B-124955, SEPTEMBER 7, 1955, 35 COMP. GEN. 141

B-124955, SEPTEMBER 7, 1955, 35 COMP. GEN. 141

APPROPRIATIONS - AVAILABILITY - RETROACTIVE OVERSEAS ALLOWANCES - ACT OF JUNE 30, 1955 POST, TRANSFER AND SEPARATION ALLOWANCES PAYABLE TO OVERSEAS EMPLOYEES ARE NOT A PART OF THE EMPLOYEES' COMPENSATION AND, THEREFORE, FUNDS MADE AVAILABLE TO AGENCIES BY THE ACT OF JUNE 30, 1955, WHICH RESTRICTS PAYMENTS TO COMPENSATION INCREASES PROVIDED IN THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, AND THE POSTAL FIELD SERVICE COMPENSATION ACT OF 1955, MAY NOT BE USED FOR RETROACTIVE PAYMENTS OF POST, TRANSFER OR SEPARATION ALLOWANCES.

TO THE SECRETARY OF STATE, SEPTEMBER 7, 1955:

YOUR DEPUTY UNDER SECRETARY'S LETTER OF AUGUST 1, 1955, REQUESTS A DECISION WHETHER FUNDS MADE AVAILABLE TO THE VARIOUS AGENCIES IN ACCORDANCE WITH TITLE II OF THE ACT OF JUNE 30, 1955, PUBLIC LAW 123, 69 STAT. 240, MAY BE USED FOR THE RETROACTIVE PAYMENTS OF POST ALLOWANCES, TRANSFER ALLOWANCES AND SEPARATION ALLOWANCES WHERE SUCH PAYMENTS ARE OCCASIONED BY THE ENACTMENT OF THE FEDERAL EMPLOYEES SALARY INCREASE ACT OF 1955, JUNE 28, 1955, PUBLIC LAW 94, 69 STAT. 172. TITLE II OF PUBLIC LAW 123 IS, IN PART, AS FOLLOWS:

FOR COSTS IN THE FISCAL YEAR 1955 OF PAY INCREASES GRANTED BY OR PURSUANT TO PUBLIC LAWS 68 AND 94, EIGHTY-FOURTH CONGRESS, FOR ANY BRANCH OF THE FEDERAL GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA, SUCH AMOUNTS AS MAY BE NECESSARY, TO BE DETERMINED AND MADE AVAILABLE AS HEREINAFTER PROVIDED IN THIS TITLE, BUT NO APPROPRIATION, FUND, OR AUTHORIZATION MAY BE INCREASED PURSUANT TO THE PROVISIONS OF THIS TITLE IN AN AMOUNT IN EXCESS OF THE COST TO SUCH APPROPRIATION, FUND, OR AUTHORIZATION OF INCREASED COMPENSATION PURSUANT TO PUBLIC LAWS 68 AND 94, EIGHTY-FOURTH CONGRESS.

WHILE THE AMOUNT OF POST ALLOWANCE, TRANSFER ALLOWANCE OR SEPARATION ALLOWANCE PAYABLE IN A GIVEN CASE IS BASED, IN PART, UPON THE RATE OF COMPENSATION OF THE EMPLOYEE CONCERNED, THE AMOUNTS SO PAID DO NOT CONSTITUTE A PART OF THE EMPLOYEE'S COMPENSATION. EACH OF THE ENUMERATED ALLOWANCES IS A COST-OF-LIVING ALLOWANCE ESTABLISHED PURSUANT TO SECTION 901 (2) OF THE FOREIGN SERVICE ACT OF 1946, 60 STAT. 1026, 22 U.S.C. 2. SEE STANDARDIZED REGULATIONS ( GOVERNMENT CIVILIANS FOREIGN AREAS), SECTION 215H.

SECTION 201 OF PUBLIC LAW 123 REFERS TO "COSTS * * * OF PAY INCREASES" AND EXPRESSLY PRECLUDES THE INCREASING OF ANY APPROPRIATION, FUND OR AUTHORIZATION--- PURSUANT TO TITLE II OF THAT LAW--- ,IN AN AMOUNT IN EXCESS OF THE COST TO SUCH APPROPRIATION, FUND, OR AUTHORIZATION OF INCREASED COMPENSATION PURSUANT TO PUBLIC LAWS 68, 69 STAT. 88, AND 94, 69 STAT. 172, EIGHTY-FOURTH NGRESS.' IN VIEW OF THE CLEAR WORDING OF SECTION 201, RESTRICTING THE USE OF FUNDS MADE AVAILABLE BY TITLE II TO THE PAYMENT OF COMPENSATION INCREASES PROVIDED BY PUBLIC LAWS 68 AND 94, IT IS UNNECESSARY TO RESORT TO THE LEGISLATIVE HISTORY OF THAT TITLE TO DETERMINE THE PURPOSES FOR WHICH THE FUNDS MADE AVAILABLE THEREBY MAY BE EXPENDED. HOWEVER, THE FOLLOWING STATEMENT, APPEARING IN HOUSE OF REPRESENTATIVES REPORT NO. 1033 ON H.J. RES. 366, IS PARTICULARLY NOTEWORTHY:

* * * THE LANGUAGE OF THE RESOLUTION IS BROAD ENOUGH TO PERMIT PAYMENT OF ALL AMOUNTS SPECIFICALLY DUE UNDER THESE TWO LAWS ( PUBLIC LAWS 68 AND 94) FOR THE FISCAL YEAR 1955 BUT IS SO WRITTEN AS TO MAKE IT IMPOSSIBLE FOR ANY OF THE FUNDS PROVIDED TO BE USED FOR ANY OTHER PURPOSE WHATSOEVER.

ACCORDINGLY, WE MUST CONCLUDE THAT THE FUNDS OBTAINED BY AN AGENCY PURSUANT TO TITLE II OF PUBLIC LAW 123 MAY NOT BE USED FOR RETROACTIVE PAYMENTS OF POST, TRANSFER OR SEPARATION ALLOWANCES.