B-307681, Scope of Waiver Authority (2 U.S.C. �130c), May 2, 2006

B-307681 May 02, 2006 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights 1. The Secretary of the Senate has the authority to waive claims for nonsalary compensation to the same extent that she may waive claims for salary payments. 2 U.S.C. 130c. The phrase "pay or allowances," as used in her waiver authority, includes all forms of remuneration made to an employee in addition to salary. 2. Neither the Secretary nor the U.S. Capitol Police may pay unpaid compensation to an individual employed in violation of the antinepotism statute, 5 U.S.C. 3110. The statute imposes an absolute prohibition on payment. It says that an individual employed in violation of the statute "is not entitled to pay, and money may not be paid from the Treasury" to pay such an individual. In these circumstances, only Congress through private relief legislation may authorize payment of unpaid compensation. View Decision B-307681, Scope of Waiver Authority (2 U.S.C. 130c), May 2, 2006 B-307681 May 2, 2006 The Honorable Emily J. Reynolds Secretary of the Senate Subject: Scope of Waiver Authority (2 U.S.C. sect. 130c) Dear Ms. Reynolds: This responds to your April 10, 2006, request for our opinion regarding your authority under 2 U.S.C. sect. 130c to waive a claim for the amount of erroneous salary payments made to a former United States Capitol Police (USCP) employee in violation of the antinepotism statute, 5 U.S.C. sect. 3110. Section 3110 prohibits a public official from employing a relative in an agency in which he exercises jurisdiction or control and prohibits payment to an individual so employed. Section 130c authorizes you to waive claims for erroneous payments of any pay or allowances to any officer or employee whose pay is disbursed by the Secretary of the Senate, as well as officers or employees whose pay is disbursed by the Chief of the Capitol Police. Specifically, you ask (1) whether your authority under section 130c permits you to waive claims for erroneous payments of nonsalary compensation, and (2) whether you or USCP officials may authorize payment of unpaid compensation under section 130c or any other statute or principle of federal law. For the reasons provided below, we conclude that section 130c permits you to waive claims for erroneous payments of nonsalary compensation to the same extent that you may waive claims for salary payments. However, neither you nor the USCP may authorize payments of any unpaid compensation. BACKGROUND The antinepotism statute provides that –A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.— 5 U.S.C. sect. 3110(b). Such individual employed in violation of the antinepotism statute –is not entitled to pay, and money may not be paid from the Treasury as pay to an individual so appointed, employed, promoted, or advanced.— 5 U.S.C. sect. 3110(c). USCP is an agency for purposes of the antinepotism statute. 5 U.S.C. sect. 3110(a)(1)(B). Consequently, the prohibitions of the statute apply to USCP. From October 10, 2003, until March 4, 2006, USCP employed a relative of a USCP official exercising jurisdiction and control over USCP. Capitol Police Board Letter,[1] Mar. 31, 2006 (Board Letter), at 1. USCP paid the individual wages through February 18, 2006. Id. at 2. We understand that USCP also made contributions to the individual's Thrift Savings Plan and Federal Employee Retirement System accounts and Federal Employees Group Life Insurance premiums. USCP made no salary payments or contributions for the individual's service from February 19 through March 4, 2006. Id. In March 2006, the Capitol Police Board determined that the individual's appointment violated the antinepotism statute. Board Letter at 1. He therefore was not entitled to pay for his service to USCP, and all such payments received for his employment were erroneous payments. See B-204266, Apr. 22, 1982. In response to a request for a decision to clarify whether the Chief has authority under 2 U.S.C. sect. 130c to waive erroneous payments such as these, we concluded that waiver authority resided in the Speaker of the House and the Secretary of the Senate. B'307529, Mar. 28, 2006. Subsequently, the Capitol Police Board requested that you consider waiving the erroneous payments for full salary and benefits from October 10, 2003, through March 4, 2006. Board Letter. The Board asserted that the individual performed satisfactory services as a police officer for the government during the entire time of his employment. Id. at 2. The Board concluded that it would be inequitable to require the individual to repay any benefits received for his employment or for him not to receive pay for services performed from February 19, 2006, through March 4, 2006.