B-182119, OCT 15, 1974

B-182119: Oct 15, 1974

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MEMBERS OF BOARD OF ELECTIONS AND ETHICS WILL BE ELIGIBLE TO RECEIVE PAY ON SAME BASIS AS PRIOR TO ACT'S ENACTMENT. " LEGISLATIVE HISTORY - OTHERWISE SILENT ON MATTER - INDICATES DESIRE TO INCREASE PAY OF MEMBERS AND LITERAL INTERPRETATION OF NEW WORDING REQUIRING MEMBERS TO WORK FOR EIGHT HOURS FOR PAY ENTITLEMENT WOULD HAVE OPPOSITE EFFECT. 1974 WAS INTENDED. SECTION 706 OF THE CAMPAIGN REFORM ACT IS ENTITLED "AMENDMENTS TO DISTRICT OF COLUMBIA ELECTION ACT.". SEC. 1-1104) IS AMENDED TO READ AS FOLLOWS: "'(B) EACH MEMBER OF THE BOARD SHALL BE PAID COMPENSATION AT THE RATE OF $100 FOR EACH EIGHT HOUR PERIOD WITH A LIMIT OF $12. IN THE JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE THE FOLLOWING IS STATED: "CHAIRMAN OF THE BOARD OF ELECTIONS "THE HOUSE BILL MADE THE POSITION OF BOARD CHAIRMAN FULL-TIME AND RETAINED THE PRESENT $75 PER DAY REIMBURSEMENT FOR BOARD MEMBERS.

B-182119, OCT 15, 1974

EXCEPT FOR INCREASE IN PAY RATE EFFECTIVE ON ENACTMENT DATE OF DISTRICT OF COLUMBIA CAMPAIGN FINANCE REFORM AND CONFLICT OF INTEREST ACT, PUBLIC LAW 93-376, AUGUST 14, 1974, MEMBERS OF BOARD OF ELECTIONS AND ETHICS WILL BE ELIGIBLE TO RECEIVE PAY ON SAME BASIS AS PRIOR TO ACT'S ENACTMENT, SINCE, DESPITE CHANGE FROM "$75 PER DAY" TO "$100 FOR EACH EIGHT HOUR PERIOD," LEGISLATIVE HISTORY - OTHERWISE SILENT ON MATTER - INDICATES DESIRE TO INCREASE PAY OF MEMBERS AND LITERAL INTERPRETATION OF NEW WORDING REQUIRING MEMBERS TO WORK FOR EIGHT HOURS FOR PAY ENTITLEMENT WOULD HAVE OPPOSITE EFFECT. FORMER CHARIMAN OF DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS AS WELL AS CURRENT BOARD MEMBERS MAY BE COMPENSATED FOR ALL WORK PERFORMED DURING FISCAL YEAR 1974 WITHOUT REGARD TO ANNUAL LIMITATION IMPOSED BY D.C. CODE 1-1104 SINCE SECTION 706(B) OF DISTRICT OF COLUMBIA CAMPAIGN FINANCE REFORM AND CONFLICT OF INTEREST ACT, PUBLIC LAW 93-376, AMENDS THAT SECTION TO PROVIDE THAT "DURING 1974 COMPENSATION SHALL BE PAID WITHOUT REGARD TO SUCH ANNUAL LIMITATION" AND LEGISLATIVE HISTORY INDICATES THAT FISCAL YEAR, RATHER THAN CALENDAR YEAR, 1974 WAS INTENDED.

COMPENSATION FOR MEMBERS OF THE DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS:

THE CHAIRMAN OF THE DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS (ELECTIONS BOARD) HAS REQUESTED OUR OPINION CONCERNING THE PROPER INTERPRETATION OF CERTAIN PROVISIONS OF THE DISTRICT OF COLUMBIA CAMPAIGN FINANCE REFORM AND CONFLICT OF INTEREST ACT (CAMPAIGN REFORM ACT), PUBLIC LAW 93-376, AUGUST 14, 1974, 88 STAT. 446, WHICH RELATE TO THE PAY OF THE MEMBERS OF THE ELECTIONS BOARD.

PRIOR TO THE ENACTMENT OF THE CAMPAIGN REFORM ACT, THE FIRST SENTENCE OF SECTION 4 OF THE DISTRICT OF COLUMBIA ELECTION ACT, AS AMENDED, D.C. CODE 1-1104, READS:

"EACH MEMBER OF THE BOARD SHALL BE PAID COMPENSATION AT THE RATE OF $75 PER DAY WITH A LIMIT OF $11,250 PER ANNUM, WHILE PERFORMING DUTIES UNDER THIS CHAPTER."

SECTION 706 OF THE CAMPAIGN REFORM ACT IS ENTITLED "AMENDMENTS TO DISTRICT OF COLUMBIA ELECTION ACT." SUBSECTION (B) THEREOF STATES:

"THE FIRST SENTENCE OF SUBSECTION (B) OF SECTION 4 OF SUCH ACT (D.C. CODE, SEC. 1-1104) IS AMENDED TO READ AS FOLLOWS:

"'(B) EACH MEMBER OF THE BOARD SHALL BE PAID COMPENSATION AT THE RATE OF $100 FOR EACH EIGHT HOUR PERIOD WITH A LIMIT OF $12,500 PER ANNUM, WHILE PERFORMING DUTIES UNDER THIS ACT, EXCEPT DURING 1974 SUCH COMPENSATION SHALL BE PAID WITHOUT REGARD TO SUCH ANNUAL LIMITATION.'"

THE CHAIRMAN HAS ASKED FOR OUR INTERPRETATION OF THE MEANING OF THE NEW STATUTORY LANGUAGE PROVIDING FOR PAYMENT TO BOARD MEMBERS OF COMPENSATION "AT THE RATE OF $100 FOR EACH EIGHT HOUR PERIOD" AND FOR OUR VIEWS ON THE RETROACTIVITY OF THE PROVISION WHICH PERTAINS TO THE PAYMENT OF COMPENSATION IN 1974.

THE LEGISLATIVE HISTORY OF THE ACT DISCLOSES THE FOLLOWING: SECTION 606(B) OF H.R. 15074, 93D CONG., 2D SESS. (1974) AS PASSED BY THE HOUSE OF REPRESENTATIVES ON JUNE 10, 1974, RETAINED THE PAY RATE OF $75 PER DAY AND THE ANNUAL LIMITATION ON PAY OF $11,250, BUT LIFTED THE ANNUAL LIMITATION FOR 1974.

THE SENATE COMMITTEE ON THE DISTRICT OF COLUMBIA AMENDED THE HOUSE PASSED VERSION OF H.R. 15074. THE COMMITTEE'S REPORT STATES THAT ITS VERSION OF H.R. 15074. THE COMMITTEE'S REPORT STATES THAT ITS VERSION OF THE BILL CONTAINS PROVISIONS WHICH "INCREASE COMPENSATION FOR MEMBERS OF THE BOARD TO $150 PER DAY DURING 1974 WITHOUT REGARD TO ANNUAL LIMITATION." S. REP. NO. 967, 93D CONG., 2D SESS. 6 (1974). THE ACTUAL LANGUAGE RECOMMENDED BY THE COMMITTEE AND ADOPTED IN SENATE PASSAGE OF THE BILL ON JUNE 27, 1974, PROVIDES:

"FOR DUTY PERFORMED AFTER THE DATE OF ENACTMENT OF THIS ACT AND PRIOR TO JANUARY 1, 1975, EACH MEMBER OF THE BOARD, FOR EACH DAY OF DUTY SO PERFORMED, SHALL BE PAID COMPENSATION AT THE RATE OF $150 FOR EACH SUCH DAY. SUCH COMPENSATION SHALL BE PAID WITHOUT REGARD TO ANY ANNUAL LIMITATION."

THE CONFERENCE COMMITTEE RESOLVED THE DIFFERENCES BETWEEN THE HOUSE AND SENATE VERSIONS. IN THE JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE THE FOLLOWING IS STATED:

"CHAIRMAN OF THE BOARD OF ELECTIONS

"THE HOUSE BILL MADE THE POSITION OF BOARD CHAIRMAN FULL-TIME AND RETAINED THE PRESENT $75 PER DAY REIMBURSEMENT FOR BOARD MEMBERS, NOT TO EXCEED $11,250 PER ANNUM.

"THE SENATE AMENDMENT LEFT THE BOARD CHAIRMAN AS A PART-TIME POSITION AND RAISED THE COMPENSATION OF BOARD MEMBERS TO $150 PER DAY WITHOUT ANNUAL LIMITATION.

"THE CONFERENCE SUBSTITUTE LEAVES THE CHAIRMAN AS A PART-TIME POSITION AND RAISES THE PAY OF EACH MEMBER OF THE BOARD TO $100 FOR EACH 8-HOUR PERIOD WORKED, WITH AN ANNUAL LIMITATION OF $12,500." H. REP. NO. 1225, 93D CONG., 2D SESS. 29 (1974).

WHEN THE CONFERENCE REPORT WAS BROUGHT BEFORE THE HOUSE OF REPRESENTATIVES FOR CONSIDERATION, THE FOLLOWING COLLOQUY ON THE MATTER BEFORE US TOOK PLACE BETWEEN CONGRESSMAN H.R. GROSS AND CONGRESSMAN DONALD FRASER, WHO CALLED UP THE CONFERENCE REPORT AND WAS ONE OF THE CONFEREES:

"MR. GROSS. MR. SPEAKER, I HAVE IN HAND A STORY IN THE WASHINGTON STAR OF THIS DATE, AUGUST 1, AND IF THE GENTLEMAN WILL INDULGE ME I WILL READ TWO PARAGRAPHS OF THE STORY:

"'THE FORMER CHAIRMAN OF THE D.C. ELECTIONS BOARD, CHARLES B. FISHER, YESTERDAY RETURNED TO THE CITY GOVERNMENT A $4,950 PAYMENT HE RECEIVED LAST WEEK WHILE THE LEGAL AUTHORITY FOR THE PAYMENT WAS STILL PENDING IN CONGRESS.

"'A BILL NOW IN THE FORM OF A HOUSE-SENATE CONFERENCE COMMITTEE REPORT PASSED THE SENATE LAST WEEK AND WAS SCHEDULED FOR HOUSE FLOOR ACTION TODAY. DISTRICT AND CAPITOL HILL SOURCES SAID YESTERDAY THAT, EVEN UNDER THE TERMS OF THE BILL, THERE IS SOME QUESTION WHETHER THE PAYMENT WOULD BE LEGAL.'

"MY QUESTION TO THE GENTLEMAN FROM MINNESOTA (MR. FRASER) IS ... WHETHER RETROACTIVELY $4,950 CAN BE PAID OUT TO THIS PARTICULAR INDIVIDUAL UNDER THE TERMS OF THIS BILL?

"MR. FRASER. I WILL SAY TO THE GENTLEMAN THAT THE COMMITTEES WERE AWARE THAT DURING THE EARLY PART OF THIS YEAR THERE HAD BEEN AN EXTRAORDINARY AMOUNT OF WORK FOR THE MEMBERS OF THE ELECTION BOARD, AND IT WAS RECOGNIZED THAT THEY WERE WELL IN EXCESS, AT LEAST, SOME OF THEM, OF THE MAXIMUM COMPENSATION PERMITTED. IN OTHER WORDS, THEY HAD BEEN SPENDING A GREAT DEAL OF TIME AND THEY RECEIVED ABSOLUTELY NO COMPENSATION DESPITE THE FACT THAT THEY HAD TO PREPARE FOR THE FIRST TIME FOR A COMPREHENSIVE SET OF ELECTIONS FOR THE DISTRICT OF COLUMBIA. SO THERE WAS INSERTED A PROVISION THAT SAID IN 1974 - AND HERE I WANT TO ADD THAT OUR UNDERSTANDING IS THAT THIS IS FISCAL YEAR 1974, IN OTHER WORDS, THIS SO- CALLED RETROACTIVE PROVISION EXTENDED ONLY UP TO JUNE 30, WHICH WE ARE ALREADY NOW PAST - THAT WOULD IN EFFECT PERMIT THE BOARD OF ELECTION MEMBERS WHO WORKED ADDITIONAL HOURS BEYOND THE MAXIMUM IN GETTING READY FOR THESE ELECTIONS, TO RECEIVE ADDITIONAL COMPENSATION.

"THERE IS A LIMITATION THAT IS OPERATIVE BEGINNING JULY 1 FOR FISCAL YEAR 1975 - A LIMITATION OF $12,500, WHEREAS THE LIMITATION WHICH WAS REMOVED FOR THIS PAST YEAR WAS $11,250.

"WE ARE HOPEFUL THAT THE BULK OF THE WORK HAS BEEN DONE, BUT IF IT SHOULD TURN OUT THAT DURING THE CURRENT YEAR, THE CURRENT FISCAL YEAR, THERE ARE SUCH ADDED RESPONSIBILITIES THAT THIS LIMITATION IS UNREALISTIC, AS OF JANUARY THE CITY COUNCIL WILL BE IN A POSITION TO MAKE SOME KIND OF ADJUSTMENT.

"SO THE GENTLEMAN IS RIGHT, THAT THERE IS IN A SENSE A PROVISION FOR RETROACTIVE PAY, BUT IT IS FOR SERVICES PERFORMED, AND IT IS A RECOGNITION THAT AS IN NO OTHER FISCAL YEAR THEY HAD TO GEAR UP FOR THE HOME RULE REFERENDUM ELECTION ON MAY 7 AND THE GENERAL AND PRIMARY ELECTIONS THAT ARE NOW UNDERWAY." 120 CONG. REC. H7504 (DAILY ED. AUGUST 1, 1974).

MR. FRASER ALSO INSERTED IN THE CONGRESSIONAL RECORD A SECTION-BY SECTION EXPLANATION OF THE CONFERENCE REPORT, WHICH HE STATED WAS APPROVED BY THE CONFERENCE COMMITTEE WHICH STATED THAT "THERE IS NO ANNUAL LIMITATION FOR FISCAL YEAR 1974." ID.

THE ARTICLE IN THE WASHINGTON STAR-NEWS OF AUGUST 1, 1974, TO WHICH CONGRESSMAN GROSS REFERS, INDICATES THAT THE FORMER CHAIRMAN OF THE ELECTIONS BOARD HAD COLLECTED HIS STATUTORY LIMIT OF $11,250 BY FEBRUARY 1, 1974, AND WORKED WITHOUT PAY THEREAFTER UNTIL HIS RESIGNATION ON MAY 24, 1974. THE ARTICLE ALSO INDICATES THAT THE CHIEF COUNSEL OF THE SENATE DISTRICT COMMITTEE STATED TO A REPORTER THAT THE LIFTING OF THE MAXIMUM LIMITATION WAS INTENDED PRIMARILY TO COMPENSATE THE MEMBERS FOR THE VOLUME OF WORK EXPECTED TO BE CONNECTED WITH THE SEPTEMBER PARTY PRIMARY ELECTIONS AND THE GENERAL ELECTION IN NOVEMBER.

ON THE MATTER OF THE RATE OF PAY, THE HOUSE VOTED TO RETAIN THE $75 PER DAY PAYMENT WHILE THE SENATE HAD VOTED TO INCREASE THE DAILY PAY TO $150 EFFECTIVE FOR THE LAST SEVERAL MONTHS OF CALENDAR YEAR 1974. THE CONFERENCE COMMITTEE COMPROMISED ON "$100 FOR EACH EIGHT HOUR PERIOD." THIS CHANGE IN RATE OF PAY FROM "$75 PER DAY" TO "$100 FOR EACH EIGHT HOUR PERIOD" BECAME EFFECTIVE ON AUGUST 14, THE DATE OF ENACTMENT OF THE CAMPAIGN REFORM ACT.

INITIALLY, THE DISTINCTION, IF ANY, BETWEEN BEING PAID ON A "PER DAY" BASIS AND ON AN "EACH EIGHT HOUR PERIOD" BASIS MUST BE DETERMINED. NOTED ABOVE, THE LAW PRIOR TO THE ENACTMENT OF THE SUBJECT ACT AND BOTH THE SENATE AND HOUSE PASSED VERSIONS OF THIS SECTION MADE PAYMENT AT THE SPECIFIED RATE "PER DAY." HOWEVER, THE REVISION PROPOSED BY THE CONFERENCE COMMITTEE, WITHOUT COMMENT OR EXPLANATION, ESTABLISHED PAYMENT AT A RATE OF $100 FOR "EACH EIGHT HOUR PERIOD." ACCORDINGLY, THE INTENT BEHIND THIS CHANGE IN WORDING IS UNCLEAR.

LITERALLY, THE NEW PAY RATE MIGHT BE INTERPRETED TO REQUIRE BOARD MEMBERS TO WORK FOR 8 HOURS BEFORE BEING ELIGIBLE FOR PAY. SUCH A LITERAL INTERPRETATION WOULD RESULT, IN EFFECT, IN AN ACTUAL PAY RATE OF $12.50 PER HOUR. HOWEVER, PRIOR TO THE ENACTMENT OF THE CAMPAIGN REFORM ACT, MEMBERS OF THE BOARD, LIKE APPOINTED (PART-TIME) MEMBERS OF MANY OTHER GOVERNMENT BOARDS AND COMMISSIONS, WERE PAID THEIR DAILY ENTITLEMENT FOR EACH DAY ON WHICH THEY PERFORMED REQUIRED AND NECESSARY SERVICES; THEY WERE NOT REQUIRED TO WORK FOR A FULL 8 HOURS BEFORE BEING ENTITLED TO A DAY'S PAY. THUS, ATTENDANCE AT A BOARD MEETING ENTITLED A MEMBER TO PAY "AT A RATE OF $75 PER DAY" OR, AS WE UNDERSTAND THE BOARD'S TRADITIONAL PRACTICE A FULL DAY'S PAY FOR EACH DAY ON WHICH WORK WAS PERFORMED. INSOFAR AS WE ARE AWARE, NO ONE HAS OBJECTED TO THIS TRADITIONAL PRACTICE AND THE CONGRESS, WE HAVE BEEN INFORMALLY ADVISED, WAS AWARE OF IT WHEN IT ENACTED THE CAMPAIGN REFORM ACT. HENCE, APPLYING THIS LITERAL INTERPRETATION (I.E., PAY AT $12.50 PER HOUR) TO THESE BOARD MEMBERS WOULD - ACCORDING TO INFORMAL ADVICE GIVEN TO US BY THE BOARD - PRESUMABLY RESULT IN AN ACTUAL LOSS OF PAY.

IT SEEMS CLEAR, HOWEVER, THAT THE CONGRESS, RECOGNIZING THE HARD WORK WHICH HAD ALREADY BEEN PUT IN BY THE ELECTIONS BOARD AND ANTICIPATING FURTHER "EXTRAORDINARY" EXPENDITURES OF TIME BY ITS MEMBERS, WISHED TO ASSURE THAT BOARD MEMBERS WERE ADEQUATELY COMPENSATED. PARTIALLY AS A RESULT OF THIS DESIRE, BOTH THE SENATE AND THE HOUSE VOTED TO LIFT THE MAXIMUM ANNUAL PAY LIMITATION FOR 1974.

IN REVIEWING THE STATUTE AND ITS LEGISLATIVE HISTORY WE ARE PARTICULARLY IMPRESSED BY TWO FACTS: FIRST, BOTH HOUSES OF CONGRESS WISHED TO INCREASE THE PAY OF THE BOARD MEMBERS AND, SECOND, THE CHANGE IN WORDING FROM "PER DAY" TO "FOR EACH EIGHT HOUR PERIOD" WAS MADE BY THE CONFERENCE COMMITTEE WITHOUT COMMENT OR EXPLANATION OF ANY SORT. FROM THESE WE BELIEVE IT IS REASONABLE TO CONCLUDE THAT NO SUBSTANTIVE CHANGE WAS SIGNALED OR INTENDED BY THE CHANGE IN STATUTORY LANGUAGE. THAT IS, WHILE WE RECOGNIZE THAT SUCH AN INTERPRETATION GIVES NO EFFECT TO THE CHANGE IN WORDING WHICH EMERGED FROM THE CONFERENCE COMMITTEE, WE FEEL THE CONGRESS EXPECTED THAT THE BOARD MEMBERS WOULD BE ENTITLED TO A DAY'S PAY UNDER THE SUBJECT AMENDMENT IN THE SAME MANNER IN WHICH THEY BECAME ENTITLED PRIOR TO THE AMENDMENT'S ENACTMENT.

WE HAVE ALSO BEEN ASKED TO DETERMINE THE EFFECT OF SECTION 706(B) OF THE CAMPAIGN REFORM ACT AMENDING D.C. CODE 1-1104, IN PART, TO PROVIDE FOR AN INCREASE IN THE MAXIMUM COMPENSATION PAYABLE TO BOARD MEMBERS FROM $11,250 TO $12,500 ANNUALLY, EFFECTIVE ON THE DATE OF ENACTMENT OF THAT ACT (I.E., AUGUST 14, 1974), AND PROVIDING THAT "EXCEPT DURING 1974 SUCH COMPENSATION SHALL BE PAID WITHOUT REGARD TO SUCH ANNUAL LIMITATION."

AT ONE TIME THE ELECTIONS BOARD APPLIED THE SUBJECT ANNUAL LIMITATION ON A CALENDAR YEAR BASIS BUT RECENTLY CHANGED TO A FISCAL YEAR CALCULATION TO BRING IT INTO LINE WITH THE GENERAL ACCOUNTING PRACTICES OF THE DISTRICT OF COLUMBIA. BASED ON THE FISCAL YEAR VIEW, THE SALARY OF THE FORMER BOARD CHAIRMAN REACHED THE $11,250 LIMITATION IN JANUARY 1974 AND THAT OF THE NEW CHAIRMAN, IN APRIL 1974. NEITHER HAS BEEN PAID FOR SERVICES RENDERED THEREAFTER.

THE STATUTE DOES NOT INDICATE WHETHER THE LIFTING OF THE MAXIMUM SALARY LIMITATION IS TO APPLY TO FISCAL YEAR 1974 OR CALENDAR YEAR 1974. WHILE FROM A LITERAL READING OF THE STATUTORY PHRASEOLOGY ITSELF ("DURING 1974") IT WOULD BE REASONABLE TO CONCLUDE THAT A CALENDAR YEAR WAS INTENDED, AN EXAMINATION OF THE LEGISLATIVE HISTORY THEREOF (THE SECTION-BY-SECTION ANALYSIS OF THE BILL WHICH CONGRESSMAN FRASER STATES WAS APPROVED BY THE CONFERENCE COMMITTEE AND THE DISCUSSION QUOTED ABOVE IN WHICH CONGRESSMAN FRASER EXPLAINS TO CONGRESSMAN GROSS THE INTENT OF SECTION 706(B)) CLEARLY DISCLOSES THAT A FISCAL YEAR LIMITATION WAS INTENDED BY THE COMMITTEE OF CONFERENCE. THERE BEING NO DISSENT FROM THIS POSITION IN THE HOUSE FLOOR CONSIDERATION OF THE CONFERENCE REPORT, THIS VIEW PROPERLY MAY BE CONSIDERED AS REFLECTING THE INTENT OF THE CONGRESS IN ENACTING SECTION 706(B). ACCORDINGLY, FORMER AND PRESENT MEMBERS OF THE ELECTION BOARD WHO HAVE NOT BEEN COMPENSATED FOR WORK ACTUALLY PERFORMED DURING FISCAL YEAR 1974 AS A RESULT OF HAVING REACHED THE THEN APPLICABLE MAXIMUM ANNUAL SALARY LIMITATION OF $11,250 MAY BE PAID SUCH AMOUNTS AS THEY MIGHT BE ENTITLED TO WITHOUT REGARD TO SUCH CEILING.