A-50660, AUGUST 23, 1933, 13 COMP. GEN. 54

A-50660, AUGUST 23, 1933, 13 COMP. GEN. 54

REEMPLOYMENT OF RETIRED CIVILIAN PERSONNEL - NATIONAL RECOVERY ADMINISTRATION THE RATE OF COMPENSATION TO BE FIXED BY THE NATIONAL RECOVERY ADMINISTRATION FOR RETIRED PERSONNEL OF THE CLASSES AUTHORIZED BY LAW TO BE REEMPLOYED--- I.E., NOT AUTOMATICALLY RETIRED FOR AGE--- WHEN APPOINTED OR EMPLOYED BY SAID ADMINISTRATION SHOULD BE ON THE SAME BASIS AS THAT FOR ANY OTHER OFFICER OR EMPLOYEE OF SAID ADMINISTRATION IN THE SAME OR SIMILAR OFFICE OR POSITION. RETIREMENT DEDUCTIONS AT THE RATE OF 3 1/2 PERCENT SHOULD BE MADE FROM THEIR TOTAL OR BASIC COMPENSATION UNLESS AND UNTIL OTHERWISE DECIDED BY COMPETENT AUTHORITY. IN NO CASE MAY BOTH RETIREMENT ANNUITY AND CIVILIAN COMPENSATION BE PAID TO THE SAME PERSON FOR THE SAME PERIOD OF TIME.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR, NATIONAL RECOVERY ADMINISTRATION, AUGUST 23, 1933:

THERE HAS BEEN RECEIVED THE FOLLOWING LETTER FROM THE CHIEF OF LEGAL RESEARCH OF THE NATIONAL RECOVERY ADMINISTRATION, DATED AUGUST 22, 1933,PRESUMABLY BY YOUR DIRECTION, AS FOLLOWS:

WE HAVE BEEN REQUESTED TO SUPPLY INFORMATION RELATIVE TO THE SALARIES THAT RETIRED OR ACTIVELY WORKING GOVERNMENT WORKERS MAY RECEIVE WHEN TRANSFERRED FROM ANOTHER DEPARTMENT, AND ALONG WITH THE EXACT CITATIONS WHERE SUCH RULINGS OCCUR, WE WOULD APPRECIATE YOUR IMMEDIATE RESPONSES TO THE FOLLOWING QUESTIONS:

1. WHERE AN INDIVIDUAL IS ON RETIRED PAY AND IS TRANSFERRED TO THE NATIONAL RECOVERY ADMINISTRATION, WHAT IS THE TOTAL AMOUNT COMPENSATION THAT IS ALLOWED BY LAW?

2. IF HIS PREVIOUS POSITION IS GIVEN UP AND HE IS TRANSFERRED FULL TIME TO THE NATIONAL RECOVERY ADMINISTRATION, WHAT IS THE MAXIMUM AMOUNT OF PAY HE CAN RECEIVE?

THE LATTER QUESTION APPEARS TO BE RELATED TO THE STATUS OF ACTIVE DUTY, WHERE ONE COMPLETELY GIVES UP HIS PREVIOUS COMPENSATION RECEIVED FROM THE GOVERNMENT AND UNDERTAKES AN ENTIRELY NEW RESPONSIBILITY FULL TIME.

WE HAVE BEEN REQUESTED TO DRAFT A REPLY AS OF TUESDAY, AUGUST 22ND. WOULD APPRECIATE YOUR EARLIEST RESPONSE SO AS TO ASSIST US IN EXPEDITING THIS MATTER. KINDLY INCLUDE ANY ADDITIONAL INFORMATION THAT WILL THROW LIGHT ON THE GENERAL SCOPE OF THE ABOVE INQUIRY.

IT IS UNDERSTOOD FROM THIS SUBMISSION THAT THE QUESTIONS RELATE TO RETIRED CIVILIAN PERSONNEL AND NOT TO RETIRED MILITARY OR NAVAL PERSONNEL.

SECTION 2 OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 470, PROVIDING FOR AUTOMATIC SEPARATION FROM THE SERVICE OF EMPLOYEES WHO HAVE SERVED 15 YEARS AND HAVE REACHED THE AGES PRESCRIBED BY SECTION 1 OF THE ACT FOR AUTOMATIC SEPARATION OF VARIOUS CLASSES OF EMPLOYEES VIZ, 62, 65, AND 70 YEARS, CONCLUDES AS FOLLOWS:

NO PERSON SEPARATED FROM THE SERVICE WHO IS RECEIVING AN ANNUITY UNDER THE PROVISIONS OF SECTION 1 OF THIS ACT, SHALL BE EMPLOYED AGAIN IN ANY POSITION WITHIN THE PURVIEW OF THIS ACT.

SECTION 204 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 404, EXTENDED THE ABOVE PROHIBITION AGAINST REEMPLOYMENT BY PROVIDING AS FOLLOWS:

SEC. 204. ON AND AFTER JULY 1, 1932, NO PERSON RENDERING CIVILIAN SERVICE IN ANY BRANCH OR SERVICE OF THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA WHO SHALL HAVE REACHED THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE, APPLICABLE TO SUCH PERSON, SHALL BE CONTINUED IN SUCH SERVICE, NOTWITHSTANDING ANY PROVISION OF LAW OR REGULATION TO THE CONTRARY: PROVIDED, THAT THE PRESIDENT MAY, BY EXECUTIVE ORDER, EXEMPT FROM THE PROVISIONS OF THIS SECTION ANY PERSON WHEN, IN HIS JUDGMENT, THE PUBLIC INTEREST SO REQUIRES: PROVIDED FURTHER, THAT NO SUCH PERSON HERETOFORE DISTRICT OF COLUMBIA UNDER ANY PROVISION OF LAW OR REGULATION PROVIDING FOR SUCH RETIREMENT ON ACCOUNT OF AGE SHALL BE ELIGIBLE AGAIN TO APPOINTMENT TO ANY APPOINTIVE OFFICE, POSITION, OR EMPLOYMENT UNDER THE UNITED STATES OR THE DISTRICT OF COLUMBIA: PROVIDED FURTHER, THAT THIS SECTION SHALL NOT APPLY TO ANY PERSON NAMED IN ANY ACT OF CONGRESS PROVIDING FOR THE CONTINUANCE OF SUCH PERSON IN THE SERVICE.

NOTE PARTICULARLY THE SECOND PROVISO. UNDER THE STATUTES ABOVE QUOTED THE NATIONAL RECOVERY ADMINISTRATION WOULD NOT BE AUTHORIZED TO APPOINT OR EMPLOY ANY CIVILIAN OFFICER OR EMPLOYEE WHO HAD BEEN RETIRED ON ACCOUNT OF AGE, THAT IS, AFTER HAVING REACHED THE AGE PRESCRIBED FOR AUTOMATIC RETIREMENT, APPLICABLE TO SUCH PERSON.

SECTION 7 OF THE CIVIL RETIREMENT ACT OF MAY 29, 1930, 46 STAT. 474, PROVIDING FOR RETIREMENT OF PERSONNEL INVOLUNTARILY SEPARATED FROM THE SERVICE AFTER HAVING SERVED 15 YEARS AND HAVING REACHED THE AGE OF 55 YEARS, CONTAINS THE FOLLOWING PARAGRAPH:

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.

OFFICERS AND EMPLOYEES RETIRED ON ACCOUNT OF INVOLUNTARY SEPARATION FROM THE SERVICE UNDER THE TERMS OF SAID SECTION 7 OF THE CIVIL RETIREMENT ACT ARE ELIGIBLE FOR APPOINTMENT OR EMPLOYMENT BY THE NATIONAL RECOVERY ADMINISTRATION, BUT THEIR RETIREMENT ANNUITY WOULD AUTOMATICALLY CEASE UPON SUCH APPOINTMENT OR EMPLOYMENT.

SECTION 8 (A) OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1934, APPROVED JUNE 16, 1933, 48 STAT. 305, PROVIDES AS FOLLOWS:

SEC. 8 (A) WHENEVER AT ANY TIME HEREAFTER PRIOR TO JULY 1, 1935, ANY EMPLOYEE OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA TO WHOM THE CIVIL SERVICE RETIREMENT ACT, APPROVED MAY 29, 1930 (U.S.C., SUPP. VI, TITLE 5, CHAP. 14), APPLIES, WHO HAS AN AGGREGATE PERIOD OF SERVICE OF AT INVOLUNTARILY SEPARATED FROM THE SERVICE FOR REASONS OTHER THAN HIS MISCONDUCT, SUCH EMPLOYEE SHALL BE ENTITLED TO AN ANNUITY COMPUTED AS PROVIDED IN SECTION 4 OF SUCH ACT PAYABLE FROM THE CIVIL SERVICE RETIREMENT AND DISABILITY FUND LESS A SUM EQUAL TO 3 1/2 PERCENTUM OF SUCH ANNUITY: PROVIDED, THAT WHEN AN ANNUITANT HEREUNDER ATTAINS THE AGE WHICH WOULD HAVE BEEN THE RETIREMENT AGE PRESCRIBED FOR AUTOMATIC SEPARATION FROM THE SERVICE APPLICABLE TO SUCH ANNUITANT HAD HE CONTINUED IN THE SERVICE TO SUCH RETIREMENT AGE, SUCH DEDUCTION FROM THE ANNUITY SHALL CEASE. IF AND WHEN ANY SUCH ANNUITANT SHALL BE REEMPLOYED IN THE SERVICE OF THE DISTRICT OF COLUMBIA OR THE UNITED STATED (INCLUDING ANY CORPORATION THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES), THE RIGHT TO THE ANNUITY PROVIDED BY THIS SECTION SHALL CEASE AND THE SUBSEQUENT ANNUITY RIGHTS OF SUCH PERSON SHALL BE DETERMINED IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF RETIREMENT LAW EXISTING AT THE TIME OF THE SUBSEQUENT SEPARATION OF SUCH PERSON FROM THE SERVICE.

TO THE SAME GENERAL EFFECT IS SECTION 8 (B) RELATIVE TO THE CANAL ZONE RETIREMENT ACT.

OFFICERS OR EMPLOYEES RETIRED UNDER THE PROVISIONS OF THESE SECTIONS ARE ELIGIBLE FOR APPOINTMENT OR EMPLOYMENT BY THE NATIONAL RECOVERY ADMINISTRATION BUT PURSUANT TO THE LAST SENTENCE OF SAID SECTIONS THEIR RETIREMENT ANNUITY WOULD AUTOMATICALLY CEASE UPON SUCH APPOINTMENT OR EMPLOYMENT.

YOU ARE ADVISED, THEREFORE, THAT IN NO CASE MAY BOTH RETIREMENT ANNUITY AND CIVILIAN COMPENSATION BE PAID TO THE SAME PERSON FOR THE SAME PERIOD OF TIME. SEE 10 COMP. GEN. 309.

THE RATE OF COMPENSATION TO BE FIXED BY THE NATIONAL RECOVERY ADMINISTRATION FOR RETIRED PERSONNEL OF THE CLASSES AUTHORIZED BY LAW TO BE REEMPLOYED--- THAT IS, NOT AUTOMATICALLY RETIRED FOR AGE--- WHEN APPOINTED OR EMPLOYED BY SAID ADMINISTRATION SHOULD BE ON THE SAME BASIS AS THAT FOR ANY OTHER OFFICER OR EMPLOYEE OF SAID ADMINISTRATION IN THE SAME OR SIMILAR OFFICE OR POSITION. RETIREMENT DEDUCTIONS AT THE RATE OF 3 1/2 PERCENT SHOULD BE MADE FROM THEIR TOTAL OR BASIC COMPENSATION UNLESS AND UNTIL OTHERWISE DECIDED BY COMPETENT AUTHORITY.

THE RETIREMENT STATUS OF SUCH REEMPLOYED RETIRED PERSONNEL UPON SUBSEQUENT SEPARATION FROM THE SERVICE OF THE NATIONAL RECOVERY ADMINISTRATION WILL BE A MATTER PRIMARILY FOR THE CONSIDERATION OF THE ADMINISTRATOR OF VETERANS' AFFAIRS.

IF YOUR QUESTION RELATES TO RETIRED MILITARY OR NAVAL PERSONNEL, THEIR COMPENSATION WILL BE SUBJECT TO THE TERMS OF SECTION 212 OF THE ECONOMY ACT OF JUNE 30, 1932, 47 STAT. 406, AS FOLLOWS:

SEC. 212 (A) AFTER THE DATE OF THE ENACTMENT OF THIS ACT, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN THE PAY ADJUSTMENT ACT OF 1922 (U.S.C., TITLE 37), AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $3,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $3,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

(B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY PLUS CIVILIAN PAY AMOUNTS TO LESS THAN $3,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES.

SEE 12 COMP. GEN. 37, 101, 256 AND 448.

ATTENTION IS INVITED, ALSO, TO THE PROVISIONS OF SECTION 2 OF THE ACT OF JULY 31, 1894, AS AMENDED BY THE ACT OF MAY 31, 1924, 43 STAT. 245, WHICH WOULD PROHIBIT MILITARY OR NAVAL OFFICERS FROM HOLDING AN OFFICE OR POSITION UNDER YOUR ADMINISTRATION IF EITHER THE RETIRED PAY OR THE CIVIL OFFICE OR POSITION EQUALS OR EXCEEDS $2,500 UNLESS THE RETIREMENT WAS FOR INJURIES OR INCAPACITY INCURRED IN LINE OF DUTY.