A-32749, JANUARY 12, 1931, 10 COMP. GEN. 302

A-32749, JANUARY 12, 1931, 10 COMP. GEN. 302

RETIREMENT - POLICEMEN AND FIREMEN - DISTRICT OF COLUMBIA THE "ADDITIONAL COMPENSATION AT THE RATE OF $5 PER MONTH," AUTHORIZED BY SECTION 4 OF THE ACT OF JULY 1, 1930, 46 STAT. 840, TO BE PAID TO A LIMITED NUMBER OF POLICEMEN AND FIREMEN UNDER THE DISTRICT OF COLUMBIA FOR OUTSTANDING EFFICIENCY, IS A PART OF THE SALARY OR "MONTHLY PAY" SUBJECT TO THE DEDUCTION OF 3 AND 1/2 PERCENT FOR THE POLICEMEN AND FIREMEN'S RELIEF FUND UNDER SECTION 5 OF THE SAME ACT. 10 COMP. GEN 53 AFFIRMED.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT OF THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA, JANUARY 12, 1931:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF DECEMBER 13, 1930, AS FOLLOWS:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ENCLOSE HEREWITH COPY OF A LETTER ADDRESSED TO THEM BY THE CORPORATION COUNSEL OF THE DISTRICT OF COLUMBIA REGARDING PENSION ALLOWANCES TO POLICEMEN AND FIREMEN, IN WHICH HE REFERS TO YOUR DECISION NO. A-32749, RENDERED TO THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL, AND ASKING THAT YOU RECONSIDER THAT PORTION OF YOUR OPINION WHICH PROVIDES THAT THE $5 PER MONTH ALLOWANCE TO POLICEMEN FOR MERITORIOUS SERVICE, IS SUBJECT TO A DEDUCTION OF A 3 1/2 PERCENT PER ANNUM. THE COMMISSIONERS WOULD BE PLEASED TO HAVE YOUR ADVICE IN THE PREMISES.

THE LETTER FROM THE CORPORATION COUNSEL OF THE DISTRICT OF COLUMBIA REFERRED TO IN YOUR SUBMISSION, IS AS FOLLOWS:

RETURNING HEREWITH C.C.O. NO. 5956/248 RELATIVE TO THE RETIREMENT AND PENSION OF PRIVATE JAMES P. HENDRICKS OF THE POLICE FORCE.

UNDER AN ORDER OF THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA, DATED NOVEMBER 14, 1930, PRIVATE HENDRICKS WAS RETIRED AND GRANTED A PENSION AT A RATE OF $100 PER MONTH, THE MAXIMUM PERMISSIBLE FOR HIS CLASS. SHORTLY BEFORE HIS RETIREMENT, BUT SUBSEQUENT TO THE PASSAGE OF THE ACT OF JULY 1, 1930, PRIVATE HENDRICKS WAS AWARDED THE ADDITIONAL COMPENSATION AT THE RATE OF $5 PER MONTH, SPECIFIED IN SECTION 4 OF THE PREVIOUSLY MENTIONED ACT OF JULY 1, 1930, AS BEING A REWARD "BY REASON OF DEMONSTRATED ABILITY * * * AND OUTSTANDING EFFICIENCY.'

IN OUR OPINION OF NOVEMBER 13, 1930, WE POINTED OUT THAT THIS $5 PER MONTH SHOULD BE CONSIDERED AS OTHER THAN SALARY FOR THE PURPOSES OF RETIRED PAY, AND ACTING UPON THIS OPINION THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA EMITTED THE $5 PER MONTH FROM THE SALARY OF PRIVATE HENDRICKS FOR THE PURPOSES OF COMPUTING PENSION ALLOWANCE. IN A MEMORANDUM DATED NOVEMBER 22, 1930, THE AUDITOR OF THE DISTRICT OF COLUMBIA REFERS TO AN OPINION OF THE COMPTROLLER GENERAL, NO. A-32,749, ISSUED IN RESPONSE TO A QUERY BY THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL.

IN THIS OPINION THE QUESTION CONSIDERED WAS THE RIGHT OF THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS TO PAY TO MEMBERS OF THE UNITED STATES PARK POLICE FORCE THE $5 PER MONTH ADDITIONAL COMPENSATION SPECIFIED IN THE ACT OF JULY 1, 1930, AS BEING PAYABLE TO MEMBERS OF THE DEPARTMENTS UNDER THE SUPERVISION OF THE MAJOR AND SUPERINTENDENT OF POLICE OF THE DISTRICT OF COLUMBIA ND THE CHIEF ENGINEER OF THE FIRE DEPARTMENT OF THE DISTRICT OF COLUMBIA. THE COMPTROLLER GENERAL FOUND, FIRST, THAT UNDER AN ACT OF APRIL 13, 1928--

"THE SALARIES OF MEMBERS OF THE UNITED STATES PARK POLICE FORCE SHALL BE THE SAME AS THE SALARIES OF THE OFFICERS AND MEMBERS OF THE METROPOLITAN POLICE FORCE OF THE DISTRICT OF COLUMBIA IN SIMILAR OR CORRESPONDING GRADES.'

HE DECIDED THAT NOTWITHSTANDING THE FACT THAT CONGRESS HAD SPECIFIED ONLY THE POLICE AND FIRE DEPARTMENTS OF THE DISTRICT OF COLUMBIA WHEN PROVIDING FOR THE $5 SPECIAL COMPENSATION, THE PARK POLICE FORCE WAS ENTITLED TO THE SAME COMPENSATION. HE FURTHER HELD---

"THE UNITED STATES PARK POLICE IS SPECIFICALLY INCLUDED. "MONTHLY PAY" WOULD INCLUDE NOT ONLY THE BASIC SALARY PAID AS COMPENSATION OF MEMBERS OF THE POLICE FORCE, BUT ALSO THE ADDITIONAL PAY WHICH MAY BE GRANTED TO CERTAIN MEMBERS OF THE FORCE FOR "OUTSTANDING EFFICIENCY.' HENCE, ANY ALLOWANCES OF $5 PER MONTH GRANTED UNDER THE PROVISIONS OF SAID SECTION WILL BE SUBJECT TO THE 3 AND 1/2 PERCENT DEDUCTION.'

THIS DECISION OF THE COMPTROLLER GENERAL, ALTHOUGH NOT MADE ON A QUESTION OF THE RIGHT OF A RETIRED POLICEMAN OF THE DISTRICT OF COLUMBIA TO PENSION ALLOWANCE INCLUDING ONE-HALF OF THE $5 PER MONTH, WOULD APPEAR TO MAKE IT NECESSARY TO INCLUDE THIS $5 PER MONTH FOR THE PURPOSES OF COMPUTING SUCH PENSION, BECAUSE THE OPINION HOLDS THAT THE $5 PER MONTH IS SUBJECT TO THE USUAL RETIREMENT DEDUCTION AT THE RATE OF THREE AND ONE-HALF PERCENT.

IT IS SUGGESTED THAT THE COMPTROLLER GENERAL BE REQUESTED TO RECONSIDER THAT PORTION OF HIS OPINION NO. A-32,749 WHICH PROVIDES THAT THE $5 PER MONTH ALLOWANCE IS SUBJECT TO THE THREE AND ONE-HALF PERCENT DEDUCTION FOR THE FOLLOWING REASONS:

1. THE $5 PER MONTH IS SPECIFIED TO BE PAYABLE IN THE DISCRETION OF THE COMMISSIONERS AND MAY BE WITHDRAWN BY THEM AT ANY TIME WITHOUT STATEMENT OF REASON.

2. THE $5 PER MONTH IS NOT SALARY BECAUSE IT IS NOT AVAILABLE TO ANY MAN IN THE DEPARTMENTS WHO ATTAINS OUTSTANDING EFFICIENCY, BUT MAY BE AWARDED ONLY TO NOT EXCEEDING TEN PERCENT OF THE AUTHORIZED STRENGTH.

3. THE ACT SPECIFIES THAT IT IS TO BE AWARDED TO NOT EXCEEDING TEN PERCENT OF THE AUTHORIZED STRENGTH OF "PRIVATES AND SERGEANTS IN EACH DEPARTMENT" AND MAKES NO PROVISION FOR AWARD TO RETIRED AND PENSIONED MEMBERS OF THE DEPARTMENTS.

4. THE NATURAL INCREASE IN THE NUMBER WHO WOULD RECEIVE IN THEIR RETIRED PAY $2.50, IF THE COMPTROLLER GENERAL'S FIRST OPINION BE GIVEN EFFECT, WOULD DIMINISH THE NUMBER OF PRIVATES AND SERGEANTS IN EACH DEPARTMENT ELIGIBLE FOR ADDITIONAL COMPENSATION AT THE RATE OF $5 PER MONTH, AND THUS WOULD DESTROY THE EFFECT DESIRED BY CONGRESS OF REWARDING UNUSUAL SERVICE.

5. MEMBERS OF THE DEPARTMENTS MIGHT, UNDER THE COMPTROLLER'S RULING, PAY IN CONSIDERABLE SUMS TO THE RETIREMENT FUND AND THEN PRIOR TO RETIREMENT BE DEPRIVED OF THE BENEFIT OF THE ADDITIONAL PENSION.

6. UNDER SECTION 6 OF THE ACT OF JULY 1, 1930, THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ARE EMPOWERED TO DETERMINE AND FIX THE AMOUNT OF PENSION RELIEF IN ACCORDANCE WITH THE PROVISIONS OF THE PRIOR PENSION ACTS. THUS, IF A PERSON WERE GRANTED A PENSION INCLUDING HALFOF THE $5 PREMIUM PAY, IT COULD ONLY BE WITHDRAWN IN ACCORDANCE WITH THE TERMS OF THE PENSION ACTS, ALTHOUGH CONGRESS PROVIDED IN SECTION 4 THAT THE COMMISSIONERS MIGHT WITHDRAW SUCH COMPENSATION AT ANY TIME.

IT IS URGED FOR THESE SEVERAL REASONS, AND FOR OTHERS WHICH WILL APPEAR TO THE COMPTROLLER GENERAL UPON STUDY OF THE QUESTION, THAT THE $5 PER MONTH IS NOT SALARY WITHIN THE MEANING OF THE RETIREMENT ACT AND SHOULD NOT BE INCLUDED IN THE AMOUNTS SUBJECT TO THE THREE AND ONE HALF PERCENT DEDUCTION.

THERE HAS BEEN BROUGHT INTO QUESTION BY YOUR SUBMISSION ONLY SO MUCH OF THE DECISION OF AUGUST 2, 1930, 10 COMP. GEN 53, AS HELD THAT THE ADDITIONAL COMPENSATION AT THE RATE OF $5 PER MONTH AUTHORIZED UNDER SECTION 4 OF THE ACT OF JULY 1, 1930, 46 STAT. 840, TO BE PAID TO MEMBERS OF THE UNITED STATES PARK POLICE FORCE FOR OUTSTANDING EFFICIENCY, IS SUBJECT TO THE DEDUCTION OF 3 1/2 PERCENT FOR THE POLICEMEN AND FIREMEN'S RETIREMENT FUND UNDER THE TERMS OF SECTION 5 OF SAID ACT OF JULY 1, 1930. WHILE THERE WERE NOT DIRECTLY INVOLVED IN SAID DECISION THE MEMBERS OF THE METROPOLITAN POLICE FORCE OF THE DISTRICT OF COLUMBIA, IT WOULD FOLLOW, OF COURSE, THAT THE SAME RULE MUST, UNDER THE LAW, BE APPLIED TO THEM.

SECTION 12 OF THE ACT OF SEPTEMBER 1, 1916, 39 STAT. 718, CREATING THE "POLICEMEN AND FIREMEN'S RELIEF FUND, DISTRICT OF COLUMBIA," SPECIFICALLY PROVIDED:

THE SAID FUND SHALL CONSIST OF * * * A DEDUCTION OF ONE AND ONE-HALF PERCENTUM OF THE MONTHLY SALARY OF EACH MEMBER OF SAID DEPARTMENTS:

THE ACT OF JUNE 7, 1924, 43 STAT. 560, PROVIDED AS FOLLOWS:

* * * PROVIDED, THAT ON AND AFTER JULY 1, 1924, THE RATE OF DEDUCTION FROM THE MONTHLY SALARY OF EACH MEMBER OF THE POLICE AND FIRE DEPARTMENTS OF THE DISTRICT OF COLUMBIA 2 1/2 PERCENTUM.

SECTION 5 OF THE ACT OF JULY 1, 1930, 46 STAT. 840, PROVIDES AS FOLLOWS:

THAT, COMMENCING WITH THE EFFECTIVE DATE OF THIS ACT, THERE SHALL BE DEDUCTED FOR THE BENEFIT OF THE POLICEMEN AND FIREMEN'S RELIEF FUND 3 1/2 PERCENTUM OF THE MONTHLY PAY OF EACH MEMBER OF THE METROPOLITAN POLICE FORCE, THE FIRE DEPARTMENT, THE UNITED STATES PARK POLICE, AND THE WHITE HOUSE POLICE FORCE. * * *

IN THE FIRST TWO STATUTES THE DEDUCTION FOR THE RETIREMENT FUND IS REQUIRED TO BE MADE FROM THE "MONTHLY SALARY" AND IN THE LAST STATUTE FROM THE "MONTHLY PAY.' THE LAST STATUTE REFERS TO THE $5 PER MONTH THEREIN GRANTED FOR OUTSTANDING EFFICIENCY AS "ADDITIONAL COMPENSATION AT THE RATE OF $5 PER MONTH.'

THE WORDS "SALARY," "PAY," AND "COMPENSATION" GENERALLY ARE CONSIDERED SYNONYMOUS IN THE CONSTRUCTION OF PERSONNEL STATUTES AND NO REASON IS APPARENT FOR AN EXCEPTION TO THE GENERAL RULE IN THIS INSTANCE. THE ADDITIONAL COMPENSATION OF $5 PER MONTH IS AUTHORIZED BY LAW FOR OUTSTANDING EFFICIENCY IN THE MATTER OF SERVICE RENDERED, AND IS AS MUCH A PART OF THE MONTHLY SALARY OR PAY OF THE POLICEMEN AS IS THE REMAINDER OF HIS MONTHLY SALARY OR PAY, WHICH IS LIKEWISE AUTHORIZED BY LAW FOR SERVICE RENDERED. THE STATUTE SIMPLY AUTHORIZED THE COMMISSIONERS, IN THEIR DISCRETION, TO GIVE A LIMITED NUMBER OF THESE PROMOTIONS OR INCREASES IN PAY FOR OUTSTANDING EFFICIENCY IN ADDITION TO THE OTHER PROMOTIONS OR INCREASES IN PAY AUTHORIZED BY LAW TO BE GIVEN TO POLICEMEN AND FIREMEN. THIS IS IN LINE WITH THE ESTABLISHED POLICY OF THE LEGISLATION WITH RESPECT TO THE CIVILIAN PERSONNEL IN THE GOVERNMENT SERVICE; THAT IS, PROVIDING FOR INCREASES IN COMPENSATION BASED ON EFFICIENCY. FOR INSTANCE, THE CLASSIFICATION ACT CONTEMPLATES INCREASING THE COMPENSATION OF EMPLOYEES BY ADMINISTRATIVE PROMOTION WITHIN THE SALARY RANGE OF THE GRADE IN WHICH THEIR POSITIONS ARE ALLOCATED ON THE BASIS OF THEIR EFFICIENCY RATINGS, AND THE REDUCTION IN COMPENSATION FOR INEFFICIENCY. THE INCREASED COMPENSATION GRANTED FOR EFFICIENCY, WHETHER PAID IN CASH OR IN THE FORM OF QUARTERS OR OTHER ALLOWANCES FURNISHED IN KIND, IS AS MUCH A PART OF THE SALARY OR PAY OF THE EMPLOYEE AS WAS THE AMOUNT PAID BEFORE THE INCREASE, AND IS EQUALLY SUBJECT TO RETIREMENT DEDUCTION UNDER THE CIVIL RETIREMENT ACT IF THE EMPLOYEE IS IN A STATUS BRINGING HIM WITHIN THE TERMS OF THAT STATUTE. SEE 2 COMP. GEN. 525; 4 ID, 7; ID. 1051; 5 ID. 957. THERE SHOULD BE DISTINGUISHED INCREASES IN SALARY OR PAY FIXED ON THE BASIS OF PAST EFFICIENCY AND EXTRA PAY GIVEN FOR OVERTIME SERVICE OR ADDITIONAL ALLOWANCES GRANTED FOR UPKEEP OF EQUIPMENT, ETC., WHICH IS NOT SALARY AND NOT SUBJECT TO RETIREMENT DEDUCTION. SEE 4 COMP. GEN. 769, 770; ID. 875; AND PARTICULARLY 5 ID. 926, HOLDING THAT EXTRA COMPENSATION ALLOWED MEMBERS OF THE UNITED STATES PARK POLICE DETAILED TO THE MOTORCYCLE SERVICE IS NOT SUBJECT TO RETIREMENT DEDUCTIONS.

WITH REFERENCE TO THE ARGUMENTS PRESENTED IN THE CORPORATION COUNSEL'S LETTER, IT MAY BE SAID THAT WHILE THE STATUTE DOES NOT SPECIFICALLY REQUIRE THE COMMISSIONERS TO STATE A REASON FOR WITHDRAWING THE ADDITIONAL COMPENSATION FOR OUTSTANDING EFFICIENCY, THE STATUTE, IN COMMON WITH ALL OTHER STATUTES GRANTING ADMINISTRATIVE DISCRETION, CONTEMPLATES SUCH ACTION IN THIS REGARD AS WILL NOT BE ARBITRARY OR CAPRICIOUS. THERE HAVE BEEN INNUMERABLE INSTANCES OF AUTHORITY IN THE HEAD OF A GOVERNMENT DEPARTMENT OR ESTABLISHMENT TO REDUCE THE COMPENSATION OF AN EMPLOYEE WHOSE SALARY PREVIOUSLY HAD BEEN INCREASED--- IN OTHER WORDS, TO TAKE AWAY A PROMOTION PREVIOUSLY GIVEN--- BUT THAT HAS NEVER BEEN REGARDED AS CHANGING THE CHARACTER OF THE INCREASE FROM SALARY TO ALLOWANCE OR SOMETHING ELSE. UNDER PRACTICALLY ALL PERSONNEL STATUTES THERE IS GRANTED ADMINISTRATIVE POWER OR AUTHORITY OF SELECTION OF PERSONNEL FOR SPECIAL POSITIONS OR TO REWARD MERITORIOUS SERVICE BY INCREASES IN COMPENSATION WITHOUT CHANGE IN POSITION OR DUTIES. IT WOULD NOT APPEAR TO BE FOR SERIOUS CONSIDERATION THAT THE STATUTORY LIMITATION AS TO THE NUMBER OF MEMBERS WHO MAY BE GRANTED THE ADDITIONAL COMPENSATION FOR OUTSTANDING EFFICIENCY CHANGES THE CHARACTER OF THE PAYMENTS FROM SALARY TO SOMETHING ELSE. THERE WAS NOT CONSIDERED IN THE DECISION OF AUGUST 2, 1930, ANY QUESTION AS TO THE RIGHTS OF POLICEMEN AND FIREMEN ON THE RETIRED LIST, BUT IT MAY BE STATED THAT THE FACT THAT A PUBLIC OFFICER OR EMPLOYEE MAY BE SUBJECT TO REDUCTION IN COMPENSATION ON THE ACTIVE LIST AND NOT SUBJECT TO REDUCTION IN RETIREMENT PAY ON THE RETIRED LIST, OR SUBJECT TO REDUCTION ON EITHER LIST BUT UNDER DIFFERING CONDITIONS OR PROVISIONS OF LAW, MAY NOT BE CONSIDERED AS CONTROLLING THE CHARACTER OF THE PAYMENTS MADE. THE STATUTE IN THIS CASE SPECIFICALLY DESIGNATES THE PAYMENTS AS "ADDITIONAL COMPENSATION.' SECTION 12 OF THE ACT OF SEPTEMBER 1, 1916, 39 STAT. 718, FIXES ONLY A MAXIMUM RETIRED PAY FOR POLICEMEN AND FIREMEN IN "AN AMOUNT NOT TO EXCEED FIFTY PERCENTUM PER YEAR OF THE SALARY RECEIVED BY HIM AT THE DATE OF RETIREMENT.' SAID SECTION OF THE STATUTE ALSO CREATES THE POLICE AND FIREMEN'S RETIRING AND RELIEF BOARD, WITH THE CORPORATION COUNSEL AS A MEMBER THEREOF, WHICH IS AUTHORIZED TO PROMULGATE RULES AND REGULATIONS FIXING THE RETIREMENT BENEFITS FOR THE POLICEMEN AND FIREMEN SUBJECT TO THE APPROVAL OF THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA. WHILE THE $5 PER MONTH ADDITIONAL COMPENSATION WHICH A POLICEMAN OR FIREMAN MAY BE IN RECEIPT OF AT TIME OF RETIREMENT IS "SALARY" FROM WHICH RETIREMENT DEDUCTIONS MUST BE MADE, AND IS TO BE INCLUDED AS A PART OF HIS TOTAL SALARY FOR THE PURPOSE OF DETERMINING THE MAXIMUM RETIRED PAY HE MAY RECEIVE, THERE IS NO PURPOSE OR INTENT IN THE DECISIONS OF THIS OFFICE TO HOLD THAT A POLICEMAN OR FIREMAN RECEIVING THE $5 ADDITIONAL COMPENSATION AT DATE OF RETIREMENT MUST BE PAID $2.50 PER MONTH MORE RETIRED PAY THAN ONE OF LIKE GRADE AND SERVICE WHO WAS NOT RECEIVING THE ADDITIONAL COMPENSATION OF $5 PER MONTH FOR OUTSTANDING EFFICIENCY WHEN RETIRED. THAT IS A MATTER FOR DETERMINATION BY THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA UNDER SUCH RULES AND REGULATIONS AS MAY HAVE BEEN OR MAY HEREAFTER BE APPROVED BY THEM.