A-80796, APRIL 16, 1937, 16 COMP. GEN. 927

A-80796, APRIL 16, 1937, 16 COMP. GEN. 927

RETIREMENT - CIVILIAN - ANNUITIES - COMPUTATIONS INVOLVING "WHEN ACTUALLY EMPLOYED" APPOINTMENTS ONLY ACTUAL PERIODS OF SERVICE OF EMPLOYEES APPOINTED AND PAID ON A "WHEN ACTUALLY EMPLOYED" BASIS WHO ARE OTHERWISE ENTITLED TO RETIREMENT BENEFITS, MAY BE INCLUDED IN LENGTH OF SERVICE FOR THE PURPOSE OF COMPUTING RETIREMENT ANNUITY UNDER THE CIVIL SERVICE RETIREMENT ACT, BUT ANNUITIES OF EMPLOYEES HERETOFORE RETIRED COMPUTED OTHERWISE NEED NOT BE DISTURBED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, APRIL 16, 1937:

YOUR LETTER OF MARCH 23, 1937, IS AS FOLLOWS:

SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, READS IN PART AS FOLLOWS:

"SUBJECT TO THE PROVISIONS OF SECTION 9 HEREOF, THE AGGREGATE PERIOD OF SERVICE WHICH FORMS THE BASIS FOR CALCULATING THE AMOUNT OF ANY BENEFIT PROVIDED IN THIS ACT SHALL BE COMPUTED FROM THE DATE OF ORIGINAL EMPLOYMENT, WHETHER AS A CLASSIFIED OR AN UNCLASSIFIED EMPLOYEE IN THE CIVIL SERVICE OF THE UNITED STATES * * *.

"IN COMPUTING LENGTH OF SERVICE FOR THE PURPOSES OF THIS ACT ALL PERIODS OF SEPARATION FROM THE SERVICE, AND SO MUCH OF ANY LEAVES OF ABSENCE AS MAY EXCEED SIX MONTHS IN THE AGGREGATE IN ANY CALENDAR YEAR, SHALL BE EXCLUDED * * *.'

IN THE ADMINISTRATION OF THIS ACT, THE COMMISSION HOLDS THAT EMPLOYEES REGULARLY APPOINTED ARE EMPLOYEES OF THE GOVERNMENT DURING THE ENTIRE PERIOD THEIR NAMES ARE CARRIED ON THE ROLLS ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED. THIS IS SUPPORTED BY DECISION OF THE COMPTROLLER GENERAL DATED MAY 11, 1934, A-48932, IN THE CASE OF HERBERT D. BROWN, WHO WAS APPOINTED AS A MEMBER OF THE BOARD OF ACTUARIES OF THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND, EFFECTIVE JULY 1, 1933, AT A BASIC SALARY OF $20.00 PER DAY WHEN ACTUALLY EMPLOYED. THE FOLLOWING IS QUOTED FROM THIS DECISION:

"THE COMPENSATION BEING ON A PER DIEM BASIS, THE FACT THAT HE HAS ACTUALLY RECEIVED ONLY 4 DAYS' COMPENSATION UNDER HIS APPOINTMENT IN THAT CAPACITY DOES NOT, OF COURSE, JUSTIFY ANY DIFFERENT CONCLUSION THAN THAT MR. BROWN SINCE JULY 1, 1933, HAS OCCUPIED A POSITION IN THE GOVERNMENT SERVICE AND THAT IN CONSEQUENCE THE STATUTORY PROHIBITION AGAINST RECEIPT OF ACTIVE SERVICE PAY AND RETIREMENT ANNUITY IS APPLICABLE.

"ACCORDINGLY, THERE IS NOT AUTHORIZED TO BE PAID TO MR. BROWN RETIREMENT ANNUITY IN ANY AMOUNT DURING THE PERIOD HE CONTINUES TO HOLD THE "POSITION IN THE GOVERNMENT SERVICE" AS A MEMBER OF THE BOARD OF ACTUARIES.'

REFERENCE MAY ALSO BE HAD IN THIS CONNECTION TO DECISION OF SEPTEMBER 29, 1927 (7 COMP. GEN. 246), WHICH READS IN PART AS FOLLOWS:

"WITH RESPECT TO THE EMPLOYEES RETAINED BY YOUR DEPARTMENT AS ENGINEERS, ETC., ON A PER DIEM BASIS WHILE ACTUALLY EMPLOYED, AND WHOSE EMPLOYMENT APPEARS TO BE FOR INTERMITTENT SERVICE ONLY, ATTENTION IS INVITED TO THE PROVISION APPEARING IN EACH OF THE TWO ACTS IN QUESTION AS FOLLOWS:

" "* * * THE PRESIDENT SHALL HAVE POWER, IN HIS DISCRETION, TO EXCLUDE FROM THE OPERATION OF THIS ACT ANY EMPLOYEE OR GROUP OF EMPLOYEES IN THE CIVIL SERVICE WHOSE TENURE OF OFFICE OR EMPLOYMENT IS INTERMITTENT OR OF UNCERTAIN DURATION * * *.'

"UNLESS AND UNTIL ACTION IS TAKEN, PURSUANT TO SAID PROVISION, TO EXCLUDE THESE PER DIEM EMPLOYEES FROM THE OPERATION OF THE RETIREMENT ACT, THE PER DIEM COMPENSATION PAID TO THEM WHEN ACTUALLY EMPLOYED MUST BE HELD SUBJECT TO THE RETIREMENT DEDUCTIONS, AND IN COMPUTING THE AMOUNT TO BE COLLECTED ON ACCOUNT OF PAST SERVICE IN SUCH CASES ATTENTION IS INVITED TO THE PROVISIONS OF SECTION 9 OF THE ACT OF JULY 3, 1926, 44 STAT. 910. SEE ALSO PARAGRAPH 2 OF SECTION 5 OF SAID ACT, 44 STAT. 907.'

PARAGRAPH 2, SECTION 5, OF THE ACT OF JULY 3, 1926, MENTIONED ABOVE, IS, WITH AN EXCEPTION NOT HERE MATERIAL, IDENTICAL WITH THE CORRESPONDING PORTION OF THE ACT OF MAY 29, 1930, AND A REFERENCE THERETO LEADS TO THE CONCLUSION THAT THE SIX MONTHS' LEAVE PROVISION SHOULD BE APPLIED IN CASES INVOLVING PAYMENT OF SALARY ON A WHEN ACTUALLY-EMPLOYED BASIS.

THE COMMISSION IN 1935 HAD OCCASION TO CORRESPOND WITH THE DEPARTMENT OF STATE RELATIVE TO THE COMPUTATION OF CREDIT UNDER THE CIVIL SERVICE RETIREMENT LAW FOR SERVICE AS HONORARY VICE CONSUL. THESE EMPLOYEES ARE COMMISSIONED BY THE SECRETARY OF STATE AS VICE CONSULS, AND THE COMMISSIONS REMAIN CONTINUOUSLY IN FORCE UNTIL REVOKED BY THE SECRETARY OF STATE. THEY ACT IN THE DESIGNATED CAPACITY IN THE ABSENCE OF THE PRINCIPAL CONSULAR OFFICER, AT TIMES PERFORMING NO SERVICE AND SELDOM FOR MORE THAN SIX MONTHS IN ANY ONE YEAR, AND ARE PAID FOR ACTUAL SERVICE AT A RATE EQUAL TO ONE-HALF THE ANNUAL SALARY OF THE ABSENT PRINCIPAL CONSULAR OFFICER. THE COMMISSION HELD THAT INASMUCH AS THESE EMPLOYEES WERE SUBJECT TO CALL AT ALL TIMES DURING THE PERIOD THEIR COMMISSIONS WERE IN FORCE THEY SHOULD BE GIVEN CREDIT, WERE THEY LATER EMPLOYED IN A POSITION SUBJECT TO THE CIVIL SERVICE RETIREMENT LAW, FOR ALL ACTIVE SERVICE RENDERED PLUS SO MUCH OF ANY LEAVES OF ABSENCE AS DID NOT EXCEED SIX MONTHS IN THE AGGREGATE DURING ANY CALENDAR YEAR, AND SO ADVISED THE DEPARTMENT OF STATE.

IT IS NOW DESIRED TO CALL ATTENTION TO YOUR DECISION OF OCTOBER 20, 1936 (16 COMP. GEN. 397), RENDERED IN RESPONSE TO A REQUEST FROM THE SECRETARY OF STATE FOR AN INTERPRETATION OF SECTION 26 (O) OF THE ACT OF FEBRUARY 23, 1931, IN WHICH YOU STATED:

"IT IS UNDERSTOOD TO HAVE BEEN THE PRACTICE TO APPOINT VICE CONSULS, NOT OF CAREER, FROM PRIVATE LIFE TO SERVE AS ACTING CONSULS ONLY IN THE ABSENCE OF THE CONSULS, AND TO PAY THEM COMPENSATION ONLY FOR THE PERIOD OF ACTUAL SERVICE. SEE SECTION 1695, REVISED STATUTES; 22 COMP. DEC. 143.

"SUCH AN APPOINTMENT IS SOMEWHAT ANALOGOUS TO THAT OF A CONSULTANT OR OTHER PERSON APPOINTED OR DESIGNATED TO BE AVAILABLE FOR CALLING TO ACTIVE DUTY ONLY ON DAYS WHEN SERVICES ARE ACTUALLY REQUIRED, COMPENSATION TO BE PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED.' THE STATUS OF THIS CLASS OF FEDERAL PERSONNEL IS SUCH THAT THE RULES FOR COMPUTING LONGEVITY OF FULL-TIME PERSONNEL MAY NOT BE APPLIED. IN FACT, THIS CLASS OF SERVICE IS NOT FOR COUNTING AT ALL IN COMPUTING LONGEVITY UNDER THE CIVIL RETIREMENT ACT OF MAY 22, 1920, AS AMENDED.'

VICE CONSULS NOT OF CAREER MAY BE CLASSED IN TWO GENERAL GROUPS, THOSE WHO HOLD COMMISSIONS INDEPENDENTLY OF ANY OTHER CONNECTION WITH THE UNITED STATES GOVERNMENT (DENOMINATED HONORARY VICE CONSULS) AND THOSE WHO HOLD SUCH COMMISSIONS CONCURRENTLY WITH A FULL TIME CLERICAL POSITION UNDER THE DEPARTMENT. THIS LATTER GROUP IS INCLUDED WITHIN THE OPERATION OF THE CIVIL SERVICE RETIREMENT LAW BY THE TERMS OF SECTION 3 (B) OF THE ACT OF MAY 29, 1930, BUT THE COMMISSION HOLDS THAT HONORARY VICE CONSULS WHILE SERVING AS SUCH ARE NOT SO INCLUDED BY REASON OF THE INTERMITTENCY AND UNCERTAINTY OF THEIR TENURE OF EMPLOYMENT.

THIS OFFICE DOES NOT FEEL THAT AN HONORARY VICE CONSUL IS AS MUCH OF A CONSULTANT AS WAS MR. HERBERT D. BROWN, THE SUBJECT OF THE COMPTROLLER GENERAL'S DECISION OF MAY 11, 1934, WHILE A MEMBER OF THE BOARD OF ACTUARIES. COULD MR. BROWN HAVE BEEN CONSIDERED AN EMPLOYEE FOR RETIREMENT CREDIT PURPOSES FOR ONLY THE FOUR DAYS OF SERVICE ACTUALLY PERFORMED DURING THE PERIOD, JULY 1, 1933, TO JUNE 30, 1934, HE SHOULD THEN HAVE BEEN ENTITLED TO ANNUITY DURING THE REMAINING 11 MONTHS AND 26 DAYS, AND THE FACT THAT HE WAS DENIED THIS PRIVILEGE LEADS INEVITABLY TO THE CONCLUSION THAT FULL CREDIT SHOULD BE ALLOWED FOR SERVICE OF THIS CHARACTER, SUBJECT, OF COURSE, TO THE SIX MONTHS' LEAVE PROVISION. MR. BROWN'S SUBSEQUENT CLAIM FOR ANNUITY WAS ADJUDICATED ON THIS BASIS.

YOUR HOLDING OF OCTOBER 20, 1936, WOULD MATERIALLY CHANGE THE WELL ESTABLISHED PRACTICE RELATIVE TO CREDITING SERVICE UNDER THE CIVIL SERVICE RETIREMENT LAW, NOT ONLY WITH RESPECT TO HONORARY VICE CONSULS BUT IN NUMEROUS OTHER INSTANCES OF EMPLOYEES PAID ON A WHEN ACTUALLY EMPLOYED BASIS. IT IS, THEREFORE, RESPECTFULLY REQUESTED THAT YOU RECONSIDER THIS MATTER IN THE LIGHT OF THE COMMISSION'S VIEW THAT EMPLOYEES REGULARLY CARRIED ON THE ROLLS AND SUBJECT TO CALL AT ALL TIMES, EVEN THOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, SHOULD NOT BE CONSIDERED AS ABSOLUTELY SEPARATED ON THE DAYS OR OTHER PERIODS WHEN NO ACTUAL SERVICE IS PERFORMED, BUT RATHER THAT THEY SHOULD RECEIVE CREDIT FOR THE ACTUAL DAYS OF SERVICE PLUS SO MUCH OF ANY LEAVES OF ABSENCE AS DOES NOT EXCEED SIX MONTHS IN THE AGGREGATE IN ANY CALENDAR YEAR. THE COMMISSION DOES NOT, OF COURSE, CREDIT ANY SERVICE AS CONSULTING PHYSICIAN OR OTHER CONSULTANT PAID ON A FEE BASIS, SUCH SERVICE BEING IN THE NATURE OF CONTRACT EMPLOYMENT.

THE DECISION OF OCTOBER 20, 1936, 16 COMP. GEN. 397, INVOLVED A CASE PRESENTED BY THE SECRETARY OF STATE REQUIRING AN INTERPRETATION OF THE FOREIGN SERVICE RETIREMENT ACT ADMINISTERED BY THE SECRETARY OF STATE. WHEN A DECISION OF THIS OFFICE HAS BEEN RENDERED TO THE HEAD OF A DEPARTMENT ON A SUBMISSION PURSUANT TO LAW, SUCH DECISION MAY NOT BE RECONSIDERED AT THE REQUEST OF ANY OTHER PARTY. THIS OFFICE, THEREFORE, MAY NOT RECONSIDER THE CASE PRESENTED BY THE SECRETARY OF STATE UPON THE BASIS OF YOUR LETTER.

HOWEVER, YOUR LETTER WILL BE REGARDED AS A REQUEST FOR DECISION UPON THE GENERAL QUESTION WHETHER ANY PERIOD OTHER THAN ACTUAL PERIODS OF SERVICE OF EMPLOYEES APPOINTED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" MAY BE INCLUDED AS SERVICE WITHIN THE MEANING OF THE PARAGRAPH OF SECTION 5 OF THE CIVIL SERVICE RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 472, WHICH READS AS FOLLOWS:

IN COMPUTING LENGTH OF SERVICE FOR THE PURPOSES OF THIS ACT ALL PERIODS OF SEPARATION FROM THE SERVICE, AND SO MUCH OF ANY LEAVES OF ABSENCE AS MAY EXCEED SIX MONTHS IN THE AGGREGATE IN ANY CALENDAR YEAR, SHALL BE EXCLUDED, EXCEPT SUCH LEAVES OF ABSENCE GRANTED EMPLOYEES WHILE RECEIVING BENEFITS UNDER THE UNITED STATES EMPLOYEES' COMPENSATION ACT, AND IN THE CASE OF SUBSTITUTES IN THE POSTAL SERVICE CREDIT SHALL BE GIVEN FROM DATE OF ORIGINAL APPOINTMENT AS A SUBSTITUTE.

CONTRARY TO THE INFERENCE WHICH THE COMMISSION APPEARS TO HAVE DRAWN FROM THE DECISION OF MAY 11, 1934, A-48932, IN THE CASE OF HERBERT D. BROWN, AND THE DECISION OF SEPTEMBER 29, 1927, 7 COMP. GEN. 246, THAT, FOR THE PURPOSE OF ASCERTAINING LENGTH OF SERVICE UNDER THE CIVIL RETIREMENT ACT, EMPLOYEES REGULARLY APPOINTED ARE EMPLOYEES OF THE GOVERNMENT DURING THE ENTIRE PERIOD THEIR NAMES ARE CARRIED ON THE ROLLS, ALTHOUGH PAID ONLY WHEN ACTUALLY EMPLOYED, THIS OFFICE HAS NEVER GIVEN FORMAL CONSIDERATION TO THAT SPECIFIC MATTER. (SEE, HOWEVER, DECISION A-77027, DATED JULY 22, 1936, TO YOU.)

IN THE DECISION OF MAY 11, 1934, WHICH AFFIRMED THE PRIOR DECISION OF MAY 23, 1933, IT WAS HELD THAT THE PAYMENT OF RETIREMENT ANNUITY TO HERBERT D. BROWN WHILE HE REMAINED ON THE FEDERAL ROLLS AS A MEMBER OF THE BOARD OF ACTUARIES WAS PROHIBITED BY THE FOLLOWING PROVISION IN SECTION 7 OF THE RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 474:

SHOULD AN ANNUITANT UNDER THE PROVISIONS OF THIS SECTION BE REEMPLOYED IN A POSITION INCLUDED IN THE PROVISIONS OF THIS ACT, OR IN ANY OTHER POSITION IN THE GOVERNMENT SERVICE, THE ANNUITY SHALL CEASE, AND ALL RIGHTS AND BENEFITS UNDER THE PROVISIONS OF THIS SECTION SHALL TERMINATE FROM AND AFTER THE DATE OF SUCH EMPLOYMENT.

THIS PROHIBITION IS APPLICABLE EVEN THOUGH NO COMPENSATION IS PAID IN THE FEDERAL POSITION. NO QUESTION WAS PRESENTED, AND NO HOLDING THERE MADE, REGARDING THE COUNTING OF THE SERVICE OF HERBERT D. BROWN FOR RETIREMENT PURPOSES.

IN THE DECISION OF SEPTEMBER 29, 1927, SUPRA, IT WAS HELD THAT RETIREMENT DEDUCTIONS SHOULD BE MADE FROM THE PER DIEM COMPENSATION OF EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE WHO WERE PAID ONLY WHEN ACTUALLY EMPLOYED. AS IN THE BROWN CASE, NO QUESTION WAS PRESENTED OR DECIDED IN THIS DECISION RESPECTING THE COUNTING OF SERVICE FOR RETIREMENT PURPOSES.

RETIREMENT IS BASED ON "LENGTH OF SERVICE.' THE LAW SPECIFICALLY PROVIDES THAT "SO MUCH OF ANY LEAVES OF ABSENCE AS MAY EXCEED 6 MONTHS IN THE AGGREGATE IN ANY CALENDAR YEAR, SHALL BE CLUDED," THUS AUTHORIZING THE COUNTING OF PERIODS OF LEAVES OF ABSENCE OF 6 MONTHS OR LESS IN ANY CALENDAR YEAR AS SERVICE. 6 COMP. GEN. 249, 250. BUT "LEAVES OF ABSENCE" DURING THE 6 MONTHS OR LESS IMPLIES ADMINISTRATIVE ACTION TO EXCUSE THE EMPLOYEE FROM ACTIVE DUTY WITH PAY OR TO PLACE HIM IN AN INACTIVE STATUS WITHOUT PAY. IT HAS BEEN HELD THAT AN APPOINTMENT PROVIDING FOR PAYMENT OF COMPENSATION ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" IS INCONSISTENT WITH THE GRANTING OF LEAVE OF ABSENCE WITH PAY. 15 COMP. GEN. 1058, 1063 (ANSWER TO QUESTION 5). (SEE ALSO PARS. 19 AND 22 OF THE UNIFORM ANNUAL AND SICK LEAVE REGULATIONS, RESPECTIVELY.) THE SAME IS TRUE WITH REGARD TO LEAVE OF ABSENCE WITHOUT PAY. THE PERIODS WHEN SUCH AN EMPLOYEE IS NOT ON ACTIVE DUTY MAY NOT BE REGARDED AS "LEAVES OF ABSENCE" WITHIN THE MEANING OF THE QUOTED PROVISION OF THE RETIREMENT ACT AND, ACCORDINGLY, MAY NOT BE INCLUDED AS"SERVICE.' THAT THE QUOTED PROVISION OF THE RETIREMENT ACT AUTHORIZING THE COUNTING OF NOT TO EXCEED 6 MONTHS' LEAVE OF ABSENCE IN ANY CALENDAR YEAR AS SERVICE WAS INTENDED BY THE CONGRESS TO RELATE ONLY TO FULL-TIME EMPLOYMENT IS SHOWN BY THE EXPRESS PROVISION AUTHORIZING SUBSTITUTE POSTAL EMPLOYEES TO BE GIVEN CREDIT FOR SERVICE FROM DATE OF ORIGINAL APPOINTMENT AS A SUBSTITUTE. ACCORDINGLY, YOU ARE ADVISED IT IS THE VIEW OF THIS OFFICE THAT ONLY THE ACTUAL PERIODS OF SERVICE OF EMPLOYEES APPOINTED AND PAID ON THE BASIS OF "WHEN ACTUALLY EMPLOYED" WHO ARE OTHERWISE ENTITLED TO RETIREMENT BENEFITS MAY BE INCLUDED IN "LENGTH OF SERVICE" FOR THE PURPOSE OF COMPUTING RETIREMENT ANNUITY. THIS DECISION IS NOT TO BE CONSIDERED AS REQUIRING RECOMPUTATION OF ANNUITIES OF EMPLOYEES HERETOFORE RETIRED.