United States Government Accountability Office

Washington, DC 20548 

Comptroller General

of the United States

Decision 

Matter of: Office of Compliance—Retroactive Salary Increase 

File: B-317034 

Date: October 21, 2008 

DIGEST

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. 

DECISION 

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 

February 1, 2008. However, these pay determinations were made, in part, on the 

basis of erroneous information as to the maximum compensation level allowed under 

the statute. The Chair seeks our advice on whether she may now, having discovered 

the error, adjust the salaries to the actual statutory cap on a retroactive basis. For 

the reasons discussed below, we conclude that she may not. 

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 (Washington, D.C.: Sept. 2006), available at 

www.gao.gov/legal/resources.html. The record in this case consists of the Office of 
Compliance’s request letter as well as relevant factual material provided at our 

request. 

BACKGROUND 

The Office of Compliance is an independent office within the legislative branch of the 

federal government. 2 U.S.C. § 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. §§ 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. §§ 1382(a), (b), (c). The Chair has authority to fix the 

compensation of these officers, subject to a statutory cap. Id. When the Office was 

established, the rate of pay for these individuals, by law, could not exceed the annual 

rate of pay prescribed for level V of the Executive Schedule under section 5316 of 

title 5, United States Code. Congressional Accountability Act of 1995, Pub. L. 

No. 104-1, title III, § 302, 109 Stat. 3, 26 (Jan. 23, 1995). In 2007, the law was amended

to increase the cap to a rate of pay not to exceed “the lesser of—(i) the highest

annual rate of compensation of any officer of the Senate; or (ii) the highest annual 

rate of compensation of any officer of the House of Representatives.” Pub. L. 

No. 110-161, div. H, title I, § 1101(b), 121 Stat. 1844, 2237 (Dec. 26, 2007); 2 U.S.C. 

§ 1382. As had been the case with the prior cap, the compensation level of the 

Deputy Directors could not exceed 96 percent of the pay cap. See Pub. L. 

No. 110-161, § 1101(b)(3). 

On January 22, 2008, the Chair appointed an Executive Director, and acted to 

increase the salaries of the Executive Director and General Counsel to $163,000. 

Request Letter, at 1. According to the Chair, the Board’s action was based on the 

mistaken belief that the statutory cap was $163,000. Id. The effective date of the 

personnel action was February 1, 2008. 

The Chair states that subsequently, the Board learned that the actual salary cap was 

almost $5,000 higher. Id., at 2. The Chair states that it has now increased the salaries

of these officers to the cap. However, the Chair asks whether, because the Board’s 

intent on January 22, 2008 was to increase the salaries to the statutory cap, those 

increases may be made retroactive. Id. 

DISCUSSION 

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, Jan. 22, 1970 (allowing 

retroactive pay adjustment in accordance with official notification that employee had 

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been selected for promotion to a particular position at a specified pay level). In such 

cases, we allow correction to effectuate the expressed intent of the administrative 

official as documented by a written pay determination or other documentation 

establishing the intended pay level. Id. Retroactive increases of pay are permitted 

where the intent of the administrative official regarding the pay action is conclusively 

established and no further action from the official is necessary. See 58 Comp. 

Gen. 51; 44 Comp. Gen. 153 (1964); see also 34 Comp. Gen. 380 (1955). For similar 

reasons, we would not object to a retroactive pay adjustment if an administrative or 

clerical error prior to the pay determination prevented execution of the determining 

official’s clearly expressed intent. We have neither case here, however. 

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.1

 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. 

CONCLUSION 

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 

General Counsel 

 1

 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. 

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