B-317034, Office of Compliance--Retroactive Salary Increase, October 21, 2008
Decision
Matter of: Office of Compliance—Retroactive Salary Increase
DIGEST
As authorized by statute, the designated official at the Office
of Compliance, on
DECISION
The Chair of the Board of Directors of the Office of
Compliance has requested our decision on whether she may adjust the rate of
compensation of the Executive Director and General Counsel on a retroactive
basis. Letter from Susan S. Robfogel,
Chair, Office of Compliance, to Gary L. Kepplinger, General Counsel, GAO, Aug. 21,
2008 (Request Letter). As authorized by
law, the Chair, as the designated official at the Office of Compliance, increased
the compensation level of these officers on
Our practice when issuing decisions or opinions is to obtain
the views of the relevant agency to establish a factual record and to establish
the agency’s legal position on the subject matter of the request. GAO, Procedures
and Practices for Legal Decisions and
Opinions, GAO-06-1064SP (
BACKGROUND
The Office of Compliance is an independent office within
the legislative branch of the federal government. 2 U.S.C. sect. 1381(a). The Office has a five-member Board of
Directors, including a Chair, who, like the other board members, is appointed
jointly by the Speaker of the House of Representatives, the Majority Leader of
the Senate, and the Minority Leaders of the House of Representatives and the
Senate. 2 U.S.C. sections 1381(b),
(c). The Chair, subject to the approval
of the Board, has authority to appoint an Executive Director, two Deputy
Executive Directors, and the General Counsel.
2 U.S.C. sections 1382(a), (b), (c).
The Chair has authority to fix the compensation of these officers,
subject to a statutory cap.
On
The Chair states that subsequently, the Board learned that
the actual salary cap was almost $5,000 higher.
DISCUSSION
In past GAO case law, we have stated that, as a general
rule, a personnel action relating to compensation that results from an
administrative determination is not effective retroactively. 58 Comp. Gen. 51 (1978). We have under some circumstances, however, allowed
for retroactive adjustments to correct administrative or clerical errors, such
as where, through a clerical error, a personnel action was not effected as
originally intended. B-168683,
While the Chair states that she intended to set the compensation levels of the Executive Director and General Counsel at the maximum allowable level and would have done so but for the mistaken advice concerning that level, this is not a case where an administrative official has clearly made a definitive pay determination and a subsequent error delays the determination or prevents it from taking effect. Furthermore, there is no contemporaneous documentation demonstrating an intended or “correct” pay level different from the actual pay level set.[1] Exercising her discretion in January 2008, the Chair determined that the salaries of these officers would be $163,000, and in fact the salaries were set at $163,000. Under these circumstances, retroactive adjustment is not available.
CONCLUSION
An increase in compensation resulting from the exercise of discretionary administrative authority is effective on the date the official approves the increase and is not retroactive. The Chair’s reliance on erroneous information in exercising her discretion does not provide a basis to retroactively adjust the determination using accurate information in the absence of documentation establishing with certainty the precise pay action intended.
Gary L. Kepplinger
General Counsel
[1] For example, had the Board, at the request of the Chair, formally resolved that the Chair could set the pay of the Executive Director and General Counsel at a rate equal to the applicable pay cap, we would have relied on such documentation to establish the “correct” pay level for purposes of a retroactive adjustment.