B-226404, APR 24, 1987

B-226404, APR 24, 1987

MISCELLANEOUS TOPICS - FEDERAL ADMINISTRATIVE/LEGISLATIVE MATTERS - CONGRESS - LEGISLATIVE/JUDICIAL PERSONNEL - WAGE INCREASE DIGEST: THE ISSUE PRESENTED IS THE CORRECT STARTING DATE FOR PAY INCREASES UNDER 2 U.S.C. SEC. 359 (SUPP. III 1985) FOR EMPLOYEES OF THE HOUSE OF REPRESENTATIVES. WHILE SECTION 359 IS OPEN TO TWO INTERPRETATIONS IT IS GAO'S VIEW THAT THE INTERPRETATION REQUIRING ALL SUCH INCREASES TO BEGIN AT THE START OF THE NEXT PAY PERIOD AFTER THE END OF THE PERIOD ALLOWED FOR DISAPPROVAL IS THE BETTER VIEW. ALTHOUGH IT CAN BE ARGUED THAT UNDER THE OTHER INTERPRETATION OF SECTION 359, HOUSE EMPLOYEES WHOSE SALARY IS SET AT AMOUNTS NOT TO EXCEED SPECIFIC LEVELS OF THE EXECUTIVE SCHEDULE, MAY HAVE THEIR PAY INCREASED AS SOON AS ANY EMPLOYEE OF THE GOVERNMENT BEGINS RECEIVING PAY AT THE NEW RATE UNDER THE EXECUTIVE SCHEDULE, WE DO NOT BELIEVE THAT THAT INTERPRETATION COMPORTS WITH OVERALL SPIRIT OF SECTION 359 OR COMPARABLE STATUTES.

THE HONORABLE DONALD K. ANDERSON:

WE REFER TO YOUR LETTER OF FEBRUARY 20, 1987, REQUESTING OUR INTERPRETATION OF THE EFFECTIVE DATES OF THE INCREASES IN PAY RATES PURSUANT TO 2 U.S.C. SEC. 359 (SUPP. III 1985) FOR STAFF POSITIONS IN THE HOUSE OF REPRESENTATIVES. YOUR HAVE REQUESTED OUR VIEWS FOR TWO CATEGORIES OF OFFICERS AND EMPLOYEES. THE FIRST CATEGORY INCLUDES THOSE INDIVIDUALS WHOSE PAY IS SPECIFICALLY SET AT A LEVEL IN THE EXECUTIVE SCHEDULE, WHILE THE SECOND CATEGORY ENCOMPASSES THOSE INDIVIDUALS WHOSE PAY IS SET AT THE DISCRETION OF THE EMPLOYING AUTHORITY AT A RATE "NOT TO EXCEED" A SPECIFIC LEVEL OF THE EXECUTIVE SCHEDULE.

THE CURRENT VERSION OF SECTION 359 OF TITLE 2 OF THE U.S.C. PROVIDES THAT:

"(1) THE RECOMMENDATIONS OF THE PRESIDENT WHICH ARE TRANSMITTED TO THE CONGRESS PURSUANT TO SECTION 358 OF THIS TITLE SHALL BE EFFECTIVE AS PROVIDED IN PARAGRAPH (2) OF THIS SECTION UNLESS ANY SUCH RECOMMENDATION IS DISAPPROVED BY A JOINT RESOLUTION AGREED TO BY THE CONGRESS NOT LATER THAN THE LAST DAY OF THE 30-DAY PERIOD WHICH BEGINS ON THE DATE OF WHICH SUCH RECOMMENDATIONS ARE TRANSMITTED TO THE CONGRESS.

"(2) THE EFFECTIVE DATE OF THE RATE OR RATES OF PAY WHICH TAKE EFFECT FOR AN OFFICE OR POSITION UNDER PARAGRAPH (1) OF THIS SECTION SHALL BE THE FIRST DAY OF THE FIRST PAY PERIOD WHICH BEGINS FOR SUCH OFFICE OR POSITION AFTER THE END OF THE 30-DAY PERIOD DESCRIBED IN SUCH PARAGRAPH."

IT IS OUR UNDERSTANDING THAT ALL OF THE INDIVIDUALS RECEIVING OR POTENTIALLY RECEIVING PAY INCREASES PURSUANT TO SECTION 359 WHOSE SALARY IS DISBURSED BY YOUR OFFICE ARE PAID ON A MONTHLY BASIS, WITH MARCH 1, 1987, AS THE BEGINNING OF THE FIRST PAY PERIOD AFTER THE EXPIRATION OF THE 30-DAY DISAPPROVAL PERIOD.

YOU BELIEVE THAT, AT LEAST FOR THOSE INDIVIDUALS WHOSE PAY IS DIRECTLY SET BY SECTION 359 (THAT IS, THEIR PAY IS SPECIFICALLY SET AT A PARTICULAR LEVEL IN THE EXECUTIVE SCHEDULE), THEIR POSITIONS ARE INCLUDED IN THE PHRASE "FOR SUCH OFFICES OR POSITIONS." THEREFORE, YOU BELIEVE THAT FOR THOSE INDIVIDUALS THE NEW SALARY RATES BECAME PAYABLE AS OF MARCH 1. CONCUR WITH THAT INTERPRETATION. WE SEE NO WAY THAT THOSE INDIVIDUALS WHOSE SALARY IS DIRECTLY SET UNDER SECTION 359 CAN BE EXCLUDED FROM THE REQUIREMENT THAT THE NEW SALARY RATE START AT THE BEGINNING OF THE FIRST PAY PERIOD AFTER THE EXPIRATION OF THE DISAPPROVAL PERIOD. THUS, WE AGREE THAT MARCH 1 WAS THE PROPER COMMENCEMENT DATE FOR THE NEW SALARY RATES FOR THE FIRST CATEGORY INDIVIDUALS DESCRIBED.

IN YOUR LETTER, YOU STATE THAT YOU HAVE RECEIVED CONFLICTING COUNSEL ON THE APPROPRIATE EFFECTIVE DATE FOR POSITIONS IN THE SECOND CATEGORY. THAT CATEGORY IS COMPRISED OF THOSE INDIVIDUALS WHOSE SALARY IS INDIRECTLY SET BY SECTION 359 (THAT IS, THOSE WHOSE PAY IS SET BY THE EMPLOYING AUTHORITY AT A RATE "NOT TO EXCEED" A SPECIFIED LEVEL OF THE EXECUTIVE SCHEDULE). ACCORDING TO YOUR LETTER:

"ONE SCHOOL OF THOUGHT IS THAT THE MARCH 1 DATE APPLIES TO THESE POSITIONS AS WELL, SINCE THE NEXT PAY PERIOD FOR 'SUCH OFFICE OR POSITION' BEGINS MARCH 1. THE OTHER ARGUMENT ADVANCED IS THAT THE TERM 'SUCH OFFICE OR POSITION' REFERS TO ANY SUCH OFFICE OR POSITION, THAT THE NEXT PAY PERIOD BEGINNING AFTER THE EXPIRATION OF THE CONGRESSIONAL REVIEW PERIOD FOR ANY SUCH POSITION BEGINS, SOMEWHERE IN THE GOVERNMENT, ON FEBRUARY 8, AND THAT ACCORDINGLY, SALARY ADJUSTMENTS MAY BE EFFECTIVE FEBRUARY 8 FOR THE LATTER CATEGORY OF POSITIONS."

AS WE UNDERSTAND IT, THE FIRST THEORY SET OUT ABOVE GIVES A VERY WIDE INTERPRETATION TO THE PHRASE "SUCH OFFICE OR POSITION," SO THAT ALL POSITIONS WHOSE PAY IS INCREASED, EITHER DIRECTLY OR INDIRECTLY, BY SECTION 359 WOULD NOT BEGIN RECEIVING THE INCREASED PAY UNTIL THE START OF THE NEXT PAY PERIOD. THE SECOND THEORY SEEMS TO LIMIT THE RESTRICTION THAT PAY PERIODS BE OBSERVED TO THOSE INDIVIDUALS WHOSE PAY IS DIRECTLY SET BY 359. THIS THEORY SEEMS TO BE THAT, AS TO THE OTHER INDIVIDUALS WHOSE PAY IS INDIRECTLY SET, AS SOON AS ANYONE WORKING FOR THE GOVERNMENT BEGINS RECEIVING PAY AT THE INCREASED RATE UNDER THE EXECUTIVE SCHEDULE, THEN THE EMPLOYING AUTHORITY HAS THE DISCRETION TO INCREASE THE PAY RATE UP TO THE NEW "NOT TO EXCEED" LEVEL.

WE HAVE REVIEWED THE LEGISLATIVE HISTORY OF 2 U.S.C. SEC. 359 AND FIND NOTHING TO HELP IN SELECTING THE CORRECT INTERPRETATION. THE SECOND THEORY SET OUT ABOVE CAN BE REACHED BY A LITERAL READING OF THE SECTION. HOWEVER, WE BELIEVE THAT THE BROADER INTERPRETATION OF THE PHRASE "SUCH OFFICE OR POSITION" WHICH INCLUDES ALL POSITIONS WHOSE PAY IS POTENTIALLY AFFECTED BY SECTION 359 IS THE BETTER INTERPRETATION. WE ALSO BELIEVE THAT THIS BROADER INTERPRETATION-- REQUIRING ALL OF THE PAY INCREASES, WHETHER DIRECTLY SET AT LEVELS OF THE EXECUTIVE SCHEDULE OR INDIRECTLY SET AT A RATE "NOT TO EXCEED" A SPECIFIC LEVEL, TO START AT THE BEGINNING OF THE NEXT PERIOD-- MORE ACCURATELY REFLECTS OVERALL CONGRESSIONAL INTENT.

CONGRESS GENERALLY FAVORS ADHERENCE TO NORMAL PAY PERIODS AND PAY CYCLES. SEE, 2 U.S.C. SEC. 359 (SUPP. III 1985); 5 U.S.C. SEC. 5305(C)(2) (1982) (REQUIRING THAT PAY INCREASES UNDER THE FEDERAL PAY COMPARABILITY ACT OF 1970 START AT THE BEGINNING OF A PAY PERIOD). CF. 42 U.S.C. SEC. 659(E) (1982) (PROVIDING THAT GARNISHMENT ORDERS AGAINST FEDERAL EMPLOYEES IN ALIMONY OR CHILD SUPPORT CASES CANNOT REQUIRE AN AGENCY TO ALTER ITS NORMAL PAY CYCLE). IN THESE TIMES OF COMPUTERIZED PAYROLLS, IMPLEMENTING PAY CHANGES OUTSIDE OF THE NORMAL PAY CYCLES IS COSTLY AND INCONVENIENT.

THUS, WHILE WE UNDERSTAND THE INTERPRETATION OF 2 U.S.C. SEC. 359 PERMITTING THE IMPLEMENTATION OF THE SALARY INCREASES FOR SOME HOUSE EMPLOYEES BEGINNING FEBRUARY 8, 1987, WE BELIEVE THAT THE ALTERNATIVE INTERPRETATION REQUIRING THAT ALL OF THE PAY INCREASES BEGIN ON OR AFTER MARCH 1, 1987, IS THE SOUNDER AND PREFERABLE INTERPRETATION. WE BELIEVE THAT THIS LATTER INTERPRETATION BETTER COMPORTS WITH THE OVERALL POLICY OF THE SECTION AND OTHER, COMPARABLE PROVISIONS OF THE UNITED STATES CODE.

WE TRUST THAT THE ABOVE INFORMATION WILL BE SUFFICIENT FOR YOUR PURPOSES.