B-167560, FEB. 18, 1970

B-167560: Feb 18, 1970

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A SECRET SERVICE AGENT WHO WOULD HAVE BEEN ENTITLED TO 25 PERCENT PREMIUM PAY IF HE HAD NOT TRANSFERRED TO ANOTHER AGENCY BY REASON OF HAVING MET 3- MONTH QUALIFYING PERIOD FOR UNCONTROLLABLE OVERTIME MAY NOT BE PAID ADDITIONAL AMOUNT. PREMIUM COMPENSATION RECEIVED IN ADDITION TO REGULAR COMPENSATION UP TO TIME OF TRANSFER WAS PAYMENT FOR SERVICES TO THAT DATE. ALLEN: REFERENCE IS MADE TO YOUR LETTER OF JULY 2. YOU WERE RECEIVING PREMIUM COMPENSATION FOR ADMINISTRATIVELY UNCONTROLLABLE OVERTIME WORKED AT THE RATE OF 25 PERCENT PURSUANT TO SECRET SERVICE REGULATIONS AND 5 U.S.C. 5545(C)(2). WHO ARE OTHERWISE IN AN ELIGIBLE CATEGORY. IS DETERMINED BY THE AMOUNT OF UNCONTROLLABLE OVERTIME WORKED OVER A PERIOD OF THREE MONTHS.

B-167560, FEB. 18, 1970

CIVIL PAY--OVERTIME COMPENSATION DECISION SUSTAINING DISALLOWANCE OF CLAIM FOR ADDITIONAL OVERTIME INCIDENT TO EMPLOYMENT AS SPECIAL AGENT IN SECRET SERVICE. A SECRET SERVICE AGENT WHO WOULD HAVE BEEN ENTITLED TO 25 PERCENT PREMIUM PAY IF HE HAD NOT TRANSFERRED TO ANOTHER AGENCY BY REASON OF HAVING MET 3- MONTH QUALIFYING PERIOD FOR UNCONTROLLABLE OVERTIME MAY NOT BE PAID ADDITIONAL AMOUNT. PREMIUM COMPENSATION RECEIVED IN ADDITION TO REGULAR COMPENSATION UP TO TIME OF TRANSFER WAS PAYMENT FOR SERVICES TO THAT DATE. ADDITIONAL AMOUNT MAY NOT BE ALLOWED.

TO MR. MICHAEL R. ALLEN:

REFERENCE IS MADE TO YOUR LETTER OF JULY 2, 1969, REQUESTING REVIEW OF THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM FOR ADDITIONAL OVERTIME COMPENSATION INCIDENT TO YOUR EMPLOYMENT AS A SPECIAL AGENT IN THE UNITED STATES SECRET SERVICE.

THE RECORD SHOWS THAT PRIOR TO YOUR TRANSFER TO THE GENERAL SERVICES ADMINISTRATION ON JANUARY 4, 1969, YOU WERE RECEIVING PREMIUM COMPENSATION FOR ADMINISTRATIVELY UNCONTROLLABLE OVERTIME WORKED AT THE RATE OF 25 PERCENT PURSUANT TO SECRET SERVICE REGULATIONS AND 5 U.S.C. 5545(C)(2).

IN ACCORDANCE WITH SECRET SERVICE REGULATIONS, THE ENTITLEMENT OF EMPLOYEES TO PREMIUM COMPENSATION, WHO ARE OTHERWISE IN AN ELIGIBLE CATEGORY, IS DETERMINED BY THE AMOUNT OF UNCONTROLLABLE OVERTIME WORKED OVER A PERIOD OF THREE MONTHS. THIS IS A QUALIFYING PERIOD, WHICH INDICATES WHETHER OR NOT AN EMPLOYEE WILL BE ON A PREMIUM PAY STATUS DURING THE SUCCEEDING THREE MONTHS AS WELL AS THE PERCENTAGE OF PREMIUM PAY TO WHICH HE WILL BE ENTITLED WITHIN THE 10 TO 25 PERCENT RANGE ESTABLISHED BY 5 U.S.C. 5545(C)(2).

IN THAT CONNECTION, THE UNITED STATES SECRET SERVICE STATES IN A LETTER DATED MAY 27, 1969, AS FOLLOWS:

"THE PURPOSE OF ESTABLISHING THIS TYPE OF PROCEDURE WAS TO SERVE AS A GENERAL ADMINISTRATIVE AID IN DETERMINING WHEN EMPLOYEES WOULD BE ENTITLED TO PREMIUM COMPENSATION FOR ADMINISTRATIVELY UNCONTROLLABLE OVERTIME WORKED. THE PERFORMANCE OF AN EMPLOYEE AS TO THE AMOUNT OF OVERTIME WORKED IN A QUALIFYING PERIOD IS THE FACTOR USED TO DETERMINE IF AN EMPLOYEE WILL BE COMPENSATED IN THE PAYMENT PERIOD, ASSUMING THE OVERTIME PERFORMED IS OF A CONTINUING NATURE. UNDERTHIS PROCEDURE, AN EMPLOYEE IS COMPENSATED CURRENTLY FOR ADMINISTRATIVELY UNCONTROLLABLE OVERTIME WORKED CURRENTLY. THE EMPLOYEE IS NOT COMPENSATED DURING THE CURRENT PAYMENT PERIOD FOR OVERTIME WORKED DURING THE QUALIFYING PERIOD."

YOU SAY THAT THIS PROCEDURE IS ERRONEOUS AND CONTRARY TO LAW AND THAT DURING THE PERIOD PRECEDING YOUR TRANSFER TO THE GENERAL SERVICES ADMINISTRATION YOU WERE COMPENSATED FOR UNCONTROLLABLE OVERTIME WORKED DURING THE QUALIFYING PERIOD ENDING AUGUST 31, 1968. SINCE YOU WORKED A TOTAL OF 173 HOURS DURING THE PERIOD IMMEDIATELY PRIOR TO YOUR TRANSFER YOUR VIEW IS THAT YOU HAVE NOT RECEIVED ANY COMPENSATION FOR THAT OVERTIME AND BELIEVE THAT YOU ARE ENTITLED TO ADDITIONAL COMPENSATION OF $581.10. YOU FILED YOUR CLAIM WITH THIS OFFICE IN THAT AMOUNT.

IN THE LETTER OF MAY 27, 1969, THE SECRET SERVICE, AFTER REVIEWING YOUR UNCONTROLLABLE OVERTIME RECORD, STATES THAT YOU WOULD HAVE BEEN ENTITLED TO THE 25 PERCENT PREMIUM PAY FOR THE PAY PERIODS COMMENCING JANUARY 12, 1969, AND ENDING APRIL 5, 1969, HAD YOU CONTINUED IN THIS POSITION FOR SUCH PERIODS.

AS FOR YOUR CONTENTION THAT YOU HAVE NOT RECEIVED COMPENSATION FOR THE OVERTIME WORKED DURING THE LAST QUARTER OF YOUR EMPLOYMENT, OUR INQUIRY WAS ANSWERED BY THE SECRET SERVICE IN A LETTER DATED DECEMBER 4, 1969, WHEREIN IT IS STATED, AMONG OTHER THINGS, THAT "* * * MR. ALLEN DID RECEIVE COMPENSATION FOR ALL IRREGULAR OVERTIME WORKED FOR THE LAST FULL QUARTER OF EMPLOYMENT AND THEREAFTER TO THE TIME OF HIS TRANSFER."

IN ADDITION TO THE ESTABLISHED PROCEDURE FOR COMPENSATING THEIR SPECIAL AGENTS CURRENTLY FOR ADMINISTRATIVELY UNCONTROLLABLE OVERTIME WORKED CURRENTLY, THE PERTINENT SECRET SERVICE REGULATION PROVIDES THAT:

"PAYMENTS UNDER P. L. 90-206 WILL TERMINATE DUE TO DEATH OF EMPLOYEE, TRANSFER TO ANOTHER GOVERNMENT AGENCY, RETIREMENT OR RESIGNATION EFFECTIVE THE DATE OF SEPARATION."

THUS, PREMIUM PAY IS BASED UPON AN ADMINISTRATIVE DETERMINATION OF A "REASONABLE EXPECTATION" THAT AN EMPLOYEE WILL PERFORM SOME UNCONTROLLABLE OVERTIME DURING THE 3-MONTH PERIOD FOLLOWING THAT DETERMINATION AND THE PREVIOUS 3-MONTH PERIOD IS USED ONLY AS A GUIDELINE FOR HIS ENTITLEMENT. WHEN THAT "REASONABLE EXPECTATION" CEASES TO EXIST DUE TO TRANSFER, DEATH, EXTENDED LEAVE WITH PAY OR FOR OTHER REASONS, THE PREMIUM PAY CEASES ALSO. COMPARE OUR DECISION IN 43 COMP. GEN. 376 (1963).

OUR VIEW IS THAT THE PREMIUM COMPENSATION WHICH YOU RECEIVED IN ADDITION TO YOUR REGULAR SALARY UP TO THE TIME OF YOUR TRANSFER REPRESENTED PREMIUM COMPENSATION FOR SERVICES TO THAT DATE AND THAT CONSEQUENTLY YOU ARE NOT ENTITLED TO ANY ADDITIONAL COMPENSATION FOR THE LAST QUARTER OF YOUR SERVICE.

IN YOUR LETTER DATED JULY 2, 1969, YOU CLAIM COMPENSATION FOR PREMIUM PAY OR IN THE ALTERNATIVE FOR OVERTIME PAY. IN OUR SETTLEMENT OF JUNE 6, 1969, WE STATED THAT UNDER SECTION 550.163 (B) OF THE FEDERAL PERSONNEL MANUAL, AN EMPLOYEE RECEIVING PREMIUM PAY ON AN ANNUAL BASIS MAY NOT RECEIVE ANY OTHER TYPE OF PREMIUM PAY FOR HIS OVERTIME.

SINCE 5 U.S.C. 5545(C)(2) DOES NOT PRECLUDE AN EMPLOYEE RECEIVING PREMIUM PAY ON AN ANNUAL BASIS FROM RECEIVING COMPENSATION FOR REGULARLY SCHEDULED OVERTIME DUTY WE ASKED THE SECRET SERVICE IF, DURING THE PRESIDENTIAL CAMPAIGN OF 1968, YOU HAD PERFORMED ANY SCHEDULED OVERTIME DUTY. IN THEIR LETTER OF DECEMBER 4, 1969, THE SECRET SERVICE STATES, AMONG OTHER THINGS, THAT: "* * * MR. ALLEN DID NOT, ACCORDING TO THE RECORDS, PERFORM ANY 'REGULARLY SCHEDULED OVERTIME' IN ADDITION TO THE IRREGULAR OVERTIME PERFORMED DURING THE LAST FULL QUARTER OF HIS EMPLOYMENT."

UNDER THESE CIRCUMSTANCES AND FOR THE REASONS STATED ABOVE YOUR CLAIM FOR $581.10, ALLEGEDLY DUE YOU AS PREMIUM COMPENSATION OR OVERTIME PAY EARNED DURING THE LAST 3-MONTH PAY PERIOD OR THE PRECEDING 3-MONTH QUALIFYING PERIOD OF YOUR EMPLOYMENT WITH THE SECRET SERVICE, MAY NOT BE ALLOWED.

WE HAVE NOT CONSIDERED THE POSSIBILITY OF ANY VALID CLAIM, AND THE RECORD IS INCOMPLETE IN THAT RESPECT, WHICH YOU MAY HAVE FOR PREMIUM COMPENSATION FOR NORMAL OVERTIME PAY FOR EXCESS HOURS WORKED DURING THE FIRST FULL QUALIFYING QUARTER AFTER YOU WERE EMPLOYED BY THE SECRET SERVICE.

IF YOU DESIRE TO MAKE CLAIM FOR THAT PERIOD WE WILL BE GLAD TO FURTHER CONSIDER THE MATTER. HOWEVER, ANY SUCH CLAIM SHOULD BE SUBMITTED TO OUR CLAIMS DIVISION THROUGH THE SECRET SERVICE IN ORDER THAT A REPORT THEREON MAY BE TRANSMITTED HERE WITH YOUR CLAIM.