Section II will require the most work from the PHA when entering detailed data regarding the employee’s name, position, salary amount, allocation to Section 8, Section 9 and other funds as well as incentive and bonus amounts. Other items to note include, if the top management official and the top financial/accounting official are the same person, the PHA is to report information for that person and the next highest paid employee. A PHA that has neither a top management official nor financial/accounting official must report compensation for its two highest paid employees.
It is likely that appropriations language remain consistent with previous years, and the following language will remain the same: "no tenant-based section 8 or section 9 funds may be used by any public housing agency for any amount of salary, including bonuses, for the chief executive officer of which, or any other official or employee of which, that exceeds the annual rate of basic pay payable for a position at level IV of the Executive Schedule at any time during any public housing agency fiscal year."
This means that salaries paid to staff funded from Section 8 and/or Section 9 cannot exceed level IV of the Executive Schedule and also includes fees that PHAs earned in the COCC derived from Section 8 and Section 9 after the implementation of asset management.
Since these fees were collected from Section 8 or Section 9 funding, it is Congress’ mandate that any fees a PHA collects that originate from Section 8 or Section 9 remain subject to this limitation and counts toward the amounts limited by Congress during the PHA’s FY. Refer to PIH Notice 2016-14 for more information.
The term covered individuals includes:
- The “chief executive officer” as well as “any other official or employee” of the PHA with an annual salary (including any bonus) greater than the then prevailing salary for level IV of the Executive Schedule.
- Persons who are employed in a legally separate entity of the PHA but are reported in the PHA’s financial statement as a component unit in accordance with applicable accounting standards.
The term covered individuals does not include:
- Persons who work on an hourly basis, as needed, and are paid an hourly rate.
- Independent contractors. PHAs must determine on a case-by-case basis whether or not an individual providing services under a contract or other agreement is a covered individual. The determination of whether such an individual is an independent contractor or an employee depends on the relationship between the PHA and the individual, not on the name on the contract or agreement. Guidance for making this determination is provided by the Internal Revenue Service at irs.gov.
The term chief executive officer includes:
- The chief operating officer, the executive director, or similarly titled individuals.
- For PHAs that are divisions or departments of another entity such as a state, county, locality, or non-profit that administers the federal Section 8 HCV or 9 programs and receives federal funds under Section 8 or 9, the term includes similarly titled individuals at the PHA who are employees of that other entity.
The term any other official or employee includes:
- All officials or employees of the PHA within the ordinary understanding of those terms.
As provided by Congressional appropriations in FFY 2015, salaries (including bonuses) are subject to the restriction. Overtime and benefits (such as retirement, life insurance, medical insurance, or the use of a PHA vehicle) are not.
The term salary includes:
- Payments to all covered individuals who are paid on an annual basis.
- Situations where multiple PHAs collectively hire one person for an annual amount under a single agreement.
The term bonus refers to:
- Additional taxable compensation that a covered individual receives during the PHA’s FY that is generally a one-time payment based on performance or meeting performance measures but not necessarily limited to this standard.
- If a reasonable person can conclude that certain additional taxable compensation (beyond salary) appears to be a bonus, it should be treated as a bonus and falls under the restrictions of the appropriation acts.
- Further, for purposes of this notice, salaries (including any bonuses) are the amounts the PHA pays to an individual during the PHA’s fiscal year.
If a PHA has a FY rather than a calendar year end, the PHA must calculate the impacted payments for the calendar year.
