A-14390, JULY 23, 1926, 6 COMP. GEN. 69

A-14390: Jul 23, 1926

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WHO ENTERED SERVICE WITH THE AGENCY DIRECTLY FROM POSITIONS UNDER THE CLASSIFIED CIVIL SERVICE ARE SUBJECT TO THE OPERATIONS OF THE CIVIL SERVICE RETIREMENT ACT AND ARE ENTITLED TO ITS BENEFITS. WHOSE SERVICES IN THAT CAPACITY HAVE BEEN CONTINUOUS WITH SERVICES IN POSITIONS UNDER THE CLASSIFIED CIVIL SERVICE. ARE SUBJECT TO RETIREMENT DEDUCTIONS UNDER THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT. WAS APPOINTED TO A POSITION UNDER THE UNITED STATES AGENCY. WAS APPOINTED TO A POSITION UNDER THE UNITED STATES AGENCY OF THE SAME COMMISSION OCTOBER 25. WAS APPOINTED TO A POSITION UNDER THE UNITED STATES AGENCY OF THE SAME COMMISSION THE SAME DAY. THERE IS A DISTINCTION BETWEEN THE OFFICERS AND EMPLOYEES OF THE UNITED STATES AGENCY OF THE COMMISSION AND THE OFFICERS AND EMPLOYEES OF THE COMMISSION.

A-14390, JULY 23, 1926, 6 COMP. GEN. 69

RETIREMENT, CIVILIAN - MIXED CLAIMS COMMISSION, UNITED STATES AND GERMANY OFFICERS AND EMPLOYEES UNDER THE UNITED STATES AGENCY OF THE MIXED CLAIMS COMMISSION, UNITED STATES AND GERMANY, WHO ENTERED SERVICE WITH THE AGENCY DIRECTLY FROM POSITIONS UNDER THE CLASSIFIED CIVIL SERVICE ARE SUBJECT TO THE OPERATIONS OF THE CIVIL SERVICE RETIREMENT ACT AND ARE ENTITLED TO ITS BENEFITS. ADJUSTMENT IN COMPENSATION OF SUCH OFFICERS AND EMPLOYEES FROM THE DATE OF ENTRANCE INTO SERVICE WITH THE AGENCY SHOULD BE MADE ACCORDINGLY.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JULY 23, 1926:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MAY 17, 1926, REQUESTING DECISION WHETHER THE BASIC COMPENSATION OF JAMES M. GRAY, JOHN J. EDWARDS, AND HAROLD H. MARTIN, EMPLOYEES UNDER THE UNITED STATES AGENCY OF THE MIXED CLAIMS COMMISSION, UNITED STATES AND GERMANY, WHOSE SERVICES IN THAT CAPACITY HAVE BEEN CONTINUOUS WITH SERVICES IN POSITIONS UNDER THE CLASSIFIED CIVIL SERVICE, ARE SUBJECT TO RETIREMENT DEDUCTIONS UNDER THE PROVISIONS OF THE CIVIL SERVICE RETIREMENT ACT.

MR. GRAY RESIGNED FROM A CLASSIFIED POSITION UNDER THE DEPARTMENT OF STATE MARCH 14, 1925, AND WAS APPOINTED TO A POSITION UNDER THE UNITED STATES AGENCY, MIXED CLAIMS COMMISSION, UNITED STATES AND GERMANY, MARCH 15, 1925. MR. EDWARDS RESIGNED FROM A CLASSIFIED POSITION UNDER THE DEPARTMENT OF STATE OCTOBER 24, 1922, AND WAS APPOINTED TO A POSITION UNDER THE UNITED STATES AGENCY OF THE SAME COMMISSION OCTOBER 25, 1922. MR. MARTIN RESIGNED FROM A CLASSIFIED POSITION UNDER THE NAVY DEPARTMENT OCTOBER 16, 1922, AND WAS APPOINTED TO A POSITION UNDER THE UNITED STATES AGENCY OF THE SAME COMMISSION THE SAME DAY.

ARTICLE V OF THE AGREEMENT BETWEEN THE UNITED STATES AND GERMANY, DATED AUGUST 10, 1922, 42 STAT. 2200, ESTABLISHING A MIXED CLAIMS COMMISSION, PROVIDES THAT EACH GOVERNMENT SHALL PAY ITS OWN EXPENSES, INCLUDING COMPENSATION OF ITS OWN COMMISSIONER, AGENT, OR COUNSEL. ARTICLE VI OF THE SAME AGREEMENT PROVIDES THAT THE TWO GOVERNMENTS MAY DESIGNATE THEIR OWN AGENTS AND COUNSEL WHO MAY PRESENT ORAL OR WRITTEN ARGUMENTS TO THE COMMISSION. ARTICLE IV PROVIDES THAT THE COMMISSION ITSELF MAY APPOINT AND EMPLOY NECESSARY OFFICERS TO ASSIST IN THE PERFORMANCE OF ITS DUTIES. THERE IS A DISTINCTION BETWEEN THE OFFICERS AND EMPLOYEES OF THE UNITED STATES AGENCY OF THE COMMISSION AND THE OFFICERS AND EMPLOYEES OF THE COMMISSION. THE THREE PERSONS IN QUESTION ARE UNDERSTOOD TO BE CONNECTED WITH THE UNITED STATES AGENCY OF THE COMMISSION IN THE CAPACITY OF ATTORNEYS OR COUNSEL. THEIR COMPENSATION IS PAID FROM APPROPRIATED FUNDS. SEE ACT OF SEPTEMBER 22, 1922, 42 STAT. 105; ACT OF MAY 28, 1924, 43 STAT. 215; ACT OF FEBRUARY 27, 1925, 43 STAT. 1023; AND ACT OF APRIL 29, 1926, 44 STAT. 339. THE OFFICERS AND EMPLOYEES OF THE UNITED STATES AGENCY OF THE MIXED CLAIMS COMMISSION, UNITED STATES AND GERMANY, EMPLOYED UNDER AUTHORITY OF THESE APPROPRIATION ACTS (AS DISTINGUISHED FROM THE OFFICERS AND EMPLOYEES OF THE COMMISSION ITSELF) ARE OFFICERS OR EMPLOYEES OF THE UNITED STATES GOVERNMENT AND ARE "EMPLOYEES IN THE CIVIL SERVICE OF THE UNITED STATES NOT CLASSIFIED" WITHIN THE MEANING OF SECTION 1, PARAGRAPH 2, OF THE RETIREMENT ACT, TO WHOM THE PROVISIONS OF THE RETIREMENT ACT COULD BE EXTENDED BY EXECUTIVE ORDER. THEY ARE NOT "IN THE CLASSIFIED CIVIL SERVICE OF THE UNITED STATES" WITHIN THE MEANING OF SECTION 1, PARAGRAPH 1, OF THE RETIREMENT ACT. THEREFORE, THE POSITIONS HELD BY THE EMPLOYEES MAY PROPERLY BE CONSIDERED AS IN THE UNCLASSIFIED EXECUTIVE CIVIL SERVICE OF THE UNITED STATES.

THE THREE EMPLOYEES IN QUESTION ENTERED POSITIONS IN THE UNCLASSIFIED EXECUTIVE CIVIL SERVICE OF UNITED STATES WHEN APPOINTED TO POSITIONS UNDER THE UNITED STATES AGENCY OF THE COMMISSION, DIRECTLY FROM POSITIONS IN THE CLASSIFIED CIVIL SERVICE WITHOUT BREAK IN THE CONTINUITY OF EMPLOYMENT. UNDER THE ADMINISTRATIVE PRACTICE BASED UPON OPINIONS OF THE ATTORNEY GENERAL, 34 OP.ATTY.GEN. 192, ID. 334, THESE THREE EMPLOYEES, AS WELL AS ALL OTHER OFFICERS AND EMPLOYEES OF THE AGENCY IN THE SAME STATUS, REMAINED SUBJECT TO THE OPERATIONS OF THE RETIREMENT ACT AND ENTITLED TO ITS BENEFITS DURING THEIR SERVICE WITH THE AGENCY. THERE APPEARS NO REASON NOW TO QUESTION THE MATTER IN VIEW OF THE ADMINISTRATIVE PRACTICE UNDER THE OPINIONS OF THE ATTORNEY GENERAL AND THE PROVISIONS OF SECTION 3 (D), ACT OF JULY 3, 1926, 44 STAT. 906, EFFECTIVE JULY 1, 1926, INCLUDING WITHIN THE SCOPE OF THE RETIREMENT ACT "UNCLASSIFIED EMPLOYEES TRANSFERRED FROM CLASSIFIED POSITIONS.' 5 COMP. GEN. 254.

THEREFORE, THE BASIC SALARY OF THESE EMPLOYEES WAS PROPERLY SUBJECT TO 2 1/2 PERCENT RETIREMENT DEDUCTIONS FROM AND AFTER THE DATE OF THEIR ENTRANCE INTO SERVICE WITH THE AGENCY TO AND INCLUDING JUNE 30, 1926, AND 3 1/2 PERCENT RETIREMENT DEDUCTIONS ON AND AFTER JULY 1, 1926. RETIREMENT DEDUCTIONS WERE NOT TIMELY TAKEN FROM THE BASIC SALARY OF SUCH OFFICERS AND EMPLOYEES DURING THE PERIOD OF THEIR SERVICE UNDER THE AGENCY, THE AGGREGATE AMOUNT THEREOF WITHOUT INTEREST SHOULD BE DEDUCTED FROM THE CURRENT SALARY OF SUCH OFFICERS AND EMPLOYEES. 2 COMP. GEN. 506; DECISION OF JUNE 11, 1926, 5 COMP. GEN. 974. IT WOULD ALSO APPEAR A MATTER OF COURSE THAT ANY REFUNDS BECAUSE OF DEATH OR SEPARATION FROM THE SERVICE MADE AT ANY TIME OF AMOUNTS TO THE CREDIT OF THESE EMPLOYEES IN THE RETIREMENT FUND SHOULD NOT INCLUDE INTEREST ON THE AMOUNT HEREIN REQUIRED TO BE DEPOSITED BY THE EMPLOYEES FOR THE PERIOD PRIOR TO THE RETURN TO THE RETIREMENT FUND OF THE AMOUNTS DEPOSITED BY THE EMPLOYEES. THE AMOUNT OF ANY REFUNDS OF RETIREMENT DEDUCTIONS MADE BY THE COMMISSIONER OF PENSIONS TO THE OFFICERS OR EMPLOYEES ON THE BASIS OF TERMINATION OF THEIR SERVICES FROM CLASSIFIED POSITIONS HELD PREVIOUS TO ENTRANCE INTO SERVICE WITH THE AGENCY SHOULD BE RETURNED BY THE OFFICERS OR EMPLOYEES TO THE RETIREMENT FUND.

PROPER ACTION WILL BE TAKEN IN CONNECTION WITH THE AUDIT OF ACCOUNTS OF THE DISBURSING CLERK OF THE MIXED CLAIMS COMMISSION, UNITED STATES AND GERMANY, TO REQUIRE COMPLIANCE WITH THIS DECISION.