B-305945, Architect of the Capitol--Maximum Rate of Pay for Senior Employees, September 30, 2005

B-305945 Sep 30, 2005 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights The Architect of the Capitol's authority to fix the pay of certain positions up to the highest total rate of pay for the Senior Executive Service authorizes it to compensate such positions up to a maximum of level III of the Executive Schedule. Congress intended that only agencies with performance appraisal systems certified as making meaningful distinctions in performance may pay up to level II of the Executive Schedule. If the Architect wishes to continue to pay up to level II, it must submit its performance appraisal system to the Office of Personnel Management for certification or request Congress provide it with the authority to self-certify. View Decision B-305945, Architect of the Capitol--Maximum Rate of Pay for Senior Employees, September 30, 2005 B-305945 September 30, 2005 The Honorable Jerry Lewis Chairman Committee on Appropriations United States House of Representatives Subject: Architect of the Capitol—Maximum Rate of Pay for Senior Employees Dear Mr. Chairman: This responds to your request of July 29, 2005, for our legal opinion as to whether the Architect of the Capitol (AOC) has the authority to raise the maximum rate of pay for its employees to Level II of the Executive Schedule.[1] Specifically, you ask whether AOC's authority under 2 U.S.C. sect. 1849 to fix the rate of basic pay of certain employees at a rate not to exceed the highest total rate of pay for the Senior Executive Service (SES) authorizes AOC to compensate at rates above Level III of the Executive Schedule[2] without a certified performance appraisal system, as is required for executive branch agencies by 5 U.S.C. sect. 5382. To respond to your request, we asked AOC for factual information and for its legal views on this question.[3] In response, AOC stated that it has not submitted its performance management system to the Office of Personnel Management (OPM) for certification and that it had increased the rate of pay for several of its employees above Level III of the Executive Schedule. Letter from Peter Kushner, General Counsel, AOC, to Michael R. Volpe, Assistant General Counsel, GAO, Aug. 29, 2005 (Kushner Letter). AOC asserted that the certification requirement applies only to the executive branch, and that its own authority is without condition or limitation. Id. As we explain below, we disagree with AOC's conclusion. We conclude that AOC may only pay up to level III of the Executive Schedule unless it has a certified performance appraisal system that makes meaningful distinctions in performance. Congress created two separate maximum rates of pay for the SES, but intended that only agencies with certified performance appraisal systems could pay up to the higher maximum. Background Since 1991, AOC has had the authority to compensate certain employees at a rate that was linked to the maximum rate of the SES.[4] Pub. L. No. 102-90, sect. 104 (Aug. 14, 1991). Currently, this authority states: –The Architect of the Capitol may fix the rate of basic pay for not more than 12 positions at a rate not to exceed the highest total rate of pay for the Senior Executive Service under subchapter VIII of chapter 53 of title 5 for the locality involved.— 2 U.S.C. sect. 1849(a). When this authority was originally enacted, title 5 required the President to establish five or more rates of basic pay for the SES. Pub. L. No. 95-454, sect. 407(a) (Oct. 13, 1978) (codified as amended at 5 U.S.C. sect. 5382(a)). The lowest of these rates was not to be less than the minimum rate applicable to senior-level scientific or professional positions (120 percent of the minimum rate of basic pay for GS-15 of the General Schedule), and the maximum rate was not to be greater than level IV of the Executive Schedule. Pub. L. No. 101-509, sect. 529 (Nov. 5, 1990) (codified as amended at 5 U.S.C. sect. 5382(b)). The President established six rates of basic pay (ES-1 through ES-6), which were adjusted each year by executive order. See, e.g., Exec. Order No. 13282, Adjustments of Certain Rates of Pay, 68 Fed. Reg. 1133, 1138 (Dec. 31, 2002). In 2003, Congress eliminated the rates of SES pay and established a range of rates of pay for the SES, with the minimum rate not less than the minimum rate for senior-level scientific or professional positions and the maximum rate not more than level III of the Executive Schedule. Pub. L. No. 108-136, sect. 1125(a)(2) (Nov. 24, 2003), 5 U.S.C. sect. 5382. The rate of pay of an individual senior executive is now to be based on individual performance or contribution to the agency's performance, or both.