oversight

[Comments on U.S. Trade Deficit Review Commission's Authority To Compensate an Export-Import Bank Employee]

Published by the Government Accountability Office on 1999-09-27.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

United States General Accounting Office                   Office of the General Counsel
Washington, DC 20548



          Subject: U.S. Trade Deficit Review Commission

          Date: September 27, 1999

          File: B-283510
United States General Accounting Office                             Office of the General Counsel
Washington, DC 20548




          B-283510

          September 27, 1999


          Ms. Kathleen J. Michels
          Administrative Officer
          U.S. Trade Deficit
           Review Commission

          Dear Ms. Michels:

          This responds to your August 25, 1999, letter requesting our opinion concerning the
          authority of the U.S. Trade Deficit Review Commission (the Commission) to
          compensate an employee of the Export-Import Bank (the Bank) that the
          Commission would like to have detailed to it to serve as executive director.

          Your question arises because the individual in question is a career employee who
          occupies a position with the Bank paid at executive schedule level IV and the
          Commission is limited by statute to compensating its executive director and other
          staff members at no more than the rate payable for executive schedule level V.
          Trade Deficit Review Commission Act, Pub. L. No. 105-277, Div. A, section
          127(g)(3)(B). To comply with the compensation limitation, the Commission
          proposes to reimburse the Bank for the detailee’s salary and benefits at the executive
          schedule V level, and the Bank would cover the additional amount payable for level
          IV.1 You ask whether we agree with the Commission’s interpretation that its
          statutory authority would permit this arrangement. As explained below, we believe
          the proposed arrangement is permissible under the Commission’s statute.

          The Trade Deficit Review Commission Act, Pub. L. No. 105-277, Div. A, section 127,
          112 Stat. 2681-547 (1998), established the Commission to study the nature, causes,
          and consequences of the United States merchandise trade and current accounts
          deficits and report its findings to the President and the Congress. The Commission is



          1
           The current annual basic pay rate for Executive Schedule level IV is $118,400, and
          the rate for level V is $110,700. Executive Order 13106, Dec. 7, 1998, 63 Fed. Reg.
          68151.
composed of 12 members, 6 appointed by the President pro tempore of the Senate2
and 6 appointed by the Speaker of the House.3 Section 127(c)(3)(A). The members
are to have expertise in specified fields and may not be officers or employees of the
United States. Section 127(c)(3)(B). The members elect a chairperson and vice
chairperson from among themselves. Section 127(c)(7).

Subsection (g) of section 127 addresses commission personnel matters. Section
127(g)(3)(A) authorizes the Chairperson, without regard to the civil service laws and
regulations, to appoint and terminate an executive director and such other additional
personnel as may be necessary to enable the Commission to perform its duties.
Pursuant to section 127(g)(3)(B), the Chairperson may fix the compensation of the
executive director and other personnel without regard to the provisions of chapter
51 and subchapter III of chapter 53 of title 5, U.S. Code, relating to classification and
pay rates, “except that the rate of pay for the executive director and other personnel
may not exceed the rate payable for level V of the Executive Schedule” under
5 U.S.C. § 5316. Significant to the analysis here, section 127(g)(4) provides that
“[a]ny Federal Government employee may be detailed to the Commission without
reimbursement, and such detail shall be without interruption or loss of civil service
status or privilege.”4

A “detail” is the temporary assignment of an employee to a different position for a
specified period, with the employee returning to his or her regular duties at the end
of the detail. See B-224033, Jan. 30, 1987, and authorities cited therein. Ordinarily,
unless a statute provides otherwise, the employee continues to be the incumbent of
the position from which he or she is detailed and receives pay and benefits on that
basis. B-224033, Jan. 30, 1987; 33 Comp. Gen. 577 (1954); and 24 Comp. Gen. 420

2
 Three to be appointed upon recommendation of the Senate Majority Leader after
consultation with the Senate Finance Committee Chairman, and three to be
appointed upon recommendation of the Senate Minority Leader after consultation
with the ranking minority member of the Senate Finance Committee. Section
127(c)(3)(A)(i), (ii).
3
Three to be appointed after consultation with the House Ways and Means
Committee Chairman, and three after consultation with the ranking minority
member of the House Ways and Means Committee. Section 127(c)(3)(A)(iii), (iv).
4
 Although section 127 does not define “employee,” section 2105(a) of Title 5, U.S.
Code, defines it in pertinent part for the purposes of Title 5 (Government
Organization and Employees) as meaning “an officer and an individual who is” (1)
“appointed in the civil service;” (2) “engaged in the performance of a Federal
function under authority of law or an Executive act;” and (3) “subject to the
supervision of an individual named” in subsection 2105(a). See also 5 U.S.C. § 2101
and 2104 for definitions of “officer” and “civil service.” The detailee in question here
would appear to fall within the section 2105(a) definition.



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(1944). See also, B-221416, March 12, 1986, concerning an employee detailed to a
state agency under the Intergovernmental Personnel Act. We have held that, except
in certain limited circumstances, nonreimbursable interagency details are improper
without statutory authority authorizing the detail on such basis. 64 Comp. Gen. 370,
380 (1985); and B-247348, June 22, 1992.5

As noted above, in this case, section 127(g)(4) of the Trade Deficit Review
Commission Act provides the necessary authority for any federal employee to be
detailed to the Commission without reimbursement. Without this authority, the
Commission would have to rely on the general authority of the Economy Act,
31 U.S.C. § 1535, for the detail in question. However, the Economy Act requires
reimbursement to the agency providing the detailee for the “actual costs” of the
services provided, unless the detail falls within one of the recognized exceptions.6
The difficulty with this course of action is that if the Commission were to reimburse
the Bank for the employee’s full salary, it would violate the limitation on the
Commission’s authority to compensate its staff at no more than the rate payable for
level V of the Executive Schedule. However, in this regard, the fact that the detail
may be made without reimbursement does not prevent it being effected with partial
reimbursement, if the Commission finds that to be in its interests. This appears to
satisfy both the language and intent of the limitation on the use of Commission funds
to pay its personnel at no more than the rate applicable for level V of the Executive
Schedule and the provision authorizing a detail to the Commission of “any Federal
Government employee” without loss of civil service status or privilege.

Accordingly, we have no objection to the described arrangement.

Sincerely yours,




Robert P. Murphy
General Counsel




5
 We held that such nonreimbursable details violate 31 U.S.C. § 1301(a) that limits the
use of appropriations only to the objects for which they are appropriated, and the
rule against improperly augmenting the appropriation of the agency receiving the
detailee’s services.
6
 For a discussion of the limited exceptions to the reimbursement requirement,
see 64 Comp. Gen. 380-381.



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B-283510




DIGEST



The U.S. Trade Deficit Review Commission wishes to have an Export-Import Bank

Executive Schedule Level IV employee detailed to the Commission to serve as

executive director. The Commission’s statute provides authority to appoint staff

without regard to civil service laws and regulations, but it limits the compensation

the Commission may pay to Executive Schedule Level V. To detail the employee

under the Economy Act with full reimbursement to the Bank would violate the pay

limitation. However, the Commission’s statute also provides authority for any

federal employee to be detailed to the Commission without reimbursement and

without loss of civil service status or privilege. To avoid violating the compensation

limitation, the Commission proposes to reimburse the Bank for the employee’s

compensation at the level V rate, with the Bank providing the amount over level V.

Since this arrangement appears to satisfy the language and intent of the pay

limitation and the detail provisions, GAO has no objection.




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