B-245254 December 31, 1991
B-245254: Dec 31, 1991
King: This is in response to your letter of August 14. The funds you now hold in trust should be transferred to the Treasury account "Unclaimed Moneys of Individuals Whose Whereabouts are Unknown" pursuant to 31 U.S.C. The back pay awards for those individuals have never been claimed and your office has not been able to locate the claimants. Unclaimed back pay or other monetary benefits are held in a special deposit account for three years. Funds that remain unclaimed for over three years are then deposited in the Treasury as miscellaneous receipts. All intangible personal property held by the federal government or any federal agency that remains unclaimed for 5 years is presumed abandoned.
B-245254 December 31, 1991
Mr. Willie M. King Director, Financial Management Division Office of Management U.S. Equal Employment Opportunity Commission
Dear Mr. King:
This is in response to your letter of August 14, 1991 concerning the disposition of unclaimed back pay awards totalling $1,274.12 received for two claimants that, to date, cannot be located. As explained in further detail below, the funds you now hold in trust should be transferred to the Treasury account "Unclaimed Moneys of Individuals Whose Whereabouts are Unknown" pursuant to 31 U.S.C. Sec. 1322.
According to your letter, you received back pay awards for two claimants under an administrative settlement agreement (signed by EEOC on January 21, 1988) that resolved a sex discrimination charge against the Kentucky Central Life Insurance Company. The back pay awards for those individuals have never been claimed and your office has not been able to locate the claimants. Under your internal procedures, unclaimed back pay or other monetary benefits are held in a special deposit account for three years. EFOC Order 916.001, Section 61.3 (1987). Funds that remain unclaimed for over three years are then deposited in the Treasury as miscellaneous receipts. Id. Thereafter, "aggrieved persons must pursue any monies due them directly from the U.S. Treasurer." Id.
Under Kentucky law, all intangible personal property held by the federal government or any federal agency that remains unclaimed for 5 years is presumed abandoned. KY. Rev. Stat. Sec. 393.068. Because of this apparent conflict, you asked whether the unclaimed funds should be (a) deposited into the Treasury as miscellaneous receipts; (b) paid to the escheat fund of the State of Kentucky; or (c) returned to the Kentucky Central Life Insurance Company.
Unclaimed funds held in trust by federal departments or agencies are not deposited in the Treasury as miscellaneous receipts. Under 31 U.S.C. Sec. 1322 unclaimed moneys in certain trust fund accounts (listed in 31 U.S.C. Sec. 1321(a)(1)-(82)) or analogous trust funds received by the U.S. government as trustee, which remain unclaimed for more than one year and which represent money belonging to recipients that cannot be located, must be deposited in the Treasury account entitled "Unclaimed Moneys of Individuals Whose Whereabouts are Unknown." 31 U.S.C. Sec. 1322(a). The Treasury Financial Manual (TFM) contains explicit instructions for making deposits into the "Unclaimed Moneys" account. All federal agencies are directed to analyze their various trust, revolving and deposit accounts periodically to determine whether they are holding unclaimed moneys. 1 TFM 6-3030. If so, agencies must take appropriate action to initiate the transfer of such funds to the unclaimed moneys account. /1/
Nevertheless, although the Treasury Department serves a centralized role as custodian of government funds, it has neither the access to agency records necessary to determine which monies have been held for over one- year in the agency accounts nor certifying authority to order the transfer of monies from those accounts to the unclaimed monies accounts. Agencies thus must maintain the records regarding the nature or origin of any amounts transferred to the unclaimed moneys account. 1 TFM 6-3085. /2/ Thus, the claimants, if they ever submit a claim for their backpay award, would need to pursue their claim with the EEOC and not the Treasury.
As you pointed out in your letter, under Kentucky law property held by the federal government that remains unclaimed for 5 years is presumed abandoned and subject to escheat. KY. Rev. Stat. Sec.(s) 393.068, 393.020. However, since the unclaimed back pay awards have not been unclaimed for the time period established by Kentucky law, the issue concerning the State of Kentucky's authority to claim the funds is not yet ripe for resolution. In the interim, the unclaimed back pay awards should be transferred to the unclaimed moneys account in accordance with 1 TFM 6-3000.
We note that your internal regulation, cited above, advises that funds remaining unclaimed after 3 years must be deposited into the Treasury as miscellaneous receipts. According to your staff, the regulation derives from provisions in the Equal Pay Act and the Age Discrimination Act. Indeed, both Acts provide that amounts of unpaid minimum wage or overtime pay or amounts owing for age discrimination violations collected by the Secretary of Labor be transferred to the miscellaneous receipts account of the Treasury. 29 U.S.C. Sec. 216(c); see 29 U.S.C. Sec. 626(b) (amounts owing to aggrieved persons for violations of age discrimination provision are deemed to be unpaid minimum wages for overtime compensation). The Civil Rights Act sex discrimination award provisions, however, are silent regarding the disposition of unclaimed award amounts. Thus, barring such explicit direction, we conclude that the general procedure used for other unclaimed funds held in trust by the government should be followed.
I hope the foregoing answers your questions.
Gary L. Kepplinger Associate General Counsel
1. The Treasury Department has designated two funds to receive deposits of monies deemed unclaimed pursuant to 31 U.S.C. Sec. 1322. Trust fund account number 20X6133 serves as a depository for moneys in the amounts of $25 or more which meet certain criteria, and miscellaneous receipt account number 1060 serves as a depository for monies in amounts of less than $25 and for those monies which do not otherwise meet the criteria for transfer into Account 20X6133. TFM Sec. 6-3030. The separate accounts were created to facilitate bookkeeping by the Treasury.
2. Payment of claims for unclaimed amounts in the unclaimed moneys account are made upon authorization of the individual agencies without claims settlement action by GAO. 1 TFM Sec. 6-3050.