B-139880, DECEMBER 4, 1959, 39 COMP. GEN. 422

B-139880, DECEMBER 4, 1959, 39 COMP. GEN. 422

APPROPRIATIONS - OBLIGATION - WAGE BOARD INCREASES - ANTIDEFICIENCY ACT VIOLATIONS - APPORTIONMENT REQUESTS ADMINISTRATIVE ACTION GRANTING PAY INCREASES TO WAGE BOARD EMPLOYEES EFFECTIVE ON A SPECIFIED DATE NOT ONLY IMPOSES A LEGAL LIABILITY UPON THE GOVERNMENT FOR PAYMENT OF THE ADDITIONAL COMPENSATION BUT CREATES AN OBLIGATION AGAINST THE APPROPRIATION CURRENT AT THE TIME THE LIABILITY IS INCURRED, AND THE FACT THAT THE APPROPRIATION SO OBLIGATED MAY BE INSUFFICIENT TO COVER THE OBLIGATION IS IMMATERIAL INSOFAR AS DETERMINING WHEN THE OBLIGATION ARISES AND THE APPROPRIATION TO BE CHARGED. THE EFFECTIVE DATE OF PAY INCREASES FOR WAGE BOARD EMPLOYEES BEING DETERMINATIVE OF THE DATE THE LIABILITY OF THE GOVERNMENT FOR PAYMENT OF ADDITIONAL COMPENSATION ARISES, THE APPROPRIATION CHARGEABLE FOR SUCH INCREASES IS THE ONE CURRENTLY AVAILABLE FOR PAYMENT OF WAGES FOR THE PERIOD TO WHICH THE INCREASES APPLY. SINCE PAY INCREASES TO WAGE BOARD EMPLOYEES CONSTITUTE VALID APPROPRIATION OBLIGATIONS UNDER SECTION 1311 (A) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1955, 31 U.S.C. 200 (A), THE FAILURE OF THE AGENCY HEAD TO INCLUDE SUCH OBLIGATIONS IN THE STATEMENT FURNISHED TO THE BUREAU OF THE BUDGET IN SUPPORT OF REQUESTS FOR PROPOSED APPROPRIATIONS, IRRESPECTIVE OF THE MATTER OF OBTAINING AN APPORTIONMENT OR SUPPLEMENTAL OR DEFICIENCY APPROPRIATION FOR PAYMENT OF THE WAGE INCREASES, WOULD VIOLATE THE REPORTING REQUIREMENTS IN SECTION 1311 (B) OF THE ACT, 31 U.S.C. 200 (B). OBLIGATIONS AND EXPENDITURES OF FUNDS FOR WAGE BOARD INCREASES GRANTED UNDER THE ACT OF SEPTEMBER 2, 1958, 5 U.S.C. 1181, WHICH ARE IN EXCESS OF THE APPROPRIATION AVAILABLE AND WHICH ARE INCURRED PRIOR TO OBTAINING A REAPPORTIONMENT OR SUPPLEMENTAL OR DEFICIENCY APPROPRIATION MAY, TO THE EXTENT NECESSARY TO PERMIT PAYMENT, BE CONSIDERED AS OBLIGATIONS "AUTHORIZED BY LAW" WITHIN THE PURVIEW OF THE ANTIDEFICIENCY ACT, 31 U.S.C. 665 (A), AND, THEREFORE, NOT IN VIOLATION OF THE ACT, IN VIEW OF SECTION 210 OF THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1958, WHICH PERMITS APPORTIONMENT OF APPROPRIATIONS FOR WAGE INCREASE AND OF THE MANDATORY PROVISIONS OF THE WAGE BOARD INCREASE ACT OF SEPTEMBER 2, 1958, WHICH EVIDENCE A CONGRESSIONAL INTENT TO SANCTION AN EXCEPTION TO THE ANTIDEFICIENCY ACT. ALTHOUGH THE APPORTIONMENT OF APPROPRIATIONS IN CONNECTION WITH THE APPLICABILITY OF SECTION 210 OF THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1958, IS PRIMARILY A MATTER FOR DETERMINATION BY THE BUREAU OF THE BUDGET, IT WOULD APPEAR THAT THE INCLUSION OF AN ESTIMATE FOR ANTICIPATED WAGE INCREASES IN A DEFICIENCY APPORTIONMENT REQUEST--- AS DISTINGUISHED FROM PAY INCREASES AS MAY BE GRANTED--- DOES NOT COME WITHIN THE PURVIEW OF SECTION 210 AND, THEREFORE, SUCH ESTIMATES SHOULD NOT BE INCLUDED IN DEFICIENCY APPORTIONMENTS.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, DECEMBER 4, 1959:

REFERENCE IS MADE TO LETTER OF JUNE 9, 1959, FROM THE ASSOCIATE DEPUTY ADMINISTRATOR, REQUESTING OUR DECISION ON SEVERAL QUESTIONS RELATIVE TO THE GRANTING OF PAY INCREASES TO WAGE BOARD EMPLOYEES OF THE VETERANS ADMINISTRATION.

THE ASSOCIATE DEPUTY ADMINISTRATOR STATES--- AND CORRECTLY SO--- THAT, IN ACCORDANCE WITH OUR DECISION REPORTED AT 28 COMP. GEN. 300, SUCH PAY INCREASES WERE NOT ADMINISTRATIVELY RECORDED AS OBLIGATIONS UNTIL AND APPORTIONMENT OR SUPPLEMENTAL APPROPRIATION HAD BEEN APPROVED THEREFOR. HE POINTS OUT, HOWEVER, THAT THE ENACTMENT OF CERTAIN LEGISLATION SUBSEQUENT TO THAT DECISION HAS GIVEN RISE TO VARIOUS FISCAL AND BUDGETING PROBLEMS WITH REFERENCE TO THE ADMINISTRATION OF WAGE BOARD PAY INCREASES.

THE APPLICABLE STATUTES REFERRED TO IN THE LETTER ARE SECTION 1311 OF THE SUPPLEMENTAL APPROPRIATION ACT, 1955, AS AMENDED, 31 U.S.C. 200, WHICH DEFINES AN OBLIGATION OF THE GOVERNMENT FOR ACCOUNTING AND BUDGETING PURPOSES AND IMPOSES CERTAIN REPORTING REQUIREMENTS THEREON; SECTION 210 OF THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1958, APPROVED JUNE 5, 1957, 71 STAT. 55, 31 U.S.C. 665, AS FOLLOWS:

HEREAFTER, ANY APPROPRIATION REQUIRED TO BE APPORTIONED PURSUANT TO SECTION 3679 OF THE REVISED STATUTES, AS AMENDED (31 U.S.C. 665), MAY BE APPORTIONED ON A BASIS INDICATING THE NEED FOR A SUPPLEMENTAL OR DEFICIENCY ESTIMATE OF APPROPRIATION TO THE EXTENT NECESSARY TO PERMIT PAYMENT OF SUCH PAY INCREASES AS MAY BE GRANTED TO THOSE EMPLOYEES (COMMONLY KNOWN AS WAGE-BOARD EMPLOYEES) WHOSE COMPENSATION IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES (5 U.S.C. 1082 (7) ).

AND PUBLIC LAW 85-872, APPROVED SEPTEMBER 2, 1958, 72 STAT. 1696, 5 U.S.C. 1181, SECTION 1 OF WHICH PROVIDES:

* * * THAT EACH INCREASE IN RATES OF BASIC COMPENSATION GRANTED, PURSUANT TO A WAGE SURVEY, TO EMPLOYEES OF THE FEDERAL GOVERNMENT OR OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHOSE COMPENSATION IS FIXED AND ADJUSTED FROM TIME TO TIME AS NEARLY AS IS CONSISTENT WITH THE PUBLIC INTEREST IN ACCORDANCE WITH PREVAILING RATES UNDER AUTHORITY OF SECTION 202 (7) OF THE CLASSIFICATION ACT OF 1949 (5 U.S.C. 1082 (7) ( OR SECTION 7474 OF TITLE 10 OF THE UNITED STATES CODE SHALL BECOME EFFECTIVE, AS FOLLOWS:

(1) IF THE WAGE SURVEY IS CONDUCTED BY A DEPARTMENT OR AGENCY (EITHER ALONE OR WITH ONE OR MORE OTHER DEPARTMENTS OR AGENCIES) WITH RESPECT TO ITS OWN EMPLOYEES, SUCH INCREASE SHALL BECOME EFFECTIVE FOR SUCH EMPLOYEES NOT LATER THAN THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER THE FORTY-FIFTH DAY, EXCLUDING SATURDAYS AND SUNDAYS, FOLLOWING THE DATE ON WHICH SUCH WAGE SURVEY WAS ORDERED TO BE MADE; AND

(2) IF THE WAGE SURVEY IS CONDUCTED BY A DEPARTMENT OR AGENCY (EITHER ALONE OR WITH ONE OR MORE OTHER DEPARTMENTS OR AGENCIES) AND IS UTILIZED BY ANY DEPARTMENT OR AGENCY WHICH DID NOT CONDUCT SUCH WAGE SURVEY, SUCH INCREASE SHALL BECOME EFFECTIVE, FOR THE EMPLOYEES OF THE DEPARTMENT OR AGENCY UTILIZING SUCH WAGE SURVEY, NOT LATER THAN THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS ON OR AFTER THE TWENTIETH DAY, EXCLUDING SATURDAYS AND SUNDAYS, FOLLOWING THE DATE ON WHICH THE DEPARTMENT OR AGENCY UTILIZING SUCH WAGE SURVEY RECEIVES THE DATA COLLECTED IN SUCH WAGE SURVEY AND NECESSARY FOR THE GRANTING OF SUCH INCREASE.

THE PRIMARY PURPOSE OF THE QUOTED PROVISIONS OF THE ACT OF SEPTEMBER 2, 1958, IS TO PRESCRIBE A TIME LIMIT--- FOLLOWING THE ORDERING OR UTILIZATION BY A DEPARTMENT OR AGENCY OF A WAGE SURVEY--- WITHIN WHICH TIME PAY INCREASES RESULTING THEREFROM MUST BE PLACED IN EFFECT. THE STATUTE PROVIDES THAT WHEN AN AGENCY CONDUCTS ITS OWN SURVEY, ANY INCREASES RESULTING THEREFROM ARE REQUIRED TO BECOME EFFECTIVE NOT MORE THAN 45 DAYS AFTER THE WAGE SURVEY WAS ORDERED TO BE MADE. AND, THAT IF AN AGENCY UTILIZES DATA COLLECTED BY ANOTHER DEPARTMENT OR AGENCY, SUCH INCREASES ARE REQUIRED TO BECOME EFFECTIVE NOT MORE THAN 20 DAYS AFTER THE AGENCY RECEIVES THE DATA.

THUS THE STATUTE MAKES IT MANDATORY UPON THE AGENCIES TO ESTABLISH, WITHIN A SPECIFIED PERIOD OF TIME, THE EFFECTIVE DATES OF PAY INCREASES GRANTED, PURSUANT TO A WAGE SURVEY, TO EMPLOYEES OF THE FEDERAL GOVERNMENT OR OF THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHOSE COMPENSATION IS FIXED AND ADJUSTED UNDER AUTHORITY OF SECTION 202 (7) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1082 (7), OR SECTION 7474 OF TITLE 10 OF THE U.S.C. AND DIRECTS PAYMENT OF THE ADDITIONAL COMPENSATION. OF COURSE, THESE REQUIREMENTS AS WELL AS THOSE CONTAINED IN THE OTHER STATUTES DID NOT PREVAIL AT THE TIME OF OUR DECISION 28 COMP. GEN. 300.

THE SPECIFIC QUESTIONS PRESENTED FOR DECISION ARE AS FOLLOWS:

(1) DOES THE EFFECTIVE DATE OF WAGE RATE INCREASES OR THE DATE FUNDS ARE DETERMINED TO BE AVAILABLE TO COVER WAGE RATE INCREASES DETERMINE THE APPROPRIATION CHARGEABLE WITH THE AMOUNT OF SUCH INCREASES?

(2) IF THE EFFECTIVE DATE OF RATE INCREASES DETERMINES THE FISCAL YEAR APPROPRIATION CHARGEABLE, HAVE WE VIOLATED THE PROVISION OF SECTION 1311, PL 663, 83D CONGRESS, WHICH REQUIRES THE REPORTING OF ALL KNOWN OBLIGATIONS, BY NOT RECORDING AND REPORTING THE INCREASED AMOUNTS DUE AS AN OBLIGATION UNTIL AN APPORTIONMENT OR SUPPLEMENTAL OR DEFICIENCY APPROPRIATION HAS BEEN OBTAINED TO COVER THE AMOUNT OF SUCH INCREASES?

(3) IF WE OBLIGATE AND PAY THE INCREASED AMOUNTS DUE AND SUCH ACTION RESULTS IN AN OVER-OBLIGATION OR OVER-EXPENDITURE OF THE APPROPRIATION UNTIL AN APPORTIONMENT REQUEST CAN BE APPROVED AND PROCESSED BY THE BUREAU OF THE BUDGET OR A SUPPLEMENTAL OR DEFICIENCY APPROPRIATION IS PASSED BY THE CONGRESS, WOULD WE BE IN VIOLATION OF THE PROVISIONS OF THE ANTI- DEFICIENCY ACT OR WOULD SUCH ACTIONS BE CONSIDERED AS "OBLIGATIONS AUTHORIZED BY LAW" AND AS SUCH NOT A VIOLATION OF THE ACT?

(4) ARE WE PERMITTED TO INCLUDE IN OUR APPORTIONMENT REQUEST AN ESTIMATE OF THE AMOUNT NEEDED FOR WAGE BOARD RATE INCREASES NOT YET APPROVED WHICH MAY BE EFFECTIVE DURING THE PERIOD COVERED BY THE APPORTIONMENT REQUESTED WHEN THE APPROVAL OF SUCH A REQUEST WILL RESULT IN APPORTIONING OF THE APPROPRIATION ON A SUPPLEMENTAL OR DEFICIENCY BASIS?

THE GENERAL RULE IS THAT EXPENDITURES ARE PROPERLY CHARGEABLE TO THE APPROPRIATION FOR THE FISCAL YEAR IN WHICH THE LIABILITY THEREFOR WAS INCURRED. THERE CAN BE NO DOUBT BUT THAT WHEN ADMINISTRATIVE ACTION IS TAKEN TO GRANT PAY INCREASES EFFECTIVE ON A SPECIFIED DATE, THERE IS IMPOSED A LEGAL LIABILITY UPON THE GOVERNMENT FOR PAYMENT OF THE ADDITIONAL COMPENSATION. SUCH ACTION IS SUFFICIENT TO CREATE AN OBLIGATION AGAINST THE APPROPRIATION CURRENT AT THE TIME THE LIABILITY IS INCURRED. THE FACT THAT THE APPROPRIATION THEREBY OBLIGATED MAY BE INSUFFICIENT TO DISCHARGE THE OBLIGATION IS IMMATERIAL INSOFAR AS DETERMINING WHEN THE OBLIGATION ARISES AND THE APPROPRIATION PROPERLY CHARGEABLE THEREWITH. SEE 17 COMP. GEN. 664; 18 ID. 363; 31 ID. 608; 38 ID. 81.

APPLYING THE GENERAL RULE HERE, IT MUST BE HELD THAT SINCE THE EFFECTIVE DATE OF PAY INCREASES TO WAGE BOARD EMPLOYEES SERVES TO CREATE A LIABILITY OF THE GOVERNMENT FOR PAYMENT OF THE ADDITIONAL COMPENSATION, THE APPROPRIATION CHARGEABLE THEREWITH IS THE ONE CURRENTLY AVAILABLE FOR PAYMENT OF THE WAGES FOR THE PERIOD TO WHICH THE INCREASES APPLY. THE FIRST QUESTION IS ANSWERED ACCORDINGLY.

REGARDING THE SECOND QUESTION, SECTION 1311 (B) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1955, 31 U.S.C. 200 (B), AS AMENDED BY SECTION 210 (A) OF THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1960, PUBLIC LAW 86- 79, APPROVED JULY 8, 1959, 73 STAT. 167, REQUIRES THE HEAD OF EACH FEDERAL AGENCY, IN CONNECTION WITH THE SUBMISSION OF ALL REQUESTS FOR PROPOSED APPROPRIATIONS TO THE BUREAU OF THE BUDGET, TO REPORT THAT ANY STATEMENT OF AGENCY OBLIGATIONS FURNISHED THEREWITH CONSISTS OF VALID OBLIGATIONS AS DEFINED IN SUBSECTION (A) OF SECTION 1311.

FROM OUR ANSWER TO THE FIRST QUESTION IT IS CLEAR THAT LIABILITIES RESULTING FROM ADMINISTRATIVE ACTION GRANTING PAY INCREASES TO WAGE BOARD EMPLOYEES CONSTITUTE VALID OBLIGATIONS UNDER THE TERMS OF SECTION 1311 (A) OF THE SUPPLEMENTAL APPROPRIATION ACT, 1955, 31 U.S.C. 200 (A), WHICH ARE PROPERLY FOR RECORDING AS SUCH. HENCE, THE FAILURE TO INCLUDE SUCH OBLIGATIONS IN STATEMENTS OF OBLIGATIONS FURNISHED TO THE BUREAU OF THE BUDGET, IN SUPPORT OF REQUESTS FOR PROPOSED APPROPRIATIONS, IRRESPECTIVE OF THE MATTER OF OBTAINING AN APPORTIONMENT OR SUPPLEMENTAL OR DEFICIENCY APPROPRIATION FOR THE PAYMENT OF SUCH OBLIGATIONS, WOULD VIOLATE THE REPORTING REQUIREMENTS OF SAID SECTION 1311 (B), AS AMENDED. SEE SECTION 21 OF BUREAU OF THE BUDGET CIRCULAR NO. A-11, JULY 1959.

WITH REFERENCE TO THE THIRD QUESTION, THE ANTIDEFICIENCY ACT, SECTION 3679, REVISED STATUTES, AS AMENDED, 31 U.S.C. 665 (A), IS IN MATERIAL PART AS FOLLOWS:

NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL MAKE OR AUTHORIZE AN EXPENDITURE FROM OR CREATE OR AUTHORIZE AN OBLIGATION UNDER ANY APPROPRIATION OR FUND IN EXCESS OF THE AMOUNT AVAILABLE THEREIN; NOR SHALL ANY SUCH OFFICER OR EMPLOYEE INVOLVE THE GOVERNMENT IN ANY CONTRACT OR OTHER OBLIGATION, FOR THE PAYMENT OF MONEY FOR ANY PURPOSE, IN ADVANCE OF APPROPRIATIONS MADE FOR SUCH PURPOSE, UNLESS SUCH CONTRACT OR OBLIGATION IS AUTHORIZED BY LAW.

THE OBJECT OF THIS STATUTE WAS TO PREVENT EXECUTIVE OFFICERS FROM INVOLVING THE GOVERNMENT IN EXPENDITURES OR LIABILITIES BEYOND THOSE CONTEMPLATED AND AUTHORIZED BY THE CONGRESS. WHERE THE CONGRESS INTENDS TO AUTHORIZE ADMINISTRATIVE OFFICERS TO INCUR OBLIGATIONS IN EXCESS OF APPROPRIATIONS PREVIOUSLY MADE FOR A PARTICULAR PURPOSE, SUCH AUTHORITY IS GENERALLY GIVEN IN CLEAR AND UNMISTAKABLE TERMS.

SECTION 210 OF THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1958, QUOTED ABOVE, PERMITS THE APPORTIONMENT OF APPROPRIATIONS, BECAUSE OF PAY INCREASES GRANTED TO WAGE BOARD EMPLOYEES, ON A BASIS INDICATING A NEED FOR A SUPPLEMENTAL OR DEFICIENCY APPROPRIATION TO THE EXTENT NECESSARY TO ENABLE PAYMENT OF SUCH PAY INCREASES. THE AUTHORITY OF THIS SECTION WHEN CONSIDERED IN CONJUNCTION WITH THE MANDATORY PROVISIONS OF SECTION 1 OF PUBLIC LAW 85-872, MANIFESTS A CLEAR INTENT OF THE CONGRESS TO SANCTION AN EXCEPTION TO THE ANTIDEFICIENCY STATUTE IN RESPECT OF AUTHORIZING OBLIGATIONS OR EXPENDITURES FOR PAY INCREASES GRANTED TO WAGE BOARD EMPLOYEES IN EXCESS OF THE ANNUAL APPROPRIATIONS MADE FOR THE COMPENSATION OF SUCH EMPLOYEES. SEE 38 COMP. GEN. 93; CF. 38 ID. 501.

ACCORDINGLY, OBLIGATIONS OR EXPENDITURES OF FUNDS DUE TO PAY INCREASES GRANTED TO WAGE BOARD EMPLOYEES IN ACCORDANCE WITH PUBLIC LAW 85-872, WHICH ARE IN EXCESS OF THE APPROPRIATION AVAILABLE AND WHICH ARE INCURRED PRIOR TO OBTAINING AN APPORTIONMENT REQUEST OR SUPPLEMENTAL OR DEFICIENCY APPROPRIATION TO DISCHARGE PAYMENT OF THE ADDITIONAL COMPENSATION MAY, TO THE EXTENT NECESSARY TO PERMIT PAYMENT THEREOF, BE CONSIDERED AS OBLIGATIONS "AUTHORIZED BY LAW" WITHIN THE PURVIEW OF THE ANTIDEFICIENCY STATUTE AND, THEREFORE, NOT IN VIOLATION THEREOF.

CONCERNING THE LAST QUESTION, YOU ARE ADVISED THAT MATTERS CONCERNING THE APPORTIONING OF APPROPRIATIONS, INVOLVING APPLICATION OF SECTION 210 OF THE GENERAL GOVERNMENT MATTERS APPROPRIATION ACT, 1958, APPEAR TO BE PRIMARILY FOR DETERMINATION BY THE BUREAU OF THE BUDGET. SEE 31 U.S.C. 665 (C) AND (D) (2). HOWEVER, IT IS OUR VIEW THAT THE INCLUSION OF AN ESTIMATE FOR ANTICIPATED PAY INCREASES IN DEFICIENCY APPORTIONMENT REQUESTS--- AS DISTINGUISHED FROM "PAY INCREASES AS MAY BE GRANTED"--- DOES NOT COMPLY WITH THE PLAIN TERMS OF SECTION 210 AND, THEREFORE, SUCH ESTIMATES APPEAR INELIGIBLE FOR INCLUSION IN DEFICIENCY APPORTIONMENTS. IN THIS CONNECTION, ALSO SEE INSTRUCTIONS OF THE BUREAU OF THE BUDGET CONTAINED IN CIRCULAR NO. A-34, TRANSMITTAL MEMORANDUM NO. 1, OCTOBER 7, 1957, WITH REFERENCE TO DEFICIENCY APPORTIONMENT REQUESTS UNDER AUTHORITY OF SECTION 210.