A-18812, JUNE 25, 1927, 6 COMP. GEN. 843

A-18812: Jun 25, 1927

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AS FOLLOWS: THERE IS REFERRED HEREWITH A LETTER * * * RELATING TO THE CONTINUANCE IN THE SERVICE OF PETER S. DECISIONS FROM YOUR OFFICE HAD CONSISTENTLY HELD THAT WHERE AN EMPLOYEE WITH 15 YEARS OF SERVICE REACHES THE AGE OF RETIREMENT WITHOUT HAVING BEEN CERTIFIED FOR CONTINUANCE BY THE DEPARTMENT AND SUCH CONTINUANCE APPROVED BY THIS COMMISSION HE IS AUTOMATICALLY SEPARATED FROM THE SERVICE. DO NOT APPEAR TO HAVE CONSIDERED THE PROVISIONS OF THE SECOND PARAGRAPH OF SECTION 2 OF THE ACT OF JULY 3. HE IS AUTOMATICALLY SEPARATED FROM THE SERVICE. DEMAREE THE RECORD OF EFFICIENCY AND MEDICAL CERTIFICATE SUBMITTED ARE SUCH THAT THE COMMISSION WOULD HAVE APPROVED HIS CONTINUANCE HAD IT RECEIVED THE CERTIFICATION OF THE DEPARTMENT IN TIME TO GIVE ITS APPROVAL PRIOR TO MR.

A-18812, JUNE 25, 1927, 6 COMP. GEN. 843

RETIREMENT, CIVILIAN - CERTIFICATION FOR RETENTION AFTER AGE AN "AS OF COURSE" CERTIFICATE BY THE HEAD OF THE DEPARTMENT OR OFFICE CONCERNED FOR THE RETENTION OF AN EMPLOYEE IN THE CIVIL SERVICE BEYOND THE AGE FOR RETIREMENT, BASED UPON THE APPLICATION OF THE EMPLOYEE, WHO PROVES HIS EFFICIENCY AND PHYSICAL FITNESS FOR RETENTION UNDER AUTHORITY OF THE SECOND PARAGRAPH OF SECTION 2 OF THE CIVIL RETIREMENT ACT, AS AMENDED BY THE ACT OF JULY 3, 1926, 44 STAT. 905, AND THE APPROVAL THEREOF AND CERTIFICATION BY THE CIVIL SERVICE COMMISSION, MUST BOTH BE MADE BEFORE THE EMPLOYEE REACHES RETIREMENT AGE IN ORDER TO PREVENT HIS AUTOMATIC SEPARATION FROM THE SERVICE UPON REACHING SUCH AGE.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, UNITED STATES CIVIL SERVICE COMMISSION, JUNE 25, 1927:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JUNE 7, 1927, AS FOLLOWS:

THERE IS REFERRED HEREWITH A LETTER * * * RELATING TO THE CONTINUANCE IN THE SERVICE OF PETER S. DEMAREE, CARRIER IN THE POST OFFICE AT WICHITA, KANSAS.

DECISIONS FROM YOUR OFFICE HAD CONSISTENTLY HELD THAT WHERE AN EMPLOYEE WITH 15 YEARS OF SERVICE REACHES THE AGE OF RETIREMENT WITHOUT HAVING BEEN CERTIFIED FOR CONTINUANCE BY THE DEPARTMENT AND SUCH CONTINUANCE APPROVED BY THIS COMMISSION HE IS AUTOMATICALLY SEPARATED FROM THE SERVICE. THESE DECISIONS, HOWEVER, DO NOT APPEAR TO HAVE CONSIDERED THE PROVISIONS OF THE SECOND PARAGRAPH OF SECTION 2 OF THE ACT OF JULY 3, 1926, TO THE EFFECT THAT WHENEVER AN EMPLOYEE MAKES APPLICATION FOR CONTINUANCE AND SUBMITS ACCEPTABLE PROOF OF HIS PHYSICAL FITNESS TO PERFORM THE WORK HE SHALL, IF CERTAIN INFORMATION REQUIRED BY THE PARAGRAPH SHOWS THAT HE HAS BEEN EFFICIENT AND COMPETENT DURING THE TWO YEARS NEXT PRECEDING APPLICATION FOR CONTINUANCE, BE CERTIFIED FOR CONTINUANCE "AS OF COURSE.'

THE COMMISSION REQUESTS TO BE INFORMED WHETHER, IN CASE THE APPLICANT FOR RETENTION UNDER THIS PROVISION OF LAW COMPLIES WITH ALL THSE REQUIREMENTS AND THE DEPARTMENT FAILS TO TAKE ACTION BEFORE HE REACHES RETIREMENT AGE, HE IS AUTOMATICALLY SEPARATED FROM THE SERVICE. IN THE PRESENT CASE OF MR. DEMAREE THE RECORD OF EFFICIENCY AND MEDICAL CERTIFICATE SUBMITTED ARE SUCH THAT THE COMMISSION WOULD HAVE APPROVED HIS CONTINUANCE HAD IT RECEIVED THE CERTIFICATION OF THE DEPARTMENT IN TIME TO GIVE ITS APPROVAL PRIOR TO MR. DEMAREE'S REACHING THE AGE OF RETIREMENT. THE COMMISSION WOULD APPROVE HIS RETENTION NOW IF YOUR OFFICE RULES THAT SUCH CERTIFICATE OF RETENTION WOULD BE VALID.

IN DECISION OF APRIL 2, 1927, 6 COMP. GEN., 651, 652, CONSTRUING THE RETIREMENT ACT AS AMENDED, IT WAS STATED AS FOLLOWS:

1. AS AMENDED BY SECTION 1 OF THE ACT OF MARCH 3, 1927, SUPRA, THE 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.

THE SECOND PARAGRAPH OF SECTION 2 OF THE RETIREMENT ACT, AS AMENDED JULY 3, 1926, SUPRA, PROVIDES AS FOLLOWS:

WHENEVER AN EMPLOYEE SHALL MAKE APPLICATION FOR SUCH CONTINUATION IN THE CIVIL SERVICE, AND SHALL SUBMIT ACCEPTABLE PROOF OF HIS PRESENT PHYSICAL FITNESS TO PERFORM HIS WORK, IT SHALL BE THE DUTY OF THE HEAD OF THE DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE OF THE GOVERNMENT CONCERNED TO OBTAIN FROM THE IMMEDIATE SUPERIOR IN THE SERVICE OF SUCH APPLICANT ALL EFFICIENCY RATINGS AND OTHER INFORMATION ON FILE RESPECTING THE CHARACTER OF THE WORK OF SUCH APPLICANT, AND SHALL ALSO OBTAIN FROM SUCH IMMEDIATE SUPERIOR HIS OPINION IN WRITING WITH RESPECT TO THE EFFICIENCY OF THE WORK PERFORMED BY SUCH APPLICANT. FROM SUCH INFORMATION SHALL BE ELIMINATED INCREASES IN RATING, CREDITS, AND OTHER PREFERENCES FOR ANY CAUSE WHATSOEVER OTHER THAN THE CHARACTER OF WORK ACTUALLY PERFORMED. SHOULD SUCH INFORMATION SHOW THAT THE APPLICANT HAS BEEN EFFICIENT AND COMPETENT DURING THE TWO YEARS NEXT PRECEDING HIS APPLICATION FOR CONTINUANCE IN THE CIVIL SERVICE, THE HEAD OF THE DEPARTMENT, BRANCH OR INDEPENDENT OFFICE OF THE GOVERNMENT CONCERNED SHALL, AS OF COURSE, CERTIFY TO THE UNITED STATES CIVIL SERVICE COMMISSION THAT, BY REASON OF THE EFFICIENCY AND WILLINGNESS OF SUCH APPLICANT TO REMAIN IN THE CIVIL SERVICE OF THE UNITED STATES, THE CONTINUANCE OF SUCH EMPLOYEE WOULD BE ADVANTAGEOUS TO THE PUBLIC SERVICE.

IN ADDITION TO THE RIGHT OTHERWISE GRANTED BY THE ACT TO THE HEAD OF AN OFFICE OR DEPARTMENT TO CERTIFY EMPLOYEES FOR RETENTION BECAUSE OF A NEED OF THE UNITED STATES FOR THE SERVICES OF THE EMPLOYEE, THE QUOTED PARAGRAPH GRANTS A RIGHT TO THE EMPLOYEE TO MAKE APPLICATION ON HIS OWN BEHALF FOR RETENTION, AND TO HAVE CONSIDERED IN CONNECTION THEREWITH HIS PHYSICAL FITNESS AND HIS EFFICIENCY AND COMPETENCY DURING THE TWO YEARS NEXT PRECEDING HIS APPLICATION FOR RETENTION. WHEN SUCH AN APPLICATION IS FILED IT BECOMES THE DUTY OF THE HEAD OF THE DEPARTMENT, BRANCH, OR INDEPENDENT OFFICE TO EXAMINE THE FACTS OF PHYSICAL FITNESS, COMPETENCY, EFFICIENCY, ETC., AS INDICATED IN THE LAW, AND CONCLUDE THEREFROM WHETHER HE MAY PROPERLY CERTIFY THAT THE RETENTION OF THE EMPLOYEE WOULD BE ADVANTAGEOUS TO THE PUBLIC SERVICE. IF HE MAY PROPERLY SO CONCLUDE FROM THE FACTS APPEARING, IT WOULD SEEM THE INTENT OF THE ENACTMENT THAT HE DO SO, BUT THERE IS CLEARLY RESPONSIBILITY FOR THE EXERCISE OF JUDGMENT IN THE MATTER ON THE HEAD OF THE OFFICE CALLED UPON TO MAKE THE DETERMINATION, AND IF, IN HIS JUDGMENT, THE FACTS OF HIS PHYSICAL FITNESS, EFFICIENCY, AND COMPETENCY ARE SUCH THAT IT WOULD NOT BE ADVANTAGEOUS TO THE UNITED STATES TO RETAIN THE EMPLOYEE, IT WOULD BE HIS DUTY TO DECLINE MAKING THE CERTIFICATE--- OR MORE--- TO STATE HIS CONCLUSION AS TO THE INEFFICIENCY OR INCOMPETENCY OF THE EMPLOYEE INVOLVED AS FOUND FROM THE FACTS.

BUT THERE IS NOTHING IN THE STATUTE THAT CAN BE CONSTRUED AS AUTHORIZING THE MAKING OF THE "AS OF COURSE" CERTIFICATE FOR RETENTION SUBSEQUENT TO THE DATE THE EMPLOYEE REACHES THE AGE OF RETIREMENT, OR AS SUSPENDING THE OPERATION OF THE PROVISION OF THE STATUTE RELATIVE TO THE AUTOMATIC SEPARATION OF THE EMPLOYEE FROM THE SERVICE IN CASE THE CERTIFICATE IS NOT MADE BEFORE THE EMPLOYEE REACHES RETIREMENT AGE. IN OTHER WORDS, THE ADDITIONAL PROVISIONS CONTAINED IN THE SECOND PARAGRAPH OF SECTION 2 HAVE TO DO WITH THE MAKING OF THE CERTIFICATE FOR RETENTION AND DO NOT ALTER OR RENDER INOPERATIVE THE PROVISION IN THE PRECEDING PARAGRAPH RELATIVE TO THE AUTOMATIC SEPARATION FROM THE SERVICE OF EMPLOYEES WHO ARE NOT CERTIFIED FOR RETENTION BEFORE THEY REACH THE AGE OF RETIREMENT. CONNECTION WITH THE MAKING OF THE CERTIFICATE THERE IS INVOLVED SOMETHING MORE THAN THE PERFORMANCE OF A MERE PERFUNCTORY MINISTERIAL DUTY. THE LAW REQUIRES THE EXERCISE OF A JUDGMENT OR A DISCRETION BY THE HEAD OF THE DEPARTMENT OR OFFICE CONCERNED AND BY THE CIVIL SERVICE COMMISSION; AND UNLESS SUCH JUDGMENT OR DISCRETION IS EXERCISED AND THE CERTIFICATE MADE BEFORE THE EMPLOYEE ARRIVES AT THE AGE OF RETIREMENT HE WILL BE AUTOMATICALLY SEPARATED FROM THE SERVICE, UNDER THE PLAIN TERMS OF THE LAW, AND THERE IS NO AUTHORITY OF LAW FOR HIS REINSTATEMENT ON THE BASIS OF ANY CERTIFICATION THEREAFTER MADE.

WHILE IT IS MOST UNFORTUNATE THAT AN EMPLOYEE APPLYING IN DUE TIME FOR RETENTION BEYOND THE AGE OF RETIREMENT, AND WHOSE QUALIFICATIONS AS TO PHYSICAL FITNESS, EFFICIENCY, ETC., ARE SUCH AS TO JUSTIFY HIS RETENTION, SHOULD BE DEPRIVED OF THAT PRIVILEGE BY THE DERELICTION OF SOME OFFICER IN THE ESTABLISHMENT IN WHICH HE IS EMPLOYED, YET THERE APPEARS NO AUTHORITY IN THE CONTROLLING STATUTE TO AUTHORIZE THIS OFFICE, BECAUSE OF THAT FACT OR CIRCUMSTANCE, TO MAKE ANY EXCEPTION TO THE STATUTORY REQUIREMENT THAT THE CERTIFICATE, TO BE EFFECTIVE, MUST BE MADE PRIOR TO THE TIME THE EMPLOYEE REACHES THE AGE OF RETIREMENT.

YOU ARE ADVISED, THEREFORE, THAT UPON THE FACTS SUBMITTED A CERTIFICATE OF RETENTION MADE SUBSEQUENT TO MAY 19, 1927, IN THE CASE OF PETER S. DEMAREE, WOULD NOT BE VALID OR EFFECTIVE TO RETAIN THE EMPLOYEE IN THE SERVICE AFTER SAID DATE.