEMENTS AND OTHER PAY GRANTED DIRECTLY TO FEDERAL EMPLOYEES. 53 COMP. GEN. 355, OVERRULED IN PART.

IN THE MATTER OF STATE EMPLOYEES DETAILED TO FEDERAL GOVERNMENT, SEPTEMBER 16, 1974:

THE DEPARTMENT OF THE ARMY HAS REQUESTED THAT WE RECONSIDER THE PORTION OF OUR DECISION, REPORTED AT 53 COMP. GEN. 355 (1973), IN WHICH WE HELD THAT EXECUTIVE AGENCIES COULD NOT MAKE REIMBURSEMENTS TO STATE AND LOCAL GOVERNMENTS COVERING VARIOUS FRINGE BENEFITS, I.E., RETIREMENT, LIFE AND HEALTH INSURANCE, FOR EMPLOYEES OF SUCH GOVERNMENTS DETAILED TO AN EXECUTIVE AGENCY PURSUANT TO 5 U.S.C. 3374(C), PART OF THE INTERGOVERNMENTAL PERSONNEL ACT (IPA). A NUMBER OF SIMILAR REQUESTS FOR RECONSIDERATION HAVE ALSO BEEN RECEIVED. 53 COMP. GEN. 355 AT 356 STATED THAT THE WORD "PAY," NOW CODIFIED IN 5 U.S.C. 5101, ET SEQ., AND IN APPLICABLE REGULATIONS DOES NOT NECESSARILY COVER THE WHOLE AMBIT OF EMPLOYMENT COSTS. RATHER IT WAS HELD THAT THE TERM AS USED IN PERSONNEL STATUTES IN GENERAL REFERS TO WAGES, SALARY, OVERTIME AND HOLIDAY PAY, PERIODIC WITHIN-GRADE ADVANCEMENTS AND OTHER PAY GRANTED DIRECTLY TO FEDERAL EMPLOYEES.

THE DEPARTMENT OF THE ARMY, AMONG OTHERS, POINTS OUT THAT THE DECISION WAS BASED ON THE PREMISE THAT NO AUTHORITY WAS INCLUDED IN THE LAW WHICH WOULD AUTHORIZE SUCH REIMBURSEMENTS, WITH REFERRAL TO 5 U.S.C. 3374(E) WHICH AUTHORIZES EXECUTIVE AGENCIES TO MAKE CONTRIBUTIONS TO STATE AND LOCAL LIFE INSURANCE AND HEALTH BENEFIT PLANS, TO EMPLOYEES APPOINTED TO EXECUTIVE AGENCY POSITIONS PURSUANT TO 3374(A). THUS IT WAS CONCLUDED THAT THERE IS A DISTINCTION BETWEEN FEDERAL REIMBURSEMENT AS TO STATE AND LOCAL GOVERNMENT EMPLOYEES "APPOINTED" AND EMPLOYEES "DETAILED" TO FEDERAL POSITIONS.

AMONG THE REASONS URGING RECONSIDERATION OF THAT PART OF THE DECISION ARE THE FOLLOWING:

1. IN SOME STATE AND LOCAL JURISDICTIONS, THE STATE COMPTROLLER IS NOT LEGALLY PERMITTED TO MAKE FRINGE BENEFIT CONTRIBUTIONS WHILE THE EMPLOYEE IS DETAILED TO A FEDERAL AGENCY.

2. FOR MANY STATE EMPLOYEES, SUCH AS UNIVERSITY TEACHERS, THE FRINGE BENEFITS ARE IN FACT A VERY IMPORTANT PART OF A TEACHER'S SALARY OR PAY. SUCH BENEFITS ARE REGULARLY INCLUDED WITH SALARY COSTS IN ESTABLISHING AND AUTHORIZING POSITIONS.

3. IN THE ABSENCE OF ANY CLEAR INDICATION OF A CONTRARY LEGISLATIVE INTENT AS TO 3374(C), AND IN VIEW OF THE BROAD OVERALL PURPOSE OF THE LAW TO PROVIDE GRANTS, FELLOWSHIPS, AND CROSS TRAINING AS A MEANS OF FACILITATING THE EXCHANGE OF FEDERAL, STATE AND LOCAL PERSONNEL, COUPLED WITH THE FACT THAT NONREIMBURSEMENT FOR FRINGE BENEFITS WILL VIRTUALLY ELIMINATE THE DETAILS CONTEMPLATED BY THE LAW, THE SECTION SHOULD BE LIBERALLY INTERPRETED IN ORDER TO CAPTURE CONGRESSIONAL INTENT IN ENACTING THE LEGISLATION.

4. THE CIVIL SERVICE COMMISSION IN A LETTER TO THIS OFFICE DATED AUGUST 13, 1973, AND IN SUBSEQUENT INFORMAL DISCUSSIONS, TAKES THE POSITION THAT THE STATUTORY SCHEME OF THE IPA AUTHORIZES THE PAYMENT OF ALL SALARY EXPENSES NORMALLY ASSOCIATED WITH AN EMPLOYEE'S PAY AND IT URGES THAT ITS CONCLUSION IS SUPPORTED BY THE USE OF THE TERM "REIMBURSE," MEANING "AN EQUIVALENT FOR THAT TAKEN, LOST, OR EXPENDED." THE COMMISSION ALSO NOTES THAT THE APPLICABLE REPORTS ON THE LEGISLATION SPEAK OF PAY AS THE "SALARY OF A STATE OR LOCAL DETAILEE." SINCE SALARY AS A TERM IS NOT DEFINED IN TITLE 5, U.S.C., AND PAY IS A TERM OF ART REFERRING TO THE SUMS OF MONEY AN INDIVIDUAL RECEIVES FOR HIS SERVICES, THE COMMISSION SUGGESTS THAT 5 U.S.C. 5102(C)(15) WHICH EXCLUDES THE PAY FIXED UNDER A COOPERATIVE AGREEMENT FROM THE PROVISIONS OF CHAPTER 51 IS APPLICABLE, AS THE SUBJECT PAY IS FIXED UNDER AN ASSIGNMENT AGREEMENT, 5 CFR 334.105. THUS THE COMMISSION CONCLUDED THAT THE FRINGE BENEFITS AN EMPLOYER PAYS ON BEHALF OF HIS EMPLOYEE MAY BE INCLUDED IN THE REIMBURSEMENT THAT A FEDERAL AGENCY MAKES FOR A DETAILEE ASSIGNED TO IT.

WE UNDERSTAND THAT AN EMPLOYEE APPOINTED UNDER THE SUBJECT PROGRAM TO A POSITION IN A FEDERAL AGENCY IS FOR MOST PURPOSES, SUCH AS PAY AND MANPOWER DECISIONS, CONSIDERED AN EMPLOYEE OF THAT AGENCY. A DETAILED ASSIGNEE, HOWEVER, REMAINS AN EMPLOYEE OF THE STATE OR LOCAL GOVERNMENT, AND IS NOT COUNTED AGAINST THE FEDERAL AGENCY'S MANPOWER CEILING. FOR COMPARABLE POSITIONS, SALARIES IN STATE AND LOCAL GOVERNMENTS, WITH SOME EXCEPTIONS, HAVE LAGGED BEHIND THOSE PAID BY THE FEDERAL GOVERNMENT. HAVE BEEN INFORMED THAT ABOUT 75 PERCENT OF ALL ASSIGNMENTS UNDER THIS PROGRAM ARE ON DETAIL AND THAT SOME STATE AND LOCAL GOVERNMENTS USE THE DETAIL PROVISION RATHER THAN THE APPOINTMENT ONE TO PROTECT THE TENURE AND OTHER RIGHTS OF THE EMPLOYEES. WHETHER THE EMPLOYEE IS APPOINTED OR DETAILED, HOWEVER, THE ARRANGEMENT IS A TEMPORARY ONE AND WAS DESIGNED FOR THE COMMON PURPOSE OF THE IPA, I.E., TO IMPROVE THE PERSONNEL MANAGEMENT AND TRAINING CAPABILITIES OF STATE AND LOCAL GOVERNMENTS.

UPON REVIEW OF THE MATERIAL SET FORTH IN ITEMS 1 THROUGH 4 ABOVE AND IN PARTICULAR, TAKING INTO ACCOUNT THE VIEWS AND CONCLUSIONS OF THE CIVIL SERVICE COMMISSION WHICH HAS BEEN DELEGATED THE REGULATORY AUTHORITY OF 3376 (TITLE 5) BY EXECUTIVE ORDER 11589, IN THE LIGHT OF THE STATED BROAD LEGISLATIVE PURPOSES, IT IS CONCLUDED THAT THE LIMITATION IMPOSED IN 53 COMP. GEN. 355 ON THE REIMBURSEMENT AUTHORITY PROVIDED IN 3374(C) WITH RESPECT TO EMPLOYEE FRINGE BENEFITS - RETIREMENT, LIFE AND HEALTH INSURANCE - IS UNNECESSARILY RESTRICTIVE, AND THE DECISION AS TO THOSE ITEMS IS OVERRULED. ACCORDINGLY, THE SUMS OF MONEY PAID BY AN EXECUTIVE AGENCY TO A STATE OR LOCAL GOVERNMENT UNDER THE AUTHORITY OF 5 U.S.C. 3374(C) MAY INCLUDE REIMBURSEMENT FOR SUCH ITEMS. THAT PART OF THE DECISION IN 53 ID. 355, WHICH HELD THAT COSTS OF NEGOTIATING ASSIGNMENT AGREEMENTS AND PREPARING PAYROLL RECORDS AND ASSIGNMENTS REPORTS WERE OVERHEAD ITEMS RATHER THAN SALARY ITEMS AND THUS SUCH COSTS WERE NONREIMBURSABLE, IS AFFIRMED.

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