B-141344, MAR. 10, 1960

B-141344, MAR. 10, 1960

TO HONORABLE ROBERT E. MCLAUGHLIN, PRESIDENT:

ON FEBRUARY 23, 1960, YOU REQUESTED REVIEW OF OUR DECISION OF JANUARY 6, 1960, B-141344, TO YOU, CONCERNING THE APPLICATION OF THE ACT OF MAY 10, 1916, AS AMENDED BY THE ACT OF AUGUST 29, 1916, 5 U.S.C. 58 (1952 EDITION), TO TEMPORARY AND PROBATIONAL TEACHERS EMPLOYED BY THE DISTRICT OF COLUMBIA GOVERNMENT DURING THE PERIOD BETWEEN THE EFFECTIVE DATE OF APPOINTMENTS AND THE OPENING DAY OF SCHOOL WHEN SERVICES FOR THE SCHOOL YEAR ARE FIRST REQUIRED.

IN OUR DECISION OF JANUARY 6, 1960, WE HELD THAT SINCE, SO FAR AS DUAL EMPLOYMENT IS CONCERNED, THE CONGRESS HAD MADE NO DISTINCTION BETWEEN TEMPORARY, PROBATIONAL, AND REGULAR TEACHERS OF THE DISTRICT OF COLUMBIA, THE 1916 ACT APPLIES TO EMPLOYEES SERVING UNDER TEMPORARY AND PROBATIONARY TEACHING APPOINTMENTS WITHOUT A BREAK IN SERVICE BETWEEN SUCH APPOINTMENTS CONCURRENTLY WITH SUMMER EMPLOYMENT IN THE DEPARTMENT OF PUBLIC HEALTH, D.C.

THE RECORD SUBMITTED BY THE DISTRICT OF COLUMBIA GOVERNMENT ON NOVEMBER 27, 1959, SHOWS THE QUESTIONED PERIODS OF EMPLOYMENT FOR THE TEACHER--- MR. JOHN G. TIEDEMANN--- CONCERNED IN YOUR REQUEST FOR A DECISION, AS FOLLOWS:

TABLE

SERVICE IN PUBLIC SCHOOLS, D.C.

SALARY

DATES TYPE OF APPOINTMENT APPT. NOT ANNUAL

APPOINTED AND PROMOTIONS TO EXCEED CLASS RATE

SEPT. 1, 1956 TEMPORARY 6/30/57 18B $4400

JAN. 23, 1957 PLACEMENT CREDIT 18B 4560

JULY 1, 1957 EXTEND TEMPORARY 6/30/58 18B 4720

APPOINTMENT AND

CREDIT 2-YEAR

LONGEVITY

JAN. 1, 1958 PROMOTED 18C 5550

JULY 1, 1958 APPOINTED PROBATIONARY 18C 5725

JULY 1, 1959 SALARY INCREASE 18C5900

JUNE 17, 1957 CLINICAL PSYCHOLOGIST 9/1/57 GS-7 4525

SEPT. 1, 1957 EXPIRATION OF APPOINTMENT

JULY 1, 1959 CLINICAL PSYCHOLOGIST 8/31/59 GS-9 5985

AUG. 31, 1959 EXPIRATION OF APPOINTMENT

YOU ENCLOSE A LETTER FROM THE TEACHER CONCERNED IN WHICH HE SAYS HE UNDERSTOOD THAT HIS TEMPORARY APPOINTMENT TERMINATED WITH THE CLOSING OF THE SCHOOL YEAR IN JUNE 1957. HE ALSO SAYS THAT HIS IMMEDIATE SUPERVISOR INFORMED HIM AT THAT TIME THAT HIS SERVICES WERE SATISFACTORY AND THAT HE COULD APPLY FOR REAPPOINTMENT FOR THE COMING YEAR 1957-58, IF HE DESIRED, BUT THAT HIS APPLICATION WOULD BE HELD PENDING BUDGETARY ALLOWANCE AND APPROVAL BY THE BOARD OF EDUCATION TITLED 31, SECTION 667A, OF THE DISTRICT OF COLUMBIA CODE PROVIDES THAT THE BOARD OF EDUCATION AUTHORIZED TO APPOINT TEMPORARY EMPLOYEES FOR PERIODS NOT TO EXTEND BEYOND JUNE 30 OF THE FISCAL YEAR IN WHICH THE APPOINTMENTS ARE MADE. THE TEACHER HAS FURNISHED IN SUPPORT OF HIS CASE A COPY OF PERSONNEL ACTION NUMBER B-150 WHICH SHOWS THAT AFTER HIS TEMPORARY APPOINTMENT ENDED ON JUNE 30, 1957, HE DID NOT RECEIVE ANEW TEMPORARY APPOINTMENT UNTIL ACTION WAS TAKEN BY THE BOARD OF EDUCATION ON SEPTEMBER 17, 1957, TO APPROVE HIS APPLICATION. IT APPEARS FROM THIS INFORMATION THAT THERE WAS A BREAK IN SERVICE IN MR. TIEDEMANN'S CASE FOR DUAL COMPENSATION PURPOSES BETWEEN HIS TEMPORARY APPOINTMENT WHICH ENDED ON JUNE 30, 1957, AND HIS TEMPORARY APPOINTMENT BY THE BOARD OF EDUCATION ON SEPTEMBER 17, 1957, EVEN THOUGH THE APPOINTMENT SHOWS JULY 1, 1957, AS ITS EFFECTIVE DATE. THEREFORE, WE HOLD THAT THE 1916 ACT DOES NOT APPLY TO HIS EMPLOYMENT IN THE DEPARTMENT OF PUBLIC HEALTH, D.C., DURING THE PERIOD JULY 1, 1957, TO AUGUST 31, 1957. TO THAT EXTENT OUR DECISION OF JANUARY 6, 1960, B-141344, IS MODIFIED. HOWEVER, THE 1916 ACT DOES APPLY TO THE PERIOD JUNE 17 THROUGH 30, 1957, SINCE HE RECEIVED CONCURRENTLY OVER THAT PERIOD SALARY AS A SCHOOL TEACHER AND AS AN EMPLOYEE OF THE DEPARTMENT OF PUBLIC HEALTH, D.C.

CONCERNING THE PERIOD JULY 1, 1959, TO AUGUST 31, 1959, THE TEACHER HAS FURNISHED A COPY OF PERSONNEL ACTION NUMBER B-319 WHICH SHOWS THAT ON AUGUST 19, 1958, THE BOARD OF EDUCATION APPROVED HIS APPOINTMENT IN A PROBATIONARY STATUS RETROACTIVE TO JULY 1, 1958. HE DOES NOT ALLEGE AND THE PERSONNEL ACTION DOES NOT SHOW ANY LIMITATION FOR THIS APPOINTMENT. WE HAVE BEEN INFORMALLY ADVISED THAT THE PROBATIONARY APPOINTMENT IS CONTINUOUS AND THAT IT DID NOT REQUIRE ANY FORMAL ACTION ON JULY 1, 1959, TO COVER HIS EMPLOYMENT AFTER THAT DATE. IN THESE CIRCUMSTANCES OUR DECISION OF JANUARY 6, 1960, IS CORRECT IN ITS HOLDING THAT THE 1916 ACT APPLIES TO TEACHERS SERVING UNDER PROBATIONARY TEACHING APPOINTMENTS WITHOUT A BREAK IN SERVICE BETWEEN SUCH APPOINTMENTS CONCURRENTLY WITH SUMMER EMPLOYMENT IN THE DEPARTMENT OF PUBLIC HEALTH, D.C.

IN MR. TIEDEMANN'S LETTER HE ALLEGES THAT AN EMPLOYEE OF THE PUBLIC HEALTH DEPARTMENT, D.C., ORALLY INFORMED HIM THAT HE COULD BE EMPLOYED BY THE DEPARTMENT OF PUBLIC HEALTH, D. C., DURING THE PERIOD JULY 1 TO AUGUST 31, 1959, WITHOUT VIOLATING THE 1916 ACT. HE ASSUMES THIS ACTION WAS BASED UPON THE APPROPRIATION ACT FOR THE DISTRICT OF COLUMBIA (74 STAT. 227) WHICH PROVIDES THAT THE 1916 ACT SHALL NOT APPLY FROM JULY 1 TO AUGUST 29, 1959, TO TEACHERS OF THE DISTRICT OF COLUMBIA WHEN EMPLOYED BY ANY OF THE BRANCHES OF THE UNITED STATES GOVERNMENT. HE ASKS, UPON THE BASIS OF THAT INFORMATION, WHETHER THE DEPARTMENT OF PUBLIC HEALTH, D.C., MAY BE CONSIDERED DIRECTLY OR INDIRECTLY AS A PART OF THE UNITED STATES GOVERNMENT WITHIN THE MEANING OF THE ABOVE PROVISION IN THE APPROPRIATION ACT FOR THE DISTRICT OF COLUMBIA. HE ALSO ASKS WHETHER AN INDIVIDUAL SHOULD BE HELD RESPONSIBLE FUR DUAL COMPENSATION WHEN HE ACCEPTS IN GOOD FAITH THE INFORMATION FROM THE EMPLOYING GOVERNMENT AGENCY THAT HE IS ELIGIBLE FOR EMPLOYMENT AND, AFTER ACCEPTANCE OF THE EMPLOYMENT PLUS SATISFACTORY SERVICE, IS INFORMED BY ANOTHER GOVERNMENT AGENCY THAT HE MAY NOT HAVE BEEN ELIGIBLE.

GENERALLY, STATUTES WHICH REFER TO UNITED STATES GOVERNMENT EMPLOYEES DO NOT EFFECT DISTRICT OF COLUMBIA GOVERNMENT EMPLOYEES UNLESS THERE IS AN EXPRESS PROVISION WHICH SPECIFICALLY INCLUDES THEM IN SUCH STATUTES. THERE IS NO PROVISION IN THE CURRENT DISTRICT OF COLUMBIA APPROPRIATION ACT NOR DOES ANYTHING APPEAR IN ITS LEGISLATIVE HISTORY INDICATING THAT THE CONGRESS INTENDED TO INCLUDE EMPLOYMENT IN THE DISTRICT OF COLUMBIA GOVERNMENT IN THE PROVISION WHICH SPECIFICALLY EXCLUDES TEACHERS OF THE DISTRICT OF COLUMBIA FROM THE PROVISIONS OF THE 1916 ACT WHEN EMPLOYED BY ANY OF THE BRANCHES OF THE UNITED STATES GOVERNMENT. THEREFORE, SINCE THE DEPARTMENT OF PUBLIC HEALTH, D.C., IS NOT UNDER THE JURISDICTION OR CONTROL OF ANY AGENCY OF THE FEDERAL GOVERNMENT, IT MAY NOT BE CONSIDERED DIRECTLY OR INDIRECTLY AS A PART OF THE UNITED STATES GOVERNMENT WITHIN THE MEANING OF THE PROVISION IN THE APPROPRIATION ACT FOR THE DISTRICT OF COLUMBIA.

CONCERNING MR. TIEDEMANN'S QUESTION WHETHER HE SHOULD BE HELD RESPONSIBLE FOR ERRONEOUS INFORMATION FURNISHED BY A DISTRICT OF COLUMBIA GOVERNMENT EMPLOYEE, THE COURTS HAVE HELD THAT THE GOVERNMENT IS NOT BOUND OR ESTOPPED BY AN ERRONEOUS PAYMENT MADE BY ITS OFFICERS WHETHER MADE UNDER MISTAKE OF FACT OR MISTAKE OF LAW. SEE UNITED STATES V. WURTS, 303 U.S. 414; WISCONSIN CENTRAL RAILROAD V. UNITED STATES, 164 ID. 190; UNITED STATES V. SUTTON CHEMICAL COMPANY, 11 F.2D 24; AND THE ANNOTATIONS APPEARING IN 63 A.L.R. 1347.

IN LIGHT OF THE FOREGOING COMMENTS, OUR VIEW IS THAT MR. TIEDEMANN RECEIVED DUAL COMPENSATION IN CONTRAVENTION OF THE 1916 ACT FOR THE PERIODS JUNE 17 THROUGH 30, 1957, AND JULY 1 THROUGH AUGUST 31, 1959.