A-15156, AUGUST 16, 1926, 6 COMP. GEN. 118

A-15156: Aug 16, 1926

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CIVILIAN - BREAK IN CONTINUITY OF EMPLOYMENT UNDER AN UNCLASSIFIED POSITION AFTER TRANSFER FROM A CLASSIFIED POSITION MEMBERS OF THE UNITED STATES BOARD OF TAX APPEALS OTHERWISE ENTITLED TO THE BENEFITS OF THE CIVIL RETIREMENT LAW BECAUSE THEIR SERVICE IN SUCH UNCLASSIFIED POSITIONS WAS CONTINUOUS WITH SERVICE UNDER CLASSIFIED POSITIONS. WHETHER A BREAK IN THE CONTINUITY OF EMPLOYMENT UNDER AN UNCLASSIFIED POSITION TO WHICH AN OFFICER OR EMPLOYEE OCCUPYING A CLASSIFIED POSITION HAD BEEN TRANSFERRED WOULD IN ANY EVENT CAUSE A LOSS OF RETIREMENT STATUS IS FOR CONSIDERATION UPON THE PARTICULAR FACTS OF EACH CASE. WHETHER THE OFFICE OR POSITION WAS OCCUPIED BY ANOTHER DURING THE INTERVAL. 1926: I HAVE YOUR LETTER OF JULY 21.

A-15156, AUGUST 16, 1926, 6 COMP. GEN. 118

RETIREMENT, CIVILIAN - BREAK IN CONTINUITY OF EMPLOYMENT UNDER AN UNCLASSIFIED POSITION AFTER TRANSFER FROM A CLASSIFIED POSITION MEMBERS OF THE UNITED STATES BOARD OF TAX APPEALS OTHERWISE ENTITLED TO THE BENEFITS OF THE CIVIL RETIREMENT LAW BECAUSE THEIR SERVICE IN SUCH UNCLASSIFIED POSITIONS WAS CONTINUOUS WITH SERVICE UNDER CLASSIFIED POSITIONS, DO NOT LOSE THEIR RETIREMENT STATUS BECAUSE OF A BREAK OF EIGHT DAYS IN THE CONTINUITY OF EMPLOYMENT UNDER THE UNCLASSIFIED POSITION INCIDENT TO DELAY IN REAPPOINTMENT AFTER EXPIRATION OF TERM OF OFFICE. WHETHER A BREAK IN THE CONTINUITY OF EMPLOYMENT UNDER AN UNCLASSIFIED POSITION TO WHICH AN OFFICER OR EMPLOYEE OCCUPYING A CLASSIFIED POSITION HAD BEEN TRANSFERRED WOULD IN ANY EVENT CAUSE A LOSS OF RETIREMENT STATUS IS FOR CONSIDERATION UPON THE PARTICULAR FACTS OF EACH CASE, SUCH AS THE CAUSE OF THE BREAK, WHETHER DUE TO SOME REASON PERSONAL TO THE OFFICER OR EMPLOYEE OR TO SOME REASON OVER WHICH THE OFFICER OR EMPLOYEE HAD NO CONTROL, THE DURATION THEREOF, AND WHETHER THE OFFICE OR POSITION WAS OCCUPIED BY ANOTHER DURING THE INTERVAL.

COMPTROLLER GENERAL MCCARL TO R. C. TRACY, SPECIAL DISBURSING AGENT, UNITED STATES BOARD OF TAX APPEALS, AUGUST 16, 1926:

I HAVE YOUR LETTER OF JULY 21, 1926, AS FOLLOWS:

I HAVE THE HONOR TO REQUEST THAT YOU ADVISE ME WITH REFERENCE TO THE FOLLOWING:

MESSRS. CHARLES M. TRAMMELL, CHARLES P. SMITH, AND C. ROGERS ARUNDELL WERE MEMBERS OF THE UNITED STATES BOARD OF TAX APPEALS, HOLDING OFFICE BY VIRTUE OF A PRESIDENTIAL APPOINTMENT AND SENATORIAL CONFIRMATION UNTIL THE CLOSE OF BUSINESS ON JUNE 1, 1926. DURING THEIR PERIOD OF SERVICE WITH THE BOARD, DEDUCTIONS ON ACCOUNT OF RETIREMENT WERE MADE FROM THEIR RESPECTIVE SALARIES. THEIR TERMS OF OFFICE EXPIRED AT THE CLOSE OF BUSINESS ON THE DATE ABOVE MENTIONED AND THEY WERE REAPPOINTED AND QUALIFIED BY TAKING THE OATH OF OFFICE UNDER SUCH APPOINTMENT ON JUNE 8, 1926.

IN VIEW OF THE FACT THAT THERE HAS BEEN A BREAK IN THE CONTINUITY OF THEIR GOVERNMENTAL SERVICE, I HAVE THE HONOR TO REQUEST YOUR DECISION AS TO WHETHER I AM AUTHORIZED TO MAKE DEDUCTIONS IN THEIR COMPENSATION FOR RETIREMENT PURPOSES SINCE JUNE 8, 1926, IN VIEW OF THE OPINIONS OF THE ATTORNEY GENERAL DATED JUNE 3, 1924, AND DECEMBER 22, 1924.

THE CITED OPINIONS OF THE ATTORNEY GENERAL WERE TO THE EFFECT THAT OFFICERS AND EMPLOYEES TRANSFERRED WITHOUT BREAK IN CONTINUITY OF EMPLOYMENT FROM A CLASSIFIED POSITION SUBJECT TO THE RETIREMENT ACT TO AN UNCLASSIFIED POSITION WOULD REMAIN SUBJECT TO THE CONDITIONS AND ENTITLED TO THE BENEFITS OF THE RETIREMENT ACT DURING THEIR SERVICE IN THE UNCLASSIFIED POSITION. SEE 5 COMP. GEN. 254 AND DECISION OF JULY 23, 1926, A-14390, 6 COMP. GEN. 69. SEE ALSO SECTION 3 (D) OF THE ACT OF JULY 3, 1926, 44 STAT. 906, WHICH INCLUDES, WITHIN THE SCOPE OF THE RETIREMENT T,"UNCLASSIFIED EMPLOYEES TRANSFERRED FROM CLASSIFIED POSITIONS.'

IT IS UNDERSTOOD THAT THREE MEMBERS OF THE BOARD IN QUESTION SERVED IN CLASSIFIED POSITIONS IMMEDIATELY PRECEDING THEIR FIRST APPOINTMENT AND QUALIFICATION AS MEMBERS OF THE BOARD, WHICH ARE UNCLASSIFIED POSITIONS, AND THAT THEIR SERVICE UNDER THE CLASSIFIED AND UNCLASSIFIED POSITIONS WAS CONTINUOUS UNTIL JUNE 1, 1926, AND THAT THERE IS NOW PRESENTED FOR DECISION WHETHER A SUBSEQUENT BREAK IN THE CONTINUITY OF EMPLOYMENT UNDER THE UNCLASSIFIED POSITION TERMINATED THEIR RETIREMENT STATUS.

THE RETIREMENT STATUS OF AN OFFICER OR EMPLOYEE OCCUPYING AN UNCLASSIFIED POSITION GAINED BY REASON OF CONTINUITY OF EMPLOYMENT WITH SERVICE UNDER A CLASSIFIED POSITION IS A RIGHT OR BENEFIT PERSONAL TO THE OFFICER OR EMPLOYEE. IT DOES NOT ATTACH TO THE UNCLASSIFIED POSITION. THIS RIGHT OR BENEFIT MAY BE LOST BY A BREAK IN THE CONTINUITY OF EMPLOYMENT UNDER THE UNCLASSIFIED POSITION, BUT SUCH RIGHT OR BENEFIT NEED NOT BE CONSIDERED AS LOST BY A SHORT BREAK IN THE CONTINUITY OF EMPLOYMENT UNDER THE UNCLASSIFIED POSITION WHICH RESULTED FROM A DELAY, OVER WHICH THE OFFICER OR EMPLOYEE HAD NO CONTROL, INCIDENT TO REAPPOINTMENT OF THE SAME OFFICER OR EMPLOYEE TO THE SAME OFFICE OR POSITION, WHICH WAS NOT OCCUPIED BY ANOTHER IN THE INTERVAL. HAVING IN MIND THE PURPOSE AND INTENT OF THE PROVISIONS OF THE RETIREMENT ACT, AND THE EVIDENT PURPOSE AND INTENT OF THE ESTABLISHED PRACTICE WITH RESPECT TO THE RETIREMENT STATUS OF UNCLASSIFIED EMPLOYEES TRANSFERRED FROM CLASSIFIED POSITIONS, I AM CONSTRAINED TO HOLD THAT THE THREE MEMBERS OF THE UNITED STATES BOARD OF TAX APPEALS REMAIN SUBJECT TO THE CONDITIONS AND ENTITLED TO THE BENEFITS OF THE RETIREMENT ACT UNDER THEIR REAPPOINTMENTS EFFECTIVE JUNE 8, 1926.

WHETHER A BREAK IN THE CONTINUITY OF EMPLOYMENT IN AN UNCLASSIFIED POSITION TO WHICH AN OFFICER OR EMPLOYEE OCCUPYING A CLASSIFIED POSITION HAD BEEN TRANSFERRED WOULD IN ANY EVENT CAUSE A LOSS OF RETIREMENT STATUS IS FOR CONSIDERATION UPON THE PARTICULAR FACTS OF EACH CASE, SUCH AS THE CAUSE OF THE BREAK, WHETHER DUE TO SOME REASON PERSONAL TO THE OFFICER OR EMPLOYEE OR TO SOME REASON OVER WHICH THE OFFICER OR EMPLOYEE HAD NO CONTROL, THE DURATION THEREOF, AND WHETHER THE UNCLASSIFIED OFFICE OR POSITION WAS OCCUPIED BY ANOTHER DURING THE INTERVAL.