B-212756, SEPTEMBER 27, 1983, 62 COMP.GEN. 675

B-212756, SEPTEMBER 27, 1983, 62 COMP.GEN. 675

OFFICERS AND EMPLOYEES - SENIOR EXECUTIVE SERVICE - BONUSES, AWARDS, ETC. FISCAL YEAR 1982 BONUSES AND PRESIDENTIAL RANK AWARDS WERE PAID TO MEMBERS OF THE SENIOR EXECUTIVE SERVICE (SES) AT VARIOUS TIMES DEPENDING ON THE PARTICULAR AGENCY'S PAYMENT SCHEDULE. UNDER 5 U.S.C. 5383(B), THE AGGREGATE AMOUNT OF BASIC PAY AND AWARDS PAID TO A SENIOR EXECUTIVE DURING ANY FISCAL YEAR MAY NOT EXCEED THE ANNUAL RATE FOR EXECUTIVE SCHEDULE, LEVEL I, AS THE END OF THAT YEAR. FOR PURPOSES OF ESTABLISHING AGGREGATE AMOUNTS PAID DURING A FISCAL YEAR, AN SES AWARD IS CONSIDERED PAID ON THE DATE OF THE TREASURY CHECK. OFFICERS AND EMPLOYEES - SENIOR EXECUTIVE SERVICE - BONUSES, AWARD, ETC. CAREER SENIOR EXECUTIVE SERVICE MEMBERS WHO RECEIVE PRESIDENTIAL RANK AWARDS UNDER 5 U.S.C. 4507 ARE ENTITLED TO EITHER $10,000 OR $20,000, SUBJECT TO THE AGGREGATE AMOUNT LIMITATION IN 5 U.S.C. 5383(B). FOR FISCAL YEAR 1982 RANK AWARD RECIPIENTS WHO RECEIVED A REDUCED INITIAL PAYMENT BY TREASURY CHECK DATED ON OR AFTER OCT. 1, 1982, AN AGENCY IS REQUIRED TO MAKE A SUPPLEMENTAL PAYMENT UP TO THE FULL ENTITLEMENT, LIMITED ONLY BY THE NEW EXECUTIVE LEVEL I PAY CEILING OF $80,100. SUPPLEMENTAL PAYMENT MAY BE MADE IF THE CHECK IS DATED BEFORE OCT. 1, 1982. OFFICERS AND EMPLOYEES - SENIOR EXECUTIVE SERVICE - BONUSES, AWARDS, ETC. PERFORMANCE AWARDS (BONUSES) MAY BE PAID TO CAREER SENIOR EXECUTIVE SERVICE MEMBERS UNDER 5 U.S.C. 5384, NOT TO EXCEED 20 PERCENT OF ANNUAL BASIC PAY AND SUBJECT TO THE AGGREGATE LIMITATION IN 5 U.S.C. 5383(B). A BONUS WAS PAID BY TREASURY CHECK DATED ON OR AFTER OCT. 1, 1982, AN AGENCY MAY, IN ITS DISCRETION, MAKE A SUPPLEMENTAL PAYMENT LIMITED ONLY BY THE NEW EXECUTIVE LEVEL I CEILING OF $80,100, PROVIDED THE BONUS AMOUNT WAS CALCULATED ON A PERCENTAGE BASIS. NO SUPPLEMENTAL PAYMENT MAY BE MADE IF THE CHECK IS DATED BEFORE OCT. 1, 1982.

MATTER OF: SENIOR EXECUTIVE SERVICE - SUPPLEMENTAL PAYMENTS TO RANK AND PERFORMANCE AWARD RECIPIENTS, SEPTEMBER 27, 1983:

THIS DECISION RESPONDS TO THE REQUEST OF THE ASSISTANT ATTORNEY GENERAL OF ADMINISTRATION, DEPARTMENT OF JUSTICE, FOR A DECISION WHETHER MEMBERS OF THE SENIOR EXECUTIVE SERVICE (SES) OF THAT AGENCY WHO WERE AWARDED PRESIDENTIAL RANKS OR PERFORMANCE AWARDS FOR FISCAL YEAR 1982, BUT WHO DID NOT RECEIVE THE FULL DOLLAR AMOUNT OF THEIR RESPECTIVE AWARDS BECAUSE OF THE AGGREGATE PAY LIMITATION CONTAINED IN 5 U.S.C. 5383(B), MAY NOW RECEIVE SUPPLEMENTAL PAYMENTS AS A RESULT OF THE DECEMBER 18, 1982, INCREASE IN THE EXECUTIVE LEVEL I PAY CEILING. /1/ FOR THE REASONS WHICH FOLLOW, WE CONCLUDE THAT SUPPLEMENTAL PAYMENTS MAY BE MADE TO THOSE SES MEMBERS WHO WERE PARTIALLY PAID THEIR BONUSES OR RANK AWARDS IN FISCAL YEAR 1983, LIMITED ONLY BY THE ANNUAL RATE PAYABLE FOR LEVEL I OF THE EXECUTIVE SCHEDULE, I.E., $80,100, EFFECTIVE DECEMBER 18, 1982. NO SUCH SUPPLEMENTAL PAYMENTS MAY BE MADE TO THOSE WHO WERE PAID THEIR AWARDS IN FISCAL YEAR 1982.

ACCORDING TO THE ASSISTANT ATTORNEY GENERAL, PRESIDENTIAL EXECUTIVE RANK AWARDS WERE APPROVED BY THE PRESIDENT ON SEPTEMBER 29, 1982, PURSUANT TO 5 U.S.C. 4507(C), FOR A NUMBER OF SENIOR EXECUTIVE SERVICE MEMBERS OF THE DEPARTMENT OF JUSTICE. IN ADDITION A NUMBER OF SES PERFORMANCE AWARDS ("BONUSES") UNDER 5 U.S.C. 5384 WERE APPROVED BY THE DEPUTY ATTORNEY GENERAL ON SEPTEMBER 30, 1982. ALL THE RANK AWARDS AND BONUSES WERE CERTIFIED FOR PAYMENT TO THE TREASURY DEPARTMENT DISBURSING OFFICER ON SEPTEMBER 30, 1982. HOWEVER, CHECKS WERE NOT DATED AND MAILED BY THE TREASURY DEPARTMENT UNTIL FISCAL YEAR 1983 (APPROXIMATELY OCTOBER 5, 1982) NOR RECEIVED BY THE EMPLOYEES IN QUESTION UNTIL APPROXIMATELY OCTOBER 8, 1982. WE UNDERSTAND THAT IN OTHER AGENCIES SOME SES RECIPIENTS RECEIVED THEIR PAYMENTS BEFORE OCTOBER 1, 1982.

SOME OF THE SENIOR EXECUTIVES WHO WERE GIVEN RANK AWARDS OR BONUSES RECEIVED LESS THAN THE APPROVED AMOUNT BECAUSE THE APPROVED AMOUNT WHEN COMBINED WITH THEIR RESPECTIVE BASE SALARIES WOULD HAVE RESULTED IN AGGREGATE AMOUNTS IN EXCESS OF $69,630 (THE ANNUAL RATE PAYABLE UNDER EXECUTIVE SCHEDULE, LEVEL I, DURING FISCAL YEAR 1982) IN CONTRAVENTION OF 5 U.S.C. 5383(B). THAT SECTION PROVIDES AS FOLLOWS:

IN NO EVENT MAY THE AGGREGATE AMOUNT PAID TO A SENIOR EXECUTIVE DURING ANY FISCAL YEAR UNDER SECTIONS 4507 (RANK AWARDS), 5382 (BASIC PAY), 5384 (PERFORMANCE AWARDS) * * * OF THIS TITLE EXCEED THE ANNUAL RATE PAYABLE FOR POSITIONS AT LEVEL I OF THE EXECUTIVE SCHEDULE IN EFFECT AT THE END OF SUCH FISCAL YEAR.

EFFECTIVE DECEMBER 18, 1982, THE STATUTORY ANNUAL SALARY RATE PAYABLE UNDER EXECUTIVE SCHEDULE, LEVEL I, WAS RAISED TO $80,100.

PUBLIC LAW 97-377, SEC. 129(B), DECEMBER 21, 1982, 96 STAT. 1830, 1914. IT IS THIS INCREASE IN THE EXECUTIVE LEVEL I PAY CEILING AND ITS IMPACT ON THE LIMITATIONS OF 5 U.S.C. 5383(B) WHICH HAVE PRECIPITATED THE QUESTIONS RAISED BY THE DEPARTMENT OF JUSTICE AND OTHER FEDERAL AGENCIES AS TO THE POTENTIAL ELIGIBILITY OF SENIOR EXECUTIVES TO ADDITIONAL PAYMENTS FOR SES RANKS AND BONUSES AWARDED FOR FISCAL YEAR 1982.

IN YOUR OPINION, IT IS CLEAR THAT, FOR PURPOSES OF THE AGGREGATE AMOUNT LIMITATION IN 5 U.S.C. 5383(B), EMPLOYEES WHO ARE GIVEN SES RANK AWARDS OR BONUS AWARDS ARE PAID ON THE DATE OF PAYMENT RATHER THAN ON THE DATE OF APPROVAL. IN THE EXAMPLE GIVEN BY THE DEPARTMENT OF JUSTICE, THEREFORE, THE DATE OF APPROVAL, SEPTEMBER 29 OR SEPTEMBER 30, WOULD NOT BE CONTROLLING FOR LIMITATION PURPOSES.

THE NEXT QUESTION IS WHETHER "PAYMENT" TAKES PLACE ON THE DATE PAYMENT IS SCHEDULED FOR DISBURSEMENT, THE DATE OF THE TREASURY CHECK, OR THE DATE THE CHECK IS RECEIVED BY THE EMPLOYEE. WE BELIEVE THAT THE DATE OF THE CHECK FURNISHES THE MOST DEFINITE AND CERTAIN ANSWER TO THIS QUESTION. THAT CONCLUSION IS CONSISTENT WITH THE PROMPT PAYMENT ACT, PUBLIC LAW 97-177, SEC. 6, MAY 21, 1982, 96 STAT. 85, WHICH PROVIDES THAT A PAYMENT IF THEREUNDER IS DEEMED TO BE MADE ON THE DATE A CHECK FOR THE PAYMENT IS DATED. 31 U.S.C. 3901(A)(5).

THEREFORE, FOR PURPOSES OF ESTABLISHING AGGREGATE AMOUNTS PAID DURING A FISCAL YEAR UNDER 5 U.S.C. 5383(B), A SENIOR EXECUTIVE IS CONSIDERED PAID ON THE DATE OF THE TREASURY CHECK. SINCE THE CHECKS IN PAYMENT OF THE AWARDS TO THE JUSTICE EXECUTIVES WERE DATED ON OR ABOUT OCTOBER 5, 1982, THE SENIOR EXECUTIVES IN QUESTION WERE PAID IN FISCAL YEAR 1983 FOR THE AGGREGATE PAY PURPOSES OF 5 U.S.C. 5383(B). IN OTHER CASES, IF A CHECK OR CHECKS WERE ISSUED ON OR BEFORE SEPTEMBER 30, 1982, THOSE PAYMENTS ARE CONSIDERED TO HAVE BEEN MADE IN FISCAL YEAR 1982 FOR THOSE PURPOSES.

THE REMAINING QUESTIONS ARE WHETHER SUPPLEMENTAL PAYMENTS TO SES MEMBERS ARE MANDATORY, DISCRETIONARY, OR PROHIBITED. WE SHALL ADDRESS THESE QUESTIONS BELOW.

IF AN AWARD UNDER EITHER SECTION 4507 OR SECTION 5384 OF TITLE 5, U.S. CODE, WAS PAID BY A TREASURY CHECK DATED ON OR BEFORE SEPTEMBER 30, 1982, THE PAYMENT IS SUBJECT TO THE FISCAL YEAR 1982 CEILING OF $69,630, AND NO SUPPLEMENTAL PAYMENT MAY BE MADE THAT WOULD CAUSE THE AGGREGATE AMOUNT PAID DURING FISCAL YEAR 1982 TO EXCEED THAT CEILING.

IF, HOWEVER, AN AWARD UNDER EITHER SECTION WAS PAID BY TREASURY CHECK DATED ON OR AFTER OCTOBER 1, 1982, THE FOLLOWING CONCLUSIONS APPLY.

FOR PRESIDENTIAL RANK AWARD RECIPIENTS UNDER 5 U.S.C. 4507 PAID DURING FISCAL YEAR 1983, WHOSE INITIAL PAYMENT WAS REDUCED BECAUSE OF THE $69,630 CEILING, AN AGENCY IS REQUIRED TO MAKE A SUPPLEMENTAL PAYMENT SO THAT THE SENIOR EXECUTIVES RECEIVES THE FULL AMOUNT OF THE $10,000 OR $20,000 STATUTORY ENTITLEMENT UNDER SECTION 4507(E)(1) OR (E)(2), LIMITED ONLY BY THE NEW EXECUTIVE LEVEL I PAY CEILING OF $80,100.

HOWEVER, THE AMOUNT OF A PERFORMANCE AWARD UNDER 5 U.S.C. 5384 IS NOT FIXED BY STATUTE; IT IS DETERMINED BY THE AGENCY HEAD BUT MAY NOT EXCEED 20 PERCENT OF THE EMPLOYEE'S BASIC PAY. ACCORDINGLY, FOR PERFORMANCE AWARD (BONUS) RECIPIENTS UNDER 5 U.S.C. 5384, PAID DURING FISCAL YEAR 1983, AN AGENCY MAY, IN ITS DISCRETION, MAKE A SUPPLEMENTAL PAYMENT, LIMITED ONLY BY THE NEW CEILING OF $80,100, OF THE INITIAL PAYMENT WAS REDUCED BECAUSE OF THE THEN APPLICABLE CEILING OF $69,630.

THE FOREGOING ANALYSIS AND CONCLUSIONS ARE INTENDED TO ANSWER THE JUSTICE DEPARTMENT'S INQUIRY AND OTHER QUESTIONS THAT HAVE ARISEN CONCERNING SES AWARDS. IF THERE ARE SPECIFIC SITUATIONS NOT COVERED BY THE FOREGOING, THEY SHOULD BE SUBMITTED FOR DECISION.

/1/ OTHER AGENCIES HAVE ALSO ENCOUNTERED SIMILAR PROBLEMS WITH SES AWARD PAYMENTS DURING THAT PERIOD. FOR THAT REASON, OUR DECISION IS NOT CONFINED TO THE SPECIFIC FACTS AND PAYMENT DATES INVOLVED IN THE JUSTICE DEPARTMENT REQUEST.