GAO Confirms Gainer’s Right to Strip Officers’ Comp Time

Posted September 2, 2005 at 5:52pm

In the second of two opinions released this summer addressing overtime pay and compensatory leave policies within the Capitol Police, the Government Accountability Office upheld the department’s authority to strip scores of officers and civilian employees of some comp time issued over the past two years in violation of federal law.

The GAO first began looking into the agency’s overtime compensation polices in early July at the request of the Capitol Police Board and in response to inquiries made by the House Appropriations Committee.

Since 2003, at least 200 members of the force have been receiving compensatory leave hours and overtime pay in violation of prohibitions that went into effect under the fiscal 2003 omnibus spending bill. That bill directed Chief Terrance Gainer to provide supplemental compensation to employees in the same manner as it is granted to members of the Secret Service Uniformed Division and the U.S. Park Police. But, due to continuing emergency circumstances on Capitol Hill, Gainer had continued to waive maximum annual compensation limits for members of the force.

While a provision in the fiscal 2006 legislative branch appropriations bill has since waived the collection of any overtime compensation paid erroneously to officers and civilian employees prior to this summer, the GAO report agreed with an opinion by the Capitol Police general counsel that asserted comp time would have to have been already used in order to be considered paid.

“Generally, leave is understood to be ‘paid’ when it is used, rather than when it is earned,” GAO General Counsel Anthony Gamboa wrote in his opinion released last week.

That decision could essentially force officers and civilian employees to surrender saved compensatory hours above the maximum allowable limits.

But, in anticipation of last week’s GAO report, Gainer already began moving forward earlier this month with new overtime policies that would give department employees an opportunity to use up their stored hours before they lose them.

The proposed regulations, which still require the approval of the House Administration Committee and Senate Rules and Administration Committee, could give officers and civilian employees until the end of 2006 to use compensatory time and annual leave in excess of the limits.

Several other proposed changes would also bring the department’s policies into line with the GAO’s interpretation of the department’s authority.

The new polices would cap annual leave time for all employees at 240 hours. Statutorily salaried employees and employees making more than $131,400 a year would not be eligible to receive comp time. For Fair Labor Standards Act non-exempt employees, the regulations would cap compensatory time at 240 hours. For all others, comp time would be capped at 80 hours.

And while additional comp time or overtime could still be earned, Gainer said it could not be a regular and recurring part of one’s duties under the new policies.

In the mean time, with fiscal 2005 drawing to a close, Gainer said, “I put out a general direction to all my commanders to manage the remaining funds judiciously. … We are constantly asking our field commanders to justify their needs for overtime and comp time. At the end of each fiscal year you need to look at money and overtime remaining and be frugal.

“We used more overtime this year than anticipated because there were situations that arose that were unanticipated,” he said. But “I have enough overtime hours to get us through the end of the fiscal year.”

Last week’s GAO opinion also recommended that work needs to be done immediately to clarify the “multiple, and sometime conflicting, statutes and regulations that apply to the pay and leave of” the Capitol Police department.

“Given the recent focus on USCP’s implementation of its overtime statutes and regulations, we think now would be an appropriate time for the USCP to consult with its oversight committees to address concerns over its overtime compensation system and consider how to clarify and update the USCP pay and leave authorities,” Gamboa wrote. “The USCP Board should consider whether to develop, in consultation with its oversight committees, a legislative package that includes complete comprehensive, and integrated pay and leave authorities.”

Gainer said Friday that the department is working closely with its various oversight committees to review the recommendations made in the GAO reports.