B-202454.OM, MAY 19, 1981

B-202454.OM, MAY 19, 1981

SUBJECT: IMPLEMENTATION OF PROPOSED SECURITY ACCESS CONTROL SYSTEM - B-202454 O.M.

DIRECTOR, OFFICE OF SAFETY AND SECURITY:

YOU HAVE INFORMALLY REQUESTED OUR VIEWS AS TO WHETHER THERE ARE ANY LEGAL OBJECTIONS TO THE IMPLEMENTATION OF THE PROPOSED SECURITY ACCESS CONTROL SYSTEM (SACS) AND TO SUPPLYING INFORMATION, COLLECTED BY SACS, TO VARIOUS OFFICIALS FOR PURPOSES OF ASSISTING IN TIMEKEEPING FOR OVERTIME CLAIMS DURING SECURITY HOURS, PARTICULARLY THE WEEKENDS. THIS USE IS PROHIBITED BY 5 U.S.C. SEC. 6106 (1976).

SACS ESSENTIALLY IS A MECHANICALLY OPERATED SYSTEM WHICH IDENTIFIES, BY THE USE OF A CARD PLACED IN A MACHINE, AN INDIVIDUAL AND HIS ARRIVAL AND DEPARTURE TIMES FROM THE GAO BUILDING. IT WILL OPERATE, AT LEAST INITIALLY, AFTER NORMAL WORKING HOURS (6 P.M. TO 6 A.M.) AND ON WEEKENDS. IT WILL REPLACE THE METHOD NOW USED, WHEREBY AN INDIVIDUAL SIGNS IN AND OUT ON A REGISTER. SACS IS BASICALLY A SECURITY SYSTEM WHICH WILL ALLOW ONLY AUTHORIZED PERSONNEL TO ENTER THE BUILDING. HOWEVER, THE INFORMATION IT COLLECTS CAN BE UTILIZED BY VARIOUS PERSONS SUCH AS SECURITY PERSONNEL IN THEIR INVESTIGATION OF CRIMES IN THE BUILDING AND SUPERVISORS WISHING TO VERIFY EMPLOYEES' CLAIMS FOR OVERTIME.

OSS BELIEVES THAT 5 U.S.C. SEC. 6106 (1976) IS A POSSIBLE BAR FOR IMPLEMENTING SACS. THAT STATUTORY PROVISION PROVIDES:

"A RECORDING CLOCK MAY NOT BE USED TO RECORD TIME OF AN EMPLOYEE OF AN EXECUTIVE DEPARTMENT IN THE DISTRICT OF COLUMBIA."

FIRST, WE NEED DETERMINE IF THIS PROVISION APPLIES TO GAO. THE STATUTE, BY ITS TERMS ONLY APPLIES TO "EXECUTIVE DEPARTMENTS." GAO IS NOT INCLUDED IN THE TITLE 5 DEFINITION OF THAT TERM. SEE 5 U.S.C. SEC. 101 (SUPP. III 1979). HOWEVER, UNDER 31 U.S.C. SEC. 46 (1976),

"ALL LAWS RELATING GENERALLY TO THE ADMINISTRATION OF THE DEPARTMENTS AND ESTABLISHMENTS SHALL, SO FAR AS APPLICABLE, GOVERN THE GENERAL ACCOUNTING OFFICE. ***"

SINCE 5 U.S.C. SEC. 6106 IS AN ADMINISTRATIVE-TYPE PROVISION, IT APPLIES TO GAO.

THE SECOND ISSUE IS WHETHER SACS IS A "RECORDING CLOCK." THE LEGISLATIVE HISTORY OF THIS PROVISION, WHICH IS DERIVED FROM AN 1899 STATUTE, IS BRIEF AND SOMEWHAT VAGUE AS TO CONGRESS' INTENT IN PASSING THE STATUTE. SEE 32 CONG.REC. 455 (1899). HOWEVER, IT WOULD APPEAR CONGRESS USED THE TERM "RECORDING CLOCK" IN ITS NORMAL SENSE, THAT IS, A TIME CLOCK, WHICH IS DEFINED IN WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1966) AS A "CLOCK WITH A DEVICE TO RECORD THE TIMES OF ARRIVAL AND DEPARTURE OF EMPLOYEES OR THE TIME AT WHICH A JOB IS BEGUN OR COMPLETED."

AS A SECURITY SYSTEM TO LET ONLY AUTHORIZED PERSONNEL ENTER THE BUILDING, SACS IS NOT A "RECORDING CLOCK." ON THE OTHER HAND, IF IT IS USED TO COLLECT INFORMATION CONCERNING ARRIVAL AND DEPARTURE TIMES, THAT IS, IF IT WERE USED FOR TIMEKEEPING PURPOSES, WE BELIEVE SACS WOULD BE A "RECORDING CLOCK," WITHIN THE MEANING OF THAT TERM AS USED IN 5 U.S.C. SEC. 6106. THIS APPLIES EVEN THOUGH IT MAY BE ONLY ONE OF A NUMBER OF TIMEKEEPING METHODS. ACCORDINGLY, GAO IS GENERALLY BARRED FROM USING SACS AS A TIMEKEEPING DEVICE. UNDER SECTION 105 OF THE FEDERAL EMPLOYEES FLEXIBLE AND COMPRESSED WORK SCHEDULE ACTS OF 1978, PUB.L. NO. 95-390, APPROVED SEPTEMBER 29, 1978, 92 STAT. 755, 758, 5 U.S.C. SEC. 6101 NT. (SUPP. III 1979), AGENCIES, SUCH AS GAO, EXPERIMENTING WITH A FLEXIBLE WORK SCHEDULE PURSUANT TO THAT ACT DO NOT HAVE TO COMPLY WITH 5 U.S.C. SEC. 6106 FOR THE DURATION OF, AND AS PART OF, THEIR FLEXTIME EXPERIMENTS. HOWEVER, WE UNDERSTAND THAT SACS WOULD CURRENTLY BE USED AS A TIMEKEEPING DEVICE ONLY IN THE EARLY MORNINGS, EVENINGS, WEEKENDS, AND HOLIDAYS TO VERIFY CLAIMS FOR OVERTIME. GAO'S FLEXTIME HOURS ARE LIMITED TO THE WEEKDAY HOURS BETWEEN 6 A.M. AND 6 P.M. THEREFORE, USE OF SACS DURING NON-FLEXTIME, SECURITY HOURS WOULD NOT BE SUFFICIENTLY CONNECTED TO THE FLEXTIME EXPERIMENT TO COME WITHIN THE WAIVER OF THE TIME CLOCK PROHIBITION OF 5 U.S.C. SEC. 6106.

IN THIS REGARD THE HOUSE COMMITTEE ON THE POST OFFICE AND CIVIL SERVICE STATED WITH RESPECT TO SECTION 105: "THE COMMITTEE RECOGNIZES THAT UNDER SOME OF THE MORE SOPHISTICATED FLEXIBLE SCHEDULING EXPERIMENTS SOME AGENCIES MAY WISH TO EXPERIMENT WITH DIGITAL TIME ACCUMULATORS OR OTHER TIME RECORDING DEVICES TO FACILITATE SUCH EXPERIMENTS." H.REP. NO. 95-912, 2ND SESS. 18 (1978). THE PROPOSED USE OF SACS TO VERIFY EMPLOYEE OVERTIME CLAIMS, WHICH IS APPARENTLY A PARTICULAR PROBLEM ON WEEKENDS, IS NOT RELATED TO THE FLEX-TIME EXPERIMENT AT GAO SINCE HOURS WORKED ON WEEKENDS, BEFORE 6 A.M. OR AFTER 6 P.M. ON WEEKDAYS - IN OTHER WORDS, DURING SECURITY HOURS - ARE SPECIFICALLY EXCLUDED FROM THE EXPERIMENT. EVEN IF THESE HOURS WERE INCLUDED IN THE FLEX-TIME EXPERIMENT IN VIEW OF THE SHORT PERIOD OF TIME REMAINING FOR THE SUSPENSION OF 5 U.S.C. SEC. 6106, TAKEN TOGETHER WITH EMPLOYEE REACTION OF WHICH YOU INFORMED US, AT OTHER FEDERAL INSTALLATIONS WHERE SOMEWHAT SIMILAR PROGRAMS HAVE BEEN INSTITUTED, WE WOULD QUESTION THE ADVISABILITY OF ESTABLISHING SACS AS A RECORD KEEPING DEVICE AT THIS TIME. SHOULD SACS BE IMPLEMENTED IN THE FUTURE, ANY RECORD OR SYSTEM OF RECORDS MAINTAINED AS A RESULT WOULD HAVE TO CONFORM TO PRIVACY ACT REQUIREMENTS, THE SPIRIT OF WHICH GAO HAS AGREED TO ADHERE TO. WE WILL BE HAPPY TO ADVISE YOU CONCERNING THESE ISSUES AS YOU SHAPE THE SACS PROJECT.

IN SUMMARY, SACS MAY NOT BE USED BY SUPERVISORS WISHING TO VERIFY EMPLOYEE'S CLAIMS FOR OVERTIME DURING SECURITY HOURS.

DIGEST

THE SECURITY ACCESS CONTROL SYSTEM (SACS) IS A RECORDING CLOCK WITHIN THE MEANING OF 5 U.S.C. SEC. 6106 WHEN USED TO RECORD THE ARRIVAL AND DEPARTURE TIMES OF EMPLOYEES. GAO IS THEREFORE NORMALLY PROHIBITED FROM IMPLEMENTING SACS AS A RECORD KEEPING DEVICE IN ITS OFFICES LOCATED IN WASHINGTON, D. C. ALTHOUGH THE PROVISIONS OF THAT SECTION HAVE BEEN TEMPORARILY SUSPENDED FOR THE DURATION OF THE FLEXTIME EXPERIMENTS AUTHORIZED BY 5 U.S.C. SEC. 6101 NT. (SUPP. III 1979), THE USE OF THIS INFORMATION TO VERIFY OVERTIME CLAIMS DURING SECURITY HOURS IS NOT SUFFICIENTLY RELATED TO THE FLEX-TIME EXPERIMENT TO COME WITHIN THIS SUSPENSION AND, THEREFORE, IS NOT AUTHORIZED.