A-16138, DECEMBER 2, 1926, 6 COMP. GEN. 375

A-16138: Dec 2, 1926

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WHICH WAS MADE ONE DAY BEFORE THE ARRIVAL OF THE EMPLOYEE AT THE AGE OF RETIREMENT. IS UNLAWFUL AND INOPERATIVE TO PREVENT THE AUTOMATIC SEPARATION OF SUCH EMPLOYEE FROM THE SERVICE UPON HIS ARRIVAL AT THE AGE OF RETIREMENT. WHEN AN UNSALARIED POSITION HELD IN CONNECTION WITH A SALARIED POSITION IS MADE A SALARIED POSITION. APPOINTMENT TO SUCH POSITION IS FOR THE ONE AUTHORIZED TO APPOINT TO THE POSITION WHEN IT WAS WITHOUT A SALARY. 1926: THERE IS BEFORE THIS OFFICE FOR DECISION THE LEGALITY OF PAYMENTS APPEARING IN THE ACCOUNTS OF THE DISBURSING CLERK. FRANK BOND WAS CHIEF CLERK. WAS NOT CERTIFIED FOR RETENTION IN THE SERVICE MORE THAN 30 DAYS BEFORE REACHING RETIREMENT AGE AS REQUIRED BY THE PROVISIONS OF THE ACT OF MAY 22.

A-16138, DECEMBER 2, 1926, 6 COMP. GEN. 375

RETIREMENT, CIVILIAN - CERTIFICATION FOR RETENTION AFTER AGE - APPOINTMENTS - UNSALARIED POSITIONS MADE SALARIED THE CERTIFICATION FOR RETENTION OF AN EMPLOYEE BEYOND THE AGE OF RETIREMENT BY THE HEAD OF A DEPARTMENT IN WHICH THE EMPLOYEE HAD HAD NO SERVICE PRIOR TO THE DATE OF THE CERTIFICATION, WHICH WAS MADE ONE DAY BEFORE THE ARRIVAL OF THE EMPLOYEE AT THE AGE OF RETIREMENT, IS UNLAWFUL AND INOPERATIVE TO PREVENT THE AUTOMATIC SEPARATION OF SUCH EMPLOYEE FROM THE SERVICE UPON HIS ARRIVAL AT THE AGE OF RETIREMENT. WHEN AN UNSALARIED POSITION HELD IN CONNECTION WITH A SALARIED POSITION IS MADE A SALARIED POSITION, APPOINTMENT TO SUCH POSITION IS FOR THE ONE AUTHORIZED TO APPOINT TO THE POSITION WHEN IT WAS WITHOUT A SALARY, THERE HAVING BEEN NO CHANGE IN THIS RESPECT MADE BY LAW.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 2, 1926:

THERE IS BEFORE THIS OFFICE FOR DECISION THE LEGALITY OF PAYMENTS APPEARING IN THE ACCOUNTS OF THE DISBURSING CLERK, DEPARTMENT OF AGRICULTURE, AND THE DISBURSING AGENT FOR THE UNITED STATES GEOGRAPHIC BOARD, TO AN EMPLOYEE, FRANK BOND, AFTER HAVING REACHED RETIREMENT AGE -- 70 YEARS--- ON JUNE 30, 1926.

FRANK BOND WAS CHIEF CLERK, GENERAL LAND OFFICE, DEPARTMENT OF THE INTERIOR, TO JUNE 29, 1926, AND WAS NOT CERTIFIED FOR RETENTION IN THE SERVICE MORE THAN 30 DAYS BEFORE REACHING RETIREMENT AGE AS REQUIRED BY THE PROVISIONS OF THE ACT OF MAY 22, 1920, 41 STAT. 614, BUT ON JUNE 29, 1926, WAS TRANSFERRED TO THE DEPARTMENT OF AGRICULTURE, AND ON THAT DAY CERTIFIED BY THE SECRETARY OF AGRICULTURE FOR RETENTION.

THE MATTERS INVOLVED ARE FOR DETERMINATION UNDER THE PROVISIONS OF THE ACT OF MAY 22, 1920, 41 STAT. 617, THE MATTER OF RETIREMENT OF THE EMPLOYEE HAVING ARISEN PRIOR TO THE ENACTMENT OF JULY 3, 1926, 44 STAT. 904, BUT IT MAY BE SAID SO FAR AS THE PRESENT QUESTION IS CONCERNED THAT THERE IS NO MATERIAL CHANGE IN THE PROVISION FOR CERTIFICATION FOR RETENTION MORE THAN 30 DAYS BEFORE RETIREMENT AGE IS REACHED AND THE REQUIREMENT FOR AUTOMATIC SEPARATION FROM THE SERVICE OR CERTIFICATION FOR RETENTION IS SUBSTANTIALLY THE SAME IN BOTH ENACTMENTS.

THE ACT OF MAY 22, 1920, 41 STAT. 617, SECTION 6, PROVIDES THAT ALL EMPLOYEES TO WHOM THE ACT APPLIES SHALL BE AUTOMATICALLY SEPARATED FROM THE SERVICE ON REACHING 70 YEARS OF AGE,"AND ALL SALARY, PAY, OR COMPENSATION SHALL CEASE FROM THAT DATE," BUT THAT THE EMPLOYEE MAY BE RETAINED FOR A TERM OF TWO YEARS IF NOT LESS THAN 30 DAYS BEFORE REACHING RETIREMENT AGE "THE HEAD OF THE DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE OF THE GOVERNMENT IN WHICH HE OR SHE IS EMPLOYED" CERTIFIES TO THE CIVIL SERVICE COMMISSION THAT THE CONTINUANCE OF THE EMPLOYEE IN THE CIVIL SERVICE WOULD BE ADVANTAGEOUS TO THE PUBLIC SERVICE.

MR. BOND WAS AN EMPLOYEE OF THE INTERIOR DEPARTMENT WHEN THE PROVISIONS OF THIS ENACTMENT BECAME OPERATIVE IN HIS CASE OF EITHER AUTOMATIC SEPARATION FROM SERVICE OR CERTIFICATION FOR RETENTION IN SERVICE NOT LESS THAN 30 DAYS BEFORE REACHING RETIREMENT AGE, 70 YEARS. HE WAS NOT CERTIFIED BY THE HEAD OF THE INTERIOR DEPARTMENT IN WHICH HE WAS THEN EMPLOYED AND IN WHICH HE CONTINUED TO BE EMPLOYED TO WITHIN ONE DAY OF REACHING RETIREMENT AGE. HE WAS TRANSFERRED TO THE DEPARTMENT OF AGRICULTURE WITHIN ONE DAY OF REACHING 70 YEARS OLD AND SIMULTANEOUSLY WITH THE TRANSFER CERTIFICATION WAS THEN MADE BY THAT DEPARTMENT; BUT WHEN THIS CERTIFICATION WAS MADE HE HAD HAD NO SERVICE WITH THAT DEPARTMENT NOR AT ANY TIME WHEN THE REQUIREMENT FOR CERTIFICATION WAS OBLIGATORY UNDER THE LAW. IN THIS RESPECT IT DIFFERS FROM THE FACTS CONNECTED WITH THE PROCEDURE OF CERTIFICATION CONSIDERED IN DECISION OF THIS OFFICE NOVEMBER 3, 1926, A-16146. THE CERTIFICATION IS UNQUESTIONABLY NOT IN ACCORDANCE WITH THE LAW THAT IT SHALL BE MADE BY THE HEAD OF THE DEPARTMENT IN WHICH EMPLOYED AND NOT LESS THAN 30 DAYS BEFORE REACHING RETIREMENT AGE. NEITHER FACTOR IS PRESENT IN THIS CASE. THE CERTIFICATION BY THE DEPARTMENT OF AGRICULTURE IS INOPERATIVE AND VOID, AND THE RETENTION OF THE EMPLOYEE IN THE SERVICE IS UNLAWFUL.

A FURTHER MATTER OF ILLEGALITY APPEARS IN THAT THE EMPLOYEE WAS, BY VIRTUE OF HIS POSITION IN THE GENERAL LAND OFFICE, A MEMBER OF THE UNITED STATES GEOGRAPHIC BOARD, TO WHICH POSITION THERE WAS ATTACHED NO COMPENSATION UNTIL PROVIDED BY THE DEFICIENCY APPROPRIATION ACT OF JULY 3, 1926, 44 STAT. 845, WHICH APPROPRIATED FOR SALARIES AND EXPENSES OF THE UNITED STATES GEOGRAPHIC BOARD, INCLUDING PERSONAL SERVICES IN THE DISTRICT OF COLUMBIA AND FOR STATIONERY AND OFFICE SUPPLIES FOR FISCAL YEAR 1926, TO REMAIN AVAILABLE DURING THE FISCAL YEAR 1927, $3,850. THERE APPEARS TO HAVE BEEN MADE IN THE NATURE OF A TRANSFER OF THE EMPLOYEE FROM THE DEPARTMENT OF AGRICULTURE TO THE SALARIED POSITION OF THE GEOGRAPHIC BOARD SEPTEMBER 21, 1926. THE POSITION WITH THE UNITED STATES GEOGRAPHIC BOARD IS ONE FOR APPOINTMENT BY THE PRESIDENT. HE IS NOT SHOWN TO HAVE APPOINTED THIS EMPLOYEE TO THE POSITION SINCE IT BECAME A SALARIED POSITION, NOR IS IT SHOWN THAT THE TRANSFER FROM THE DEPARTMENT OF AGRICULTURE TO SUCH POSITION WITH THE GEOGRAPHIC BOARD HAD THE ACTION OR APPROVAL OF THE PRESIDENT, IF SUCH A TRANSFER WERE POSSIBLE. IT DOES APPEAR THAT THE APPROPRIATION WAS REQUESTED BY THE BUDGET BUREAU THROUGH THE PRESIDENT AS FOR SALARY FOR THE CHAIRMAN OF THE GEOGRAPHIC BOARD FOR THE FISCAL YEAR 1927, IN THE AMOUNT OF $3,850, BUT IT WILL BE OBSERVED THAT THE DEFICIENCY APPROPRIATION OF $3,850 IS FOR DEFICIENCY IN EXPENSES OF STATIONERY AND OFFICE SUPPLIES FOR FISCAL YEAR 1926 AS WELL AS FOR PERSONAL SERVICES. WHO FIXED THE SALARY FOR THE PLACE OF CHAIRMAN AND WHEN THAT WAS DONE DOES NOT APPEAR. BUT WHATEVER MAY BE THE CONCLUSION THEREFROM, THE EMPLOYEE SEEMINGLY HELD BOTH PLACES DURING THE PERIOD FROM JUNE 29, 1926, WHEN HE WENT TO THE DEPARTMENT OF AGRICULTURE, TO SEPTEMBER 21, 1926, AND THIS CONFLICTS WITH THE TRANSFER SOUGHT TO BE MADE FROM THE DEPARTMENT OF AGRICULTURE TO THE GEOGRAPHIC BOARD. THE VIEW MUST BE TAKEN THAT WHEN THE POSITION WITH THE GEOGRAPHIC BOARD HAD SALARY ATTACHED THERETO IT BECAME NECESSARY FOR THE ACTION OF THE PRESIDENT IN APPOINTING TO THAT POSITION. THIS HAS NOT BEEN DONE, NOR, IN VIEW OF THE IRREGULARITY IN THE EMPLOYEE'S CERTIFICATION FOR RETENTION BY THE SECRETARY OF AGRICULTURE, COULD SUCH EMPLOYEE LEGALLY BE APPOINTED TO SUCH POSITION.

THE PAYMENTS RECEIVED BY THE EMPLOYEE SINCE JUNE 29, 1926, WILL BE FOR CONSIDERATION IN CONNECTION WITH THE ADJUSTMENT OF THE RETIREMENT STATUS OF THE EMPLOYEE AND THE ANNUITY THAT MAY BE PAYABLE THEREUNDER, AND WHEN THIS HAS BEEN ACCOMPLISHED THERE WILL BE FOR CONSIDERATION CREDIT IN THE ACCOUNTS OF THE DISBURSING CLERK OF THE DEPARTMENT OF AGRICULTURE AND OF THE GEOGRAPHIC BOARD FOR PAYMENTS PRIOR TO A NOTICE THEREON TO THEM FROM THIS OFFICE OCTOBER 21, 1926; ALL PAYMENTS IN THE POSITION WITH THE GEOGRAPHIC BOARD SUBSEQUENT TO OCTOBER 21, 1926, TO BE DISALLOWED.