A-17838, APRIL 2, 1927, 6 COMP. GEN. 651

A-17838: Apr 2, 1927

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

ELIMINATING THE 30-DAY PERIOD PRIOR TO RETIREMENT AGE BEFORE WHICH A CERTIFICATE FOR RETENTION IN THE SERVICE WAS REQUIRED. NOTWITHSTANDING THE TIME AT WHICH THE CERTIFICATIONS BY THE HEAD OF THE DEPARTMENT AND THE CIVIL SERVICE COMMISSION PROVIDED IN SECTION 2 OF THE ACT HEREBY AMENDED WERE MADE. AS THE LAW NOW STANDS IS IT NECESSARY. THE QUESTIONS ARE ANSWERED IN THE ORDER ABOVE STATED AS FOLLOWS: 1. OR INDEPENDENT OFFICE OF THE GOVERNMENT IN WHICH HE IS EMPLOYED CERTIFIES TO THE CIVIL SERVICE COMMISSION THAT BY REASON OF HIS EFFICIENCY AND WILLINGNESS TO REMAIN IN THE CIVIL SERVICE OF THE UNITED STATES THE CONTINUANCE OF SUCH EMPLOYEE THEREIN WOULD BE ADVANTAGEOUS TO THE PUBLIC SERVICE.

A-17838, APRIL 2, 1927, 6 COMP. GEN. 651

RETIREMENT, CIVILIAN - CERTIFICATION FOR RETENTION IN SERVICE UNDER THE CIVIL RETIREMENT ACT, AS AMENDED BY THE ACT OF MARCH 3, 1927, 44 STAT. 1380, ELIMINATING THE 30-DAY PERIOD PRIOR TO RETIREMENT AGE BEFORE WHICH A CERTIFICATE FOR RETENTION IN THE SERVICE WAS REQUIRED, THE CERTIFICATE BY THE HEAD OF THE DEPARTMENT CONCERNED AND THE APPROVAL AND CERTIFICATE OF THE CIVIL SERVICE COMMISSION MUST BOTH BE MADE BEFORE AN EMPLOYEE REACHES THE AGE OF RETIREMENT. SECTION 2 OF THE ACT OF MARCH 3, 1927, 44 STAT. 1381, VALIDATES THE PERIOD OF SERVICE PERFORMED SUBSEQUENT TO REACHING THE AGE OF RETIREMENT AND PRIOR TO THE DATE OF THE ACT IN THE CASE OF EMPLOYEES WHO CONTINUED TO PERFORM SERVICE AFTER ATTAINING RETIREMENT AGE WITHOUT ANY CERTIFICATION WHATEVER, AS WELL AS IN CASE OF EMPLOYEES WHO CONTINUED TO PERFORM SERVICE UNDER A CERTIFICATION NOT MADE WITHIN THE TIME FIXED BY THE PRIOR STATUTE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, APRIL 2, 1927:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MARCH 18, 1927, REQUESTING DECISION OF TWO QUESTIONS ARISING UNDER THE ACT OF MARCH 3, 1927, 44 STAT. 1380, AMENDING THE ACT OF JULY 3, 1926, 44 STAT. 904, WHICH AMENDED THE CIVIL RETIREMENT ACT OF MAY 22, 1920, 41 STAT. 614.

THE ACT OF MARCH 3, 1927, PROVIDES AS FOLLOWS:

IN SECTION 2 OF SAID ACT, AFTER THE WORDS "PROVIDED THAT IF," IN THE FIRST PARAGRAPH OF SAID SECTION, STRIKE OUT THE WORDS "NOT LESS THAN THIRTY DAYS BEFORE THE ARRIVAL OF AN EMPLOYEE AT THE AGE OF RETIREMENT,"

SEC. 2. IN ALL CASES WHERE AN EMPLOYEE HAS HERETOFORE BEEN CONTINUED IN SERVICE SUBSEQUENT TO HAVING ARRIVED AT THE AGE OF RETIREMENT, SUCH CONTINUATION SHALL FOR ALL PURPOSES BE DEEMED VALID, NOTWITHSTANDING THE TIME AT WHICH THE CERTIFICATIONS BY THE HEAD OF THE DEPARTMENT AND THE CIVIL SERVICE COMMISSION PROVIDED IN SECTION 2 OF THE ACT HEREBY AMENDED WERE MADE.

THE QUESTIONS INVOLVED IN YOUR SUBMISSION MAY BE STATED AS FOLLOWS:

1. AS THE LAW NOW STANDS IS IT NECESSARY, WITH RESPECT TO FUTURE CASES, THAT THE CERTIFICATION BY THE HEAD OF THE DEPARTMENT CONCERNED AND THE APPROVAL AND CERTIFICATION OF THE CIVIL SERVICE COMMISSION BOTH BE MADE BEFORE THE EMPLOYEE REACHES THE AGE OF RETIREMENT?

2. DOES SECTION 2 OF THE ACT OF MARCH 3, 1927, SUPRA, VALIDATE THE PERIOD OF SERVICE PERFORMED SUBSEQUENT TO REACHING THE AGE OF RETIREMENT AND PRIOR TO THE DATE OF THE ACT IN THE CASE OF EMPLOYEES WHO CONTINUED TO PERFORM SERVICE AFTER ATTAINING RETIREMENT AGE WITHOUT ANY CERTIFICATION WHATEVER?

THE QUESTIONS ARE ANSWERED IN THE ORDER ABOVE STATED AS FOLLOWS:

1. AS AMENDED BY SECTION 1 OF THE ACT OF MARCH 3, 1927, SUPRA, THE FIRST PART OF SECTION 2 OF THE ACT OF JULY 3, 1926, 44 STAT. 905, READS AS FOLLOWS:

ALL EMPLOYEES TO WHOM THIS ACT APPLIES SHALL, ON ARRIVING AT RETIREMENT AGE AS DEFINED IN THE PRECEDING SECTION AND HAVING RENDERED FIFTEEN YEARS OF SERVICE, BE AUTOMATICALLY SEPARATED FROM THE SERVICE, AND ALL SALARY, PAY, OR COMPENSATION SHALL CEASE FROM THAT DATE, AND IT SHALL BE THE DUTY OF THE HEAD OF EACH DEPARTMENT, BRANCH OR INDEPENDENT OFFICE OF THE GOVERNMENT CONCERNED TO NOTIFY SUCH EMPLOYEES UNDER HIS DIRECTION OF THE DATE OF SUCH SEPARATION FROM THE SERVICE AT LEAST SIXTY DAYS IN ADVANCE THEREOF: PROVIDED, THAT IF THE HEAD OF THE DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE OF THE GOVERNMENT IN WHICH HE IS EMPLOYED CERTIFIES TO THE CIVIL SERVICE COMMISSION THAT BY REASON OF HIS EFFICIENCY AND WILLINGNESS TO REMAIN IN THE CIVIL SERVICE OF THE UNITED STATES THE CONTINUANCE OF SUCH EMPLOYEE THEREIN WOULD BE ADVANTAGEOUS TO THE PUBLIC SERVICE, SUCH EMPLOYEE MAY BE RETAINED FOR A TERM NOT EXCEEDING TWO YEARS UPON THE APPROVAL AND CERTIFICATION BY THE CIVIL SERVICE COMMISSION * *

UNDER THE PLAIN TERMS OF THIS STATUTE THE SEPARATION FROM THE SERVICE AND THE TERMINATION OF ALL RIGHT TO SALARY, PAY, OR COMPENSATION BECOME EFFECTIVE AUTOMATICALLY ON THE ARRIVAL OF THE EMPLOYEE AT RETIREMENT AGE, EXCEPT IN THOSE CASES IN WHICH THE SEPARATION IS PREVENTED BY COMPLIANCE WITH THE TERMS OF THE PROVISO ABOVE QUOTED. IF THE ACTION OF EITHER OR BOTH THE HEAD OF THE DEPARTMENT CONCERNED AND/OR THE CIVIL SERVICE COMMISSION, IN CONNECTION WITH THE CERTIFICATION OF AN EMPLOYEE FOR RETENTION IN THE SERVICE, IS NOT FULLY COMPLETED ON OR PRIOR TO THE DATE THE EMPLOYEE REACHES RETIREMENT AGE, IT IS OBVIOUS THAT UNDER THE QUOTED PROVISION HE WOULD BECOME AUTOMATICALLY SEPARATED FROM THE SERVICE AND THE LAW MAKES NO PROVISION FOR REINSTATEMENT OF AN EMPLOYEE THUS AUTOMATICALLY SEPARATED FROM THE SERVICE. THEREFORE, A CERTIFICATION OR APPROVAL SUBSEQUENTLY MADE WOULD BE WITHOUT ANY FORCE OR EFFECT. THIS QUESTION IS ANSWERED IN THE AFFIRMATIVE.

2. GIVING CONSIDERATION ONLY TO THE WORDING OF SECTION 2 OF THE ACT OF MARCH 3, 1927, SUPRA, IT WOULD SEEM TO VALIDATE SERVICE PERFORMED SUBSEQUENT TO RETIREMENT AGE ONLY IN THE CASE OF EMPLOYEES WHO HAD BEEN AT SOME TIME CERTIFIED FOR RETENTION BY THE HEAD OF THE DEPARTMENT CONCERNED AND THE CIVIL SERVICE COMMISSION. BUT CONSIDERING THE SITUATION SOUGHT TO BE REMEDIED BY THE ENACTMENT, INVOLVING NOT ONLY CASES IN WHICH A BELATED CERTIFICATION HAD BEEN MADE BUT ALSO CASES IN WHICH THERE WAS A FAILURE TO CERTIFY DUE TO THE FACT THAT ADMINISTRATIVE MISCONCEPTION AS TO THE REQUIREMENTS OF THE STATUTE HAD RESULTED IN DELAYING CERTIFICATION UNTIL PUBLICATION OF THE DECISION ADVISING THAT THE TIME FOR CERTIFICATION HAD EXPIRED, IT IS REASONABLE TO CONCLUDE THAT THE INTENT WAS TO VALIDATE ALL SERVICE THERETOFORE PERFORMED AFTER ARRIVING AT THE AGE OF RETIREMENT UNDER THE ERRONEOUS ADMINISTRATIVE VIEW OF THE STATUTE WHETHER OR NOT THERE WAS ACTUALLY EXECUTED A CERTIFICATION FOR RETENTION, A CERTIFICATION NOT MADE IN TIME BEING NO MORE A COMPLIANCE WITH THE LAW THAN NO CERTIFICATION AT ALL. THEREFORE, THE PROVISION MAY BE APPLIED TO VALIDATE SERVICE PERFORMED PRIOR TO THE DATE OF THE ACT IN EITHER CASE. THE QUESTION IS ANSWERED IN THE AFFIRMATIVE.