Office of Compliance--Retroactive Salary Increase
B-317034, Oct 21, 2008
As authorized by statute, the designated official at the Office of Compliance, on February 1, 2008, increased the compensation level of certain officers. The official states that she intended to increase these salaries to the applicable statutory cap, but because of erroneous information, salaries were set at a level below the actual statutory cap. However, because there is no contemporaneous documentation establishing with certainty the actual salary increase intended by the official at the time of her determination, the designated official may not adjust the pay level retroactively.
B-317034, Office of Compliance--Retroactive Salary Increase, October 21, 2008
As authorized by statute, the designated official at the Office of Compliance, on
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 (
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.
The Chair states that subsequently, the Board learned that the actual salary cap was almost $5,000 higher.
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. 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.
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
 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.