B-218928, SEP 20, 1985

B-218928, SEP 20, 1985

PRECIS-UNAVAILABLE

THE HONORABLE ANDREW J. STRENIO, JR.: MEMBER, INTERSTATE COMMERCE COMMISSION WASHINGTON, D.C. 20423

WE REFER TO YOUR LETTER OF AUGUST 29, 1985, REGARDING A REQUEST FOR A DECISION WHICH WAS SUBMITTED HERE BY MR. MARTIN E. FOLEY, MANAGING DIRECTOR OF THE COMMISSION. THAT SUBMISSION RAISED SEVERAL QUESTIONS CONCERNING YOUR ENTITLEMENT TO WAIVE A PORTION OF YOUR SALARY AND, IF YOU COULD BE PERMITTED TO DO SO, THE DISPOSITION WHICH MIGHT BE MADE OF THOSE FUNDS.

MR. FOLEY ADVISED US THAT EARLIER THIS YEAR THE COMMISSION INITIATED AN EMERGENCY PLAN TO FURLOUGH ALL OF ITS EMPLOYEES FOR 1 DAY A WEEK FOR THE REMAINDER OF FISCAL YEAR 1985. HOWEVER, COMMISSIONERS WERE NOT AFFECTED BY THE FURLOUGH SINCE AS A MATTER OF LAW THEY ARE ENTITLED TO THEIR FULL COMPENSATION. NOTWITHSTANDING THAT, YOU SOUGHT TO PARTICIPATE IN THE FURLOUGH BY VOLUNTARILY WAIVING 20 PERCENT OF YOUR SALARY AND HAVING THOSE FUNDS USED BY THE COMMISSION FOR OTHER PERSONNEL EXPENSES.

SUBSEQUENT TO RECEIPT OF MR. FOLEY'S REQUEST FOR DECISION, WE WERE ADVISED THAT THE EMPLOYEE FURLOUGH WAS LIFTED IN JUNE 1985, PENDING ENACTMENT OF H.R. 2577, A SUPPLEMENTAL APPROPRIATION BILL WHICH INCLUDED ADDITIONAL OPERATING FUNDS FOR THE COMMISSION FOR FISCAL YEAR 1985. HAVE RECENTLY BEEN INFORMED THAT THE BILL, MAKING SUPPLEMENTAL APPROPRIATIONS FOR 1985, WAS ENACTED AS PUBLIC LAW 99-88, EFFECTIVE AUGUST 15, 1985.

AS A RESULT OF THAT APPROPRIATION, WE ASSUME THAT A FURLOUGH FOR COMMISSION EMPLOYEES WILL NOT BE REIMPOSED THIS FISCAL YEAR. IN VIEW OF THAT AND THE FACT THAT YOU HAVE RECEIVED ALL SALARY WHICH ACCRUED TO YOU DURING THE FURLOUGH PERIOD, IT APPEARS THAT THE ISSUE OF WHETHER THE COMMISSION MAY WITHHOLD SALARY PAYMENTS TO YOU IS NOW ACADEMIC. NEVERTHELESS, YOU STATE THAT YOU HAVE SET ASIDE A PORTION OF YOUR PAY FOR THE WEEKS OF FURLOUGH. IF A WAIVER OF SALARY IS LEGAL, YOU PROPOSE TO RETURN THIS PORTION TO THE AGENCY; IF NOT, YOU WILL DONATE IT TO CHARITY.

CONSISTENT WITH JUDICIAL DECISIONS, WE HAVE HELD IN PRIOR CASES THAT A PRESIDENTIAL APPOINTEE CANNOT EFFECTIVELY "WAIVE" HIS OR HER STATUTORY ENTITLEMENT TO SALARY SO AS TO PRECLUDE A FUTURE CLAIM. AT THE SAME TIME, WE HAVE EXPRESSED THE VIEW THAT A REQUEST BY A PRESIDENTIAL APPOINTEE TO FOREGO ACCEPTANCE OF SALARY PAYMENTS SHOULD BE HONORED. SEE GENERALLY, B-216885, NOVEMBER 29, 1984.

AS NOTED ABOVE, YOU ALREADY RECEIVED FULL SALARY PAYMENTS FOR THE PERIOD IN QUESTION. THE PORTION OF SALARY YOU SET ASIDE CANNOT EFFECTIVELY BE REPAID TO THE COMMISSION. IN THE ABSENCE OF ANY OVERRIDING STATUTORY AUTHORITY (AND WE ARE AWARE OF NONE IN THIS CASE), THE COMMISSION WOULD BE REQUIRED TO RETURN SUCH A PAYMENT TO THE TREASURY. SEE 31 U.S.C. SEC. 3302(B) (1982).

WE REGRET THAT YOUR WISHES CANNOT BE ACCOMMODATED, BUT HOPE THAT THIS ADVICE IS RESPONSIVE TO YOUR INQUIRY.