B-181229, NOV 14, 1974, 54 COMP GEN 393

B-181229, NOV 14, 1974, 54 COMP GEN 393

COMPENSATION - WAIVERS - SUBSEQUENT SALARY CLAIMS - APPROPRIATION AVAILABILITY CLAIM OF FORMER COMMISSIONER OF COMMISSION ON MARIHUANA AND DRUG ABUSE FOR COMPENSATION PREVIOUSLY WAIVED BY HIM IS FOR PAYMENT IF OTHERWISE PROPER SINCE AN EMPLOYEE MAY NOT BE ESTOPPED FROM CLAIMING AND RECEIVING SUCH COMPENSATION WHEN HIS RIGHT THERETO IS FIXED BY OR PURSUANT TO LAW. SHOULD ADDITIONAL CLAIMS FROM OTHER COMMISSIONERS BE SUBMITTED, THEY MAY ALSO BE PAID. HOWEVER, SHOULD NO BALANCE REMAIN IN THE APPLICABLE APPROPRIATION ACCOUNT, A DEFICIENCY APPROPRIATION WOULD BE NECESSARY BEFORE PAYMENT COULD BE MADE.

IN THE MATTER OF WAIVER OF COMPENSATION, GENERAL SERVICES ADMINISTRATION, NOVEMBER 14, 1974:

THE GENERAL SERVICES ADMINISTRATION (GSA) AS SUCCESSOR OF THE COMMISSION ON MARIHUANA AND DRUG ABUSE FOR PURPOSES OF SETTLING ITS OUTSTANDING OBLIGATIONS ASKS VARIOUS QUESTIONS ON THE EFFECT OF WAIVERS OF COMPENSATION BY THE FORMER MEMBERS OF THE COMMISSION.

GSA STATES THAT THE COMMISSION MEMBERS FROM PRIVATE LIFE - PROVIDED BY SECTION 601(A)(3) OF PUBLIC LAW 91-513, APPROVED OCTOBER 27, 1970, 84 STAT. 1236 (21 U.S.C. 801 NOTE) - AT AN INITIAL MEETING UNANIMOUSLY AGREED, AT THE REQUEST OF THE CHAIRMAN, TO WAIVE PAYMENT OF THEIR STATUTORY ENTITLEMENT OF $100 PER DIEM WHILE ENGAGED IN COMMISSION BUSINESS. ACCORDINGLY, IT APPEARS THAT DURING THE 2 YEARS OF THE COMMISSION'S EXISTENCE NO SUCH PAYMENTS WERE MADE TO ANY OF THE NINE COMMISSIONERS. THE COMMISSION OFFICIALLY EXPIRED ON MAY 22, 1973, AND GSA, BY REASON OF A CONTRACTUAL AGREEMENT TO PROVIDE ADMINISTRATIVE SERVICE TO THE COMMISSION, BECAME ITS SUCCESSOR TO SETTLE OUTSTANDING OBLIGATIONS.

ON MARCH 4, 1974, GSA RECEIVED A CLAIM FROM ONE OF THE FORMER COMMISSIONERS FOR PAYMENT OF $10,700 FOR 107 DAYS OF FOREIGN TRAVEL ON COMMISSION BUSINESS AT $100 PER DIEM. GSA SUBMITS FOR THE DECISION THE FOLLOWING QUESTIONS:

(1) WAS THE WAIVER OF STATUTORY PER DIEM ENTITLEMENTS BY THE MEMBERS VALID?

(2) IF NOT, IS GSA AUTHORIZED TO PAY THIS CLAIM OF $10,700 SINCE THE COMMISSION HAS EXPIRED AND ALMOST A YEAR HAS ELAPSED BETWEEN ITS EXPIRATION AND THE RECEIPT OF THE REQUEST FOR PER DIEM PAYMENT?

(3) IF GSA MUST PAY THIS CLAIMANT, WHAT IS OUR OBLIGATION TO THE REMAINING EIGHT FORMER COMMISSIONERS FROM PRIVATE LIFE BEARING IN MIND THAT APPROXIMATELY $200,000 REMAINS FROM THE COMMISSION'S FINAL APPROPRIATION AND THE INITIAL CLAIMANT ONLY REQUESTED PAYMENT FOR HIS PER DIEM WHILE OUTSIDE THE UNITED STATES. THE AMOUNTS THAT MAY BE CLAIMED BY THE REMAINING COMMISSIONERS ARE INDETERMINABLE, AND POSSIBLY COULD EXCEED THE FUNDS REMAINING.

AS GSA POINTS OUT, AUTHORITY FOR THE COMPENSATION IS FOUND IN THE ENABLING STATUTE FOR THE COMMISSION AT SECTION 601(B)(2) OF PUBLIC LAW 91- 513 WHICH IN PERTINENT PART STATES:

*** MEMBERS OF THE COMMISSION FROM PRIVATE LIFE SHALL RECEIVE $100 PER DIEM WHILE ENGAGED IN THE ACTUAL PERFORMANCE OF THE DUTIES VESTED IN THE COMMISSION, PLUS REIMBURSEMENT FOR TRAVEL, SUBSISTENCE, AND OTHER NECESSARY EXPENSES INCURRED IN THE PERFORMANCE OF SUCH DUTIES.

IN 26 COMP. GEN. 956 (1947) IT WAS HELD AT PAGE 961, ON THE BASIS OF COURT CASES CITED THEREIN, THAT -

*** IN THE ABSENCE OF STATUTORY AUTHORITY THEREFOR, THERE ARE NO CIRCUMSTANCES UNDER WHICH AN ORIGINAL APPOINTEE TO A POSITION IN THE FEDERAL SERVICE PROPERLY MAY LEGALLY WAIVE HIS ORDINARY RIGHT TO THE COMPENSATION FIXED BY OR PURSUANT TO LAW FOR THE POSITION AND THEREAFTER BE ESTOPPED FROM CLAIMING AND RECEIVING THE COMPENSATION PREVIOUSLY WAIVED.

THE HOLDINGS IN 14 COMP. GEN. 193, 195 (1934); 22 ID. 926 (1943); 23 ID. 109, 112 (1943); 23 ID. 216, 219 (1943); AND 32 ID. 236 (1952) ARE TO THE SAME EFFECT. IN THE LATTER CASE, THE EMPLOYEES INVOLVED WERE ALSO MEMBERS OF A STATUTORILY CREATED BOARD - THE WAGE STABILIZATION BOARD - WHOSE COMPENSATION WAS FIXED BY THE DEFENSE PRODUCTION ACT AMENDMENT OF 1952, 50 U.S.C. APP. 2103 NOTE.

ACCORDINGLY, QUESTION 1 IS ANSWERED IN THE NEGATIVE. IF THE CLAIM IS OTHERWISE PROPER, QUESTION 2 IS ANSWERED IN THE AFFIRMATIVE. WE ASSUME HOWEVER, IN VIEW OF THE LENGTH OF TIME THAT HAS ELAPSED SINCE THE DUTIES WERE PERFORMED AND THE EXPIRATION OF THE COMMISSION ITSELF, THAT THE GSA WILL PAY THIS CLAIM ONLY IF IT IS COMPLETELY SATISFIED, ON THE BASIS OF THE DOCUMENTS AND OTHER SUPPORTING DATA SUBMITTED TO IT, THAT THE CLAIMANT WAS ENGAGED IN THE ACTUAL PERFORMANCE OF COMMISSION DUTIES FOR EACH OF THE 107 DAYS FOR WHICH HE CLAIMS PER DIEM. WITH RESPECT TO QUESTION 3, CLAIMS FROM THE REMAINING EIGHT FORMER COMMISSIONERS WHICH ARE OTHERWISE PROPER AND ADEQUATELY SUPPORTED WOULD BE FOR PAYMENT WITH SUBMISSION HERE IN CASE OF DOUBT. HOWEVER, SHOULD THE APPLICABLE APPROPRIATION BALANCE BE EXHAUSTED, A DEFICIENCY APPROPRIATION WOULD BE NECESSARY PRIOR TO PAYMENT OF ADDITIONAL CLAIMS. SEE B-171786, MARCH 2, 1971.